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EXHIBIT 99.4
CONFORMED COPY
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CREDIT AGREEMENT
dated as of
October 2, 2000
among
CAPROCK COMMUNICATIONS CORP.
The Borrowers Named Herein
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral Agent
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CHASE SECURITIES INC.,
as Arranger
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[CS&M Ref. No. 6700-793]
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms.........................................................1
SECTION 1.02. Classification of Loans and Borrowings...............................30
SECTION 1.03. Terms Generally......................................................30
SECTION 1.04. Accounting Terms; GAAP...............................................30
ARTICLE II
The Credits
SECTION 2.01. Commitments..........................................................31
SECTION 2.02. Loans and Borrowings.................................................31
SECTION 2.03. Requests for Borrowings..............................................32
SECTION 2.04. Swingline Loans......................................................33
SECTION 2.05. Letters of Credit....................................................35
SECTION 2.06. Funding of Borrowings................................................40
SECTION 2.07. Interest Elections...................................................41
SECTION 2.08. Termination and Reduction
of Commitments.......................................................43
SECTION 2.09. Repayment of Loans; Evidence of Debt.................................43
SECTION 2.10. Prepayment of Loans..................................................44
SECTION 2.11. Fees.................................................................46
SECTION 2.12. Interest.............................................................47
SECTION 2.13. Alternate Rate of Interest...........................................48
SECTION 2.14. Increased Costs......................................................49
SECTION 2.15. Break Funding Payments...............................................50
SECTION 2.16. Taxes................................................................51
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs..................................................53
SECTION 2.18. Mitigation Obligations;
Replacement of Lenders...............................................55
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ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.................................................56
SECTION 3.02. Authorization; Enforceability........................................56
SECTION 3.03. Governmental Approvals; No Conflicts.................................57
SECTION 3.04. Financial Condition;
No Material Adverse Change...........................................57
SECTION 3.05. Properties...........................................................58
SECTION 3.06. Litigation and Environmental Matters.................................58
SECTION 3.07. Compliance with Laws and Agreements..................................59
SECTION 3.08. Investment and Holding Company Status................................59
SECTION 3.09. Taxes................................................................59
SECTION 3.10. ERISA................................................................60
SECTION 3.11. Disclosure...........................................................60
SECTION 3.12. Subsidiaries.........................................................60
SECTION 3.13. Insurance............................................................61
SECTION 3.14. Labor Matters........................................................61
SECTION 3.15. Intellectual Property................................................61
SECTION 3.16. Security Interests...................................................62
SECTION 3.17. FCC Compliance.......................................................63
SECTION 3.18. Solvency.............................................................63
SECTION 3.19. Absence of Non-Permitted Obligations.................................64
ARTICLE IV
Conditions
SECTION 4.01. Initial Borrowing Date...............................................64
SECTION 4.02. Each Credit Event....................................................66
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements
and Other Information................................................67
SECTION 5.02. Notices of Material Events...........................................69
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SECTION 5.03. Information Regarding Collateral.....................................70
SECTION 5.04. Existence; Conduct of Business.......................................71
SECTION 5.05. Payment of Obligations...............................................71
SECTION 5.06. Maintenance of Properties............................................71
SECTION 5.07. Insurance............................................................72
SECTION 5.08. Casualty and Condemnation............................................72
SECTION 5.09. Books and Records;
Inspection and Audit Rights..........................................72
SECTION 5.10. Compliance with Laws.................................................73
SECTION 5.11. Use of Proceeds and Letters of Credit................................73
SECTION 5.12. Additional Subsidiaries..............................................73
SECTION 5.13. Further Assurances...................................................73
SECTION 5.14. Interest Rate Protection.............................................74
SECTION 5.15. Merger Agreement.....................................................74
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities..............................75
SECTION 6.02. Liens................................................................77
SECTION 6.03. Fundamental Changes..................................................78
SECTION 6.04. Sale and Lease-Back Transactions.....................................79
SECTION 6.05. Investments, Loans, Advances,
Guarantees and Acquisitions..........................................79
SECTION 6.06. Asset Sales..........................................................81
SECTION 6.07. Hedging Agreements...................................................81
SECTION 6.08. Restricted Payments;
Certain Payments of Indebtedness.....................................81
SECTION 6.09. Transactions with Affiliates.........................................83
SECTION 6.10. Restrictive Agreements...............................................83
SECTION 6.11. Amendment of Material Documents......................................84
SECTION 6.12. Financial Covenants..................................................84
SECTION 6.13. Designation of Unrestricted
Subsidiaries.........................................................86
SECTION 6.14. Liabilities of License Subsidiaries..................................86
SECTION 6.15. Evidence of Intercompany Indebtedness................................87
ARTICLE VII
Events of Default
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ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices..............................................................93
SECTION 9.02. Waivers; Amendments..................................................94
SECTION 9.03. Expenses; Indemnity; Damage Waiver...................................96
SECTION 9.04. Successors and Assigns...............................................98
SECTION 9.05. Survival............................................................101
SECTION 9.06. Counterparts; Integration;
Effectiveness.......................................................102
SECTION 9.07. Severability........................................................102
SECTION 9.08. Right of Setoff.....................................................102
SECTION 9.09. Governing Law; Jurisdiction;
Consent to Service of Process.......................................103
SECTION 9.10. WAIVER OF JURY TRIAL................................................104
SECTION 9.11. Headings............................................................104
SECTION 9.12. Confidentiality.....................................................104
SECTION 9.13. Interest Rate Limitation............................................105
SECTION 9.14. Liability of Borrowers..............................................106
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.05 -- Real Property
Schedule 3.06 --Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.05 -- Investments
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit C -- Form of Perfection Certificate
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Exhibit D -- Form of Guarantee Agreement
Exhibit E -- Form of Pledge Agreement
Exhibit F -- Form of Security Agreement
Exhibit G -- Form of Indemnity, Subrogation and
Contribution Agreement
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CREDIT AGREEMENT dated as of October 2,
2000, among CAPROCK COMMUNICATIONS CORP.,
CAPROCK TELECOMMUNICATIONS CORP., CAPROCK
FIBER NETWORK LTD., the Lenders party
hereto, and THE CHASE MANHATTAN BANK, as
Administrative Agent and Collateral Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Access Lines in Service" means, at any time, the number of
distinct sold customer service lines maintained by Holdings, the Borrowers and
the other Restricted Subsidiaries at such time.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agent" means The Chase Manhattan Bank, in its capacities as
Administrative Agent and Collateral Agent.
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"Alternate Base Rate" means, for any day, a rate per annum equal
to the greatest of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the Initial Borrowing Date
of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Commitment Fee Rate" means, with respect to the
commitment fee payable pursuant to Section 2.11(a), a rate per annum equal to
(x) 1.50% for each day on which Usage is less than or equal to 50%, (y) 1.25%
for each day on which Usage is greater than 50% but less than or equal to 75%
and (z) 1.00% for each day on which Usage is greater than 75%. For purposes of
the foregoing, "Usage" means, on any date, the percentage obtained by dividing
(i) the aggregate Revolving Exposure on such date by (ii) the aggregate
Available Revolving Commitments on such date.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day (i) with respect to any ABR
Loan, 3.50% per annum above the Alternate Base Rate and (ii) with respect to any
Eurodollar Loan, 4.50% per annum above the Adjusted Libo Rate.
"Available Revolving Commitment" means, with respect to any
Lender, such Lender's Applicable Percentage of (a) during the period from and
including October 2, 2000, to and including December 31, 2000, the lesser of
$50,000,000 and the total Commitments at such time and (b) during the period
from and including January 1, 2001, to and including the Maturity Date, the
lesser of $100,000,000 total Commitments at such time.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
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"Attributable Debt" means, on any date, in respect of any lease
of Holdings, the Borrowers or any other Restricted Subsidiary entered into as
part of a sale and leaseback transaction subject to Section 6.04, if such lease
is not a Capital Lease Obligation, the capitalized amount of the remaining lease
payments under such lease that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease were accounted
for as a Capital Lease Obligation.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means each of Telecommunications and Fiber, each of
which is a Wholly Owned Subsidiary of Holdings.
"Borrowing" means (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by a Borrower for a Borrowing
in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, (a) the additions
to property, plant and equipment and other capital expenditures of Holdings, the
Borrowers and the other Restricted Subsidiaries that are (or would be) set forth
in a consolidated statement of cash flows of Holdings for such period prepared
in accordance with GAAP and (b) Capital Lease Obligations incurred by Holdings,
the Borrowers and the other Restricted Subsidiaries during such period.
"Capital Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations
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shall be the capitalized amount thereof determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to purchase or
subscribe for any of the foregoing, or any warrants, rights or options to
purchase or subscribe for any such warrants, rights or options.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person other than
Holdings of any Equity Interest in any Borrower; (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof), of Equity Interests representing more than 30% of either the aggregate
ordinary voting power or the aggregate equity value represented by the issued
and outstanding Equity Interests in Holdings; (c) occupation of a majority of
the seats (other than vacant seats) on the board of directors of Holdings by
Persons who were neither (i) nominated by the board of directors of Holdings nor
(ii) appointed by directors so nominated; (d) the acquisition of direct or
indirect Control of Holdings by any Person or group; or (e) the occurrence of a
"Change of Control", as defined in the Holdings Indentures.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of
such Lender or by such Lender's or the Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"Class", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or Swingline Loans.
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"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" means any asset or property, tangible or intangible,
subject to a lien pursuant to any Security Document.
"Collateral Agent" means The Chase Manhattan Bank in its capacity
as collateral agent for the Secured Parties hereunder.
"Collateral and Guarantee Requirement" means the requirement
that:
(a) the Agent shall have received from each Loan Party either (i)
a counterpart of the Guarantee Agreement duly executed and delivered on
behalf of such Loan Party or (ii) in the case of any Person that
becomes a Loan Party after the date hereof, a supplement to the
Guarantee Agreement, in the form specified therein, duly executed and
delivered on behalf of such Loan Party together with, in the case of
each Subsidiary Loan Party, counterparts of the Indemnity, Subrogation
and Contribution Agreement or a supplement thereto, in the form
specified therein, duly executed and delivered on behalf of such
Subsidiary Loan Party;
(b) the Agent shall have received from each Loan Party either (i)
counterparts of the Pledge Agreement and Security Agreement duly
executed and delivered on behalf of such Loan Party or (ii) in the case
of any Person that becomes a Loan Party after the date hereof,
supplements to the Pledge Agreement and Security Agreement, in the
forms specified therein, duly executed and delivered on behalf of such
Loan Party;
(c) all outstanding Equity Interests owned by or on behalf of
Holdings, the Borrowers or any Subsidiary Loan Party shall have been
pledged pursuant to the Pledge Agreement (except that the Loan Parties
shall not be required to pledge any of the outstanding voting Equity
Interests of any Foreign Subsidiary) and the Agent shall have received
certificates or other instruments representing all such Equity
Interests, together with stock powers or other instruments of transfer
with respect thereto endorsed in blank;
(d) all Indebtedness of Holdings, the Borrowers and each
Subsidiary that is owing to any Loan Party
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shall have been pledged pursuant to the Pledge Agreement;
(e) all documents and instruments, including Uniform Commercial
Code financing statements, required by law or reasonably requested by
the Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Documents and perfect such Liens
to the extent required by, and with the priority required by, the
Security Documents shall have been filed, registered or recorded or
delivered to the Agent for filing, registration or recording; and
(f) each Loan Party shall have obtained all material consents and
approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it is a
party, the performance of its obligations thereunder and the granting
by it of the Liens thereunder.
The foregoing definition shall not require the creation or
perfection of pledges or security interests in particular assets of Holdings and
the Subsidiaries if and for so long as, in the judgment of the Agent, the cost
or effort to create or perfect such pledges or security interests in such assets
shall be excessive in view of the benefits to be obtained by the Lenders
therefrom.
"Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Commitment
is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $100,000,000.
"Communications Act" means the Communications Act of 1934 as
amended by the Telecommunications Act of 1996, and any similar or successor
Federal statute and the rules, regulations and published policies of the FCC
thereunder, all as amended and as the same may be in effect from time to time.
