EXHIBIT (b)
================================================================================
$700,000,000
CREDIT AGREEMENT
among
XXXXXX CELLULAR SYSTEMS, INC.,
as Borrower,
XXXXXX COMMUNICATIONS CORPORATION
XXXXXX OPERATING CO., L.L.C.,
as Guarantors
The Several Lenders
from Time to Time Party Hereto,
XXXXXX BROTHERS INC. and
BEAR, XXXXXXX & CO. INC.,
as Joint Lead Arrangers and Joint Book Runners,
BEAR XXXXXXX CORPORATE LENDING INC.,
as Syndication Agent
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Co-Arranger and Documentation Agent,
and
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of October 23, 2003
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS................................................................................1
1.1 Defined Terms..................................................................................1
1.2 Other Definitional Provisions.................................................................24
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...........................................................25
2.1 Term Loan Commitments.........................................................................25
2.2 Procedure for Term Loan Borrowing.............................................................25
2.3 Repayment of Term Loans.......................................................................25
2.4 Revolving Credit Commitments..................................................................26
2.5 Procedure for Revolving Credit Borrowing......................................................26
2.6 Swing Line Commitment.........................................................................27
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans.............................27
2.8 Repayment of Loans; Evidence of Debt..........................................................28
2.9 Commitment Fees, etc..........................................................................29
2.10 Termination or Reduction of Revolving Credit Commitments......................................29
2.11 Optional Prepayments..........................................................................29
2.12 Mandatory Prepayments.........................................................................30
2.13 Conversion and Continuation Options...........................................................31
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches.....................................31
2.15 Interest Rates and Payment Dates..............................................................31
2.16 Computation of Interest and Fees..............................................................32
2.17 Inability to Determine Interest Rate..........................................................32
2.18 Pro Rata Treatment and Payments...............................................................33
2.19 Requirements of Law...........................................................................34
2.20 Taxes.........................................................................................35
2.21 Indemnity.....................................................................................36
2.22 Illegality....................................................................................37
2.23 Change of Lending Office......................................................................37
2.24 Replacement of Lenders under Certain Circumstances............................................37
SECTION 3. LETTERS OF CREDIT.........................................................................37
3.1 L/C Commitment................................................................................37
3.2 Procedure for Issuance of Letter of Credit....................................................38
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TABLE OF CONTENTS
(CONTINUED)
PAGE
3.3 Fees and Other Charges........................................................................38
3.4 L/C Participations............................................................................38
3.5 Reimbursement Obligation of the Borrower......................................................39
3.6 Obligations Absolute..........................................................................40
3.7 Letter of Credit Payments.....................................................................40
3.8 Applications..................................................................................40
SECTION 4. REPRESENTATIONS AND WARRANTIES............................................................40
4.1 Financial Condition...........................................................................40
4.2 No Change.....................................................................................41
4.3 Corporate Existence; Compliance with Law; Authorizations......................................41
4.4 Corporate Power; Authorization; Enforceable Obligations.......................................41
4.5 No Legal Bar..................................................................................42
4.6 No Material Litigation........................................................................42
4.7 No Default....................................................................................42
4.8 Ownership of Property; Liens..................................................................42
4.9 Intellectual Property.........................................................................42
4.10 Taxes.........................................................................................43
4.11 Federal Regulations...........................................................................43
4.12 Labor Matters.................................................................................43
4.13 ERISA.........................................................................................43
4.14 Investment Company Act; Other Regulations.....................................................43
4.15 Subsidiaries..................................................................................44
4.16 Use of Proceeds...............................................................................44
4.17 Environmental Matters.........................................................................44
4.18 Accuracy of Information, etc..................................................................45
4.19 Security Documents............................................................................46
4.20 Solvency......................................................................................46
4.21 Senior Indebtedness...........................................................................46
4.22 Regulation H..................................................................................46
4.23 Material Agreements; Management Agreements....................................................47
4.24 Permitted Acquisitions........................................................................47
ii
TABLE OF CONTENTS
(CONTINUED)
PAGE
4.25 FCC and PUC Matters...........................................................................47
SECTION 5. CONDITIONS PRECEDENT......................................................................48
5.1 Conditions to Initial Extension of Credit.....................................................48
5.2 Conditions to Each Extension of Credit........................................................51
SECTION 6. AFFIRMATIVE COVENANTS.....................................................................51
6.1 Financial Statements..........................................................................51
6.2 Certificates; Other Information...............................................................52
6.3 Payment of Obligations........................................................................53
6.4 Conduct of Business and Maintenance of Existence, etc.........................................53
6.5 Maintenance of Property; Insurance............................................................53
6.6 Inspection of Property; Books and Records; Discussions........................................54
6.7 Notices.......................................................................................54
6.8 Environmental Laws............................................................................54
6.9 Interest Rate Protection......................................................................55
6.10 Additional Collateral, etc....................................................................55
6.11 Further Assurances............................................................................56
SECTION 7. NEGATIVE COVENANTS........................................................................57
7.1 Financial Condition Covenants.................................................................57
7.2 Limitation on Indebtedness....................................................................60
7.3 Limitation on Liens...........................................................................61
7.4 Limitation on Fundamental Changes.............................................................62
7.5 Limitation on Disposition of Property.........................................................62
7.6 Limitation on Restricted Payments.............................................................63
7.7 Limitation on Investments.....................................................................64
7.8 Limitation on Optional Payments and Modifications of Debt Instruments, etc....................65
7.9 Limitation on Transactions with Affiliates....................................................65
7.10 Limitation on Sales and Leasebacks............................................................65
7.11 Limitation on Changes in Fiscal Periods.......................................................65
7.12 Limitation on Negative Pledge Clauses.........................................................65
7.13 Limitation on Restrictions on Subsidiary Distributions........................................66
7.14 Limitation on Lines of Business...............................................................66
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TABLE OF CONTENTS
(CONTINUED)
PAGE
7.15 Limitation on Amendments to Transaction Documents.............................................66
7.16 Limitation on Amendments to Other Documents...................................................66
7.17 Limitation on Hedge Agreements................................................................66
SECTION 8. COVENANTS OF THE PARENT...................................................................66
8.1 Limitation on Indebtedness....................................................................66
8.2 Liens.........................................................................................67
8.3 Limitation on Restricted Payments and Investments.............................................67
8.4 Limitation on Optional Payments and Modifications of Debt Instruments, etc....................68
8.5 Limitation on Negative Pledge Clauses.........................................................68
8.6 Limitation on Transactions with Affiliates....................................................69
8.7 Management Expenses...........................................................................69
8.8 Limitation on Changes in Fiscal Periods.......................................................69
8.9 Limitation on Hedge Agreements................................................................69
8.10 Holding Company Status........................................................................69
SECTION 9. EVENTS OF DEFAULT.........................................................................70
SECTION 10. THE AGENTS................................................................................73
10.1 Appointment...................................................................................73
10.2 Delegation of Duties..........................................................................73
10.3 Exculpatory Provisions........................................................................73
10.4 Reliance by Agents............................................................................73
10.5 Notice of Default.............................................................................74
10.6 Non-Reliance on Agents and Other Lenders......................................................74
10.7 Indemnification...............................................................................74
10.8 Agent in Its Individual Capacity..............................................................75
10.9 Successor Administrative Agent................................................................75
10.10 Authorization to Release Liens and Guarantees.................................................75
10.11 The Arrangers; the Co-Documentation Agents....................................................75
SECTION 11. MISCELLANEOUS.............................................................................75
11.1 Amendments and Waivers........................................................................75
11.2 Notices.......................................................................................77
11.3 No Waiver; Cumulative Remedies................................................................78
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TABLE OF CONTENTS
(CONTINUED)
PAGE
11.4 Survival of Representations and Warranties....................................................78
11.5 Payment of Expenses...........................................................................78
11.6 Successors and Assigns; Participations and Assignments........................................79
11.7 Adjustments; Set-off..........................................................................82
11.8 Counterparts..................................................................................83
11.9 Severability..................................................................................83
11.10 Integration...................................................................................83
11.11 GOVERNING LAW.................................................................................83
11.12 Submission To Jurisdiction; Waivers...........................................................83
11.13 Acknowledgments...............................................................................84
11.14 Confidentiality...............................................................................84
11.15 Release of Collateral and Guarantee Obligations...............................................85
11.16 Accounting Changes............................................................................85
11.17 Delivery of Lender Addenda....................................................................85
11.18 FCC Compliance................................................................................85
11.19 WAIVERS OF JURY TRIAL.........................................................................86
v
ANNEXES:
A Pricing Grid
SCHEDULES:
4.4 Consents, Authorizations, Filings and Notices
4.6 Material Litigation
4.15 Subsidiaries
4.19(a)-1 UCC Filing Jurisdictions
4.19(a)-2 UCC Financing Statements to Remain on File
4.19(a)-3 UCC Financing Statements to be Terminated
4.23 Material Agreements
4.25 FCC Licenses
5.1(b) Transaction Documents
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
8.1 Parent Indebtedness
8.6 Parent Affiliate Agreements
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Auditors' Certificate
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of McAfee & Xxxx
F-2 Form of Legal Opinion of Xxxxxxxxx Xxxxxx Xxxxxx, LLP
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
G-3 Form of Swing Line Note
H Form of Prepayment Option Notice
I Form of Exemption Certificate
J Form of Lender Addendum
K Form of Borrowing Notice
vi
CREDIT AGREEMENT, dated as of October 23, 2003, among XXXXXX
CELLULAR SYSTEMS, INC., an Oklahoma corporation (the "Borrower") and successor
by merger with Xxxxxx/Sygnet Communications Company, an Oklahoma corporation
("Xxxxxx/Sygnet") and certain Subsidiaries of Xxxxxx/Sygnet, XXXXXX
COMMUNICATIONS CORPORATION, an Oklahoma corporation (the "Parent"), XXXXXX
OPERATING CO., L.L.C., an Oklahoma limited liability company ("DOC"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), XXXXXX COMMERCIAL PAPER INC., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), XXXXXX BROTHERS INC. and BEAR, XXXXXXX & CO. INC., as joint lead
arrangers and joint book runners (in such capacity, the "Arrangers"), BEAR
XXXXXXX CORPORATE LENDING INC. as syndication agent (in such capacity, the
"Syndication Agent") and XXXXXX XXXXXXX SENIOR FUNDING, INC., as co- arranger
and documentation agents (in such capacity, the "Co-Arranger and Documentation
Agent").
WITNESSETH:
WHEREAS, pursuant to the Merger consummated immediately prior
to entering into this Agreement, Xxxxxx/Sygnet (a Wholly Owned Subsidiary of the
Parent) and certain of its Subsidiaries, has merged with and into the Borrower,
with the Borrower as the surviving entity;
WHEREAS, to provide funds (i) to be applied to pay certain
Indebtedness of the Borrower and its Subsidiaries and (ii) to finance working
capital and other general corporate needs of the Borrower and its Subsidiaries
(including the making of Permitted Acquisitions), the Borrower has requested
that the Lenders make certain credit facilities available to the Borrower; and
WHEREAS, the Lenders are willing to make such credit
facilities available to the Borrower upon and subject to the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ACC": American Cellular Corporation, a Delaware corporation.
"Additional Facilities", "Additional Loans", "Additional
Revolving Credit Facility" and "Additional Term Loan": each as respectively
defined in Section 11.1(b).
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agents": the collective reference to the Administrative
Agent, the Arrangers, the Syndication Agent and the Co-Arranger and
Documentation Agent.
"Aggregate Exposure": with respect to any Lender at any time,
an amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans and (ii) the
amount of such Lender's Revolving Credit Commitment then in effect or, if the
Revolving Credit Commitments have been terminated, the amount of such Lender's
Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the sum of the Aggregate Exposures of all Lenders at
such time.
"Agreement": this
Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Annualized": for the purposes of calculating the financial
ratios set forth in Sections 7.1(a),(b),(c) and (d), (i) with respect to any
amount attributable to one fiscal quarter, such amount divided by 0.25, (ii)
with respect to any amount attributable to two fiscal quarters, such amount
divided by 0.5 and (iii) with respect to any amount attributable to three fiscal
quarters, such amount divided by 0.75.
"Applicable Margin": for each Type of Loan under each
Facility, the rate per annum set forth opposite such Facility under the relevant
column heading below:
Base Rate Eurocurrency
Loans Loans
--------- ------------
Revolving Credit Facility 2.25% 3.25%
(including Swing Line Loans)
Term Loan Facility 2.25% 3.25%
provided that on and after the first Adjustment Date occurring after the date
which is six months following the Closing Date, the Applicable Margin with
respect to Revolving Credit Facility (including Swing Line Loans) and with
respect to the Term Loan Facility will each be determined pursuant to the
Pricing Grid.
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Arranger": as defined in the preamble hereto.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by clause
(a), (b), (c) or (d) of Section 7.5), which yields gross proceeds to DOC or any
of its Subsidiaries (valued at the initial principal amount thereof in the case
of non-cash proceeds consisting of notes or other debt securities and valued at
Fair Market Value in the case of other non-cash proceeds, but in any event
excluding the Fair Market Value of any Cellular/PCS Assets received pursuant to
a Permitted Asset Swap or other Disposition) which (i) when aggregated with the
gross proceeds from all such Dispositions consummated in the same fiscal year of
DOC exceed $5,000,000 (but only to the extent that they exceed $5,000,000) and
(ii) for any single Disposition or series of related Dispositions (in excess of
the aggregate amount referred to in clause (i)) are equal to or greater than
$50,000.
2
"Assignee": as defined in Section 11.6(c).
"Assignor": as defined in Section 11.6(c).
"Authorizations": (i) all material filings, recordings, and
registrations with, and all material validations or exemptions, approvals,
orders, authorizations, consents, franchises, licenses, certificates, and
permits from, any Governmental Authority (other than the FCC and applicable
PUCs), including without limitation, any of the foregoing authorizing or
permitting the acquisition, construction, or operation of any System and (ii)
all material filings, recordings, and registrations with, and all validations or
exemptions, approvals, orders, authorizations, consents, franchises, licenses,
certificates, and permits from, the FCC and any applicable PUCs, including
authorizing or permitting the acquisition, construction, or operation of any
System.
"Available Revolving Credit Commitment": with respect to any
Revolving Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Lender's Revolving Credit Commitment then in effect over (b) such
Lender's Revolving Extensions of Credit then outstanding; provided that in
calculating any Lender's Revolving Extensions of Credit for the purpose of
determining such Lender's Available Revolving Credit Commitment pursuant to
Section 2.9(a), the aggregate principal amount of Swing Line Loans then
outstanding shall be deemed to be zero.
"Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greater 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 Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of
interest is based upon the Base Rate.
"Benefited Lender": as defined in Section 11.7.
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Borrowing Notice": with respect to any request for borrowing
of Loans hereunder, a notice from the Borrower, substantially in the form of,
and containing the information prescribed by, Exhibit K, delivered to the
Administrative Agent.
"Business Day": (a) for all purposes other than as covered by
clause (b) below, a day other than a Saturday, Sunday or other day on which
commercial banks in
New York City are authorized or required by law to close and
(b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (a) and which is also a day for trading by and
between banks in Dollar deposits in the interbank eurodollar market.
3
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person for the acquisition or
leasing (pursuant to a capital lease) of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements during
such period) which are required to be capitalized under GAAP on a balance sheet
of such Person.
"Capital Lease Obligations": with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP;
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing,
including the Parent Preferred Stock.
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof having combined
capital and surplus of not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-2 by S&P or P-2 by Xxxxx'x, or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Xxxxx'x; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; and (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"Cellular/PCS Assets": any Cellular Systems, PCS Systems or
Franchise Interest owned directly or indirectly by any Person and used in
connection with such Person's Cellular Business.
"Cellular Business": the business of owning or operating one
or more Cellular Systems and other business directly related thereto.
"Cellular Entity": any Cellular Licensee or Cellular
Permittee.
"Cellular Licensee": any Person that is authorized to own,
control, and operate a Cellular System.
4
"Cellular Partnership": any entity in which DOC or any of its
Subsidiaries owns, directly or indirectly, a partnership interest.
"Cellular Permittee": means a Person that is authorized by the
FCC to construct a Cellular System.
"Cellular System": a public mobile services, cellular radio
telephone service telecommunications system licensed under Part 22 of the rules
promulgated by the FCC.
"Change of Control": the occurrence, on or following the date
hereof, of any of the following events: (a) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), shall become the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of more than 50% of the Voting Power of the Parent on a fully
diluted basis; (b) the individuals who on the Closing Date constituted the Board
of Directors of the Parent, together with any new directors whose election by
the Board of Directors of the Parent or whose nomination for election by the
Parent's stockholders was approved by a vote of at least a majority of such
Board of Directors then in office who either were members of such Board of
Directors on the Closing Date or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority of the
members of such Board of Directors then in such office; (c) the Parent shall
cease to own and control, of record and beneficially, directly, 100% of each
class of outstanding Capital Stock of DOC free and clear of all Liens (except
Liens created by the Guarantee and Collateral Agreement); (d) DOC shall cease to
own and control, of record and beneficially, directly, 100% of each class of
outstanding Capital Stock of the Borrower free and clear of all Liens (except
Liens created by the Guarantee and Collateral Agreement) (provided that it shall
not be a "Change of Control" pursuant to clauses (c) and (d) solely if DOC
merges or consolidates with and into the Borrower in accordance with Section
7.4(b) and the Parent shall hold 100% of the Capital Stock of the surviving
entity); or (e) any event constituting a "change of control" (as such term is
defined in any Indenture or other instrument governing the terms of any Parent
Notes or in any certificate of designation or exchange debenture with respect to
any Parent Preferred Stock or other long-term Indebtedness or preferred stock of
the Parent, DOC or any of its Subsidiaries).
"Closing Date": the date on which the conditions precedent set
forth in Section 5.1 shall have been satisfied, which date shall be not later
than October 31, 2003.
"Code": the United States Internal Revenue Code of 1986, as
amended from time to time.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment": with respect to any Lender, each of the Term
Loan Commitment and the Revolving Credit Commitment of such Lender.
"Commitment Fee Rate": 1/2 of 1% per annum.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Communications Act": collectively, the Federal Communications
Act of 1934, as amended from time to time, and the rules and regulations in
effect at any time thereunder.
5
"Communications Regulatory Authority": the FCC and each PUC.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer, substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated September 2003 and furnished to the initial Lenders
in connection with the syndication of the Facilities.
"Consolidated Current Assets": of any Person at any date, all
amounts (other than cash and Cash Equivalents) that would, in conformity with
GAAP, be set forth opposite the caption "total current assets" (or any like
caption) on a consolidated balance sheet of such Person and its Subsidiaries at
such date.
"Consolidated Current Liabilities": of any Person at any date,
all amounts that would, in conformity with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a consolidated
balance sheet of such Person and its Subsidiaries at such date, but excluding,
with respect to DOC, (a) the current portion of any Funded Debt of DOC and its
Subsidiaries and (b), without duplication, all Indebtedness consisting of
Revolving Credit Loans or Swing Line Loans, to the extent otherwise included
therein.
"Consolidated EBITDA": of any Person for any period,
Consolidated Net Income of such Person and its Subsidiaries for such period
plus, without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of (a) income
tax expense, (b) Consolidated Interest Expense of such Person and its
Subsidiaries, amortization or writeoff of debt discount and debt issuance costs
and commissions, discounts and other fees and charges associated with
Indebtedness, (c) depreciation and amortization expense, (d) amortization of
intangibles (including, but not limited to, goodwill) and organization costs,
(e) any extraordinary losses determined in accordance with GAAP (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, losses on sales of assets outside of
the ordinary course of business) and (f) any other non-recurring non-cash
charges for such period (provided that any cash expenditures made in respect of
any such non-cash charges added-back pursuant to this clause (f) shall be
deducted for the purposes of determining Consolidated EBITDA for the period
during which such cash expenditures are made), and minus, to the extent included
in the statement of such Consolidated Net Income for such period, the sum of (i)
interest income (except to the extent deducted in determining Consolidated
Interest Expense), (ii) any extraordinary gains determined in accordance with
GAAP (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales of
assets outside of the ordinary course of business) and (iii) any other non-cash
income, all as determined on a consolidated basis; provided that in determining
Consolidated EBITDA for the Parent, none of the Unrestricted Group shall be
included as a Subsidiary of the Parent in the foregoing calculations.
"Consolidated Fixed Charges ": for any period, the sum
(without duplication and to the extent not included in the calculation of
Consolidated EBITDA for DOC for such period) of (a) Consolidated Interest
Expense of DOC for such period, (b) cash income taxes paid by DOC or any of its
Subsidiaries on a consolidated basis in respect of such period, (c) scheduled
payments made during such period on account of principal of Indebtedness of DOC
or any of its Subsidiaries (including scheduled principal payments in respect of
the Term Loans), and (d) (to the extent not included in the foregoing) the
amount of Restricted Payments made in cash during such period by DOC to the
Parent.
6
"Consolidated Interest Expense": of any Person for any period,
total cash interest expense (including that attributable to Capital Lease
Obligations) of such Person and its Subsidiaries for such period with respect to
all outstanding Indebtedness of such Person and its Subsidiaries (including all
commissions, discounts and other fees and charges owed by such Person with
respect to letters of credit and bankers' acceptance financing and net costs of
such Person under Hedge Agreements in respect of interest rates to the extent
such net costs are allocable to such period in accordance with GAAP); provided
that in determining Consolidated Interest Expense with respect to the Parent,
none of the Unrestricted Group shall be included as a Subsidiary of the Parent
in the foregoing calculations.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided
that in calculating Consolidated Net Income of such Person and its consolidated
Subsidiaries for any period, there shall be excluded (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of such Person
or is merged into or consolidated with such Person, as applicable, or any of its
Subsidiaries, (b) the income (or deficit) of any other Person (other than a
Subsidiary of such Person) in which the Person for which Consolidated Net Income
is being determined, or any of its Subsidiaries, has an ownership interest,
except to the extent that any such income is actually received by it in the form
of dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of such Person to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary; provided that in
determining Consolidated Net Income with respect to the Parent, none of the
Unrestricted Group shall be included as a Subsidiary of the Parent in the
foregoing calculations.
"Consolidated Total Debt": of any Person, at any date, the
aggregate principal amount of all Indebtedness (but not any preferred stock) of
such Person and its Subsidiaries at such date, determined on a consolidated
basis in accordance with GAAP; provided that in determining Consolidated Total
Debt with respect to the Parent, none of the Unrestricted Group shall be
included as a Subsidiary of the Parent in the foregoing calculations.
"Consolidated Working Capital": at any date, the difference of
(a) Consolidated Current Assets of DOC on such date less (b) Consolidated
Current Liabilities of DOC on such date.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control Investment Affiliate": as to any Person, any other
Person that (a) directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person and (b) is organized by such Person
primarily for the purpose of making equity or debt investments in one or more
companies. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Declining Lender": as defined in Section 2.12(d).
"Default": any of the events specified in Section 9, whether
or not any requirement specified therein with respect to such event for the
giving of notice, the lapse of time, or both, has been satisfied.
"Derivatives Counterparty": as defined in Section 7.6.
7
"Disposition": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof; and the terms "Dispose" and "Disposed of" shall have correlative
meanings.
"Xxxxxx/Sygnet": as defined in the preamble hereto.
"DOC": as defined in the preamble hereto.
"DOC Fixed Charge Coverage Ratio": for any period, the ratio
of (a) Consolidated EBITDA of DOC for such period minus the aggregate amount
actually paid by DOC in cash during such period on account of Capital
Expenditures to (b) Consolidated Fixed Charges for such period; provided that
Capital Expenditures made in cash in the following periods for the GSM build-out
by DOC shall not be included as Capital Expenditures in calculating the DOC
Fixed Charge Coverage Ratio up to the following respective amounts (without
duplication) for the four fiscal quarter periods of DOC ending on the following
dates: (i) December 31, 2003, $75,000,000, (ii) March 31 2004, $95,000,000,
(iii) June 30, 2004, $80,000,000 and (iv) September 30, 2004, $70,000,000.
