EXHIBIT 10.2
[EXECUTION COPY]
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U.S. $35,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT,
dated as of
July 30, 1997
(amending and restating the Credit
Agreement, dated as of December 27, 1996),
among
XXXXXX HOLDINGS, INC.,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
CANADIAN IMPERIAL BANK OF COMMERCE,
as the Administrative Agent and
the Documentation Agent,
and
FIRST SOURCE FINANCIAL LLP,
as Co-Agent.
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Arranged by
CIBC WOOD GUNDY SECURITIES CORP.
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 30, 1997, among
XXXXXX HOLDINGS, INC., a Delaware corporation (the "Borrower"), the various
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financial institutions as are, or may from time to time become, parties hereto
(collectively, the "Lenders"), and CANADIAN IMPERIAL BANK OF COMMERCE, acting by
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or through one or more of its affiliates, branches or agencies ("CIBC"), as
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administrative agent (in such capacity, the "Administrative Agent") and as
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documentation agent (in such capacity, the "Documentation Agent") for the
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Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, through its Subsidiaries (such capitalized term, and
other terms used herein, to have the meanings provided in Section 1.1), is
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engaged in the business of providing telephone service to prisons for use by
prisoners located in such prisons, together with services ancillary thereto, as
well as providing general pay telephone services;
WHEREAS, pursuant to the Credit Agreement, dated as of December 27, 1996
(as amended, supplemented, and otherwise modified prior to the date hereof, the
"Existing Credit Agreement"), among the Borrower, certain financial institutions
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from time to time party thereto (the "Existing Lenders") and CIBC, as
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administrative agent and documentation agent thereunder, the Existing Lenders
made and were committed to make extensions of credit to the Borrower on the
terms and conditions set forth therein;
WHEREAS, the Borrower has requested that the Existing Credit Agreement be
amended and restated in its entirety to become effective and binding on the
Borrower pursuant to the terms of this Agreement, and the Lenders (including the
Existing Lenders) have agreed (subject to the terms of this Agreement) to amend
and restate the Existing Credit Agreement in its entirety to read as set forth
in this Agreement, and it has been agreed by the parties to the Existing Credit
Agreement that (a) the commitments which the Existing Lenders have agreed to
extend to the Borrower under the Existing Credit Agreement shall be extended or
advanced upon the amended and restated terms and conditions contained in this
Agreement, and (b) any outstanding credit extensions made and other Obligations
outstanding under the Existing Credit Agreement shall be governed by and deemed
to be outstanding under the amended and restated terms and conditions contained
in this Agreement, with the intent that the terms of this Agreement shall
supersede the terms of the Existing Credit Agreement (which shall hereafter have
no further effect upon the parties thereto, other than for accrued fees and
expenses, and indemnification provisions, accrued and owing under the terms of
the Existing Credit Agreement on or prior to the date hereof or arising under
the terms of the Existing Credit Agreement); provided, that any Rate Protection
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Agreements with any one or more Existing Lenders (or their respective
Affiliates) shall continue unamended and in full force and effect;
WHEREAS, in connection with amending and restating the Existing Credit
Agreement and at the time of the effectiveness of such amendment and
restatement, (a) the Borrower has issued to a group of investors Senior Notes in
an aggregate principal amount of $115,000,000 the proceeds of which shall be
used, in part, to repay in full the principal amount of all the Xxxxxx Seller
Subordinated Note, the Senior Subordinated Notes referred to in the Existing
Credit Agreement and all term loans and revolving loans outstanding under the
Existing Credit Agreement, and (b) the
Borrower desires to obtain pursuant to this Agreement from the Lenders a
Revolving Loan Commitment pursuant to which Borrowings of Revolving Loans, in a
maximum aggregate outstanding principal amount not to exceed $35,000,000 at any
one time
outstanding, will be made to the Borrower from time to time from and
subsequent to the Closing Date, but prior to the Revolving Loan Commitment
Termination Date, with the proceeds of all Loans to be used for the purposes set
forth in Section 7.1.11;
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WHEREAS, all Loans and other Obligations shall continue to be and shall be
fully guaranteed pursuant to the Subsidiary Guaranty and fully secured by, among
other things, the Borrower Security Agreement, the AmeriTel Security Agreement,
the Xxxxxx Security Agreement, the Xxxxxx Carolina Security Agreement, the
Xxxxxx STC Security Agreement, the Borrower Pledge Agreement, the Investor
Pledge Agreement and the Xxxxxx Pledge Agreement; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to so amend and restate
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the Existing Credit Agreement to extend such Commitments and make such Loans to
the Borrower;
NOW, THEREFORE, the parties hereto hereby agree to amend and restate the
Existing Credit Agreement, and the Existing Credit Agreement is hereby amended
and restated, as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
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underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquisition" means any transaction, or any series of related transactions,
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consummated on or after the Closing Date, by which the Borrower or any of its
Subsidiaries (a) acquires any business (whether through purchase of assets,
equity interests, merger or otherwise) or all or substantially all of the assets
of any firm, corporation or division thereof or (b) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than by reason of the happening of a contingency) or a majority (by
percentage or voting power) of the outstanding equity interests of a Person
(other than a corporation or a natural person).
"Administrative Agent" is defined in the preamble and includes each other
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Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to Section 9.4.
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"Affiliate" of any Person means any other Person which, directly or
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indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis)
or other equity or membership interests having ordinary voting power for
the election of directors or managing general partners or members; or
(b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
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"Affirmation and Consent" means the Affirmation and Consent to be executed
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and delivered by each of Xxxxxx, AmeriTel and Xxxxxx Carolina pursuant to
Section 5.1.9, in form and substance satisfactory to the Administrative Agent,
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as amended, supplemented, amended and restated or otherwise modified from time
to time
"Agent" means, as the context may require, the Administrative Agent or the
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Documentation Agent; collectively, the "Agents".
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"Agent-Related Persons" means the Agents, any successor thereto appointed
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in accordance with Section 9.4 and their respective Affiliates (including, in
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the case of CIBC, CIBC Wood Gundy Securities Corp., in its role as Arranger of
the Commitments and Loans), together with the officers, directors, employees and
agents of each of the foregoing Persons.
"Agreement" means, on any date, the Existing Credit Agreement, as amended
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and restated hereby and as from time to time further amended, supplemented,
amended and restated or otherwise modified.
"Alternate Base Rate" means, on any date and with respect to all Base Rate
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Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently announced or established by
CIBC at its Domestic Office as its base, reference or prime, as applicable,
rate for Dollar loans; and
(b) the Federal Funds Rate plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by CIBC in connection with extensions of credit. Changes in
the rate of interest on that portion of any Loans maintained as Base Rate Loans
will take effect simultaneously with each change in the Alternate Base Rate.
The Administrative Agent will give notice promptly to the Borrower and the
Lenders of changes in the Alternate Base Rate.
"AmeriTel" means AmeriTel Pay Phones, Inc., a Missouri corporation.
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"AmeriTel Security Agreement" means the Security Agreement executed and
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delivered by AmeriTel pursuant to Section 5.1.9 of the Existing Credit
Agreement, substantially in the form of Exhibit G-2 thereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Applicable Base Rate Margin" means, with respect to any Base Rate Loan,
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the per annum percentage set forth below opposite the Total Debt to EBITDA
Ratio, as determined initially in accordance with the Compliance Certificate
delivered pursuant to Section 5.1.10, and thereafter in accordance with the
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Compliance Certificate most recently delivered pursuant to clause (d) of Section
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7.1.1:
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Total Debt Applicable
to EBITDA Ratio Base Rate Margin
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greater than or equal to 5.5:1 2.75%
greater than or equal to 4.5:1 but 2.25%
less than 5.5:1
greater than or equal to 4.0:1 but 1.75%
less than 4.5:1
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Total Debt Applicable
to EBITDA Ratio Base Rate Margin
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greater than or equal to 3.5:1 but 1.50%
less than 4.0:1
greater than or equal to 3.0:1 but 1.25%
less than 3.5:1
greater than or equal to 2.5:1 but 0.75%
less than 3.0:1
less than 2.5:1 0.25%
provided that if the Borrower shall fail to deliver a Compliance Certificate for
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a given Fiscal Quarter within the time required by clause (d) of Section 7.1.1,
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or if any Event of Default shall have occurred and be continuing, then the
Applicable Base Rate Margin for the period from the 46th day after the first day
of such Fiscal Quarter through (but excluding) the date such Compliance
Certificate is delivered shall be 2.75% for the Fiscal Quarter during which the
Compliance Certificate was not timely delivered. Any reduction in the
Applicable Base Rate Margin shall be effective beginning on the date that is
three days following the date on which the Administrative Agent receives the
Borrower's Compliance Certificate pursuant to clause (d) of Section 7.1.1. If
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the Applicable Base Rate Margin is required to be increased as a result of an
increase in the most recently determined Total Debt to EBITDA Ratio, such higher
Applicable Base Rate Margin shall be effective as of and retroactive to the
first day of the Fiscal Quarter in which such Compliance Certificate was
required to be delivered.
"Applicable LIBO Rate Margin" means, with respect to any LIBO Rate Loan,
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the per annum percentage set forth below opposite the Total Debt to EBITDA
Ratio, as determined initially in accordance with the Compliance Certificate
delivered pursuant to Section 5.1.10, and thereafter in accordance with the
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Compliance Certificate most recently delivered pursuant to clause (d) of Section
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7.1.1:
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Total Debt Applicable
to EBITDA Ratio LIBO Rate Margin
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greater than or equal to 5.5:1 4.00%
greater than or equal to 4.5:1 but 3.50%
less than 5.5:1
greater than or equal to 4.0:1 but 3.00%
less than 4.5:1
greater than or equal to 3.5:1 but 2.75%
less than 4.0:1
greater than or equal to 3.0:1 but 2.50%
less than 3.5:1
greater than or equal to 2.5:1 but 2.00%
less than 3.0:1
less than 2.5:1 1.50%
provided that if the Borrower shall fail to deliver a Compliance Certificate for
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a given Fiscal Quarter within the time required by clause (d) of Section 7.1.1,
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or if any Event of Default shall have occurred and
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be continuing, then the Applicable LIBO Rate Margin for the period from the 46th
day after the first day of such Fiscal Quarter through (but excluding) the date
such Compliance Certificate is delivered shall be 4.00% for the Fiscal Quarter
during which the Compliance Certificate was not timely delivered. Any reduction
in the Applicable LIBO Rate Margin shall be effective beginning on the date that
is three days following the date on which the Administrative Agent receives the
Borrower's Compliance Certificate pursuant to clause (d) of Section 7.1.1. If
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the Applicable LIBO Rate Margin is required to be increased as a result of an
increase in the most recently determined Total Debt to EBITDA Ratio, such higher
Applicable LIBO Rate Margin shall be effective as of and retroactive to the
first day of the Fiscal Quarter in which such Compliance Certificate was
required to be delivered.
"Assignee Lender" is defined in Section 10.11.1.
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"Authorized Officer" means, relative to any Obligor, those of its officers
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whose signatures and incumbency shall have been certified to the Administrative
Agent and the Lenders pursuant to Section 5.1.1.
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"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
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determined by reference to the Alternate Base Rate.
"Borrower" is defined in the preamble.
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"Borrower Pledge Agreement" means the Pledge Agreement executed and
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delivered by the Borrower pursuant to Section 5.1.8 of the Existing Credit
Agreement, substantially in the form of Exhibit H-1 thereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Borrower Pledge Agreement Supplement" means Supplement No. 1 to Borrower
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Pledge Agreement to be executed and delivered by the Borrower pursuant to
Section 5.1.7, in form and substance satisfactory to the Administrative Agent,
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as amended, supplemented, amended and restated or otherwise modified from time
to time.
"Borrower Security Agreement" means the Security Agreement executed and
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delivered by the Borrower pursuant to Section 5.1.9 of the Existing Credit
Agreement, substantially in the form of Exhibit G-1 thereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Borrowing" means Loans of the same type and, in the case of LIBO Rate
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Loans, having the same Interest Period made by all Lenders on the same Business
Day and pursuant to the same Borrowing Request in accordance with Section 2.1.
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"Borrowing Request" means a loan request and certificate duly executed by
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an Authorized Officer of the Borrower, substantially in the form of Exhibit C
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hereto.
"Business Day" means
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(a) any day which is neither a Saturday nor a Sunday nor a legal
holiday on which banks are authorized or required to be closed in New York,
New York; and
(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day which is covered in clause (a) immediately above
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and on which dealings in Dollars are carried on in the London interbank
market.
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"Capital Expenditures" means, for any period, the sum of
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(a) the aggregate amount of all expenditures of the Borrower and its
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
"Capitalized Lease Liabilities" means all monetary obligations of the
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Borrower or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as capitalized leases, and,
for purposes of this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"Cash Equivalent Investment" means, at any time:
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(a) any evidence of Indebtedness, maturing not more than one year
after such time, issued or guaranteed by the United States Government or
any agency thereof;
(b) commercial paper, maturing not more than nine months from the
date of issue, which is issued by
(i) a corporation (other than an Affiliate of any Obligor)
organized under the laws of any state of the United States or of the
District of Columbia and rated at least A-1 by Standard & Poor's
Ratings Group or at least P-1 by Xxxxx'x Investors Service, Inc., or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers acceptance, maturing not
more than one year after such time, which is issued by either
(i) a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and
undivided profits of not less than $500,000,000, or
(ii) any Lender; or
(d) any repurchase agreement entered into with any Lender (or other
commercial banking institution of the stature referred to in clause (c)(i))
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which
(i) is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (a) through (c),
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and
(ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of
such Lender (or other commercial banking institution) thereunder.
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"Cash Interest Expense" means, for any period, the sum of (a) Interest
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Expense required to be paid in cash and (b) the amount of Preferred Dividends,
in each case for such period.
"CCC Acquisition" means the Acquisition by the Borrower of the assets of
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Correctional Communication Corporation pursuant to a term sheet dated May 14,
1997.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
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Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
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Liability Information System List.
"Change in Control" means
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(a) the acquisition directly or indirectly by any Person, or two or
more Persons acting in concert, other than the Persons set forth in clause
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(b) below, of beneficial ownership (within the meaning of Rule 13d-3 of the
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Securities and Exchange Commission under the Securities Exchange Act of
1934) of 25% or more of the outstanding shares of voting stock of the
Borrower;
(b) the failure of (i) EUFCC and Onyx to own and control at least 10%
of the common stock of the Borrower in the aggregate on a fully diluted
basis and free and clear of all Liens, (ii) the Existing Xxxxxx
shareholders to own and control at least 10% of the common stock of the
Borrower in the aggregate on a fully diluted basis, and free and clear of
Liens, or (iii) the Borrower to own and control 100% of the outstanding
shares of voting and non-voting stock of each of AmeriTel, Xxxxxx and
Xxxxxx STC, in each case on a fully diluted basis and free and clear of all
Liens and other encumbrances (except in favor of the Administrative Agent,
on behalf of the Lenders) or (iv) the majority of the Board of Directors of
the Borrower to be comprised of the same members as those who serve on such
Board on the Effective Date; or
(c) any "Change in Control" or "Change of Control" as defined in any
Senior Debt Instrument.
"CIBC" is defined in the preamble.
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"CIBC Securities" means CIBC Wood Gundy Securities Corp., an Affiliate of
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Canadian Imperial Bank of Commerce.
"Closing Date" means the date all closing conditions set forth in Section
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5.1 are satisfied and the initial Borrowing is made under the amendment and
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restatement of this Agreement.
"Closing Date Certificate" means a certificate of a duly Authorized Officer
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of the Borrower executed and delivered pursuant to Section 5.1.12, substantially
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in the form of Exhibit F hereto.
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"Code" means the Internal Revenue Code of 1986, as amended, reformed or
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otherwise modified from time to time.
"Commitment" means a Lender's Revolving Loan Commitment.
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"Commitment Amount" means the Revolving Loan Commitment Amount.
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"Commitment Termination Date" means the Revolving Loan Commitment
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Termination Date.
