COPY AS EXECUTED
U.S. $1,000,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 31, 1996
Among
360 COMMUNICATIONS COMPANY
as Borrower,
THE INITIAL LENDERS NAMED HEREIN
as Lenders,
and
CITIBANK, N.A.
as Administrative Agent
THE CHASE MANHATTAN BANK
as Syndication Agent
TORONTO DOMINION (TEXAS), INC.
as Documentation Agent
and
BANK OF AMERICA ILLINOIS
as Syndication Agent
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.........................................1
SECTION 1.02. Computation of Time Periods...................................19
SECTION 1.03. Accounting Terms..............................................19
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances..................................................19
SECTION 2.02. Making the Advances...........................................19
SECTION 2.03. Fees..........................................................21
SECTION 2.04. Termination or Reduction of the Commitments...................21
SECTION 2.05. Repayment.....................................................21
SECTION 2.06. Interest......................................................22
SECTION 2.07. Interest Rate Determination...................................22
SECTION 2.08. Optional Conversion of Advances...............................23
SECTION 2.09. Prepayments...................................................24
SECTION 2.10. Increased Costs...............................................24
SECTION 2.11. Illegality....................................................25
SECTION 2.12. Payments and Computations.....................................26
SECTION 2.13. Taxes.........................................................27
SECTION 2.14. Sharing of Payments, Etc......................................29
SECTION 2.15. Use of Proceeds...............................................29
SECTION 2.16. Substitution of Lenders.......................................29
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.........30
SECTION 3.02. Conditions Precedent to Each Borrowing........................32
SECTION 3.03. Determinations Under Section 3.01.............................33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower................33
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.........................................39
SECTION 5.02. Negative Covenants............................................44
SECTION 5.03. Financial Covenants...........................................54
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.............................................56
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action......................................60
SECTION 7.02. Administrative Agent's Reliance, Etc..........................60
SECTION 7.03. Citibank, BankAmerica, TD Bank and Chase and Affiliates.......61
SECTION 7.04. Lender Credit Decision........................................61
SECTION 7.05. Indemnification...............................................61
SECTION 7.06. Successor Agents..............................................62
SECTION 7.07. Agents........................................................62
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc...............................................63
SECTION 8.02. Notices, Etc..................................................63
SECTION 8.03. No Waiver; Remedies...........................................64
SECTION 8.04. Costs and Expenses............................................64
SECTION 8.05. Right of Set-off..............................................65
SECTION 8.06. Binding Effect................................................66
SECTION 8.07. Assignments and Participations................................66
SECTION 8.08. Confidentiality...............................................69
SECTION 8.09. Governing Law.................................................69
SECTION 8.10. Execution in Counterparts.....................................69
SECTION 8.11. Jurisdiction, Etc.............................................69
SECTION 8.12. Effective Date Assignments; Etc...............................70
SECTION 8.13. Waiver of Jury Trial..........................................72
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 3.01(f) - Agreements and Instruments Relating to Structure and
Capitalization
Schedule 4.01(b) - Restricted Subsidiaries
Schedule 4.01(d) - Required Authorizations, Approvals, Actions, Notices and
Filings
Schedule 5.01(h) - Transactions with Affiliates
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Surviving Debt
Schedule 5.02(h) - Existing Investments
Schedule 5.02(p) - Pro Forma Structure and Capitalization
Schedule 8.12 - Existing Commitments and Existing Advances
Exhibits
Exhibit A - Form of Promissory Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of General Counsel of the Borrower
AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 31,
1996 among 360 COMMUNICATIONS COMPANY, a Delaware corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof as having a Commitment (as
defined below) greater than zero, CITIBANK, N.A. ("Citibank"), as administrative
agent (the "Administrative Agent"), THE CHASE MANHATTAN BANK, as successor to
Chemical Bank ("Chase"), as syndication agent, TORONTO DOMINION (TEXAS), INC.
("TD Bank"), as documentation agent (the "Documentation Agent"), and BANK OF
AMERICA ILLINOIS ("BankAmerica"), as syndication agent (together with Chase, the
"Syndication Agents", and the Syndication Agents together with the
Administrative Agent and the Documentation Agent, being the "Agents") for the
Lenders (as hereinafter defined).
PRELIMINARY STATEMENTS.
(1) The Borrower has entered into a Credit Agreement dated as
of March 6, 1996 (the "Original Credit Agreement") with the Agents and certain
lenders, financial institutions and other institutional lenders named therein or
made a party thereto (collectively, the "Existing Lenders").
(2) The Borrower has requested that the Existing Lenders and
others enter into this Agreement to amend and restate the Original Credit
Agreement in order to increase the Commitments (as defined below) from an
aggregate amount of $800,000,000 to an aggregate amount of $1,000,000,000 and to
permit the ICN Acquisition (as hereinafter defined). The Existing Lenders have
indicated their willingness to amend and restate the Original Credit Agreement
upon the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto hereby
agree that, subject to the satisfaction of the conditions set forth in Article
III, the Original Credit Agreement is amended and restated in its entirety to
read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank
with its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account
No. 00000000, Attention: Xxxxxxx Xxxxxx.
"Advance" means an advance by a Lender to the Borrower
pursuant to Article II, and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
Applicable Margin for
Public Debt Rating Applicable Margin for Eurodollar Rate
S&P/Xxxxx'x Base Rate Advances Advances
Level 1
BBB-- or above or Baa3 or
above 0.00% 0.500%
Xxxxx 0
Less than Level 1 but at
least BB+ and at least Ba1 0.00% 0.625%
Xxxxx 0
Less than Level 2 but at
least BB and at least Ba2 0.00% 0.700%
Applicable Margin for
Public Debt Rating Applicable Margin for Eurodollar Rate
S&P/Xxxxx'x Base Rate Advances Advances
Level 4
Less than Level 3 but at
least (i) BB and Ba3 or (ii)
BB--and Ba2 0.00% 0.800%
Xxxxx 0
Less than Level 4 but at
least BB--and at least Ba3 0.25% 1.250%
Xxxxx 0
Xxxx xxxx Xxxxx 0 0.90% 1.900%
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
Level 1
BBB--or above or Baa3 or above 0.150%
Xxxxx 0
Less than Level 1 but at least BB+
and at least Ba1 0.225%
Xxxxx 0
Less than Level 2 but at least BB
and at least Ba2 0.250%
Xxxxx 0
Less than Level 3 but at least (i)
BB and Ba3 or (ii) BB--and Ba2 0.250%
Xxxxx 0
Less than Level 4 but at least BB--
and at least Ba3 0.300%
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
Level 6 0.500%
Less than Level 5
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or,
if there is no nearest 1/16 of 1%, to the next higher 1/16 of
1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrowing" means a borrowing consisting of Advances of the
same Type and the same Interest Period made on the same day by the
Lenders.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York, New York or
Chicago, Illinois and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"Commitment" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Borrower
or any of its Subsidiaries furnishes to any Agent or any Lender, but
does not include any such information that is or becomes generally
available to the public other than as a result of a breach by any Agent
or any Lender of its obligations hereunder or that is or becomes
available to such Agent or such Lender from a source other than the
Borrower or any of its Subsidiaries.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money (including, without
limitation, indebtedness incurred in connection with securitizations,
whether or not any such securitization is reflected on the balance
sheet of such Person), (b) all payment Obligations of such Person for
the deferred purchase price of property or services (other than trade
payables and other accounts payable not overdue by more than 60 days
incurred in the ordinary course of such Person's business), (c) all
payment Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all payment Obligations of
such Person 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 payment Obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases ("Capitalized
Leases"), (f) all payment Obligations, contingent or otherwise, of such
Person in respect of acceptances, letters of credit or similar
extensions of credit which are or should be, in accordance with GAAP,
set forth in the consolidated financial statements of such Person,
(g) all payment Obligations, contingent or otherwise, of such Person to
purchase, redeem, retire, defease or otherwise make any payment in
respect of any capital stock of or other ownership or profit interest
in such Person or any other Person or any warrants, rights or options
to acquire such capital stock, valued, in the case of redeemable
preferred stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends, (h) all
payment Obligations, contingent or otherwise, of such Person in respect
of Hedge Agreements, (i) all Debt of others referred to in clauses (a)
through (h) above or clause (j) below guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (1) to pay or purchase
such Debt or to advance or supply funds for the payment or purchase of
such Debt, (2) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the
holder of such Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received
or such services are rendered) or (4) otherwise to assure a creditor
against loss, and (j) all Debt referred to in clauses (a) through (i)
above secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense and (e) non-cash losses
(to the extent deducted in the calculation of net income), minus (f)
non-cash gains (to the extent added in the calculation of net income),
in each case determined in accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having a combined capital and surplus
of at least $500,000,000; (iv) a savings and loan
association or savings bank organized under the laws of the United
States, or any State thereof, and having a combined capital and surplus
of at least $500,000,000; (v) a commercial bank organized under the
laws of any other country that is a member of the Organization for
Economic Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having a combined capital and surplus of at least
$500,000,000, so long as such bank is acting through a branch or agency
located in the United States; (vi) the central bank of any country that
is a member of the Organization for Economic Cooperation and
Development; (vii) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership,
trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and having a combined capital and surplus of at least
$500,000,000; and (viii) any other Person approved by the
Administrative Agent and the Borrower, such approval not to be
unreasonably withheld or delayed; provided, however, that none of the
Borrower, Sprint or any Affiliate of the Borrower or Sprint shall
qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages relating to injuries or threats of
injuries to health, safety or the environment and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief relating to injuries or threats of injuries to
health, safety or the environment.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation relating to pollution or
protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of the Borrower or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for the imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period. The Eurodollar Rate
for any Interest Period for each Eurodollar Rate Advance comprising
part of the same Borrowing shall be determined by the Administrative
Agent on the basis of applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business Days before
the first day of such Interest Period, subject, however, to the
provisions of Section 2.07.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Exchange and Merger Agreement" means the Exchange and Merger
Agreement dated as of May 31, 1996 among the Borrower, ICNP, Xxxxx X.
Xxxxx, Xx., Xxxxx Xxxxxxx, CC Industries, Inc., Ohio Cellular RSA,
L.P., Ohio RSA Corporation, Quality Cellular Communications of Ohio,
Inc., Cellular Plus, L.P., C-Plus, Inc., Quality Cellular Plus
Communications, Inc., and Xxxxx Crown and Company (not incorporated),
as amended, supplemented or otherwise modified from time to time in
accordance with its terms, to the extent permitted in accordance with
this Agreement, and unless the context requires otherwise, includes all
other documents and instruments related or delivered pursuant thereto
and all other agreements or arrangements between the Borrower or any of
its Subsidiaries and ICNP or any of its affiliates.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Advance" means, for each Existing Lender, all of
such Existing Lender's rights in and to, and all of its obligations
under, the Original Advances evidenced by the Original Notes and owing
to it under the Original Credit Agreement as of the Effective
Date, the aggregate amount of which is set forth opposite such Existing
Lender's name on Schedule 8.12 hereto.
"Existing Commitment" means, for each Existing Lender, all of
such Existing Lender's rights in and to, and all of its obligations
under, the Original Commitment held by it under the Original Credit
Agreement as of the Effective Date, the aggregate amount of which is
set forth opposite such Existing Lender's name on Schedule 8.12 hereto.
"Existing Lenders" has the meaning specified in the
Preliminary Statements hereto.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"ICN" means Independent Cellular Network, Inc., a Delaware
corporation, and certain of its affiliates that are parties to the ICN
Acquisition.
"ICN Acquisition" means the acquisition by the Borrower and
certain of its Subsidiaries of ICN pursuant to, and in accordance with
the terms of, the Exchange and Merger Agreement.
"ICN Acquisition Debt" means the Debt assumed by the Borrower
in connection with the ICN Acquisition in an amount not to exceed
$240,000,000 under and pursuant
to that certain Loan Agreement dated as of September 9, 1994, as
amended as of May 30, 1995, by and among ICNP and the lenders named
therein.
"ICNP" means Independent Cellular Network Partners, an
Illinois limited partnership.
"Initial Lender" has the meaning specified in the recital of
parties hereto.
"Information Memorandum" means the information memorandum
dated December 1995 used by the Agents in connection with the
syndication of the Commitments.
"Information Package" means certain information distributed by
the Agents on or about August 19, 1996, to the Lenders in connection
with this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months or any other period agreed to by all of
the Lenders, as the Borrower may, upon notice received by the
Administrative Agent not later than 12:00 Noon (New York City time) on
the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration (provided that multiple
Borrowings with different Interest Periods may be made on the
same Business Day);
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the
next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock,
warrants, rights, options, obligations or other securities or all or
substantially all of the assets of such Person, any capital
contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clauses (i) and (j) of
the definition of "Debt" in respect of such Person.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Major Subsidiary" means a Restricted Subsidiary of which (or
in which) at least 70% of the Voting Stock, right or power to direct or
control or the beneficial interest of which (or in which) is at the
time directly or indirectly owned or controlled by the Borrower, the
Borrower and one or more of the Restricted Subsidiaries or one or more
of the Restricted Subsidiaries.
"Marketable Securities" means any of the following, to the
extent owned by the Borrower and having a maturity of not greater than
90 days from the date of acquisition thereof: (a) readily marketable
direct obligations of the Government of the United States or any agency
or instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States, (b)
insured certificates of deposit of or time or demand deposits with any
commercial bank that is a Lender or a member of the Federal Reserve
System, issues (or the parent of which issues) commercial paper rated
as described in clause (c), is organized under the laws of the United
States or
any State thereof and has combined capital and surplus of at least
$500,000,000, (c) commercial paper in an aggregate amount of no more
than $10,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States
and rated at least "Prime-1" (or the then equivalent grade) by Moody's
or "A-1" (or the then equivalent grade) by S&P or (d) Investments in
money market or mutual funds that invest primarily in Marketable
Securities of the types described in clauses (a), (b) and (c) above, in
an aggregate amount invested in any one such fund not to exceed
$10,000,000 outstanding at any time.
"Material Adverse Change" means any material adverse change in
the financial condition, results of operations or prospects of the
Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the financial condition, results of operations or prospects of the
Borrower and its Subsidiaries taken as a whole, (b) the rights and
remedies of any Agent or any Lender under this Agreement or any Note or
(c) the ability of the Borrower to perform its payment Obligations in
any respect, or its other Obligations in any material respect, under
this Agreement or any Note.