"DOC Leverage Ratio": as at the last day of any period of four
consecutive fiscal quarters of DOC, the ratio of (a) Consolidated Total Debt of
DOC on such day to (b) Consolidated EBITDA of DOC for such period; provided that
for purposes of calculating Consolidated EBITDA of DOC for any period, (i) the
Consolidated EBITDA of any Person acquired by DOC or its Subsidiaries during
such period shall be included on a pro forma basis for such period (assuming the
consummation of such acquisition occurred on the first day of such period) if
the consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and stockholders'
equity and of cash flows for the period in respect of which Consolidated EBITDA
is to be calculated (x) have been previously provided to the Administrative
Agent and the Lenders and (y) either (1) have been reported on without a
qualification arising out of the scope of the audit by independent certified
public accountants of nationally recognized standing or (2) have been found
acceptable by the Administrative Agent and (ii) the Consolidated EBITDA of any
Person Disposed of by DOC or its Subsidiaries during such period shall be
excluded for such period (assuming the consummation of such Disposition and the
repayment of any Indebtedness in connection therewith occurred on the first day
of such period).
"Dollars" or "$": lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary organized under the laws
of any jurisdiction within the United States of America.
"Environmental Laws": any and all laws, rules, orders,
regulations, statutes, ordinances, guidelines, codes, decrees, or other legally
enforceable requirements (including common law) of any international authority,
foreign government, the United States, or any state, local, municipal or other
governmental authority, regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or of human
health, or employee health and safety, as has been, is now, or may at any time
hereafter be, in effect.
"Environmental Permits": any and all permits, licenses,
approvals, registrations, notifications, exemptions and other authorizations
required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
8
"Eurocurrency Reserve Requirements": for any day, the
aggregate (without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including basic,
supplemental, marginal and emergency reserves) under any regulations of the
Board or other Governmental Authority having jurisdiction with respect thereto
dealing with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 of the Telerate screen
as of 11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate" for
purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be
selected by the Administrative Agent.
"Eurodollar Loans": Loans for which the applicable rate of
interest is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in Section 9,
provided that any requirement specified therein with respect to such event in
for the giving of notice, the lapse of time, or both (if applicable), has been
satisfied.
"Excess Cash Flow": for any fiscal year of DOC, the
difference, if any, by which (a) the sum, without duplication, of (i)
Consolidated EBITDA of DOC for such fiscal year and (ii) the amount of the
decrease, if any, in Consolidated Working Capital for such fiscal year (other
than any such decrease to the extent that it is solely attributable to Permitted
Acquisitions, Permitted Asset Swaps and Dispositions consummated during such
fiscal year) exceeds (b) the sum, without duplication, of (i) the aggregate
amount of capital expenditures (as determined in accordance with GAAP) by DOC
and its Subsidiaries during such fiscal year (provided that the cash amount of
such capital expenditures shall exclude the principal amount of purchase-money
Indebtedness and Capital Lease Obligations incurred in connection therewith or
financed with the proceeds of any Reinvestment Deferred Amount during such
fiscal year), (ii) Consolidated Interest Expense of DOC and commissions,
discounts and other fees and charges associated with Indebtedness to the extent
paid in cash during such fiscal year, (iii) the aggregate amount of all
regularly scheduled principal payments of Funded Debt (including the Term Loans)
of DOC and its Subsidiaries made during such fiscal year (other than in respect
of any revolving credit facility (including the Revolving Credit Facility) to
the extent there is not an equivalent permanent reduction in commitments
thereunder), (iv) the amount of the increase, if any, in Consolidated Working
Capital for such fiscal year (other than any such increase to the extent that it
is solely attributable to Permitted Acquisitions, Permitted Asset Swaps and
Dispositions consummated during such fiscal year), (v) the
9
amount of Taxes of DOC and its Subsidiaries paid by them in cash during such
fiscal year, (vi) any cash payments made by DOC or its Subsidiaries during such
fiscal year which were added to Consolidated Net Income of DOC for the purposes
of determining Consolidated EBITDA of DOC pursuant to clause (e) of the
definition thereof and (vii) (to the extent not already deducted pursuant to any
of the foregoing items (i) through (vi)) the amount of Restricted Payments made
during such fiscal year in cash by DOC to the Parent pursuant to Sections
7.6(c)(i),(ii),(iii) and (iv); provided that for all purposes of this Agreement
with respect to the fiscal year of DOC ended December 31, 2003, Excess Cash Flow
for such fiscal year shall only be calculated with respect to the period from
September 30, 2003 to December 31, 2003) .
"Excess Cash Flow Application Date": as defined in Section
2.12(c).
"Excluded Foreign Subsidiaries": any Foreign Subsidiary in
respect of which either (a) the pledge of all of the Capital Stock of such
Subsidiary as Collateral or (b) the guarantee by such Subsidiary of the
Obligations would result in adverse tax consequences to the Parent and its
Domestic Subsidiaries.
"Excluded Collateral": means any Excluded Assets, as defined
in the Guarantee and Collateral Agreement, to the extent that such Property is
of a type which is excluded from the security interests granted pursuant to the
Guarantee and Collateral Agreement.
"Existing Credit Facilities": the Existing DOC Credit Facility
and the Existing Sygnet Wireless Credit Facility, which are to be terminated
pursuant to the Transactions.
"Existing DOC Credit Facility": the credit facility under the
second amended and restated
credit agreement, dated as of September 26, 2003,
among DOC, as borrower, LCPI, as administrative agent and the various lenders
party thereto.
"Existing Xxxxxx/Sygnet Senior Notes": the 12.25% senior notes
due 2008 issued by Xxxxxx/Sygnet pursuant to an indenture dated as of December
23, 1998, all (or substantially all) of which are to be purchased pursuant to
the Transactions.
"Existing Parent Senior Notes": each of (a) the 10.875% senior
notes due 2010 issued by the Parent pursuant to an Indenture dated as of June
22, 2000 and (b) the 11.75% senior notes due 2007 issued by the Parent pursuant
to an Indenture dated as of February 28, 1997.
"Existing Sygnet Wireless Credit Facility": the credit
facility under the
credit agreement dated as of December 22, 1998 (as amended,
supplemented or otherwise modified from time to time), among Sygnet Wireless,
Inc., as borrower, Bank of America, N.A.(formerly known as Nationsbank, N.A.),
as administrative agent and the various lenders and other agents party thereto.
"Existing Sygnet Wireless Senior Notes": the 11.5% senior
notes due 2006 issued by Sygnet Wireless, Inc. pursuant to an indenture dated as
of September 26, 1996.
"Facility": each of (a) the Term Loan Commitments and the Term
Loans made thereunder and (b) the Revolving Credit Commitments and the
extensions of credit made thereunder.
"Fair Market Value": (a) with respect to any asset or group of
assets (other than a marketable security) at any date, the value of the
consideration obtainable in a sale of such asset at such date assuming a sale by
a willing seller to a willing purchaser dealing at arm's length and arranged in
an orderly manner over a reasonable period of time having regard to the nature
and characteristics of such asset, as reasonably determined by the Board of
Directors of the Borrower or, if such asset shall have
10
been the subject of a relatively contemporaneous appraisal by an independent
third party appraiser, the basic assumptions underlying which have not
materially changed since its date, the value set forth in such appraisal and (b)
with respect to any marketable security at any date, the closing sale price of
such Security on the Business Day next preceding such date, as appearing in any
published list of any national securities exchange or the NASDAQ Stock Market
or, if there is no such closing sale price of such Security, the final price for
the purchase of such Security at face value quoted on such business day by a
financial institution of recognized standing regularly dealing in securities of
such type and selected by the Administrative Agent.
"FCC": the Federal Communications Commission and any successor
regulatory body.
"FCC License": each license which is issued by the FCC from
time to time for DOC and its Subsidiaries to operate each of the Systems.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of
New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"Foreign Subsidiary": any Subsidiary that is not a Domestic
Subsidiary.
"Franchise Interest": any direct or indirect ownership in any
Person that is a Cellular Entity.
"Funded Debt": with respect to any Person, all Indebtedness of
such Person of the types described in clauses (a) through (e) of the definition
of "Indebtedness" in this Section.
"Funding Office": the office specified from time to time by
the Administrative Agent as its funding office by notice to the Borrower and the
Lenders.
"GAAP": generally accepted accounting principles in the United
States of America as in effect on the Closing Date.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GRTI": Gila River Telecommunications Subsidiary, Inc., a
corporation organized pursuant to Gila River Indian Resolution Number GR-10-97.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit), if to induce the creation of
such obligation of such other Person the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any Property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
11
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase Property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement to be executed and delivered by the Loan Parties
substantially in the form of Exhibit A, as the same may be amended, supplemented
or otherwise modified from time to time.
"Guarantors": the collective reference to the Parent, DOC, the
Subsidiary Guarantors and each other Restricted Subsidiary (other than any
Cellular Partnership).
"Hedge Agreements": all interest rate or currency swaps, caps
or collar agreements, foreign exchange agreements, commodity contracts or
similar arrangements entered into by the Parent, DOC or its Subsidiaries
providing for protection against fluctuations in interest rates, currency
exchange rates, commodity prices or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of Property or
services (other than trade payables incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under acceptance, letter of credit or similar
facilities, (g) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any Capital Stock of
such Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above; (i) all
obligations of the kind referred to in clauses (a) through (h) above secured by
(or for which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on Property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation and (j) for the purposes of
Section 9(e) only, all obligations of such Person in respect of Hedge
Agreements.
"Indemnified Liabilities": as defined in Section 11.5.
"Indemnitee": as defined in Section 11.5.
12
"Indentures": the New Parent Senior Notes Indenture and each
other indenture entered into by the Parent with respect to the Parent Notes, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with Section 7.8.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, technology, know-how and processes, and all rights to xxx at
law or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the
last day of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or shorter, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period and (d) as to any Loan (other than any Revolving Credit Loan that is a
Base Rate Loan and any Swing Line Loan), the date of any repayment or prepayment
made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date or beyond the date final
payment is due on the Term Loans shall end on the Revolving
Credit Termination Date or such due date, as applicable; and
(3) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
the calendar month at the end of such Interest Period.
"Investments": as defined in Section 7.7.
13
"Issuing Lender": National City Bank and any other Revolving
Credit Lender from time to time designated by the Borrower as an Issuing Lender
with the consent of such Revolving Credit Lender and the Administrative Agent.
"L/C Commitment": $20,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Revolving Credit Commitment
Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the Issuing
Lender that issued such letter of Credit.
"Xxxxxx Entity": any of Xxxxxx Commercial Paper Inc. or any of
its affiliates (including Syndicated Loan Funding Trust).
"Lender Addendum": with respect to any initial Lender, a
Lender Addendum, substantially in the form of Exhibit J, to be executed and
delivered by such Lender on the Closing Date as provided in Section 11.17.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Liquidity": means at any time, the Revolving Credit
Availability plus the aggregate amount of all cash and Cash Equivalents held by
DOC, the Borrower and each Subsidiary Guarantor at such time.
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Applications, any fee letter entered into among any Loan Party and the Agents
with respect to the Facilities and the Notes.
"Loan Parties": The Borrower and each Guarantor.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of the Revolving Credit
Facility, prior to the termination of all Revolving Credit Commitments, the
holders of more than 50% of the Total Revolving Credit Commitments).
14
"Majority Revolving Credit Facility Lenders": the Majority
Facility Lenders in respect of the Revolving Credit Facility.
"Maryland/Michigan Swap": the Permitted Asset Swap pursuant to
an agreement entered into in October 2003 by the Borrower and Cingular Wireless
with respect to their exchange of Cellular/PCS Assets respectively located in
Maryland and Michigan.
"Material Adverse Effect": a material adverse effect on (a)
the Transactions as of the Closing Date, (b) the business, assets, property or
condition (financial or otherwise) of the Parent and its Subsidiaries taken as a
whole or DOC and its Subsidiaries taken as a whole or (c) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Agents or the Lenders hereunder or thereunder.
"Material Agreements": as defined in Section 4.23.
"Material Environmental Amount": an amount or amounts payable
by the Borrower and/or any of its Subsidiaries, in the aggregate in excess of
$20,000,000, for: costs to comply with any Environmental Law; costs of any
investigation, and any remediation, of any Material of Environmental Concern;
and compensatory damages (including, without limitation damages to natural
resources), punitive damages, fines, and penalties pursuant to any Environmental
Law.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants,
contaminants, radioactivity, and any other substances or forces of any kind,
whether or not any such substance or force is defined as hazardous or toxic
under any Environmental Law, that is regulated pursuant to or could give rise to
liability under any Environmental Law.
"Merger": the merger of (i) Xxxxxx/Sygnet, SWI and Sygnet
Communications Inc. into and with the Borrower pursuant to which the Borrower is
the surviving entity and (ii) Sygnet Lease Co., LLC into and with DOC Lease Co.,
LLC. pursuant to which DOC Lease Co., LLC is the surviving entity.
"Moody's": Xxxxx'x Investors Service, Inc.
"Mortgaged Properties": any real properties as to which the
Administrative Agent for the benefit of the Secured Parties shall be granted a
Lien pursuant to one or more Mortgages pursuant to Section 6.10(b).
"Mortgages": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the Administrative Agent for
the benefit of the Secured Parties, in form and substance reasonably
satisfactory to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of attorneys' fees, accountants' fees, investment
banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset which is the
15
subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a
Security Document) and other customary fees and expenses actually incurred in
connection therewith and net of Taxes paid or reasonably estimated to be payable
as a result thereof (after taking into account any available Tax credits or
deductions and any Tax sharing or allocation arrangements), (b) in connection
with any issuance or sale of equity securities or debt securities or instruments
or the incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith and (c) in connection with any
Purchase Price Refund, the cash amount thereof, net of any expenses incurred in
the collection thereof.
"New Parent Senior Notes": the 8.875% senior notes due 2013
issued by the Parent pursuant to the New Parent Senior Notes Indenture.
"New Parent Senior Notes Indenture": the indenture, dated as
of September 26, 2003, entered into by the Parent in connection with the
issuance of the New Parent Senior Notes, together with all instruments and other
agreements entered into by the Parent in connection therewith, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with Section 7.8
"Non-Excluded Taxes": as defined in Section 2.20(a).
"Non-U.S. Lender": as defined in Section 2.20(d).
"Note": any promissory note evidencing any Loan.
"Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans, the
Reimbursement Obligations and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender or any Qualified
Counterparty, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan Document, the Letters
of Credit, any Specified Hedge Agreement or any other document made, delivered
or given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise; provided that (i) obligations of DOC or any of its
Subsidiaries under any Specified Hedge Agreement shall be secured and guaranteed
pursuant to the Security Documents only to the extent that, and for so long as,
the other Obligations are so secured and guaranteed and (ii) any release of
Collateral or Guarantors effected in the manner permitted by this Agreement
shall not require the consent of holders of obligations under Specified Hedge
Agreements.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Parent": as defined in the preamble hereto.
"Parent Interest Coverage Ratio": for any period, the ratio of
(a) Consolidated EBITDA of the Parent for such period to (b) Consolidated
Interest Expense of the Parent for such period; provided
16
that in determining the Parent Interest Coverage Ratio with respect to the
Parent, none of the Unrestricted Group shall be included as a Subsidiary of the
Parent in the foregoing calculations.
"Parent Leverage Ratio": as at the last day of any period of
four consecutive fiscal quarters of the Parent, the ratio of (a) Consolidated
Total Debt of the Parent on such day to (b) Consolidated EBITDA of the Parent
for such period; provided that for purposes of calculating Consolidated EBITDA
of the Parent for any period, (i) the Consolidated EBITDA of any Person acquired
by the Parent or any of its Subsidiaries during such period shall be included on
a pro forma basis for such period (assuming the consummation of such acquisition
occurred on the first day of such period) if the consolidated balance sheet of
such acquired Person and its consolidated Subsidiaries as at the end of the
period preceding the acquisition of such Person and the related consolidated
statements of income and stockholders' equity and of cash flows for the period
in respect of which Consolidated EBITDA is to be calculated (x) have been
previously provided to the Administrative Agent and the Lenders and (y) either
(1) have been reported on without a qualification arising out of the scope of
the audit by independent certified public accountants of nationally recognized
standing or (2) have been found acceptable by the Administrative Agent and (ii)
the Consolidated EBITDA of any Person Disposed of by the Parent or any of its
Subsidiaries during such period shall be excluded for such period (assuming the
consummation of such Disposition and the repayment of any Indebtedness in
connection therewith occurred on the first day of such period); provided that in
determining the Parent Leverage Ratio, none of the Unrestricted Group shall be
included as a Subsidiary of the Parent in the foregoing calculations.
"Parent Notes": collectively, the Existing Parent Senior
Notes, the New Parent Senior Notes and any other senior unsecured Indebtedness
for borrowed money issued by the Parent in accordance with this Agreement.
"Parent Preferred Stock": the Parent 12.25% Senior
Exchangeable Preferred Stock, the Parent 13% Senior Exchangeable Preferred Stock
and the Parent Series F Convertible Preferred Stock.
"Parent 12.25% Senior Exchangeable Preferred Stock": the
12.25% senior exchangeable preferred stock of the Parent due 2008, to be
redeemed in part pursuant to the Transactions.
"Parent 13% Senior Exchangeable Preferred Stock": the 13%
senior exchangeable preferred stock of the Parent due 2009.
"Parent Series F Convertible Preferred Stock": the Series F
convertible preferred stock of the Parent.
"Participant": as defined in Section 11.6(b).
"Payment Office": the office specified from time to time by
the Administrative Agent as its payment office by notice to the Borrower and the
Lenders.
"PCS Systems": the wireless cellular telecommunication systems
offering "Personal Communication Services" authorized under Part 24 of the FCC
Rules (47 C.F.R. ss. 24.1 et seq.).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition": any acquisition of all or
substantially all of the assets of, or Capital Stock of, a Person if immediately
before and after giving effect thereto: (a) no Default shall have occurred and
be continuing or could reasonably be expected to result therefrom, (b) all
transactions
17
related thereto shall be consummated without material contravention of any
applicable Requirements of Law and Authorizations, (c) 90% of the Capital Stock
of any acquired or newly formed corporation, partnership, association or other
business entity is owned directly by the Borrower, DOC or any of its Wholly
Owned Subsidiaries (which is a Domestic Subsidiary) and all actions required to
be taken, if any, with respect to such acquired or newly formed Subsidiary under
Section 6.10 shall have been taken, (d) the Administrative Agent shall have
approved (such approval not to be unreasonably withheld or delayed) the
respective amounts of each such acquired Person's or business's actual and
contingent liabilities to the extent that such liabilities would be recourse to
DOC and its Subsidiaries, (e) such acquisition shall have been approved and
recommended by the board of directors or equivalent governing body of the Person
to be acquired or from which such assets are to be acquired and such approval
and recommendation has not been withdrawn, (f) not less than 14 days prior to
the consummation thereof, the Borrower shall have delivered to the
Administrative Agent and the Lenders a pro forma income statement and balance
sheet for DOC and its Subsidiaries (after giving effect to such acquisition) and
an officer's certificate certifying compliance with each of the foregoing and
containing all information necessary for determining such compliance, together
with all relevant financial statements, projections and information, in each
case, satisfactory to the Administrative Agent, (g) each material Authorization
issued by any Communications Regulatory Authority to be acquired in connection
with such acquisition shall be valid, binding, enforceable, and subsisting
without any defaults (except defaults which could not reasonably be expected to
result in the termination, revocation or non-renewal of such Authorization)
thereunder or enforceable materially adverse limitations thereon and shall not
be subject to any proceedings or claims (except proceedings or claims which
could not reasonably be expected to result in the termination, revocation or
non-renewal of such Authorization) opposing the issuance, development, or use
thereof or contesting the validity thereof unless the acquiring Person has
entered into an agreement with the seller of such Authorization protecting such
Person from such adverse limitations, proceedings, or claims, which agreement
shall be on terms and conditions, and from a Person whose credit is,
satisfactory to Administrative Agent, (h) as of the closing of such acquisition,
after giving effect thereto, the acquiring Person shall be Solvent and the
Parent, the Borrower and DOC, each on a consolidated basis, shall each be
Solvent and (i) to the extent that DOC or its Subsidiaries will make any
Supplemental Capital Expenditures in connection with such acquisition, the
Required Lenders shall have consented to such Supplemental Capital Expenditures.
"Permitted Asset Swap": A Disposition of Cellular/PCS Assets
owned by DOC or any of its Subsidiaries that satisfies each of the following
conditions: (a) such Disposition shall be in substantially contemporaneous
exchange for the acquisition of other Cellular/PCS Assets, (b) such acquisition
of other Cellular/PCS Assets shall be a Permitted Acquisition, (c) immediately
prior to and after giving effect to the Disposition of such Cellular/PCS Assets
and acquisition of other Cellular/PCS Assets, no Default or Event of Default
shall have occurred and be continuing or could reasonably be expected to result
therefrom, (d) the consideration received for such Disposition shall be at least
equal to the Fair Market Value of the Cellular/PCS Assets Disposed of, (e) any
cash consideration received, after giving effect to such Disposition and
substantially contemporaneous acquisition, shall not exceed 50% of the aggregate
consideration received and shall in each case be a bona fide means of equalizing
the value between the Cellular/PCS Assets Disposed of and those acquired and (f)
within 5 days of the consummation of such Disposition (and if applicable, within
5 days of such substantially contemporaneous acquisition) the Borrower shall
have delivered to the Administrative Agent an officer's certificate certifying
satisfaction of the conditions set forth in this definition and demonstrating
pro forma compliance with the financials covenants set forth in Section 7.1.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
18
"Plan": at a particular time, any employee benefit plan that
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pops": with respect to any licensed area, the residents of
such area based on the most recent publication by Claritas Inc. (or any
successor thereof).
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Prime Rate" the prime lending rate as set forth on the
British Banking Association Telerate Page 5 (or such other comparable publicly
available page as may, in the reasonable opinion of the Administrative Agent,
after notice to the Borrower, replace such page for the purpose of displaying
such rate), as in effect from time to time. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate actually available.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Projections": as defined in Section 6.2(c).
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including Capital Stock.
"PUC": any state regulatory agency or governmental authority
that exercises jurisdiction over the services provided via, or the ownership,
construction, or operation of, commercial mobile radio service facilities.
"PUC Authorization": any license or other Authorization issued
by any applicable PUC from time to time that is required for DOC and its
Subsidiaries to enter into operations of each of the Systems.
"Purchase Price": with respect to any Permitted Acquisition or
Permitted Asset Swap, all direct, indirect, and deferred cash and non-cash
payments made to or for the benefit of the Person being acquired (or whose
assets are being acquired), its shareholders, officers, directors, employees, or
Affiliates in connection with such Permitted Acquisition or Permitted Asset
Swap, including the amount of any Indebtedness being assumed in connection with
such Permitted Acquisition or Permitted Asset Swap, seller financing, payments
under non-competition or consulting agreements entered into in connection with
such Permitted Acquisition or Permitted Asset Swap and similar agreements, all
non-cash consideration and the value of any stock, options, or warrants or other
Rights to acquire stock issued as consideration in such transaction; provided
that, for the purposes hereof, non-competition agreements and consulting
agreements shall be valued at their present value discounted over the term of
such agreement at the Base Rate in effect at the time of the Permitted
Acquisition.
"Purchase Price Refund": any amount received by DOC or any of
its Subsidiaries as a result of a purchase price adjustment or similar event in
connection with any acquisition of Property by DOC or any of its Subsidiaries.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a Lender.