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"Commitment Termination Event" means
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(a) the occurrence of any Default described in clauses (a) through
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(d) of Section 8.1.9 with respect to the Borrower or any Subsidiary; or
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(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of any Loans to be due and payable pursuant
to Section 8.3, or
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(ii) in the absence of such declaration, the giving of notice by
the Administrative Agent, acting at the direction of the Required
Lenders, to the Borrower that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly executed by the financial
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Authorized Officer of the Borrower, substantially in the form of Exhibit E
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hereto, together with such changes as the Administrative Agent may from time to
time reasonably request for purposes of monitoring the Borrower's compliance
herewith.
"Contingent Liability" means any agreement, undertaking or arrangement by
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which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
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conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit D hereto.
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"Controlled Group" means all members of a controlled group of corporations
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and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
section 4001 of ERISA.
"Debt Service" means, for any period, (a) all maturities of short-term
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Funded Debt and all current maturities of long term Funded Debt (including
actual scheduled payments in respect of Capitalized Lease Liabilities) during
such period, plus (b) Cash Interest Expense during such period.
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"Default" means any Event of Default or any condition, occurrence or event
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which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
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Schedule I, as it may be amended, supplemented or otherwise modified from time
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to time by the Borrower with the written consent of the Administrative Agent and
the Required Lenders.
"Documentation Agent" is defined in the preamble.
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"Dollar" and the sign "$" mean lawful money of the United States.
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"Domestic Office" means, relative to any Lender, the office of such Lender
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designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by written notice from such Lender, as the case may be, to each other
Person party hereto.
"EBITDA" means, with respect to any applicable fiscal period, the Net
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Income (excluding profits generated from the amortization of negative good will)
of the Borrower and its Subsidiaries on a consolidated basis before taxes for
such period (excluding pre-tax gains or losses of the Borrower and its
Subsidiaries on a consolidated basis on the sale of assets (other than the sale
of inventory in the ordinary course of business) and excluding other pre-tax
extraordinary gains or losses of the Borrower and its Subsidiaries on a
consolidated basis), plus Interest Expense, depreciation and amortization
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deducted in determining Net Income for such period; provided, however, that with
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respect to EBITDA calculated for a Rolling Period, (i) for the period ended on
the Closing Date, EBITDA shall include the sum of EBITDA for the period from
January 1, 1997 through the end of the month prior to the Closing Date, adjusted
to be annualized and adjusted to include Permitted Acquisitions (the
"Acquisition Adjustment") made during such period (such adjustments to be
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satisfactory to the Administrative Agent) as if such acquisitions had been made
at the beginning of such period; (ii) for the three Fiscal Quarters ended
September 30, 1997, EBITDA shall include the sum of EBITDA for such Fiscal
Quarters, adjusted to be annualized and adjusted by the Acquisition Adjustment;
and (iii) for the four Fiscal Quarters ended December 31, 1997 and for each
Rolling Period thereafter, EBITDA shall include the sum of actual EBITDA for
such Rolling Period, adjusted by the Acquisition Adjustment.
"EBITDA to Cash Interest Expense Ratio" means, as at the last day of any
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Fiscal Quarter, the ratio of (a) EBITDA for such Fiscal Quarter to (b) Cash
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Interest Expense for such Fiscal Quarter.
"EBITDA to Fixed Charges Ratio" means, as at the last day of any Fiscal
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Quarter, the ratio of (a) EBITDA for the Rolling Period ended on the last day of
such Fiscal Quarter to (b) (i) Debt Service for the Rolling Period ended on the
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last day of such Fiscal Quarter, plus (ii) Capital Expenditures made during the
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Rolling Period ended on the last day of such Fiscal Quarter, plus (iii) Taxes
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paid in cash or accrued during the Rolling Period ended on the last day of such
Fiscal Quarter, plus (iv) the amount expended for Permitted Acquisitions for the
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Rolling Period ended on the last day of such Fiscal Quarter; provided, however,
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that (A) for the period ending on the Closing Date, the amount computed in
accordance with clause (b) above shall include the product of the amount
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provided for in clause (b) above for the period ended on the month-end
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immediately preceding the Closing Date multiplied by the amount necessary to
annualize such amount; (B) for the three Fiscal Quarters ended September 30,
1997, the amount computed in accordance with clause (b) above shall include the
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product of the amount provided for in clause (b) above for such Fiscal Quarters
multiplied by 1.333; and (C) for the four Fiscal Quarters ended December 31,
1997 and for each Rolling Period thereafter, the amount computed in accordance
with clause (b)
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above shall include the actual amount provided for in clause (b) above;
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provided, further, however, that if any New Installations are consummated during
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any Rolling Period or during the period ended on the last day of any such Fiscal
Quarter, EBITDA for such Rolling Period or period shall be deemed to include an
amount for EBITDA for such New Installations equal to the amount set forth in
the business plan (which shall be based on assumptions deemed reasonable by the
Administrative Agent in its discretion) submitted by the Borrower to the
Official Body permitting such New Installations.
"Effective Date" means the date this Agreement becomes effective pursuant
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to Section 10.8.
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"Environmental Laws" means all applicable federal, state or local statutes,
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laws, ordinances, codes, rules, regulations and guidelines (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"EUFCC" means Xxxxxx Xxxx Xxxxxxx Capital Corporation, a Texas corporation.
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"Event of Default" is defined in Section 8.1.
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"Existing Credit Agreement" is defined in the second recital.
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"Existing Lenders" is defined in the second recital.
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"Existing Xxxxxx Shareholders" means Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
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Jr., immediate family members of the foregoing Persons and trusts for family
members of the foregoing Persons.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
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annum equal for each day during such period to
(a) 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 for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by CIBC from three federal funds brokers of recognized standing
selected by it.
"Fee Letter" means the confidential fee letter, dated as of June 26, 1997,
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between the Borrower and CIBC.
"Fiscal Quarter" means any quarter of a Fiscal Year.
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"Fiscal Year" means any period of twelve consecutive calendar months ending
-----------
on December 31; references to a Fiscal Year with a number corresponding to any
calendar year (e.g., the "1997 Fiscal Year") refer to the Fiscal Year ending on
the December 31 occurring during such calendar year.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
------------
or any successor thereto.
"Funded Debt" means, on any date of determination, the sum of the aggregate
-----------
amount of all Indebtedness of the type set forth in clauses (a), (b), (c) and
----------- --- ---
(g) (insofar as such Contingent Liability is in respect of Indebtedness of the
---
type set forth in clause (a), (b) or (c)) of the definition of Indebtedness as
---------- --- ---
of such date, and in any event includes the Loans and the Senior Notes.
"GAAP" is defined in Section 1.4.
---- -----------
"Hazardous Material" means
------------------
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended;
-10-
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement
(including consent decrees and administrative orders) relating to or
imposing liability or standards of conduct concerning any hazardous, toxic
or dangerous waste, substance or material, all as amended or hereafter
amended.
"Hedging Obligations" means, with respect to any Person, all liabilities of
-------------------
such Person under interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
------ ------ ------ ---------
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
---------------------------
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
such Obligor to be in default of any of its obligations under Section
-------
7.2.4.
"including" means including without limiting the generality of any
---------
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
------- -------
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
------------
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances, in each case issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) all other items which, in accordance with GAAP, would be included
as liabilities on the liability side of the balance sheet of such Person as
of the date at which Indebtedness is to be determined;
-11-
(e) net liabilities of such Person under all Hedging Obligations;
(f) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse; and
(g) all Contingent Liabilities of such Person in respect of any of
the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer.
"Indemnified Liabilities" is defined in Section 10.4.
----------------------- ------------
"Indemnified Parties" is defined in Section 10.4.
------------------- ------------
"Interest Expense" means, for any period, the total interest expense
----------------
(including commitment fees payable under this Agreement), that is payable by the
Borrower and its Subsidiaries, on a consolidated basis, in respect of Funded
Debt for such period, all as computed in accordance with GAAP.
"Interest Period" means, relative to any LIBO Rate Loans, the period
---------------
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4
----------- ---
and ending on (but excluding) the day which numerically corresponds to such date
one, two, three, six or (subject to availability to all Lenders) nine or twelve
months thereafter (or, if such month has no numerically corresponding day, on
the last Business Day of such month), in either case as the Borrower may select
in its relevant notice pursuant to Section 2.3 or 2.4; provided, however, that
----------- --- -------- -------
(a) the Borrower shall not be permitted to select Interest Periods to
be in effect at any one time which have expiration dates occurring on more
than four different dates;
(b) Interest Periods commencing on the same date for Loans comprising
part of the same Borrowing shall be of the same duration;
(c) if an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next following Business
Day (unless such next following Business Day is the first Business Day of a
calendar month, in which case such Interest Period shall end on the
Business Day next preceding such numerically corresponding day), and
Interest Periods shall be selected to coincide with amortization and
commitment reduction dates; and
(d) no Interest Period may end later than the date set forth in
clause (a) of the definition of "Revolving Loan Commitment Termination
---------- -------------------------------------
Date".
"Investment" means, relative to any Person,
----------
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
-12-
(c) any ownership or similar interest held by such Person in any
other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"Investor" means EUFCC, Onyx, the Existing Xxxxxx Shareholders, CIBC Wood
--------
Gundy Ventures, Inc. and each other owner of the capital stock of the Borrower.
"Investor Pledge Agreement" means, as the context may require, each Pledge
-------------------------
Agreement executed and delivered by an Investor pursuant to Section 5.1.8 of the
Existing Credit Agreement or Section 7.1.9, substantially in the form of Exhibit
-------------
H-3 thereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Lender Assignment Agreement" means a Lender Assignment Agreement, executed
---------------------------
and delivered pursuant to Section 10.11.1, substantially in the form of Exhibit
--------------- -------
D hereto.
-
"Lenders" is defined in the preamble.
------- --------
"LIBO Rate" means, relative to each day during each Interest Period for
---------
LIBO Rate Loans, the rate of interest 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 and appearing on Page 3750
of the Telerate screen at or about 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period or, if such rate does not
appear on such page or otherwise on such service, such rate shall be determined
by reference to such other publicly available service for displaying Eurodollar
rates as may be agreed between the Administrative Agent and the Borrower or,
in the absence of such agreement, the "LIBO Rate" shall be the rate of interest
per annum equal to the average (rounded upwards, if necessary, to the nearest
1/16 of 1%) of the rates per annum at which Dollar deposits in immediately
available funds are offered by CIBC to prime international banks in the offshore
dollar market at or about 11:00 a.m. New York time two Business Days prior to
the beginning of such Interest Period for delivery on the first day of such
Interest Period, and in an amount approximately equal to the amount of CIBC's
LIBO Rate Loan and for a period approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
--------------
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
----------------------------
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
--------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on the date, and the applicable rates furnished to
and received by the Administrative Agent from CIBC, two Business Days before the
first day of such Interest Period.
"LIBOR Office" means, relative to any Lender, the office of such Lender
------------
designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a
-13-
Lender as designated from time to time by notice from such Lender to the
Borrower and the Administrative Agent, whether or not outside the United States,
which shall be making or maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO
------------------------
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as defined
in Regulation D of the F.R.S. Board, having a term approximately equal or
comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
----
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means a Revolving Loan of any type.
----
"Loan Document" means this Agreement, the Notes, the Fee Letter, each
-------------
Security Agreement, each Pledge Agreement, the Subsidiary Guaranty, the Borrower
Pledge Agreement Supplement, the Subsidiary Guaranty Supplement, the Affirmation
and Consent and each other agreement, document or instrument delivered in
connection with this Agreement and such other agreements, whether or not
specifically mentioned herein or therein.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, revenues, properties, condition (financial or otherwise),
results of operations or prospects of the Borrower or any of its Subsidiaries,
(b) the ability of the Borrower or any of its Subsidiaries to perform its
obligations under any of the Loan Documents, (c) the validity or enforceability
of any of the Loan Documents, or (d) the rights or remedies of the
Administrative Agent or the Lenders under the Loan Documents.
"Net Debt Proceeds" means, with respect to the sale or issuance by the
-----------------
Borrower or any of its Subsidiaries to any Person of any Indebtedness permitted
by the Required Lenders after the Effective Date, the excess of:
------
(a) the gross cash proceeds received by the Borrower or any of its
Subsidiaries from such sale or issuance,
over
----
(b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional fees,
sales commissions and disbursements and all other reasonable fees, expenses
and charges, in each case actually incurred in connection with such sale or
issuance which have not been paid to Affiliates of the Borrower (other than
Affiliates comprising CIBC Securities, Onyx, EUFCC and their respective
Affiliates) in connection therewith.
"Net Disposition Proceeds" means, with respect to a Permitted Disposition
------------------------
of the assets of the Borrower or any of its Subsidiaries, the excess of
(a) the gross cash proceeds received by the Borrower or any of its
Subsidiaries from any Permitted Disposition,
-14-
less
----
(b) the sum of
(i) all reasonable and customary fees and expenses with respect
to legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such Permitted Disposition which have not been paid
to Affiliates of the Borrower (other than Affiliates comprising CIBC
Securities, Onyx, EUFCC and their respective Affiliates), and
(ii) all taxes and other governmental costs and expenses
actually paid or estimated by the Borrower (in good faith) to be
payable in cash in connection with such Permitted Disposition;
provided, however, that if, after the payment of all taxes with respect to such
-------- -------
Permitted Disposition, the amount of estimated taxes, if any, pursuant to clause
------
(b)(ii) above exceeded the tax amount actually paid in cash in respect of such
-------
Permitted Disposition, the aggregate amount of such excess shall be immediately
payable, pursuant to clause (d) of Section 3.1.1, as Net Disposition Proceeds.
---------- -------------
"Net Equity Proceeds" means, with respect to the sale or issuance by the
-------------------
Borrower (or, if any, any parent corporation or other entity with respect to the
Borrower) to any Person of any stock, warrants or options or the exercise of any
such warrants or options after the Effective Date, the excess of:
------
(a) the gross cash proceeds received by the Borrower or such parent
corporation or other entity from such sale, exercise or issuance,
over
----
(b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional fees,
sales commissions and disbursements and all other reasonable fees, expenses
and charges, in each case actually incurred in connection with such sale or
issuance which have not been paid to Affiliates of the Borrower (other than
Affiliates comprising CIBC Securities, Onyx, EUFCC and their respective
Affiliates) in connection therewith.
"Net Income" means, for any period, the net income of the Borrower and its
----------
Subsidiaries for such period on a consolidated basis as computed in accordance
with GAAP.
"New Installations" means the acquisition by the Borrower or any of its
-----------------
Subsidiaries of new contracts to provide telephone service from applicable
Official Bodies not involving an Acquisition.
"Note" means a Revolving Note.
----
"Obligations" means all obligations (monetary or otherwise) of the Borrower
-----------
and each other Obligor arising under or in connection with this Agreement, the
Notes and each other Loan Document.
"Obligor" means the Borrower, AmeriTel, Xxxxxx, Xxxxxx STC, Xxxxxx Carolina
-------
and/or any other Person (other than the Administrative Agent, the Documentation
Agent, any Agent-Related Person or any Lender) obligated under any Loan
Document.
-15-
"Offering Memorandum" means the June 24, 1997 Offering Memorandum
-------------------
describing the $115,000,000 Senior Notes issued by the Borrower.
"Official Body" means any government or political subdivision or any
-------------
agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any prison authority, or any court, tribunal or
arbitrator, in each case whether foreign or domestic.
"Onyx" means Onyx Partners, Inc., a California corporation, together with
----
its Affiliates.
"Operating Contracts" means each of the contracts for the operation of
-------------------
telephones to which the Borrower or any of its Subsidiaries is a party.
"Organic Documents" means, relative to any Obligor, its certificate of
-----------------
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of capital
stock.
"Participant" is defined in Section 10.11.2.
----------- ---------------
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
----
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in section
------------
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which the Borrower or
any corporation, trade or business that is, along with the Borrower, a member of
a Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set forth
----------
opposite its signature hereto or set forth in the then most recent Lender
Assignment Agreement executed by such Lender, as such percentage may be adjusted
from time to time pursuant to Lender Assignment Agreement(s) executed by such
Lender and its Assignee Lender(s) and delivered pursuant to Section 10.11.