"Material Contract" means each contract to which the Borrower
or any Restricted Subsidiary is a party involving aggregate
consideration payable to or by the Borrower or such Restricted
Subsidiary of $250,000 or more or otherwise material to the financial
condition, results of operations or prospects of the Borrower and the
Restricted Subsidiaries taken as a whole.
"Material Subsidiary" means, at any time, a Subsidiary of the
Borrower having at least 5% of the total Consolidated assets of the
Borrower and its Subsidiaries (determined as of the last day of the
most recent fiscal quarter of the Borrower) or at least 5% of the total
Consolidated revenues or net income of the Borrower and its
Subsidiaries for the 12-month period ending on the last day of the most
recent fiscal quarter of the Borrower.
"Minor Subsidiaries" means all Restricted Subsidiaries other
than the Major Subsidiaries.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset by any Person, the aggregate
amount of cash received from time to time (whether as initial
consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a)
reasonable and customary brokerage commissions, underwriting fees and
discounts, legal fees, finder's fees and other similar fees and
commissions, (b) the amount of taxes payable in connection with or as a
result of such transaction and (c) the amount of any Debt that, by the
terms of the agreement or instrument governing such Debt (other than,
in any case, the Senior Notes and the Senior Note Indenture), is
required to be repaid upon such disposition, in each case to the
extent, but only to the extent, that the amounts so deducted are, at
the time of receipt of such cash, actually paid to a Person that is not
an Affiliate of such Person or the Borrower or Sprint or any Affiliate
of the Borrower or Sprint and are properly attributable to such
transaction or to the asset that is the subject thereof.
"Non-hostile Acquisition" means any acquisition by the
Borrower or any of its Subsidiaries of a Person, so long as (x) the
board of directors (or other governing body) of such Person shall have
approved such acquisition at the time such acquisition is first
publicly announced, (y) if such Person shall have been soliciting bids
for its acquisition, the board of directors (or other governing body)
of such Person shall not have determined either to accept no offer or
to accept an offer other than an offer by the Borrower or any of its
Subsidiaries or (z) if such Person shall not have been soliciting bids
for its acquisition or if the board of directors (or other governing
body) of such Person shall have solicited bids for its acquisition but
shall have initially determined either to accept no offer or to accept
an offer other than an offer by the Borrower or any of its
Subsidiaries, in each case the existence, amount and availability for
the acquisition of such Person of the Commitments hereunder shall not
have been disclosed, orally or in writing, until after such time as the
board of directors (or other governing body) of such Person shall have
approved such acquisition by the Borrower or any of its Subsidiaries
and so long as, in any case, such acquisition is otherwise permitted
hereunder.
"Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Advances
made by such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(e). Without
limiting the generality of the foregoing, the Obligations of the
Borrower under this Agreement and the Notes include (a) the obligation
to pay principal, interest, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by the
Borrower under this Agreement or any Note and (b) the obligation of the
Borrower to reimburse any amount in respect of any of the foregoing
that any Lender, in its sole discretion, may elect to pay or advance on
behalf of the Borrower.
"Original Advances" means the Advances as defined in the
Original Credit Agreement.
"Original Agents" means the Agents as defined in the Original
Credit Agreement.
"Original Commitments" means the Commitments as defined in the
Original Credit Agreement.
"Original Credit Agreement" has the meaning specified in the
Preliminary Statements hereto.
"Original Effective Date" means March 7, 1996.
"Original Notes" means the Notes as defined in the Original
Credit Agreement.
"Other Taxes" has the meaning specified in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 60
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; (d) pledges or deposits to secure the
performance of bids, government contracts, leases (other than
Capitalized Leases), surety and appeal bonds and other similar
obligations, in each case incurred in the ordinary course of business
(exclusive of obligations for payment of borrowed money) and (e)
easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property
for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced by S&P or by Moody's, as the case
may be, for any class of non-credit enhanced long-term senior unsecured
debt issued by the Borrower. For purposes of the foregoing, (a) if only
one of S&P and Moody's shall have in effect a Public Debt Rating as a
result of events beyond the Borrower's control, the Applicable Margin
and the Applicable Percentage shall be determined by reference to the
available rating, and if only one of S&P and Moody's shall have in
effect a Public Debt Rating for any other reason, the Applicable Margin
and Applicable Percentage will be set in accordance with Level 6 under
the definition of "Applicable Margin" or "Applicable Percentage", as
the case may be; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin and the Applicable Percentage
will be set in accordance with Level 6 under the definition of
"Applicable Margin" or "Applicable Percentage", as the case may be; (c)
if any rating established by S&P or Moody's shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (d) if
S&P or Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Moody's,
as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
"Reference Banks" means Citibank, BankAmerica, TD Bank and
Chase.
"Register" has the meaning specified in Section 8.07(c).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest of the
Commitments.
"Responsible Officer" means any officer of the Borrower (other
than regional vice presidents and any other regional officer).
"Restricted Subsidiaries" means, as of the Original Effective
Date, the Subsidiaries of the Borrower listed on Schedule 4.01(b) and
thereafter all other Subsidiaries of the Borrower other than the
Unrestricted Subsidiaries, provided, however, that no Restricted
Subsidiary shall be a Subsidiary of an Unrestricted Subsidiary.
"Rights Agreement" means the Rights Agreement dated as of
March 5, 1996, among the Borrower and Chemical Bank, as Rights Agent,
as in effect on the date hereof.
"Rolling Period" means, as at any date of determination, the
period of the four fiscal quarters of the Borrower then most recently
ended.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies.
"Senior Notes" means the senior unsecured notes of the
Borrower due 2003 and 2006 issued pursuant to the Senior Note
Indenture.
"Senior Note Indenture" means the Indenture dated as of March
7, 1996, between the Borrower and Citibank, as trustee, as amended,
supplemented or otherwise modified from time to time in accordance with
its terms, to the extent permitted in accordance with this Agreement.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Spin-Off" means the pro rata tax-free distribution of all of
the shares of Voting Stock of the Borrower by Sprint to the holders of
Sprint's common stock.
"Sprint" means Sprint Corporation, a Kansas corporation.
"Subordinated Notes" means the subordinated non-negotiable
promissory notes due 2006 substantially in the form of Exhibit 1
attached to the Exchange and Merger Agreement, to be issued by the
Borrower in connection with the ICN Acquisition, together with any
agreement or instrument pursuant to which such subordinated notes are
issued.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the right or power to direct, in the case of any entity of which such
Person or any of its Subsidiaries is a general partner, or both the
beneficial ownership of and the right or power to direct, in any other
case, such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"Surviving Debt" has the meaning specified in Section
5.02(d)(i)(C).
"Taxes" has the meaning specified in Section 2.13(a).
"Termination Date" means the earlier of the date that is the
five-year anniversary of the Original Effective Date and the date of
termination in whole of the Commitments pursuant to Section 2.04 or
6.01.
"Unrestricted Subsidiaries" means such Subsidiaries of the
Borrower as the Borrower shall designate as an Unrestricted Subsidiary
in writing to the Agents and the Lenders in accordance with the terms
of Section 5.02(l), and any Subsidiaries thereof; provided, however,
that no such Subsidiary shall own or hold any licenses, patents,
trademarks or intellectual property other than such as may be necessary
to the conduct of the business of such Subsidiary, and provided further
that any such items as may be shared with any Restricted Subsidiary
shall be owned and held by such Restricted Subsidiary.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) Effective as of the Effective
Date, each Existing Lender hereby sells and assigns all of its rights in and to,
and all of its obligations under, each Existing Advance owing to it and the
Existing Commitment held by it to the Initial Lenders and each Initial Lender
hereby purchases and assumes, pro rata based on such Initial Lender's
Commitment, all of the Existing Lenders' rights in and to, and all of their
obligations under, the Existing Advances and the Existing Commitments, the
aggregate amount of which is set forth opposite such Existing Lender's name on
Schedule 8.12 hereto.
(b) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower from time to time on any
Business Day during the period from the Effective Date until the Termination
Date in an aggregate amount not to exceed at any time outstanding the amount set
forth opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to Section
8.07(c), as such amount may be reduced pursuant to Section 2.04 (such Lender's
"Commitment"). Each Borrowing shall be in an aggregate amount of $15,000,000 or
an integral multiple of $1,000,000 in excess thereof and shall consist of
Advances of the same Type made on the same day by the Lenders ratably according
to their respective Commitments. Within the limits of each Lender's Commitment,
the Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.09
and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be
made on notice, given not later than 12:00 Noon (New York City time) on the
third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate
Advances, or not later than 11:00 A.M. (New York City time) on the same Business
Day as the date of the proposed Borrowing in the case of a Borrowing consisting
of Base Rate Advances, by the Borrower to the Administrative Agent, which shall
give to each Lender prompt notice thereof by telecopier or telex. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telecopier or telex, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Lender shall,
before 12:00 Noon (New York City time) on the date of such Borrowing, make
available for the account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent's Account, in same day funds, such Lender's
ratable portion of such Borrowing. After the Administrative Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will promptly make such funds available to
the Borrower at an account maintained by the Borrower at a commercial bank
organized under the laws of the United States, or any State thereof, and
designated by the Borrower for such purpose.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the obligation of the Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.07 or 2.11 and (ii) Eurodollar
Rate Advances may not be outstanding as part of more than 12 separate
Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure by the Borrower to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing (or in the case of a Borrowing
consisting of Base Rate Advances, prior to 12:00 Noon (New York City time) on
the date of any Borrowing) that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and the Borrower severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Commitment Fee. The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a commitment fee
on the average daily unused portion of such Lender's Commitment from the
Effective Date in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing December 31, 1996, and on the Termination Date.
(b) Administrative Agent's Fees. The Borrower agrees to pay to
the Administrative Agent for its own account such fees as may from time to time
be agreed between the Borrower and the Administrative Agent.
SECTION 2.04. Termination or Reduction of the Commitments. (a)
Optional. The Borrower shall have the right, upon at least three Business Days'
notice to the Administrative Agent, permanently to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate amount
of $15,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b) Mandatory. The Commitments shall be automatically and
permanently reduced on a pro rata basis on each date on which any prepayment is
required to be made pursuant to Section 2.09(b) in an amount equal to the
applicable Reduction Amount (as defined in Section 2.09(b)).
SECTION 2.05. Repayment. The Borrower shall repay to the
Administrative Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Advances made to the Borrower and
then outstanding.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(x) the Base Rate in effect from time to time plus (y) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time, payable in arrears
on the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Advance shall
be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on (i) the
unpaid principal amount of each Advance owing to each Lender, payable in arrears
on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other amount
payable hereunder (without duplication as to clause (i) above) that is not paid
when due, from the date such amount shall be due until such amount shall be paid
in full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on Base Rate Advances pursuant to clause (a)(i)
above.
SECTION 2.07. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Eurodollar Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the Administrative Agent for
the purpose of determining any such interest rate, the Administrative Agent
shall determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks. The Administrative Agent shall give prompt
notice to the Borrower and the Lenders of the applicable interest rate
determined by the Administrative
Agent for purposes of Section 2.06(a)(i) or (ii), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance, and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
(e) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar Rate for
any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.08. Optional Conversion of Advances. The Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 12:00 Noon
(New York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.07 and 2.11, Convert all
Advances of one Type comprising the same Borrowing into Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.01 and no Conversion of any Advances shall result in more
separate Borrowings than permitted under Section 2.02(b). Each such notice of a
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.09. Prepayments. (a) The Borrower may, upon at least
three Business Days' notice, in the case of Eurodollar Rate Advances, and same
day notice given not later than 12:00 Noon (New York City time) on any Business
Day, in the case of Base Rate Advances, to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amount of
the Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of $15,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
(b) The Borrower shall, on the date of receipt (or such later
date as may be specified in Section 5.02(f)) of the Net Cash Proceeds by the
Borrower or any of its Restricted Subsidiaries from the sale, lease, transfer or
other disposition of any assets of the Borrower or any of its Restricted
Subsidiaries (other than any sale, lease, transfer or other disposition of
assets pursuant to clause (i), (ii), (iii), (iv), (v) or (viii) of Section
5.02(f)), prepay an aggregate principal amount of the Advances comprising part
of the same Borrowings equal to the amount of such Net Cash Proceeds or such
lesser amount as may be required to be prepaid under Section 5.02(f)(vi), (vii)
or (ix) (the amount of such Net Cash Proceeds or such lesser amount being the
"Reduction Amount").
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances (excluding for purposes
of this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.13
shall govern) and (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the Borrower shall
from time to time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as contemplated by Section 2.10(c) as to the
amount of such increased cost, setting forth a reasonable basis for the
calculation thereof, submitted to the Borrower and the Administrative Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender, from time
to time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to lend hereunder. A
certificate as contemplated by Section 2.10(c) as to such amounts submitted to
the Borrower and the Administrative Agent by such Lender, setting forth a
reasonable basis for the calculation thereof, shall be conclusive and binding
for all purposes, absent manifest error.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, that will entitle such Lender to compensation pursuant to this
Section and will use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if such designation would avoid the need for, or reduce the amount of,
such compensation and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. In determining such amount, such
Lender may use any reasonable averaging and attribution methods. A certificate
of any Lender claiming compensation under this Section and setting forth in
reasonable detail the additional amount or amounts to be paid to it hereunder
and the basis for the calculation thereof shall be conclusive in the absence of
manifest error.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances hereunder, (i) each
Eurodollar Rate Advance will automatically, upon such demand, Convert into a
Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Administrative
Agent at the Administrative Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or commitment fees ratably
(other than amounts payable pursuant to Section 2.10, 2.13 or 8.04(c)) to the
Lenders for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(d), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall make
all payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due. Each Lender agrees
promptly to notify the Borrower after any such charge, provided that the failure
to give such notice shall not affect the validity of such charge.