19
"Recovery Event": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding relating
to any asset of DOC or any of its Subsidiaries which results in DOC or its
Subsidiaries receiving a settlement or payment which (i) when aggregated with
all settlements and payments from all such insurance claims and condemnation
proceedings received in the same fiscal year of DOC is in excess of $5,000,000
(but only to the extent that they exceed $5,000,000) and (ii) for any single
insurance claim or condemnation proceeding (in excess of the aggregate amount
referred to in clause (i)) is equal to or greater than $50,000.
"Refunded Swing Line Loans": as defined in Section 2.7(b).
"Refunding Date": as defined in Section 2.7(c).
"Register": as defined in Section 11.6(d).
"Regulation H": Regulation H of the Board as in effect from
time to time.
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued by such Issuing Lender.
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by DOC or any of
its Subsidiaries in connection therewith that are not applied to prepay the Term
Loans or reduce the Revolving Credit Commitments pursuant to Section 2.12(b) as
a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale, Purchase Price Refund or
Recovery Event in respect of which the Borrower has delivered a Reinvestment
Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Default or Event of Default has occurred and
is continuing and that the Borrower (directly or indirectly through a Subsidiary
of the Borrower) intends and expects to use all or a specified portion of the
Net Cash Proceeds of an Asset Sale, Purchase Price Refund or Recovery Event to
acquire assets useful in its business.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring one year after such
Reinvestment Event and (b) the date on which the Borrower shall have determined
not to, or shall have otherwise ceased to, acquire assets useful in the
Borrower's business with all or any portion of the relevant Reinvestment
Deferred Amount.
"Related Fund": with respect to any Lender, any fund that (x)
invests in commercial loans and (y) is managed or advised by the same investment
advisor (or an Affiliate of such investment advisor) as such Lender, by such
Lender or an Affiliate of such Lender.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
20
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. Section 4043.
"Required Lenders": at any time, the holders of more than 50%
of (a) until the Closing Date, the Commitments and (b) thereafter, the sum of
(i) the aggregate unpaid principal amount of the Term Loans then outstanding and
(ii) the Total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders
in respect of each Facility.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law (including the Communications Act), treaty, rule or
regulation or determination of an arbitrator or a court or of the FCC, any PUC
or any other Governmental Authority, in each case applicable to or binding upon
such Person or any of its Property or to which such Person or any of its
Property is subject.
"Responsible Officer": the chief executive officer, president,
chief financial officer or treasurer of the Borrower, but in any event, with
respect to financial matters, the chief financial officer or treasurer of the
Borrower.
"Restricted Payments": as defined in Section 7.6.
"Restricted Subsidiary": means each Subsidiary of the Parent
that is not an Unrestricted Subsidiary.
"Revolving Credit Availability": at any time, the maximum
amount of Available Revolving Credit Commitments which may be borrowed by the
Borrower pursuant to Section 2.4 at such time in compliance with Section 5.2
(including on a pro forma basis as provided in Section 5.2).
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans and
participate in Swing Line Loans and Letters of Credit, in an aggregate principal
and/or face amount not to exceed the amount set forth under the heading
"Revolving Credit Commitment" opposite such Lender's name on Schedule 1 to the
Lender Addendum delivered by such Lender, or, as the case may be, in the
Assignment and Acceptance pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of
"Facility" in this Section 1.1.
"Revolving Credit Lender": each Lender that has a Revolving
Credit Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Note": as defined in Section 2.8(e).
21
"Revolving Credit Percentage": as to any Revolving Credit
Lender at any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the Total Revolving Credit Commitments (or, at
any time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender's Revolving
Extensions of Credit then outstanding constitutes the amount of the Total
Revolving Extensions of Credit then outstanding).
"Revolving Credit Termination Date": October 23, 2009 (or such
earlier date on which the Loans become due and payable pursuant to Section 9).
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding, (b)
such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding and (c) such Lender's Revolving Credit Percentage of the aggregate
principal amount of Swing Line Loans then outstanding.
"SEC": the Securities and Exchange Commission (or successors
thereto or an analogous Governmental Authority).
"Secured Parties": as defined in the Guarantee and Collateral
Agreement.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages and all other security
documents hereafter delivered to the Administrative Agent granting a Lien on any
Property of any Person to secure the obligations and liabilities of any Loan
Party under any Loan Document.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent": with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For
purposes of this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"Specified Hedge Agreement": any Hedge Agreement entered into
by the Borrower or any Subsidiary Guarantor and any Qualified Counterparty.
"S&P": Standard & Poor's Rating Services.
"Subordinated Debt": as to any Loan Party, any Indebtedness of
such Loan Party which is subordinated to the Obligations on terms acceptable to
the Administrative Agent.
22
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified or
the context otherwise requires, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
DOC.
"Subsidiary Guarantor": each Subsidiary of DOC that is a
Guarantor (provided that the Cellular Partnerships shall not be required to be
Guarantors).
"Supplemental Capital Expenditures": means, for any period,
the Capital Expenditures, which have been consented to in writing by the
Required Lenders, projected to be made in such period (in excess of the Capital
Expenditures permitted for such period by Sections 7.1(e)(ii)(w), (x) and (y))
by DOC and its Subsidiaries in connection with a Permitted Acquisition.
"SWI": Sygnet Wireless, Inc., an Ohio corporation.
"Swing Line Commitment": the obligation of the Swing Line
Lender to make Swing Line Loans pursuant to Section 2.6 in an aggregate
principal amount at any one time outstanding not to exceed $20,000,000.
"Swing Line Lender": LCPI, in its capacity as the lender of
Swing Line Loans.
"Swing Line Loans": as defined in Section 2.6.
"Swing Line Note": as defined in Section 2.8(e).
"Swing Line Participation Amount": as defined in Section
2.7(c).
"Syndication Date": the Closing Date.
"System": each of the Cellular Systems and PCS Systems, now or
hereafter owned, operated, or managed by DOC or its Subsidiaries.
"Tax Sharing Agreement": the consolidated income tax payment
agreement dated as of February 28, 1997, entered into among the Parent and its
Subsidiaries (as such agreement may be further amended from time to time with
the consent of Administrative Agent).
"Taxes": means, for any Person, taxes, assessments, or other
governmental charges or levies imposed upon such Person, its income, or any of
its properties, franchises, or assets.
"Term Loan Commitment": as to any Lender, the obligation of
such Lender, if any, to make a Term Loan to the Borrower hereunder in a
principal amount not to exceed the amount set forth under the heading "Term Loan
Commitment" opposite such Lender's name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Term Loan Commitments is $550,000,000.
"Term Loan Facility": as defined in the definition of
"Facilities" in this Section 1.1
23
"Term Loan Lenders": each Lender holding a Term Loan
Commitment or a Term Loan.
"Term Loans": as defined in Section 2.1
"Term Note": as defined in Section 2.8.
"Total Revolving Credit Commitments": at any time, the
aggregate amount of the Revolving Credit Commitments then in effect. The
original aggregate amount of the Total Revolving Credit Commitments is
$150,000,000.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders outstanding at such time.
"Transactions": collectively, each Merger, the Issuance of the
New Parent Senior Notes and the refinancings and repurchases contemplated in
Sections 4.16(a) and 5.1(b).
"Transaction Documents": each agreement, Indenture, instrument
and other document set forth on Schedule 5.1(b) pursuant to which the respective
Transactions have been, or shall be, consummated.
"Transferee": as defined in Section 11.14.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"UCC": the Uniform Commercial Code as in effect from time to
time in the State of
New York.
"Unrestricted Group": ACC and its Subsidiaries and each other
Unrestricted Subsidiary.
"Unrestricted Subsidiary": each Subsidiary of the Parent
(other than DOC and its Subsidiaries) which, from time to time, has been
designated as an "Unrestricted Subsidiary" pursuant to a resolution of the Board
of Directors of the Parent and notified in writing to the Administrative Agent;
provided that no Restricted Subsidiary which is a Guarantor may become an
Unrestricted Subsidiary, and no Unrestricted Subsidiary may become a Restricted
Subsidiary, without the prior written consent of the Administrative Agent (such
consent not to be unreasonably withheld or delayed).
"Voting Power": with respect to any Person, the rights
attributable to ownership of the Capital Stock of any class or kind ordinarily
to vote for the election of directors, managers or other voting members of the
governing body of such Person.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other Wholly
Owned Subsidiaries.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(a) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Parent, the
24
Borrower, DOC and its Subsidiaries not defined in Section 1.1 and accounting
terms partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(c) As used herein and in the other Loan Documents, the word
"including" shall mean "including without limitation".
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) All calculations of financial ratios set forth in Section
7.1 and the calculation of the DOC Leverage Ratio for purposes of determining
the Applicable Margin shall be calculated to the same number of decimal places
as the relevant ratios are expressed in and shall be rounded upward if the
number in the decimal place immediately following the last calculated decimal
place is five or greater. For example, if the relevant ratio is to be calculated
to the hundredth decimal place and the calculation of the ratio is 5.126, the
ratio will be rounded up to 5.13.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. Subject to the terms and conditions
hereof, the Lenders severally agree to make term loans (the "Term Loans") to the
Borrower on the Closing Date in an amount not to exceed the amount of the Term
Loan Commitment of such Lender. The Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.2 and 2.13.
2.2 Procedure for Term Loan Borrowing. The Borrower shall
deliver to the Administrative Agent a Borrowing Notice (which Borrowing Notice
must be received by the Administrative Agent prior to 10:00 A.M.,
New York City
time, one Business Day prior to the anticipated Closing Date) requesting that
the Term Loan Lenders make the Term Loans on the Closing Date. The Term Loans
made on the Closing Date shall initially be Base Rate Loans, and no Term Loan
may be converted into or continued as a Eurodollar Loan having an Interest
Period in excess of one month prior to the Syndication Date. Upon receipt of
such Borrowing Notice the Administrative Agent shall promptly notify each Term
Loan Lender thereof. Not later than 12:00 Noon,
New York City time, on the
Closing Date each Term Loan Lender shall make available to the Administrative
Agent at the Funding Office an amount in immediately available funds equal to
the Term Loan or Term Loans to be made by such Lender. The Administrative Agent
shall make available to the Borrower the aggregate of the amounts made available
to the Administrative Agent by the Term Loan Lenders, in like funds as received
by the Administrative Agent.
2.3 Repayment of Term Loans. The principal balance of the Term
Loans of each Term Loan Lender shall be repayable in consecutive quarterly
installments on the last day of each fiscal quarter of the Borrower ending
during the periods set forth below, each such payment in the applicable
quarterly percentage amount of the Term Loans outstanding on the Closing Date
which corresponds to each such period, as follows:
25
Quarterly Percentage
Fiscal Quarters Ended Repayment of Term Loans
--------------------- -----------------------
December 31, 2003 through March 31, 2009 0.25%
June 30, 2009 through March 31, 2010 23.625%
; provided that if, on or prior to January 31, 2010, the
Existing Parent Senior Notes have not been refinanced on terms which are not
materially less favorable to the Lenders than the Indenture with respect to the
Existing Parent Senior Notes and with a maturity date which is not earlier than
the date which is seven and one-half years after the Closing Date, then the Term
Loans will mature, and all outstanding amounts thereunder will be repayable on,
January 31, 2010. The outstanding principal balance of the Term Loans shall be
repaid on March 31, 2010 (or such earlier maturity date as provided above) to
the extent not otherwise paid prior to such date.
2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, the Revolving Credit Lenders severally agree to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding for each Revolving Credit Lender which, when
added to such Lender's Revolving Credit Percentage of the sum of (i) the L/C
Obligations then outstanding and (ii) the aggregate principal amount of the
Swing Line Loans then outstanding, does not exceed the amount of such Lender's
Revolving Credit Commitment. During the Revolving Credit Commitment Period the
Borrower may use the Revolving Credit Commitments by borrowing, prepaying the
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. The Revolving Credit Loans may from time
to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower
and notified to the Administrative Agent in accordance with Sections 2.5 and
2.13, provided that no Revolving Credit Loan shall be made as a Eurodollar Loan
after the day that is one month prior to the Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments on any Business Day during the
Revolving Credit Commitment Period, provided that the Borrower shall deliver to
the Administrative Agent a Borrowing Notice (which Borrowing Notice must be
received by the Administrative Agent prior to 12:00 Noon,
New York City time,
(a) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date,
in the case of Base Rate Loans). Any Revolving Credit Loans made, converted or
continued before the Syndication Date shall be Base Rate Loans or Eurodollar
Loans having an Interest Period of one month. Each borrowing of Revolving Credit
Loans under the Revolving Credit Commitments shall be in an amount equal to (x)
in the case of Base Rate Loans, $1,000,000 or a whole multiple thereof (or, if
the then aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; provided that
the Swing Line Lender may request, on behalf of the Borrower, borrowings of Base
Rate Loans under the Revolving Credit Commitments in other amounts pursuant to
Section 2.7. Upon receipt of any such Borrowing Notice from the Borrower, the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof.
Each Revolving Credit Lender will make its Revolving Credit Percentage of the
amount of each borrowing of Revolving Credit Loans available to the
Administrative Agent for the account of the Borrower at the Funding Office prior
to 12:00 Noon,
New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent in like funds as received by the Administrative Agent.
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2.6 Swing Line Commitment. (a) Subject to the terms and
conditions hereof, the Swing Line Lender agrees that, during the Revolving
Credit Commitment Period, it will make available to the Borrower in the form of
swing line loans ("Swing Line Loans") a portion of the credit otherwise
available to the Borrower under the Revolving Credit Commitments; provided that
(i) the aggregate principal amount of Swing Line Loans outstanding at any time
shall not exceed the Swing Line Commitment then in effect (notwithstanding that
the Swing Line Loans outstanding at any time, when aggregated with the Swing
Line Lender's other outstanding Revolving Credit Loans hereunder, may exceed the
Swing Line Commitment then in effect or such Swing Line Lender's Revolving
Credit Commitment then in effect) and (ii) the Borrower shall not request, and
the Swing Line Lender shall not make, any Swing Line Loan if, after giving
effect to the making of such Swing Line Loan, the aggregate amount of the
Available Revolving Credit Commitments would be less than zero. During the
Revolving Credit Commitment Period, the Borrower may use the Swing Line
Commitment by borrowing, repaying and reborrowing, all in accordance with the
terms and conditions hereof. Swing Line Loans shall be Base Rate Loans only.
(b) The Borrower shall repay all outstanding Swing Line Loans
on the Revolving Credit Termination Date.
2.7 Procedure for Swing Line Borrowing; Refunding of Swing
Line Loans. (a) The Borrower may borrow under the Swing Line Commitment on any
Business Day during the Revolving Credit Commitment Period, provided that the
Borrower shall give the Swing Line Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swing Line Lender not later than 1:00 P.M.,
New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date. Each borrowing under the Swing Line Commitment shall be in an
amount equal to $500,000 or a whole multiple of $100,000 in excess thereof. Not
later than 3:00 P.M.,
New York City time, on the Borrowing Date specified in the
borrowing notice in respect of any Swing Line Loan, the Swing Line Lender shall
make available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the amount of such Swing Line Loan. The
Administrative Agent shall make the proceeds of such Swing Line Loan available
to the Borrower on such Borrowing Date in like funds as received by the
Administrative Agent.
(b) The Swing Line Lender, at any time and from time to time
in its sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swing Line Lender to act on its behalf), on one Business
Day's notice given by the Swing Line Lender no later than 12:00 Noon,
New York
City time, request each Revolving Credit Lender to make, and each Revolving
Credit Lender hereby agrees to make, a Revolving Credit Loan (which shall
initially be a Base Rate Loan), in an amount equal to such Revolving Credit
Lender's Revolving Credit Percentage of the aggregate amount of the Swing Line
Loans (the "Refunded Swing Line Loans") outstanding on the date of such notice,
to repay the Swing Line Lender. Each Revolving Credit Lender shall make the
amount of such Revolving Credit Loan available to the Administrative Agent at
the Funding Office in immediately available funds, not later than 10:00 A.M.,
New York City time, one Business Day after the date of such notice. The proceeds
of such Revolving Credit Loans shall be made immediately available by the
Administrative Agent to the Swing Line Lender for application by the Swing Line
Lender to the repayment of the Refunded Swing Line Loans.
(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.7(b), one of the events described in
Section 9(f) shall have occurred and be continuing with respect to the Borrower,
or if for any other reason, as determined by the Swing Line Lender in its sole
discretion, Revolving Credit Loans may not be made as contemplated by Section
2.7(b), each Revolving Credit Lender shall, on the date such Revolving Credit
Loan was to have been made
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pursuant to the notice referred to in Section 2.7(b) (the "Refunding Date"),
purchase for cash an undivided participating interest in the then outstanding
Swing Line Loans by paying to the Swing Line Lender an amount (the "Swing Line
Participation Amount") equal to (i) such Revolving Credit Lender's Revolving
Credit Percentage times (ii) the sum of the aggregate principal amount of Swing
Line Loans then outstanding which were to have been repaid with such Revolving
Credit Loans.
(d) Whenever, at any time after the Swing Line Lender has
received from any Revolving Credit Lender such Lender's Swing Line Participation
Amount, the Swing Line Lender receives any payment on account of the Swing Line
Loans, the Swing Line Lender will distribute to such Lender its Swing Line
Participation Amount (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's participating interest
was outstanding and funded and, in the case of principal and interest payments,
to reflect such Lender's pro rata portion of such payment if such payment is not
sufficient to pay the principal of and interest on all Swing Line Loans then
due); provided, however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Revolving Credit Lender will
return to the Swing Line Lender any portion thereof previously distributed to it
by the Swing Line Lender.
(e) Each Revolving Credit Lender's obligation to make the
Loans referred to in Section 2.7(b) and to purchase participating interests
pursuant to Section 2.7(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right which such Revolving Credit Lender or the
Borrower may have against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower; (iv) any breach of this Agreement or
any other Loan Document by the Borrower, any other Loan Party or any other
Revolving Credit Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
2.8 Repayment of Loans; Evidence of Debt . (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the appropriate Revolving Credit Lender or Term Loan Lender, as the
case may be, (i) the then unpaid principal amount of each Revolving Credit Loan
of such Revolving Credit Lender on the Revolving Credit Termination Date (or on
such earlier date on which the Loans become due and payable pursuant to Section
9), (ii) the then unpaid principal amount of each Swing Line Loan of such Swing
Line Lender on the Revolving Credit Termination Date (or on such earlier date on
which the Loans become due and payable pursuant to Section 9) and (iii) the
principal amount of each Term Loan of such Term Loan Lender in installments
according to the amortization schedule set forth in Section 2.3 (or on such
earlier date on which the Loans become due and payable pursuant to Section 9).
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
Section 2.15.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 11.6(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type of such Loan and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to
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become due and payable from the Borrower to each Lender hereunder and (iii) both
the amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will promptly execute and
deliver to such Lender a promissory note of the Borrower evidencing any Term
Loans, Revolving Credit Loans or Swing Line Loans, as the case may be, of such
Lender, substantially in the forms of Exhibit G-1, G-2 or G-3, respectively (a
"Term Note", "Revolving Credit Note" or "Swing Line Note", respectively), with
appropriate insertions as to date and principal amount; provided that delivery
of Notes shall not be a condition precedent to the occurrence of the Closing
Date or the making of the Loans on the Closing Date.
2.9 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Borrower agrees to pay to the Syndication Agent the
fees in the amounts and on the dates previously agreed to in writing by the
Borrower and the Syndication Agent.
(c) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates from time to time agreed to in writing by
the Borrower and the Administrative Agent.
2.10 Termination or Reduction of Revolving Credit Commitments.
The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the aggregate amount of the
Revolving Credit Commitments; provided that no such termination or reduction of
Revolving Credit Commitments shall be permitted if, after giving effect thereto
and to any prepayments of the Revolving Credit Loans and Swing Line Loans made
on the effective date thereof, the Total Revolving Extensions of Credit would
exceed the Total Revolving Credit Commitments. Any such reduction shall be in an
amount equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect.
2.11 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty (except as otherwise provided herein), upon irrevocable notice delivered
to the Administrative Agent at least three Business Days prior thereto in the
case of Eurodollar Loans and at least one Business Day prior thereto in the case
of Base Rate Loans, which notice shall specify the date and amount of such
prepayment, whether such prepayment is of Term Loans or Revolving Credit Loans,
and whether such prepayment is of Eurodollar Loans or Base Rate Loans; provided
that (i) if a Eurodollar Loan is prepaid on any day other than the last day of
the Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to Section 2.21; (ii) no prior notice is required for the
prepayment of Swing Line Loans; (iii) each such partial prepayment
29
shall be applied pro rata to the remaining repayment installments thereof
pursuant to Section 2.3 and (iv) the amount of each such partial prepayment of
the Term Loans may not be reborrowed. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Credit Loans that are Base Rate Loans and Swing Line Loans) accrued
interest to such date on the amount prepaid. Partial prepayments of Term Loans
and Revolving Credit Loans shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof. Partial prepayments of Swing Line Loans
shall be in an aggregate principal amount of $100,000 or a whole multiple
thereof.
2.12 Mandatory Prepayments. (a) Unless the Required Prepayment
Lenders shall otherwise agree, if any Capital Stock shall be issued (excluding
any Capital Stock issued by DOC to the Parent or by a Wholly-Owned Subsidiary of
DOC to the direct parent of such Subsidiary), or any Indebtedness shall be
incurred (excluding any Indebtedness incurred pursuant to Section 7.2 (as such
section is in effect on the date of this Agreement), other than pursuant to
Section 7.2(j)), by DOC or any of its Subsidiaries, then on the date of such
issuance or incurrence, the Loans shall be prepaid by an amount equal to the
amount of the Net Cash Proceeds of such issuance or incurrence, as set forth in
Section 2.12(d). The provisions of this Section do not constitute a consent to
the issuance of any equity securities by any entity whose equity securities are
pledged pursuant to the Guarantee and Collateral Agreement, or a consent to the
incurrence of any Indebtedness by DOC or any of its Subsidiaries.
(b) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date DOC or any of its Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale, Purchase Price Refund or Recovery Event then,
unless a Reinvestment Notice shall be delivered in respect thereof (which may be
delivered, and pursuant to which any such reinvestment may be made, only if no
Default or Event of Default has occurred which is continuing), within 20 days
following the date of receipt by DOC or any of its Subsidiaries of such Net Cash
Proceeds, the Loans shall be prepaid by an amount equal to the amount of such
Net Cash Proceeds, as set forth in Section 2.12(d); provided that,
notwithstanding the foregoing, on each Reinvestment Prepayment Date the Loans
shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event, as set forth in Section 2.12(d). The
provisions of this Section do not constitute a consent to the consummation of
any Disposition not permitted by Section 7.5.
(c) Unless the Required Prepayment Lenders shall otherwise
agree, if, at the end of any fiscal year of DOC, the Parent Leverage Ratio for
the preceding four fiscal quarters is equal to or greater than 4.15 to 1, the
Loans shall be prepaid by an amount equal to 50% of such Excess Cash Flow, as
set forth in Section 2.12(d). Each such prepayment shall be made on a date (an
"Excess Cash Flow Application Date") no later than five days after the earlier
of (i) the date on which the financial statements of DOC referred to in Section
6.1(a), for the fiscal year with respect to which such prepayment is made, are
required to be delivered to the Lenders and (ii) the date such financial
statements are actually delivered.