-------------
"Permitted Acquisition" means, at any time of determination, the Xxxxxx STC
---------------------
Acquisition, the Tataka Acquisition, the CCC Acquisition and any Acquisition by
the Borrower or any of its Subsidiaries with respect to which each of the
following requirements are met:
(a) such Acquisition has been approved and recommended by the board
of directors or general partner (or similar entity) of the Person to be
acquired or which owns the assets of the Person be acquired;
(b) the Borrower shall have furnished to the Administrative Agent
(which shall promptly distribute the same to the Lenders), prior to the
consummation of such Acquisition, pro forma projections and other details
--- -----
(with reasonable assumptions) with respect to the Person or Persons to be
acquired;
(c) prior to and after giving effect to such Acquisition, no Default
(including without limitation under the provisions of Section 7.2.4 and
-------------
Sections 7.1.9 and 7.1.10) shall have occurred and be continuing, or would
-------------- ------
result therefrom;
-16-
(d) the Administrative Agent (on behalf of the Lenders) shall have
been provided a first-priority security interest in all acquired property;
(e) the documentation for such Acquisition shall permit the
Administrative Agent to obtain a lien on such documentation;
(f) the total consideration payable in respect of any one Acquisition
does not exceed $10,000,000; and
(g) the total consideration payable in respect of all Acquisitions
constituting Permitted Acquisitions in any Fiscal Year does not exceed
$35,000,000; provided, however, that to the extent the amount of all
-------- -------
Permitted Acquisitions permitted to be made in any Fiscal Year pursuant to
this clause (g) exceeds the aggregate amount of Permitted Acquisitions
----------
actually made during such Fiscal Year, such excess amount may be carried
forward to (but only to) the immediately succeeding Fiscal Year (any such
amount to be certified by the Borrower to the Administrative Agent in the
Compliance Certificate delivered following the last Fiscal Quarter of such
Fiscal Year), and any such amount carried forward to the succeeding Fiscal
Year shall be deemed to be used only after the Borrower has fully used the
scheduled amount of Permitted Acquisitions permitted by this clause (g)
----------
without giving effect to any carryforward amount; provided, further,
-------- -------
however, that the Xxxxxx STC Acquisition, the Tataka Acquisition and the
-------
CCC Acquisition shall not be included for purposes of the $35,000,000 limit
contained in this clause (g).
----------
"Permitted Disposition" means a sale, disposition or other conveyance of
---------------------
assets by the Borrower or any of its Subsidiaries in accordance with the terms
of clause (b) of Section 7.2.10.
---------- --------------
"Person" means any natural person, corporation, partnership, firm,
------
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
----
"Pledge Agreement" means, as the context may require, the Borrower Pledge
----------------
Agreement, the Xxxxxx Pledge Agreement and/or each Investor Pledge Agreement;
collectively, the "Pledge Agreements".
-----------------
"Preferred Dividends" means cash dividends on the Preferred Stock which are
-------------------
payable so long as no Default has occurred and is continuing in amounts not to
exceed $480,000 in any Fiscal Year.
"Preferred Stock" means the preferred equity issued by the Borrower on
---------------
December 27, 1996 with terms providing for no mandatory redemptions or
repurchases prior to December 21, 2001.
"Pro Forma Balance Sheet and Business Plan" means consolidated balance
-----------------------------------------
sheets, income statements and cash flow statements for the Borrower and its
Subsidiaries as of the Closing Date giving pro forma effect to all acquisitions
--- -----
made subsequent to December 27, 1996, the issuance of the Senior Notes, the
repayment of the Senior Subordinated Notes and the Xxxxxx Seller Subordinated
Note referred to in the Existing Credit Agreement, the repayment of the
$45,000,000 in term loans (and of any revolving loans) made under the Existing
Credit Agreement and the initial Borrowing hereunder, all for the period 1997-
2007 and to include 1996 performance for Xxxxxx/AmeriTel on a combined pro forma
--- -----
basis, with assumptions considered reasonable by the Administrative Agent, and
all certified by the chief financial officer of the Borrower.
-17-
"Quarterly Payment Date" means the last day of each March, June, September
----------------------
and December or, if any such day is not a Business Day, the next succeeding
Business Day.
"Release" means a "release", as such term is defined in CERCLA.
-------
"Required Lenders" means, (a) at any time that CIBC Inc.'s outstanding
----------------
Loans and Commitments are greater than or equal to $14,000,000, Lenders holding
66-2/3% of the then aggregate outstanding principal amount of the Notes and
Commitments, and (b) at any time thereafter, Lenders holding at least 51% of the
then aggregate outstanding principal amount of the Notes or, if no such
principal amount is then outstanding, Lenders having at least 51% of the
Commitments.
"Resource Conservation and Recovery Act" means the Resource Conservation
--------------------------------------
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
-- ----
time.
"Revolving Loan" is defined in Section 2.1.1.
-------------- -------------
"Revolving Loan Commitment" means, relative to any Lender, such Lender's
-------------------------
obligation to make Revolving Loans pursuant to Section 2.1.1.
-------------
"Revolving Loan Commitment Amount" means, on any date, $35,000,000, as such
--------------------------------
amount may be reduced from time to time pursuant to Section 2.2.
-----------
"Revolving Loan Commitment Termination Date" means the earliest of
------------------------------------------
(a) December 31, 2000;
(b) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to Section 2.2; and
-----------
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Revolving
---------- ---
Loan Commitments shall terminate automatically and without any further action.
"Revolving Note" means a promissory note of the Borrower payable to any
--------------
Lender, substantially in the form of Exhibit A hereto (as such promissory note
---------
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Rolling Period" means, with respect to any Fiscal Quarter, the period
--------------
comprising such Fiscal Quarter and the three immediately preceding Fiscal
Quarters.
"Security Agreement" means, as the context may require, the Borrower
------------------
Security Agreement, the AmeriTel Security Agreement, the Xxxxxx Security
Agreement, the Xxxxxx Carolina Security Agreement and/or the Xxxxxx STC Security
Agreement; collectively, the "Security Agreements".
-------------------
"Senior Debt" means, at any time, all outstanding Total Debt which is not
-----------
Subordinated Debt as of such time.
"Senior Debt to EBITDA Ratio" means, as of the last day of any Fiscal
---------------------------
Quarter, the ratio of (a) Senior Debt outstanding on such date to (b) EBITDA for
--
the Rolling Period ending on such date;
-18-
provided, however, that if any New Installations are consummated during the
-------- -------
Rolling Period ended on the last day of such Fiscal Quarter, EBITDA for such
Rolling Period shall be deemed to include an amount for EBITDA for such New
Installations equal to the amount set forth in the business plan (which shall be
based on assumptions deemed reasonable by the Administrative Agent in its
discretion) submitted by the Borrower to the Official Body permitting such New
Installations.
"Senior Noteholders" means any and all holders of Senior Notes.
------------------
"Senior Note Instruments" means the Senior Notes and all agreements and
-----------------------
instruments in connection therewith or pursuant to which the same shall have
been issued or are governed, as the same may be amended, supplemented, amended
and restated or otherwise modified in accordance with Section 7.2.11 or
--------------
refinanced in accordance with, and subject to, the provisions of Section 7.2.6.
-------------
"Senior Notes" means the Senior Notes issued by the Borrower in accordance
------------
with Section 5.1.15, as the same may be refinanced in accordance with, and
--------------
subject to, the provisions of Section 7.2.6.
-------------
"Solvency Certificate" means the Solvency Certificate, dated the Closing
--------------------
Date, to be duly executed and delivered by the chief financial officer of the
Borrower, covering the Borrower and each Subsidiary of the Borrower pursuant to
Section 5.1.11, substantially in the form of Exhibit G hereto.
-------------- ---------
"Stated Maturity Date" means December 31, 2000.
--------------------
"Subordinated Debt" means any Indebtedness subordinated to the Obligations
-----------------
on terms and conditions satisfactory to the Administrative Agent and the
Required Lenders, as evidenced by their written approval thereof.
"Subsidiary" means, with respect to any Person, any corporation of which
----------
more than 50% of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"Subsidiary Guaranty" means the Guaranty executed and delivered by
-------------------
AmeriTel, Xxxxxx and Xxxxxx Carolina pursuant to Section 5.1.7 of the Existing
Credit Agreement, by Xxxxxx STC pursuant to Section 5.1.6 or by any future
-------------
Subsidiary pursuant to clause (a) of Section 7.1.10, substantially in the form
---------- --------------
of Exhibit F to the Existing Credit Agreement, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Subsidiary Guaranty Supplement" means Supplement No. 1 to the Subsidiary
------------------------------
Guaranty to be executed and delivered by Xxxxxx STC pursuant to Section 5.1.6,
-------------
substantially in the form of Annex I to the Subsidiary Guaranty, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Subsidiary Pledge Agreement" means a Pledge Agreement executed and
---------------------------
delivered by a Subsidiary pursuant to Section 5.1.8 of the Existing Credit
Agreement or Section 7.1.9, substantially in the form of Exhibit H-2 to the
-------------
Existing Credit Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Subsidiary Security Agreement" means a Security Agreement executed and
-----------------------------
delivered by a Subsidiary pursuant to Section 5.1.9 of the Existing Credit
Agreement or Section 7.1.9, substantially in
-19-
the form of Exhibit G-2 to the Credit Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Xxxxxx" means Xxxxxx Telecommunications Corporation, an Alabama
------
corporation.
"Xxxxxx Carolina" means Xxxxxx Telecommunications of Carolina, Inc., an
---------------
Alabama corporation.
"Xxxxxx Carolina Security Agreement" means the Security Agreement executed
----------------------------------
and delivered by Xxxxxx Carolina pursuant to Section 5.1.9 of the Existing
Credit Agreement, substantially in the form of Exhibit G-2 thereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Xxxxxx Pledge Agreement" means the Pledge Agreement executed and delivered
-----------------------
by Xxxxxx pursuant to Section 5.1.8 of the Existing Credit Agreement,
substantially in the form of Exhibit H-3 thereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Xxxxxx Security Agreement" means the Security Agreement executed and
-------------------------
delivered by Xxxxxx pursuant to Section 5.1.9 of the Existing Credit Agreement,
substantially in the form of Exhibit G-2 thereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Xxxxxx STC" means Xxxxxx STC, Inc., a Delaware corporation.
----------
"Xxxxxx STC Acquisition" means the Acquisition by Xxxxxx STC of the assets
----------------------
of Security Telecom Corporation on May 9, 1997.
"Xxxxxx STC Security Agreement" means the Security Agreement to be executed
-----------------------------
and delivered by Xxxxxx STC pursuant to Section 5.1.8, substantially in the form
-------------
of Exhibit G-2 to the Existing Credit Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Tataka Acquisition" means the Acquisition by AmeriTel of the assets of
------------------
Tri-T, Inc. in May, 1997.
"Taxes" is defined in Section 4.6.
----- -----------
"Total Debt" means, at any time, the sum of (a) the outstanding principal
----------
amount of all Loans, (b) the aggregate outstanding principal amount of all
Subordinated Debt and (c) the outstanding amount of all Senior Notes and all
other items comprising Indebtedness of the Borrower and its Subsidiaries under
clauses (a), (b), (c) and (f) of the definition thereof contained herein,
----------- --- --- ---
together with all guarantees of such items, in each case as of such time.
"Total Debt to EBITDA Ratio" means, as at the last day of any Fiscal
--------------------------
Quarter, the ratio of (a) Total Debt outstanding on such date to (b) EBITDA for
--
the Rolling Period ended on such date; provided, however, that if any New
-------- -------
Installations are consummated during the Rolling Period ended on the last day of
such Fiscal Quarter, EBITDA for such Rolling Period shall be deemed to include
an amount for EBITDA for such New Installations equal to the amount set forth in
the business plan (which shall be based on assumptions deemed reasonable by the
Administrative Agent in its discretion) submitted by the Borrower to the
Official Body permitting such New Installations.
"type" means, relative to any Loan, the portion thereof, if any, being
----
maintained as a Base Rate Loan or a LIBO Rate Loan.
-20-
"United States" or "U.S." means the United States of America, its fifty
------------- ----
States and the District of Columbia.
"Welfare Plan" means a "welfare plan", as such term is defined in section
------------
3(1) of ERISA.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of the
-----------------------
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person, or by such Person and one or more
Wholly-Owned Subsidiaries of such Person, or (b) any partnership, association,
limited liability company, joint venture or similar business organization 100%
of the ownership interests having ordinary voting power of which shall at the
time be so owned or controlled.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
--------------------
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note, Borrowing Request, Continuation/Conversion Notice, Loan Document,
notice and other communication delivered from time to time in connection with
this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in
----------------
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
---------------------------------------
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
-------------
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those generally accepted accounting principles ("GAAP") applied
----
in the preparation of the financial statements referred to in Section 6.5.
-----------
ARTICLE II
COMMITMENTS, LOANS, BORROWING PROCEDURES
AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the conditions of
-----------
this Agreement (including Article V), each Lender severally agrees to make Loans
---------
pursuant to the Commitments described in this Section 2.1.
-----------
SECTION 2.1.1. Revolving Loan Commitment. From time to time on any
-------------------------
Business Day occurring on or after the Closing Date and prior to the Revolving
Loan Commitment Termination Date, each Lender agrees to make Loans (relative to
such Lender, its "Revolving Loans") to the Borrower equal to such Lender's
---------------
Percentage of the aggregate amount of the Borrowing of the Revolving Loans
requested by the Borrower to be made on such day. The Commitment of each Lender
described in this Section 2.1.1 is herein referred to as its "Revolving Loan
------------- --------------
Commitment". On the terms and subject to the conditions hereof, the Borrower may
----------
from time to time borrow, prepay and reborrow the Revolving Loans.
SECTION 2.1.2. Lenders Not Required to Make the Loans. No Lender shall
--------------------------------------
be required to make any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all the Revolving Loans,
-21-
(a) of all the Lenders with Revolving Loan Commitments would exceed
the Revolving Loan Commitment Amount; or
(b) of such Lender with a Revolving Loan Commitment would exceed such
Lender's Percentage of the Revolving Loan Commitment Amount.
SECTION 2.2. Reduction of Revolving Loan Commitment Amount. The Borrower
---------------------------------------------
may, from time to time on any Business Day occurring after the time of the
initial Borrowing hereunder, voluntarily reduce the amount of the Revolving Loan
Commitment Amount; provided, however, that all such reductions shall require at
-------- -------
least three Business Days' prior notice to the Administrative Agent and be
permanent, and any partial reduction of the Revolving Loan Commitment Amount
shall be in a minimum amount of $1,000,000 and in an integral multiple of
$500,000. In addition, the Revolving Loan Commitment Amount shall automatically
immediately be reduced at the time of and by the amount of any required or
mandatory prepayments required under Section 3.1.1.
-------------
SECTION 2.3. Borrowing Procedure. By delivering a Borrowing Request to
-------------------
the Administrative Agent on or before 11:00 a.m., New York time, on a Business
Day, the Borrower may from time to time irrevocably request, on not less than
one (in the case of Borrowings of Base Rate Loans) and not less than three (in
the case of Borrowings of LIBO Rate Loans) nor more than five (in all cases)
Business Days' notice, that a Borrowing be made in a minimum amount of
$3,000,000 for the initial drawdown on the Revolving Loan Commitment and, for
each drawdown thereafter, in a minimum amount of $500,000 and an integral
multiple of $100,000 (in the case of LIBO Rate Loans) or in a minimum amount of
$100,000 and an integral multiple of $100,000 (in the case of Base Rate Loans)
or in the unused amount of the Revolving Loan Commitment Amount. On the terms
and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day, specified
in such Borrowing Request (provided that the Borrowing made on the Closing Date
--------
shall be comprised solely of Base Rate Loans). On or before 12:00 noon, New York
time, on such Business Day each Lender shall deposit with the Administrative
Agent same day funds in an amount equal to such Lender's Percentage of the
requested Borrowing. Such deposit will be made to an account which the
Administrative Agent shall specify from time to time by notice to the Lenders.