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"Consolidated EBITDA" means for any period, Consolidated Net
Income for such period (a) plus, without duplication and to the extent deducted
from revenues in determining such Consolidated Net Income, the sum of (i)
Interest Expense for such period, (ii) consolidated income tax expense for such
period, (iii) all amounts attributable to depreciation and amortization for such
period, (iv) all non-cash compensation charges during such period (it being
understood that charges shall be deemed non-cash charges until the period that
cash disbursements attributable to such charges are made, at which point such
charges shall be deemed cash charges) and (e) all extraordinary non-cash charges
during such period, and minus (b) without duplication and to the extent included
in determining such Consolidated Net Income, any extraordinary gains for such
period, all as determined on a consolidated basis with respect to Holdings, the
Borrowers and the other Restricted Subsidiaries in accordance with GAAP.
Notwithstanding the definition of Consolidated Net Income, for purposes of
Section 6.12, if Holdings, the Borrowers or any of the other Restricted
Subsidiaries makes any Permitted Business Acquisition or any material
disposition during any period in respect of which Consolidated EBITDA is to be
determined hereunder, such Consolidated EBITDA will be determined on a pro forma
basis as if such acquisition or disposition were consummated on the first day of
the relevant period.
"Consolidated Net Income" means, for any period, the net income
or loss of Holdings, the Borrowers and the other Restricted Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP; provided
that there shall be excluded (a) revenues and income attributable to sales of
indefeasible rights of use, (b) the income of any Person (other than Holdings)
in which any other Person (other than Holdings, the Borrowers or any other
Restricted Subsidiary and other than directors holding qualifying shares in
compliance with applicable law) owns an Equity Interest, except to the extent of
dividends or other distributions actually paid to Holdings, the Borrowers or any
of the other Restricted Subsidiaries during such period and (c) the income or
loss of any Person accrued prior to the date it becomes a Subsidiary or is
merged into or consolidated with Holdings, the Borrowers or any other Restricted
Subsidiary or the date such Person's assets are acquired by Holdings, the
Borrowers or any other Restricted Subsidiary.
"Consolidated Revenue" means, for any period, the revenues of
Holdings, the Borrowers and the other Restricted Subsidiaries for such period,
excluding any
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revenues (i) representing interest or investment income, (ii) representing
dividends or distributions from Unrestricted Subsidiaries, (iii) from the sale
of indefeasible rights of use, and (iv) from the sale or disposition of
businesses, assets (other than in the ordinary course of business, including
sales of network capacity) or investments or from any Prepayment Event.
"Consolidated Senior Secured Debt" means, on any date, the Loans
and all other Indebtedness that would be reflected as a liability on a
consolidated balance sheet of Holdings, the Borrowers and the other Restricted
Subsidiaries prepared as of such date in accordance with GAAP, which such
Indebtedness is secured by any assets of Holdings, the Borrowers or any other
Restricted Subsidiary.
"Consolidated Total Debt" means, at any date, all Indebtedness of
Holdings, the Borrowers and the other Restricted Subsidiaries that would be
reflected as a liability on a consolidated balance sheet of Holdings, the
Borrowers and the other Restricted Subsidiaries prepared as of such date in
accordance with GAAP.
"Contributed Capital" means at any date, the sum (without
duplication) of (a) the consolidated stockholders equity of Holdings, the
Borrowers and the other Restricted Subsidiaries at December 31, 1999, determined
in accordance with GAAP, plus (b) Equity Proceeds received by Holdings
subsequent to December 31, 1999, plus (c) the amount of Equity Purchase
Consideration received by Holdings, the Borrowers and the other Restricted
Subsidiaries after December 31, 1999.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and
the environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
America.
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"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of Holdings, any Borrower or any
Subsidiary directly or indirectly which could reasonably be expected to result
in a Material Adverse Effect and which results from or is based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"Equity Proceeds" means the cash Net Proceeds received by
Holdings from the issuance and sale of common stock of Holdings or Non-Cash Pay
Preferred Stock of Holdings.
"Equity Purchase Consideration" means the net fair market value
(after giving effect to any Indebtedness acquired or assumed in the transaction)
of any assets or properties other than cash transferred to or acquired by
Holdings, the Borrowers or any other Restricted Subsidiary in consideration of
or exchange for the issuance of shares of common stock of Holdings or Non-Cash
Pay Preferred Stock of Holdings, including in connection with mergers and stock
acquisitions (such net fair market value being the fair market value of such
common stock or Non-Cash Pay Preferred Stock (as reasonably determined in good
faith by the Chief Financial Officer of Holdings, which determination shall, if
applicable, be based on the trading value of such common stock or Non-Cash Pay
Preferred Stock on the closing date of the transaction).
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Holdings, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by Holdings or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by Holdings or any ERISA Affiliate from
the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by Holdings or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by Holdings or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from Holdings or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Agent, any Lender,
the Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of the Borrowers hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of America
or any state thereof or by
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the jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any state thereof or any similar tax imposed by
any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrowers with respect to any withholding tax
pursuant to Section 2.16(a), or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.16(e).
"FCC" means the United States Federal Communications Commission.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiber" means CapRock Fiber Network Ltd., a Texas limited
partnership.
"Financial Officer" means the chief executive officer, president,
chief financial officer, vice- president-legal or controller of Holdings.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than the United States of America. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
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"Foreign Subsidiary" means any Subsidiary that is organized under
the laws of a jurisdiction other than the United States of America or any state
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Government Securities" means direct obligations of, or
obligations fully and unconditionally guaranteed or insured by, the United
States of America or any agency or instrumentality thereof.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreement" means the Guarantee Agreement,
substantially in the form of Exhibit D, among Holdings, the Subsidiary Loan
Parties (other than the Borrowers) and the Collateral Agent.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic
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substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Holdings" means CapRock Communications Corp., a Texas
corporation.
"Holdings Senior Notes" means (i) $150,000,000 aggregate
principal amount of 12% Senior Notes Due 2008 of Holdings (the "1998 Holdings
Senior Notes") and (ii) $210,000,0000 aggregate principal amount of 11 1/2%
Senior Notes Due 2009 of Holdings (the "1999 Holdings Senior Notes".
"Holdings Indentures" means the Indenture dated as of July 16,
1998 relating to the 1998 Holdings Senior Notes and the Indenture dated as of
May 18, 1999 relating to the 1999 Holdings Senior Notes, in each case as amended
and in effect from time to time.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable incurred in the ordinary course of business and not overdue by more than
90 days or, in the case of accounts payable relating to equipment purchases, by
more than 180 days, unless in either case the unpaid amount is subject to a bona
fide dispute with the obligee), (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations,
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contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty and (j) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by a Borrower to
convert or continue a Borrowing in accordance with Section 2.07.
"Initial Borrowing Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Interest Expense" shall mean, with respect to Holdings, the
Borrowers and the other Restricted Subsidiaries on a consolidated basis for any
period, the sum of (a) gross interest expense of Holdings, the Borrowers and the
other Restricted Subsidiaries for such period on a consolidated basis, including
(i) the amortization of debt discounts, (ii) the amortization of all fees
(including fees with respect to interest rate protection agreements) payable in
connection with the incurrence of Indebtedness to the extent included in
interest expense and (iii) the portion of any payments or accruals with respect
to Capital Lease Obligations allocable to interest expense and (b) capitalized
interest of Holdings, the Borrowers and the other Restricted Subsidiaries on a
consolidated basis. For purposes of the foregoing, gross interest expense shall
be determined after giving effect to any net payments made or received by
Holdings, the Borrowers and the other Restricted Subsidiaries with respect to
interest rate protection agreements.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December and (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurodollar Borrowing with an Interest Period of more than three
months'
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duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as a Borrower may elect; provided, that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Investment" means purchasing, holding or acquiring (including
pursuant to any merger with any Person that was not a Wholly Owned Subsidiary
prior to such merger) any Capital Stock, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, or making or permitting to exist any loans or advances (other
than extensions of trade credit in the ordinary course of business) to,
Guaranteeing any obligations of, or making or permitting to exist any investment
or any other interest in, any other Person, or purchasing or otherwise acquiring
(in one transaction or a series of transactions) any assets of any Person
constituting a business unit. The amount, as of any date of determination, of
any Investment shall be the original cost of such Investment (including any
Indebtedness of a Person existing at the time such Person becomes a Subsidiary
in connection with any Investment and any Indebtedness assumed in connection
with any acquisition of assets), plus the cost of all additions, as of such
date, thereto and minus the amount, as of such date, of any portion of such
Investment repaid to the investor in cash as a repayment of principal or a
return of capital, as the case may be (except to the extent such repaid amount
has been included in Consolidated Net Income), but without any
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16
other adjustments for increases or decreases in value, or write-ups, write-downs
or write-offs with respect to such Investment. In determining the amount of any
Investment involving a transfer of any property other than cash, such property
shall be valued at its fair market value at the time of such transfer.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as
the issuer of Letters of Credit hereunder, and its successors in such capacity
as provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrowers at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate Service (or
on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event
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that such rate is not available at such time for any reason, then the "LIBO
Rate" with respect to such Eurodollar Borrowing for such Interest Period shall
be the rate at which dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"License" means any license granted by the FCC (other than any
license granted pursuant to Section 214 of the Communications Act).
"License Subsidiary" means any wholly owned direct subsidiary of
any Borrower designated as a License Subsidiary by notice to the Administrative
Agent; provided, however, that (i) such Subsidiary is a Subsidiary Loan Party
and has no obligations or liabilities other than as permitted by Section 6.14,
(ii) all the Capital Stock of such Subsidiary is pledged to the Collateral Agent
for the benefit of the Secured Parties under the Pledge Agreement and (iii)
Holdings, the Borrowers and such Subsidiary have entered into a Special Purpose
Subsidiary Funding Agreement.
"Lien" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Supplemental Letter
dated as of the date hereof among the Administrative Agent, Holdings and the
Borrowers and the Security Documents.
"Loan Parties" means Holdings, the Borrowers and the other
Subsidiary Loan Parties.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on (a)
the business, assets, operations, prospects, contractual arrangements or
condition, financial
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or otherwise, of Holdings, the Borrowers and the other Restricted Subsidiaries
taken as a whole, (b) the ability of any Loan Party to perform any of its
material obligations under any Loan Document or (c) the material rights of or
material benefits available to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of Holdings, the Borrowers or any other
Restricted Subsidiary in an aggregate principal amount exceeding $10,000,000.
For purposes of determining Material Indebtedness, the "principal amount" of the
obligations of Holdings, the Borrowers or any other Restricted Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that Holdings, such Borrower or
such Restricted Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Maturity Date" means May 30, 2001.
"Merger" shall mean the merger pursuant to the terms of the
Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger
dated as of the date hereof among Holdings, McLeodUSA Incorporated and Cactus
Acquisition Corp.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by Holdings, the
Borrowers and the other Restricted Subsidiaries to third parties (other than
Affiliates of Holdings, the Borrowers and the other Restricted Subsidiaries) in
connection with such event, (ii) in the case of a sale, transfer or other
disposition of an asset (including pursuant to a sale and leaseback transaction
or a casualty or a condemnation or similar proceeding), the amount of all
payments required to be made by Holdings, the Borrowers and the other Restricted
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Subsidiaries as a result of such event to repay Indebtedness (other than Loans)
secured by such asset or otherwise subject to mandatory prepayment as a result
of such event, and (iii) the amount of all taxes paid (or reasonably estimated
to be payable) by Holdings, the Borrowers and the other Restricted Subsidiaries,
and the amount of any reserves established by Holdings, the Borrowers and the
other Restricted Subsidiaries to fund contingent liabilities reasonably
estimated to be payable, in each case during the year that such event occurred
or the next succeeding year and that are directly attributable to such event (as
determined reasonably and in good faith by the chief financial officer of
Holdings).