(d) (i) Amounts to be applied in connection with prepayments
and Commitment reductions made pursuant to this Section shall be applied,
subject as provided in clause (d)(ii) below, first, to the prepayment of the
Term Loans and, second, to the prepayment of the Revolving Credit Loans
outstanding (but without reducing the Revolving Credit Commitment). Each such
prepayment of the Term Loans shall be applied pro rata to reduce the remaining
repayment installments thereof pursuant to Section 2.3; provided that the
amounts prepaid with respect to the Term Loans may not be reborrowed. (ii)
Notwithstanding the foregoing, any Term Loan Lender may, at its option, elect
not to accept such mandatory prepayment of its Term Loan (any Term Loan Lender
making such election being a "Declining Lender") as follows: each Declining
Lender shall give written notice thereof to the
30
Administrative Agent not later than 10:00 a.m. New York City time on the
Business Day preceding the date (as notified to each Term Loan Lender by the
Administrative Agent pursuant to a notice substantially in the form of Exhibit
H) of the applicable prepayment. On such date of prepayment, (x) an amount equal
to that portion of the Term Loans then to be prepaid to the Term Loan Lenders
(less the amount thereof that would otherwise be payable to Declining Lenders)
shall be paid to the Term Loan Lenders that are not Declining Lenders and (y) an
amount equal to that portion of the Term Loans that would otherwise be payable
to Declining Lenders shall be applied first in further prepayment of the Term
Loans held by Term Loan Lenders that are not Declining Lenders (to the extent
that they have not declined such further prepayment) and second to the
prepayment of the Revolving Credit Loans outstanding, in each case on the basis
provided in clause (d)(i) above. In the event that the Administrative Agent has
not, with respect to any mandatory prepayment, received a notice from a Term
Loan Lender in accordance with this clause (d)(ii), such Term Loan Lender shall
be deemed to have waived its rights under this clause (d)(ii) to decline receipt
thereof.
2.13 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving
the Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may be made
only on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefor), provided that no Base Rate Loan under a particular
Facility may be converted into a Eurodollar Loan (i) when any Event of Default
has occurred and is continuing and the Administrative Agent has, or the Majority
Facility Lenders in respect of such Facility have, determined in its or their
sole discretion not to permit such conversions or (ii) after the date that is
one month prior to the final scheduled termination or maturity date of such
Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) The Borrower may elect to continue any Eurodollar Loan as
such upon the expiration of the then current Interest Period with respect
thereto by giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan under a particular Facility may be
continued as such (i) when any Event of Default has occurred and is continuing
and the Administrative Agent has, or the Majority Facility Lenders in respect of
such Facility have, determined in its or their sole discretion not to permit
such continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and provided, further,
that if the Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso, such Loans shall be converted automatically to Base Rate
Loans on the last day of such then expiring Interest Period. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
2.14 Minimum Amounts and Maximum Number of Eurodollar
Tranches. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans and all selections of Interest Periods shall be in such amounts and be
made pursuant to such elections so that, (a) after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar
Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and (b) no more than ten Eurodollar Tranches shall be outstanding at any
one time.
2.15 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin in effect for such day.
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(b) Each Base Rate Loan shall bear interest for each day on
which it is outstanding at a rate per annum equal to the Base Rate in effect for
such day plus the Applicable Margin in effect for such day.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), all outstanding Loans and
Reimbursement Obligations (whether or not overdue) (to the extent legally
permitted) shall bear interest at a rate per annum that is equal to (x) in the
case of the Loans, the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this Section plus 2% or (y) in the case of
Reimbursement Obligations, the rate applicable to Base Rate Loans under the
Revolving Credit Facility plus 2%, and (ii) if all or a portion of any interest
payable on any Loan or Reimbursement Obligation or any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate then applicable to Base Rate Loans under
the relevant Facility plus 2% (or, in the case of any such other amounts that do
not relate to a particular Facility, the rate then applicable to Base Rate Loans
under the Revolving Credit Facility plus 2%), in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until such amount
is paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.16 Computation of Interest and Fees. (a) Interest, fees,
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans on which interest is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section
2.15(a).
2.17 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period,
32
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans under
the relevant Facility shall be made or continued as such, nor shall the Borrower
have the right to convert Loans under the relevant Facility to Eurodollar Loans.
2.18 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee or Letter of Credit fee, and any reduction of the
Commitments of the Lenders, shall be made pro rata according to the respective
Term Loan Percentages or Revolving Credit Percentages, as the case may be, of
the relevant Lenders. Each payment (other than as provided in Section 2.12(d))
in respect of principal or interest in respect of the Term Loans and each
payment in respect of fees payable hereunder shall be applied to the amounts of
such obligations owing to the Lenders pro rata according to the respective
amounts then due and owing to the Lenders.
(b) The application of any payment of Loans under any Facility
(including optional and mandatory prepayments) shall be made, first, to Base
Rate Loans under such Facility and, second, to Eurodollar Loans under such
Facility. Each payment of the Loans (except in the case of Swing Line Loans and
Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued
interest to the date of such payment on the amount paid.
(c) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the relevant Lenders, at the Payment Office, in
Dollars and in immediately available funds. Any payment made by the Borrower
after 12:00 Noon, New York City time, on any Business Day shall be deemed to
have been on the next following Business Day. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day unless the result
of such extension would be to extend such payment into another calendar month,
in which event such payment shall be made on the immediately preceding Business
Day. In the case of any extension of any payment of principal pursuant to the
preceding two sentences, interest thereon shall be payable at the then
applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the
33
Administrative Agent submitted to any Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to Base Rate Loans
under the relevant Facility, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment due to be made by
the Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Lenders their
respective pro rata shares of a corresponding amount. If such payment is not
made to the Administrative Agent by the Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrower.
2.19 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of
Credit, any Application or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in
respect thereof (except for Non-Excluded Taxes covered by
Section 2.20 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by,
any office of such Lender that is not otherwise included in
the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority
34
made subsequent to the date hereof shall have the effect of reducing the rate of
return on such Lender's or such corporation's capital as a consequence of its
obligations hereunder or under or in respect of any Letter of Credit to a level
below that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
written request therefor, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or such corporation for such
reduction; provided that the Borrower shall not be required to compensate a
Lender pursuant to this paragraph for any amounts incurred more than six months
prior to the date that such Lender notifies the Borrower of such Lender's
intention to claim compensation therefor; and provided further that, if the
circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect.
(c) A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender to the Borrower (with a copy to
the Administrative Agent) shall be conclusive in the absence of manifest error.
The obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.20 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Agent's or such Lender's having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") or any Other
Taxes are required to be withheld from any amounts payable to any Agent or any
Lender hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement; provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
such Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph (a).
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agents and
35
the Lenders for any incremental taxes, interest or penalties that may become
payable by any Agent or any Lender as a result of any such failure. The
agreements in this Section shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
(or any jurisdiction thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest" a statement substantially in the form of
Exhibit I and a Form W-8BEN, or any subsequent versions thereof or successors
thereto properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's reasonable judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
2.21 Indemnity. The Borrower agrees to indemnify each Lender
for, and to hold each Lender harmless from, any loss or expense that such Lender
may sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment or conversion of
Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by such
Lender) that would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the
36
interbank Eurodollar market. A certificate as to any amounts payable pursuant to
this Section submitted to the Borrower by any Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.22 Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be canceled and (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 2.21.
2.23 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.19,
2.20(a) or 2.22 with respect to such Lender, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided that
such designation is made on terms that, in the sole judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in this Section
shall affect or postpone any of the obligations of any Borrower or the rights of
any Lender pursuant to Section 2.19, 2.20(a) or 2.22.
2.24 Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.19 or 2.20 or gives a
notice of illegality pursuant to Section 2.22 or (b) defaults in its obligation
to make Loans hereunder, with a replacement financial institution; provided that
(i) such replacement does not conflict with any Requirement of Law, (ii) no
Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall have taken
no action under Section 2.23 so as to eliminate the continued need for payment
of amounts owing pursuant to Section 2.19 or 2.20 or to eliminate the illegality
referred to in such notice of illegality given pursuant to Section 2.22, (iv)
the replacement financial institution shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.21 (as though Section 2.21 were applicable) if any Eurodollar Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 11.6 (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) the Borrower shall pay all additional amounts (if any)
required pursuant to Section 2.19 or 2.20, as the case may be, in respect of any
period prior to the date on which such replacement shall be consummated, and
(ix) any such replacement shall not be deemed to be a waiver of any rights that
the Borrower, the Administrative Agent or any other Lender shall have against
the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, each Issuing Lender, in reliance on the agreements of the other
Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue letters of
credit (the "Letters of Credit") for the account of the Borrower on any Business
37
Day during the Revolving Credit Commitment Period in such form as may be
approved from time to time by such Issuing Lender; provided that no such Letter
of Credit shall be issued if, after giving effect to such issuance, (i) the L/C
Obligations plus the aggregate amount of Indebtedness outstanding at such time
pursuant to Section 7.2(k) would exceed the L/C Commitment or (ii) the aggregate
amount of the Available Revolving Credit Commitments would be less than zero.
Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no
later than the earlier of (x) the first anniversary of its date of issuance and
(y) the date which is five Business Days prior to the Revolving Credit
Termination Date; provided that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (y) above).
(b) No Issuing Lender shall at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
such Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as such
Issuing Lender may request. Upon receipt of any Application, an Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower
(but in no event shall any Issuing Lender be required to issue any Letter of
Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto). Each Issuing Lender shall promptly give notice to
the Administrative Agent of its receipt of each Application for the issuance of
a Letter of Credit (including the amount thereof). Upon the issuance by an
Issuing Lender of a Letter of Credit, such Issuing Lender shall furnish a copy
of such Letter of Credit to each of the Borrower and the Administrative Agent.
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on
the aggregate drawable amount of all outstanding Letters of Credit at a per
annum rate equal to the Applicable Margin then in effect with respect to
Eurodollar Loans under the Revolving Credit Facility, shared ratably among the
Revolving Credit Lenders in accordance with their respective Revolving Credit
Percentages and payable quarterly in arrears on each L/C Fee Payment Date after
the issuance date. In addition, the Borrower shall pay to the relevant Issuing
Lender for its own account a fronting fee on the aggregate drawable amount of
all outstanding Letters of Credit issued by it of 1/4 of 1% per annum, payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the Borrower shall pay
or reimburse each Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by such Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce each
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
each Issuing Lender, on the terms and conditions hereinafter stated, for such
L/C Participant's own account and risk, an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in each Issuing Lender's obligations
and rights under each Letter of Credit issued by such Issuing Lender hereunder
and the amount of each draft paid by such Issuing Lender thereunder. Each L/C
38
Participant unconditionally and irrevocably agrees with each Issuing Lender
that, if a draft is paid under any Letter of Credit issued by such Issuing
Lender for which such Issuing Lender is not reimbursed in full by the Borrower
in accordance with the terms of this Agreement, such L/C Participant shall pay
upon demand to the Administrative Agent (for the account of such Issuing Lender)
at the Administrative Agent's address for notices specified herein, and the
Administrative Agent shall promptly thereafter pay to such Issuing Lender, an
amount equal to such L/C Participant's Revolving Credit Percentage of the amount
of such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to an Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit is
paid to such Issuing Lender within three Business Days after the date such
payment is due, such Issuing Lender shall so notify the Administrative Agent who
shall promptly notify such L/C Participant and such L/C Participant shall pay
upon demand to the Administrative Agent (for the account of such Issuing
Lender), and the Administrative Agent shall promptly thereafter pay to such
Issuing Lender, an amount equal to the product of (i) such amount, times (ii)
the daily average Federal Funds Effective Rate during the period from and
including the date such payment is required to the date on which such payment is
immediately available to such Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to Section 3.4(a) is not made available to such Issuing
Lender by such L/C Participant within three Business Days after the date such
payment is due, the Administrative Agent on behalf of such Issuing Lender shall
be entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to Base Rate Loans under the Revolving Credit Facility. A certificate of the
Administrative Agent submitted on behalf of any Issuing Lender to any L/C
Participant with respect to any such amounts owing under this Section shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made
payment under any Letter of Credit and has received from the Administrative
Agent any L/C Participant its pro rata share of such payment in accordance with
Section 3.4(a), such Issuing Lender receives any payment related to such Letter
of Credit (whether directly from the Borrower or otherwise, including proceeds
of collateral applied thereto by such Issuing Lender), or any payment of
interest on account thereof, such Issuing Lender will distribute to the
Administrative Agent for the account of such L/C Participant, and the
Administrative Agent shall promptly thereafter pay to such L/C Participant, its
pro rata share thereof; provided, however, that in the event that any such
payment received by such Issuing Lender shall be required to be returned by such
Issuing Lender, such L/C Participant shall return to the Administrative Agent
(for the account of such Issuing Lender), and the Administrative Agent shall
promptly thereafter pay to such Issuing Lender, the portion thereof previously
distributed by such Issuing Lender and received by such L/C Participant.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse each Issuing Lender, on each date on which such Issuing
Lender notifies the Borrower of the date and amount of a draft presented under
any Letter of Credit and paid by such Issuing Lender, for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment (the amounts
described in the foregoing clauses (a) and (b) in respect of any drawing,
collectively, the "Payment Amount"). Each such payment shall be made to such
Issuing Lender at its address for notices specified herein in lawful money of
the United States of America and in immediately available funds. Interest shall
be payable on each Payment Amount from the date of the applicable drawing until
payment in full at the rate set forth in (i) until the second Business Day
following the date of the applicable drawing, Section 2.15(b) and (ii)
thereafter, Section 2.15(c). Each drawing under any Letter of Credit shall
(unless an event of the type described in clause (i) or (ii) of Section 9(f)
shall have occurred and be continuing with respect to the Borrower, in which
case the
39
procedures specified in Section 3.4 for funding by L/C Participants shall apply)
constitute a request by the Borrower to the Administrative Agent for a borrowing
pursuant to Section 2.5 of Base Rate Loans (or, at the option of the
Administrative Agent and the Swing Line Lender in their sole discretion, a
borrowing pursuant to Section 2.7 of Swing Line Loans) in the amount of such
drawing. The Borrowing Date with respect to such borrowing shall be the first
date on which a borrowing of Revolving Credit Loans (or, if applicable, Swing
Line Loans) could be made, pursuant to Section 2.5 (or, if applicable, Section
2.7), if the Administrative Agent had received a notice of such borrowing at the
time the Administrative Agent receives notice from the relevant Issuing Lender
of such drawing under such Letter of Credit.
3.6 Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or have had against any Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
with each Issuing Lender that such Issuing Lender shall not be responsible for,
and the Borrower's Reimbursement Obligations under Section 3.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. No Issuing
Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Issuing Lender. The Borrower agrees that any action taken or omitted by an
Issuing Lender under or in connection with any Letter of Credit issued by it or
the related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards or care specified in the
UCC, shall be binding on the Borrower and shall not result in any liability of
such Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the relevant Issuing Lender shall
promptly notify each of the Borrower and the Administrative Agent of the date
and amount thereof. The responsibility of the relevant Issuing Lender to the
Borrower in connection with any draft presented for payment under any Letter of
Credit, in addition to any payment obligation expressly provided for in such
Letter of Credit issued by such Issuing Lender, shall be limited to determining
that the documents (including each draft) delivered under such Letter of Credit
in connection with such presentment appear on their face to be in conformity
with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, DOC and the Borrower hereby jointly and severally represent and warrant
to each Agent and each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of each of the Parent and its consolidated
Subsidiaries (other than ACC and its Subsidiaries), each as of June 30, 2003
(including the notes thereto) (the "Pro Forma Balance Sheets"), copies of which
have heretofore been furnished to each Lender, has been prepared giving effect
(as if such events had occurred on such
40
date) to (x) the consummation of each of the Transactions, (y) the Loans to be
made on the Closing Date and the use of proceeds thereof (including towards the
Refinancing) and (z) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheets have been prepared based on the best
information available to the Parent as of the date of delivery thereof, and
presents fairly on a pro forma basis the estimated financial position of the
Parent and its consolidated Subsidiaries (other than ACC and its Subsidiaries),
as of June 30, 2003, assuming that the events specified in the preceding
sentence had actually occurred at such date.
(b) The audited consolidated balance sheets of the Parent as
at December 31, 2001 and December 31, 2002, and the related consolidated
statements of income and of cash flows for the fiscal years ended on such dates,
reported on by and accompanied by an unqualified report from KPMG LLP, present
fairly the consolidated financial condition of the Parent as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the respective fiscal years then ended. The unaudited consolidated balance sheet
of the Parent as at June 30, 2003, and the related unaudited consolidated
statements of income and cash flows for the six-month period ended on such date,
present fairly the consolidated financial condition of the Parent as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the six-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). The Parent, DOC and their respective
Subsidiaries do not have any material Guarantee Obligations, contingent
liabilities and liabilities for Taxes, or any long-term leases or unusual
forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph. During the period from June 30, 2003 to and
including the date hereof there has been no Disposition by any of the Parent,
DOC and their respective Subsidiaries of any material part of its business or
Property.
4.2 No Change. Since December 31, 2002 there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law; Authorizations.
Each of the Parent, the Borrower, DOC and its Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and authority, and
the legal right, to own and operate its Property, to lease the Property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of Property or
the conduct of its business requires such qualification, (e) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect and (f) possesses all Authorizations, franchises, permits,
licenses, certificates of compliance, and approvals and grants of authority
necessary in the conduct each of its respective businesses, and the same are
valid, binding, enforceable, and subsisting without any defaults thereunder or
enforceable adverse limitations thereon and are not subject to any proceedings
or claims opposing the issuance, development, or use thereof or contesting the
validity thereof except to the extent that failure to comply with any of the
foregoing pursuant to this clause (f) could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect .
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents and the Transaction Documents to
which it is a party and, in the case of the Borrower, to borrow hereunder. Each
Loan Party has taken all necessary corporate or other action to authorize the
execution, delivery and performance of the Loan Documents and the Transaction
Documents to which it is a party
41
and, in the case of the Borrower, to authorize the borrowings on the terms and
conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the Transactions, the borrowings
hereunder or the execution, delivery, performance, validity or enforceability of
this Agreement, any of the other Loan Documents or the Transaction Documents,
except (i) consents, authorizations, filings and notices described in Schedule
4.4, which consents, authorizations, filings and notices have been obtained or
made and are in full force and effect and (ii) the filings referred to in
Section 4.19. Each Loan Document and each Transaction Document has been duly
executed and delivered on behalf of each Loan Party that is a party thereto.
This Agreement constitutes, and each other Loan Document and Transaction
Document upon execution will constitute, a legal, valid and binding obligation
of each Loan Party that is a party thereto, enforceable against each such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof, and the closing of
the Transactions, will not violate any Requirement of Law, any Authorization or
any Contractual Obligation of the Parent, DOC or any of its Subsidiaries and
will not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any Requirement of Law, any
Authorization or any such Contractual Obligation (other than the Liens created
by the Security Documents). No Requirement of Law, Authorization or Contractual
Obligation applicable to DOC or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Parent, the Borrower or DOC, threatened by or against
the Parent, DOC or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to be adversely determined and, if so determined, could reasonably be
expected to have a Material Adverse Effect. Schedule 4.6 sets forth any such
litigation, investigation or proceeding which could, if adversely determined,
have a Material Adverse Effect.
4.7 No Default. None of the Parent, DOC or any of its
Subsidiaries is in default under or with respect to any of its Authorizations or
Contractual Obligations in any respect that could reasonably be expected to have
a Material Adverse Effect. No Default or Event of Default has occurred which is
continuing.
4.8 Ownership of Property; Liens. Each of the Parent, DOC and
its Subsidiaries has title in fee simple to, or a valid leasehold interest in,
all its real property, and marketable title to, or a valid leasehold interest
in, all its other Property, and none of such Property is subject to any Lien
except as permitted by Sections 7.3 or 8.2 (as applicable). As of the Closing
Date, none of DOC and its Subsidiaries own any fee interest in any tract (or
series of tracts at the same location) of real property which has a Fair Market
Value (together with improvements thereof) of $3,000,000 or more.
4.9 Intellectual Property. Each of the Parent, DOC and its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No material claim has
been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does the Parent, DOC or the Borrower know of any valid basis for
any such claim. The use of Intellectual Property by The Parent, DOC and its
Subsidiaries does not infringe on the rights of any Person in any material
respect.
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4.10 Taxes. Each of the Parent, the Borrower, DOC and each of
its Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all Taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its Property and all other Taxes, fees or other charges imposed on it or
any of its Property by any Governmental Authority (other than the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Parent, DOC or its Subsidiaries, as the case may
be); and no Lien for Taxes has been filed, and, to the knowledge of the Parent,
the Borrower and DOC, no claim is being asserted, with respect to any such Tax,
fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect or for any purpose that violates the
provisions of the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1 referred to in Regulation U.
4.12 Labor Matters. There are no strikes or other labor
disputes against the Parent, DOC or any of its Subsidiaries pending or, to the
knowledge of the Parent, the Borrower, DOC, threatened that (individually or in
the aggregate) could reasonably be expected to have a Material Adverse Effect.
Hours worked by and payment made to employees of the Parent, the Borrower, DOC
and its Subsidiaries have not been in violation of the Fair Labor Standards Act
or any other applicable Requirement of Law dealing with such matters that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect. All payments due from the Parent, DOC or any of its
Subsidiaries on account of employee health and welfare insurance that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect if not paid have been paid or accrued as a liability on
the books of the Parent, the Borrower, DOC or the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by a material amount. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under ERISA, and neither the Borrower nor any Commonly
Controlled Entity would become subject to any material liability under ERISA if
the Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made. No such Multiemployer
Plan is in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
43
4.15 Subsidiaries. (a) The Subsidiaries listed on Schedule
4.15(a) constitute all the Subsidiaries of the Parent at the date hereof and the
Closing Date. Schedule 4.15(a) sets forth as of the Closing Date the name and
jurisdiction of incorporation of each such Subsidiary and, as to DOC and each of
its Subsidiaries, the percentage of each class of Capital Stock owned by any
Loan Party.
(b) There are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments of any nature relating to any
Capital Stock of DOC or any of its Subsidiaries.
(c) None of DOC or its Subsidiaries owns any Capital Stock of
any Subsidiary of Parent which is not a Subsidiary of the Borrower or DOC.
(d) The number and percentage of shares of partnership
interests in each of the Cellular Partnerships, and the ownership thereof, are
set forth on Schedule 4.15(d); all such partnership interests are validly issued
under the terms of the applicable Partnership Agreements and applicable Law; and
any ownership thereof by any Loan Party is free and clear of any Liens or
security interests or other contractual restrictions (except any restrictions
set forth on Schedule 4.15(d)), other than the pledge thereof pursuant to the
Collateral Documents. As of the date hereof and the Closing Date, Schedule
4.15(d) sets forth all Indebtedness which is owed to DOC or any of its
Subsidiaries by any of their respective Affiliates or by GRTI.
4.16 Use of Proceeds. (a) The proceeds of the Term Loans shall
be used: (i)(x) to repurchase, on or before November 15, 2003, all or
substantially all of the Existing Xxxxxx/Sygnet Senior Notes (and pending such
application such proceeds of the Term Loans shall be held in a cash collateral
account maintained with the Administrative Agent as security for the
Obligations) and (y) to pay, on the Closing Date, all outstanding amounts under
the Existing Sygnet Wireless Credit Facility; (ii) to repay to the Parent the
intercompany loans made by the Parent on September 26, 2003 (x) to the Borrower
(made in the amount of $197,000,000 to prepay certain Indebtedness under the
Existing Sygnet Wireless Credit Facility) and (y) to DOC (made in the amount of
$70,000,000 to prepay certain Indebtedness under the Existing DOC Credit
Facility) provided that (1) the portion of Term Loans applied pursuant to clause
(ii)(y) shall be advanced by the Borrower to DOC as an unsecured loan
(subordinated to the Obligations on terms acceptable to the Administrative
Agent) and (2) the Parent shall apply the proceeds of the Term Loans received by
it pursuant to this clause (ii) in the redemption, on or before November 15,
2003, of $250,000,000 in aggregate liquidation preference of the Parent 12.25%
Senior Exchangeable Preferred Stock (and pending such application by the Parent
such proceeds of the Term Loans shall be held in a cash collateral account
maintained with the Administrative Agent as security for the Obligations); (iii)
for general corporate purposes of the Borrower, DOC and its Subsidiaries
(including the redemption or purchase of the portion of the Existing
Xxxxxx/Sygnet Senior Notes remaining after giving effect to the repurchase
referred to in clause (i)(x) above); and (iv) to pay related fees and expenses.