To the extent funds are received from the Lenders, the Administrative Agent
shall make such funds available to the Borrower by wire transfer to the accounts
the Borrower shall have specified in its Borrowing Request. No Lender's
obligation to make any Loan shall be affected by any other Lender's failure to
make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
-------------------------------------
Continuation/Conversion Notice to the Administrative Agent on or before 11:00
a.m., New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one (in the case of continuations of or
conversions into Base Rate Loans) and not less than three (in the case of
continuations of or conversions into LIBO Rate Loans) nor more than five (in all
cases) Business Days' notice that all, or any portion in an aggregate minimum
amount of $500,000 and an integral multiple of $100,000 (in the case of LIBO
Rate Loans) or in an aggregate minimum amount of $100,000 and an integral
multiple of $100,000 (in the case of Base Rate Loans), of any Loans, in the case
of Base Rate Loans, be converted into LIBO Rate Loans or, in the case of LIBO
Rate Loans, be converted into a Base Rate Loan or continued as a LIBO Rate Loan
(in the absence of delivery of a Continuation/Conversion Notice with respect to
any LIBO Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan shall, on such
last day, automatically convert to a Base Rate Loan); provided, however, that
-------- -------
(x) each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders, and (y) the Borrower shall not have the right
to request that any portion of the outstanding principal amount of any Loans may
be continued as, or be converted into, LIBO Rate Loans when any Default has
occurred and is continuing.
-22-
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
-------
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
--------
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
-------
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
----------- --- --- ---
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank Eurodollar market.
SECTION 2.6. Notes. Each Lender's Loans under its Revolving Loan
-----
Commitment shall be evidenced by a Note payable to the order of such Lender in a
maximum principal amount equal to such Lender's Percentage of the original
Revolving Loan Commitment Amount. The Borrower hereby irrevocably authorizes
each Lender to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Notes (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the outstanding
----- ----
principal of, and the interest rate and Interest Period applicable to the Loans
evidenced thereby. Such notations shall be conclusive and binding on the
Borrower absent manifest error; provided, however, that the failure of any
-------- -------
Lender to make any such notations shall not limit or otherwise affect any
Obligations of the Borrower or any other Obligor.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
---------------------------------------
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
--------------------------
full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
Loans; provided, however, that
-------- -------
(i) any such prepayment of the Revolving Loans shall be made
pro rata among the Revolving Loans of the same type and, if
--- ----
applicable, having the same Interest Period of all Lenders that have
made such Revolving Loans;
(ii) no such prepayment of any LIBO Rate Loan may be made on any
day other than the last day of the Interest Period for such Loan;
(iii) all such voluntary prepayments shall require at least
three but no more than five Business Days' prior written notice to the
Administrative Agent; and
(iv) all such voluntary partial prepayments shall be, in the
case of LIBO Rate Loans, in an aggregate minimum amount of $500,000
and an integral multiple of $100,000 and, in the case of Base Rate
Loans, in an aggregate minimum amount of $100,000 and an integral
multiple of $100,000;
(b) shall, on each date when any reduction in the Revolving Loan
Commitment Amount shall become effective, make a mandatory prepayment of
all Revolving Loans in an aggregate
-23-
amount equal to the excess, if any, of the aggregate, outstanding principal
amount of all Revolving Loans over the Revolving Loan Commitment Amount as
so reduced;
(c) shall, immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 8.2 or Section 8.3, repay all Loans,
----------- -----------
unless, pursuant to Section 8.3, only a portion of all Loans is so
-----------
accelerated (in which case the portion so accelerated shall be so prepaid);
(d) shall, no later than 180 days following receipt of any Net
Disposition Proceeds, make a mandatory prepayment of the Revolving Loans in
an amount equal to 100% of such Net Disposition Proceeds, to be applied as
set forth in Section 3.1.2; provided, however, that, at the option of the
------------- -------- -------
Borrower and so long as no Default shall have occurred and be continuing,
the Borrower may reinvest all or any portion of such Net Disposition
Proceeds in related assets so long as (A) within 120 days following receipt
of such Net Disposition Proceeds, a definitive purchase agreement for the
purchase of such assets with such proceeds shall have been entered into (as
certified by the Borrower in writing to the Administrative Agent) and (B)
within 180 days after the receipt of such Net Disposition Proceeds, such
purchase shall have been consummated (as certified by the Borrower in
writing to the Administrative Agent); provided, further, however, that any
-------- ------- -------
Net Disposition Proceeds not so reinvested shall be immediately applied to
the prepayment of the Revolving Loans as set forth above;
(e) concurrently with the creation of any Net Equity Proceeds, the
Borrower shall make a mandatory prepayment of the Revolving Loans in an
amount equal to 100% of such Net Equity Proceeds, to be applied as set
forth in Section 3.1.2, except to the extent, if any, that such Net Equity
------------- ------
Proceeds (i) arise from an initial public offering of the Borrower's common
stock and, after giving effect to such offering, the Borrower's Total Debt
to EBITDA Ratio is less than or equal to 4.50 to 1.0 or (ii) are applied
substantially concurrently with such creation to the consummation of
Permitted Acquisitions (provided that, if such Net Equity Proceeds arise
from an initial public offering of the Borrower's common stock, after
giving effect to such Permitted Acquisitions, the Borrower's Total Debt to
EBITDA Ratio is less than or equal to 4.50 to 1.0, with the determination
of EBITDA resulting from any Permitted Acquisition to be applied to the
calculation of Total Debt to EBITDA on terms satisfactory to the
Administrative Agent) and
(f) concurrently with the creation of any Net Debt Proceeds (other
than the issuance of the Senior Notes), the Borrower shall make a mandatory
prepayment of the Revolving Loans in an amount equal to 100% of such Net
Debt Proceeds, to be applied as set forth in Section 3.1.2, except to the
------------- ------
extent, if any, that such Net Debt Proceeds shall comprise refinancing debt
issued in accordance with, and subject to the provisions of, Section 7.2.6
-------------
and such proceeds are immediately applied to the repayment of Senior Notes
(or notes issued in substitution therefor pursuant to ordinary course
assignments not constituting a refinancing); and
(g) concurrently with the receipt by the Borrower or any of its
Subsidiaries of any escrow monies under the Xxxxxx Acquisition Agreement or
the AmeriTel Acquisition Agreement (each as defined in the Existing Credit
Agreement) or any other acquisition agreement (other than monies in respect
of claims of third parties), the Borrower shall make a mandatory prepayment
of the Revolving Loans with such monies.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No voluntary
-----------
prepayment of principal of any Revolving Loans shall cause a reduction in the
Revolving Loan Commitment Amount.
-24-
SECTION 3.1.2. Application. Each prepayment or repayment of the
-----------
principal of the Loans shall be applied, to the extent of such prepayment or
repayment, first, to the principal amount thereof being maintained as Base Rate
-----
Loans, and second, to the principal amount thereof being maintained as LIBO Rate
------
Loans (with such application to earliest maturing LIBO Rate Loans first).
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
-------------------
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
-----------
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing
-----
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base Rate Loan,
equal to the sum of the Alternate Base Rate from time to time in effect
plus the Applicable Base Rate Margin; or
(b) on that portion maintained from time to time as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the Applicable
LIBO Rate Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
-------------------
of any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation of the
Borrower shall have become due and payable, the Borrower shall pay, to the
extent permitted by law, interest (after as well as before judgment) on such
amounts at a rate per annum equal to the Alternate Base Rate plus the Applicable
----
Base Rate Margin plus a margin of 2.0%.
----
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
-------------
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan with respect to the amount so paid or
prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed three
months, at the end of each three month period occurring during such
Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate
Loans on a day when interest would not otherwise have been payable pursuant
to clause (c), on the date of such conversion; and
----------
(f) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such
----------- -----------
acceleration.
-25-
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in this
----
Section 3.3. All such fees shall be non-refundable.
-----------
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
--------------
Administrative Agent for the account of each Lender having an outstanding
Commitment, for the period (including any portion thereof when any of its
Commitments are suspended by reason of the Borrower's inability to satisfy any
condition of Article V) commencing on the Effective Date and continuing through
---------
the Revolving Loan Commitment Termination Date, a commitment fee at the rate of
1/2 of 1% per annum on such Lender's Percentage of the sum of the average daily
unused portion of the Revolving Loan Commitment Amount. Such commitment fees
shall be payable by the Borrower in arrears on each Quarterly Payment Date,
commencing with the first such day following the Effective Date, and on the
Revolving Loan Commitment Termination Date.
SECTION 3.3.2. Administrative Agent's Fee. The Borrower agrees to pay to
--------------------------
the Administrative Agent, for its own account, the non-refundable fees in the
amounts and on the dates set forth in the Fee Letter.
SECTION 3.3.3. No Other Fees. Except as set forth in this Agreement, the
-------------
other Loan Documents and in the Fee Letter, as of the Closing Date there are no
other fees owing to the Administrative Agent or the Lenders.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
--------------------------
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Loan as, or to convert any Loan into, a
LIBO Rate Loan, the obligations of all Lenders to make, continue, maintain or
convert any such Loans shall, upon such determination, forthwith be suspended
until such Lender shall notify the Administrative Agent that the circumstances
causing such suspension no longer exist, and all LIBO Rate Loans shall
automatically convert into Base Rate Loans at the end of the then current
Interest Periods with respect thereto or sooner, if required by such law or
assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
--------------------
have determined that
(a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to CIBC in its relevant market; or
(b) by reason of circumstances affecting CIBC's relevant market,
adequate means do not exist for ascertaining the interest rate applicable
hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
----------- -----------
continue any Loans as, or to convert any Loans
-26-
into, LIBO Rate Loans shall forthwith be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees to
-----------------------------------
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the
Borrower directly to such Lender within five days of its receipt of such notice,
and such notice shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
--------------
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the principal amount
of any LIBO Rate Loans on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to Section 3.1 or
-----------
otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance with
the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO Rate
Loans in accordance with the Continuation/ Conversion Notice therefor,
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
-----------------------
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments or the Loans made by such Lender is reduced to a
level below that which such Lender or such controlling Person could have
achieved but for the occurrence of any such circumstance, then, in any such case
upon notice from time to time by such Lender to the Borrower, the Borrower shall
immediately pay directly to such Lender additional amounts sufficient to
compensate such Lender or such controlling Person for such reduction in rate of
return. A statement of such Lender as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on the Borrower. In determining such
amount, such Lender may use any reasonable method of averaging and attribution
that it shall deem applicable.
-27-
SECTION 4.6. Taxes. All payments by the Borrower and its Subsidiaries of
-----
principal of, and interest on, the Loans and all other amounts payable hereunder
and under the Loan Documents (including fees) shall be made free and clear of
and without deduction for any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority, but excluding franchise
taxes and taxes imposed on or measured by any Lender's net income or receipts
(such non-excluded items being called "Taxes"). In the event that any
-----
withholding or deduction from any payment to be made by the Borrower or any of
its Subsidiaries hereunder or under any Loan Document is required in respect of
any Taxes pursuant to any applicable law, rule or regulation, then the Borrower
or such Subsidiary will
(a) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent evidencing
such payment to such authority; and
(c) pay to the Administrative Agent for the account of the Lenders on
demand such additional amount or amounts as is necessary (including after
giving effect to withholdings or deductions applicable to sums paid
pursuant to this Section 4.6) to ensure that the net amount actually
-----------
received by each Lender will equal the full amount such Lender would have
received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If the Borrower or any of its Subsidiaries fails to pay any Taxes when due
to the appropriate taxing authority or fails to remit to the Administrative
Agent, for the account of the respective Lenders, the required receipts or other
required documentary evidence, the Borrower shall indemnify the Lenders on
demand for any incremental Taxes, interest or penalties that may become payable
by any Lender as a result of any such failure. For purposes of this Section
-------
4.6, a distribution hereunder by the Administrative Agent or any Lender to or
for the account of any Lender shall be deemed a payment by the Borrower.
Upon the request of the Borrower or the Administrative Agent, each Lender
that is organized under the laws of a jurisdiction other than the United States
shall, prior to the due date of any payments under the Notes, execute and
deliver to the Borrower and the Administrative Agent, on or about the first
scheduled payment date in each Fiscal Year, one or more (as the Borrower or the
Administrative Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 or such other forms or documents (or successor
forms or documents), appropriately completed, as may be applicable to establish
the extent, if any, to which a payment to such Lender is exempt from withholding
or deduction of Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
---------------------------
provided, all payments by the Borrower pursuant to this Agreement, the Notes or
any other Loan Document shall be made by the Borrower to the Administrative
Agent for the pro rata account of the Lenders entitled to receive such payment.
--- ----
All such payments required to be made to the Administrative Agent shall be made,
without setoff, deduction or counterclaim, not later than 11:00 a.m., New York
time, on the date
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due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the Borrower.
Funds received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day. The Administrative
Agent shall promptly remit in same day funds to each Lender its share, if any,
of such payments received by the Administrative Agent for the account of such
Lender. All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of 365 or, if appropriate, 366 days (or, in the case of interest on a
LIBO Rate Loan or a Base Rate Loan calculated at the Federal Funds Rate, 360
days). Whenever any payment to be made shall otherwise be due on a day which is
not a Business Day, such payment shall (except as otherwise required by
clause (c) of the definition of the term "Interest Period") be made on the next
----------
succeeding Business Day and such extension of time shall be included in
computing interest and fees, if any, in connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any payment
-------------------
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan (other than pursuant to the terms of Sections
--------
4.3, 4.4, 4.5 and 4.6) in excess of its pro rata share of payments then or
--- --- --- --- --- ----
therewith obtained by all Lenders entitled thereto, such Lender shall purchase
from the other Lenders such participations in Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; provided, however, that if all or any
-------- -------
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and each Lender which
has sold a participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery together with
an amount equal to such selling Lender's ratable share (according to the
proportion of
(a) the amount of such selling Lender's required repayment to the
purchasing Lender
to
--
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
-----------
as if such Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a setoff to which this
Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
------
Default described in clauses (a) through (d) of Section 8.1.9 or, with the
----------- --- -------------
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations) the Borrower hereby grants to each Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of the
Borrower then or thereafter maintained with such Lender; provided, however, that
-------- -------
any such appropriation and application shall be subject to the provisions of
Section 4.8. Each Lender agrees promptly to notify the Borrower and the
-----------
Administrative Agent after any such setoff and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
-------- -------
validity of such setoff and application. The rights of each Lender under this
Section are in addition to
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other rights and remedies (including other rights of setoff under applicable
law or otherwise) which such Lender may have.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Initial Borrowing. The obligations of the Lenders to fund the
-----------------
initial Borrowing shall be subject to the prior or concurrent fulfillment of
each of the conditions precedent set forth in this Section 5.1 to
-----------
the satisfaction of the Administrative Agent.
SECTION 5.1.1. Resolutions, etc. The Documentation Agent shall have
----------------
received from the Borrower and Xxxxxx STC a certificate, dated the Closing Date,
in form and substance satisfactory to the Documentation Agent, of its Secretary
or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement, the Notes and each other Loan Document to be executed by it; and
(b) the incumbency and signatures of those of its officers authorized
to act with respect to this Agreement, the Notes and each other Loan
Document executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or Assistant Secretary of the
Borrower or Xxxxxx STC canceling or amending such prior certificate.
SECTION 5.1.2. Delivery of Notes. The Documentation Agent shall have
-----------------
received, for the account of each Lender, its Notes duly executed and delivered
by the Borrower.
SECTION 5.1.3. Delivery of Certain Documents. The Documentation Agent
-----------------------------
shall have received certified copies of the Organic Documents of each of the
Borrower and Xxxxxx STC, together with all amendments thereto, and a certificate
of good standing for each of the Borrower and Xxxxxx STC, in each case certified
as of a recent date by the appropriate governmental officer in its jurisdiction
of incorporation.
SECTION 5.1.4. Refinancing or Payment of Outstanding Indebtedness, etc.