"Non-Cash Pay Preferred Stock" means preferred stock of Holdings
which (i) is not mandatorily redeemable, in whole or part, or required to be
repurchased or reacquired, in whole or in part, by Holdings, the Borrowers or
any other Restricted Subsidiary, and which does not require any payment of cash
dividends, in each case, prior to the date that is three months after the
Maturity Date; provided, however, that any preferred stock which would
constitute Non-Cash Pay Preferred Stock but for provisions thereof giving
holders thereof the right to require Holdings to repurchase or redeem such
preferred stock upon the occurrence of a change of control occurring prior to
the Maturity Date shall constitute Non-Cash Pay Preferred Stock if the change of
control provisions applicable to such preferred stock are no more favorable to
the holders of such preferred stock than the provisions applicable to the Loans
contained in this agreement and such preferred stock specifically provides that
Holdings, the Borrowers and the other Restricted Subsidiaries will not
repurchase or redeem any such preferred stock pursuant to such provisions prior
to the Borrowers' repayment of the Loans and the termination of all Commitments
hereunder, (ii) is not secured by any assets of Holdings, the Borrowers or any
other Restricted Subsidiary, (iii) is not Guaranteed by the Borrowers or any
other Restricted Subsidiary and (iv) is not exchangeable or convertible into
Indebtedness of Holdings, the Borrowers or any other Restricted Subsidiary or
any preferred stock (other than Non-Cash Pay Preferred Stock) of Holdings, the
Borrowers or any other Subsidiary.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
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"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of
Exhibit C or any other form approved by the Agent.
"Permitted Business Acquisition" means an acquisition that meets
the following: (a) any acquisition by Holdings, the Borrowers or a Subsidiary
Loan Party of all or substantially all the assets of, or all the Equity
Interests in, a Person or division or line of business of a Person, if
immediately after giving effect thereto, no Default has occurred and is
continuing or would result therefrom, (b) such acquired Person or business is
predominately engaged in one or more Telecommunications Businesses in the United
States of America or businesses reasonably related thereto, (c) each Subsidiary
formed for the purpose of or resulting from such acquisition shall be a
Subsidiary Loan Party and all the Equity Interests of each such Subsidiary shall
be owned directly by Holdings and/or Subsidiary Loan Parties and shall have been
pledged pursuant to the Pledge Agreement, (d) the Collateral and Guarantee
Requirement shall have been satisfied with respect to each such Subsidiary and
all consents of Governmental Authorities or third parties necessary to permit
each such Subsidiary to enter into the Security Documents and pledge the
Collateral owned by it pursuant to the Security Documents shall have been
obtained, (e) Holdings, the Borrowers and the other Restricted Subsidiaries are
in compliance, on a pro forma basis after giving effect to such acquisition
(without giving effect to operating expense reductions), with the financial
covenants contained in Section 6.12, to the extent then applicable, as if such
acquisition had occurred on the first day of the relevant period for testing
compliance, and (f) Holdings has delivered to the Agent an officer's certificate
to the effect set forth in clauses (a), (b), (c), (d) and (e) above, together
with all relevant financial information for the Person or assets acquired and
reasonably detailed calculations demonstrating satisfaction of the requirement
set forth in clause (e) above.
"Permitted Encumbrances" means:
(a) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue
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by more than 90 days or are being contested in compliance with
Section 5.05;
(b) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(c) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the
ordinary course of business;
(d) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of Holdings, the
Borrowers or any other Subsidiary;
(e) (i) Liens on leasehold interests, licenses or similar
interests created by the lessor, licensee or grantor (other than the
Borrowers or their Affiliates) thereunder in favor of any mortgagee of
the leased premises, and (ii) Liens for Taxes, assessments,
governmental charges, levies or claims that are not yet delinquent or
remain payable without penalty or 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 such Person's
books, but only so long as no foreclosure, restraint, sale or similar
proceedings have been commenced with respect thereto;
(f) Liens in respect of judgments or awards for which appeals or
proceedings for review are being prosecuted and in respect of which a
stay of execution upon any such appeal or proceeding for review shall
have been secured, provided that (i) such Person shall have established
adequate reserves for such judgments or awards, (ii) such judgments or
awards shall be fully insured and the insurer shall not have denied
coverage, or (iii) such judgments or awards shall have been bonded to
the satisfaction of the Required Lenders; provided further, that such
Liens shall not constitute an Event of Default pursuant to Article VII;
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(g) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor or deposit accounts or other funds maintained with a
creditor depository institution; provided that (i) such deposit account
is not a dedicated cash collateral account and is not subject to
restrictions against access by Holdings, the Borrowers or any other
Restricted Subsidiaries in excess of those set forth by regulations
promulgated by the Board or any governmental authority succeeding to
any of its principal functions, and (ii) such deposit account is not
intended by Holdings, the Borrowers or any other Restricted
Subsidiaries to provide collateral to the depository institution; and
(h) any Uniform Commercial Code-1 or Uniform Commercial Code-3
filing against Holdings, the Borrowers or any other Restricted
Subsidiary (i) which were filed in connection with Indebtedness which
has been repaid in full and extinguished, (ii) with respect to which a
Financial Officer has not had actual knowledge of their existence for
more than 30 days, (iii) with respect to which any commitment,
obligation or liability of Holdings, the Borrowers or any such
Restricted Subsidiary and any such lender or creditor has been
terminated and (iv) with respect to which all documentation creating
lien, hypothecation or security interest related to such UCC filing has
been legally terminated whether pursuant to its terms or otherwise.
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) Government Securities maturing within one year from the date
of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Xxxxx'x;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic
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office of any commercial bank organized under the laws of the United
States of America or any State thereof which has a combined capital and
surplus and undivided profits of not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which Holdings or any
ERISA Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" means the Pledge Agreement, substantially in
the form of Exhibit E, among Holdings, the Subsidiary Loan Parties (as
applicable) and the Collateral Agent.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant
to a sale and leaseback transaction) of any property or asset of
Holdings, the Borrowers or any other Restricted Subsidiary, other than
(i) dispositions described in clauses (a) and (b) of Section 6.06 and
(ii) other dispositions resulting in aggregate Net Proceeds not
exceeding $5,000,000 during any fiscal year of Holdings; or
(b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of,
any property or asset of Holdings, the Borrowers or any other
Restricted Subsidiary, but only to the extent that the Net Proceeds
therefrom have not been applied to (i) repair, restore or replace such
property or asset within 180 days after such event or (ii) purchase
Telecommunications Assets within 180 days after the date on which such
Net Proceeds were received; or
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(c) the issuance by Holdings or any Subsidiary of Holdings of any
Equity Interests (except upon exercise of employee stock options), or
the receipt by Holdings or any Subsidiary of any capital contribution,
other than any such issuance of Equity Interests to, or receipt of any
such capital contribution from, Holdings or a Subsidiary or the
issuance by Holdings or any Subsidiary of any Subsidiary of any
Indebtedness for borrowed money other than as permitted by Section
6.01;
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Register" has the meaning set forth in Section 9.04.
"Related Fund" means with respect to any Lender that is a fund
that invests in bank loans in the ordinary course of business, any other fund
that invests in bank loans in the ordinary course of business and is advised or
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents, trustees, partners, members and advisors of such Person and such
Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Exposures and unused Commitments at such time.
"Restricted Indebtedness" means Indebtedness of the Borrower or
any Subsidiary, the payment, prepayment, redemption, repurchase or defeasance of
which is restricted under Section (b).
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock or other Equity Interests in Holdings, the Borrowers
or any other Restricted Subsidiary, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account
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of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such shares of any class of capital stock or other Equity
Interests in Holdings, the Borrowers or any other Restricted Subsidiary or any
option, warrant or other right to acquire any such shares of any class of
capital stock or other Equity Interests in Holdings, the Borrowers or any other
Restricted Subsidiary, or any payment under a Synthetic Purchase Agreement
related to any Equity Interests.
"Restricted Subsidiary" means (i) each Borrower and each other
Subsidiary of Holdings on the date hereof other than Unrestricted Subsidiaries
and (ii) each Subsidiary of Holdings organized or acquired after the date hereof
that has not been designated by Holdings as an Unrestricted Subsidiary pursuant
to and in compliance with Section 6.13.
"Revolving Availability Period" means the period from and
including the date hereof to but excluding the earlier of the Maturity Date and
the date of termination of the Commitments.
"Revolving Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to of Section 2.01.
Each Revolving Loan shall be a Eurocurrency Loan or an ABR Loan.
"S&P" means Standard & Poor's Ratings Group.
"Secured Obligations" means (a) the due and punctual payment of
(i) the principal of and premium, if any, and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans and the Swingline Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by the Borrowers under this
Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral and (iii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary
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obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Borrowers to the Secured Parties under
this Agreement or the other Loan Documents, (b) the due and punctual performance
of all covenants, agreements, obligations and liabilities of the Borrowers and
the other Loan Parties under or pursuant to this Agreement and the other Loan
Documents (c) the due and punctual payment and performance of all obligations of
the Loan Parties under each Hedging Agreement entered into with a counterparty
that was a Lender (or an Affiliate of a Lender) at the time such Hedging
Agreement was entered into (or, if later, on the date of the Credit
Agreement)and (d) the due and punctual payment and performance of all
obligations in respect of overdrafts and related liabilities owed to The Chase
Manhattan Bank, any Affiliate thereof, the Administrative Agent or the
Collateral Agent arising from treasury, depository and cash management services
or in connection with any automated clearinghouse transfer of funds.
"Secured Parties" shall mean (a) the Lenders, (b) the Swingline
Lender, (c) the Administrative Agent, (d) the Collateral Agent, (e) the Issuing
Bank, (f) each counterparty to a Hedging Agreement entered into with a Loan
Party if such counterparty was a Lender (or an Affiliate thereof) at the time
the Hedging Agreement was entered into (or, if later, on the date of this
Agreement), (g) the beneficiaries of each indemnification obligation undertaken
by the Borrowers or the other Loan Parties under any Loan Document and (h) the
successors and assigns of each of the foregoing.
"Security Agreement" means the Security Agreement, substantially
in the form of Exhibit F, among Holdings, the Subsidiary Loan Parties and the
Collateral Agent for the benefit of the Secured Parties.
"Security Documents" means the Guarantee Agreement, the Pledge
Agreement, the Security Agreement, and each other instrument or other document
executed by any Borrower or any other Loan Party and delivered pursuant to
Section 5.12 or 5.13 to secure any of the Secured Obligations.
"Special Purpose Subsidiary Funding Agreement" means an agreement
among Holdings, the Borrowers and each License Subsidiary, in form and substance
satisfactory to
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the Administrative Agent, pursuant to which (a) such License Subsidiary agrees
to provide to the Borrowers and the other Restricted Subsidiaries the benefit of
the use of such License Subsidiary's assets, (b) Holdings and the Borrowers
jointly and severally agree to pay to such License Subsidiary an amount equal to
all liabilities of such License Subsidiary as and when such liabilities become
due and payable (less any amounts contributed at such time to the equity of such
License Subsidiary to fund such liabilities), (c) Holdings and the Borrowers
agree to cause all contractual obligations of such License Subsidiary to be
performed and all laws and regulations applicable to such License Subsidiary to
be complied with and (d) Holdings, the Borrowers and such License Subsidiary
agree to the assignment by each of its rights thereunder to the Collateral Agent
for the benefit of the Secured Parties.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage and the Administrative
Agent will promptly notify the Borrowers of each such change.
"subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general
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partnership interests are, as of such date, owned, controlled or held, or (b)
that is, as of such date, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" means any direct or indirect subsidiary of Holdings.
"Subsidiary Loan Party" means any Restricted Subsidiary (other
than the Borrowers and any Foreign Subsidiary).
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its
capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Synthetic Purchase Agreement" means any swap, derivative or
other agreement or combination of agreements pursuant to which Holdings or any
Subsidiary is or may become obligated to make (i) any payment in connection with
a purchase by any third party from a Person other than Holdings or any
Subsidiary of any Equity Interest or Restricted Indebtedness or (ii) any payment
(other than on account of a permitted purchase by it of any Equity Interest or
any Restricted Indebtedness) the amount of which is determined by reference to
the price or value at any time of any Equity Interest or Restricted
Indebtedness; provided that no phantom stock or similar plan providing for
payments only to current or former directors, officers or employees of holdings
or any Subsidiary (or to their heirs or estates) shall be deemed to be a
Synthetic Purchase Agreement.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Telecommunications" means CapRock Telecommunications Corp., a
Texas Corporation.
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"Telecommunications Assets" means any property (other than cash,
cash equivalents and securities) to be owned by Holdings, the Borrowers or any
other Restricted Subsidiary and, directly or indirectly, used in a
Telecommunications Business (including any computer systems used in a
Telecommunications Business). "Telecommunications Assets" shall not include
Equity Interests in any Person.