(c) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of commitment fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or commitment fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of
payment of interest or commitment fee, as the case may be; provided, however,
that, if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Subject to Sections 2.13(e) and (f),
any and all payments by the Borrower hereunder or under the Notes shall be made,
in accordance with Section 2.12, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and each Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of overall net income taxes, by the United
States or any political subdivision thereof, or by the jurisdiction under the
laws of which such Lender or such Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of overall net
income taxes, by the jurisdiction of such Lender's Applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). Subject
to Sections 2.13(e) and (f), if the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Note to
any Lender or any such Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.13) such Lender or
such Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration
of, performing under, or otherwise with respect to, this Agreement or the Notes
(hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and each Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
taxes imposed by any jurisdiction on amounts payable under this Section 2.13)
imposed on or paid by such Lender or such Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender or such Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing
payment thereof. In the case of any payment hereunder or under the Notes by or
on behalf of the Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof,
the Borrower shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as reasonably requested in
writing by the Borrower (but only so long as such Lender remains lawfully able
to do so), shall provide each of the Administrative Agent and the Borrower with
two original Internal Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the
forms provided by a Lender at the time such Lender first becomes a party to this
Agreement indicate a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date.
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above
because the Borrower has not requested in writing such form subsequent to the
date on which such Lender became a Lender hereunder), such Lender shall not be
entitled to indemnification under Section 2.13(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; provided, however, that
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.13 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it (other
than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of its ratable share
of payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for general corporate
purposes of the Borrower and its Subsidiaries, including, without limitation, to
repay the ICN Acquisition Debt, to finance Investments permitted under Section
5.02(h) and for Non-hostile Acquisitions.
SECTION 2.16. Substitution of Lenders. In the event that (x)
any Lender, pursuant to Section 2.10, 2.11 or 2.13 hereof, incurs any increased
costs, receives a reduced payment or is required to make any payment for which
such Lender demands compensation pursuant to such Section, which compensation
increases the effective lending rate of such Lender in excess of the effective
lending rate of the other Lenders, and such Lender has not mitigated such
increased costs, reduced payment or additional payment within 60 days after
receipt by such Lender from the Borrower of a written notice that such Lender's
effective lending rate has so exceeded the effective lending rate of the other
Lenders, or (y) any Lender has determined pursuant to Section 2.07 hereof that
it may not make or maintain all or certain of its Eurodollar Rate Advances at
such time (and the other Lenders shall continue to be able to make or maintain
their corresponding Eurodollar Rate Advances at such time) and the inability of
such Lender to make or maintain such Eurodollar Rate Advances continues for 60
or more days after the receipt by such Lender from the Borrower of written
notice of such inability and that the Borrower requests that such Lender
alleviate such inability, then and in any such event, the Borrower may
substitute for such Lender (the "Affected Lender") another financial
institution, which financial institution shall be an Eligible Assignee, for such
Lender to assume the Commitment of such Affected Lender and to purchase the Note
of such Affected Lender hereunder in accordance with Section 8.07. Such
assumption and purchase shall be effected by execution and delivery by such
Affected Lender and such replacement Lender of an Assignment and Acceptance, and
shall otherwise be made in the manner described in Section 8.07, provided that
the Affected Lender's obligation to so assign and sell its Commitment and Note
shall be subject to the condition that all amounts owing to such Affected Lender
(including, without limitation, principal, accrued and unpaid interest and fees,
and all amounts owing to such Affected Lender under Sections 2.10, 2.11, 2.13
and 8.04) shall have been paid in full.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1995.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(c) The Lenders shall have received the Information Package,
and be satisfied with the Consolidated financial statements of the
Borrower and its Subsidiaries for the six months ended June 30, 1996.
(d) Nothing shall have come to the attention of the Lenders
during the course of their due diligence investigation to lead them to
believe that the Information Package was or has become misleading,
incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such
access to the management, records, books of account, contracts and
properties of the Borrower and its Subsidiaries as they shall have
reasonably requested.
(e) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders in their reasonable judgment) and shall
remain in effect, and no law or regulation shall be applicable in the
reasonable judgment of the Lenders that restrains, prevents or imposes
materially adverse conditions upon the transactions contemplated
hereby.
(f) The Lenders shall be reasonably satisfied with (i) the
terms and conditions of all arrangements and agreements between the
Borrower or any of its Subsidiaries on the one hand and Sprint or any
of its Subsidiaries or Affiliates on the other hand, and (ii) the
corporate and legal structure and capitalization of the Borrower,
including the terms and conditions of the charter, bylaws and each
class of capital stock of the Borrower and of each agreement or
instrument relating to such structure or capitalization other than the
agreements and instruments listed on Schedule 3.01(f) hereto; since the
execution of this Agreement by the Lenders, there shall have been no
change in any agreement or instrument listed on Schedule 3.01(f) hereto
that, in the reasonable judgment of the Lenders, adversely affects the
Borrower or the Lenders, other than changes reasonably acceptable to
the Lenders.
(g) The Borrower shall have paid all accrued fees and expenses
of the Agents (including the accrued fees and expenses of counsel to
the Administrative Agent) and all accrued fees of the Initial Lenders
and the Existing Lenders (including, without limitation, upfront fees
and commitment fees).
(h) The Borrower shall have given each Agent at least three
Business Days' prior written notice as to the proposed Effective Date.
(i) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account
of each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(j) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except for the
Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders,
respectively.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower approving this Agreement and the
Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
(iv) A copy of the most recent letters from each of
S&P, Xxxxx'x and Xxxx & Xxxxxx, certified by the chief
financial officer of the Borrower, confirming the Public Debt
Rating then in effect.
(v) A certified copy of the Exchange and Merger
Agreement as in effect on the Effective Date, together with
any amendments thereto or waivers thereof.
(vi) A favorable opinion of Xxxxx Xxxxxxxxx, General
Counsel of the Borrower, substantially in the form of Exhibit
D hereto and as to such other matters as any Lender through
the Administrative Agent may reasonably request.
(vii) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make an Advance pursuant to Sections 2.01(b) and
2.02 on the occasion of each Borrowing shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Borrowing (a) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing and the acceptance by the Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in Section
4.01 are correct on and as of the date of such Borrowing, before and
after giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Administrative Agent shall
promptly notify the Agents and the Lenders of the occurrence of the Effective
Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and (ii) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and
other approvals and all intellectual property) to own or lease and
operate its properties and to carry on its business as now conducted
and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Restricted Subsidiaries showing as of the Original
Effective Date (as to each such Restricted Subsidiary) whether it is a
Major Subsidiary or a Minor Subsidiary, the jurisdiction of its
incorporation or organization, the number of shares of each class of
capital stock authorized (if applicable), and the number outstanding,
as of the Original Effective Date and the percentage of the outstanding
shares (or other ownership interest, as applicable) of each such class
owned (directly or indirectly) by the Borrower and the number of shares
(or other ownership interest, as applicable) covered by all outstanding
options, warrants, rights of conversion or purchase and similar rights
as of the Original Effective Date. Each Restricted Subsidiary (i) is a
corporation duly organized, validly existing and in good standing or a
partnership or joint venture validly organized and in good standing
under the laws of the jurisdiction of its incorporation or organization
and (ii) has all requisite corporate power and authority (including,
without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted except
where the failure to have such authority would not be reasonably likely
to have a Material Adverse Effect. As of the Effective Date, there are
no Unrestricted Subsidiaries.
(c) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or bylaws or (ii) law or any
material contractual restriction binding on the Borrower or to which
the Borrower is subject. Neither the Borrower nor any of the Borrower's
Subsidiaries nor, to the best of the Borrower's knowledge, any other
party to any Material Contract is in breach of such Material Contract,
except where such breach would not be reasonably likely to have a
Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Borrower of this Agreement or the Notes or for
the consummation of the transactions contemplated hereby, except for
those authorizations, approvals, actions, notices and filings listed on
Schedule 4.01(d) hereto or, upon the occurrence of the ICN Acquisition,
the consummation of the ICN Acquisition
except for those authorizations, approvals, actions, notices and
filings as may be required in connection therewith, all of which have
been duly obtained, taken, given or made and are in full force and
effect except, with respect to authorizations, approvals, actions,
notices and filings required by third parties (other than any
governmental authority or regulatory body) in connection with the
Spin-Off and the ICN Acquisition, those which the failure to obtain,
take, give or make would not be reasonably likely to be materially
adverse to the Borrower and its Subsidiaries, taken as a whole.
(e) This Agreement has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their
respective terms, subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally.
(f) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1995, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Ernst & Young LLP, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at
June 30, 1996, and the related Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the 6 months then
ended, duly certified by the chief financial officer of the Borrower,
copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at June 30, 1996, and
said statements of income and cash flows for the 6 months then ended,
to year-end audit adjustments, the Consolidated financial condition of
the Borrower and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 1995,
there has been no Material Adverse Change.
(g) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that
(i) would be reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of
this Agreement or any Note or the consummation of the transactions
contemplated hereby.
(h) The Consolidated forecasted balance sheets, income
statements and cash flows statements of the Borrower and its
Subsidiaries delivered to the Lender Parties in the Information
Memorandum, the Information Package or pursuant to Section 5.01(i)(iii)
(collectively, the "Projections") were prepared in good faith on the
basis of the
assumptions stated therein, which assumptions were fair in the light of
conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery and, in the case of the
Projections contained in the Information Memorandum, at the time of the
Original Effective Date, and in the case of the Projections contained
in the Information Package, at the time of the Effective Date, the
Borrower's reasonable estimate of its future financial performance but
without any assurance by the Borrower of the future achievement of such
performance; none of the Information Memorandum, the Information
Package or any other information, exhibits or reports, taken as a
whole, furnished by the Borrower to any Agent or any Lender in
connection with the negotiation of this Agreement and the Notes or
pursuant to the terms of hereof (other than the Projections) contained
at the time they were furnished any untrue statement of a material fact
or omitted to state a material fact necessary to make the statements
made therein, in light of the circumstances under which they were made,
not misleading.
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock (other than, to
the extent applicable, in connection with the acquisitions referred to
in Section 4.01(j)).
(j) No proceeds of any Advance will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of
the Securities Exchange Act of 1934 (other than, to the extent
applicable, in connection with a Non-hostile Acquisition).
(k) Following application of the proceeds of each Advance, not
more than 25% of the value of the assets (either of the Borrower only
or of the Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(a) or 5.02(f) or subject to
any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Debt
and within the scope of Section 6.01(d) will be margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System).
(l) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(m) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 90% and there has been no material adverse change
in the funding status of any such Plan since such date.
(n) Neither the Borrower nor any ERISA Affiliate has incurred
or is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan.
(o) Neither the Borrower nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the
meaning of Title IV of ERISA.
(p) Except as set forth in the financial statements referred
to in this Section 4.01 and in Section 5.01, the Borrower and its
Subsidiaries have no material liability with respect to "expected post
retirement benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(q) The operations and properties of the Borrower and each of
its Subsidiaries comply with all applicable Environmental Laws and
Environmental Permits except where the failure to comply would not be
reasonably likely to have a Material Adverse Effect, all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs except where the
failure to be so resolved would not be reasonably likely to have a
Material Adverse Effect, and, to the best knowledge of the Borrower, no
event has occurred or condition exists that would be reasonably likely
to (i) form the basis of an Environmental Action against the Borrower
or any of its Subsidiaries or any of their properties that would be
reasonably likely to have a Material Adverse Effect or (ii) cause any
such property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law that
would be reasonably likely to have a Material Adverse Effect.
(r) None of the properties currently or formerly owned or
operated by the Borrower or any of its Subsidiaries is listed or
proposed for listing on the National Priorities List under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("NPL") or on the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency ("CERCLIS") or any analogous foreign,
state or local list or, to the knowledge of the Borrower, is adjacent
to any such property; there are no and never have been any underground
or aboveground storage tanks or any surface impoundments, septic tanks,
pits, sumps or lagoons in which Hazardous Materials are being or have
been treated, stored or disposed of on any property currently owned or
operated by the Borrower or any of its Subsidiaries or, to its
knowledge, on any property formerly owned or operated by the Borrower
or any of its Subsidiaries; there is no asbestos or asbestos-containing
material on any property currently owned or operated by the Borrower or
any of its Subsidiaries; and Hazardous Materials have not been
released, discharged or disposed of on any
property currently or formerly owned or operated by the Borrower or any
of its Subsidiaries or, to its knowledge, any adjoining property,
except where the events or conditions giving rise to the listing or
proposed listing of properties or adjacent properties, the presence of
storage tanks, surface impoundments, septic tanks, pits, sumps,
lagoons, asbestos or asbestos-containing material and the release,
discharge or disposal of Hazardous Materials described in this
subsection would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect. For purposes of this
subsection, "knowledge" means the knowledge of any current Responsible
Officer or regional vice president of the Borrower or any current
employee of the Borrower involved in environmental management.
(s) Neither the Borrower nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together
with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at any
site, location or operation, either voluntarily or pursuant to the
order of any governmental or regulatory authority or the requirements
of any Environmental Law that would reasonably be expected to have a
Material Adverse Effect; and all Hazardous Materials generated, used,
treated, handled or stored at or transported to or from any property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries have been disposed of in a manner not reasonably expected
to result in a Material Adverse Effect.
(t) Neither the Borrower nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances nor the application of the proceeds or repayment
thereof by the Borrower, nor the consummation of the other transactions
contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission
thereunder.
(u) The Spin-Off will not be taxable to the Borrower or Sprint
or any of their Subsidiaries or Affiliates or shareholders.
(v) The common parent of the affiliated group (within the
meaning of Section 1504(a)(1) of the Internal Revenue Code) of which
the Borrower is a member has paid to the Internal Revenue Service or
other taxing authority the full amount that such affiliated group is
required to pay in respect of Federal income tax for all fiscal years
of the Borrower ending on or before December 31, 1995 except any such
taxes which are being contested in good faith and by appropriate
proceedings and for which adequate provision has been made and the
Borrower and its Subsidiaries have received any amounts payable to
them, and have not paid amounts in respect of taxes (Federal, state,
local or
foreign) in excess of the amount they are required to pay, under any
tax agreements to which they are a party.