(b) The proceeds of the Revolving Credit Loans and the Swing
Line Loans, and the Letters of Credit shall be used, following the Closing Date,
for general corporate purposes of the Borrower, DOC and its Subsidiaries,
including making Permitted Acquisitions.
4.17 Environmental Matters. Other than exceptions to any of
the following that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect:
(a) DOC and its Subsidiaries: (i) are, and within the period
of all applicable statutes of limitation have been, in compliance with all
applicable Environmental Laws except to the extent that the foregoing could not
reasonably be expected to result in any of them having a liability for a
Material Environmental Amount; (ii) hold all Environmental Permits (each of
which is in full force and effect) required for any of their current or intended
operations or for any property owned, leased, or otherwise
44
operated by any of them; (iii) are, and within the period of all applicable
statutes of limitation have been, in material compliance with all of their
Environmental Permits; and (iv) reasonably believe that: (x) each of their
material Environmental Permits will be timely renewed and complied with, without
material expense, (y) any additional Environmental Permits that may be required
of any of them will be timely obtained and complied with, without material
expense and (z) compliance with any Environmental Law that is or is expected to
become applicable to any of them will be timely attained and maintained, without
material expense.
(b) Materials of Environmental Concern are not present at, on,
under, in, or about any real property owned, leased or operated by DOC or any of
its Subsidiaries, or at any other location (including any location to which
Materials of Environmental Concern have been sent for re-use or recycling or for
treatment, storage, or disposal) which could reasonably be expected to (i) give
rise to any cost or liability (in either case for a Material Environmental
Amount) of DOC or any of its Subsidiaries under any applicable Environmental
Law, or (ii) materially interfere with the Borrower's, DOC's or any of its
Subsidiaries' continued operations, or (iii) materially impair the fair saleable
value of any material real property owned or leased by DOC or any of its
Subsidiaries.
(c) There is no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation) under or
relating to any Environmental Law to which DOC or any of its Subsidiaries is, or
to the knowledge of DOC or any of its Subsidiaries will be, named as a party
that is pending or, to the knowledge of DOC or any of its Subsidiaries,
threatened which has resulted or could reasonably be expected to result in any
of them having a liability for a Material Environmental Amount.
(d) None of the Borrower, DOC and its Subsidiaries has
received any written request for information, or been notified that it is a
potentially responsible party under or relating to the federal Comprehensive
Environmental Response, Compensation, and Liability Act or any similar
Environmental Law, or with respect to any Materials of Environmental Concern
which has resulted or could reasonably be expected to result in any of them
having a liability for a Material Environmental Amount.
(e) Neither the Borrower, DOC nor any of its Subsidiaries has
entered into or agreed to any consent decree, order, or settlement or other
agreement, or is subject to any judgment, decree, or order or other agreement,
in any judicial, administrative, arbitral, or other forum for dispute
resolution, relating to compliance with or liability under any Environmental Law
which has resulted or could reasonably be expected to result in any of them
having a liability for a Material Environmental Amount.
(f) Neither the Borrower, DOC nor any of its Subsidiaries has
assumed or retained, by contract or operation of law, any material liabilities
of any kind, fixed or contingent under any Environmental Law or with respect to
any Material of Environmental Concern which has resulted or could reasonably be
expected to result in any of them having a liability for a Material
Environmental Amount.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Administrative Agent or the Lenders or any of them, by or on behalf of
any Loan Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
45
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact known
to any Loan Party that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Agents and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
4.19 Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the
benefit of the Secured Parties, a legal, valid and enforceable security interest
in the Collateral described therein and proceeds thereof. The Guarantee and
Collateral Agreement constitutes a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the Collateral
and the proceeds thereof, as security for the Obligations (as defined in the
Guarantee and Collateral Agreement), in each case prior and superior in right to
any other Person, except in the case of Collateral other than Pledged Stock (x)
Liens permitted by Section 7.3 and (y) as otherwise expressly permitted by
Section 4.3 of the Guarantee and Collateral Agreement. Schedule 4.19(a)-2 lists
each UCC Financing Statement that (i) names any Loan Party as debtor and (ii)
will remain on file after the Closing Date with respect to Liens permitted by
Section 7.3 which do not secure the Obligations. Schedule 4.19(a)-3 lists each
UCC Financing Statement that (i) names any Loan Party as debtor and (ii) will be
terminated on or prior to the Closing Date (including each such UCC Financing
Statement with respect to the Existing Credit Facilities); and on or prior to
the Closing Date, the Borrower will have delivered to the Administrative Agent,
or caused to be filed, duly completed UCC termination statements, authorized or
authenticated by the relevant secured party, in respect of each such UCC
Financing Statement listed in Schedule 4.19(a)-3.
(b) Each of the Mortgages executed and delivered pursuant to
Section 6.10 (b) shall, upon such execution and delivery, be effective to create
in favor of the Administrative Agent, for the benefit of the Secured Parties, a
legal, valid and enforceable Lien on the Mortgaged Properties described therein
and proceeds thereof; and when the Mortgages are filed in the recording office
designated by the Borrower, each Mortgage shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan
Parties in the Mortgaged Properties described therein and the proceeds thereof,
as security for the Obligations (as defined in the relevant Mortgage), in each
case prior and superior in right to any other Person (other than Persons holding
Liens or other encumbrances or rights permitted by the relevant Mortgage).
4.20 Solvency. Each Loan Party is, and after giving effect to
the incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith, and to the consummation of the Transactions and the
other transactions contemplated hereby, will be and will continue to be,
Solvent.
4.21 Senior Indebtedness. The Loans made to the Borrower and
the Guarantee Obligations of each Guarantor with respect thereto each rank at
least pari passu with, respectively, all other Indebtedness and Guarantee
Obligations of the Borrower and such Guarantor.
4.22 Regulation H. No Mortgage encumbers improved real
property which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968 (except any Mortgaged Properties as to which such flood insurance as
required by Regulation H has been obtained and is in full force and effect as
required by this Agreement).
46
4.23 Material Agreements; Management Agreements. Schedule 4.23
sets forth all contracts material to the respective business of DOC and its
Subsidiaries (including with respect to the Systems) (the "Material
Agreements"), and there exists no material default under any of such contracts.
There are no failures of any material written or oral agreements, contracts,
commitments, or understandings to which any Loan Party is a party to be in full
force and effect which could reasonably be expected have a Material Adverse
Event, and no default or potential default exists on the part of any Loan Party
thereunder which could reasonably be expected have a Material Adverse Event.
Except as set forth on Schedule 4.23: (i) no Loan Party is a party to any
material management or consulting agreement for the provision of services to it
and (ii) the Parent has not entered into any contract which is material to its
business since the date of issuance of the New Parent Senior Notes.
4.24 Permitted Acquisitions. With respect to any Permitted
Acquisition (including any Permitted Asset Swap) (a) each acquiring Person has
the power and authority under the Laws of its state of incorporation or
organization and under its articles of incorporation and bylaws, organizational
documents, or Partnership Agreement, as applicable, to enter into and perform
the related acquisition agreement to which it is a party and all other
agreements, documents, and actions required thereunder; and all actions
(corporate or otherwise) necessary or appropriate by such acquiring Person for
the execution and performance of such acquisition agreements, and all other
documents, agreements, and actions required thereunder, have been taken, and,
upon their execution, such acquisition agreements will constitute the valid and
binding obligation of each acquiring Person party thereto, enforceable in
accordance with their respective terms and (b) the making and performance of the
related Acquisition agreements, and all other agreements, documents, and actions
required thereunder, will not violate any provision of any Requirements of Law
and will not violate any provisions of the articles of incorporation, bylaws, or
Partnership Agreements of such acquiring Person, or constitute a default under
any agreement by which it or its property may be bound.
4.25 FCC and PUC Matters. (a) Set forth on Schedule 4.25 is a
complete list, as of the Closing date, of all FCC Licenses and the expiration
date thereof and each such FCC License is owned by the Borrower or one of its
Subsidiaries.
(b) Each of DOC and its Subsidiaries has all requisite power
and authority, all necessary FCC Licenses required under the Communications Act,
and all necessary PUC Authorizations to own and operate its properties and to
carry on its businesses as now conducted. Each such FCC License and each such
PUC Authorization (i) was validly issued to it and is in full force and effect,
and (ii) constitutes in all material respects all of the Authorizations from any
Communications Regulatory Authority necessary for the operation of DOC and its
Subsidiaries' business in the same manner as it is presently conducted.
(c) On and after the Closing Date, the Borrower and the
Subsidiary Guarantors (collectively) directly own FCC Licenses for licensed
areas representing at least 90% of the Pops of all licensed areas for which FCC
Licenses are owned by DOC and its Subsidiaries.
(d) Each of DOC and its Subsidiaries have taken all material
actions and performed all of their material obligations that are necessary to
maintain each FCC License and each PUC Authorization without adverse
modification or impairment and no event has occurred which (i) results in, or
after notice or lapse of time or both would result in, any revocation,
suspension, materially adverse modification, non-renewal or termination,
material impairment of value of, or any materially adverse order of forfeiture
with respect to, any FCC License or (ii) materially and adversely affects or in
the future may materially adversely affect any of the rights of DOC or any
Subsidiary thereof with respect to any FCC License or PUC Authorization.
47
(e) None of the DOC or any of its Subsidiaries (i) is a party
to or has knowledge of any investigation, notice of apparent liability,
violation, forfeiture or other order or complaint issued by or before any court
or regulatory body, including the FCC, or of any other proceedings (other than
proceedings relating to the wireless industries generally) which could in any
manner threaten or adversely affect the validity or continued effectiveness of
its or its Subsidiaries' FCC Licenses or PUC Authorizations or (ii) has any
reason to believe (other than in connection with there being no legal assurance
thereof) that any FCC License will not be renewed in the ordinary course.
(f) No approval by any Governmental Authority of a transfer of
control of any FCC License or any PUC Authorization would be required in the
event that any present stockholder (other than the Parent and its controlling
stockholders), director, officer or employee of DOC or any of its Subsidiaries
respectively ceases to be a stockholder, director, officer or employee of such
Person.
(g) The Parent, DOC and its Subsidiaries have made in all
material filings which are required to be filed by it under the Communications
Act and are in all material respects in substantial compliance with the
Communications Act relating to the operation of each System.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement
of each Lender to make the initial extension of credit requested to be made by
it hereunder is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of the Borrower, the Parent and DOC, (ii) the Guarantee and Collateral
Agreement, executed and delivered by a duly authorized officer of the Borrower,
the Parent, DOC and each Subsidiary Guarantor and (iii) a Lender Addendum
executed and delivered by each Lender and accepted by the Borrower.
(b) Transactions. The Administrative Agent shall have received
(in a form reasonably satisfactory to the Administrative Agent), true and
correct copies, certified as to authenticity by the Borrower, of each
Transaction Document and such other documents or instruments as may be
reasonably requested by the Administrative Agent, including a copy of any debt
instrument, security agreement or other material contract to which the Loan
Parties may be a party. Each Transaction Document shall be in full force and
effect without any material amendment thereto or default thereunder. The
following Transactions shall have been consummated, in each case in accordance
with the terms of the relevant Transaction Documents:
(i) The Parent shall have received not less
$650,000,000 in aggregate principal amount of gross proceeds
from the issuance of the New Parent Senior Notes;
(ii) Each Merger shall have been consummated on terms
satisfactory to the Administrative Agent; and
(iii) Simultaneously with the making of the Term
Loans hereunder, the Existing Credit Facilities shall be
terminated and all amounts outstanding thereunder shall be
paid in full.
(c) Financial Statements. The Lenders shall have received (i)
audited consolidated financial statements of the Parent for the 2001 and 2002
fiscal years and (ii) unaudited interim
48
consolidated financial statements of the Parent for each fiscal quarterly period
ended subsequent to the date of the latest applicable financial statements
delivered pursuant to clause (i) of this paragraph as to which such financial
statements are available; and such financial statements shall not, in the
reasonable judgment of the Lenders, reflect any material adverse change in the
consolidated financial condition of Parent as reflected in the financial
statements or projections contained in the Confidential Information Memorandum.
(d) Pro Forma Balance Sheet. The Lenders shall have received
the pro forma Balance Sheet of each of the Parent and its Subsidiaries
(excluding the Unrestricted Group) as at the date of the most recent
consolidated balance sheet delivered pursuant to Section 5.1(c), adjusted to
give effect to the consummation of the Transactions and the financings
contemplated hereby as if such transactions had occurred on such date.
(e) Approvals. All governmental, FCC, PUC and third party
approvals and other Authorizations necessary or, in the discretion of the
Administrative Agent, advisable in connection with the Credit Facilities, the
Transactions, the continuing operations of the Parent and its Subsidiaries and
the transactions contemplated hereby shall have been obtained and be in full
force and effect, and all applicable waiting periods shall have expired without
any action being taken or threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the Transactions or
the financing contemplated hereby.
(f) Fees. The Lenders, the Administrative Agent and the
Arrangers shall have received all fees required to be paid, and all expenses for
which invoices have been presented (including reasonable fees, disbursements and
other charges of counsel to the Agents), on or before the Closing Date. The
Administrative Agent shall have received reimbursement of all out-of-pocket
expenses of the Arrangers and the Administrative Agent payable by Borrower in
connection with the Credit Facilities. All such amounts will be paid with
proceeds of Loans made on the Closing Date and will be reflected in the funding
instructions given by the Borrower to the Administrative Agent on or before the
Closing Date.
(g) Business Plan. The Lenders shall have received a
satisfactory business plan and analysis for the Parent (excluding the
Unrestricted Group) for fiscal years 2003-2010.
(h) Solvency Analysis. The Lenders shall have received a
reasonably satisfactory solvency analysis certified by the chief financial
officer of each of the Borrower and the Parent which shall document the solvency
of the Borrower and its Subsidiaries and the Parent and its Subsidiaries, in
each case considered as a whole after giving effect to the Transactions and the
financings contemplated hereby.
(i) Lien Searches. The Administrative Agent shall have
received the results of a recent lien search in each of the jurisdictions in
which Uniform Commercial Code financing statement or other filings or
recordations should be made to evidence or perfect security interests in all
assets of the DOC and its Subsidiaries, and such search shall reveal no Liens on
any of the assets of DOC or any of its Subsidiaries, except for Liens permitted
by Section 7.3 or Liens to be discharged on or prior to the Closing Date
pursuant to documentation which shall have been delivered, and shall be
satisfactory, to the Administrative Agent.
(j) Closing Certificate. The Administrative Agent shall have
received a certificate of each Loan Party, dated the Closing Date, substantially
in the form of Exhibit C, with each of the appropriate insertions and
attachments referred to therein (including certified charters from the relevant
Secretary of State, by-laws and other organizational documents, board
resolutions approving the Loan
49
Documents, recent good standing certificates and other customary closing
documentation with respect to each Loan Party) and (in the case of the Borrower)
exhibiting up-to-date copies of the Transaction Documents, the Material
Agreements and each agreement referred to on Schedule 8.6.
(k) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of McAfee & Xxxx, counsel to
the Loan Parties, substantially in the form of Exhibit F-1;
and
(ii) the legal opinion of Xxxxxxxxx Xxxxxx Xxxxxx,
LLP, as to certain FCC, PUC and other regulatory matters with
respect to the Parent, DOC and its Subsidiaries, substantially
in the form of Exhibit F-2.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(l) Pledged Stock; Stock Powers; Acknowledgment and Consent;
Pledged Notes; Control Agreements. The Administrative Agent shall have received
(i) the certificates representing the shares of Capital Stock pledged pursuant
to the Guarantee and Collateral Agreement, together with an undated stock power
for each such certificate executed in blank by a duly authorized officer of the
pledgor thereof, (ii) an Acknowledgment and Consent, substantially in the form
of Annex II to the Guarantee and Collateral Agreement, duly executed by any
issuer of Capital Stock pledged pursuant to the Guarantee and Collateral
Agreement that is not itself a party to the Guarantee and Collateral Agreement,
(iii) each promissory note pledged pursuant to the Guarantee and Collateral
Agreement endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank satisfactory to the Administrative Agent) by the pledgor
thereof and (iv) executed control agreements (substantially in the form of Annex
III to the Guarantee and Collateral Agreement) with each applicable bank or
securities intermediary with respect to each deposit account or securities
account maintained by DOC, the Borrower or any Subsidiary Guarantor required
pursuant to the Guarantee and Collateral Agreement, provided that any such
control agreement which is not executed and delivered on the Closing Date, shall
be executed and delivered to the Administrative Agent as soon as practicable and
in any event not later than 10 Business Days following the Closing Date.
(m) Filings, Registrations and Recordings. Each document
(including any Uniform Commercial Code financing statement) required by the
Security Documents or under law or reasonably requested by the Administrative
Agent to be filed, registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a perfected Lien
on the Collateral described therein, prior and superior in right to any other
Person (other than with respect to Liens expressly permitted by Section 7.3),
shall have been filed, registered or recorded or shall have been delivered to
the Administrative Agent be in proper form for filing, registration or
recordation.
(n) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.3 of the
Guarantee and Collateral Agreement.
(o) Minimum Rating. The Facilities shall have received a
prospective senior secured credit rating of not less than B1 from Xxxxx'x (with
a stable outlook) and B- from S&P (with a stable outlook), both of which ratings
shall be in effect on the Closing Date.
50
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it hereunder
on any date (including its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct on and as of such date as if made on and as
of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the extensions
of credit requested to be made on such date provided that such determination
shall be made on a pro forma basis as if each such extension of credit were made
(for the purposes of Section 7.1) on the most recent test date under Section
7.1.
Each borrowing by and issuance of a Letter of Credit on behalf
of the Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such extension of credit that the conditions
contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
DOC and the Borrower hereby jointly and severally agree that,
so long as the Commitments remain in effect, any Letter of Credit remains
outstanding or any Loan or other amount is owing to any Lender or any Agent
hereunder, each of DOC and the Borrower shall and shall cause each of its
Subsidiaries to:
6.1 Financial Statements. Furnish to each Agent and each
Lender:
(a) as soon as available, but in any event within 120 days
after the end of each of its fiscal years, copies of (i) the audited
consolidated balance sheet of the Parent and its consolidated Subsidiaries and
of DOC and its consolidated Subsidiaries, (ii) the unaudited consolidating
balance sheet of the Parent and its consolidated Subsidiaries, (iii) the related
audited consolidated statements of income and cash flows of the Parent and its
consolidated Subsidiaries and of DOC and its consolidated Subsidiaries and (iv)
the related unaudited consolidating statement of income of the Parent and its
consolidated Subsidiaries, for such year, setting forth in each case in
comparative form the figures as of the end of and for the previous year,
reported on, without any qualification or exception (as such terms are used in
accordance with generally accepted auditing standards), by KPMG LLP or other
independent certified public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each of its
fiscal years, copies of (i) the unaudited consolidated balance sheet of the
Parent and its consolidated Subsidiaries and of DOC and its consolidated
Subsidiaries, (ii) the unaudited consolidating balance sheet of the Parent and
its consolidated Subsidiaries, (iii) the related unaudited consolidated
statements of income and cash flows of the Parent and its consolidated
Subsidiaries and of DOC and its consolidated Subsidiaries and (iv) the related
unaudited consolidating statement of income of the Parent and its consolidated
Subsidiaries, for such quarter and the portion of the fiscal year through the
end of such quarter, setting forth in each case in comparative form the figures
as of the end of and for the corresponding period in the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
51
6.2 Certificates; Other Information. Furnish to each Agent and
each Lender, or, in the case of clause (h), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate (substantially in the form of
Exhibit D) of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default with respect to the
covenants set forth in Section 7, except as specified in such certificate (it
being understood that such certificate shall be limited to the items that
independent certified public accountants are permitted to cover in such
certificates pursuant to their professional standards and customs of the
profession);
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating
that, to the best of such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate and (ii)
in the case of quarterly or annual financial statements, (x) a Compliance
Certificate containing all information and calculations necessary for
determining compliance by the Parent, the Borrower, DOC and its Subsidiaries
with the provisions of this Agreement referred to therein as of the last day of
the applicable fiscal quarter or fiscal year, as the case may be, and (y) to the
extent not previously disclosed to the Administrative Agent, a listing of any
material Intellectual Property acquired by any Loan Party since the date of the
most recent list delivered pursuant to this clause (y) (or, in the case of the
first such list so delivered, since the Closing Date);
(c) as soon as available, and in any event no later than March
31 in each fiscal year of DOC, a detailed consolidated quarterly budget for such
fiscal year (including a projected consolidated balance sheet of DOC and its
Subsidiaries as of the end of the following fiscal year, and the related
consolidated statements of projected cash flow and projected income) and, as
soon as available, significant revisions, if any, of such budget and quarterly
projections with respect to such fiscal year, including a description of
underlying assumptions with respect thereto (collectively, the "Projections"),
which Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on reasonable
estimates, information and assumptions and that such Responsible Officer has no
reason to believe that such Projections are incorrect or misleading in any
material respect;
(d) within 60 days after the end of each fiscal quarter of the
Parent and DOC, a narrative discussion and analysis of the financial condition
and results of operations of the Parent and its Subsidiaries and of DOC and its
Subsidiaries for such fiscal quarter and for the period from the beginning of
the then current fiscal year to the end of such fiscal quarter, as compared to
the portion of the Projections covering such periods and to the comparable
periods of the previous year;
(e) no later than 10 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to the Transaction
Documents;
(f) within five days after the same are sent, copies of all
financial statements and reports that the Parent or its Subsidiaries sends to
the holders of any class of its debt securities or public
52
equity securities and, within five days after the same are filed, copies of all
financial statements and (to the extent material to the interests of the Lenders
hereunder) reports that the Parent or its Subsidiaries may make to, or file
with, the SEC or the FCC;
(g) as soon as possible and in any event within 10 days of
obtaining knowledge thereof: (i) any development, event, or condition that,
individually or in the aggregate with other developments, events or conditions,
could reasonably be expected to result in the payment by DOC and its
Subsidiaries, in the aggregate, of a Material Environmental Amount; and (ii) any
notice that any Governmental Authority may deny any application for an
Environmental Permit sought by, or revoke or refuse to renew any Environmental
Permit held by, DOC or any of its Subsidiaries;
(h) promptly and in any event within ten days of receipt
thereof, copies of all notices and communications received from the FCC, any PUC
or any other Governmental Authority which (i) relates to any forfeiture,
non-renewal, cancellation, revocation, suspension, impairment or termination of,
or any other adverse development with respect to, any FCC License or (to the
extent that it is material to the business of DOC or any of its Subsidiaries)
any other Authorization or (ii) has, or could reasonably be expected to have a
Material Adverse Effect; and
(i) promptly, such additional financial and other information
as any Lender may (through the Administrative Agent) from time to time
reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of DOC or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence, etc. (a)
(i) Preserve, renew and keep in full force and effect its corporate or other
existence and (ii) take all reasonable action to maintain all rights, privileges
and franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 7.4 and except, in the
case of clause (ii) above, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (b) comply with
all Contractual Obligations, Authorizations issued by the FCC or any applicable
PUC and Requirements of Law, except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all Property
and systems useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted, (b) maintain with financially sound
and reputable insurance companies insurance on all its Property (other than
property damage insurance for non-material Property, including vehicles) in at
least such amounts and against such risks (but including in any event public
liability, product liability and business interruption) as (i) are usually
insured against in the same general area by companies engaged in the same or a
similar business or (ii) are otherwise approved by the Administrative Agent from
time to time (provided that the insurance which is acceptable to the
Administrative Agent on the Closing Date shall be deemed to be acceptable to it
following the Closing Date in the absence of any change or development which, in
the reasonable opinion of the Administrative Agent, requires additional or
alternative insurance to be obtained) and (c) do all things necessary to obtain,
renew, extend, and continue in effect all Authorizations issued by the FCC or
any applicable PUC which may at any time and from time to time be necessary for
the Borrower, DOC and its Subsidiaries to operate their businesses in compliance
with applicable Law, except in each case under this Section 6.5, to the extent
that failure to do so could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
53
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
permit representatives of any Lender to visit and inspect any of its properties
and examine and make abstracts from any of its books and records at any
reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Borrower, DOC and its Subsidiaries with officers and employees of the Borrower,
DOC and its Subsidiaries and with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Parent, DOC or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Parent, DOC
or any of its Subsidiaries and any Governmental Authority, that in either case,
if not cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Parent, DOC or
any of its Subsidiaries in which the amount involved is $5,000,000 or more and
not covered by insurance or in which injunctive or similar relief (which could
materially interfere with the business of the Parent, DOC or any of its
Subsidiaries) is sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Parent, the Borrower, DOC or the relevant Subsidiary
proposes to take with respect thereto.