"Telecommunications Business" means the business of (i)
transmitting, or providing services relating to the transmission of, voice,
video, signals, data or internet services through owned or leased transmission
facilities, (ii) constructing, creating, developing, owning or marketing one or
more communications networks, related, ancillary, or complementary network
transmission equipment, information systems, software and other related,
ancillary or complementary assets and services, (iii) planning, designing and
consulting with respect to the matters described in clauses i) and (ii), and
(iv) evaluating, participating or pursuing any other activity or opportunity
that is related, ancillary or complementary to those identified in clauses (i),
(ii) or (iii) above; provided, that the determination of what constitutes a
Telecommunications Business shall be made in good faith by the board of
directors of Holdings.
"Transactions" means the execution, delivery and performance by
each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans and the use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Unrestricted Subsidiary" means any Subsidiary of Holdings that
has been designated as an Unrestricted Subsidiary by Holdings pursuant to and in
compliance with Section 6.13. Any such designation shall be irrevocable, and no
Unrestricted Subsidiary may become a Restricted Subsidiary (including pursuant
to any merger, consolidation or transfer of assets involving a Restricted
Subsidiary).
"Wholly Owned subsidiary" of any Person shall mean a subsidiary
of such Person of which securities or other ownership interests (except for
directors' qualifying shares and other de minimis amounts of outstanding
securities or ownership interests) representing 100% of the ordinary voting
power and 100% of equity or 100% of the
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general partnership interests are, at the time any determination is being made,
owned, controlled or held by such Person or one or more Wholly Owned
subsidiaries of such Person or by such Person and one or more Wholly Owned
subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan"). Borrowings
also may be classified and referred to by Type (e.g., a "Eurodollar Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrowers notify the Administrative Agent that the Borrowers
request an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative
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Agent notifies the Borrowers that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the Borrowers
from time to time during the Revolving Availability Period in an aggregate
principal amount that will not result in such Lender's Revolving Exposure
exceeding such Lender's Available Revolving Commitment at such time.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrowers may request in
accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of the Borrowers to repay such
Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $1,000,000. At the time that
each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000
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and not less than $100,000; provided that an ABR Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall be in
an amount that is an integral multiple of $1,000,000. Borrowings of more than
one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of six Eurodollar Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrowers shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, a
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, on
the date of the proposed Borrowing; provided that any such notice of an ABR
Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e) may be given not later than 10:00 a.m., New York City time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request in a form approved by
the Administrative Agent and signed by such Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of such Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto,
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which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the relevant Borrower and the location and number of such
Borrower's account to which funds are to be disbursed, which shall
comply with the requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the applicable Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrowers from time to time during the Revolving Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Commitments; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrowers
may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, a Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from a Borrower. The Swingline Lender shall make each Swingline
Loan available to a Borrower by means of a credit to the general deposit account
of such Borrower with the Swingline Lender or as otherwise directed by such
Borrower (or, in the case of a Swingline Loan made to finance the reimbursement
of an LC Disbursement as provided in Section 2.06(e), by remittance to the
Issuing Bank) by 3:00 p.m., New York City time, or
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if to another account, promptly, in each case on the requested date of such
Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the applicable Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from such
Borrower (or other party on behalf of such Borrower) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the Swingline Lender, as their interests may
appear. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Borrowers of any default in the payment thereof.
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SECTION 2.05. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Borrowers may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by a
Borrower to, or entered into by a Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the applicable
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, a Borrower also shall submit a letter of credit application on the
Issuing Bank's standard form in connection with any request for a Letter of
Credit; provided that in the event of any conflict between the provisions of
this Agreement and the provisions of any such letter of credit application, the
provisions of this Agreement shall control. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $10,000,000 and (ii) the total
Revolving Exposures shall not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the
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issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is
five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrowers on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrowers for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the applicable Borrower shall
reimburse such LC Disbursement by paying to the Administrative Agent an amount
equal to such LC Disbursement not later than 12:00 noon, New York City time, on
the date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such
date, or, if such notice has not been received by the Borrower prior to such
time on such date, then not later than 12:00 noon, New York City time, on (i)
the Business Day that the Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt of
notice, or (ii) the Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time on the
day of receipt; provided that, if such LC Disbursement is not less than
$5,000,000, the Borrower may, subject to the conditions to borrowing
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set forth herein, request in accordance with Section 2.03 or 2.04 that such
payment be financed with an ABR Borrowing or Swingline Loan in an equivalent
amount and, to the extent so financed, the Borrower's obligation to make such
payment shall be discharged and replaced by the resulting ABR Borrowing or
Swingline Loan. If such Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from such Borrower in respect thereof and such Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from such Borrower, in the same manner as provided in Section
2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from a Borrower pursuant to this paragraph,
the Administrative Agent shall distribute such payment to the Issuing Bank or,
to the extent that Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of
ABR Loans or a Swingline Loan as contemplated above) shall not constitute a Loan
and shall not relieve the Borrowers of their obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrowers' obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrowers' obligations hereunder. Neither
the Administrative Agent,
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the Lenders nor the Issuing Bank, nor any of their Related Parties, shall have
any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank; provided
that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrowers to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrowers to the extent permitted by applicable law) suffered by the Borrowers
that are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or wilful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrowers by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrowers of their obligation
to reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
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(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrowers shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrowers reimburse such LC
Disbursement, at the rate per annum then applicable to ABR Loans; provided that,
if the Borrowers fail to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.12(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrowers, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrowers shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur
and be continuing, on the Business Day that a Borrower (or Holdings, on behalf
of the Borrowers) receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC
Exposure representing greater than 50% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Borrowers shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit
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of the Lenders, an amount in cash equal to the LC Exposure as of such date plus
any accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to Holdings or the
Borrowers described in clause (h) or (i) of Article VII. Each such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrowers under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrowers'
risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrowers for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrowers under this
Agreement. If the Borrowers are required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrowers within
three Business Days after all Events of Default have been cured or waived.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans
available to the Borrowers by promptly crediting the amounts so received, in
like funds, to an account of the Borrower maintained with the Administrative
Agent in New York City and designated by the Borrowers in the applicable
Borrowing Request or as otherwise directed by the Borrowers; provided that ABR
Loans made to finance the reimbursement of an LC Disbursement as provided in
Section
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2.05(e) shall be remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case of the
Borrowers, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrowers may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrowers may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which
may not be converted or continued.
(b) To make an election pursuant to this Section, the applicable
Borrower (or Holdings on its behalf) shall notify the Administrative Agent of
such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if such Borrower were requesting a Borrowing of the
Type resulting from such
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election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a applicable form approved by the Administrative Agent and
signed by the applicable Borrower (or Holdings on its behalf).
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the Initial Borrowing Date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the requesting Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event
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of Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrowers, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a)
Unless previously terminated, Commitments shall terminate on the Maturity Date.
(b) The Borrowers may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 and (ii) the Borrowers shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the
Revolving Loans in accordance with Section 2.11, the sum of the Revolving
Exposures would exceed the total Commitments.
(c) The Borrowers shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by a
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by a Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by such Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The
Borrowers hereby unconditionally promise to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Maturity Date and (ii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of
the Maturity Date and the
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first date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least ten Business Days after such Swingline Loan is
made; provided that on each date that a Borrowing is made, the Borrowers shall
repay all Swingline Loans that were outstanding on the date such Borrowing was
requested.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrowers
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrowers shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Prepayment of Loans. (a) The Borrowers shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to the requirements of this Section.
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(b) In the event and on such occasion that the sum of the
Revolving Exposures exceeds the total Commitments, the Borrowers shall prepay
Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative Agent
pursuant to Section 2.05(i)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of Holdings, any Borrower or any Subsidiary in respect
of any Prepayment Event (but subject to the proviso set forth below), the
Borrower shall, not later than the second Business Day after such Net Proceeds
are received, in an aggregate amount equal to such Net Proceeds; provided that,
in the case of any sale, transfer or other disposition of any fiber or conduit
in the ordinary course of business under clause (a) of the definition of the
term Prepayment Event, if the Borrowers shall deliver to the Administrative
Agent a certificate of a Financial Officer to the effect that the Borrowers and
the Subsidiaries intend to apply the Net Proceeds from such event (or a portion
thereof specified in such certificate), within 180 days after receipt of such
Net Proceeds, to acquire Telecommunications Assets to be used in the Borrowers'
Telecommunications Business, and certifying that no Default has occurred and is
continuing, then no prepayment shall be required pursuant to this paragraph in
respect of the Net Proceeds in respect of such event (or the portion of such Net
Proceeds specified in such certificate, if applicable) except to the extent of
any such Net Proceeds therefrom that have not been so applied by the end of such
180 day period, at which time a prepayment shall be required in an amount equal
to such Net Proceeds that have not been so applied.
(d) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the relevant Borrower shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (e) of this Section.
(e) The relevant Borrowers shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a
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Swingline Loan, not later than 12:00 noon, New York City time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date, the principal amount of each Borrowing or portion thereof to be
prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a notice of
optional prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.08, then such notice
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice
(other than a notice relating solely to Swingline Loans), the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02, except as
necessary to apply fully the required amount of a mandatory prepayment. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.13.
SECTION 2.11. Fees. (a) The Borrowers agree to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Commitment Fee Rate on the average daily unused
amount of each Available Revolving Commitment of such Lender during the period
from and including the date hereof to but excluding the date on which such
Commitment terminates. Accrued commitment fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the date
on which the Commitments terminate, commencing on the first such date to occur
after the date hereof. For purposes of computing commitment fees, the Available
Revolving Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).
(b) The Borrowers agree to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Loans on the average daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the date hereof to but
excluding the later of the date on which
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such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall
accrue at the rate of 1/8% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the date hereof to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
date hereof; provided that all such fees shall be payable on the date on which
the Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrowers agree to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
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(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrowers
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Loans as provided in paragraph (a) of this
Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Loan prior to the end of the Revolving Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such
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Interest Period will not adequately and fairly reflect the cost to
such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrowers will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender's or the Issuing Bank's capital or on the
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capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Borrowers will pay
to such Lender or the Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Bank or such Lender's
or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrowers and shall be presumptive
evidence of the validity of such costs absent manifest error. The Borrowers
shall pay such Lender or the Issuing Bank, as the case may be, the amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Borrowers shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the Borrowers of the Change in Law giving
rise to such increased costs or reductions and of such Lender's or the Issuing
Bank's intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 270-day period referred to above shall be extended to include the
period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or
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prepay any Revolving Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice may be revoked under Section 2.10(f)
and is revoked in accordance therewith), or (d) the assignment of any Eurodollar
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrowers pursuant to Section 2.18, then, in any such
event, the Borrowers shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the Eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrowers and shall provide
presumptive evidence of the validity of such claim absent manifest error. The
Borrowers shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of
any obligation of any Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if any such Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrowers shall make such deductions and (iii) the Borrowers
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
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(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of such Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority; provided that any Indemnified Taxes or Other Taxes refunded to the
Administrative Agent, any Lender or the Issuing Bank by any Governmental
Authority because such Indemnified Taxes or Other Taxes were incorrectly or
illegally imposed shall, in turn, be promptly refunded to the applicable
Borrower to the extent that such Borrower indemnified such Administrative Agent,
Lender or Issuing Bank for such Indemnified Taxes or Other Taxes. A certificate
as to the amount of such payment or liability delivered to a Borrower by a
Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or
on behalf of a Lender or the Issuing Bank, shall be presumptive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by any Borrower to a Governmental Authority, such Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrowers are located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to Holdings (with a copy
to the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Borrowers as will permit such payments to be made
without withholding or at a reduced rate, provided that such Foreign Lender has
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received written notice from the Borrowers advising it of the availability of
such exemption or reduction and supplying all applicable documentation.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrowers shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.14,
2.15 or 2.16, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 3:00 p.m., New York City time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall be made in
dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
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(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by a Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrowers
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrowers consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrowers rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrowers
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Bank, as the case may be, the amount due. In such event,
if a Borrower has not in fact made such payment, then each of the Lenders or the
Issuing Bank, as the case may be, severally agrees to repay to the
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Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a)
If any Lender requests compensation under Section 2.14, or if a Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if
any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
applicable Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such
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assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Issuing Bank and Swingline Lender), which consent shall not unrea
sonably be withheld, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a material
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling such Borrower to
require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
Each of Holdings and each of the Borrowers represent and warrant
to the Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the
Borrowers and the other Restricted Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions to
be entered into by each Loan Party are within such Loan Party's powers and have
been duly authorized by all necessary corporate or other action and, if
required, stockholder or member action. This Agreement has been duly executed
and delivered by Holdings and each of the Borrowers and constitutes, and each
other Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of Holdings, such
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Borrowers or such Loan Party (as the case may be), enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except (i) such
as have been obtained or made and are in full force and effect and except
filings necessary to perfect Liens created under the Loan Documents and (ii)
those which could not reasonably be expected to result in a Material Adverse
Effect (b) will not violate any material applicable law or regulation or the
charter, by-laws or other organizational documents of Holdings, the Borrowers or
any of their Subsidiaries or any order of any Governmental Authority, (c) will
not violate or result in a default under any indenture, material agreement or
other material instrument binding upon Holdings, the Borrowers or any of their
Subsidiaries or their assets, or give rise to a right thereunder to require any
payment to be made by Holdings, the Borrowers or any of their Subsidiaries, and
(d) will not result in the creation or imposition of any Lien on any asset of
Holdings, the Borrowers or any of their Subsidiaries, except Liens created under
the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) Holdings has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal year ended December 31, 1999, reported on by KPMG LLC,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended June 30, 2000, certified by a Financial
Officer. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Holdings and
its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) Except as disclosed in the financial statements referred to
above or the notes thereto except for the Disclosed Matters, after giving effect
to the Transactions, none of Holdings, the Borrowers or any of the
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other Restricted Subsidiaries has, as of the date hereof, any material
contingent liabilities, unusual long-term commitments or unrealized losses.