(w) The Borrower and each of its Subsidiaries is in
compliance, in all material respects, with all applicable laws, rules,
regulations and orders, except in any case where the failure to so
comply, either individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Restricted Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws as provided in Section 5.01(j), except in any case where the
failure to so comply, either individually or in the aggregate, would
not be reasonably likely to be materially adverse to the Borrower, its
Restricted Subsidiaries or the Lenders.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Restricted Subsidiaries to pay and discharge, before the same
shall become delinquent, (i) all income and other material taxes,
assessments and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property to the extent not otherwise permitted
under Section 5.02(a); provided, however, that neither the Borrower nor
any of its Restricted Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Restricted Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is customarily carried by companies engaged in
similar businesses and owning similar properties, taking into account
the general areas in which the Borrower or such Restricted Subsidiary
operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Restricted Subsidiaries to preserve and
maintain, its corporate or partnership existence, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that the Borrower and its Restricted Subsidiaries
may consummate any merger or consolidation permitted under Section
5.02(b) and provided further that neither the Borrower nor any of its
Restricted Subsidiaries shall be required to preserve or maintain the
corporate or partnership existence of any Restricted Subsidiary or any
right, permit, license, approval, privilege or franchise if, in the
case of the preservation and maintenance of the corporate or
partnership existence of any Restricted Subsidiary, the Board of
Directors of the entity owning such Restricted Subsidiary or, in any
other case, a Responsible Officer of the Borrower or Restricted
Subsidiary with authority to do so, in his or her reasonable business
judgment, shall determine that the preservation and maintenance thereof
is no longer desirable in the conduct of the business of the Borrower
or such Restricted Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Borrower
or such Restricted Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time (which, so long as no Default shall have occurred and be
continuing, shall be upon reasonable prior telephonic notice), permit
any Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records
and books of account of, and visit the properties of, the Borrower and
any of its Restricted Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Restricted
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Restricted
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Restricted Subsidiary
in accordance with generally accepted accounting principles in effect
from time to time.
(g) Maintenance of Properties, Etc. Except as otherwise
permitted by this Agreement, maintain and preserve, and cause each of
its Restricted Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates or with Sprint or any of
its Subsidiaries or Affiliates or with ICNP or any of its Subsidiaries
or Affiliates on terms that are fair and reasonable and no less
favorable to the
Borrower than it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate, other than as set forth on Schedule
5.01(h) hereto.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45
days (or, in the case of clause (i) below, 60 days) after the
end of each of the first three quarters of each fiscal year of
the Borrower, Consolidated balance sheets of the Borrower and
its Subsidiaries and of the Unrestricted Subsidiaries as of
the end of such quarter and Consolidated statements of income
and cash flows of the Borrower and its Subsidiaries and of the
Unrestricted Subsidiaries for the period commencing at the end
of the previous fiscal year and ending with the end of such
quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower as
having been prepared in accordance with generally accepted
accounting principles and certificates of the chief financial
officer of the Borrower as to (i) the identity of all Major
Subsidiaries and Minor Subsidiaries and the percentage of
outstanding shares of each class of capital stock (or other
ownership interest) directly or indirectly owned by the
Borrower for each such Subsidiary as at the end of such
quarter, (ii) a statement of reconciliation setting forth the
accounting adjustments used in the Consolidation of the
financial statements of the Unrestricted Subsidiaries with
those of the Borrower and its Subsidiaries and (iii)
compliance with the terms of this Agreement and setting forth
in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of
any change in GAAP used in the preparation of such financial
statements of the Borrower and its Restricted Subsidiaries,
the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing Consolidated balance sheets of
the Borrower and its Subsidiaries and of the Unrestricted
Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries and of the Unrestricted
Subsidiaries for such fiscal year, in each case accompanied by
an opinion acceptable to the Required Lenders by Ernst & Young
LLP or other independent public accountants acceptable to the
Required Lenders, provided that in the event of any change in
GAAP used in the preparation of such financial statements of
the Borrower and its Restricted Subsidiaries, the Borrower
shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP and certificates
of the chief financial officer of the
Borrower as to (i) the identity of all Major Subsidiaries and
Minor Subsidiaries, the percentage of outstanding shares of
each class of capital stock (or other ownership interest)
directly or indirectly owned by the Borrower, and the total
assets, intercompany Debt, Debt owing to third parties and
equity, for each such Subsidiary as at the end of the fiscal
year then ended and total service revenues, equipment sales
and EBITDA for each such Subsidiary for the fiscal year then
ended, (ii) a statement of reconciliation setting forth the
accounting adjustments used in the Consolidation of the
financial statements of the Unrestricted Subsidiaries with
those of the Borrower and its Subsidiaries and (iii)
compliance with the terms of this Agreement and setting forth
in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03;
(iii) as soon as available and in any event no later
than 45 days after the end of each fiscal year of the
Borrower, forecasts prepared by management of the Borrower, in
form reasonably satisfactory to the Agents, of Consolidated
balance sheets, income statements and cash flow statements on
a quarterly basis for the fiscal year following such fiscal
year then ended and on an annual basis for two fiscal years
thereafter;
(iv) as soon as possible and in any event within five
Business Days after a Responsible Officer of the Borrower or
any Restricted Subsidiary knows or reasonably should know of
the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the
Borrower setting forth details of such Default and the action
that the Borrower has taken and proposes to take with respect
thereto;
(v) promptly after the sending or filing thereof,
copies of all reports that the Borrower sends to its
securityholders in a general distribution, and copies of all
reports and effective registration statements that the
Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange (other
than registration statements on Form S-8 and Annual Reports on
Form 11-K);
(vi) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(g)(i) or
(ii) of which a Responsible Officer of the Borrower or any
Restricted Subsidiary has or reasonably should have knowledge;
(vii) (i) promptly and in any event within 10 days
after the Borrower or any ERISA Affiliate knows or has reason
to know that any ERISA Event has
occurred, a statement of the chief financial officer of the
Borrower describing such ERISA Event and the action, if any,
that the Borrower or such ERISA Affiliate has taken and
proposes to take with respect thereto and (ii) on the date any
records, documents or other information must be furnished to
the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA, a copy of such records, documents and information;
(viii) promptly and in any event within two Business
Days after receipt thereof by the Borrower or any ERISA
Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed
to administer any Plan;
(ix) promptly and in any event within 30 days after
the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Plan;
(x) promptly and in any event within five Business
Days after receipt thereof by the Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV
of ERISA, of any such Multiemployer Plan or (C) the amount of
liability incurred, or that may be incurred, by the Borrower
or any ERISA Affiliate in connection with any event described
in clause (A) or (B);
(xi) promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any
noncompliance by the Borrower or any of its Subsidiaries with
any Environmental Law or Environmental Permit that would
reasonably be expected to have a Material Adverse Effect;
(xii) promptly after the designation thereof, notice
of the designation of any Subsidiary of the Borrower as an
Unrestricted Subsidiary;
(xiii) promptly and in any event within five Business
Days after the Borrower obtains knowledge of any such change,
notice that S&P or Xxxxx'x has made any change in the Public
Debt Rating;
(xiv) promptly after the occurrence thereof, notice
of any regulatory action or change or any change in, amendment
to or waiver of any term of any Material Contract that, in
each case, would be reasonably likely to have a Material
Adverse Effect of which a Responsible Officer has or
reasonably should have knowledge; and
(xv) such other information respecting the Borrower
or any of its Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.
(j) Compliance with Environmental Laws. Comply, and cause each
of its Restricted Subsidiaries and all lessees and other Persons
operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental
Permits; obtain and renew and cause each of its Restricted Subsidiaries
to obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its
Restricted Subsidiaries to conduct, any investigation, study, sampling
and testing, and undertake any cleanup, removal, remedial or other
action necessary to remove and clean up all Hazardous Materials from
any of its properties, in accordance with the requirements of all
Environmental Laws; provided, however, that neither the Borrower nor
any of its Restricted Subsidiaries shall be required to undertake any
such cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect
to such circumstances.
(k) Interest Rate Hedging. Enter into prior to the Effective
Date, and maintain at all times thereafter, interest rate Hedge
Agreements, such that as a result, at least 50% of Debt of the Borrower
and its Subsidiaries of the types described in clauses (a) through (e)
of the definition of "Debt" (including, without limitation, Debt in
respect of the Advances) shall be effectively fixed rate.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Restricted Subsidiaries to create or suffer to exist, any Lien on
or with respect to any of its properties, whether now owned or
hereafter acquired, or assign, or permit any of its Restricted
Subsidiaries to assign, any right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Borrower or any
of its Restricted Subsidiaries in the ordinary course of
business to secure the purchase price of such property or
equipment or to secure Debt incurred solely for the purpose of
financing the
acquisition of such property or equipment, and Liens existing
on such property or equipment at the time of its acquisition
(other than any such Liens created in contemplation of such
acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of
any of the foregoing for the same or a lesser amount,
provided, however, that no such Lien shall extend to or cover
any properties of any character other than the real property
or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or
replaced, provided further that the aggregate principal amount
of the indebtedness secured by the Liens referred to in this
clause (ii) shall not exceed the amounts specified therefor in
Section 5.02(d)(iii)(B) at any time outstanding,
(iii) the Liens existing on the Original Effective
Date and described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person that becomes a
Restricted Subsidiary after the Original Effective Date in
accordance with the terms of Section 5.02(h) or through the
designation of an Unrestricted Subsidiary as a Restricted
Subsidiary existing at the time such Person is merged into or
consolidated with the Borrower or any Restricted Subsidiary of
the Borrower or becomes a Restricted Subsidiary of the
Borrower; provided that such Liens were not created solely in
contemplation of such merger, consolidation or acquisition and
do not extend to any assets other than those of the Person so
merged into or consolidated with the Borrower or such
Restricted Subsidiary or acquired by the Borrower or such
Restricted Subsidiary,
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(d)(iii)(B); provided that
no such Lien shall extend to or cover any assets other than
the assets subject to such Capitalized Leases;
(vi) Liens arising out of judgments or awards (other
than any judgment described in Section 6.01(f) or (g) hereof
and constituting an Event of Default thereunder) in an
aggregate amount outstanding not to exceed $15,000,000 in
respect of which the Borrower or any of its Restricted
Subsidiaries shall in good faith be prosecuting an appeal or
proceedings for review and in respect of which it shall have
secured a subsisting stay of execution pending such appeal or
proceedings for review, provided it shall have set aside on
its books adequate reserves, in accordance with GAAP, with
respect to such judgment or award;
(vii) the replacement, extension or renewal of any
Lien permitted by clause (ii), (iii), (iv) or (v) above upon
or in the same property theretofore subject
thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent
obligor) of the Debt secured thereby;
(viii) Liens created in the ordinary course of
business on money market or mutual accounts maintained by the
Borrower and any funds or other assets contained therein in
favor of the financial institution with which such account is
maintained to secure the payment of customary fees and charges
incurred in connection with such account;
(ix) additional Liens securing Debt permitted under
Section 5.02(d)(i)(G); and
(x) Liens on accounts receivable of the Borrower
solely in connection with a transaction permitted by Section
5.02(f)(v).
(b) Mergers, Etc. Merge or consolidate with or into any
Person, or permit any of its Restricted Subsidiaries to do so, except
that: (i) any Subsidiary of the Borrower may merge into or consolidate
with the Borrower and, in connection with any acquisition of a Person
made pursuant to Section 5.02(h), such Person may merge into or
consolidate with the Borrower, so long as, in each case, the Borrower
is the surviving corporation, provided that immediately after giving
effect thereto, the Borrower shall be in pro forma compliance
(calculated based on historical financial statements most recently
furnished or required to be furnished pursuant to Section 5.01(i)) with
the covenants set forth in Section 5.03; (ii) any Major Subsidiary may
merge into or consolidate with any other Major Subsidiary; (iii) any
Minor Subsidiary may merge into or consolidate with any other Minor
Subsidiary; (iv) any Minor Subsidiary may merge into or consolidate
with any Major Subsidiary so long as the surviving entity is a Major
Subsidiary; and (v) any Unrestricted Subsidiary or any other Person may
merge into or consolidate with any Restricted Subsidiary solely, with
respect to mergers or consolidations involving Persons other than
Unrestricted Subsidiaries, in order to consummate an acquisition or
investment permitted under Section 5.02(h), and so long as a Major
Subsidiary is the surviving entity of any such merger or consolidation
to which a Major Subsidiary is a party and a Restricted Subsidiary is
the surviving entity of any such merger or consolidation to which a
Minor Subsidiary is a party, provided that immediately after giving
effect thereto, the Borrower shall be in pro forma compliance
(calculated based on historical financial statements most recently
furnished or required to be furnished pursuant to Section 5.01(i)) with
the covenants set forth in Section 5.03, provided further, in each
case, that no Default shall have occurred and be continuing at the time
of such proposed transaction or would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
(d) Debt. Create, incur, assume or suffer to exist, or permit
any of its Restricted Subsidiaries to create, incur, assume or suffer
to exist, any Debt other than:
(i) in the case of the Borrower,
(A) Debt in respect of this Agreement and
the Notes,
(B) Debt in respect of the Senior Notes,
(C) Debt existing on the Original Effective
Date and described on Schedule 5.02(d) hereto (the
"Surviving Debt") and Debt in respect of the
Subordinated Notes, and any Debt extending the
maturity of, or refunding or refinancing, in whole or
in part, any Surviving Debt or the Subordinated
Notes, provided that the terms relating to principal
amount, amortization, maturity, collateral (if any)
and subordination (if any), and other material terms
taken as a whole, of any such extending, refunding or
refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith,
are no less favorable in any material respect to the
Borrower or the Lenders than the terms of any
agreement or instrument governing the Surviving Debt
or Subordinated Notes, as the case may be, being
extended, refunded or refinanced and the interest
rate applicable to any such extending, refunding or
refinancing Debt does not exceed the then market
interest rate, and provided further that the
principal amount of such Surviving Debt or
Subordinated Notes, as the case may be, shall not be
increased above the principal amount thereof
outstanding immediately prior to such extension,
refunding or refinancing, and the direct and
contingent obligors therefor shall not be changed, as
a result of or in connection with such extension,
refunding or refinancing,
(D) Debt in respect of Hedge Agreements not
entered into for speculative purposes and designed to
hedge against fluctuations in interest rates or
foreign exchange rates incurred in the ordinary
course of business and consistent with prudent
business practice, provided that with respect to
foreign exchange hedging arrangements, such hedging
arrangements shall be in an aggregate notional amount
not to exceed $10,000,000 at any time outstanding,
(E) Debt owed to any Restricted Subsidiary,
(F) Debt incurred in the ordinary course of
business in an aggregate face amount not to exceed
$7,000,000 outstanding at any time and consisting of
surety bonds, standby letters of credit, trade
letters of credit, bankers' acceptances and
reimbursement obligations in respect thereof,
(G) Debt incurred in the ordinary course of
business maturing within one year from the date
incurred, and aggregating not more than $50,000,000
at any time outstanding, and
(H) additional unsecured Debt (other than
Debt of the type described in clauses (i) and (j) of
the definition of "Debt"), provided that at the time
such Debt is incurred, (i) no Default exists before
or after giving effect to the incurrence of such
Debt, (ii) the maturity thereof is at least two years
after the Termination Date and any amortization
thereof shall commence no earlier than the
Termination Date, (iii) the terms relating to
principal amount, amortization, maturity, collateral
(if any) and subordination (if any), and other
material terms taken as a whole, of such Debt and of
any agreement entered into and of any instrument
issued in connection therewith are no less favorable
in any material respect to the Borrower or the
Lenders than the terms and conditions of this
Agreement, and (iv) the interest rate borne by such
Debt does not exceed 10% per annum; and
(ii) in the case of the Minor Subsidiaries, Debt owed
to the Borrower in an aggregate amount for all such
Subsidiaries not to exceed $25,000,000 at any time
outstanding, and in the case of the Major Subsidiaries, Debt
owed to the Borrower, in each case evidenced by one or more
senior promissory notes; and
(iii) in the case of the Borrower and its Restricted
Subsidiaries,
(A) Debt of any Person that becomes a
Restricted Subsidiary after the date hereof through
Investments made in accordance with the terms of
Section 5.02(h) or through the designation of an
Unrestricted Subsidiary as a Restricted Subsidiary
that is existing at the time such Person becomes a
Restricted Subsidiary (other than Debt incurred
solely in contemplation of such Person becoming a
Subsidiary of the Borrower) in an aggregate principal
amount not to exceed $35,000,000 at any time
outstanding,
(B) Capitalized Leases and Debt secured by
Liens permitted by Section 5.02(a)(ii) or (v) not to
exceed in the aggregate $25,000,000 at any time
outstanding,
(C) Debt incurred in the ordinary course of
business in connection with the Borrower's cash
management system, consisting of daylight overdrafts
not to exceed in the aggregate $500,000 at any time
outstanding,
(D) Debt incurred in connection with a
transaction permitted by Section 5.02(f)(v), and
(E) indorsement of negotiable instruments
for deposit or collection or similar transactions in
the ordinary course of business.