6.8 Environmental Laws. (a) Comply in all material respects
with, and ensure compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws, and obtain and
comply in all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, except to the extent that the foregoing could
not, in the aggregate, reasonably be expected to result in a liability for a
Material Environmental Amount.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding
54
Environmental Laws, except to the extent that the foregoing could not, in the
aggregate, reasonably be expected to result in a liability for a Material
Environmental Amount.
6.9 Interest Rate Protection. In the case of the Borrower,
within 60 days after the Closing Date, enter into Hedge Agreements to the extent
necessary to provide that at least 50% of the aggregate principal amount of
Consolidated Total Debt and preferred stock of the Parent is subject to either a
fixed interest rate or interest rate protection for a period of not less than
two years, which Hedge Agreements shall have terms and conditions reasonably
satisfactory to the Administrative Agent.
6.10 Additional Collateral, etc. (a) With respect to any
Property (other than Excluded Collateral and real property) acquired after the
Closing Date by any Loan Party (other than the Parent), including (if
applicable) any acquired assets referred to in Section 6.10(e) below, (other
than (x) any Property described in paragraph (b) or paragraph (c) of this
Section, (y) any Property subject to a Lien expressly permitted by Section
7.3(g) and (z) Property acquired by an Excluded Foreign Subsidiary) as to which
the Administrative Agent, for the benefit of the Secured Parties, does not have
a perfected Lien, promptly (i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent deems necessary or advisable to grant to
the Administrative Agent, for the benefit of the Secured Parties, a security
interest in such Property and (ii) take all actions necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in such Property, including without
limitation, the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by
law or as may be requested by the Administrative Agent.
(b) With respect to any fee interest in any tract (or series
of tracts at the same location) of real property having a Fair Market Value
(together with improvements thereof) of at least $3,000,000 acquired after the
Closing Date by any Loan Party (other than the Parent), including (if
applicable) any acquired assets referred to in Section 6.10(e) below, (other
than any such real property owned by an Excluded Foreign Subsidiary or subject
to a Lien expressly permitted by Section 7.3(g)), promptly (i) execute and
deliver a first priority Mortgage in favor of the Administrative Agent, for the
benefit of the Secured Parties, covering such real property, (ii) if requested
by the Administrative Agent, provide the Lenders with (x) title and extended
coverage insurance covering such real property in an amount at least equal to
the purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) as well as a current ALTA
survey thereof, together with a surveyor's certificate and (y) any consents or
estoppels reasonably deemed necessary or advisable by the Administrative Agent
in connection with such Mortgage, each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent and (iii) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(c) With respect to any new Subsidiary (other than an
Unrestricted Subsidiary or an Excluded Foreign Subsidiary) created or acquired
after the Closing Date (which, for the purposes of this paragraph, shall include
any existing Subsidiary that ceases to be an Unrestricted Subsidiary or an
Excluded Foreign Subsidiary), by any Loan Party (other than the Parent, except
if applicable pursuant to Section 6.10(e)), promptly (i) execute and deliver to
the Administrative Agent such amendments to the Guarantee and Collateral
Agreement as the Administrative Agent deems necessary or advisable to grant to
the Administrative Agent, for the benefit of the Secured Parties, a perfected
first priority security interest in the Capital Stock of such new Restricted
Subsidiary, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the applicable Loan Party
or such Restricted Subsidiary, as
55
the case may be, (iii) cause such new Restricted Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and (B) to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of
the Secured Parties a perfected first priority security interest in the
Collateral described in the Guarantee and Collateral Agreement with respect to
such new Restricted Subsidiary, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be requested by the Administrative
Agent, and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) With respect to any new Excluded Foreign Subsidiary
(except any Unrestricted Subsidiary) directly created or acquired after the
Closing Date by any Loan Party (other than the Parent, except if applicable
pursuant to Section 6.10(e)), promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
or such other documents as the Administrative Agent deems necessary or advisable
in order to grant to the Administrative Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in the Capital Stock of
such new Excluded Foreign Subsidiary that is owned by such Loan Party (other
than any Excluded Foreign Subsidiaries), (provided that in no event shall more
than 65% of the total outstanding Capital Stock of any such new Excluded Foreign
Subsidiary be required to be so pledged), (ii) deliver to the Administrative
Agent the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
such Loan Party or such Subsidiary, as the case may be, and take such other
action as may be necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Lien of the Administrative Agent thereon, and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(e) In the event that the Parent acquires all or substantially
all of the Assets or Capital Stock of any Person (other than a Person which
immediately upon the acquisition of its Capital Stock, becomes an Unrestricted
Subsidiary), the Parent shall promptly notify the Administrative Agent thereof
and, if requested by the Administrative Agent, the Parent and its relevant
Restricted Subsidiary shall comply with the provisions of this Section 6.10 with
respect to such Assets or Person so acquired.
6.11 Further Assurances. From time to time execute and
deliver, or cause to be executed and delivered, such additional instruments,
certificates or documents, and take such actions, as the Administrative Agent
may reasonably request for the purposes of implementing or effectuating the
provisions of this Agreement and the other Loan Documents, or of more fully
perfecting or renewing the rights of the Administrative Agent and the Lenders
with respect to the Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other property or assets
hereafter acquired by DOC or any of its Subsidiaries which may be deemed to be
part of the Collateral) pursuant hereto or thereto. Upon the exercise by the
Administrative Agent or any Lender of any power, right, privilege or remedy
pursuant to this Agreement or the other Loan Documents which requires any
consent, approval, recording, qualification or authorization of any Governmental
Authority, the Borrower will execute and deliver, or will cause the execution
and delivery of, all applications, certifications, instruments and other
documents and papers that the Administrative Agent or such Lender may be
required to obtain from DOC or any of its Subsidiaries for such governmental
consent, approval, recording, qualification or authorization.
56
SECTION 7. NEGATIVE COVENANTS
The Borrower, DOC and (with respect to Sections 7.1(b) and
(c)) the Parent hereby jointly and severally agree that, so long as the
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or any Agent hereunder, each of the
Borrower, DOC and (with respect to Sections 7.1(b) and (c)) the Parent shall
not, and shall not permit any of their respective Subsidiaries to, directly or
indirectly:
7.1 Financial Condition Covenants.
(a) DOC Leverage Ratio. Permit the DOC Leverage Ratio as at
the last day of any period of four consecutive fiscal quarters of DOC (or, if
less, the number of full fiscal quarters subsequent to the Closing Date, in
which case the applicable amounts used in determining such ratio shall be
Annualized) ending with any fiscal quarter set forth below to exceed the ratio
set forth below opposite such fiscal quarter:
Fiscal Quarter Ended DOC Leverage Ratio
-------------------- ------------------
December 31, 2003 2.25:1
March 31, 2004 2.25:1
June 30, 2004 2.20:1
September 30, 2004 2.20:1
December 31, 2004 2.15:1
March 31, 2005 2.05:1
June 30, 2005 2.05:1
September 30, 2005 2.00:1
December 31, 2005 1.90:1
March 31, 2006 1.85:1
June 30, 2006 1.75:1
September 30, 2006 1.70:1
December 31, 2006 1.70:1
March 31, 2007 1.65:1
June 30, 2007 1.60:1
September 30, 2007 1.60:1
December 31, 2007 1.60:1
March 31, 2008 1.55:1
June 30, 2008 1.55:1
September 30, 2008 and each fiscal
quarter ended thereafter 1.50:1
(b) Parent Leverage Ratio. Permit the Parent Leverage Ratio as
at the last day of any period of four consecutive fiscal quarters of the Parent
(or, if less, the number of full fiscal quarters subsequent to the Closing Date,
in which case the applicable amounts used in determining such ratio shall be
Annualized) ending with any fiscal quarter set forth below to exceed the ratio
set forth below opposite such fiscal quarter:
57
Fiscal Quarter Ended Parent Leverage Ratio
-------------------- ---------------------
December 31, 2003 6.00:1
March 31, 2004 6.00:1
June 30, 2004 6.00:1
September 30, 2004 6.00:1
December 31, 2004 6.00:1
March 31, 2005 5.75:1
June 30, 2005 5.65:1
September 30, 2005 5.55:1
December 31, 2005 5.45:1
March 31, 2006 5.20:1
June 30, 2006 5.10:1
September 30, 2006 4.95:1
December 31, 2006 4.75:1
March 31, 2007 4.70:1
June 30, 2007 4.60:1
September 30, 2007 4.45:1
December 31, 2007 4.35:1
March 31, 2008 4.30:1
June 30, 2008 4.25:1
September 30, 2008 4.20:1
December 31, 2008 4.15:1
March 31, 2009 4.00:1
June 30, 2009 4.00:1
September 30, 2009 3.75:1
December 31, 2009 and each fiscal 3.50:1
quarter ended thereafter
(c) Parent Interest Coverage Ratio. Permit the Parent Interest
Coverage Ratio for any period of four consecutive fiscal quarters of the Parent
(or, if less, the number of full fiscal quarters subsequent to the Closing Date,
in which case the applicable amounts used in determining such ratio shall be
Annualized) ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
Parent
Fiscal Quarter Ended Interest Coverage Ratio
-------------------- -----------------------
December 31, 2003 1.75:1
March 31, 2004 1.75:1
June 30, 2004 1.75:1
September 30, 2004 1.75:1
December 31, 2004 1.75:1
March 31, 2005 1.75:1
June 30, 2005 1.75:1
September 30, 2005 1.75:1
December 31, 2005 2.00:1
March 31, 2006 2.00:1
June 30, 2006 2.00:1
September 30, 2006 2.00:1
December 31, 2006 2.00:1
March 31, 2007 2.00:1
June 30, 2007 2.00:1
September 30, 2007 2.00:1
December 31, 2007 2.00:1
March 31, 2008 2.00:1
June 30, 2008 2.15:1
September 30, 2008 2.15:1
December 31, 2008 2.25:1
March 31, 2009 2.25:1
June 30, 2009 and each fiscal quarter 2.50:1
ended thereafter
58
(d) DOC Fixed Charge Coverage Ratio. Permit the DOC Fixed
Charge Coverage Ratio for any period of four consecutive fiscal quarters of DOC
(or, if less, the number of full fiscal quarters subsequent to the Closing Date,
in which case the applicable amounts used in determining such ratio shall be
Annualized) ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
DOC Fixed Charge
Fiscal Quarter Ended Coverage Ratio
-------------------- ----------------
December 31, 2003 1.10:1
March 31, 2004 1.10:1
June 30, 2004 1.10:1
September 30, 2004 1.10:1
December 31, 2004 1.10:1
March 31, 2005 1.10:1
June 30, 2005 1.10:1
September 30, 2005 1.10:1
December 31, 2005 1.10:1
March 31, 2006 1.10:1
June 30, 2006 1.15:1
September 30, 2006 1.15:1
December 31, 2006 1.15:1
March 31, 2007 1.15:1
June 30, 2007 1.15:1
September 30, 2007 1.15:1
December 31, 2007 1.15:1
March 31, 2008 1.15:1
June 30, 2008 1.20:1
September 30, 2008 1.20:1
December 31, 2008 1.20:1
March 31, 2009 and each fiscal quarter 1.25:1
ended thereafter
(e) Limitation on Capital Expenditures. Make or commit to make
any Capital Expenditure, except Capital Expenditures of DOC and its Subsidiaries
in the ordinary course of business not exceeding (i) during the period from and
including the Closing Date until December 31, 2003, $95,000,000 and (ii) in any
fiscal year of DOC thereafter, an amount equal to the sum of (w) $125,000,000,
(x) 33.33% of the amount of increase (if any) of Consolidated EBITDA of DOC for
the preceding fiscal year compared to the previous fiscal year thereto, (y) the
amount of cash capital contributions made by the Parent to DOC or any of its
Subsidiaries during such fiscal year for the purpose
59
of making Capital Expenditures in such fiscal year and (z) the amount of any
Supplemental Capital Expenditures permitted to be made during such fiscal year
in connection with a Permitted Acquisition; provided that (A) 100% of any such
amount referred to above, if not so expended in cash in the fiscal year for
which it is permitted, may be carried over for expenditure in the next
succeeding fiscal year only and (B) Capital Expenditures made during any fiscal
year shall be deemed made, first, in respect of amounts permitted for such
fiscal year as provided above and second, in respect of amounts carried over
from the prior fiscal year pursuant to clause (A) above.
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party (other than the Parent)
pursuant to any Loan Document;
(b) Indebtedness of (i) the Borrower owed to any Subsidiary
Guarantor, (ii) any Subsidiary Guarantor owed to the Borrower or to any other
Subsidiary Guarantor, (iii) to the extent that it is permitted by Section
7.7(c)(iii), any Subsidiary of DOC owed to DOC or to any other Subsidiary (other
than a Cellular Partnership) of DOC and (iv) DOC owed to the Borrower and
advanced in accordance with (x) Section 4.16(a)(ii)(y) in an aggregate principal
amount not to exceed $70,000,000 or (y) Section 7.6(c);
(c) Indebtedness (including Capital Lease Obligations) secured
by Liens permitted by Section 7.3(g) in an aggregate principal amount not to
exceed $40,000,000 at any one time outstanding;
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof outstanding at the time of
such refinancing, refunding, renewal or extension, or any shortening of the
maturity of any principal amount thereof and otherwise on terms not materially
less favorable to the Parent and the issuer thereof than under the refinanced,
refunded, renewed or extended Indebtedness);
(e) Guarantee Obligations made in the ordinary course of
business by the Borrower, DOC or any of its Subsidiaries of obligations of the
Borrower or any Subsidiary Guarantor;
(f) Indebtedness of DOC, the Borrower or any Subsidiary
Guarantor owed to the Parent which is subordinated to the Obligations on terms
acceptable to the Administrative Agent;
(g) Indebtedness of any Cellular Partnership owed to the
Borrower, DOC or any Subsidiary Guarantor, provided that (i) such Indebtedness
is evidenced by a promissory note the form and substance of which, including
amortization schedules, are acceptable to Administrative Agent, (ii) such
promissory note is secured by a first priority perfected security interest (to
the extent permitted by applicable law) in all of the assets of such Cellular
Partnership, (iii) such promissory note is pledged, and has been delivered, to
the Administrative Agent pursuant to the Guaranty and Collateral Agreement as
security for the Obligations and (iv) the aggregate principal amount of all such
Indebtedness under this Section 7.2(g) shall not exceed $30,000,000 at any one
time outstanding;
(h) Indebtedness of Foreign Subsidiaries of DOC in an
aggregate principal amount not to exceed the Dollar equivalent (as determined by
the Administrative Agent from time to time) of $5,000,000 at any one time
outstanding;
60
(i) Indebtedness of the Borrower under an Additional Facility
in an aggregate principal amount not to exceed $200,000,000 and which meets the
requirements specified in clauses (i) through (vii) of Section 11.1(b), provided
that the documentation giving effect to any such Additional Facility (whether or
not pursuant to any amendment to the Loan Documents) shall be in form and
substance satisfactory to the Administrative Agent;
(j) Indebtedness of the Borrower or DOC pursuant to senior
unsecured notes (which may be guaranteed on a senior unsecured basis by the
Borrower and each Guarantor) used to refinance all or part of the Term Loans and
any Additional Term Loans; provided that such Indebtedness matures not less than
six months following the final maturity of the Facilities and any Additional
Facilities, the weighted average life of such Indebtedness is longer than the
Facilities and any Additional Facilities and all other terms of such
Indebtedness are acceptable to the Administrative Agent;
(k) Indebtedness with respect to letters of credit and
banker's acceptances (which have been notified by the Borrower in writing to the
Administrative Agent) in an aggregate face amount not to exceed at any time
$20,000,000 minus the aggregate amount of any Letters of Credit and
Reimbursement Obligations outstanding at such time pursuant to this Agreement;
and
(l) Other Indebtedness not to exceed the amount of $5,000,000
at any one time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its Property, whether now owned or hereafter
acquired, except for:
(a) Liens for Taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of DOC or its Subsidiaries, as the
case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or that are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the aggregate,
are not substantial in amount and which do not in any case materially detract
from the value of the Property subject thereto or materially interfere with the
ordinary conduct of the business of DOC or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by Section 7.2(d), provided that no such
Lien is extended to cover any additional Property after the Closing Date and
that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness incurred pursuant to Section
7.2(c) to finance the acquisition of fixed or capital assets, provided that (i)
such Liens shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time
61
encumber any Property other than the Property financed by such Indebtedness,
(iii) the amount of Indebtedness secured thereby is not increased and (iv) the
amount of Indebtedness initially secured thereby is not more than 100% of the
purchase price of such fixed or capital asset;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered
into by DOC or any of its Subsidiaries in the ordinary course of its business
and covering only the assets so leased;
(j) Liens on cash collateral securing Indebtedness outstanding
pursuant to Section 7.2(k), provided that the amount of such cash collateral
shall not exceed 110% of the outstanding Indebtedness or Guarantee Obligation
secured thereby; and
(k) Liens not otherwise permitted by this Section 7.3 so long
as neither (i) the aggregate outstanding principal amount of the obligations
secured thereby nor (ii) the aggregate Fair Market Value (determined, in the
case of each such Lien, as of the date such Lien is incurred) of the assets
subject thereto exceeds (as to the Borrower and all its Subsidiaries)
$4,000,000.
7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, except that:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary Guarantor
(provided that (i) the Subsidiary Guarantor shall be the continuing or surviving
corporation or (ii) simultaneously with such transaction, the continuing or
surviving corporation shall become a Subsidiary Guarantor and the provisions of
Section 6.10 shall be satisfied in connection therewith)
(b) DOC may be merged or consolidated with or into the
Borrower (provided that the Borrower shall be the continuing or surviving
corporation) with the prior written approval of, and on terms acceptable to, the
Administrative Agent; and
(c) any Subsidiary of the Borrower may Dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to any Subsidiary
Guarantor.
7.5 Limitation on Disposition of Property. Dispose of any of
its Property (including receivables and leasehold interests), whether now owned
or hereafter acquired, or, in the case of any Subsidiary, issue or sell any
shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(c);
(d) the sale or issuance of (i) any Subsidiary of the
Borrower's Capital Stock to the Borrower or any Subsidiary Guarantor, (ii) the
Borrower's Capital Stock to DOC or (iii) DOC's Capital Stock to the Parent;
62
(e) Dispositions of assets which are Permitted Asset Swaps,
having a Fair Market Value not to exceed in aggregate (i) $225,000,000 in any
fiscal year of DOC (provided that the Maryland/Michigan Swap shall be deemed
consummated in the fiscal year of DOC ended December 31, 2003 for the purposes
of the foregoing dollar limitation) and (ii) $475,000,000 during the term of
this Agreement; provided that in calculating the Fair Market Value with respect
to each Permitted Asset Swap pursuant to this Section 7.5(e), there shall be
subtracted from such amount of Fair Market Value the amount of any cash
consideration received pursuant to such Permitted Asset Swap to the extent that
such cash consideration exceeds 30% of the total consideration received pursuant
to such Permitted Asset Swap (such subtracted amount to be in the amount of such
excess);
(f) provided that no Default has occurred and is continuing or
would result therefrom, other Dispositions of assets (not constituting Permitted
Asset Swaps, subject as provided below) in the ordinary course of business on
arms length terms for not less than their Fair Market Value, not to exceed in
aggregate (i) $40,000,000 in any fiscal year of DOC (provided that the
Maryland/Michigan Swap shall be deemed consummated in the fiscal year of DOC
ended December 31, 2003 for the purposes of the foregoing dollar limitation) and
(ii) $100,000,000 in aggregate during the term of this Agreement; provided that
in calculating the aggregate Fair Market Value with respect to Dispositions made
during any applicable period pursuant to this Section 7.5(f), there shall be
added to such aggregate amount of Fair Market Value an amount equal to that
portion of any cash consideration received pursuant to a Permitted Asset Swap
during such period which shall have been subtracted pursuant to the proviso in
Section 7.5(e); and
(g) any Recovery Event, provided that the requirements of
Section 2.12(b) are complied with in connection therewith.
7.6 Limitation on Restricted Payments. Declare or pay any
dividend on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of the Parent, the
Borrower or DOC or any of its Subsidiaries, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Parent, the
Borrower or DOC or any of its Subsidiaries, or enter into any derivatives or
other transaction with any financial institution, commodities or stock exchange
or clearinghouse (a "Derivatives Counterparty") obligating the Borrower or DOC
or any of its Subsidiaries to make payments to such Derivatives Counterparty as
a result of any change in market value of any such Capital Stock (collectively,
"Restricted Payments"), except that:
(a) any Subsidiary of the Borrower may make Restricted
Payments to the Borrower or any Subsidiary Guarantor;
(b) the Borrower may make Restricted Payments in the form of
its Capital Stock to DOC and DOC may make Restricted Payments in the form of its
Capital Stock to the Parent;
(c) so long as no Default shall have occurred and be
continuing or would result therefrom (determined on a pro forma basis after
giving effect thereto), the Borrower may pay dividends or make loans to DOC and
DOC may pay dividends to the Parent: (i) to pay corporate overhead expenses
incurred in the ordinary course of business (which have been allocated to DOC
and its Subsidiaries, and are in amounts, in accordance with Section 8.7); (ii)
to pay Taxes which are then due and payable by the Parent and DOC as part of a
consolidated group pursuant to the Tax Sharing Agreement (except any such Taxes
which are attributable to Subsidiaries of the Parent other than DOC and its
Subsidiaries); (iii) to pay regularly scheduled interest payments which are due
and payable with respect to the Parent Notes; (iv) to pay regularly scheduled
dividends which are then due and payable with respect to the Parent
63
Preferred Stock (to the extent required, or elected by the Parent, to be paid in
cash); and (v) in an aggregate amount not to exceed the respective portions of
Excess Cash Flow which in each fiscal year of DOC are not required to be applied
or offered in mandatory prepayment of the Loans pursuant to Section 2.12(c)
(provided that, with respect to any Restricted Payment pursuant to this clause
(v), (A) no Default shall have occurred or would result therefrom determined on
a pro forma basis as if such Restricted Payment had been made on the last day of
each applicable fiscal year of DOC in which any such Excess Cash Flow is
generated (but excluding, for the purposes of such determination, any Restricted
Payments made in cash pursuant to this clause (v) during such fiscal year), (B)
the amount of Liquidity immediately before and after giving effect to such
Restricted Payment shall not be less than $50,000,000 and (C) the Borrower shall
have complied with its obligations pursuant to Section 2.12(c).