(c) Since December 31, 1999, there has been no material adverse
change in the business, assets, operations, prospects, material agreements, or
condition, financial or otherwise, of Holdings, the Borrowers and the other
Restricted Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of Holdings, the Borrowers and
the other Restricted Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business,
except for Liens permitted by Section 6.02.
(b) Each of Holdings, the Borrowers and the other Restricted
Subsidiaries and owns, or is licensed to use, all trademarks, trade names,
copyrights, patents and other intellectual property material to its business,
and the use thereof by Holdings, the Borrowers and the other Restricted
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property
that is owned or leased by Holdings, the Borrowers or any of the other
Restricted Subsidiaries as of the date hereof.
(d) None of Holdings, the Borrowers or any of their respective
Subsidiaries owns any real property other than regeneration sites, the aggregate
fair market value of which does not exceed $5,000,000.
SECTION 3.06. Litigation and Environmental Matters. (a) There are
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of Holdings or any Borrower,
threatened against or affecting Holdings, the Borrowers or any of the other
Restricted Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that challenge the validity,
binding nature or enforceability of any of the Loan Documents or the
Transactions.
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(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect, none of Holdings, the
Borrowers nor any of the other Restricted Subsidiaries (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim
with respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
(c) Since the date of this Agreement, there has been no change in
the status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or could reasonably be expected to have, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of
Holdings, the Borrowers and the other Restricted Subsidiaries is in compliance
with all laws, regulations and orders of any Governmental Authority applicable
to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
Holdings, nor the Borrowers nor any of the other Restricted Subsidiaries is (a)
an "investment company" or controlled by an entity that is an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" or controlled by an entity that is a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of Holdings, the Borrowers and their
Restricted Subsidiaries has timely filed or caused to be filed all Tax returns
and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) any Taxes that are being
contested in good faith by appropriate proceedings and for which Holdings or
such Subsidiary, as applicable, has set aside on its books adequate reserves or
(b) to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
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SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of all such underfunded
Plans.
SECTION 3.11. Disclosure. Holdings has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which
Holdings or any of the Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. None of the reports, financial
statements, certificates or other information furnished by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or any other Loan Document or delivered hereunder
or thereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, Holdings and the Borrowers represent only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 3.12. Subsidiaries. (a) Schedule 3.12 sets forth the name
of, and the ownership interest of Holdings in, each Subsidiary and identifies
each Subsidiary that is a Subsidiary Loan Party, in each case as of the date
hereof.
(b) All Licenses which are directly or indirectly held by
Holdings, the Borrowers or any other Restricted Subsidiary are owned
beneficially and of record by a License Subsidiary, free and clear of all Liens
(other than Liens under the Security Documents, Liens imposed by
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the Communications Act or Permitted Encumbrances imposed by operation of law).
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description
of all insurance maintained by or on behalf of Holdings, the Borrowers and the
other Restricted Subsidiaries as of the date hereof. As of the date hereof, all
premiums in respect of such insurance have been paid. Holdings and the Borrowers
believe that the insurance maintained by or on behalf of Holdings, the Borrowers
and the other Restricted Subsidiaries is adequate.
SECTION 3.14. Labor Matters. As of the date hereof, there are no
strikes, lockouts or slowdowns against Holdings, the Borrowers or any of the
other Restricted Subsidiaries pending or, to the knowledge of Holdings or any
Borrowers, threatened. The hours worked by and payments made to employees of
Holdings and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters. All payments due from Holdings, the Borrowers or any
other Restricted Subsidiary, or for which any claim may be made against
Holdings, the Borrowers or any other Restricted Subsidiary, on account of wages
and employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of Holdings, the Borrowers or such other
Restricted Subsidiary. The consummation of the Transactions will not give rise
to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which Holdings, the Borrowers or
any other Restricted Subsidiary is bound.
SECTION 3.15. Intellectual Property. Each of Holdings, the
Borrowers and the other Restricted Subsidiaries owns, or is licensed to use, all
intellectual property that is necessary for the conduct of its business as
currently conducted except for any failure to so own or license intellectual
property which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. No claim has been asserted to the
knowledge of Holdings or any Borrower and is pending against Holdings, the
Borrowers or any other Restricted Subsidiary challenging or questioning the use
of any intellectual property by it or the validity or effectiveness of any
intellectual property used by it, except for any claims, which, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. The use of intellectual property by Holdings, the Borrowers or any other
Restricted
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Subsidiary does not to the knowledge of Holdings or any Borrower infringe on the
rights of any person in any material respect and in any manner which could
reasonably be expected to have a Material Adverse Effect.
SECTION 3.16. Security Interests. (a) When executed and
delivered, the Pledge Agreement will be effective to create in favor of the
Agent for the ratable benefit of the Secured Parties a valid and enforceable
security interest in the Collateral (as defined in the Pledge Agreement) and,
when the portion of the Collateral constituting certificated securities (as
defined in the Uniform Commercial Code) is delivered to the Agent thereunder
together with instruments of transfer duly endorsed in blank, the Pledge
Agreement shall constitute a fully perfected first priority Lien on, and
security interest in, all right, title and interest of the pledgors thereunder
in such Collateral, prior and superior in right to any other Person.
(b) The Security Agreement is effective to create in favor of the
Agent for the ratable benefit of the Secured Parties a valid and enforceable
security interest in the Collateral (as defined in the Security Agreement) and,
when financing statements in appropriate form are filed in the offices specified
in the Perfection Certificate, the Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in such Collateral, to the extent perfection can be
obtained by filing Uniform Commercial Code financing statements, other than the
Intellectual Property (as defined in the Security Agreements), in which a
security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person to the
extent perfection can be obtained by filing Uniform Commercial Code financing
statements, other than with respect to the rights of Persons pursuant to
Permitted Encumbrances.
(c) When the Security Agreement is filed in the United States
Patent and Trademark Office and the United States Copyright Office, the security
interest created thereunder shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Intellectual Property (as defined in such Security Agreement) in which a
security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the
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United States Patent and Trademark Office or the United States Copyright Office,
as applicable, in each case prior and superior in right to any other Person,
other than with respect to the rights of Persons pursuant to Liens expressly
permitted by Section 6.02 (it being understood that subsequent recordings in the
United States Patent and Trademark Office and the United States Copyright Office
may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the Loan Parties after the date hereof).
SECTION 3.17. FCC Compliance. (a) Holdings, the Borrowers and
each other Restricted Subsidiary are in compliance in all material respects with
the Communications Act, except where the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.
(b) To the knowledge of Holdings or any Borrower, there is no
investigation, notice of apparent liability, violation, forfeiture or other
order or complaint issued by or before the FCC, or of any other proceedings of
or before the FCC, affecting Holdings, any Borrower or any Subsidiary which
could reasonably be expected to have a Material Adverse Effect.
(c) No event has occurred which (i) results in, or after notice
or lapse of time or both would result in, revocation, suspension, adverse
modifications, non-renewal, impairment, restriction or termination of, or order
of forfeiture with respect to, any License or (ii) adversely affects in any
material respect or could reasonably be expected in the future to adversely
affect in any material respect any of the rights of Holdings, the Borrowers or
any other Restricted Subsidiary under any License held by Holdings, the
Borrowers or such other Restricted Subsidiary which, in each case of clause (i)
and (ii) above could reasonably be expected to result in a Material Adverse
Effect.
(d) Holdings, the Borrowers and each other Restricted Subsidiary
have duly filed in a timely manner all material filings, reports, applications,
documents, instruments and information required to be filed by it under the
Communications Act, and all such filings were when made true, correct and
complete in all respects except where the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 3.18. Solvency. Immediately after the consummation of the
Transactions to occur on the date
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hereof and immediately following the making of each Loan made on the Initial
Borrowing Date and after giving effect to the application of the proceeds of
such Loans, (a) the fair value of the assets of each Loan Party, at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the property of each Loan
Party will be greater than the amount that will be required to pay the probable
liability of its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
each Loan Party will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each Loan Party will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted following the date hereof.
SECTION 3.19. Absence of Non-Permitted Obligations. None of the
License Subsidiaries has any obligations or liabilities other than (a) under the
Guarantee Agreement and the Security Agreement, (b) under the Special Purpose
Subsidiary Funding Agreement and (c) franchise and corporate taxes incurred in
the ordinary course in order for it to continue to maintain its existence.
ARTICLE IV
Conditions
SECTION 4.01. Initial Borrowing Date. The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit
hereunder shall be subject to the satisfaction (or waiver in accordance with
Section 9.02) of each of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to
the Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Agent
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and the Lenders and dated the Initial Borrowing Date) of each of
(i) Xxxxxxx, Xxxxxxx & Xxxxxxx, P.C., counsel for Holdings and the
Borrowers, and (ii) Xxxxxxx Berlin Shereff Xxxxxxxx, L.L.P., special
New York and communications counsel, in the case of each such opinion
required by this paragraph, in form and substance satisfactory to the
Administrative Agent and covering such matters relating to the Loan
Parties, the Loan Documents or the Transactions as the Required Lenders
shall reasonably request. Holdings and each Borrower hereby request
such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, the Loan
Documents or the Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date and signed by a Financial Officer of
Holdings, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Initial Borrowing
Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses (including fees, charges and disbursements
of counsel) required to be reimbursed or paid by any Loan Party
hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been
satisfied and the Administrative Agent shall have received a completed
Perfection Certificate dated the Initial Borrowing Date and signed by
an executive officer in the legal department and a Financial Officer of
Holdings and each Borrower, together with all attachments contemplated
thereby, including the results of a search of the Uniform Commercial
Code (or equivalent) filings made with respect to the Loan Parties in
the jurisdictions
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contemplated by the Perfection Certificate and copies of the
financing statements (or similar documents) disclosed by such search
and evidence reasonably satisfactory to the Administrative Agent that
the Liens indicated by such financing statements (or similar documents)
are permitted by Section 6.02 or have been released.
(g) The Administrative Agent shall have received evidence that
the insurance required by Section 5.07 and the Security Documents is in
effect.
(h) The Lenders shall have received a 10-year business plan of
Holdings with quarterly projections through December 31, 2001.
(i) Holdings shall be in pro forma compliance with the financial
covenants in Section 6.12.
(j) After giving effect to the Transactions, (i) no Default or
Event of Default shall occur and (ii) no liens shall arise under any
debt instruments or other agreements of Holdings, any Borrower or any
Subsidiary except under the Loan Documents and as otherwise permitted
hereunder.
The Administrative Agent shall notify Holdings, each Borrower and the Lenders of
the Initial Borrowing Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make a Loan (not including any continuation or conversion of any Loan) on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or
extend any Letter of Credit, is subject to receipt of the request therefor in
accordance herewith and to the satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable except to the extent
any such representation and warranty is made as of a date certain in
which case, as of such date.
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(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, (i) no Default or Event of Default
shall have occurred and be continuing and (ii) Holdings shall be in pro
forma compliance with the covenants set forth in Section 6.12.