-------------------------------------------------------
All Indebtedness owing by the Borrower, AmeriTel, Xxxxxx or Xxxxxx Carolina and
all other Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid")
-------------
of the Disclosure Schedule, together with all interest, all prepayment premiums
and other amounts due and payable with respect thereto, shall have been paid in
full (including, to the extent necessary, from proceeds of the initial
Borrowing); and the Documentation Agent shall have received executed copies of
proper Uniform Commercial Code Form UCC-3 termination statements necessary to
release all Liens and other rights of any Person (a) in any collateral described
in any security agreement previously granted by any Person, and (b) securing any
of the Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of
-------------
the Disclosure Schedule, together with such termination documents and pay-off
letters in form and substance satisfactory to the Administrative Agent from such
other lenders and such other Uniform Commercial Code Form UCC-3 termination
statements or similar documents as the Documentation Agent may reasonably
request from the Borrower. Without limiting the foregoing, the Administrative
Agent shall have received (a) satisfactory evidence of the payment in full of
the Senior Subordinated Notes referred to in the Existing Credit Agreement and
of the Xxxxxx Seller Subordinated Note referred to in the Existing Credit
Agreement and (b) payment in full of all principal of the term loans and
revolving loans outstanding
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under the Existing Credit Agreement as well as all accrued interest thereon for
ratable distribution to the Existing Lenders.
SECTION 5.1.5. Pro Forma Balance Sheet and Business Plan. The Lenders
-----------------------------------------
shall have received and be satisfied in all respects with the Pro Forma Balance
Sheet and Business Plan.
SECTION 5.1.6. Subsidiary Guaranty Supplement. The Documentation Agent
------------------------------
shall have received executed counterparts of the Subsidiary Guaranty Supplement,
duly executed by Xxxxxx STC.
SECTION 5.1.7. Borrower Pledge Agreement Supplement. The Documentation
------------------------------------
Agent shall have received executed counterparts of the Borrower Pledge Agreement
Supplement, duly executed by the Borrower, together with certificates evidencing
all of the issued and outstanding shares of capital stock of Xxxxxx STC, which
certificates shall be accompanied by undated stock powers duly executed in
blank.
SECTION 5.1.8. Xxxxxx STC Security Agreement. The Documentation Agent
-----------------------------
shall have received executed counterparts of the Xxxxxx STC Security Agreement,
duly executed by Xxxxxx STC, together with
(a) duly executed appropriate Uniform Commercial Code financing
statements (Form UCC-1), naming Xxxxxx STC as the debtor and the
Administrative Agent as the secured party or other similar instruments or
documents, such documents to be suitable for filing under the Uniform
Commercial Code of all jurisdictions as may be necessary or, in the opinion
of the Administrative Agent, desirable to perfect the security interest of
the Administrative Agent pursuant to such Security Agreement;
(b) executed copies of proper Uniform Commercial Code Form UCC-3
termination statements, if any, necessary to release all Liens and other
rights of any Person
(i) in any collateral described in such Security Agreement
previously granted by any Person, and
(ii) securing any of the Indebtedness identified in Item
----
7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule,
--------
together with such other Uniform Commercial Code Form UCC-3 termination
statements as the Documentation Agent may reasonably request from Xxxxxx
STC; and
(c) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report certified
by a party acceptable to the Administrative Agent, dated a date reasonably
near to the date of the initial Borrowing, listing all effective financing
statements which name Xxxxxx STC (under its present name and any previous
names) as the debtor and which are filed in the jurisdictions in which
filings were made pursuant to clause (a) above, together with copies of
----------
such financing statements (none of which (other than those described in
clause (a), if such Form UCC-11 or search report, as the case may be, is
----------
current enough to list such financing statements described in clause (a))
----------
shall cover any collateral described in such Security Agreement).
SECTION 5.1.9. Affirmation and Consent. The Documentation Agent shall
-----------------------
have received executed counterparts of the Affirmation and Consent, duly
executed by each of Xxxxxx, AmeriTel and Xxxxxx Carolina.
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SECTION 5.1.10. Pro Forma Compliance Certificate. The Documentation
--------------------------------
Agent shall have received, with counterparts for each Lender, an initial
Compliance Certificate, dated the Closing Date and computed on a pro forma basis
--- -----
as of June 30, 1997 as if the initial Borrowing had been made, duly executed
(and with all schedules thereto duly completed) and delivered by a financial or
accounting Authorized Officer of the Borrower.
SECTION 5.1.11. Solvency Certificate. The Documentation Agent shall have
--------------------
received duly executed and delivered counterparts of the Solvency Certificate,
dated the Closing Date.
SECTION 5.1.12. Closing Date Certificate. The Documentation Agent shall
------------------------
have received the Closing Date Certificate, dated the Closing Date and duly
executed by an Authorized Officer of the Borrower, in which the Borrower shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct representations and warranties made as of such date under this
Agreement, and, at the time such certificate is delivered, such statements shall
in fact be true and correct. All documents and agreements required to be
appended to the Closing Date Certificate (including any and all consents
necessary to be obtained in connection with the transactions contemplated
hereby) shall be in form and substance satisfactory to the Administrative Agent.
SECTION 5.1.13. Opinions of Counsel. The Documentation Agent shall have
-------------------
received legal opinions, dated the Closing Date and addressed to the
Administrative Agent and all Lenders, from
(a) Xxxxxxxx & Xxxxxxxx, counsel to the Obligors, satisfactory in
form and substance to the Administrative Agent
(b) Xxxxxxx, Xxxxx & Xxxxxx, New York counsel to the Obligors,
satisfactory in form and substance to the Administrative Agent; and
(c) Various local counsel to the Obligors, satisfactory in form and
substance to the Administrative Agent.
SECTION 5.1.14. Insurance. The Documentation Agent shall have received
---------
copies of the policies of insurance maintained and in effect on the Effective
Date as required pursuant to Section 7.1.6 and each Security Agreement,
-------------
certified by an Authorized Officer of the Borrower, together with an insurance
broker's certificate confirming that the Borrower and each Subsidiary maintains
customary coverages as well as coverages which satisfy the requirements of the
Loan Documents.
SECTION 5.1.15. Senior Notes. The Borrower shall have received not less
------------
than $115,000,000 in gross proceeds from the issuance of the Senior Notes to the
Senior Noteholders, which Senior Notes and all other Senior Note Instruments
shall be in form and substance satisfactory to the Administrative Agent.
SECTION 5.1.16. Closing Fees, Expenses, etc. The Administrative Agent
---------------------------
and the Lenders shall have received all fees due and payable on or before the
Closing Date and all costs and expenses (including, without limitation, legal
fees and expenses) due and payable pursuant to Sections 3.3 and 10.3, if then
------------ ----
invoiced.
SECTION 5.1.17. Operating Contracts. The Documentation Agent shall have
-------------------
received a satisfactory sampling of Operating Contracts executed subsequent to
December 27, 1996, and such Contracts shall be in form and substance
satisfactory to the Administrative Agent.
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SECTION 5.2. All Borrowings. The obligation of each Lender to fund any
--------------
Loan on the occasion of any Borrowing (including the initial Borrowing) shall be
subject to the satisfaction of each of the conditions precedent set forth in
this Section 5.2.
-----------
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
-------------------------------------------
and after giving effect to any Borrowing (but, if any Default of the nature
referred to in Section 8.1.5 shall have occurred with respect to any other
-------------
Indebtedness, without giving effect to the application, directly or indirectly,
of the proceeds thereof) the following statements shall be true and correct:
(a) the representations and warranties set forth in Article VI
----------
(excluding, however, those contained in Section 6.7) and in each other Loan
-----------
Document shall be true and correct in all material respects with the same
effect as if then made (unless stated to relate solely to an earlier date,
in which case such representations and warranties shall be true and correct
as of such earlier date);
(b) except as disclosed by the Borrower to the Administrative Agent
and the Lenders pursuant to Section 6.7,
-----------
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding shall be pending or, to the
knowledge of the Borrower, threatened against the Borrower or any of
its Subsidiaries which might materially adversely affect the
Borrower's consolidated business, operations, assets, revenues,
properties, financial condition or prospects or which purports to
affect the legality, validity or enforceability of this Agreement, the
Notes or any other Loan Document; and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental investigation or
proceeding disclosed pursuant to Section 6.7 which might materially
-----------
adversely affect the consolidated businesses, operations, assets,
revenues, properties, financial condition or prospects of the Borrower
and its Subsidiaries; and
(c) no Default shall have then occurred and be continuing, and
neither the Borrower, any other Obligor, nor any of its Subsidiaries are in
violation in any material respect of any law or governmental regulation or
court order or decree.
SECTION 5.2.2. Borrowing Request. The Administrative Agent shall have
-----------------
received a Borrowing Request for such Borrowing. Each of the delivery of a
Borrowing Request and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing (both immediately before and after giving effect to
such Borrowing and the application of the proceeds thereof) the statements made
in Section 5.2.1 are true and correct.
-------------
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
-----------------------
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be satisfactory in form and substance
to the Administrative Agent and its counsel; the Administrative Agent and its
counsel shall have received all information, approvals, opinions, documents or
instruments as the Administrative Agent or its counsel may reasonably request.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and each Agent to enter into this Agreement
and to make Loans hereunder, the Borrower represents and warrants to each Lender
and each Agent as set forth in this Article VI.
----------
SECTION 6.1. Organization, etc. The Borrower and each of its
-----------------
Subsidiaries is a corporation validly organized and existing and in good
standing under the laws of the State of its incorporation, is duly qualified to
do business and is in good standing as a foreign corporation in each
jurisdiction where the nature of its business requires such qualification, and
has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its Obligations under this
Agreement, the Notes and each other Loan Document to which it is a party and,
subject to the provisions of Section 6.3, to own and hold under lease its
-----------
property and to conduct its business substantially as currently conducted by it.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
-----------------------------------------
delivery and performance by the Borrower and each other Obligor of this
Agreement, the Notes and each other Loan Document executed or to be executed by
it and the Borrower's and each other Obligor's granting of the Liens provided
for in the Loan Documents are within the Borrower's and each other Obligor's
corporate powers, have been duly authorized by all necessary corporate action,
and do not
(a) contravene the Borrower's or any other Obligor's Organic
Documents;
(b) contravene or result in a default under any contractual
restriction, law or governmental regulation or court decree or order
binding on or affecting the Borrower or any of its Subsidiaries; or
(c) result in, or require the creation or imposition of, any Lien on
any of the Borrower's or any of its Subsidiaries' properties other than
pursuant to the Loan Documents.
SECTION 6.3. Government Approval, Regulation, etc. Except as disclosed
------------------------------------
in Item 6.3 ("Approvals") of the Disclosure Schedule, no authorization or
--------
approval or other action by, and no notice to or filing with, any Official Body
or other Person (including shareholders) is required for the due execution,
delivery or performance by the Borrower or any other Obligor of this Agreement,
the Notes or any other Loan Document to which it is a party, or for the
Borrower's or any other Obligor's granting of the Liens provided for in the Loan
Documents or issuance of the Senior Notes, all of which have been duly obtained
or made and are in full force and effect. Neither the Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement has been duly executed and
-------------
delivered and constitutes, and the Notes and each other Loan Document executed
by the Borrower and/or each other Obligor will, on the due execution and
delivery thereof, constitute, the legal, valid and binding obligations of the
Borrower and/or the other Obligor party or parties thereto, as the case may be,
enforceable in accordance with their respective terms.
SECTION 6.5. Financial Information. The audited balance sheets of Xxxxxx
---------------------
and AmeriTel as at December 31, 1995, and the quarterly unaudited balance sheets
of Xxxxxx and AmeriTel as at March 31,
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1996, June 30, 1996 and September 30, 1996, and the respective related
statements of earnings and cash flow of Xxxxxx and AmeriTel as at such dates, as
well as the audited consolidated balance sheet, income statement and cash flow
statement for the Borrower and its Subsidiaries as of December 31, 1996 and the
unaudited quarterly consolidated and consolidating balance sheet and income
statement and consolidated statement of cash flow for the Borrower and its
Subsidiaries as of March 31, 1997, copies of which have been furnished to the
Administrative Agent and each Lender, have been prepared in accordance with GAAP
consistently applied, and present fairly the consolidated financial condition of
the corporations covered thereby as at the dates thereof and the results of
their operations for the periods then ended. The Pro Forma Balance Sheet and
Business Plan has been prepared based upon reasonable assumptions and presents
fairly the consolidated financial condition of the Borrower on a pro forma basis
--- -----
after giving effect to this Agreement and the Loan Documents.
SECTION 6.6. No Material Adverse Change. (a) For the period ending on
--------------------------
the Closing Date, since the date of the financial statements described in
Section 6.5, there has been no material adverse change in the financial
-----------
condition, operations, assets, business, revenues, properties or prospects of
the Borrower and its Subsidiaries.
(b) For the period from and after the Closing Date, since the Closing
Date, there has been no material adverse change in the financial condition,
operations, assets, business, revenues, properties or prospects of the Borrower
or any of its Subsidiaries.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
------------------------------------
or, to the knowledge of the Borrower, threatened litigation, action, proceeding,
or labor controversy affecting the Borrower or any of its Subsidiaries, or any
of their respective properties, businesses, assets or revenues, which purports
to affect the legality, validity or enforceability of this Agreement, the Notes
or any other Loan Document or which, except as disclosed in Item 6.7
--------
("Litigation") of the Disclosure Schedule, may have a Material Adverse Effect.
Neither the Borrower nor any of its Subsidiaries is a party to any contract or
agreement, or subject to any charge, corporate restriction, judgment,
injunction, decree, rule, regulation or order of any court or other Official
Body, that could have a Material Adverse Effect. None of the Borrower nor any
Subsidiary is a party to, and there is not pending or threatened, any labor
dispute, strikes, lock-out, grievance, work stoppage or walkouts relating to any
labor contract to which the Borrower or any Subsidiary is a party, in each case,
which could have a Material Adverse Effect.
SECTION 6.8. Compliance With Laws; Authorizations. Except as disclosed
------------------------------------
in Item 6.3 of the Disclosure Schedule, the Borrower and its Subsidiaries have
--------
complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government, or
any instrumentality or agency thereof, having jurisdiction over the conduct of
its businesses or the ownership of its properties, including, without
limitation, those relating to public health and safety and protection of the
environment. Neither the Borrower nor any of its Subsidiaries has received any
notice to the effect that its operations are not in material compliance with any
of the requirements of applicable federal, state and local environmental, health
and safety statutes and regulations or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could have a Material Adverse Effect. The
Borrower and its Subsidiaries have obtained all authorizations necessary and
appropriate to own and operate their businesses and all such authorizations are
in full force and effect, except where the failure to so obtain such
authorizations or to so keep such Authorizations in full force and effect would
not have a Material Adverse Effect.
SECTION 6.9. Subsidiaries. The Borrower has no Subsidiaries, except
------------
AmeriTel, Xxxxxx, Xxxxxx Carolina, Xxxxxx STC and any Subsidiaries which are
permitted to have been created or acquired after the Closing Date by the
Required Lenders under express written consents in accordance with Section
-------
7.1.10.
------
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SECTION 6.10. Ownership of Properties. The Borrower and each of its
-----------------------
Subsidiaries has good and marketable title to all of its properties and assets,
real and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens, charges or claims (including infringement claims with respect to
patents, trademarks, copyrights and the like) except as permitted pursuant to
Section 7.2.3. All of the outstanding shares of capital stock of the Borrower
-------------
and each of its Subsidiaries have been duly authorized and validly issued, have
been fully paid and are non-assessable. The Borrower and its Subsidiaries own or
are licensed or otherwise have the right to use all of the trademarks,
copyrights, patents, licenses and intellectual property and other rights that
are necessary for the operation of their businesses, without conflict with the
rights of other Persons and free and clear of burdensome restrictions.
SECTION 6.11. Taxes. The Borrower and each of its Subsidiaries has filed
-----
all tax returns and reports required by law to have been filed by it and has
paid all taxes and governmental charges thereby shown to be owing, except any
such taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books. The Borrower and each of its
Subsidiaries is current with respect to payment of all federal and state
withholding taxes, social security taxes and other payroll taxes, except where
such taxes are being contested in good faith by appropriate proceedings with
adequate reserves therefor.