(e) Lease Obligations. Create, incur, assume or suffer to
exist, or permit any of its Restricted Subsidiaries to create, incur,
assume or suffer to exist, any obligations as lessee for the rental or
hire of real or personal property of any kind under leases or
agreements to lease having an original term of one year or more (other
than Capitalized Leases) that would cause the direct and contingent
liabilities of the Borrower and its Restricted Subsidiaries, on a
Consolidated basis and without duplication, in respect of all such
obligations to exceed $20,000,000 payable in any period of 12
consecutive months.
(f) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Restricted Subsidiaries to sell,
lease, transfer or otherwise dispose of, any assets, or grant any
option or other right to purchase, lease or otherwise acquire any
assets, except:
(i) sales of inventory in the ordinary course of its
business,
(ii) in a transaction authorized by Section 5.02(b),
(iii) sales or other dispositions of damaged,
worn-out or obsolete property that is no longer necessary for
the proper conduct of the business of the Borrower and its
Subsidiaries for fair value in the ordinary course of
business,
(iv) sales or transfers of assets from any Major
Subsidiary to any other Major Subsidiary or from any Minor
Subsidiary to any Restricted Subsidiary for cash and for fair
value,
(v) the sale of accounts receivable for cash and fair
value in the ordinary course of business of the Borrower and
its Subsidiaries; provided that recourse to the Borrower and
its Subsidiaries in connection with sales of accounts
receivables for cash and fair value under this clause (v)
shall be limited to recourse that is customary in connection
with such sales, it being agreed that recourse with respect to
collectibility of such accounts receivable will not be
considered customary for purposes of this clause (v),
(vi) sales or transfers of assets from any Major
Subsidiary to any Minor Subsidiary for cash and for fair
value,
(vii) sales or transfers of assets from the Borrower
to any Restricted Subsidiary for cash for no less than fair
value,
(viii) sales or transfers of assets from any
Restricted Subsidiary to the Borrower for cash for no more
than fair value, and
(ix) in addition to the foregoing items, sales of
assets for cash and exchanges of assets, in each case for fair
value in an aggregate amount for such sales and exchanges not
to exceed an amount equal to 20% of Consolidated EBITDA of the
Borrower and its Restricted Subsidiaries for the 12-month
period then most recently ended and not to exceed, in the
aggregate from the date hereof to the Termination Date, 35% of
the greatest amount of Consolidated EBITDA of the Borrower and
its Restricted Subsidiaries for any consecutive 12-month
period commencing after the Effective Date,
provided that, with respect to clauses (vi), (vii) and (ix) to the
extent the Net Cash Proceeds thereof shall not have been reinvested
within 12 months after the receipt thereof by the Borrower or such
Restricted Subsidiary in assets necessary in the same or similar line
of businesses as the businesses of the Borrower and the Restricted
Subsidiaries, the Borrower shall, at the end of such 12 month period,
prepay the Advances pursuant to Section 2.09(b) in an amount equal to
the amount by which such Net Cash Proceeds exceeds the amount thereof
so reinvested.
(g) Dividends, Etc. Declare or make any dividend payment or
other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of capital stock of
the Borrower, or purchase, redeem or otherwise acquire for value (or
permit any of its Subsidiaries to do so) any shares of any class of
capital stock of the Borrower or any warrants, rights or options to
acquire any such shares, now or hereafter outstanding, or issue or sell
any capital stock or any warrants, rights or options to acquire such
capital stock except that, so long as no Default shall have occurred
and be continuing at the time of any action described below or would
result therefrom, the Borrower may (i) declare and make any dividend
payment or other distribution payable in common stock of the Borrower,
(ii) declare and make any dividend payment or other distribution, or
redeem any shares of any class of capital stock of the Borrower,
pursuant to and to the extent required by the Rights Agreement, (iii)
issue and sell shares of common stock of the Borrower for cash, (iv)
issue shares of common stock of the Borrower in connection with
Investments permitted under Section 5.02(h) to the extent permitted
therein, and (v) purchase its own stock through market purchases to be
reissued and sold in connection with the Borrower's employee benefit
programs, provided that the amount expended by the Borrower to
repurchase such stock from and after the date hereof shall not exceed
the sum of $5,000,000 plus the net cash proceeds received by the
Borrower from the reissuance and sale of any such stock through such
programs (it being understood that the amount of such net cash proceeds
shall not include any proceeds received by the Borrower from the
reissuance and sale of any such stock prior to the date hereof).
(h) Investments in Other Persons. Make or hold, or permit any
of its Restricted Subsidiaries to make or hold, any Investment in any
Person other than:
(i) loans and advances to employees in the ordinary
course of the business of the Borrower and its Restricted
Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding;
(ii) Investments in Marketable Securities;
(iii) Investments existing on the Original Effective
Date and described on Schedule 5.02(h) hereto;
(iv) Investments in accounts receivable and prepaid
expenses arising in the ordinary course of business;
(v) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(d)(i)(D);
(vi) Investments consisting of intercompany Debt
permitted under Section 5.02(d)(i)(E) or (ii);
(vii) other Investments consisting of (A) Investments
by the Borrower and its Restricted Subsidiaries in their
Restricted Subsidiaries, (B) Investments in Affiliates of the
Borrower existing on the Effective Date, and upon the
occurrence of the ICN Acquisition, Affiliates of the Borrower
existing on the date of the ICN
Acquisition as a result of the occurrence of the ICN
Acquisition, and (C) Investments in any other Person, provided
that after giving effect to such Investment, such Person would
be a Restricted Subsidiary; and
(viii) other Investments (other than Investments
consisting of intercompany Debt permitted under Section
5.02(d)(i)(E) or (ii)) and including, without limitation,
Investments in Unrestricted Subsidiaries, in an aggregate
amount invested (in any combination of cash and securities of
the Borrower) not to exceed $100,000,000 at any time
outstanding;
provided that with respect to Investments made under clauses (vii) and
(viii) above:
(a) immediately before and after giving
effect thereto, no Default shall have occurred and be
continuing or would result therefrom,
(b) immediately before and after giving
effect to such Investment, the Borrower shall be in
pro forma compliance (calculated based on historical
financial statements most recently furnished or
required to be furnished pursuant to Section 5.01(i))
with the covenants set forth in Section 5.03,
(c) any business acquired or invested in
pursuant to clause (vii) or (viii) shall be in the
same or a similar line of business as the business of
the Borrower or any of its Restricted Subsidiaries,
and
(d) any such Investment shall be for fair
value.
(i) Change in Nature of Business. Make, or permit any of its
Restricted Subsidiaries to make, any material change in the nature of
its business as carried on at the date hereof.
(j) Charter Amendments. Amend, or permit any of its Restricted
Subsidiaries to amend, its certificate of incorporation or bylaws in
any material respect that would be reasonably likely to be adverse to
the Borrower, any Restricted Subsidiary or the Lenders.
(k) Prepayments, Etc. of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Debt, other than (i) the prepayment of the Advances in
accordance with the terms of this Agreement, (ii) the prepayment of
Debt assumed pursuant to a Non-Hostile Acquisition including, without
limitation, the ICN Acquisition Debt, provided that such assumed Debt
is prepaid or
refinanced simultaneously with such Non-Hostile Acquisition and (iii)
regularly scheduled or required repayments or redemptions or
refinancing of Surviving Debt or the Subordinated Notes or as otherwise
permitted hereunder, or amend, modify or change in any manner any term
or condition of any Surviving Debt, the Subordinated Notes or the
Senior Notes except as otherwise permitted hereunder, or permit any of
its Subsidiaries to do any of the foregoing other than to prepay any
Debt payable to the Borrower or as otherwise permitted hereunder.
(l) Designation of Restricted and Unrestricted Subsidiaries.
(i) Designate a Subsidiary, in connection with an acquisition permitted
under Section 5.02(h), as an Unrestricted Subsidiary or redesignate an
Unrestricted Subsidiary as a Restricted Subsidiary unless, in either
case, immediately before and after giving effect thereto, no Default
shall have occurred and be continuing or would result therefrom and the
Borrower shall be in pro forma compliance (calculated based on
historical financial statements most recently furnished or required to
be furnished pursuant to Section 5.01(i)) with the covenants set forth
in Section 5.03, or (ii) redesignate a Restricted Subsidiary as an
Unrestricted Subsidiary.
(m) Limitation on Dividend Restrictions. Enter into or suffer
to exist, or permit any Restricted Subsidiary to enter into or suffer
to exist, any agreement prohibiting the declaration or payment by any
Restricted Subsidiary of dividends or other distributions in respect of
its capital stock to the Borrower or any Restricted Subsidiary of the
Borrower, unless such agreement was in effect at the time such
Restricted Subsidiary became a Subsidiary of the Borrower, and such
agreement was not entered into solely in contemplation of such Person
becoming a Subsidiary of the Borrower.
(n) Amendment, Etc. of the Exchange and Merger Agreement and
the Subordinated Notes. Amend, modify or change in any manner any term
or condition of the Exchange and Merger Agreement or the Subordinated
Notes or give any consent, waiver or approval thereunder, waive any
default under or any breach of any term or condition of the Exchange
and Merger Agreement or the Subordinated Notes, or take any other
action in connection with the Exchange and Merger Agreement or the
Subordinated Notes that would materially impair the value of the
interest or rights of the Borrower thereunder or that would materially
impair the rights or interests of any Agent or any Lender.
(o) Amendment, Etc. of the Senior Note Indenture. Amend,
modify or change in any manner any term or condition of the Senior Note
Indenture and the Senior Notes issued pursuant thereto or give any
consent, waiver or approval thereunder, waive any default under or any
breach of any term or condition of the Senior Note Indenture and the
Senior Notes issued pursuant thereto, or take any other action in
connection with the
Senior Note Indenture and the Senior Notes issued pursuant thereto that
would materially impair the value of the interest or rights of the
Borrower thereunder or that would materially impair the rights or
interests of any Agent or any Lender.
(p) The ICN Acquisition. Consummate, or permit any of its
Subsidiaries to consummate, the ICN Acquisition except in accordance
with the following:
(i) The ICN Acquisition shall be consummated in
accordance with (A) all applicable laws and (B) the terms and
conditions of the Exchange and Merger Agreement;
(ii) Concurrently with the ICN Acquisition, the
Borrower shall have issued the Subordinated Notes in
accordance with the Exchange and Merger Agreement;
(iii) On the date of the ICN Acquisition, the
following statements shall be true and the Administrative
Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the
Borrower, dated such date, stating that:
(A) The representations and warranties
contained in Section 4.01 are correct on and as of
such date,
(B) No event has occurred and is continuing
that constitutes a Default, and
(C) Immediately before and after giving
effect to the ICN Acquisition, the Borrower shall be
in pro forma compliance (calculated based on
historical financial statements most recently
furnished or required to be furnished pursuant to
Section 5.01(i)) with the covenants set forth in
Section 5.03;
(iv) The Administrative Agent shall have received on
or before the date of the ICN Acquisition the following, each
dated such day, in form and substance satisfactory to the
Administrative Agent and in sufficient copies for each Lender:
(1) Certified copies of each of the
Subordinated Notes;
(2) Certified copies of the Exchange and
Merger Agreement, as in effect on the date of the ICN
Acquisition, together with any amendments thereto or
waivers thereof; and
(3) Evidence that concurrently with the ICN
Acquisition, the ICN Acquisition Debt shall have been
repaid and the commitments of the lenders thereunder
and all Liens in favor of such lenders thereunder
shall have been terminated;
(v) As of the date of the ICN Acquisition, and after
giving effect to the consummation thereof, there shall have
been no change to the corporate and legal structure of the
Borrower or any of its Restricted Subsidiaries resulting from
the ICN Acquisition (other than the pro forma changes
indicated on Schedule 5.02(p) hereto and any other changes
reasonably acceptable to the Lenders) that adversely affects
the Borrower or the Lenders; and
(vi) To the extent attributable to the ICN
Acquisition, the Borrower shall have paid all accrued fees and
expenses of the Agents (including the accrued fees and
expenses of counsel to the Administrative Agent).