Each Borrowing (except any continuation or conversion) and each issuance,
amendment, renewal or extension of a Letter of Credit shall be deemed to
constitute a representation and warranty by Holdings and each Borrower on the
date thereof as to the matters specified in paragraphs (a) and (b) of this
Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Holdings and the
Borrowers covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information.
Holdings will furnish to the Administrative Agent on behalf of the Lenders:
(a) within 120 days after the end of each fiscal year of
Holdings, an audited consolidated balance sheet of Holdings and its
consolidated Subsidiaries and related statements of operations,
stockholders' equity and cash flows of Holdings and its consolidated
Subsidiaries as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on by KPMG LLC or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of Holdings and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
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(b) within 50 days after the end of each of the first three
fiscal quarters of each fiscal year of Holdings, a consolidated balance
sheet of Holdings and its consolidated Subsidiaries and related
statements of operations, stockholders' equity and cash flows of
Holdings and its consolidated Subsidiaries as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of Holdings and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) within 30 days after the end of each of the first two fiscal
months of each fiscal quarter of Holdings, its consolidated balance
sheet and related statements of operations, stockholders' equity and
cash flows as of the end of and for such fiscal month and the then
elapsed portion of the fiscal year, all certified by one of its
Financial Officers as presenting in all material respects the financial
condition and results of operations of Holdings and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(d) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of
Holdings (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Section
6.12 and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of Holdings audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under
clause (a) above, a certificate of
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the accounting firm that reported on such financial statements
stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules
or guidelines);
(f) at least 30 days after the commencement of each fiscal year
of Holdings, (i) a detailed consolidated budget for such fiscal year
(including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and
for the four quarters of such fiscal year and setting forth the
assumptions used for purposes of preparing such budget) and, promptly
when available, any significant revisions of such budget and (ii) a
projected balance sheet and related statements of projected operations
and cash flows covering the period ending on the Maturity Date and,
promptly when available, any significant revisions thereto;
(g) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by Holdings or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities
exchange, or distributed by Holdings to its shareholders generally, as
the case may be; and
(h) promptly following any reasonable request therefor, such
other information regarding the operations, business affairs and
financial condition of Holdings or any Subsidiary, or compliance with
the terms of any Loan Document, as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.02. Notices of Material Events. Holdings and the
Borrowers will furnish to the Administrative Agent and each Lender prompt
written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting Holdings, the Borrowers or any Affiliate thereof that, if
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adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of Holdings and the Subsidiaries in an
aggregate amount exceeding $20,000,000;
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect; and
(e) any amendment, waiver or other modification of, or any breach
of, the Merger Agreement.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of Holdings setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) Holdings and
the Borrowers will furnish to the Administrative Agent prompt written notice of
any change (i) in any Loan Party's corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of any Loan Party's chief executive office, its
principal place of business, any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
owned by it is located (including the establishment of any such new office or
facility), (iii) in any Loan Party's identity or corporate structure or (iv) in
any Loan Party's Federal Taxpayer Identification Number. Each of Holdings and
the Borrowers agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Agent to
continue at all times following such change to have a valid, legal and perfected
security interest in all the Collateral. Each of Holdings and the Borrowers also
agrees promptly to notify the Administrative Agent if any material portion of
the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, Holdings shall deliver to the Agent a certificate of a Financial
Officer and the general counsel or assistant general counsel of
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Holdings (i) setting forth the information required pursuant to Section 2 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate delivered on the
Initial Borrowing Date or the date of the most recent certificate delivered
pursuant to this Section and (ii) certifying that all Uniform Commercial Code
financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations, including all refilings,
rerecordings and reregistrations, containing a description of the Collateral
have been filed of record in each governmental, municipal or other appropriate
office in each jurisdiction identified pursuant to clause (i) above to the
extent necessary to protect and perfect the security interests under the
applicable Security Documents for a period of not less than 18 months after the
date of such certificate (except as noted therein with respect to any
continuation statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. Each of Holdings
and the Borrowers will, and will cause each of the other Restricted Subsidiaries
to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence, the Licenses and all other rights,
licenses (including the Licenses), permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business;
provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03 or sale of assets
permitted under Section 6.06.
SECTION 5.05. Payment of Obligations. Each of Holdings and the
Borrowers will, and will cause each of the other Restricted Subsidiaries to, pay
its Indebtedness and other obligations, including Tax liabilities, before the
same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
Holdings, such Borrower or such Restricted Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP, (c) such contest
effectively suspends collection of the contested obligation and the enforcement
of any Lien securing such obligation and (d) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.06. Maintenance of Properties. Each of Holdings and the
Borrowers will, and will cause each of
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the other Restricted Subsidiaries to, keep and maintain all property material to
the conduct of its business in good working order and condition, ordinary wear
and tear excepted.
SECTION 5.07. Insurance. (a) Each of Holdings and the Borrowers
will, and will cause each of the other Restricted Subsidiaries to, maintain,
with financially sound and reputable insurance companies insurance in such
amounts (with no greater risk retention) and against such risks as are
customarily maintained by companies of established repute engaged in the same or
similar businesses and Holdings will furnish to the Administrative Agent, upon
its request, information in reasonable detail as to the insurance so maintained.
SECTION 5.08. Casualty and Condemnation. Holdings (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any portion of any Collateral or the
commencement of any action or proceeding for the taking of any Collateral or any
part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding and (b) will ensure that the Net Proceeds of
any such event (whether in the form of insurance proceeds, condemnation awards
or otherwise) are collected and applied in accordance with the applicable
provisions of this Agreement and the Security Documents.
SECTION 5.09. Books and Records; Inspection and Audit Rights.
Each of Holdings and the Borrowers will, and will cause each of the other
Restricted Subsidiaries to, keep proper books of record and account in which
full, true and correct entries are made of all dealings and transactions in
relation to its business and activities. Each of Holdings and the Borrowers
will, and will cause each of the Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested; provided that, prior to an Event of Default and
after any Event of Default has been cured or waived, each Lender (except the
Administrative Agent) shall exercise its rights under this Section 5.09 at its
expense and each such visit
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shall not be disruptive to the operations of Holdings, the Borrowers and the
other Restricted Subsidiaries.
SECTION 5.10. Compliance with Laws. Each of Holdings and the
Borrowers will, and will cause each of the other Restricted Subsidiaries to,
comply with all laws (including the Communication Act), rules, regulations and
orders of any Governmental Authority applicable to it or its property (including
obligations under Licenses), except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. The proceeds
of the Revolving Loans and Swingline Loans and the issuance of Letters of Credit
will be used by the Borrowers only (a) to fund the working capital needs of the
Borrowers, including network buildout requirements, joint venture capital
contributions and acquisitions and (b) for general corporate purposes of the
Borrowers. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X.
SECTION 5.12. Additional Subsidiaries. If any additional
Subsidiary is formed or acquired after the date hereof, Holdings will, within
three Business Days after such Subsidiary is formed or acquired notify the
Administrative Agent and the Lenders thereof and will, within such three
Business Days cause the Collateral and Guarantee Requirement to be satisfied
with respect to such Subsidiary (if it is a Subsidiary Loan Party) and with
respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or
on behalf of any Loan Party.
SECTION 5.13. Further Assurances. (a) Holdings will, and will
cause each Subsidiary Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the expense of the Loan Parties.
Holdings and the Borrowers also agree to provide to the
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Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Loan Documents.
(b) If any material assets are acquired by Holdings or any
Subsidiary Loan Party after the date hereof (other than assets constituting
Collateral under the Security Agreements that become subject to the Lien of the
applicable Security Agreements upon acquisition thereof), Holdings will notify
the Administrative Agent and the Lenders thereof, and Holdings will cause such
assets to be subjected to a Lien securing the Secured Obligations and will take,
and cause the Subsidiary Loan Parties to take, such actions as shall be
necessary or reasonably requested by the Administrative Agent to grant and
perfect such Liens, including actions described in paragraph (a) of this
Section, all at the expense of the Loan Parties.
(c) As promptly as practicable, and in any event within 30 days
after the acquisition or grant thereof, Holdings shall cause all Licenses
acquired by Holdings, the Borrowers or any other Restricted Subsidiary to be
transferred to a License Subsidiary, free and clear of all Liens (other than
Liens under the Security Documents and those imposed by the Communications Act).
SECTION 5.14. Interest Rate Protection. At all times from the
date hereof until the Maturity Date, Holdings will take such actions necessary
in order to fix or limit the interest cost to Holdings with respect to at least
50% of the outstanding Consolidated Total Debt of Holdings, the Borrowers and
the other Restricted Subsidiaries (including fixed rate indebtedness).
SECTION 5.15. Merger Agreement. Neither Holdings nor either
Borrower will, nor will any of them cause any relevant Subsidiary to, breach any
of its obligations under the Merger Agreement (without giving effect to any
amendment or waiver thereto that is adverse to the Lenders and not reasonably
satisfactory to the Lenders) in a manner involving an intentional
misrepresentation, fraud, bad faith or wilful misconduct.
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ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, each of Holdings and the Borrowers
covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a)
Holdings and the Borrowers will not, and will not permit any Restricted
Subsidiary to, create, incur, assume or permit to exist any Indebtedness or
Attributable Debt in respect of sale lease-back transactions, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness under the Holdings Senior Notes;
(iii) Indebtedness existing on the date hereof and set forth in
Schedule 6.01, and any extensions, renewals or replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted
average life thereof;
(iv) Indebtedness of Holdings to any Subsidiary and of any
Subsidiary to Holdings or any other Subsidiary; provided that
Indebtedness of any Subsidiary that is not a Loan Party to Holdings or
any Subsidiary Loan Party shall be subject to Section 6.05;
(v) Guarantees by Holdings of Indebtedness of any Subsidiary and
by any Subsidiary of Indebtedness of any other Subsidiary; provided
that Guarantees by Holdings or any Subsidiary Loan Party of
Indebtedness of any Subsidiary that is not a Loan Party shall be
subject to Section 6.05;
(vi) Indebtedness of Holdings, the Borrowers or any other
Restricted Subsidiary incurred to finance the acquisition,
construction, installation, development or improvement of any fixed or
capital
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assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof and any extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted
average life thereof; provided that (A) such Indebtedness is incurred
prior to or within 90 days after such acquisition or the completion of
such construction, installation, development or improvement and (B) the
aggregate principal amount of Indebtedness permitted by this clause
(vi) shall not exceed $25,000,000 at any time outstanding;
(vii) pre-existing Indebtedness of any Person that becomes a
Restricted Subsidiary after the date hereof; provided that (A) such
Indebtedness exists at the time such Person becomes a Restricted
Subsidiary and is not created in contemplation of or in connection with
such Person becoming a Restricted Subsidiary and (B) the aggregate
principal amount of Indebtedness permitted by this clause (vii) shall
not exceed $10,000,000 at any time outstanding;
(viii) other unsecured Indebtedness of Holdings or any
Attributable Debt of Holdings in respect of sale lease-back
transactions, in an aggregate principal amount for all such
Indebtedness outstanding (including any refinancings of such
Indebtedness) not to exceed at the time of incurrence of any such
Indebtedness $5,000,000;
(ix) Indebtedness of Holdings, the Borrowers and the other
Restricted Subsidiaries pursuant to Hedging Agreements entered into to
fix the effective rate of interest on the Loans or other Indebtedness,
provided such transactions are entered into to hedge actual interest
rate exposures and not for the purpose of speculation; and
(x) Indebtedness of any joint venture in which Holdings, the
Borrowers or any other Restricted Subsidiary owns an Equity Interest
not to exceed $10,000,000.
For purposes of determining any particular amount of Indebtedness under this
Section 6.01, in the event an item
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of Indebtedness meets the criteria of more than one of the types of Indebtedness
described in the above clauses, Holdings, in its sole discretion, may classify
such item of Indebtedness and only be required to include the amount and type of
such Indebtedness in one of such clauses.
(b) The Borrowers will not, nor will they permit any other
Restricted Subsidiary to, issue any preferred stock or be or become liable in
respect of any obligation (contingent or otherwise) to purchase, redeem, retire,
acquire or make any other payment in respect of any shares of Capital Stock of
Holdings, any Borrower or any other Restricted Subsidiary or any option, warrant
or other right to acquire any such shares of capital stock except upon the
exercise of employee stock options.