SECTION 6.12. Pension and Welfare Plans. During the twelve-consecutive-
-------------------------
month period prior to the date of the execution and delivery of this Agreement
and prior to the date of any Borrowing hereunder, no steps have been taken to
terminate any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which might result in the incurrence by the Borrower
or any member of the Controlled Group of any material liability, fine or
penalty. Except as disclosed in Item 6.12 ("Employee Benefit Plans") of the
---------
Disclosure Schedule, neither the Borrower nor any member of the Controlled Group
has any contingent liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage described in Part 6
of Title I of ERISA.
SECTION 6.13. Environmental Warranties. Except as set forth in Item 6.13
------------------------ ---------
("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying groundwater)
owned or leased by the Borrower or any of its Subsidiaries have been, and
continue to be, owned or leased by the Borrower and its Subsidiaries in
material compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or threatened
(i) claims, complaints, notices or requests for information
received by the Borrower or any of its Subsidiaries with respect to
any alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to the Borrower or any of
its Subsidiaries regarding potential liability under any Environmental
Law;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by the Borrower or any
of its Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a material adverse effect on the financial
condition, operations, assets, business, properties or prospects of the
Borrower and its Subsidiaries;
-36-
(d) the Borrower and its Subsidiaries have been issued and are in
material compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary or
desirable for their businesses;
(e) no property now or previously owned or leased by the Borrower or
any of its Subsidiaries is listed or proposed for listing (with respect to
owned property only) on the National Priorities List pursuant to CERCLA, on
the CERCLIS or on any similar state list of sites requiring investigation
or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by the Borrower or any of its Subsidiaries that,
singly or in the aggregate, have, or may reasonably be expected to have, a
material adverse effect on the financial condition, operations, assets,
business, properties or prospects of the Borrower and its Subsidiaries;
(g) neither Borrower nor any Subsidiary of the Borrower has directly
transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to material
claims against the Borrower or such Subsidiary thereof for any remedial
work, damage to natural resources or personal injury, including claims
under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the Borrower
or any Subsidiary of the Borrower that, singly or in the aggregate, have,
or may reasonably be expected to have, a material adverse effect on the
financial condition, operations, assets, business, properties or prospects
of the Borrower and its Subsidiaries; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by the Borrower which, with the passage of time,
or the giving of notice or both, would give rise to liability under any
Environmental Law.
SECTION 6.14. Regulations G, U and X. The Borrower is not engaged in the
----------------------
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loans will be used to purchase or carry any margin
stock or for a purpose which violates, or would be inconsistent with, F.R.S.
Board Regulation G, U or X. Terms for which meanings are provided in F.R.S.
Board Regulation G, U or X or any regulations substituted therefor, as from time
to time in effect, are used in this Section with such meanings.
SECTION 6.15. Accuracy of Information. All factual information
-----------------------
heretofore or contemporaneously furnished by or on behalf of the Borrower in
writing to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby (including
the Offering Memorandum, a true and complete copy of which was furnished to the
Administrative Agent and each Lender in connection with its execution and
delivery hereof) is, and all other such factual information hereafter furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender will
be, true and accurate in every material respect on the date as of which such
information is dated or certified and as of the date of execution and delivery
of this Agreement by the Administrative Agent and such Lender, and such
information is not, or shall not be, as the case may be, incomplete by omitting
to state any material fact necessary to make such information not misleading.
All projections have been prepared in good faith on the basis of reasonable
assumptions and represent the Borrower's best estimate of its future
performance.
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SECTION 6.16. Operating Contracts. Except as set forth in Item 6.16
------------------- ---------
("Operating Contracts") of the Disclosure Schedule, Xxxxxx, AmeriTel, Xxxxxx
Carolina and Xxxxxx STC are in compliance in all material respects with each of
their Operating Contracts and all related agreements.
SECTION 6.17. Solvency. Both before and immediately after giving effect
--------
to any Borrowing requested hereunder:
(a) the fair value of the assets of Borrower and its Subsidiaries on
a consolidated basis will exceed the total amount of liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities) of
Borrower and its Subsidiaries on a consolidated basis, on a going-concern
basis;
(b) the present fair salable value (as defined below) of the assets
of Borrower and its Subsidiaries on a consolidated basis will exceed the
probable total liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities) of Borrower and its Subsidiaries on a
consolidated basis as they become absolute and matured;
(c) the Borrower and its Subsidiaries on a consolidated basis will be
able to pay their debts, including contingent liabilities, as they mature
and become due;
(d) the Borrower and its Subsidiaries on a consolidated basis are
not, and will not be, engaged in a business for which their consolidated
capital is, or would be, unreasonably small for their consolidated
business; and
(e) the Borrower and its Subsidiaries on a consolidated basis have
not incurred (by way of assumption or otherwise) any obligations or
liabilities (contingent or otherwise) under this Agreement or any other
Loan Document, nor have they made any conveyance pursuant to or in
connection therewith, with actual intent to hinder, delay or defraud either
present or future creditors of the Borrower or any of its Subsidiaries.
For purposes of this Section, the "fair salable value" of the Borrower's and its
Subsidiaries' assets means the amount which may be realized within a reasonable
time, either through collection or sale of such assets at the regular market
value, based upon the amount which could be obtained for such assets within such
period by a capable and diligent seller from an interested buyer who is willing
(but is under no compulsion) to purchase under ordinary selling conditions.
SECTION 6.18. Senior Note Instruments. All of the representations and
-----------------------
warranties contained in the Senior Note Instruments are true and correct as of
the Closing Date in all material respects.
SECTION 6.19. No Contractual or Other Restrictions. None of AmeriTel,
------------------------------------
Xxxxxx, Xxxxxx STC or any other Subsidiary is a party to any agreement or
arrangement or subject to any law, rule, regulation or decision that limits its
ability to pay dividends to, or otherwise make Investments in or other payments
to, the Borrower or that limits its ability to grant Liens solely in favor of
the Administrative Agent.
SECTION 6.20. True Copies of Documents. The Borrower has provided to the
------------------------
Administrative Agent true and complete copies of the Offering Memorandum, the
Senior Note Instruments and all documents related to any of the foregoing, in
each case as in effect on the Closing Date.
SECTION 6.21. Absence of any Undisclosed Liabilities. There are no
--------------------------------------
material liabilities of the Borrower or any of its Subsidiaries of any kind
whatsoever, whether accrued, contingent, absolute, determined, determinable or
otherwise, and there is no existing condition, situation or set of
-38-
circumstances which could reasonably be expected to result in such a liability,
other than those liabilities provided for or disclosed in the most recently
delivered financial statements.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the
---------------------
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrower will
perform the obligations set forth in this Section 7.1.
-----------
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
--------------------------------------------
Borrower will furnish, or will cause to be furnished, to the Administrative
Agent (for distribution to each Lender) copies of the following financial
statements, reports, notices and information:
(a) as soon as available and in any event within 45 days after the
end of each Fiscal Quarter of each Fiscal Year of the Borrower,
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter (including comparisons to
the then current budget and to the comparable period for the prior year)
and consolidated and consolidating statements of earnings and a
consolidated statement of cash flow of the Borrower and its Subsidiaries
for such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter
(including comparisons to the then current budget and to the comparable
period for the prior year), certified by the chief financial Authorized
Officer of the Borrower;
(b) as soon as available and in any event within 90 days after the
end of each Fiscal Year of the Borrower, a copy of the annual audit report
for such Fiscal Year for the Borrower and its Subsidiaries, including
therein consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as of the end of such Fiscal Year and consolidated and
consolidating statements of earnings and a consolidated statement of cash
flow of the Borrower and its Subsidiaries for such Fiscal Year, in each
case certified (without any Impermissible Qualification) in a manner
acceptable to the Administrative Agent and the Required Lenders by Deloitte
& Touche, L.L.P. or other independent certified public accountants
reasonably acceptable to the Administrative Agent and the Required Lenders,
together with a certificate from such accountants containing a computation
of, and showing compliance with, each of the financial ratios and
restrictions contained in Section 7.2.4 and to the effect that, in making
-------------
the examination necessary for the signing of such annual report by such
accountants, they have not become aware of any Default or Event of Default
that has occurred and is continuing, or, if they have become aware of such
Default or Event of Default, the steps, if any, being taken to cure it;
(c) as soon as available and in any event within 45 days after the
end of each calendar month of each Fiscal Year of the Borrower,
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such calendar month (including comparisons to
the then current budget and to the comparable period for the prior year)
and consolidated and consolidating statements of earnings and a
consolidated statement of cash flow of the Borrower and its Subsidiaries
for such calendar month and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such calendar month
(including comparisons to the then current budget and to the comparable
period for the prior year), certified by the chief financial Authorized
Officer of the Borrower;
-39-
(d) as soon as available and in any event within 45 days after the
end of each Fiscal Quarter, (i) a Compliance Certificate, executed by the
chief financial Authorized Officer of the Borrower, showing (in reasonable
detail and with appropriate calculations and computations in all respects
satisfactory to the Administrative Agent) compliance with the financial
covenants set forth in Sections 7.2.4 and (ii) a written statement setting
--------------
forth management's discussion and analysis of the financial condition and
results of operations of the Borrower and its Subsidiaries for such Fiscal
Quarter, which statement shall also be delivered in connection with the
monthly financial statements required pursuant to clause (c) of this
----------
Section 7.1.1;
-------------
(e) as soon as possible and in any event within three days after the
Borrower has knowledge of any Default, a statement of the chief financial
Authorized Officer of the Borrower setting forth details of such Default
and the action which the Borrower has taken and proposes to take with
respect thereto;
(f) as soon as possible and in any event within three days after the
Borrower has knowledge of (i) the occurrence of any adverse development
with respect to any litigation, action, proceeding, or labor controversy
described in Section 6.7 or (ii) the commencement of any labor controversy,
-----------
litigation, action, proceeding of the type described in Section 6.7, notice
-----------
thereof and copies of all documentation relating thereto;
(g) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to any of its securityholders, and all
reports and registration statements which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(h) immediately upon becoming aware of the institution of any steps
by the Borrower or any other Person to terminate any Pension Plan, or the
failure to make a required contribution to any Pension Plan if such failure
is sufficient to give rise to a Lien under section 302(f) of ERISA, or the
taking of any action with respect to a Pension Plan which could result in
the requirement that the Borrower furnish a bond or other security to the
PBGC or such Pension Plan, or the occurrence of any event with respect to
any Pension Plan which could result in the incurrence by the Borrower or
any of its Subsidiaries of any material liability, fine or penalty, or any
material increase in the contingent liability of the Borrower or any of its
Subsidiaries with respect to any post-retirement Welfare Plan benefit,
notice thereof and copies of all documentation relating thereto;
(i) notice to the Administrative Agent promptly following the
issuance or adoption after the date of this Agreement of any federal, state
or local statute, regulation or ordinance or judicial or administrative
order limiting or controlling the operations of the Borrower or any of its
Subsidiaries which might have a Material Adverse Effect, together with a
copy of such statute, regulation, ordinance or judicial or administrative
order;
(j) promptly, and in any event within 60 days after the end of each
Fiscal Year, quarterly cash flow, income statement and capital expenditure
budgets for the current Fiscal Year (including a description of the
assumptions used in the preparation thereof) and a revised business plan
through the Stated Maturity Date in scope and form consistent with the
business plan furnished to the Administrative Agent prior to the Closing
Date, all in reasonable detail satisfactory to the Administrative Agent and
certified by an Authorized Officer of the Borrower, and, within 30 days
after the end of each Fiscal Quarter, an explanation of any material
deviation from the most recently submitted budgets;
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(k) promptly upon the occurrence thereof, notice of (i) any lapse or
other termination of any authorization issued to the Borrower or any
Subsidiary by any Official Body, (ii) any refusal by any Official Body to
renew or extend any such authorization (unless the Borrower or its
Subsidiary is still in the process of negotiating the terms of an extension
of such authorization, and has a good faith expectation that such
authorization will be renewed or extended), or (iii) any dispute between
the Borrower or a Subsidiary and any Official Body which may have a
Material Adverse Effect;
(l) promptly after the receipt thereof, copies of all notices and
demands received pursuant to any Senior Note Instruments;
(m) by June 30, 2000, an updated and detailed Business Plan showing
how the Borrower plans to meet all obligations as they are then scheduled
to become due, all with reasonable assumptions and all satisfactory to the
Required Lenders; and
(n) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
SECTION 7.1.2. Compliance with Laws, etc. The Borrower will, and will
-------------------------
cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include
(without limitation):
(a) the maintenance and preservation of its corporate existence and
qualification as a foreign corporation; and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
SECTION 7.1.3. Maintenance of Operating Contracts. The Borrower will,
----------------------------------
and will cause each of its Subsidiaries to, use its reasonable best efforts to
maintain, preserve, protect, keep, renew or extend each Operating Contract. The
Borrower will not, and will not permit any of its Subsidiaries to, without the
prior written consent of the Required Lenders, directly or indirectly, make or
cause to be made any material changes, modifications or alterations in the terms
or conditions of any of its Operating Contracts, or any other material contracts
or leases, if the result of such changes, modifications or alterations would
have a material adverse effect on the ability of the Borrower or any of its
Subsidiaries to perform its obligations under the Loan Documents.
SECTION 7.1.4. Conduct of Business; Separate Existence; Maintenance of
-------------------------------------------------------
Authorizations. The Borrower will, and will cause each of its Subsidiaries to
--------------
(a) carry on and conduct its business in the same manner and in substantially
the same fields of enterprise as it is presently conducted; (b) do all things
necessary to remain duly organized, validly existing and in good standing in its
jurisdiction of organization and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted; and (c) do all
things reasonably necessary to renew, extend and continue in effect all
authorizations which may at any time and from time to time be necessary to
operate and own the business and assets of the Borrower and its Subsidiaries in
compliance with all applicable laws and regulations, except where the failure to
so comply would not have a Material Adverse Effect.
SECTION 7.1.5. Maintenance of Properties. The Borrower will, and will
-------------------------
cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties in good repair, working order and
-41-
condition, and make necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be properly conducted
at all times unless the Borrower reasonably determines in good faith that the
continued maintenance of any of its properties is no longer economical.
SECTION 7.1.6. Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies insurance with respect to its properties and business against such
casualties and contingencies and of such types and in such amounts as is
customary in the case of similar businesses and will, upon request of the
Administrative Agent, furnish to each Lender at reasonable intervals a
certificate of an Authorized Officer of the Borrower setting forth the nature
and extent of all insurance maintained by the Borrower and its Subsidiaries in
accordance with this Section.
SECTION 7.1.7. Books and Records. The Borrower will, and will cause each
-----------------
of its Subsidiaries to, keep books and records which accurately reflect all of
its business affairs and transactions and permit the Administrative Agent and
each Lender or any of their respective representatives, at reasonable times and
intervals, to visit all of its offices, to discuss its financial matters with
its officers and independent public accountant (and the Borrower hereby
authorizes such independent public accountant to discuss the Borrower's
financial matters with each Lender or its representatives whether or not any
representative of the Borrower is present) and to examine (and, at the expense
of the Borrower, photocopy extracts from) any of its books or other corporate
records. The Borrower shall pay any fees of such independent public accountant
incurred in connection with the Administrative Agent's or any Lender's exercise
of its rights pursuant to this Section.
SECTION 7.1.8. Environmental Covenant. The Borrower will, and will cause
----------------------
each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance with
all applicable Environmental Laws;
(b) immediately notify the Administrative Agent and provide copies
upon receipt of all written claims, complaints, notices or inquiries
relating to the condition of its facilities and properties or compliance
with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 7.1.8.