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Leverage Ratio. Maintain at the end of each fiscal quarter
of the Borrower a ratio of Consolidated Debt of the Borrower and its
Restricted Subsidiaries (excluding, for purposes of this Section
5.03(a), Debt of the types referred to in clauses (b), (g), (h) and (j)
of the definition of "Debt" and Debt of the type described in clause
(i) of the definition of "Debt" to the extent that the Debt being
guarantied thereby was of the type referred to in clause (b), (g), (h)
or (j) of the definition of "Debt") to Consolidated EBITDA of the
Borrower and its Restricted Subsidiaries of not greater than the amount
set forth below for each Rolling Period set forth below:
Rolling Period
Ending On Ratio
--------- -----
December 31, 1995 6.00:1
March 31, 1996 6.00:1
June 30, 1996 5.75:1
September 30, 1996 5.75:1
December 31, 1996 5.50:1
March 31, 1997 5.50:1
June 30, 1997 5.00:1
September 30, 1997 5.00:1
December 31, 1997 4.50:1
March 31, 1998 4.50:1
June 30, 1998 4.00:1
September 30, 1998 4.00:1
December 31, 1998
and thereafter 3.50:1
provided that in the event that the Borrower or any of its Restricted
Subsidiaries shall have acquired a Restricted Subsidiary or sold or
otherwise disposed of Restricted Subsidiaries that, at the time of such
sale or disposition, were individually, or if taken in the aggregate
would have been, a Material Subsidiary during any Rolling Period, the
ratio described above shall be calculated on a historical pro forma
basis for such Rolling Period as though such Restricted Subsidiary had
been acquired, sold or otherwise disposed of on the first day of such
Rolling Period.
(b) Interest Coverage Ratio. Maintain at the end of each
fiscal quarter of the Borrower a ratio of Consolidated EBITDA of the
Borrower and its Restricted Subsidiaries to interest payable on, and
amortization of debt discount in respect of, all Debt during such
period, in each case, by the Borrower and its Restricted Subsidiaries
of not less than the amount set forth below for each Rolling Period set
forth below:
Rolling Period
Ending On Ratio
--------- -----
December 31, 1995 2.00:1
March 31, 1996 2.00:1
June 30, 1996 2.00:1
September 30, 1996 2.00:1
December 31, 1996 2.25:1
March 31, 1997 2.25:1
June 30, 1997 2.25:1
Rolling Period
Ending On Ratio
--------- -----
September 30, 1997 2.25:1
December 31, 1997 2.75:1
March 31, 1998 2.75:1
June 30, 1998 2.75:1
September 30, 1998 2.75:1
December 31, 1998
and thereafter 3.00:1
provided that in the event that the Borrower or any of its Restricted
Subsidiaries shall have acquired a Restricted Subsidiary or sold or
otherwise disposed of Restricted Subsidiaries that, at the time of such
sale or disposition, were individually, or if taken in the aggregate
would have been, a Material Subsidiary during any Rolling Period, the
ratio described above shall be calculated on a historical pro forma
basis for such Rolling Period as though such Restricted Subsidiary had
been acquired, sold or otherwise disposed of on the first day of such
Rolling Period.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower shall
fail to pay any interest on any Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d) (as to the
corporate or partnership existence of the
Borrower or any Restricted Subsidiary), (e), (h) or (i), 5.02 or 5.03,
or (ii) the Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 15
Business Days after the earlier of the date on which (A) a Responsible
Officer of the Borrower becomes aware of such failure or (B) written
notice thereof shall have been given to the Borrower by any Agent or
any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding
in a principal or notional amount of at least $15,000,000, in the case
of the Borrower or any Restricted Subsidiary, or at least $25,000,000,
in the case of any Unrestricted Subsidiary, in the aggregate (but
excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Borrower or any of its Subsidiaries in which the
Borrower has an Investment, directly or indirectly, aggregating at
least $15,000,000, in the case of any Restricted Subsidiary, or at
least $25,000,000, in the case of any Unrestricted Subsidiary, shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any such Subsidiary
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 45
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or
the Borrower or
any such Subsidiary shall take any corporate action to authorize any of
the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $15,000,000, in the case of the Borrower or any Restricted
Subsidiary, or in excess of $25,000,000, in the case of any
Unrestricted Subsidiary, shall be rendered against the Borrower or any
of its Subsidiaries and either (i) a warrant of attachment or execution
or similar process shall have been issued or levied against any
property or assets of the Borrower or any of its Subsidiaries to
enforce any such judgment or (ii) there shall be any period of 15
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; provided, however, that any such judgment or order shall not be
an Event of Default under this Section 6.01(f) if and for so long as
(i) the amount by which such judgment or order exceeds $15,000,000, in
the case of the Borrower or any Restricted Subsidiary, or $25,000,000,
in the case of any Unrestricted Subsidiary, is covered by a valid and
binding policy of insurance between the defendant and the insurer
covering payment thereof and (ii) such insurer, which shall be rated at
least "A" by A.M. Best Company, has been notified of, and has not
disputed the claim made for payment of, an amount not less than the
amount by which such judgment or order exceeds $15,000,000, in the case
of the Borrower or any Restricted Subsidiary, or $25,000,000, in the
case of any Unrestricted Subsidiary; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Subsidiaries that could be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 15 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) (i) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the
Borrower (or other securities convertible into such Voting Stock)
representing 30% or more of the combined voting power of all Voting
Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors
of the Borrower shall cease for any reason to constitute a majority of
the board of directors of the Borrower; or (iii) any Person or two or
more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of, control
over Voting Stock of the Borrower (or other securities convertible into
such Voting Stock) representing 30% or more of the combined voting
power of all Voting Stock of the Borrower; or
(i) Any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Borrower and the ERISA
Affiliates related to such ERISA Event) exceeds $15,000,000; or
(j) The Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Borrower and the ERISA Affiliates as Withdrawal Liability
(determined as of the date of such notification), exceeds $15,000,000
or requires payments exceeding $3,000,000 per annum; or
(k) The Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the
ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$3,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitment and the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Notes, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances shall automatically be terminated and (B) the Notes, all
such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent, each Syndication Agent and the
Documentation Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to such Agent
by the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that no Agent shall be required to
take any action that exposes such Agent to personal liability or that is
contrary to this Agreement or applicable law. Each Agent agrees to give to each
Lender prompt notice of each notice given to it by the Borrower pursuant to the
terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
any Agent nor any of its directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, each
Agent: (i) may treat the payee of any Note as the holder thereof until, in the
case of the Administrative Agent, the Administrative Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, or, in the case
of any other Agent, such Agent has received notice from the Administrative Agent
that it has received and accepted such Assignment and Acceptance, in each case
as provided in Section 8.07; (ii) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank, BankAmerica, TD Bank and Chase and
Affiliates. With respect to its Commitment, the Advances made by it and the Note
issued to it, each of Citibank, BankAmerica, TD Bank and Chase shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not an Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include each of Citibank,
BankAmerica, TD Bank and Chase in its individual capacity. Each of Citibank,
BankAmerica, TD Bank and Chase and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank,
BankAmerica, TD Bank or Chase, as the case may be, were not an Agent and without
any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon 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 decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
each Agent (to the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of the Notes then held by each of them (or if
no Notes are at the time outstanding or if any Notes are held by Persons that
are not Lenders, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against such Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by such Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse each Agent promptly upon demand for its ratable share of any
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by such Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that such Agent
is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agents. Any Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or
without cause by the Required Lenders. Upon the resignation or removal of the
Administrative Agent, the Required Lenders shall have the right to appoint a
successor Administrative Agent, provided that as long as no Default shall have
occurred and be continuing, the Borrower shall have the right to consent to any
such successor Administrative Agent, such consent not to be unreasonably
withheld or delayed. If no successor Administrative Agent shall have been so
appointed by the Required Lenders (and, if required, consented to by the
Borrower), and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent (which, so long as no Default shall have occurred and be
continuing, shall be subject to the consent of the Borrower, such consent not to
be unreasonably withheld or delayed), which shall be a commercial bank organized
under the laws of the United States of America or of any state thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
SECTION 7.07. Agents. None of the Banks identified on the
cover page or in the recital of parties or on the signature pages of this
Agreement as an Agent (other than the Administrative Agent) shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified as an Agent (other than the
Administrative Agent) shall have or be deemed to have any fiduciary relationship
with any Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders and the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders and the
Borrower, do any of the following: (a) waive any of the conditions specified in
Section 3.01, (b) increase any
Commitment of any Lender or subject any Lender to any additional monetary
obligations, (c) reduce the principal of, or interest on, any Note or any fee or
other amount payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, any Note or any fee or other amount payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder or (f)
amend this Section 8.01; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at 0000 Xxxx Xxxxxxx Xxxx,
Xxxxxxx, XX 00000-0000, Attention: Corporate Secretary, with a copy to the
Treasurer; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender; if to Citibank, as Administrative Agent, at its address at 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Global Communications Department; if
to Chase, as Syndication Agent, at its address at 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxxx Xxxxxx; if to TD Bank, as Documentation Agent, at its
address at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx X'Xxxxxx;
and if to BankAmerica, as Syndication Agent, at its address at 000 X. XxXxxxx
Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxxxx XxxXxxxxx; or, as to the Borrower
or any Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to the Borrower
and the Administrative Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed or telexed, be effective when deposited in the
mails, telecopied, delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications to any Agent
pursuant to Article II, III or VII shall not be effective until received by such
Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all costs and expenses of the Agents in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of one law firm (Shearman & Sterling or another law firm) as
counsel for the Administrative Agent with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities under
this Agreement. The Borrower further agrees to pay on demand all costs and
expenses of the Agents and the Lenders (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for each
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless each
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of, or in connection with
the preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Borrower or any of its Subsidiaries or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries, in each case whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated (but excluding any such claims, damages, losses,
liabilities or expenses (i) to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct or (ii) arising from disputes among two or more Lenders (but
not including any such dispute that involves a Lender to the extent that such
Lender is acting in any different capacity, such as Agent, under the Credit
Agreement or to the extent it involves the Agents' syndication activities). The
Borrower also agrees not to, and will not permit any Affiliate to, assert any
claim against any Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.07(d), 2.09 or 2.11,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender Party other than on the
last day of the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 2.16, the Borrower shall, upon demand
by such Lender (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.02(c), 2.10, 2.13 and 8.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Note to which the Borrower is a
party held by such Lender, whether or not such Lender shall have made any demand
under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
and its Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. (a) This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agents and when the
Administrative Agent shall have been notified by each Initial Lender that such
Initial Lender has executed it and thereafter shall be binding upon and inure to
the benefit
of the Borrower, each Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
(b) As to any Lender the Commitment of which is listed on the
signature pages hereto as zero, such Lender is bound hereunder only with respect
to such Lender's consent to the increase in Commitments hereunder and by the
provisions of Sections 2.01(a) and 8.12 applicable to such Lender.
Notwithstanding any of the foregoing, each Existing Lender who becomes an
Initial Lender hereunder is, and agrees to be, bound by all provisions hereunder
applicable to it as a Lender hereunder.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may and, if demanded by the Borrower pursuant to Section 2.16, will assign to
one or more Persons all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and
(iv) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note subject to such assignment and
a processing and recordation fee of $3,000, provided that if such assignment is
the result of a demand by the Borrower pursuant to Section 2.16, the Borrower
shall pay the processing and recordation fee therefor. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any other instrument
or document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender 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 decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to such Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower and the other Agents.
Within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for the surrendered Note a new Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new Note to the order of the assigning Lender in an amount equal to the
Commitment retained
by it hereunder. Such new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks
or other entities (other than the Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and the Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree in
writing to preserve the confidentiality of any Confidential Information relating
to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Confidentiality. Neither any Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to such Agent's or such Lender's
Affiliates and their officers, directors, employees, auditors, accountants,
counsel, agents and advisors and, as contemplated by Section 8.07(f), to actual
or
prospective assignees and participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking or to whose jurisdiction such Agent or Lender may be
subject.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York state court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York state court or, to
the extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York state or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.12. Effective Date Assignments; Etc. (a) As of the
Effective Date, prior to giving effect to any assignment under this Agreement as
of such date, each Existing Lender represents and warrants, as to the assignment
effected by such Existing Lender by this Agreement that as of the Effective Date
(i) its Existing Commitment is in the dollar amount specified as its Existing
Commitment on Schedule 8.12 hereto and the aggregate outstanding principal
amount of Existing Advances owing to it is in the dollar amount specified as the
aggregate outstanding principal amount of Existing Advances owing to such
Existing Lender on Schedule 8.12 hereto; and (ii) that such Existing Lender is
the legal and beneficial owner of such interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim created by such
Existing Lender.
(b) Each Existing Lender and Initial Lender confirms to, and
agrees with, each of the other Initial Lenders as to the assignment effected by
this Agreement by such Existing Lender or Initial Lender, as the case may be, as
follows: (i) except as set forth in subsection (a) above, each such Existing
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Original Credit Agreement or this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Original Credit Agreement or this Agreement or any other instrument or
document furnished pursuant thereto or hereto; (ii) each such Existing Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any of its Subsidiaries or the
performance or observance by the Borrower or any of its Subsidiaries of any of
its obligations under the Original Credit Agreement or this Agreement or any
other instrument or document furnished pursuant thereto or hereto; (iii) each
Initial Lender confirms that it has received such documents and information as
it has deemed appropriate to make its own credit analysis and decision to
execute and deliver this Agreement and agrees that it shall have no recourse
against any of the Agents, any Existing Lender or any other Lender with respect
to any matters relating to the Original Credit Agreement or this Agreement; and
(iv) each Initial Lender will, independently and without reliance upon any
Agent, any Existing Lender 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 decisions in taking or not taking action under this Agreement, the Note
or Notes held by it and the other documents executed in connection herewith.