SECTION 6.02. Liens. Holdings and the Borrowers will not, and
will not permit any Restricted Subsidiary to, create, incur, assume or permit to
exist any Lien on any property or asset now owned or hereafter acquired by it,
or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of Holdings, the
Borrowers or and other Restricted Subsidiary existing on the date
hereof and set forth in Schedule 6.02; provided that (i) such Lien
shall not apply to any other property or asset of Holdings, the
Borrowers or any other Restricted Subsidiary and (ii) such Lien shall
secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by Holdings, the Borrowers or any other Restricted
Subsidiary or on any property or asset of any Person that becomes a
Restricted Subsidiary in connection with an acquisition permitted by
Section 6.05 hereof after the date hereof which Lien exists prior to
the time such Person becomes a Subsidiary; provided that (A) such Lien
is not created in contemplation of or in connection with such
acquisition or such Person becoming a Restricted Subsidiary, as the
case may be, (B) such Lien shall not apply to any other property or
assets of Holdings, the Borrowers or any other
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Restricted Subsidiary and (C) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the
date such Person becomes a Restricted Subsidiary, as the case may be
and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(v) Liens, including pursuant to any Capital Lease Obligation, on
fixed or capital assets acquired, constructed, installed developed or
improved by Holdings, the Borrowers or any other Restricted Subsidiary;
provided that (A) such security interests secure Indebtedness permitted
by clause (vi) of Section 6.01(a), (B) such security interests and the
Indebtedness secured thereby are incurred prior to or within 90 days
after such acquisition or the completion of such construction or
improvement, installation or development, (C) the Indebtedness secured
thereby does not exceed 100% of the cost of acquiring, constructing,
installing developing or improving such fixed or capital assets and (D)
such security interests shall not apply to any other property or assets
of Holdings, the Borrowers or any other Restricted Subsidiary.
SECTION 6.03. Fundamental Changes. (a) Other than pursuant to the
Merger Agreement, neither Holdings nor any Borrower will, nor will any of them
permit any Restricted Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
Person (other than a Borrower or an Unrestricted Subsidiary) may merge into
Holdings in a transaction in which Holdings is the surviving corporation, (ii)
any Person (other than an Unrestricted Subsidiary) may merge into any Restricted
Subsidiary in a transaction in which the surviving entity is a Wholly Owned
Subsidiary and, in the case of any such transaction involving a Loan Party, a
Loan Party and (iii) any Subsidiary may liquidate or dissolve if Holdings
determines in good faith that such liquidation or dissolution is in the best
interests of Holdings and is not materially disadvantageous to the Lenders;
provided that any such merger involving a Person that is not a Wholly Owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.05.
(b) Holdings will not, and will not permit the Borrowers or any
other Restricted Subsidiary to, engage to
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any material extent in any business other than a Telecommunications Business or
any businesses of the type conducted by Holdings, the Borrowers and the
Restricted Subsidiaries on the date of execution of this Agreement and
businesses reasonably related thereto.
(c) Except for the limited businesses engaged in on the date
hereof, Holdings will not engage in any business or activity other than the
ownership of all the outstanding shares of capital stock of the Borrowers and
the Subsidiaries and activities incidental thereto. Except as necessary to
continue the limited businesses engaged in by it on the date hereof, Holdings
will not own or acquire any assets (other than shares of capital stock of the
Borrowers and the Subsidiaries, cash and Permitted Investments) or incur any
liabilities (other than liabilities under the Loan Documents, liabilities
imposed by law, including tax liabilities, Indebtedness permitted under Section
6.01 and other liabilities incidental to its existence and permitted business
and activities).
(d) Other than pursuant to the Merger Agreement, Holdings will
not permit any Restricted Subsidiary to merge or consolidate with any other
Person, issue or sell shares of its Capital Stock or take any other action if as
a result thereof such Restricted Subsidiary would cease to be a Wholly Owned
Subsidiary of Holdings.
SECTION 6.04. Sale and Lease-Back Transactions. Holdings and the
Borrowers will not, nor will they permit any other Restricted Subsidiary to,
enter into any arrangement, directly or indirectly, with any Person whereby it
shall sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for substantially the
same purpose as the property being sold or transferred, except to the extent all
Capital Lease Obligations, Attributable Debt and Liens associated with such sale
and lease-back transaction are permitted by Sections 6.01 and 6.02 (treating the
property subject thereto as being subject to a Lien securing the related
Attributable Debt, in the case of a sale and lease-back not accounted for as a
Capital Lease Obligation).
SECTION 6.05. Investments, Loans, Advances, Guarantees and
Acquisitions. Holdings and the Borrowers will not, and will not permit any of
the other Restricted Subsidiaries to make or permit to exist any Investment in
any other Person, or purchase or otherwise acquire (in one
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transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted Investments;
(b) Investments existing on the date hereof and set forth on
Schedule 6.05;
(c) Investments by Holdings and the Restricted Subsidiaries in
the Capital Stock or capital of Subsidiaries that are Loan Parties;
provided that such shares of Capital Stock shall be pledged pursuant to
the Pledge Agreement;
(d) loans or advances made by Holdings to any Subsidiary (other
than any Foreign Subsidiary) and made by any Subsidiary to Holdings or
any other Subsidiary (other than any Foreign Subsidiary), and
Guarantees permitted by Section 6.01(v); provided that (i) such loans
and advances shall be evidenced by a promissory note pledged pursuant
to the Pledge Agreement and (ii) the aggregate amount of loans,
advances or Guarantees made by Loan Parties to Subsidiaries that are
not Loan Parties shall not exceed $10,000,000 at any one time
outstanding;
(e) Permitted Business Acquisitions; provided that (A) such
acquisitions are effected as stock acquisitions in which the
consideration used to make such acquisitions consists of common stock
of Holdings or Non-Cash Pay Preferred Stock of Holdings and (B) to the
extent not effected in accordance with clause (A), the consideration
for such Permitted Business Acquisitions is in an aggregate cumulative
amount not at any time in excess of $10,000,000;
(f) Investments by Holdings, the Borrowers or any other
Restricted Subsidiary in joint ventures, Foreign Subsidiaries and other
Persons that are not Loan Parties, in an aggregate cumulative amount
not at any time in excess of $10,000,000;
(g) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business; and
(h) Investments received as a result of asset sales permitted
under this Agreement.
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SECTION 6.06. Asset Sales. Holdings and the Borrowers will not,
and will not permit any of any other Restricted Subsidiaries to, sell, transfer,
lease or otherwise dispose of any asset, including any Capital Stock, nor will
Holdings or the Borrowers permit any of the Restricted Subsidiaries to issue any
additional shares of its Capital Stock or other ownership interest in such
Restricted Subsidiary, except:
(a) sales of inventory (including dark fiber and conduits), used
or surplus equipment and Permitted Investments in the ordinary course
of business;
(b) sales, transfers and dispositions to Holdings or a
Subsidiary; provided that any such sales, transfers or dispositions
involving a Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.09; and
(c) sales, transfers and dispositions of assets that are not
permitted by any other clause of this Section; provided that the Net
Proceeds therefrom are utilized by Holdings or a Subsidiary in
accordance with the provisions of Sections 2.10 and 6.05 to the extent
required thereby to acquire Telecommunications Assets, effect Permitted
Business Acquisitions or repay Loans;
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than sales or transfers among Loan Parties) shall be made for fair
market value and solely for consideration at least 50% of which consists of
cash.
SECTION 6.07. Hedging Agreements. Holdings and the Borrowers will
not, and will not permit any of the other Restricted Subsidiaries to, enter into
any Hedging Agreement, other than (a) Hedging Agreements required by Section
5.14 and (b) Hedging Agreements entered into in the ordinary course of business
to hedge or mitigate risks to which Holdings or any Subsidiary is exposed in the
conduct of its business or the management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of
Indebtedness. (a) Neither Holdings nor the Borrowers will, nor will they permit
any other Restricted Subsidiary to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except (i) Holdings may declare
and pay dividends with respect to its Capital Stock payable solely in additional
shares of its common stock, (ii) Restricted Subsidiaries may declare and
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pay dividends ratably to holders of their Capital Stock (other than Holdings),
(iii) Holdings may make Restricted Payments, not exceeding $5,000,000 in any
fiscal year of Holdings pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of Holdings and the Restricted
Subsidiaries, (iv) Restricted Subsidiaries may pay dividends to Holdings at such
times and in such amounts consistent with past practice as shall be necessary to
permit Holdings to pay taxes and administrative expenses attributable to the
operations of the Subsidiaries; provided that such payments shall not exceed
amounts paid in the ordinary course of business prior to the date hereof and (v)
Restricted Subsidiaries may pay dividends to Holdings in an aggregate amount
sufficient to fund the payment of interest in respect of the Indebtedness under
the Holdings Indentures, which interest is due or becomes due within 30 days
from the date of payment of each such dividend, provided, however, that no
Default exists at the time such dividends are paid (provided further, however,
that such dividends shall not be prohibited hereby for more than 180 days in any
consecutive 360-day period unless either an Event of Default consisting of a
payment default exists hereunder or the maturity of the Loans has been
accelerated), and (vi) provided that no Default exists or would result
therefrom, Restricted Subsidiaries may pay dividends to Holdings at such times
and in such amounts as are necessary for Holdings to make timely payment when
due in respect of Indebtedness of Holdings permitted by Section 6.01 other than
Indebtedness under the Holdings Indentures; provided that payments in respect of
the Holdings Indentures shall be governed solely by clause (v) immediately
preceding.
(b) Neither Holdings nor the Borrowers will, nor will they permit
any other Restricted Subsidiary to make or agree to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on any Indebtedness
or any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Indebtedness, except:
(i) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness, other than
payments in respect of the subordinated debt prohibited by the
subordination provisions thereof; and
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(ii) refinancings of Indebtedness to the extent permitted by
Section 6.01.
(c) Neither Holdings nor the Borrowers will, nor will they permit
any other Restricted Subsidiary to, enter into or be party to, or make any
payment under, any Synthetic Purchase Agreement unless (i) in the case of any
Synthetic Purchase Agreement related to any Equity Interest, the payments
required to be made by the Borrower or any Restricted Subsidiaries are limited
to amounts permitted to be paid under this Section 6.08, (ii) in the case of any
Synthetic Purchase Agreement related to any Restricted Indebtedness, the
payments required to be made by the Borrower or any Restricted Subsidiaries
thereunder are limited to the amount permitted under this Section 6.08 and (iii)
in the case of any Synthetic Purchase Agreement, the obligations of the Borrower
and the Subsidiaries thereunder are subordinated to the Secured Obligations on
terms satisfactory to the Administrative Agent.
SECTION 6.09. Transactions with Affiliates. Neither Holdings nor
the Borrowers will, nor will they permit any Restricted Subsidiary to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that and are at prices and on terms and conditions
not less favorable to Holdings, such Borrower or such Restricted Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among Holdings and the Subsidiary Loan Parties not
involving any other Affiliate and (c) any Restricted Payment permitted by
Section 6.08.
SECTION 6.10. Restrictive Agreements. Neither Holdings nor any of
the Borrowers will, nor will they permit any Restricted Subsidiary to, directly
or indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of Holdings, the Borrowers or any Restricted Subsidiary to create, incur
or permit to exist any Lien upon any of its property or assets, or (b) the
ability of any Restricted Subsidiary to pay dividends or other distributions
with respect to any shares of its Capital Stock or to make or repay loans or
advances to Holdings or any other Restricted Subsidiary or to Guarantee
Indebtedness of Holdings or any other Restricted Subsidiary; provided that (i)
the foregoing shall not apply to restrictions and conditions imposed by law or
by any Loan Document or by the Holdings Indentures,
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(ii) the foregoing shall not apply to restrictions and conditions existing on
the date hereof identified on Schedule 6.10 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases, rights of way and franchises
restricting the assignment thereof.
SECTION 6.11. Amendment of Material Documents. Neither Holdings
nor any of the Borrowers will, nor will they permit any Restricted Subsidiary
to, amend, modify or waive any of its rights under (a) the Holdings Indentures
or (b) its certificate of incorporation, by-laws or other organizational
documents, in each case in a manner adverse in any significant respect to the
interests of Lenders.