7.7 Limitation on Investments. Make any advance, loan,
extension of credit (by way of guaranty or otherwise) or capital contribution
to, or purchase any Capital Stock, bonds, notes, debentures or other debt
securities of, or any assets constituting an ongoing business from, or make any
other investment in, any other Person (all of the foregoing, "Investments"),
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Investments made by (i) the Borrower in any Subsidiary
Guarantor; (ii) DOC or any Subsidiary Guarantor in the Borrower or any
Subsidiary Guarantor that is a Subsidiary Guarantor before making such
Investment, (iii) DOC or any of its Subsidiaries in any other Subsidiary of DOC
not to exceed (with respect to Investments made pursuant to this clause
(c)(iii)) $5,000,000 at any one time outstanding and (iv) as an intercompany
loan or Guarantee Obligation which is otherwise permitted by Sections 7.2(b),
(e) or (g);
(d) loans and advances to employees of the Borrower or any of
its Subsidiaries in the ordinary course of business (including for travel,
entertainment and relocation expenses) in an aggregate amount for the Borrower
and its Subsidiaries not to exceed $1,000,000 at any one time outstanding;
(e) Permitted Acquisitions, the Purchase Price of which shall
not exceed (i) with respect to any Permitted Acquisitions which are Permitted
Asset Swaps, in aggregate, (x) $225,000,000 in any fiscal year of DOC (provided
that the Maryland/Michigan Swap shall be deemed consummated in the fiscal year
of DOC ended December 31, 2003 for the purposes of the foregoing dollar
limitation) and (y) $475,000,000 during the term of this Agreement and (ii) with
respect to all other Permitted Acquisitions, (x) $40,000,000 individually, (y)
$80,000,000 in aggregate in any fiscal year of DOC and (z) $200,000,000 in
aggregate during the term of this Agreement; provided that any Permitted
Acquisition financed with (A) the proceeds of a capital contribution made by the
Parent to DOC and its Subsidiaries for the purposes of consummating such
Permitted Acquisition (and so applied within 90 days of the Parent making such
capital contribution) or (B) the cash portion of the consideration received
pursuant to a Permitted Asset Swap or any other Disposition of Cellular/PCS
Assets (to the extent that such cash is used within 12 months of receipt by DOC,
the Borrower or any Subsidiary Guarantor in consummating a Permitted Acquisition
of Cellular/PCS Assets), shall not be subject to the foregoing dollar
limitations set forth in this clause (e); and
(f) Investments (other than pursuant to Permitted Asset Swaps)
in assets useful in DOC's and its Subsidiaries' business made by DOC or any of
its Subsidiaries with the proceeds of any Reinvestment Deferred Amount provided
that such Investments made by a Subsidiary of DOC which is not a Subsidiary
Guarantor shall only be permitted to be made with the proceeds of Reinvestment
Deferred Amounts which are directly owned by, and payable to, such Subsidiary.
64
7.8 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Except pursuant to the Transactions or a refinancing,
refunding, renewal or extension (to the extent such refinancing, refunding,
renewal or extension is permitted by Section 7.2(d)), make or offer to make any
optional or voluntary payment, prepayment, repurchase or redemption of, or
otherwise voluntarily or optionally defease, any Indebtedness owed to the Parent
or to any Affiliate of the Parent which is not the Borrower or a Subsidiary
Guarantor, or any long-term Indebtedness of the Parent or its Subsidiaries
(other than the Existing Xxxxxx/Sygnet Senior Notes and the Existing Sygnet
Wireless Senior Notes), or segregate funds for any such payment, prepayment,
repurchase, redemption or defeasance, or enter into any derivative or other
transaction with any Derivatives Counterparty obligating DOC or any of its
Subsidiaries to make payments to such Derivatives Counterparty as a result of
any change in market value of the Parent Notes or any other securities of the
Parent or its Subsidiaries, (b) amend, modify or otherwise change, or consent or
agree to any amendment, modification, waiver or other change to, any of the
terms of the Parent Notes or any other long-term Indebtedness of the Parent or
its Subsidiaries (other than any such amendment, modification, waiver or other
change which (i) would extend the maturity or reduce the amount of any payment
of principal thereof, reduce the rate or extend the date for payment of interest
thereon or relax any covenant or other restriction applicable to the Parent or
any of its Subsidiaries and (ii) does not involve the payment of a consent fee
(unless such fee has been approved by the Administrative Agent, which approval
shall not be unreasonably withheld or delayed), or (c) amend its certificate of
incorporation in any manner determined by the Administrative Agent to be adverse
to the Lenders.
7.9 Limitation on Transactions with Affiliates. Enter into any
transaction, including any purchase, sale, lease or exchange of Property, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than DOC, the Borrower or any Subsidiary
Guarantor) unless such transaction is (a) otherwise expressly permitted under
this Agreement or (b) in the ordinary course of business of DOC, the Borrower or
such Subsidiary, as the case may be, and (in each case under clause (a) or (b))
is upon fair and reasonable terms no less favorable to DOC, the Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person that is not an Affiliate; provided that the
foregoing shall not restrict any commercially reasonable employment agreement,
employee benefit plan, officer and director indemnification agreement or any
similar commercially reasonable arrangement entered into by DOC or its
Subsidiaries in the ordinary course of business.
7.10 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by DOC or any of its
Subsidiaries of real or personal property which has been or is to be sold or
transferred by DOC or such Subsidiary to such Person or to any other Person to
whom funds have been or are to be advanced by such Person on the security of
such property or rental obligations of DOC or such Subsidiary.
7.11 Limitation on Changes in Fiscal Periods. Permit the
fiscal year of the Borrower or DOC to end on a day other than December 31 or
change the Borrower or DOC's method of determining fiscal quarters.
7.12 Limitation on Negative Pledge Clauses. Enter into or
suffer to exist or become effective any agreement that prohibits or limits the
ability of DOC or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any guarantor,
its obligations under the Guarantee and Collateral Agreement, other than (a)
this Agreement and the other Loan Documents (b) provisions existing at the date
hereof contained in the Indentures governing the Existing Parent Notes and the
New Parent Notes and the Parent Preferred Stock and in any refinancing of the
foregoing (to the extent permitted by this Agreement) after the Closing Date
which does not contain more restrictive
65
provisions and (c) any agreements governing any purchase money Liens or Capital
Lease Obligations otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby).
7.13 Limitation on Restrictions on Subsidiary Distributions.
Enter into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of DOC to (a) make Restricted
Payments in respect of any Capital Stock of such Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or any other Subsidiary, (b) make Investments
in the Borrower or any other Subsidiary or (c) transfer any of its assets to the
Borrower or any other Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents and (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary.
7.14 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except (with respect to the Borrower
and its Subsidiaries) for those businesses in which the Borrower and its
Subsidiaries are engaged on the date of this Agreement or that are reasonably
related thereto.
7.15 Limitation on Amendments to Transaction Documents. (a)
Amend, supplement or otherwise modify (pursuant to a waiver or otherwise) the
terms and conditions of the indemnities and licenses furnished to DOC or any of
its Subsidiaries pursuant to the Transaction Documents such that after giving
effect thereto such indemnities or licenses shall be materially less favorable
to the interests of the Loan Parties or the Lenders with respect thereto or (b)
otherwise amend, supplement or otherwise modify the terms and conditions of the
Transaction Documents except to the extent that any such amendment, supplement
or modification could not reasonably be expected to have a Material Adverse
Effect.
7.16 Limitation on Amendments to Other Documents. (a) Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the Tax Sharing Agreement in any manner that would materially
increase the amounts payable by the Borrower, DOC or any of its Subsidiaries
thereunder or (b) otherwise amend, supplement, terminate or otherwise modify the
terms and conditions of the Tax Sharing Agreement or any Material Agreement,
except to the extent that any such amendment, supplement, termination or
modification pursuant to this clause (b) could not reasonably be expected to
have a Material Adverse Effect.
7.17 Limitation on Hedge Agreements. Enter into any Hedge
Agreement other than Hedge Agreements entered into in the ordinary course of
business, and not for speculative purposes, to manage its exposure to interest
rates or foreign exchange rates.
SECTION 8. COVENANTS OF THE PARENT
The Parent hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or any Agent hereunder, it shall not, directly or
indirectly:
8.1 Limitation on Indebtedness. (a) Create, incur, assume or
suffer to exist any Indebtedness, except (i) Indebtedness existing on the
Closing Date set forth on Schedule 8.1 and any refinancings, refundings,
renewals or extensions thereof (without any increase in the principal amount
thereof outstanding at the time of such refinancing, refunding, renewal or
extension, or any shortening of the maturity of any principal amount thereof and
otherwise on terms not materially less favorable to the
66
Parent and the Lenders than under the refinanced, refunded, renewed or extended
Indebtedness); (ii) Indebtedness (including Capital Lease Obligations) secured
by Liens permitted by Section 8.2(g) in an aggregate principal amount not to
exceed $20,000,000 at any one time outstanding; (iii) additional unsecured
Indebtedness (x) on terms which are not materially less favorable to the Parent
and the Lenders than those contained in the New Parent Notes Indenture and (y)
the aggregate amount of which shall not exceed $200,000,000 minus the principal
amount of Indebtedness outstanding pursuant to Section 8.1(b) unless (with
respect to this clause (y)), on a pro forma basis giving effect to the
incurrence of such Indebtedness, the Parent Leverage Ratio for the four fiscal
quarters ending on the last day of the fiscal quarter of the Parent then most
recently ended, is less than 4.15 to 1; (iv) its Guarantee Obligations pursuant
to the Guarantee and Collateral Agreement; and (v) Guarantee Obligations with
respect to any other Indebtedness of Borrower or any Subsidiary Guarantor which
is permitted to be incurred by Section 7.2.
(b) Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Indebtedness
(other than Indebtedness outstanding under the Facilities) to an extent that the
Borrower would thereby be prevented (pursuant to any Indenture or other
Contractual Obligation limiting the incurrence of Indebtedness by the Parent and
its Subsidiaries then in effect) from making, or permitting to remain
outstanding, Revolving Credit Borrowings in an aggregate principal amount of
$75,000,000.
8.2 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except for:
(a) Liens for Taxes not yet due or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the Parent or its Subsidiaries, as the case may
be, in conformity with GAAP; (b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or that are
being contested in good faith by appropriate proceedings; (c) pledges or
deposits in connection with workers' compensation, unemployment insurance and
other social security legislation; (d) deposits to secure the performance of
bids, trade contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business; (e) easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business that, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value of the
Property subject thereto or materially interfere with the ordinary conduct of
the business of the Parent and (f) Liens created pursuant to the Security
Documents and (g) Liens securing Indebtedness outstanding on the Closing Date
and permitted pursuant to Section 8.1(a) or incurred pursuant to Section 8.1(b)
in each case to finance the acquisition of fixed or capital assets, provided
that (i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any time
encumber any Property other than the Property financed by such Indebtedness,
(iii) the amount of Indebtedness secured thereby is not increased and (iv) the
amount of Indebtedness initially secured thereby is not more than 100% of the
purchase price of such fixed or capital asset.
8.3 Limitation on Restricted Payments and Investments. Subject
as provided below, (a) Declare or pay any dividend on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of the Parent or any of its Subsidiaries, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Parent or
any of its Subsidiaries, or enter into any derivatives or other transaction with
any Derivatives Counterparty obligating it or any of its Subsidiaries to make
payments to such Derivatives Counterparty as a result of any change in market
value of any such Capital Stock, except (i) payments in the form of the Parent's
Capital Stock, (ii) regularly-scheduled cash dividends and regularly-
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scheduled redemption payments on each series of Parent Preferred Stock, (iii)
optional redemption payments on, and payments to effect repurchases of, each
series of Parent Preferred Stock and exchanges or conversions of Parent
Preferred Stock for or into common stock of the Parent (provided that any
consent fee payable in connection with such exchange or conversion has been
approved by the Administrative Agent, which approval shall not be unreasonably
withheld or delayed), (iv) regularly scheduled dividends on the Parent Preferred
Stock, paid solely in the form of additional shares of Parent Preferred Stock
having an aggregate liquidation preference equal to the amount of such dividends
or (v) as otherwise permitted by Section 8.4(c); or
(b) make any loan to, or capital contribution or other
Investment in, or incur any Guarantee Obligation of any Indebtedness of, any
Unrestricted Subsidiary or any Cellular Partnership unless (i) immediately
before and after giving effect thereto the Parent shall be in pro forma
compliance with this Agreement and (ii) the aggregate amount of all cash and
Cash Equivalents directly owned by the Parent plus the aggregate amount of fully
committed unconditionally available loan facilities available to the Parent at
such time (to the extent that loans can be borrowed by the Parent thereunder
without resulting in a Default under this Agreement or a default under such
facilities, each determined on a pro forma basis after giving effect to such
borrowing) shall be not less than $20,000,000;
provided that the Parent may additionally pay cash dividends on, or purchase or
redeem, any of its Capital Stock, or make any Investments (which are otherwise
restricted pursuant to this Section 8.3) in an aggregate amount not to exceed,
during the term of this Agreement, $5,000,000 plus 10% of the aggregate amount
of all Restricted Payments received by the Parent (following the Closing Date)
from Excess Cash Flow pursuant to Section 7.6(c)(v).
8.4 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Other than with respect to the refinancing contemplated by
the Transactions, make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, any Subordinated Debt of the Parent or its Subsidiaries (or any
Indebtedness of the Unrestricted Group), or segregate funds for any such
payment, prepayment, repurchase, redemption or defeasance, or enter into any
derivative or other transaction with any Derivatives Counterparty obligating the
Parent or any of its Subsidiaries to make payments to such Derivatives
Counterparty as a result of any change in market value of any Subordinated Debt
of the Parent or its Subsidiaries (or any Indebtedness of the Unrestricted
Group), (b) amend, modify or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms of the
Parent Notes, any Subordinated Debt or other long-term Indebtedness of the
Parent or its Subsidiaries, or any certificate of designation or exchange
debentures with respect to any Parent Preferred Stock (other than any such
amendment, modification, waiver or other change which (i) would extend the
maturity or reduce the amount of any payment of principal thereof, reduce the
rate or extend the date for payment of interest thereon or relax any covenant or
other restriction applicable to the Parent or any of its Subsidiaries and (ii)
does not involve the payment of a consent fee (unless such fee has been approved
by the Administrative Agent, which approval shall not be unreasonably withheld
or delayed), (c) permit any of the convertible or exchangeable Parent Preferred
Stock to be converted into, or exchanged for, Indebtedness of the Parent or any
of its Subsidiaries unless (i) such Indebtedness is incurred by the Parent in
accordance with this Agreement and (ii) does not involve the payment of a
consent fee (unless such fee has been approved by the Administrative Agent,
which approval shall not be unreasonably withheld or delayed) or (d) amend its
certificate of incorporation in any manner determined by the Administrative
Agent to be adverse to the Lenders.
8.5 Limitation on Negative Pledge Clauses. Enter into or
suffer to exist or become effective any agreement that prohibits or limits the
ability of the Parent or any of its Restricted Subsidiaries to create, incur,
assume or suffer to exist any Lien upon any of its Property or revenues,
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whether now owned or hereafter acquired, to secure the Obligations or, in the
case of any guarantor, its obligations under the Guarantee and Collateral
Agreement, other than (a) this Agreement and the other Loan Documents (b)
provisions existing at the date hereof contained in the Indentures governing the
Existing Parent Notes and the New Parent Notes and the Parent Preferred Stock
and in any refinancing of the foregoing (to the extent permitted by this
Agreement) after the Closing Date which does not contain more restrictive
provisions and (c) any agreements governing any purchase money Liens or Capital
Lease Obligations otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby).
8.6 Limitation on Transactions with Affiliates. Enter into any
transaction, including any purchase, sale, lease or exchange of Property, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than the Borrower or any Guarantor) unless such
transaction is (a) otherwise expressly permitted under this Agreement or (b) in
the ordinary course of business and (in each case under clause (a) or (b)) upon
fair and reasonable terms no less favorable to the Parent, as the case may be,
than it would obtain in a comparable arm's length transaction with a Person that
is not an Affiliate, except (to the extent not otherwise restricted by this
Agreement, the Indentures or the terms of the Parent's preferred stock, which
are then in effect): (i) any employment agreement, employee benefit plan,
officer and director indemnification agreement or any similar arrangement
entered into by the Parent in the ordinary course of business; (ii) any
transaction solely between the Parent and any Restricted Subsidiary; (iii) the
payment of reasonable and customary regular fees and indemnity payments to
directors of the Parent who are not employees of the Parent and the payment of
reasonable compensation and indemnity payments to officers of the Parent; (iv)
any payments or other transactions pursuant to any tax-sharing agreement between
the Parent and any Person with which the Parent files a consolidated tax return
or with which the Parent is part of a consolidated group for tax purposes; (v)
any payment or Investment or payment permitted by Section 8.3; (vi) any
agreement among the Parent and its Restricted Subsidiaries existing and as in
effect on the Closing Date (provided that any such agreement may be amended or
modified to the extent that the interests of the Parent and the Lenders are not
materially and adversely affected thereby); (vii) payments under the agreements
set forth on Schedule 8.6 in the ordinary course of the Parent's business and on
terms no less favorable to the Parent than would have been obtained in a
comparable arm's length transaction with a Person that is not an Affiliate;
(viii) loans or advances to employees in the ordinary course of the Parent's
business not to exceed in aggregate $3,000,000 at any one time outstanding; and
(ix) any issuance of Capital Stock of the Parent to any of its Affiliates.
8.7 Management Expenses. Charge any of DOC and its
Subsidiaries for management expenses except those which are fair and reasonable
and allocated (as such allocation is approved from time to time by the
Administrative Agent) among all its Subsidiaries on a consistently-applied
basis.
8.8 Limitation on Changes in Fiscal Periods. Permit its fiscal
year to end on a day other than December 31 or change its method of determining
fiscal quarters
8.9 Limitation on Hedge Agreements. Enter into any Hedge
Agreement other than Hedge Agreements entered into in the ordinary course of
business, and not for speculative purposes, to manage its exposure to interest
rates or foreign exchange rates.
8.10 Holding Company Status. (Notwithstanding anything to the
contrary in this Agreement or any other Loan Document) conduct, transact or
otherwise engage in, or commit to conduct, transact or otherwise engage in, any
business or operations other than those incidental to its ownership of the
Capital Stock of its Subsidiaries.
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SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance with
the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Loan Document
shall prove to have been inaccurate in any material respect on or as of the date
made or deemed made or furnished; or
(c) Any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section 6.4(a),
Section 6.7(a), Section 7, Section 8 or in Section 5 of the Guarantee and
Collateral Agreement or (ii) an "Event of Default" under and as defined in any
Mortgage shall have occurred and be continuing; or
(d) Any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this Section),
and such default shall continue unremedied (i) for a period of 5 days with
respect to a default under Sections 6.1 or 6.2 and (ii) for a period of 30 days
in each other case; or
(e) The Parent, the Borrower, DOC or any Subsidiary of the
Parent (other than the Unrestricted Group) shall (i) default in making any
payment of any principal of any Indebtedness (including any Guarantee
Obligation, but excluding, for the purposes of this clause (e), the Loans and
Reimbursement Obligations) on the scheduled or original due date with respect
thereto; or (ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (iii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or to
become subject to or mandatory offer to purchase by the obligor thereunder or
(in the case of any such Indebtedness constituting a Guarantee Obligation) to
become payable; provided that a default, event or condition described in clause
(i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an
Event of Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to Indebtedness
the outstanding principal amount of which exceeds in the aggregate $3,000,000;
or
(f) (i) The Parent, the Borrower, DOC or any Subsidiary of the
Parent (other than the Unrestricted Group) shall commence any case, proceeding
or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee,
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custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Parent, the Borrower, DOC or any
Subsidiary of the Parent (other than the Unrestricted Group) shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Parent, the Borrower, DOC or any Subsidiary of the Parent
(other than the Unrestricted Group) any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Parent, the Borrower, DOC or any Subsidiary of the Parent
(other than the Unrestricted Group) any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
the Parent, the Borrower, DOC or any Subsidiary of the Parent (other than the
Unrestricted Group) shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Parent, the Borrower, DOC or any
Subsidiary of the Parent (other than the Unrestricted Group) shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan, or any Lien
in favor of the PBGC or a Plan shall arise on the assets of the Parent, the
Borrower, DOC or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Parent, Borrower, DOC or any Commonly Controlled Entity shall, or
in the reasonable opinion of the Required Lenders shall be likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events
or conditions, if any, could, in the sole judgment of the Required Lenders,
reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Parent, the Borrower, DOC or any Subsidiary of the Parent (other than the
Unrestricted Group) involving for the Parent, DOC and its Subsidiaries (other
than the Unrestricted Group) taken as a whole a liability (not paid or fully
covered by insurance as to which the relevant insurance company has acknowledged
coverage) of $20,000,000 or more, and all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 30 days
from the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason
(other than by reason of the express release thereof pursuant to Section 11.15),
to be in full force and effect, or any Loan Party or any Affiliate of any Loan
Party shall so assert, or any Lien created by any of the Security Documents
shall cease to be enforceable and of the same effect and priority purported to
be created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than by reason of the
express release thereof pursuant to Section 11.15), to be in full force and
effect or any Loan Party or any Affiliate of any Loan Party shall so assert; or
(k) Any Change of Control shall occur; or
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(l) An order is issued by any Governmental Authority, which is
not stayed, vacated or reversed within 30 days of being made, that (i) the
Borrower, the Parent, DOC or any Subsidiary of the Parent (other than the
Unrestricted Group) thereof shall divest a significant portion of its assets
pursuant to any antitrust, restraint of trade, unfair competition, industry
regulation, or similar Laws, or (ii) all or any substantial portion of the
assets of the Borrower, the Parent, DOC or any Subsidiary of the Parent (other
than the Unrestricted Group) shall be condemned, seized, or otherwise
appropriated, or taken into custody or control, which in each case has, or could
reasonably be expected to have, a Material Adverse Effect; or
(m) (i) Any Authorization necessary for the ownership or
operations of the Borrower, the Parent, DOC or any Subsidiary of the Parent
(other than the Unrestricted Group) shall expire, and on or prior to such
expiration, the same shall not have been renewed or replaced by another
Authorization authorizing substantially the same operations by such Person; (ii)
any Authorization necessary for the ownership or operations of the Borrower, the
Parent, DOC or any Subsidiary of the Parent (other than the Unrestricted Group)
shall be canceled, revoked, terminated, rescinded, annulled, suspended, or
modified in a materially adverse respect, or shall no longer be in full force
and effect, or the grant or the effectiveness thereof shall have been stayed,
vacated, reversed, or set aside, (iii) the Borrower, the Parent, DOC or any
Subsidiary of the Parent (other than the Unrestricted Group) is required by any
Governmental Authority to halt construction or operations under any
Authorization and such action shall continue uncorrected for 30 days after the
applicable entity has received notice thereof; or (iv) any Governmental
Authority shall make any other adverse determination which, in each case has, or
could reasonably be expected to have, a Material Adverse Effect;
then, and in any such event, (A) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph (f) above with respect to
the Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Majority Revolving Credit Facility Lenders, the Administrative Agent may, or
upon the request of the Majority Revolving Credit Facility Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Revolving
Credit Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. In the case of all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
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SECTION 10. THE AGENTS
10.1 Appointment. Each Lender hereby irrevocably designates
and appoints the Agents as the agents of such Lender under this Agreement and
the other Loan Documents, and each Lender irrevocably authorizes each Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against any Agent.
10.2 Delegation of Duties. Each Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions. Neither any Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agents under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or for any failure
of any Loan Party to perform its obligations hereunder or thereunder. The Agents
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party.
10.4 Reliance by Agents. Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including
counsel to the Loan Parties), independent accountants and other experts selected
by such Agent. The Agents may deem and treat the payee of any Note as the owner
thereof for all purposes unless such Note shall have been transferred in
accordance with Section 11.6 and all actions required by such Section in
connection with such transfer shall have been taken. Each Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders or any
other instructing group of Lenders specified by this Agreement) as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action. Each Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other
instructing group of Lenders specified by this Agreement), and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders and all future holders of the Loans.
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10.5 Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent shall have received notice from a Lender, the
Parent, DOC or the Borrower referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a "notice of default". In
the event that the Administrative Agent shall receive such a notice, the
Administrative Agent shall promptly give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or, if
so specified by this Agreement, all Lenders or any other instructing group of
Lenders specified by this Agreement); provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither any of the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents to
the Agents that it has, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, no Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of such Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification. The Lenders agree to indemnify each
Agent in its capacity as such (to the extent not reimbursed by The Parent or the
Borrower and without limiting the obligation of The Parent or the Borrower to do
so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), for,
and to save each Agent harmless from and against, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (including
at any time following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
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10.8 Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such Agent were not an Agent.