(c) As of the Effective Date, (i) each Initial Lender shall be
a party to this Agreement and, to the extent provided herein, have the rights
and obligations of a Lender hereunder and (ii) each Existing Lender shall, to
the extent provided herein, relinquish its rights and be released from its
obligations under this Agreement as to any assignment effected herein.
(d) From and after the Effective Date, the Administrative
Agent shall make all payments under this Agreement in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the Initial Lenders and
other Lenders hereunder.
(e) On or before the Effective Date, the Borrower shall have
paid all accrued interest, fees and other amounts payable and owing to the
Existing Lenders and the Original Agents as of the Effective Date in connection
with the Original Credit Agreement. Without prejudice to the survival of any
other agreement of the Borrower under the Original Credit
Agreement, all amounts that would be payable under Sections 2.10, 2.13 and 8.04
of the Original Credit Agreement shall be payable under this Agreement to the
extent that such amounts have not been paid as of the Effective Date.
(f) As of the Effective Date, (i) the Original Credit
Agreement is amended and restated in full as set forth in this Agreement, (ii)
the Existing Commitments are held by the Initial Lenders under this Agreement,
(iii) the Original Notes are cancelled and replaced by the Notes, (iv) all
obligations which, by the terms of the Original Credit Agreement, are evidenced
by the Original Notes are evidenced by the Notes and (v) no fees shall be
payable by the Borrower pursuant to Section 2.03(a) of the Original Credit
Agreement, except to the extent that such fees become due and payable, and
remain unpaid, on or prior to the Effective Date.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lenders hereby (or by execution and delivery of an Assignment and
Acceptance) irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to: (i) this Agreement; (ii) the Notes; or (iii) the
actions of any Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
360 COMMUNICATIONS COMPANY
By
Title:
CITIBANK, N.A.,
as Administrative Agent
By
Title:
THE CHASE MANHATTAN BANK
(as successor to Chemical Bank),
as Syndication Agent
By
Title:
TORONTO DOMINION (TEXAS), INC.,
as Documentation Agent
By
Title:
BANK OF AMERICA ILLINOIS
as Syndication Agent
By
Title:
Initial Lenders
Commitment
Agents
$46,000,000 CITIBANK, N.A.
By
Title:
$46,000,000 THE CHASE MANHATTAN BANK
(as successor to Chemical Bank)
By
Title:
$46,000,000 TORONTO DOMINION (TEXAS), INC.
By
Title:
$46,000,000 BANK OF AMERICA ILLINOIS
By
Title:
Co-Agents
$36,000,000 ABN AMRO BANK N.V.
By
Title:
$36,000,000 THE BANK OF NEW YORK
By
Title:
$36,000,000 BARCLAYS BANK PLC
By
Title:
$36,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By
Title:
$36,000,000 FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By
Title:
$36,000,000 THE FUJI BANK, LIMITED, CHICAGO
BRANCH
By
Title:
$36,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By
Title:
$36,000,000 MELLON BANK, N.A.
By
Title:
$36,000,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By
Title:
$36,000,000 NATIONSBANK OF TEXAS, N.A.
By
Title:
$36,000,000 THE ROYAL BANK OF CANADA
By
Title:
$36,000,000 THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
By
Title:
Other Lenders
$10,000,000 BANK OF IRELAND GRAND CAYMAN
By
Title:
$20,000,000 BANK OF MONTREAL
By
Title:
$25,000,000 THE BANK OF TOKYO - MITSUBISHI
TRUST COMPANY
By
Title:
$20,000,000 BANKERS TRUST COMPANY
By
Title:
$32,000,000 BANQUE NATIONALE DE PARIS
By
Title:
$15,000,000 CREDIT SUISSE
By
Title:
$20,000,000 THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By
Title:
$15,000,000 FIRST HAWAIIAN BANK
By
Title:
$30,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By
Title:
$25,000,000 FLEET NATIONAL BANK
By
Title:
$25,000,000 MITSUBISHI TRUST & BANKING
CORP.
By
Title:
$18,000,000 THE NORTHERN TRUST COMPANY
By
Title:
$32,000,000 PNC BANK, NATIONAL
ASSOCIATION
By
Title:
$30,000,000 THE SAKURA BANK, LTD., CHICAGO
BRANCH
By
Title:
$32,000,000 THE SANWA BANK, LIMITED,
CHICAGO BRANCH
By
Title:
$15,000,000 THE TOKAI BANK, LTD.,
CHICAGO BRANCH
By
Title:
$20,000,000 THE YASUDA TRUST AND BANKING
COMPANY, LTD.
By
Title:
$0 DEUTSCHE BANK AG-NEW YORK
BRANCH
By
Title:
By
Title:
$1,000,000,000.00 Total of the Commitments
SCHEDULE I
360 COMMUNICATION COMPANY
$1,000,000,000 CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial
Lender Domestic Lending Office Eurodollar Lending Office
------ ----------------------- -------------------------
Citibank, N.A. Xxx Xxxxx Xxxxxx, 0xx Xxxxx One Court Square, 7th Floor
Long Island City, NY 11120 Xxxx Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx Attention: Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Bank of America 000 Xxxx Xxxxxxx Xxxxxx 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Account Attention: Account
Administration- Administration-
Xxxxxxxx Xxxxxx-Xxxxx Xxxxxxxx Xxxxxx-Xxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Toronto Dominion 000 Xxxxxx Xxxxxx 909 Xxxxxx Street
(Texas), Inc. Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Manager, Attention: Manager,
Credit Administration- Credit Administration-
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The Chase Manhattan One Chase Manhattan Plaza One Chase Manhattan Plaza
Bank Media & Telecommunications Group Media & Telecommunications Group
0xx Xxxxx 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx Attention: Xxx Xxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
ABN AMRO Bank N.V. 000 X. XxXxxxx Xxxxxx, Xxxxx 000 000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Page 2 of 6
Name of Initial
Lender Domestic Lending Office Eurodollar Lending Office
------ ----------------------- -------------------------
Bank of Ireland 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Bank of Montreal 000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The Bank of New York One Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Xxx Xxxx xx Xxxxx- 0000 Avenue of the Americas 1251 Avenue of the Americas
Mitsubishi Trust 00xx Xxxxx 00xx Xxxxx
Xxxxxxx Xxx Xxxx, XX 00000-0000 Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Judge Attention: Xxxx X. Judge
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Bankers Trust Company 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxx Xxx Xxxxx Attention: Xxxx Xxx Xxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Banque Nationale de Chicago Branch Chicago Branch
Paris 000 X. XxXxxxx Xxxxxx, 0xx Xxxxx 000 X. XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Barclays Bank PLC 000 Xxxxxxxx 000 Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Challenger Attention: Xxxxxxxxx Challenger
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000/5307 Telecopier: (000) 000-0000/5307
Name of Initial
Lender Domestic Lending Office Eurodollar Lending Office
------ ----------------------- -------------------------
Page 3 of 6
Credit Lyonnais 1301 Avenue of the Americas 1301 Avenue of the Americas
Xxx Xxxx Xxxxxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx Attention: Xxxxx Xxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Credit Suisse Risk Management Risk Management
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The Dai-Ichi Kangyo 00 Xxxxx Xxxxxx Xxxxx 00 Xxxxx Xxxxxx Xxxxx
Bank, Ltd., 00xx Xxxxx 00xx Xxxxx
Xxxxxxx Xxxxxx Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx, Attention: Xxxx Xxxxxxxxx,
Credit Administration Credit Administration
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
First Hawaiian Bank 0000 Xxxxxx Xxxxxx, 00xx Xxxxx 0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The First National One First National Plaza One First National Plaza
Bank of Chicago Suite 0363 Suite 0363
Chicago, IL 60670 Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx/ Attention: Xxxxxxx Xxxxx/
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
(000) 000-0000 (000) 000-0000
Telecopier:(000) 000-0000 Telecopier: (000) 000-0000
First Union National 0 Xxxxx Xxxxx Xxxxxx, XX-00 1 First Union Center, TW-19
Bank of Charlotte, NC 28228-0735 Xxxxxxxxx, XX 00000-0000
North Carolina Attention: Xxxxx Xxxxxxxx Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier:(000) 000-0000
Name of Initial
Lender Domestic Lending Office Eurodollar Lending Office
------ ----------------------- -------------------------
Fleet National Bank One Xxxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attention: Xxxx XxXxxxxxxx Attention: Xxxx XxXxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The Fuji Bank, 000 Xxxx Xxxxxx Xxxxx 000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxx 0000 Xxxxx 0000
Xxxxxxx Branch Attention: Vir Xxxxxx Attention: Vir Xxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The Industrial Bank Chicago Branch Chicago Branch
of Japan, Limited 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Mellon Bank, N.A. 3 Mellon Bank Center 3 Mellon Bank Center
Room 153-2304 Room 153-2304
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Mitsubishi Trust & 000 Xxxxxxx Xxxxxx 520 Madison Avenue
Banking Corp. 00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000/ Telecopier: (000) 000-0000/
593-4691 593-4691
Xxxxxx Guaranty Trust 00 Xxxx Xxxxxx Xxxxxx Bahamas Office
Company of Xxx Xxxx Xxx Xxxx, XX 00000-0000 c/o X.X. Xxxxxx Services, Inc.
Attention: Xxxxxx Xxxxxxxxx Euro-Loan Servicing Unit
Telephone: (000) 000-0000 000 Xxxxxxx Xxxxxxxxxx Xxxx
Telecopier: (000) 000-0000 Xxxxxx, XX 00000
Attention: Multi-Option Unit/
Loan Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Name of Initial
Lender Domestic Lending Office Eurodollar Lending Office
------ ----------------------- -------------------------
NationsBank of 000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxx, N.A. Xxxxxx, Xxxxx 00000-0000 Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxxx Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Xxx Xxxxxxxx 00 Xxxxx XxXxxxx Xxxxxx 50 South LaSalle Street
Trust Company Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxx Honda Attention: Xxxxx Honda
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
PNC Bank, Mail Stop F2-F070-21-1 Mail Stop F5-F070-21-1
National AssociationCommunications Banking Division Communications Banking Division
00xx Xxxxx 00xx Xxxxx
0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxxx Attention: Xxx Xxxxxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The Royal Bank of New York Branch New York Branch
Canada One Financial Square One Financial Square
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000 Xxx Xxxx, XX 00000-0000
Attention: Xxx Xxxxxx, Attention: Xxx Xxxxxx
Credit Administration Credit Administration
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The Sakura Bank, 000 X. Xxxxxx Xxxxxx 000 X. Xxxxxx Xxxxxx
Ltd., Suite 4700 Suite 4700
Chicago Branch Chicago, IL 60606 Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The Sanwa Bank, 00 X. Xxxxxx Xxxxx 00 X. Xxxxxx Xxxxx
Limited, 00xx Xxxxx 00xx Xxxxx
Xxxxxxx Xxxxxx Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Name of Initial
Lender Domestic Lending Office Eurodollar Lending Office
------ ----------------------- -------------------------
The Sumitomo Bank, 000 Xxxxx Xxxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxx
Limited, Suite 4800 Suite 4800
Chicago Branch Chicago, IL 60606-6448 Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The Tokai Bank, Ltd., 000 X. Xxxxxxx Xxxxxx 181 X. Xxxxxxx Street
Chicago Branch Suite 3600 Suite 3600
Chicago, IL 60602 Xxxxxxx, XX 00000
Attention: Xxx Xxxxx Attention: Xxx Xxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
The Yasuda Trust Chicago Branch Chicago Branch
and Banking 000 X. Xxxxxxx Xxxxxx 000 X. Xxxxxxx Xxxxxx
Company, Ltd. Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx Attention: Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
Schedule 3.01(f) - Agreements and Insruments Relating to Structure and
Capitalization
(Filed as Schedule 3.01(f) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 4.01(b) - Restricted Subsidiaries
(Filed as Schedule 4.01(b) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 4.01(d) - Required Authorizations, Approvals, Actions, Notices and
Filings
(Filed as Schedule 4.01(d) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 4.01(b) - Restricted Subsidiaries
(Filed as Schedule 4.01(b) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 5.01(h) - Transactions with Affiliates
(Filed as Schedule 5.01(h) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 5.02(a) - Existing Liens
(Filed as Schedule 5.02(a) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 5.02(d) - Surviving Debt
(Filed as Schedule 5.02(d) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 5.02(h) - Existing Investments
(Filed as Schedule 5.02(h) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 5.02(p)
PRO FORMA STRUCTURE AND CAPITALIZATION
Reflecting the Effect of the ICN Acquisition
on the Corporate Structure of the Borrower
Acquired Corporations
Percentage
of Voting
Securities
Stock Controlled Jurisdiction
Certificates Authorized Issued by the of
Corporation Issued To Shares Shares Borrower Organization
----------- --------- ------ ------ -------- ------------
Commonwealth Cellular 360 Communications Company 1,000 100 100% Delaware
Telephone Sevices, Inc.*
Williamsport Cellular Commonwealth Cellular 100,000 27,054.4559 95.318% Delaware
Telephone Company, Inc. (93.949%)Telephone Services, Inc.*
Williamsport/PA-8 Cellular
(1.978%)Limited Partnership
Independent Cellular X/X X/X X/X X/X Xxxxxxxx
Network, Inc.**
------------
*Virginia Metronet, Inc., a wholly-owned Virginia subsidiary of 360
Communications Company, will be merged into Commonwealth Cellular Telephone
Services, Inc. ("CCTS"), a Delaware corporation. CCTS will then change its name
to Virginia Metronet, Inc.
**Independent Cellular Network, Inc. will be merged into TeleSpectrum, Inc., a
wholly-owned Kansas subsidiary of 360 Communications Company.
Schedule 5.02(p)
Acquired Partnerships
Percentage
of Voting
Securities
Controlled Jurisdiction
by the of
Partnership Borrower Organization
----------- -------- ------------
Cellular Plus, L.P. 100% Illinois
Williamsport/PA-8 Cellular Limited Partnership 98.837% Illinois
ICN-Charleston, West Virginia Limited Partnership 85% West Virginia
Ohio Cellular RSA, L.P. 100% Illinois
Northeast Pennsylvania SMSA Limited Partnership 78.98% Delaware
Pennslyvania 3 Xxxxxx 0 Limited Partnership 16.66% Delaware
CLNS General Partnership 40% Pennslyvania
Pennslyvania RSA No. 5 General Partnership 40% Pennslyvania
Reading SMSA Limited Partnership 10% Delaware
Allentown SMSA Limited Partnership 4% Delaware
SCHEDULE 8.12 - EXISTING COMMITMENTS AND EXISTING ADVANCES
================================================================================
Existing Existing
Lender Commitment Advances
--------------------------------------------------------------------------------
Agents
--------------------------------------------------------------------------------
Citibank, N.A. $40,000,000 $23,250,000
--------------------------------------------------------------------------------
Bank of America Illinois $40,000,000 $23,250,000
--------------------------------------------------------------------------------
The Chase Manhattan Bank $40,000,000 $23,250,000
--------------------------------------------------------------------------------
Toronto Dominion (Texas), Inc. $40,000,000 $23,250,000
--------------------------------------------------------------------------------
Co-Agents
--------------------------------------------------------------------------------
ABN AMRO Bank N.V. $25,000,000 $14,531,250
--------------------------------------------------------------------------------
The Bank of New York $30,000,000 $17,437,500
--------------------------------------------------------------------------------
Barclays Bank Plc $30,000,000 $17,437,500
--------------------------------------------------------------------------------
Credit Lyonnais Cayman Island Branch $36,000,000 $17,437,500
--------------------------------------------------------------------------------
First Union National Bank of North Carolina $30,000,000 $17,437,500
--------------------------------------------------------------------------------
The Fuji Bank, Limited, Chicago Branch $25,000,000 $14,531,250
--------------------------------------------------------------------------------
The Industrial Bank of Japan, Limited $25,000,000 $14,531,250
--------------------------------------------------------------------------------
Mellon Bank, N.A. $30,000,000 $17,437,500
--------------------------------------------------------------------------------
Xxxxxx Guaranty Trust Company of New
York $30,000,000 $17,437,500
--------------------------------------------------------------------------------
NationsBank of Texas, N.A. $25,000,000 $14,531,250
--------------------------------------------------------------------------------
The Royal Bank of Canada $35,000,000 $20,343,750
--------------------------------------------------------------------------------
The Sumitomo Bank, Limited, Chicago Branch $30,000,000 $17,437,500
--------------------------------------------------------------------------------
Lenders
--------------------------------------------------------------------------------
Bank of Ireland Grand Cayman $10,000,000 $5,812,500
--------------------------------------------------------------------------------
Bank of Montreal $0 $0
--------------------------------------------------------------------------------
The Bank of Tokyo Trust Company $15,000,000 $8,718,750
--------------------------------------------------------------------------------
Bankers Trust Company $15,000,000 $8,718,750
================================================================================
Existing Existing
Lender Commitment Advances
--------------------------------------------------------------------------------
Banque Nationale de Paris $25,000,000 $14,531,250
--------------------------------------------------------------------------------
Credit Suisse $15,000,000 $8,718,750
--------------------------------------------------------------------------------
The Dai-Ichi Kangyo Bank, Ltd., Chicago
Branch $15,000,000 $8,718,750
--------------------------------------------------------------------------------
Deutsche Bank AG - New York Branch $30,000,000 $17,437,500
--------------------------------------------------------------------------------
First Hawaiian Bank $15,000,000 $8,718,750
--------------------------------------------------------------------------------
The First National Bank of Chicago $25,000,000 $14,531,250
--------------------------------------------------------------------------------
Fleet National Bank $0 $0
--------------------------------------------------------------------------------
Mitsubishi Trust & Banking Corp. $25,000,000 $14,531,250
--------------------------------------------------------------------------------
The Northern Trust Company $15,000,000 $8,718,750
--------------------------------------------------------------------------------
PNC Bank, National Association $25,000,000 $14,531,250
--------------------------------------------------------------------------------
The Sakura Bank, Ltd., Chicago Branch $15,000,000 $8,718,750
--------------------------------------------------------------------------------
The Sanwa Bank, Limited, Chicago Branch $25,000,000 $14,531,250
--------------------------------------------------------------------------------
The Tokai Bank, Ltd., Chicago Branch $10,000,000 $5,812,500
--------------------------------------------------------------------------------
The Yasuda Trust and Banking Company, Ltd. $15,000,000 $8,718,750
================================================================================
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, ____
FOR VALUE RECEIVED, the undersigned, 360 Communications
Company, a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate unpaid principal amount of the
Advances made by the Lender to the Borrower pursuant to the Amended and Restated
Credit Agreement dated as of October 31, 1996 among the Borrower, the Lender and
certain other lenders parties thereto, Citibank, N.A., as Administrative Agent,
The Chase Manhattan Bank, as Syndication Agent, Toronto Dominion (Texas), Inc.,
as Documentation Agent, and Bank of America Illinois, as Syndication Agent (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance made to it from the date of such Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in same day funds. Each Advance owing to the
Lender by the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
360 COMMUNICATIONS COMPANY
By
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
================================================================================
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
EXHIBIT B - FORM OF
NOTICE OF BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties to the
Credit Agreement referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Date]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, 360 Communications Company, refers to the
Amended and Restated Credit Agreement, dated as of October 31, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement",
the terms defined therein being used herein as therein defined), among the
undersigned, certain Lenders parties thereto, Citibank, N.A., as Administrative
Agent, The Chase Manhattan Bank, as Syndication Agent, Toronto Dominion (Texas),
Inc., as Documentation Agent, and Bank of America Illinois, as Syndication Agent
and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Borrowing (the "Proposed Borrowing") as required by Section 2.02(a) of the
Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, 199_/20__.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$---------------.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is __________ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
360 COMMUNICATIONS COMPANY
By
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement
dated as of October 31, 1996 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") among 360 Communications Company, a
Delaware corporation (the "Borrower"), the Lenders (as defined in the Credit
Agreement) and Citibank, N.A., as Administrative Agent (the "Administrative
Agent"), The Chase Manhattan Bank ("Chase"), Toronto Dominion (Texas), Inc., as
Documentation Agent (the "Documentation Agent"), and Bank of America Illinois
("BankAmerica", together with Chase each a "Syndication Agent" and collectively
the "Syndication Agents", and the Syndication Agents together with the
Administrative Agent and the Documentation Agent, the "Agents"). Terms defined
in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof equal to the percentage interest specified on Schedule 1 hereto of
all outstanding rights and obligations under the Credit Agreement. After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Advances owing to the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Note held by the
Assignor and requests that the Administrative Agent exchange such Note for a new
Note payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified on Schedule 1
hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon any Agent, the Assignor 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 decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Credit Agreement as are
delegated to such Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 2.13 of
the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute
one and the same agreement. Delivery of an executed counterpart of Schedule 1 to
this Assignment and Acceptance by telecopier shall be effective as delivery of a
manually executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $______________
Aggregate outstanding principal amount of Advances assigned:$______________
Principal amount of Note payable to Assignee: $______________
Principal amount of Note payable to Assignor: $______________
Effective Date1: _______________, [199_][20__]
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: _______________, [199_][20__]
[NAME OF ASSIGNEE], as Assignee
By
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
--------
1 This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
Accepted [and Approved]2 this
__________ day of _______________, [199_][20__]
CITIBANK, N.A., as Administrative Agent
By
Title:
[Approved this __________ day
of _______________, [199_][20__]
360 COMMUNICATIONS COMPANY
By ]2
Title:
--------
2 Required if the Assignee is an Eligible Assignee solely by reason of clause
(viii) of the definition of "Eligible Assignee".
Exhibit D - Form of Opinion of General Counsel of the Borrower
October 31, 1996
To the Lenders party to the Credit Agreement referred to below and to Citibank,
N.A., as Administrative Agent, The Chase Manhattan Bank and Bank of America
Illinois, as Syndication Agents, and Toronto Dominion (Texas), Inc., as
Documentation Agent
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of 360o
Communications Company, a Delaware corporation (the "Borrower"). Reference is
made to that certain Amended and Restated Credit Agreement (the "Credit
Agreement") dated as of October 31, 1996 among the Borrower and each of you, and
the related documents described herein.
This opinion is being furnished to you pursuant to Section 3.01(i)(vi)
of the Credit Agreement. Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
In connection with this opinion, I have examined and am familiar with
original or copies, certified or otherwise identified to my satisfaction, of the
following:
(i) the Credit Agreement;
(ii) those certain Notes of even date herewith executed by the
Borrower in favor of each Lender;
(iii) the Amended and Restated Certificate of Incorporation, as
amended (the "Charter"), and the Amended and Restated Bylaws
(the "Bylaws") of the Borrower;
(iv) certain resolutions of the Board of Directors of the Borrower
duly adopted by unanimous written consent on March 1, 1996,
and at a meeting of the Board of Directors held on August 13,
1996; and
(v) a certificate from the Secretary of State of the State of
Delaware as to the corporate existence and good standing of
the Borrower in such jurisdiction.
The Credit Agreement and the Notes described in clause (ii) above are
herein referred to
collectively as the "Credit Documents."
I have also examined originals or copies, certified or otherwise
identified to my satisfaction, of such corporate records of the Borrower, public
records, agreements and other instruments, certificates of public officials,
certificates of officers of the Borrower and such other documents and questions
of law as I have deemed relevant in connection with the rendering of this
opinion.
In my examination I have assumed, without any investigation, the
genuineness of all signatures (other than those of the Borrower), the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents presented to
me as certified or photostatic copies and the authenticity of the originals of
such documents. As to any questions of fact material to the opinions herein
expressed that I did not independently verify or establish, I have relied upon
written statements of officers of the Borrower and I have no reason to believe
such reliance was not justified. Whenever my opinion in this letter is qualified
by the phrase "to the best of my knowledge" or a phrase of similar import, such
phrase is intended to signify that no information has come to my attention or to
the attention of the lawyers acting under my supervision that would give us
actual current knowledge of the existence or absence of such factual matter in
question.
I am a member of the Bar of the State of Illinois, and I do not express
any opinion as to the laws of any jurisdiction other than the State of Illinois,
the General Corporation Law of the State of Delaware, the federal securities
laws of the United States and, to the extent applicable to the Borrower and its
subsidiaries, the federal laws of the United States relating specifically to
public utilities and/or telecommunications companies.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has, either itself
or through its subsidiaries, all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and other
approvals and all intellectual property) adequate to own or lease and operate
its properties and to carry on its business as described in the Borrower's
registration statement referred to in Section 3.01(d) of the Original Credit
Agreement.
2. The execution and delivery by the Borrower of the Credit Documents
and the performance by the Borrower of its obligations thereunder, each in
accordance with its terms, and the consummation of the transactions contemplated
thereby, are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not (a) conflict with the Charter or
the Bylaws, (b) contravene any judgment, order or decree binding on or affecting
the Borrower or any of its Subsidiaries or any of their respective properties or
(c) to the best of my knowledge, after reasonable inquiry, conflict or be
inconsistent with or result in any breach of or constitute a default under any
material contractual obligation of the Borrower or any of its Subsidiaries.
-2-
3. To the best of my knowledge, neither the execution, delivery or
performance by the Borrower of the Credit Documents nor the compliance by the
Borrower with the terms and provisions thereof nor the consummation of the
transactions contemplated thereby, will contravene any provision of any
Applicable Law. For purposes of the opinion expressed in this paragraph 3,
"Applicable Laws" shall mean those laws, rules and regulations of the State of
Illinois, the General Corporation Law of the State of Delaware and, to the
extent applicable to the Borrower and its Subsidiaries, the federal laws of the
United States relating specifically to public utilities and/or
telecommunications companies which, in my experience, are normally applicable to
transactions of the type contemplated by the Credit Documents and are not
otherwise the subject of a specific opinion herein that expressly refers to a
particular law or laws.
4. No authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority or, to the best of my knowledge, any
other third party, which has not been obtained or taken and is not in full force
and effect, is required to authorize or is legally required in connection with
the due execution, delivery and performance by the Borrower of any of the Credit
Documents or for the consummation of the transactions contemplated thereby,
except for those authorizations, approvals, actions, notices and filings as may
be required in connection with the pending ICN Acquisition as to which I express
no opinion herein.
5. Each of the Credit Documents has been duly executed and delivered by
the Borrower. In any action or proceeding arising out of or relating to the
Credit Documents in any court of the State of Illinois or in any federal court
sitting in the State of Illinois, such court should recognize and give effect to
the governing law provision of the Credit Agreement wherein the parties thereto
agree that the Credit Documents shall be governed by the laws of the State of
New York. Without limiting the generality of the foregoing, a court of the State
of Illinois or a federal court sitting in the State of Illinois should apply the
usury law of the State of New York to the Credit Documents. However, if a court
were to hold that the Credit Documents are governed by, and to be construed in
accordance with, the laws of the State of Illinois, each of the Credit Documents
would be, under the laws of the State of Illinois, the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, subject as to enforceability, to the effect of any applicable
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
6. The Borrower has not been served with and there is not, to the best
of my knowledge, after reasonable inquiry, any litigation, arbitration or
administrative proceeding including, without limitation, any Environmental
Action, of or before any court, arbitrator or governmental authority pending or
threatened by or against the Borrower or against any of its Subsidiaries (a)
which purports to affect the legality, validity or enforceability of the Credit
Documents, or the consummation of the transactions contemplated thereby, or (b)
which, if adversely determined, would be reasonably likely to have a Material
Adverse Effect.
-3-
7. The provisions of the Credit Documents (without regard for any
provisions thereof limiting the payment of interest or any other sums thereunder
to the highest rate permitted by applicable law) do not violate any applicable
law of the State of Illinois relating to usury.
8. Neither the Borrower nor any of its Subsidiaries is an "investment
company," or an "affiliated person" of, or "promotor" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
This opinion is being furnished solely to you, is solely for your
benefit and the benefit of financial institutions that may become Lenders under
the Credit Agreement after the date hereof, and is being issued solely in
connection with the transactions contemplated by the Credit Documents. This
opinion may not be relied upon by any other person for any other purpose without
my prior written consent. The opinion set forth herein is rendered as of the
date hereof and will not be updated at any time as a result of, or in response
to, any change in law or fact.
Very truly yours,
Xxxxx X. Xxxxxxxxx
-4-