-------------
SECTION 7.1.9. Additional Collateral. The Borrower shall, and shall
---------------------
cause each of its Subsidiaries to, cause the Administrative Agent and the
Lenders to have at all times a first priority perfected security interest
(unless otherwise agreed to by the Required Lenders) in all of the assets of the
Borrower and its Subsidiaries, all of the issued and outstanding shares of
capital stock of the Borrower's Subsidiaries and any personal or material real
property acquired by the Borrower or any of its Subsidiaries (including all
assets acquired in a Permitted Acquisition) after the Effective Date. Without
limiting the generality of the foregoing, the Borrower shall, and shall cause
each of its Subsidiaries to, deliver to the Administrative Agent all assets or
deliver or cause to be delivered to the Administrative Agent all shares of
capital stock of the Borrower's Subsidiaries, for which possession by the
Administrative Agent is required for perfection of such security interest, and
shall, and shall cause each of its Subsidiaries to, execute, deliver and/or file
(as applicable), or cause to be executed, delivered and/or filed (as
applicable), each Pledge Agreement, Security Agreement, Uniform Commercial Code
(Form UCC-1) financing statements, Uniform Commercial Code (Form UCC-3)
termination statements,
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and other documentation necessary to grant and perfect such security interest,
in each case in form and substance satisfactory to the Administrative Agent. In
furtherance of the foregoing, the Borrower shall (a) promptly cause all
Preferred Stock that is converted into common capital stock of the Borrower to
be pledged to the Administrative Agent pursuant to an Investor Pledge Agreement,
(b) within 30 days after the Closing Date, cause all of the issued and
outstanding capital stock of the Borrower not pledged on the Closing Date to be
pledged pursuant to an Investor Pledge Agreement and (c) within 60 days after
the Closing Date, cause to be delivered to the Administrative Agent satisfactory
duly executed consents to the Liens created by the Security Agreements on
Operating Agreements from the other parties thereto (and/or confirmations that
no such consents are required) in respect of Operating Contracts with gross
revenues constituting not less than 50% of the gross revenues of all Operating
Contracts (and, in any event, satisfactory duly executed consents with respect
to the Operating Contract between Xxxxxx and the State of Alabama.
SECTION 7.1.10. Future Subsidiaries. Promptly after creation or
-------------------
acquisition (directly or indirectly) by the Borrower of any Subsidiary (to the
extent permitted by the Required Lenders),
(a) the Borrower shall cause such Subsidiary to execute and deliver
to the Administrative Agent, with counterparts for each Lender, the
Subsidiary Guaranty and a security agreement, satisfactory in form and
substance to the Administrative Agent, providing a security interest in all
of its assets to the fullest extent permitted by applicable law (it being
understood and agreed that no such Subsidiary, if incorporated under the
laws of any jurisdiction outside of the United States, shall be required to
execute the Subsidiary Guaranty if doing so would, in the opinion of the
Administrative Agent, involve material legal impediments, material foreign
exchange control ramifications or material tax costs); and
(b) the Borrower shall deliver, or cause to be delivered, to the
Administrative Agent under a pledge agreement satisfactory in form and
substance to the Administrative Agent certificates (if any) representing
all of the outstanding shares of capital stock of such Subsidiary, along
with undated stock powers for such certificates, executed in blank, or, if
any securities subject thereto are uncertificated securities, confirmation
and evidence satisfactory to the Administrative Agent that appropriate book
entries have been made in the relevant books or records of a financial
intermediary or the issuer of such securities, as the case may be, under
applicable law resulting in the perfection of the security interest granted
in favor of the Administrative Agent pursuant to the terms of a pledge
agreement satisfactory in form and substance satisfactory to the
Administrative Agent,
together, in each case, with such opinions, in form and substance and from
counsel satisfactory to the Administrative Agent, as the Administrative Agent
may require. In addition, any Subsidiary that meets the above criteria but
cannot execute a guaranty or security agreement, because of applicable law, or
whose guaranty or security agreement is limited by applicable law, shall
promptly, upon any change of such law which results in such execution being no
longer prohibited or such guaranty or security agreement being no longer so
limited, enter into a guaranty or security agreement or shall promptly amend its
previously executed guaranty and security agreement in a manner satisfactory to
the Administrative Agent.
SECTION 7.1.11. Use of Proceeds. The Borrower shall apply the proceeds
---------------
of Revolving Loans made from and after the Closing Date for working capital
purposes (including to pay the fees and expenses associated with the
transactions contemplated by this Agreement), capital expenditure purposes and
the funding of Permitted Acquisitions, but not, in any event, for making
payments of principal of the Senior Notes. Without limiting the foregoing, no
proceeds of any Loan will be used to acquire any equity security of a class
which is registered pursuant to Section 12 of the Securities Exchange Act of
1934 or any "margin stock", as defined in F.R.S. Board Regulation U.
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SECTION 7.2. Negative Covenants. The Borrower agrees with the
------------------
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrower will
perform the obligations set forth in this Section 7.2.
-----------
SECTION 7.2.1. Business Activities. The Borrower will not, and will not
-------------------
permit any of its Subsidiaries to, engage in any business activity, except those
described in the first recital and such activities as may be incidental or
-------------
related thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not permit
------------
any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Loans and other Obligations;
(b) until the date of the initial Borrowing, Indebtedness identified
in Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule;
-------------
(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure
-------------
Schedule;
(d) unsecured Indebtedness in an aggregate principal amount not to
exceed $115,000,000 (minus any and all payments made thereon) pursuant to
the Senior Notes;
(e) Indebtedness in an aggregate principal amount not to exceed
$2,500,000 at any time outstanding which is incurred by the Borrower or any
of its Subsidiaries to a vendor of any assets to finance its acquisition of
such assets and/or for Capitalized Lease Liabilities;
(f) unsecured Indebtedness incurred in the ordinary course of
business (including open accounts extended by suppliers on normal trade
terms in connection with purchases of goods and services, but excluding any
Indebtedness of the type described in clauses (a), (b), (c) and (f) of the
----------- --- --- ---
definition of Indebtedness); and
(g) other Indebtedness of the Borrower and its Subsidiaries in an
aggregate amount not to exceed $5,000,000 at any one time outstanding, so
long as the covenants contained therein are no more restrictive than the
covenants contained in this Agreement;
provided, however, that no Indebtedness otherwise permitted by clause (f), (g)
-------- ------- ---------- ---
or (h) shall be permitted if, after giving effect to the incurrence thereof, any
---
Default shall have occurred and be continuing.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
-----
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its properties, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens securing payment of the Obligations, granted pursuant to
any Loan Document;
(b) until the date of the initial Borrowing, Liens securing payment
of the Indebtedness of the type permitted and described in clause (b) of
----------
Section 7.2.2;
-------------
(c) Liens granted prior to the Effective Date to secure payment of
the Indebtedness of the type permitted and described in clause (c) of
----------
Section 7.2.2, which Liens are described in Item 7.2.2(c) of the Disclosure
------------- -------------
Schedule;
-44-
(d) Liens granted to secure payment of the Indebtedness of the type
permitted and described in clause (e) of Section 7.2.2 and covering only
---------- -------------
those assets acquired with the proceeds of such Indebtedness;
(e) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside
on its books;
(f) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not overdue
or being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(g) Liens incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds;
(h) judgment Liens in existence less than 15 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance companies; and
(i) other Liens, securing Indebtedness (but not any Subordinated
Debt) in an aggregate amount not exceeding $5,000,000.
SECTION 7.2.4. Financial Condition. The Borrower will not permit:
-------------------
(a) the Total Debt to EBITDA Ratio at any time during any period set
forth below to be greater than the ratio set forth opposite such period:
Total Debt
Period to EBITDA Ratio
------ ---------------
Closing Date to (and 6.0:1
including) 06/29/98
06/30/98 to (and 5.5:1
including) 12/30/98
12/31/98 to (and 5.0:1
including) 12 /30/99
12/31/99 and thereafter 4.5:1;
(b) the Senior Debt to EBITDA Ratio at any time during any period set
forth below to be greater than the ratio set forth opposite such period:
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Senior Debt
Period to EBITDA Ratio
------ ---------------
Closing Date to (and 3.5:1
including) 12/30/98
12/31/98 and thereafter 3.0:1;
(c) the EBITDA to Cash Interest Expense Ratio as at the last day of
any Fiscal Quarter ending on a date set forth below to be less than the
ratio set forth opposite such date:
EBTIDA to Cash
Period Interest Expense Ratio
------ ----------------------
Closing Date to (and 1.5:1
including) 12/31/97
01/01/98 and thereafter 1.75:1;
(d) the EBITDA to Fixed Charges Ratio as at the last day of any
Fiscal Quarter for the Rolling Period ending on such date to be less than
1.25:1.
SECTION 7.2.5. Investments. The Borrower will not, and will not permit
-----------
any of its Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Effective Date identified in Item
----
7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
--------
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
-------------
(d) without duplication, Investments permitted as Capital
Expenditures;
(e) without duplication, Investments made to consummate Permitted
Acquisitions; and
(f) other Investments in an aggregate amount at any one time not to
exceed $500,000; provided, however, that
-------- -------
(g) any Investment which when made complies with the requirements of
the definition of the term "Cash Equivalent Investment" may continue to be
--------------------------
held notwithstanding that such Investment if made thereafter would not
comply with such requirements; and
(h) no Investment otherwise permitted by clause (e) or (f) shall be
---------- ---
permitted to be made if, immediately before or after giving effect thereto,
any Default shall have occurred and be continuing.
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SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
------------------------
Effective Date:
(a) the Borrower will not declare, pay or make any dividends or other
distributions (in cash, property or obligations) on its capital stock or
other equity interests (now or hereafter outstanding) of the Borrower
(other than dividends payable in its own capital stock) or apply, or permit
any of its Subsidiaries to apply, any of its funds, property or assets to
the payment, purchase, redemption, sinking fund or other retirement or
acquisition of, or agree or permit any of its Subsidiaries to pay for,
purchase, redeem, retire or acquire, any capital stock or other equity
interests (including warrants and options) of the Borrower or any of its
Subsidiaries or any Subordinated Debt, any Senior Notes or tax sharing
payments, except that, so long as no Default has occurred and is
------
continuing, (i) the Borrower may pay the Preferred Dividends on the
Preferred Stock commencing in the 1997 Fiscal Year in a maximum aggregate
amount not to exceed $480,000 in any Fiscal Year and (ii) the Borrower may
pay interest on the Senior Notes in accordance with the terms thereof as in
effect on the Closing Date;
(b) the Borrower will not permit any Subsidiary to declare or pay any
dividends or make any other distributions on its capital stock or other
equity interests (other than, in the case of a corporation, dividends
payable in its own capital stock) or redeem, repurchase or otherwise
acquire or retire any of its capital stock or other equity interests at any
time outstanding, or pay any Indebtedness, except any Subsidiary may
declare and pay distributions or dividends to the Borrower or to a Wholly-
Owned Subsidiary of the Borrower; and
(c) the Borrower will not, and will not permit any Subsidiary to,
make any deposit for any of the foregoing purposes.
SECTION 7.2.7. Limitation on Management and Advisory Fees. The Borrower
------------------------------------------
will not, and will not permit any of its Subsidiaries to, enter into any
arrangement for the payment of, or pay, management, advisory or similar fees
(whether with EUFCC, Onyx or otherwise) in excess of $500,000 in any Fiscal Year
other than, in connection with a Permitted Acquisition, a fee to EUFCC equal to
2.0% of that portion of the acquisition price of any Permitted Acquisition that
does not exceed $15,000,000 and 1.5% of that portion of the acquisition price of
any Permitted Acquisition that does exceed $15,000,000 ("Acquisition Fees"), so
----------------
long as the aggregate of all such Acquisition Fees in any event does not exceed
$40,000 in the aggregate in any Fiscal Year; provided, however, that the fees
-------- -------
permitted pursuant to this Section may only be paid so long as no Default has
occurred and is continuing.
SECTION 7.2.8. Take or Pay Contracts. The Borrower will not, and will
---------------------
not permit any of its Subsidiaries to, enter into or be a party to any
arrangement for the purchase of materials, supplies, other property or services
if such arrangement by its express terms requires that payment be made by the
Borrower or such Subsidiary regardless of whether such materials, supplies,
other property or services are delivered or furnished to it.
SECTION 7.2.9. Consolidation, Merger, etc. The Borrower will not, and
--------------------------
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other Person, or purchase or otherwise acquire
all or any part of the assets of any Person (or of any division thereof) except
(a) any such Subsidiary may liquidate or dissolve voluntarily into,
and may merge with and into, the Borrower or any Wholly-Owned Subsidiary,
and the assets or stock of any theretofore existing Subsidiary may be
purchased or otherwise acquired by the Borrower or any other Wholly-Owned
Subsidiary (with the Borrower or such Wholly-Owned Subsidiary to be the
surviving corporation in any such transaction); and
-47-
(b) Permitted Acquisitions; so long as (i) no Default has occurred
and is continuing or would result therefrom, (ii) such other Person is
organized or incorporated under the laws of a state of the United States
and (iii) the Borrower or the survivor of the merger or consolidation has
executed such agreements and instruments as requested by the Administrative
Agent to evidence the continued compliance with the obligations of the
Borrower and its Subsidiaries under this Agreement and the Loan Documents
to which it is a party.
SECTION 7.2.10. Asset Dispositions, etc. The Borrower will not, and will
-----------------------
not permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey all or any part of its assets (including accounts receivable
and capital stock of Subsidiaries), or issue stock of or grant options, warrants
or other equity rights in the Borrower or its Subsidiaries to any Person, unless
(a) such sale, transfer, lease, contribution or conveyance (i) is in
the ordinary course of its business and is, in the reasonable and good
faith opinion of the Borrower, of obsolete or worn out property or property
no longer used in its business, (ii) is to the Borrower or (iii) is
permitted by Section 7.2.9; or
-------------
(b) such sale, transfer, lease, contribution or conveyance is for
fair market value to any Person other than an Affiliate, and the following
conditions are met:
(i) the aggregate fair market value, as well as the
aggregate book value, of all such asset sales do not exceed $100,000
in any Fiscal Year or $250,000 from and after the Closing Date;
(ii) immediately prior to and immediately after giving
effect to such disposition, no Default or Event of Default shall have
occurred or would result therefrom;
(iii) the Borrower has applied any Net Disposition Proceeds
pursuant to Section 3.1.1(d); and
----------------
(iv) all the consideration for such sale, transfer, lease,
contribution or conveyance is cash.
SECTION 7.2.11. Modification of Certain Agreements. The Borrower will
----------------------------------
not, without the prior written consent of the Required Lenders and the
Administrative Agent, consent to or enter into any amendment, supplement or
other modification of any of the terms or provisions contained in, or applicable
to, (a) any Operating Contract, if the effect of such amendment, supplement or
modification might individually or in the aggregate have a material adverse
effect on the ability of the Borrower or any of its Subsidiaries to perform its
obligations under the Loan Documents, (b) the Senior Note Instruments, (c) the
documents relating to the Preferred Stock, or (d) documents relating to any
warrant or option granted by the Borrower if the effect of such amendment,
supplement or other modification is to impose or increase any monetary
obligation on the Borrower.
SECTION 7.2.12. Transactions with Affiliates. The Borrower will not, and
----------------------------
will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist, any arrangement or contract with any of its other Affiliates
unless such arrangement or contract is fair and equitable to the Borrower or
such Subsidiary comparable to the terms that would be achieved in an arm's
length transaction with a Person that is not an Affiliate and is an arrangement
or contract of the kind which would be entered into by a prudent Person in the
position of the Borrower or such Subsidiary with a Person which is not one of
its Affiliates.
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SECTION 7.2.13. Negative Pledges, Restrictive Agreements, etc. The
---------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement (excluding this Agreement, any other Loan Document and the Senior
Note Instruments, as in effect on the date hereof) prohibiting
(a) the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired, or the ability
of the Borrower or any other Obligor to amend or otherwise modify this
Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments, directly or
indirectly, to the Borrower by way of dividends, advances, repayments of
loans or advances, reimbursements of management and other intercompany
charges, expenses and accruals or other returns on investments, or any
other agreement or arrangement which restricts the ability of any such
Subsidiary to make any payment, directly or indirectly, to the Borrower.
SECTION 7.2.14. Changes to Fiscal Year. The Borrower will not, and will
----------------------
not permit any of its Subsidiaries to, change its Fiscal Year.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
----------------------------
or occurrences described in this Section 8.1 shall constitute an "Event of
----------- --------
Default".
-------
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default in
--------------------------
the payment or prepayment when due of any principal of any Loan, or the Borrower
shall default (and such default shall continue for a period of three days) in
the payment when due of any interest on any Loan, or the Borrower shall default
(and such default shall continue unremedied for a period of five days) in the
payment when due of any commitment fee or of any other Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of the
------------------
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of the Borrower or any other Obligor to the Administrative Agent
or any Lender for the purposes of or in connection with this Agreement or any
such other Loan Document (including any certificates delivered pursuant to
Article V) is or shall be incorrect when made in any material and adverse
---------
respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. The
----------------------------------------------------
Borrower shall default in the due performance and observance of any of its
obligations under Section 7.1.1(e), Section 7.1.9, Section 7.1.10, Section
---------------- ------------- -------------- -------
7.1.11 or Section 7.2.
------ -----------
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
--------------------------------------------------
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after such
Obligor has knowledge thereof or notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in
-----------------------------
the payment when due, whether by acceleration or otherwise, of any other
Indebtedness (including any Subordinated Debt but other than Indebtedness
described in Section 8.1.1) of the Borrower or any of its Subsidiaries or any
-------------
other Obligor having a principal amount, individually or in the aggregate, in
excess of $2,500,000, or a
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default shall occur in the performance or observance of any obligation or
condition with respect to such other Indebtedness if the effect of such default
is to accelerate the maturity of any such Indebtedness or such default shall
continue unremedied for any applicable period of time sufficient to permit the
holder or holders of such Indebtedness, or any trustee or agent for such
holders, to cause such Indebtedness to become due and payable prior to its
expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of money
---------
in excess of $2,500,000 shall be rendered against the Borrower or any of its
Subsidiaries or any other Obligor and either
(a) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order; or
(b) there shall be any period of ten consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
-------------
with respect to any Pension Plan
(a) the institution of any steps by the Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a
result of such termination, the Borrower or any such member could be
required to make a contribution to such Pension Plan, or could reasonably
expect to incur a liability or obligation to such Pension Plan, in excess
of $500,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Control of the Borrower. Any Change in Control shall
-----------------------
occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any of its
---------------------------
Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Borrower or any
of its Subsidiaries or any other Obligor or any property of any thereof, or
make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for the Borrower or any of its Subsidiaries
or any other Obligor or for a substantial part of the property of any
thereof, and such trustee, receiver, sequestrator or other custodian shall
not be discharged within 60 days, provided that the Borrower, each
Subsidiary and each other Obligor hereby expressly authorizes the
Administrative Agent and each Lender to appear in any court conducting any
relevant proceeding during such 60-day period to preserve, protect and
defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of or commence any
bankruptcy, reorganization, debt arrangement or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Borrower or any
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of its Subsidiaries or any other Obligor, and, if any such case or
proceeding is not commenced by the Borrower or such Subsidiary or such
other Obligor, such case or proceeding shall be consented to or acquiesced
in by the Borrower or such Subsidiary or such other Obligor or shall result
in the entry of an order for relief or shall remain for 60 days
undismissed, provided that the Borrower, each Subsidiary and each other
Obligor hereby expressly authorizes the Administrative Agent and each
Lender to appear in any court conducting any such case or proceeding during
such 60-day period to preserve, protect and defend their rights under the
Loan Documents; or
(e) take any corporate action authorizing, or in furtherance of, any
of the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document, or any
---------------------------
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; the Borrower,
any other Obligor or any other party shall, directly or indirectly, contest in
any manner such effectiveness, validity, binding nature or enforceability; or
any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by such Loan Document.
SECTION 8.1.11. Impairment of Operating Contracts, etc. Any Operating
--------------------------------------
Contract or Operating Contracts, in the aggregate, the cancellation or
termination of which might have a material adverse effect on the ability of the
Borrower or any of its Subsidiaries to perform its obligations under any of the
Loan Documents, expires without renewal (unless the Borrower or such Subsidiary
is, following such expiration date, still in the process of negotiating the
terms of an extension of such Operating Contract, and has a good faith
expectation that such Operating Contract will be extended or renewed) or is
suspended (and as a result of such expiration or suspension, the operation of
the applicable equipment is terminated or otherwise disrupted) or revoked, and
is not replaced, or the Borrower or a Subsidiary shall become subject to any
injunction or other order with respect to such Operating Contract which might
have a material adverse effect on the ability of the Borrower or any of its
Subsidiaries to perform its obligations under any of the Loan Documents.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
--------------------
clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not
----------- --- -------------
theretofore terminated) shall automatically terminate immediately and the
outstanding principal amount of all outstanding Loans and all other Obligations
shall automatically be and become immediately due and payable, without notice or
demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
--------------------------------
(other than any Event of Default described in clauses (a) through (d) of Section
----------- --- -------
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
-----
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be due and
payable and/or the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate.
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ARTICLE IX
THE AGENTS AND AGENT-RELATED PERSONS
SECTION 9.1. Actions and Indemnity. Each Lender hereby appoints CIBC as
---------------------
its Administrative Agent and Documentation Agent under and for purposes of this
Agreement, the Notes and each other Loan Document. Each Lender authorizes the
Administrative Agent and the Documentation Agent to act on behalf of such Lender
under this Agreement, the Notes, each other Loan Document and, in the absence of
other written instructions from the Required Lenders received from time to time
by the Administrative Agent or the Documentation Agent, to exercise such powers
hereunder and thereunder as are specifically delegated to or required of the
Administrative Agent or the Documentation Agent by the terms hereof and thereof,
together with such powers as may be reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or any other Loan Document, no Agent or Agent-Related Person shall
have any duties or responsibilities except those expressly set forth herein, nor
shall any Agent or Agent-Related Person have or be deemed to have 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 shall otherwise exist against any Agent
or Agent-Related Person. Each Lender hereby indemnifies (which indemnity shall
survive any termination of this Agreement) the Agents and the Agent-Related
Persons, pro rata according to such Lender's Percentage (or, after termination
--- ----
of this Agreement, according to the Percentages in effect immediately prior
thereto), from and against any and all liabilities, obligations, losses,
damages, claims, costs or expenses of any kind or nature whatsoever which may at
any time be imposed on, incurred by, or asserted against, any Agent or Agent-
Related Persons, in any way relating to or arising out of this Agreement, the
Notes and any other Loan Document, including reasonable attorneys' fees and
expenses, and as to which such Agent or Agent-Related Person is not reimbursed
by the Borrower; provided, however, that no Lender shall be liable for the
-------- -------
payment of any portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from such Agent's or
Agent-Related Person's gross negligence or wilful misconduct. No Agent or
Agent-Related Person shall be required to take any action hereunder, under the
Notes or under any other Loan Document, or to prosecute or defend any suit in
respect of this Agreement, the Notes or any other Loan Document, unless it is
indemnified hereunder to its satisfaction. If any indemnity in favor of an
Agent or Agent-Related Person shall be or become, in such Person's
determination, inadequate, such Person may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
---------------------
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York time, on the day prior to a Borrowing that such Lender will
not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date the
Administrative Agent made such amount available to the Borrower to the date such
amount is repaid to the Administrative Agent, at the interest rate applicable at
the time to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Neither the Administrative Agent, the
-----------
Documentation Agent, nor any Agent-Related Person shall be liable to any Lender
for any action taken or omitted to be taken by it under this Agreement or any
other Loan Document, or in connection herewith or therewith, except for its own
wilful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or
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therein, nor for the effectiveness, enforceability, validity or due execution of
this Agreement or any other Loan Document, nor for the creation, perfection or
priority of any Liens purported to be created by any of the Loan Documents, or
the validity, genuineness, enforceability, existence, value or sufficiency of
any collateral security, nor to make any inquiry respecting the performance by
the Borrower of its obligations hereunder or under any other Loan Document. Any
such inquiry which may be made by any Agent or Agent-Related Person shall not
obligate it to make any further inquiry or to take any action. Each Agent and
Agent-Related Person shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which such Agent or Agent-Related Person believes to be genuine and to have been
presented by a proper Person.
SECTION 9.4. Successor. The Administrative Agent may resign as such at
---------
any time upon at least 30 days' prior notice to the Borrower and all Lenders.
If the Administrative Agent at any time shall resign, the Required Lenders may
appoint another Lender as a successor Administrative Agent which shall thereupon
become the Administrative Agent hereunder, subject (so long as no Default or
Event of Default shall have occurred and be continuing) to the consent of the
Borrower (not to be unreasonably withheld or delayed). If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of:
(a) this Article IX shall inure to its benefit as to any actions
----------
taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to its
------------ ------------
benefit.
SECTION 9.5. Loans by CIBC. CIBC shall have the same rights and powers
-------------
with respect to (x) the Loans made by it or any of its Affiliates, and (y) the
Notes held by it or any of its Affiliates, as any other Lender and may exercise
the same as if it and/or any of its Affiliates were not the Administrative
Agent, the Documentation Agent, an Arranger, a subordinated lender or an equity
investor, as the case may be. CIBC and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower or
any Subsidiary or Affiliate of the Borrower as if CIBC were not the
Administrative Agent, the Documentation Agent, an Arranger, a subordinated
lender or an equity investor.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
----------------
independently of the Agents, each Agent-Related Person and each other Lender,
and based on such Lender's review of the financial information of the Borrower,
this Agreement, the other Loan Documents (the terms and provisions of which
being satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitments. Each Lender also acknowledges that it will,
independently of the Agents, each Agent-Related Person and each other Lender,
and based on such other documents, information and investigations as it shall
deem appropriate at any time, continue to make its own credit decisions as to
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exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
-----------
notice to each Lender of each notice or request required to be given and
actually given to the Administrative Agent by the Borrower pursuant to the terms
of this Agreement (unless concurrently delivered to the Lenders by the
Borrower). The Administrative Agent will distribute to each Lender each
document or instrument received for its account, and copies of all other
communications received by the Administrative Agent, in each case from the
Borrower for distribution to the Lenders by the Administrative Agent in
accordance with the terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this Agreement
------------------------
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrower and the Required Lenders (or the Administrative Agent on behalf
of the Required Lenders); provided, however, that no such amendment,
-------- -------
modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 10.1, change the definition of "Required
------------
Lenders", increase the Revolving Loan Commitment Amount or the Percentage
of any Lender, reduce any fees described in Article III, release any
-----------
guarantor (if any) party to a Loan Document or all or substantially all
collateral security, except as otherwise specifically provided in any Loan
Document, or extend the Revolving Loan Commitment Termination Date shall be
made without the consent of each Lender directly affected thereby;
(c) extend the due date for, or reduce the amount of, any scheduled
repayment or prepayment of principal of or interest on any Loan (or reduce
the principal amount of or rate of interest on any Loan) shall be made
without the consent of the holder of the Note evidencing such Loan; or
(d) affect adversely the interests, rights or obligations of (i) the
Administrative Agent qua the Administrative Agent, unless consented to by
---
the Administrative Agent or (ii) the Documentation Agent qua the
---
Documentation Agent, unless consented to by the Documentation Agent.
No failure or delay on the part of the Administrative Agent, the Documentation
Agent, any Lender or the holder of any Note in exercising any power or right
under this Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on the Borrower in any case shall entitle
it to any notice or demand in similar or other circumstances. No waiver or
approval by the Administrative Agent, the Documentation Agent, any Lender or the
holder of any Note under this Agreement or any other Loan Document shall, except
as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted
-54-
hereunder. All rights and remedies hereunder are cumulative, and not exclusive
of rights and remedies provided under law or otherwise.
SECTION 10.2. Notices. All notices and other communications provided to
-------
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth below its signature hereto or set
forth in the Lender Assignment Agreement or at such other address or facsimile
number as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given, in the
case of notices to the Administrative Agent or any Lender, when received and, in
the case of notices to the Borrower or any other Obligor, the earlier of when
received and three days after being sent; any notice, if transmitted by
facsimile, shall be deemed given when transmitted and electronically confirmed.
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay
-----------------------------
on demand all expenses of the Administrative Agent and the Documentation Agent
(including due diligence expenses, syndication expenses and the fees and other
charges of Xxxxx, Xxxxx & Xxxxx, counsel to the Administrative Agent and the
Documentation Agent, and of local counsel, if any, who may be retained by
counsel to the Administrative Agent or the Documentation Agent) in connection
with
(a) the negotiation, preparation, execution, delivery and
administration of this Agreement and of each other Loan Document, including
schedules and exhibits, and any amendments, waivers, consents, supplements
or other modifications to this Agreement or any other Loan Document as may
from time to time hereafter be required, whether or not the transactions
contemplated hereby or thereby are consummated, and
(b) the custody, preservation, use or operation of any collateral
security provided under any Loan Document, the filing, recording, refiling
or rerecording of each Pledge Agreement, each Security Agreement, each
instrument relating to real property or leases and/or any Uniform
Commercial Code financing statements and any other security instruments
relating thereto and all amendments, supplements and modifications to any
thereof and any and all other documents or instruments of further assurance
required to be filed or recorded or refiled or rerecorded by the terms
hereof or of such Pledge Agreement, such Security Agreement, instruments
relating to real property or leases or other security instrument, and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document and/or the
consideration of legal issues relevant to this Agreement or any other Loan
Document, and
(d) the syndication of the Loans to the Lenders.
The Borrower further agrees to pay, and to save the Administrative Agent, the
Documentation Agent and the Lenders harmless from all liability for, any stamp
or other taxes (other than franchise taxes and taxes imposed on or measured by
any Lender's net income) which may be payable in connection with the execution
or delivery of this Agreement, the Loans made hereunder, or the issuance of the
Notes or any other Loan Documents. The Borrower also agrees to reimburse the
Administrative Agent and each Lender upon demand for all reasonable out-of-
pocket expenses (including attorneys' fees and legal expenses) incurred by the
Administrative Agent or such Lender in connection with (x) the negotiation of
any restructuring or "work-out", whether or not consummated, of any Obligations
and (y) the enforcement of any Obligations and/or any collateral security or
guarantee therefor.
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SECTION 10.4. Indemnification. In consideration of the execution and
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delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies, exonerates and holds the Administrative Agent,
each Agent-Related Person, the Documentation Agent and each Lender and each of
their respective affiliates, officers, directors, employees and agents
(collectively, the "Indemnified Parties") free and harmless from and against any
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and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
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Parties or any of them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance of this Agreement and any other
Loan Document by any of the Indemnified Parties (including any action
brought by or on behalf of the Borrower as the result of any determination
by the Required Lenders pursuant to Article V not to fund any Borrowing);
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(c) any investigation, litigation or proceeding related to any
proposed acquisition by the Borrower or any of its Subsidiaries of all or
any portion of the stock or assets of any Person, whether or not the
Administrative Agent or such Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by the Borrower or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of, the Borrower or
such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. The Borrower and its successors and assigns
hereby waive, release and agree not to make any claim or bring any cost recovery
action against the Administrative Agent, any Agent-Related Person or any Lender
under CERCLA or any state equivalent, or any similar law now existing or
hereafter enacted. It is expressly understood and agreed that to the extent
that any of such Persons is strictly liable under any Environmental Laws, the
Borrower's obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of the Borrower with respect to the
violation or condition which results in liability of such Person. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
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4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
--- --- --- --- ---- ----
Section 9.1, shall in each case survive any termination of this Agreement, the
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payment in full of all the Obligations and the termination of all the
Commitments. The representations and warranties made by each Obligor in this
Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
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SECTION 10.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be executed by the Borrower and the Administrative Agent and be
deemed to be an original and all of which shall constitute together but one and
the same agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of the Borrower and each Lender (or notice thereof
satisfactory to the Administrative Agent) shall have been received by the
Administrative Agent and notice thereof shall have been given by the
Administrative Agent to the Borrower and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE NOTES
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