With respect to its Loans made or renewed by it and with respect to any Letter
of Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 9(a) or Section
9(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. The Syndication Agent may, at
any time, by notice to the Lenders and the Administrative Agent, resign as
Syndication Agent hereunder, whereupon the duties, rights, obligations and
responsibilities of the Syndication Agent hereunder shall automatically be
assumed by, and inure to the benefit of, the Administrative Agent, without any
further act by the Syndication Agent, the Administrative Agent or any Lender.
After any retiring Agent's resignation as Agent, the provisions of this Section
10 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement and the other Loan Documents.
10.10 Authorization to Release Liens and Guarantees. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
effect any release of Liens or guarantee obligations contemplated by Section
11.15.
10.11 The Arrangers; the Co-Documentation Agents. None of the
Arrangers or the Co-Documentation Agents, in their respective capacities as
such, shall have duties or responsibilities, and shall incur no liability, under
this Agreement and the other Loan Documents.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 11.1. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or (with the written consent of the Required Lenders) the
Administrative Agent and each Loan Party party to the relevant Loan Document
may, from time to time, (x) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents (including amendments and
restatements hereof or thereof) for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (y) waive, on such
terms and conditions as may be specified in the instrument of waiver, any of the
requirements of this Agreement or the other Loan Documents or
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any Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall:
(i) forgive or reduce the principal amount or extend
the final scheduled date of maturity of any Loan or
Reimbursement Obligation, extend the scheduled date of any
amortization payment in respect of any Term Loan, reduce the
stated rate of any interest or fee payable hereunder or extend
the scheduled date of any payment thereof, or increase the
amount or extend the expiration date of any Commitment of any
Lender; require additional consents to be obtained with
respect to the sale or any assignment or participations of any
interests of the Lenders hereunder, in each case without the
consent of each Lender directly affected thereby;
(ii) amend, modify or waive any provision of this
Section or reduce any percentage specified in the definition
of Required Lenders or Required Prepayment Lenders, consent to
the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan
Documents, release (or subordinate or otherwise agree to
change the priority of the Administrative Agent's security
interest in) all or substantially all of the Collateral or
release any of the Guarantors from its guarantee obligations
under the Guarantee and Collateral Agreement, in each case
without the consent of all Lenders, except with respect to any
such release which is made pursuant to Section 11.15;
(iii) amend, modify or waive any condition precedent
to any extension of credit under the Revolving Credit Facility
set forth in Section 5.2 (including the waiver of an existing
Default or Event of Default required to be waived in order for
such extension of credit to be made) without the consent of
the Majority Revolving Credit Facility Lenders;
(iv) reduce the percentage specified in the
definition of Majority Facility Lenders with respect to any
Facility without the written consent of all Lenders under such
Facility;
(v) amend, modify or waive any provision of Section
10, or any other provision of this Agreement affecting the
rights and obligations of any Agent, without the consent of
any Agent directly affected thereby;
(vi) amend, modify or waive any provision of Sections
2.6 or 2.7 without the written consent of the Swing Line
Lender;
(vii) amend, modify or waive any provision of Section
2.18 without the consent of each Lender directly affected
thereby; or
(viii) amend, modify or waive any provision of
Section 3 without the consent of the Issuing Lender.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Agents and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Agents shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. Any such
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waiver, amendment, supplement or modification shall be effected by a written
instrument signed by the parties required to sign pursuant to the foregoing
provisions of this Section; provided that delivery of an executed signature page
of any such instrument by facsimile transmission shall be effective as delivery
of a manually executed counterpart thereof.
(b) This Agreement and any other Loan Document may be amended
(or amended and restated), provided that no Default shall have occurred which is
continuing or would result therefrom, upon the prior written request of the
Borrower to the Administrative Agent, and without the written consent of the
Required Lenders or the Lenders, (x) to add an additional term loan facility (an
"Additional Term Loan") or revolving credit facility (an "Additional Revolving
Credit Facility", and collectively with the Additional Term Loans, the
"Additional Facilities) to this Agreement and the accrued interest and fees in
respect thereof (collectively, the "Additional Loans") to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and
Revolving Credit Loans, the accrued interest and fees in respect thereof and the
other Obligations and (y) to include appropriately the Lenders holding such
Additional Loans in any determination of the Required Lenders or Majority
Facility Lenders; provided, however, that (i) the Additional Facilities made on
the same date shall be in a principal amount of at least $50,000,000 and the
principal amount of all Additional Facilities shall not in aggregate exceed
$200,000,000, (ii) any Additional Revolving Credit Facility shall be effected
not later than the date which is 12 months prior to the Revolving Credit
Termination Date and any Additional Term Loans shall be made not later than the
date which is 30 months following the Closing Date, (iii) the Additional Loans
shall have a weighted average life and final maturity which is no shorter than
(x) in the case of any Additional Revolving Credit Facility, the Revolving
Credit Facility and (y) in the case of any Additional Term Loan, the Term Loan
Facility, (iv) the Additional Term Loans shall be repayable in quarterly
installments equal to 0.25% of the initial aggregate principal amount thereof in
each year until the final year of maturity, with the remainder being repayable
in 4 equal quarterly installments in the final year of maturity, and such
payments shall be on the same dates as the dates of the Term Loan installments
under Section 2.3, (v) the pricing (including fees, interest and original issue
discount) for such Additional Term Loans shall not exceed the pricing for the
Term Loan Facility by more than 25 basis points unless the pricing of the Term
Loan Facility is increased to the have same pricing as the Additional Term
Loans, (vi) except for any differences permitted hereby, the Additional Term
Loans shall have the same terms and conditions as the Term Loans and the
Additional Revolving Credit Facility shall have the same terms and conditions as
the Revolving Credit Facility and (vii) the proceeds of the Additional Loans
shall be used solely to finance the general corporate purposes of the Borrower
and its Subsidiaries, including making Permitted Acquisitions. The Lenders shall
be granted an option by the Borrower (but no Lender shall have any obligation)
to provide the commitments under any Additional Facility, and each Lender may do
so in its sole discretion.
11.2 Notices. (a) All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (i) in the case of the Parent, DOC, the Borrower and the
Agents, as follows and (ii) in the case of the Lenders, as set forth in an
administrative questionnaire delivered to the Administrative Agent or on
Schedule I to the Lender Addendum to which such Lender is a party or, in the
case of a Lender which becomes a party to this Agreement pursuant to an
Assignment and Acceptance, in such Assignment and Acceptance or (iii) in the
case of any party, to such other address as such party may hereafter notify to
the other parties hereto:
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The Parent, DOC and the Borrower 00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Treasurer
Telecopy: 000 000 0000
Telephone: 000 000 0000
The Administrative Agent: Xxxxxx Commercial Paper Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000 000 0000
Telephone: 000 000 0000
Issuing Lender: National City Bank
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: 000 000 0000
Telephone: 000 000 0000.
provided that any notice, request or demand to or upon any Agent, the Issuing
Lender or any Lender shall not be effective until received.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications (other than by telecopy)
pursuant to procedures approved by the Administrative Agent and financial
statements required to be furnished hereunder by the Loan Parties may be
furnished by means of posting to an IntraLinks site to which the Administrative
Agent and each Lender has been granted access; provided that the foregoing shall
not apply to notices pursuant to Sections 2 and 3 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower and each other Loan Party may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications,
and not by telecopy, pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of any Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made herein, in the other Loan Documents and in
any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
11.5 Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Agents for all their reasonable out-of-pocket costs and expenses
(invoiced in reasonable detail) incurred in connection with the syndication of
the Facilities (other than fees payable to syndicate members) and the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or
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therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including the reasonable fees and disbursements
and other charges of counsel to the Administrative Agent and the charges of
Intralinks, (b) to pay or reimburse each Lender and the Agents for all their
costs and expenses (invoiced in reasonable detail) incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any other documents prepared in connection herewith or
therewith, including the fees and disbursements of counsel (including the
allocated fees and disbursements and other charges of in-house counsel) to each
Lender and of counsel to the Agents, (c) to pay, indemnify, or reimburse each
Lender and the Agents for, and hold each Lender and the Agents harmless from,
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d) to pay, indemnify or reimburse
each Lender, each Agent, their respective affiliates, and their respective
officers, directors, trustees, employees, advisors, agents and controlling
persons (each, an "Indemnitee") for, and hold each Indemnitee harmless from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Parent, the
Borrower, DOC any of its Subsidiaries or any of the Properties and the fees and
disbursements and other charges of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against the Borrower hereunder (all the
foregoing in this clause (d), collectively, the "Indemnified Liabilities"),
provided that the Borrower shall have no obligation hereunder to any Indemnitee
with respect to Indemnified Liabilities to the extent such Indemnified
Liabilities are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee. No Indemnitee shall be liable for any damages
arising from the use by unauthorized persons of Information or other materials
sent through electronic, telecommunications or other information transmission
systems that are intercepted by such persons or for any special, indirect,
consequential or punitive damages in connection with the Facilities. Without
limiting the foregoing, and to the extent permitted by applicable law, the
Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries so to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due
under this Section shall be payable not later than 10 days after written demand
therefor. Statements payable by the Borrower pursuant to this Section shall be
submitted to the Borrower at the address of the Borrower set forth in Section
11.2, or to such other Person or address as may be hereafter designated by the
Borrower in a notice to the Administrative Agent. The agreements in this Section
shall survive repayment of the Loans and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of The Parent,
the Borrower, the Lenders, the Agents, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender
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or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Agents shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event shall
any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would require the consent of all Lenders pursuant to Section
11.1. The Borrower agrees that if amounts outstanding under this Agreement and
the Loans are due or unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall, to the maximum extent permitted by applicable law, be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in Section
11.7(a) as fully as if such Participant were a Lender hereunder. The Borrower
also agrees that each Participant shall be entitled to the benefits of Sections
2.19, 2.20 and 2.21 with respect to its participation in the Commitments and the
Loans outstanding from time to time as if such Participant were a Lender;
provided that, in the case of Section 2.20, such Participant shall have complied
with the requirements of said Section, and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with
applicable law and upon written notice to the Administrative Agent, at any time
and from time to time assign to any Lender or any affiliate, Related Fund or
Control Investment Affiliate thereof or, in the case of an assignment to any
other Person with the consent of the Borrower and the Administrative Agent and,
in the case of any assignment of Revolving Credit Commitments, the written
consent of the Issuing Lender and the Swing Line Lender (which, in each case,
shall not be unreasonably withheld or delayed) (provided (x) that no such
consent need be obtained by any Xxxxxx Entity or any Agent for a period of 180
days following the Closing Date and (y) the consent of the Borrower need not be
obtained with respect to any assignment of Term Loans), to an additional bank,
financial institution or other entity (an "Assignee") all or any part of its
rights and obligations under this Agreement pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit E, executed by such Assignee
and such Assignor (and, where the consent of the Borrower or, the Administrative
Agent or the Issuing Lender or the Swing Line Lender is required pursuant to the
foregoing provisions, by the Borrower and such other Persons) and delivered to
the Administrative Agent for its acceptance and recording in the Register;
provided that no such assignment to an Assignee (other than any Lender or any
Affiliate or Related Fund thereof) shall be in an aggregate principal amount of,
and no Assignor shall hold following such assignment, less than $1,000,000 with
respect to the Term Loans and $1,000,000 with respect to the Revolving Credit
Facility (other than in the case of an assignment of all of a Lender's interests
under this Agreement), unless otherwise agreed by the Borrower and the
Administrative Agent. Any such assignment need not be ratable as among the
Facilities. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with Commitments and/or Loans as set forth therein, and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor's rights
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and obligations under this Agreement, such Assignor shall cease to be a party
hereto, except as to Section 2.19, 2.20 and 10.5 in respect of the period prior
to such effective date). Notwithstanding any provision of this Section, the
consent of the Borrower shall not be required for any assignment that occurs at
any time when any Event of Default shall have occurred and be continuing. For
purposes of the minimum assignment amounts set forth in this paragraph, multiple
assignments by two or more Related Funds shall be aggregated.
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 11.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, each Agent and the Lenders shall treat each Person whose name
is recorded in the Register as the owner of the Loans and any Notes evidencing
such Loans recorded therein for all purposes of this Agreement. Any assignment
of any Loan, whether or not evidenced by a Note, shall be effective only upon
appropriate entries with respect thereto being made in the Register (and each
Note shall expressly so provide). Any assignment or transfer of all or part of a
Loan evidenced by a Note shall be registered on the Register only upon surrender
for registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed Assignment and Acceptance; thereupon one or more
new Notes in the same aggregate principal amount shall be issued to the
designated Assignee, and the old Notes shall be returned by the Administrative
Agent to the Borrower marked "canceled". The Register shall be available for
inspection by the Borrower or any Lender (with respect to any entry relating to
such Lender's Loans) at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an Assignor and an Assignee (and, in any case where the consent of any other
Person is required by Section 11.6(c), by each such other Person) together with
payment to the Administrative Agent of a registration and processing fee of
$3,500 (treating multiple, simultaneous assignments by or to two or more Related
Funds as a single assignment) (except that no such registration and processing
fee shall be payable (y) in connection with an assignment by or to a Xxxxxx
Entity or (z) in the case of an Assignee which is already a Lender or is an
affiliate or Related Fund of a Lender or a Person under common management with a
Lender), the Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Borrower. On or prior to such effective date, the
Borrower, at its own expense, upon request, shall execute and deliver to the
Administrative Agent (in exchange for the Revolving Credit Note and/or
applicable Term Notes, as the case may be, of the assigning Lender) a new
Revolving Credit Note and/or applicable Term Notes, as the case may be, to the
order of such Assignee in an amount equal to the Revolving Credit Commitment
and/or applicable Term Loans, as the case may be, assumed or acquired by it
pursuant to such Assignment and Acceptance and, if the Assignor has retained a
Revolving Credit Commitment and/or Term Loans, as the case may be, upon request,
a new Revolving Credit Note and/or Term Notes, as the case may be, to the order
of the Assignor in an amount equal to the Revolving Credit Commitment and/or
applicable Term Loans, as the case may be, retained by it hereunder. Such new
Note or Notes shall be dated the Closing Date and shall otherwise be in the form
of the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests in Loans and Notes, including
any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law.
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(g) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC"), identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower, the option to provide to
the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan and (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any state thereof. In
addition, notwithstanding anything to the contrary in this Section 11.6(g), any
SPC may (A) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Lender, or with the prior written consent of the Borrower and the Administrative
Agent (which consent shall not be unreasonably withheld) to any financial
institutions providing liquidity and/or credit support to or for the account of
such SPC to support the funding or maintenance of Loans, and (B) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC; provided that non-public
information with respect to the Borrower may be disclosed only with the
Borrower's consent which will not be unreasonably withheld. This paragraph (g)
may not be amended without the written consent of any SPC with Loans outstanding
at the time of such proposed amendment.
11.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, if any Lender (a "Benefited Lender") shall
at any time receive any payment of all or part of the Obligations owing to it,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Obligations, such Benefited Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Obligations, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefited
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Parent, DOC or the Borrower, any such notice being expressly waived by the
Parent, DOC and the Borrower to the extent permitted by applicable law, upon any
amount becoming due and payable by the Parent, DOC or the Borrower hereunder
(whether at the stated maturity, by acceleration or otherwise), to set off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Parent, DOC or the Borrower, as the case may be.
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Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such setoff and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement or of a Lender Addendum by facsimile transmission shall be effective
as delivery of a manually executed counterpart hereof. A set of the copies of
this Agreement signed by all the parties shall be lodged with the Borrower and
the Administrative Agent.
11.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of The Parent, the Borrower, the Agents, the
Arranger and the Lenders with respect to the subject matter hereof and thereof,
and there are no promises, undertakings, representations or warranties by the
Arranger, any Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. Each of The Parent,
DOC and the Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 11.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction; and
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(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damages.
11.13 Acknowledgments. Each of The Parent, DOC and the
Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Arranger, any Agent nor any Lender has any
fiduciary relationship with or duty to any Loan Party arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Arranger, the Agents and the Lenders, on one hand, and
any Loan Party on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Arranger, the Agents and the Lenders or among the Loan Parties, the
Borrower and the Lenders.
11.14 Confidentiality. Each of the Agents and the Lenders
agrees to keep confidential all non-public information provided to it by any
Loan Party pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to any Agent, any other Lender or any
affiliate of any thereof, (b) to any Participant or Assignee (each, a
"Transferee") or prospective Transferee that agrees to comply with the
provisions of this Section or substantially equivalent provisions, (c) to any of
its employees, directors, agents, attorneys, accountants and other professional
advisors, in each case on a "need to know" basis, (d) to any financial
institution that is a direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section), (e) upon the
request or demand of any Governmental Authority having jurisdiction over it, (f)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (g) in connection with
any litigation or similar proceeding, (h) that has been publicly disclosed other
than in breach of this Section, (i) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender or (j) in
connection with the exercise of any remedy hereunder or under any other Loan
Document; provided that prior to disclosure pursuant to clauses (f) or (g)
above, the relevant Agent or Lender shall (to the extent that it is lawfully
permitted to do so, as determined by it in consultation with counsel) give
reasonable prior notice of such disclosure to the Borrower. Notwithstanding
anything herein to the contrary, any party subject to confidentiality
obligations hereunder or under any other related document (and any employee,
representative or other agent of such party) may disclose to any and all
persons, without limitation of any kind, such party's U.S. federal income tax
treatment and tax structure of the transactions contemplated by this Agreement
relating to such party and all materials of any kind (including opinions or
other tax analyses) that are provided to it relating to such tax treatment and
tax structure. However, no such party shall be required to disclose any
information relating to such tax treatment or tax structure to the extent
nondisclosure is reasonably necessary in order to comply with applicable
securities laws. Subject to the foregoing, nothing herein shall release any
Lender from any other confidentiality agreement previously executed with any
Borrower.
84
11.15 Release of Collateral and Guarantee Obligations.
(a) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, upon request of the Borrower in connection with
any Disposition of Property permitted by the Loan Documents, the Administrative
Agent shall (without notice to, or vote or consent of, any Lender, or any
affiliate of any Lender that is a party to any Specified Hedge Agreement) take
such actions as shall be required to release its security interest in any
Collateral being Disposed of in such Disposition, and to release any guarantee
obligations under any Loan Document of any Person being Disposed of in such
Disposition, to the extent necessary to permit consummation of such Disposition
in accordance with the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein
or any other Loan Document, when all Obligations (other than obligations in
respect of any Specified Hedge Agreement) have been paid in full, all
Commitments have terminated or expired and no Letter of Credit shall be
outstanding, upon request of the Borrower, the Administrative Agent shall
(without notice to, or vote or consent of, any Lender, or any affiliate of any
Lender that is a party to any Specified Hedge Agreement) take such actions as
shall be required to release its security interest in all Collateral, and to
release all guarantee obligations under any Loan Document, whether or not on the
date of such release there may be outstanding Obligations in respect of
Specified Hedge Agreements. Any such release of guarantee obligations shall be
deemed subject to the provision that such guarantee obligations shall be
reinstated if after such release any portion of any payment in respect of the
Obligations guaranteed thereby shall be rescinded or must otherwise be restored
or returned upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or any Guarantor or any substantial part of its
property, or otherwise, all as though such payment had not been made.
11.16 Accounting Changes. In the event that any "Accounting
Change" (as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Change with the desired result that the
criteria for evaluating the Borrower's financial condition shall be the same
after such Accounting Change as if such Accounting Change had not been made.
Until such time as such an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Change had not occurred. "Accounting Change"
refers to any change in accounting principles required by the promulgation of
any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
11.17 Delivery of Lender Addenda. Each initial Lender shall
become a party to this Agreement by delivering to the Administrative Agent a
Lender Addendum duly executed by such Lender, the Borrower and the
Administrative Agent.
11.18 FCC Compliance. Notwithstanding anything to the contrary
in this Agreement and the other Loan Documents, no party hereto or thereto
shall, without first obtaining the approval of the applicable Communications
Regulatory Authority, take any action under this Agreement or the other Loan
Documents that would constitute or result in an assignment of any FCC License or
a change of control over any FCC License, to the extent that such assignment or
change of control would require, under any Requirements of Law applicable at the
time, such prior approval of such Communications Regulatory Authority.
85
11.19 WAIVERS OF JURY TRIAL. THE PARENT, DOC, THE BORROWER,
THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
86
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
XXXXXX CELLULAR SYSTEMS, INC.,
as Borrower,
By:/s/ XXXXX X. XXXXXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
XXXXXX OPERATING CO., L.L.C.
By:/s/ XXXXX X. XXXXXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
XXXXXX COMMUNICATIONS CORPORATION
By:/s/ XXXXX X. XXXXXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
[SIGNATURE PAGE TO
CREDIT AGREEMENT]
XXXXXX BROTHERS INC.,
as Administrative Agent, Swingline
Lender and a Lender
By: Illegible Signature
------------------------------
Name:
Title:
BEAR XXXXXXX CORPORATE LENDING
INC.,
as Syndication Agent and a Lender
By: /s/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC,
as Documentation Agent and a Lender
By: /s/ JAAP L. TONCKENS
------------------------------
Name: Jaap L. Tonckens
Title: Vice President
NATIONAL CITY BANK,
as Issuing Lender and a Lender
By: /s/ XXXXX X. XXXXXXX
------------------------------
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO
CREDIT AGREEMENT]
Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE LOANS,
AND COMMITMENT FEES
Applicable Margin for the Revolving Credit
---------------------------------------------------
Facility Applicable Margin for the Term Loan Facility
--------------------------------------------------- -------------------------------------------------
Parent Leverage Eurodollar Base Rate DOC Leverage Ratio Eurodollar Base Rate
--------------- ---------- --------- ------------------ ---------- ---------
Ratio Loans Loans Ratio Loans Loans
----- ----- ----- ----- ----- -----
equal to or greater than 3.25% 2.25% equal to or greater 3.25% 2.25%
4.5:1 than 1.0:1
less than 4.5:1 but equal 3.00% 2.00% less than 1.0:1 3.00% 2.00%
to or greater than 4.0:1
less than 4.0:1 but equal 2.75% 1.75%.
to or greater than 3.5:1
less than 3.5:1 but equal 2.50% 1.50%
to or greater than 3.0:1
less than 3.0:1 2.25% 1.25%
Changes in the Applicable Margin with respect to Revolving Credit Facility
resulting from changes in the Parent Leverage Ratio or the Term Loan Facility
resulting from changes in the DOC Leverage Ratio shall become effective on the
date (the "Adjustment Date") on which financial statements are delivered to the
Lenders pursuant to Section 6.1 of the
Credit Agreement (but in any event not
later than the 60th day after the end of each of the first three quarterly
periods of each fiscal year or the 120th day after the end of each fiscal year,
as the case may be) and shall remain in effect until the next change to be
effected pursuant to this paragraph. If any financial statements referred to
above are not delivered within the time periods specified above, then, until
such financial statements are delivered, the Parent Leverage Ratio as at the end
of the fiscal period that would have been covered thereby shall for the purposes
of this Pricing Grid be deemed to be greater than 4.5 to 1 and the DOC Leverage
Ratio as at the end of the fiscal period that would have been covered thereby
shall for the purposes of this Pricing Grid be deemed to be greater than 1.0 to
1. In addition, at all times while an Event of Default shall have occurred and
be continuing, the Parent Leverage Ratio shall for the purposes of this Pricing
Grid be deemed to be greater than 4.5 to 1 and the DOC Leverage Ratio shall for
the purposes of this Pricing Grid be deemed to be greater than greater than 1.0
to 1. Each determination of the Parent Leverage Ratio and the DOC Leverage Ratio
pursuant to this Pricing Grid shall be made for the periods and in the manner
contemplated by Section 7.1 of the
Credit Agreement.