SECTION 6.12. Financial Covenants. Holdings and the Borrowers
will not:
(a) Minimum Access Lines in Service. Permit the Access Lines in
Service as of any of the dates set forth below to be less than the minimum
amount indicated opposite to such date:
Date Amount
---- ------
December 31, 2000 135,000
March 31, 2001 150,000
(b) Consolidated Senior Secured Debt to Contributed Capital.
Permit the ratio of Consolidated Senior Secured Debt to Contributed Capital on
any date during any period set forth below to exceed the ratio set forth below
opposite such period:
Period Ratio
------ -----
October 1, 2000 through
December 31, 2000 0.50 to 1.0
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January 1, 2001 through
March 31, 2001 0.79 to 1.0
(c) Minimum Consolidated Revenue. Permit Consolidated Revenue for
any period set forth below, to be less than the amount set forth below opposite
such period:
Period Amount
------ ------
October 1, 2000 through
December 31, 2000 $38,000,000
January 1, 2001 through
March 31, 2001 $45,000,000
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(d) EBITDA. Permit Consolidated EBITDA during any period set
forth below to be less than the amount set forth below opposite such period:
Period Amount
------ ------
October 1, 2000 through
December 31, 2000 $(30,000,000)
January 1, 2001 through
March 31, 2001 $(25,000,000)
SECTION 6.13. Designation of Unrestricted Subsidiaries.(a)
Holdings may not designate any Restricted Subsidiary as an Unrestricted
Subsidiary and, notwithstanding any other provision hereof, may not designate
any other Subsidiary as an Unrestricted Subsidiary (a "Designation") without the
prior written consent of each Lender.
Neither Holdings, nor the Borrowers nor any other Restricted Subsidiary shall at
any time (x) provide a Guarantee of any Indebtedness of any Unrestricted
Subsidiary, (y) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary or (z) be directly or indirectly liable for any other
Indebtedness which provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon (or cause such Indebtedness or the
payment thereof to be accelerated, payable or subject to repurchase prior to its
final scheduled maturity) upon the occurrence of a default with respect to any
other Indebtedness that is Indebtedness of an Unrestricted Subsidiary, except in
the case of clause (x) or (y) to the extent permitted under Section 6.01 and
Section 6.05 hereof. Each Designation shall be irrevocable, and no Unrestricted
Subsidiary may become a Restricted Subsidiary, be merged with or into Holdings,
the Borrower or any other Restricted Subsidiary or liquidate into or transfer
substantially all its assets to Holdings, the Borrower or any other Restricted
Subsidiary.
SECTION 6.14. Liabilities of License Subsidiaries. Neither
Holdings nor any Borrower will permit any License Subsidiary to incur, assume or
permit to exist any liabilities (other than under the Guarantee Agreement and
the Security Agreement, the Communications Act and taxes and other liabilities
incurred in the ordinary course in order to maintain its existence) or to
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engage in any business or activities other than the holding of Licenses.
SECTION 6.15. Evidence of Intercompany Indebtedness. Neither
Holdings or any Borrower will permit any intercompany indebtedness of any Loan
Party to be evidenced by a promissory note or any other instrument.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or
any reimbursement obligation in respect of any LC Disbursement when and
as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable by it under this Agreement or any other
Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of Holdings, any Borrower or any other Restricted Subsidiary in
or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant
to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) Holdings or any Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with
respect to the existence of Holdings or any Borrower) or 5.11 or in
Article VI;
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(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 15 days after notice thereof
from the Administrative Agent to Holdings (which notice will be given
at the request of any Lender);
(f) Holdings, any Borrower or any other Restricted Subsidiary
shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and
as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of Holdings, any Borrower or
any Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, any Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 90
days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) Holdings, any Borrower or any Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or
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other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for Holdings, any Borrower or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) Holdings, any Borrower or any Subsidiary shall become unable,
admit in writing its inability or fail generally to pay its debts as
they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against
Holdings, any Borrower, any other Restricted Subsidiary or any
combination thereof and the same shall remain undischarged for a period
of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of Holdings, any Borrower or any other
Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability
of Holdings and its Subsidiaries in an aggregate amount exceeding
$10,000,000 for all periods;
(m) any Lien purported to be created under this Agreement or any
Security Document shall cease to be, or shall be asserted by any Loan
Party not to be, a valid and perfected Lien on any significant
Collateral, with the priority required by this Agreement or the
applicable Security Document, except (i) as a result of the sale or
other disposition of the applicable Collateral in a transaction
permitted under the Loan Documents or (ii) as a result of the
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Administrative Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it
under the Pledge Agreement; or
(n) a Change in Control other than as contemplated by the Merger
Agreement shall occur;
then, and in every such event (other than an event with respect to a Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrowers, take either
or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrowers accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers;
and in case of any event with respect to a Borrower described in clause (h) or
(i) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrowers accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers.
ARTICLE VIII
The Agents
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Agent as its agent and authorizes the Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Agent by the
terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
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The bank serving as the Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with Holdings, any Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Agent hereunder.
The Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), and (c) except as expressly set forth in the Loan Documents, the
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to Holdings, any Borrower or any
of its Subsidiaries that is communicated to or obtained by the bank serving as
Agent or any of its Affiliates in any capacity. The Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or wilful misconduct. The Agent shall be
deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Agent by Holdings, the Borrower or a Lender, and the
Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with any
Loan Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in
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Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Agent.
The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agent may consult with legal counsel (who may be counsel for
Holdings and/or the Borrowers), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by the
Agent. The Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor the
Agent as provided in this paragraph, the Agent may resign at any time by
notifying the Lenders, the Issuing Bank and the Borrowers. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrowers, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its appointment as Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its
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duties and obligations hereunder. The fees payable by the Borrowers to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed among the Borrowers and such successor. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or related agreement
or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Holdings or any Borrower, to it at CapRock
Communications Corp., 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX
00000, Attention of Legal Department (Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, the Issuing Bank, or the
Swingline Lender, to The Chase Manhattan Bank, Loan and Agency Services
Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Xxxxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy
to The Chase Manhattan Bank,
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000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx Xxxxx
(Telecopy No. (000) 000-0000); and
(c) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Holdings, the Borrowers and the Required Lenders or, in the case
of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties that
are parties thereto, in each case with the consent of
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the Required Lenders; provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the maturity of any
Loan, or any scheduled date of payment of the principal amount of any Loan under
Section 2.10, or the required date of reimbursement of any LC Disbursement, or
any date for the payment of any interest or fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.17(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
percentage set forth in the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender, (vi) release Holdings or any Subsidiary Loan Party from its
Guarantee under the Collateral Agreement (except as expressly provided in the
Collateral Agreement), or limit its liability in respect of such Guarantee,
without the written consent of each Lender or (vii) release all or substantially
all of the Collateral from the Liens of the Security Documents, without the
written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Issuing Bank or the Swingline Lender without the prior written
consent of the Administrative Agent, the Issuing Bank or the Swingline Lender,
as the case may be. Notwithstanding the foregoing, any provision of this
Agreement may be amended by an agreement in writing entered into by Holdings,
the Borrower, the Required Lenders and the Administrative Agent (and, if their
rights or obligations are affected thereby, the Issuing Bank and the Swingline
Lender) if (i) by the terms of such agreement the Commitment of each Lender not
consenting to the amendment provided for therein shall terminate upon the
effectiveness of such amendment and (ii) at the time such amendment becomes
effective, each Lender not consenting thereto receives payment in full of the
principal of and interest
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accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) Holdings
and the Borrowers shall pay, on a joint and several basis, (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) Each of Holdings and the Borrowers shall indemnify, on a
joint and several basis, the Administrative Agent, the Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any Loan
Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a
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Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by a Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to a Borrower or
any of the Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) To the extent that Holdings and the Borrowers fail to pay any
amount required to be paid by it to the Administrative Agent, the Issuing Bank
or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender's pro rata share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent, the Issuing
Bank or the Swingline Lender in its capacity as such. For purposes hereof, a
Lender's "pro rata share" shall be determined based upon its share of the sum of
the total Revolving Exposures, outstanding Term Loans and unused Commitments at
the time.
(d) To the extent permitted by applicable law, neither Holdings
nor any Borrower shall assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
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(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that the
Borrowers may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrowers without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an Affiliate of a Lender
or a Related Fund of a Lender, each of the applicable Borrowers and the
Administrative Agent (and, in the case of an assignment of all or a portion of a
Revolving Commitment or any Lender's obligations in respect of its LC Exposure
or Swingline Exposure, the Issuing Bank and the Swingline Lender) must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or a Related Fund of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment or Loans, the
amount of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $1,000,000 unless each of the applicable Borrowers and the Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
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obligations under this Agreement, (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and (v) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; and provided further that any consent of the
Borrowers otherwise required under this paragraph shall not be required if an
Event of Default under clause (a), (b), (h) or (i) of Article VII has occurred
and is continuing. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent
of the Borrowers, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and Holdings, the Borrowers, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrowers, the
Issuing Bank and any Lender, at any
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reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Holdings, the
Borrowers, the Administrative Agent, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve any amendment, modification or waiver of any provision of the Loan
Documents; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agree to be subject to Section 2.17(c) as though it were a Lender.
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(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrowers' prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Borrowers (or Holdings on behalf of the Borrowers) are notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 2.16(e) as though it were a
Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative
Agent, the Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the
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expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements executed
simultaneously herewith constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrowers against any of and all the obligations of the Borrowers now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such
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Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of Holdings and the Borrowers hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against Holdings, the Borrowers or its properties in
the courts of any jurisdiction.
(c) Each of Holdings and the Borrowers hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
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(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent,
the Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section,
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to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrowers or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the Issuing Bank or any Lender on
a nonconfidential basis from a source other than Holdings or the Borrowers. For
the purposes of this Section, "Information" means all information received from
Holdings or the Borrower relating to Holdings or the Borrowers or its business,
other than any such information that is available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
Holdings or the Borrowers; provided that, in the case of information received
from Holdings or the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
to the contrary contained in any Loan Document, the interest paid or agreed to
be paid under the Loan Documents shall not exceed the maximum rate of interest
which, under applicable law, any Lender is then permitted to charge on the
Secure Obligations at the particular time in question (the "Highest Lawful
Rate"). If the Administrative Agent or any Lender shall receive interest in an
amount that exceeds the Highest Lawful Rate, the excess interest shall be
applied to the principal of the Loans or, if it exceeds such unpaid principal,
refunded to the Borrowers. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Highest
Lawful Rate, such Person may, to the extent permitted by applicable law, (a)
characterize any payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the effects thereof,
and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Secured
Obligations.
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SECTION 9.14. Liability of Borrowers. The Borrowers are engaged
as an integrated group in the telecommunications businesses conducted by them,
and each Borrower expects to derive benefit, directly or indirectly, from the
credit extended by the Lenders hereunder, both in its individual capacity and as
a member of such integrated group. Each Borrower will be jointly and severally
liable for the payment of all Secured Obligations incurred under this Agreement
and the other Loan Documents, including all obligations in respect of principal,
interest, reimbursement of LC Disbursements, the posting of cash Collateral,
fees, expense reimbursements and indemnities. If, in any action or proceeding
before any court of competent jurisdiction under any state or Federal
bankruptcy, insolvency, reorganization or similar law affecting the rights of
creditors generally, the joint and several obligations of any Borrower in
respect of the Secured Obligations would otherwise, taking into account the
provisions of the Indemnity, Subrogation and Contribution Agreement and other
rights of such Borrower under applicable law, be held or determined to be void,
invalid or unenforceable, or subordinated to the claims of other senior
creditors of such Borrower, on account of the amount of such Borrower's
liability in respect of the Secured Obligations, then, notwithstanding any
provision hereof to the contrary, the amount of such liability shall be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other senior creditors, as
determined by such court in such action or proceeding.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
CAPROCK COMMUNICATIONS CORP.,
by /s/ XXXX X. XXXXXXXX, XX.
----------------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Chief Executive Officer
CAPROCK TELECOMMUNICATIONS
CORP.,
by /s/ XXXX X. XXXXXXXX, XX.
----------------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Chief Executive Officer
CAPROCK FIBER NETWORK LTD.,
by CapRock
Telecommunications
Corp., its general
partner,
by /s/ XXXX X. XXXXXXXX, XX.
----------------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Chief Executive Officer
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THE CHASE MANHATTAN BANK,
individually and as Agent,
by /s/ Xxxxxx Ansastasio
----------------------------------------
Name: Xxxxxx Ansastasio
Title:
