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$700,000,000
CREDIT AGREEMENT
among
XXXXXX CELLULAR SYSTEMS, INC.,
as Borrower,
XXXXXX COMMUNICATIONS CORPORATION
XXXXXX OPERATING CO., L.L.C.,
as Guarantors
The Several Lenders
from Time to Time Party Hereto,
XXXXXX BROTHERS INC. and
BEAR, XXXXXXX & CO. INC.,
as Joint Lead Arrangers and Joint Book Runners,
BEAR XXXXXXX CORPORATE LENDING INC.,
as Syndication Agent
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Co-Arranger and Documentation Agent,
and
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
Dated as of October 23, 2003
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS..........................................................1
1.1 Defined Terms............................................................1
1.2 Other Definitional Provisions...........................................24
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.....................................25
2.1 Term Loan Commitments...................................................25
2.2 Procedure for Term Loan Borrowing.......................................25
2.3 Repayment of Term Loans.................................................25
2.4 Revolving Credit Commitments............................................26
2.5 Procedure for Revolving Credit Borrowing................................26
2.6 Swing Line Commitment...................................................27
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans.......27
2.8 Repayment of Loans; Evidence of Debt....................................28
2.9 Commitment Fees, etc....................................................29
2.10 Termination or Reduction of Revolving Credit Commitments................29
2.11 Optional Prepayments....................................................29
2.12 Mandatory Prepayments...................................................30
2.13 Conversion and Continuation Options.....................................31
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches...............31
2.15 Interest Rates and Payment Dates........................................31
2.16 Computation of Interest and Fees........................................32
2.17 Inability to Determine Interest Rate....................................32
2.18 Pro Rata Treatment and Payments.........................................33
2.19 Requirements of Law.....................................................34
2.20 Taxes...................................................................35
2.21 Indemnity...............................................................36
2.22 Illegality..............................................................37
2.23 Change of Lending Office................................................37
2.24 Replacement of Lenders under Certain Circumstances......................37
SECTION 3. LETTERS OF CREDIT...................................................37
3.1 L/C Commitment..........................................................37
3.2 Procedure for Issuance of Letter of Credit..............................38
3.3 Fees and Other Charges..................................................38
3.4 L/C Participations......................................................38
3.5 Reimbursement Obligation of the Borrower................................39
3.6 Obligations Absolute....................................................40
3.7 Letter of Credit Payments...............................................40
3.8 Applications............................................................40
SECTION 4. REPRESENTATIONS AND WARRANTIES......................................40
4.1 Financial Condition.....................................................40
4.2 No Change...............................................................41
4.3 Corporate Existence; Compliance with Law; Authorizations................41
4.4 Corporate Power; Authorization; Enforceable Obligations.................41
4.5 No Legal Bar............................................................42
4.6 No Material Litigation..................................................42
4.7 No Default..............................................................42
4.8 Ownership of Property; Liens............................................42
4.9 Intellectual Property...................................................42
4.10 Taxes...................................................................43
4.11 Federal Regulations.....................................................43
4.12 Labor Matters...........................................................43
4.13 ERISA...................................................................43
4.14 Investment Company Act; Other Regulations...............................43
4.15 Subsidiaries............................................................44
4.16 Use of Proceeds.........................................................44
4.17 Environmental Matters...................................................44
4.18 Accuracy of Information, etc............................................45
4.19 Security Documents......................................................46
4.20 Solvency................................................................46
4.21 Senior Indebtedness.....................................................46
4.22 Regulation H............................................................46
4.23 Material Agreements; Management Agreements..............................46
4.24 Permitted Acquisitions..................................................47
4.25 FCC and PUC Matters.....................................................47
SECTION 5. CONDITIONS PRECEDENT................................................48
5.1 Conditions to Initial Extension of Credit...............................48
5.2 Conditions to Each Extension of Credit..................................50
SECTION 6. AFFIRMATIVE COVENANTS...............................................51
6.1 Financial Statements....................................................51
6.2 Certificates; Other Information.........................................52
6.3 Payment of Obligations..................................................53
6.4 Conduct of Business and Maintenance of Existence, etc...................53
6.5 Maintenance of Property; Insurance......................................53
6.6 Inspection of Property; Books and Records; Discussions..................53
6.7 Notices.................................................................54
6.8 Environmental Laws......................................................54
6.9 Interest Rate Protection................................................55
6.10 Additional Collateral, etc..............................................55
6.11 Further Assurances......................................................56
SECTION 7. NEGATIVE COVENANTS..................................................57
7.1 Financial Condition Covenants...........................................57
7.2 Limitation on Indebtedness..............................................60
7.3 Limitation on Liens.....................................................61
7.4 Limitation on Fundamental Changes.......................................62
7.5 Limitation on Disposition of Property...................................62
7.6 Limitation on Restricted Payments.......................................63
7.7 Limitation on Investments...............................................64
7.8 Limitation on Optional Payments and Modifications of Debt Instruments, .65
7.9 Limitation on Transactions with Affiliates..............................65
7.10 Limitation on Sales and Leasebacks......................................65
7.11 Limitation on Changes in Fiscal Periods.................................65
7.12 Limitation on Negative Pledge Clauses...................................65
7.13 Limitation on Restrictions on Subsidiary Distributions..................66
7.14 Limitation on Lines of Business.........................................66
7.15 Limitation on Amendments to Transaction Documents.......................66
7.16 Limitation on Amendments to Other Documents.............................66
7.17 Limitation on Hedge Agreements..........................................66
SECTION 8. COVENANTS OF THE PARENT.............................................66
8.1 Limitation on Indebtedness..............................................66
8.2 Liens...................................................................67
8.3 Limitation on Restricted Payments and Investments.......................67
8.4 Limitation on Optional Payments and Modifications of Debt Instruments, .68
8.5 Limitation on Negative Pledge Clauses...................................68
8.6 Limitation on Transactions with Affiliates..............................69
8.7 Management Expenses.....................................................69
8.8 Limitation on Changes in Fiscal Periods.................................69
8.9 Limitation on Hedge Agreements..........................................69
8.10 Holding Company Status..................................................69
SECTION 9. EVENTS OF DEFAULT...................................................70
SECTION 10. THE AGENTS..........................................................73
10.1 Appointment.............................................................73
10.2 Delegation of Duties....................................................73
10.3 Exculpatory Provisions..................................................73
10.4 Reliance by Agents......................................................73
10.5 Notice of Default.......................................................74
10.6 Non-Reliance on Agents and Other Lenders................................74
10.7 Indemnification.........................................................74
10.8 Agent in Its Individual Capacity........................................75
10.9 Successor Administrative Agent..........................................75
10.10 Authorization to Release Liens and Guarantees...........................75
10.11 The Arrangers; the Co-Documentation Agents..............................75
SECTION 11. MISCELLANEOUS.......................................................75
11.1 Amendments and Waivers..................................................75
11.2 Notices.................................................................77
11.3 No Waiver; Cumulative Remedies..........................................78
11.4 Survival of Representations and Warranties..............................78
11.5 Payment of Expenses.....................................................78
11.6 Successors and Assigns; Participations and Assignments..................79
11.7 Adjustments; Set-off....................................................82
11.8 Counterparts............................................................83
11.9 Severability............................................................83
11.10 Integration.............................................................83
11.11 GOVERNING LAW...........................................................83
11.12 Submission To Jurisdiction; Waivers.....................................83
11.13 Acknowledgments.........................................................84
11.14 Confidentiality.........................................................84
11.15 Release of Collateral and Guarantee Obligations.........................85
11.16 Accounting Changes......................................................85
11.17 Delivery of Lender Addenda..............................................85
11.18 FCC Compliance..........................................................85
11.19 WAIVERS OF JURY TRIAL...................................................86
ANNEXES:
A Pricing Grid
SCHEDULES:
4.4 Consents, Authorizations, Filings and Notices
4.6 Material Litigation
4.15 Subsidiaries
4.19(a)-1 UCC Filing Jurisdictions
4.19(a)-2 UCC Financing Statements to Remain on File
4.19(a)-3 UCC Financing Statements to be Terminated
4.23 Material Agreements
4.25 FCC Licenses
5.1(b) Transaction Documents
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
8.1 Parent Indebtedness
8.6 Parent Affiliate Agreements
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Auditors' Certificate
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of McAfee & Xxxx
F-2 Form of Legal Opinion of Xxxxxxxxx Xxxxxx Xxxxxx, LLP
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
G-3 Form of Swing Line Note
H Form of Prepayment Option Notice
I Form of Exemption Certificate
J Form of Lender Addendum
K Form of Borrowing Notice
CREDIT AGREEMENT, dated as of October 23, 2003, among XXXXXX CELLULAR
SYSTEMS, INC., an Oklahoma corporation (the "Borrower") and successor by merger
with Xxxxxx/Sygnet Communications Company, an Oklahoma corporation
("Xxxxxx/Sygnet") and certain Subsidiaries of Xxxxxx/Sygnet, XXXXXX
COMMUNICATIONS CORPORATION, an Oklahoma corporation (the "Parent"), XXXXXX
OPERATING CO., L.L.C., an Oklahoma limited liability company ("DOC"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), XXXXXX COMMERCIAL PAPER INC., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), XXXXXX BROTHERS INC. and BEAR, XXXXXXX & CO. INC., as joint lead
arrangers and joint book runners (in such capacity, the "Arrangers"), BEAR
XXXXXXX CORPORATE LENDING INC. as syndication agent (in such capacity, the
"Syndication Agent") and XXXXXX XXXXXXX SENIOR FUNDING, INC., as co-arranger
and documentation agents (in such capacity, the "Co-Arranger and Documentation
Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Merger consummated immediately prior to entering
into this Agreement, Xxxxxx/Sygnet (a Wholly Owned Subsidiary of the Parent) and
certain of its Subsidiaries, has merged with and into the Borrower, with the
Borrower as the surviving entity;
WHEREAS, to provide funds (i) to be applied to pay certain Indebtedness of
the Borrower and its Subsidiaries and (ii) to finance working capital and other
general corporate needs of the Borrower and its Subsidiaries (including the
making of Permitted Acquisitions), the Borrower has requested that the Lenders
make certain credit facilities available to the Borrower; and
WHEREAS, the Lenders are willing to make such credit facilities available
to the Borrower upon and subject to the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
"ACC": American Cellular Corporation, a Delaware corporation.
"Additional Facilities", "Additional Loans", "Additional Revolving Credit
Facility" and "Additional Term Loan": each as respectively defined in Section
11.1(b).
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agents": the collective reference to the Administrative Agent, the
Arrangers, the Syndication Agent and the Co-Arranger and Documentation Agent.
"Aggregate Exposure": with respect to any Lender at any time, an amount
equal to (a) until the Closing Date, the aggregate amount of such Lender's
Commitments at such time and (b) thereafter, the sum of (i) the aggregate then
unpaid principal amount of such Lender's Term Loans and (ii) the amount of such
Lender's Revolving Credit Commitment then in effect or, if the Revolving Credit
Commitments have been terminated, the amount of such Lender's Revolving
Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any time,
the ratio (expressed as a percentage) of such Lender's Aggregate Exposure at
such time to the sum of the Aggregate Exposures of all Lenders at such time.
"Agreement": this Credit Agreement, as amended, supplemented or otherwise
modified from time to time.
"Annualized": for the purposes of calculating the financial ratios set
forth in Sections 7.1(a),(b),(c) and (d), (i) with respect to any amount
attributable to one fiscal quarter, such amount divided by 0.25, (ii) with
respect to any amount attributable to two fiscal quarters, such amount divided
by 0.5 and (iii) with respect to any amount attributable to three fiscal
quarters, such amount divided by 0.75.
"Applicable Margin": for each Type of Loan under each Facility, the rate
per annum set forth opposite such Facility under the relevant column heading
below:
Base Rate Eurocurrency
Loans Loans
--------- ------------
Revolving Credit Facility 2.25% 3.25%
(including Swing Line Loans)
Term Loan Facility 2.25% 3.25%
provided that on and after the first Adjustment Date occurring after the date
which is six months following the Closing Date, the Applicable Margin with
respect to Revolving Credit Facility (including Swing Line Loans) and with
respect to the Term Loan Facility will each be determined pursuant to the
Pricing Grid.
"Application": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"Arranger": as defined in the preamble hereto.
"Asset Sale": any Disposition of Property or series of related Dispositions
of Property (excluding any such Disposition permitted by clause (a), (b), (c) or
(d) of Section 7.5), which yields gross proceeds to DOC or any of its
Subsidiaries (valued at the initial principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt securities and valued at
Fair Market Value in the case of other non-cash proceeds, but in any event
excluding the Fair Market Value of any Cellular/PCS Assets received pursuant to
a Permitted Asset Swap or other Disposition) which (i) when aggregated with the
gross proceeds from all such Dispositions consummated in the same fiscal year of
DOC exceed $5,000,000 (but only to the extent that they exceed $5,000,000) and
(ii) for any single Disposition or series of related Dispositions (in excess of
the aggregate amount referred to in clause (i)) are equal to or greater than
$50,000.
"Assignee": as defined in Section 11.6(c).
"Assignor": as defined in Section 11.6(c).
"Authorizations": (i) all material filings, recordings, and registrations
with, and all material validations or exemptions, approvals, orders,
authorizations, consents, franchises, licenses, certificates, and permits from,
any Governmental Authority (other than the FCC and applicable PUCs), including
without limitation, any of the foregoing authorizing or permitting the
acquisition, construction, or operation of any System and (ii) all material
filings, recordings, and registrations with, and all validations or exemptions,
approvals, orders, authorizations, consents, franchises, licenses, certificates,
and permits from, the FCC and any applicable PUCs, including authorizing or
permitting the acquisition, construction, or operation of any System.
"Available Revolving Credit Commitment": with respect to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Credit Commitment then in effect over (b) such Lender's
Revolving Extensions of Credit then outstanding; provided that in calculating
any Lender's Revolving Extensions of Credit for the purpose of determining such
Lender's Available Revolving Credit Commitment pursuant to Section 2.9(a), the
aggregate principal amount of Swing Line Loans then outstanding shall be deemed
to be zero.
"Base Rate": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of interest is based
upon the Base Rate.
"Benefited Lender": as defined in Section 11.7.
"Board": the Board of Governors of the Federal Reserve System of the United
States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a date on
which the Borrower requests the relevant Lenders to make Loans hereunder.
"Borrowing Notice": with respect to any request for borrowing of Loans
hereunder, a notice from the Borrower, substantially in the form of, and
containing the information prescribed by, Exhibit K, delivered to the
Administrative Agent.
"Business Day": (a) for all purposes other than as covered by clause (b)
below, a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close and (b) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (a) and which is also a day for trading by and between banks
in Dollar deposits in the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any Person, the
aggregate of all expenditures by such Person for the acquisition or leasing
(pursuant to a capital lease) of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements during
such period) which are required to be capitalized under GAAP on a balance sheet
of such Person.
"Capital Lease Obligations": with respect to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP;
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants, rights or options to purchase any of the foregoing, including
the Parent Preferred Stock.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof having combined
capital and surplus of not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-2 by S&P or P-2 by Xxxxx'x, or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Xxxxx'x; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; and (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"Cellular/PCS Assets": any Cellular Systems, PCS Systems or Franchise
Interest owned directly or indirectly by any Person and used in connection with
such Person's Cellular Business.
"Cellular Business": the business of owning or operating one or more
Cellular Systems and other business directly related thereto.
"Cellular Entity": any Cellular Licensee or Cellular Permittee.
"Cellular Licensee": any Person that is authorized to own, control, and
operate a Cellular System.
"Cellular Partnership": any entity in which DOC or any of its Subsidiaries
owns, directly or indirectly, a partnership interest.
"Cellular Permittee": means a Person that is authorized by the FCC to
construct a Cellular System.
"Cellular System": a public mobile services, cellular radio telephone
service telecommunications system licensed under Part 22 of the rules
promulgated by the FCC.
"Change of Control": the occurrence, on or following the date hereof, of
any of the following events: (a) any "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), shall become the "beneficial owner" (as defined in Rules
13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more
than 50% of the Voting Power of the Parent on a fully diluted basis; (b) the
individuals who on the Closing Date constituted the Board of Directors of the
Parent, together with any new directors whose election by the Board of Directors
of the Parent or whose nomination for election by the Parent's stockholders was
approved by a vote of at least a majority of such Board of Directors then in
office who either were members of such Board of Directors on the Closing Date or
whose election or nomination for election was previously so approved, cease for
any reason to constitute a majority of the members of such Board of Directors
then in such office; (c) the Parent shall cease to own and control, of record
and beneficially, directly, 100% of each class of outstanding Capital Stock of
DOC free and clear of all Liens (except Liens created by the Guarantee and
Collateral Agreement); (d) DOC shall cease to own and control, of record and
beneficially, directly, 100% of each class of outstanding Capital Stock of the
Borrower free and clear of all Liens (except Liens created by the Guarantee and
Collateral Agreement) (provided that it shall not be a "Change of Control"
pursuant to clauses (c) and (d) solely if DOC merges or consolidates with and
into the Borrower in accordance with Section 7.4(b) and the Parent shall hold
100% of the Capital Stock of the surviving entity); or (e) any event
constituting a "change of control" (as such term is defined in any Indenture or
other instrument governing the terms of any Parent Notes or in any certificate
of designation or exchange debenture with respect to any Parent Preferred Stock
or other long-term Indebtedness or preferred stock of the Parent, DOC or any of
its Subsidiaries).
"Closing Date": the date on which the conditions precedent set forth in
Section 5.1 shall have been satisfied, which date shall be not later than
October 31, 2003.
"Code": the United States Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all Property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Commitment": with respect to any Lender, each of the Term Loan Commitment
and the Revolving Credit Commitment of such Lender.
"Commitment Fee Rate": 1/2 of 1% per annum.
"Commonly Controlled Entity": an entity, whether or not incorporated, that
is under common control with the Borrower within the meaning of Section 4001 of
ERISA or is part of a group that includes the Borrower and that is treated as a
single employer under Section 414 of the Code.
"Communications Act": collectively, the Federal Communications Act of 1934,
as amended from time to time, and the rules and regulations in effect at any
time thereunder.
"Communications Regulatory Authority": the FCC and each PUC.
"Compliance Certificate": a certificate duly executed by a Responsible
Officer, substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated September 2003 and furnished to the initial Lenders in
connection with the syndication of the Facilities.
"Consolidated Current Assets": of any Person at any date, all amounts
(other than cash and Cash Equivalents) that would, in conformity with GAAP, be
set forth opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of such Person and its Subsidiaries at such date.
"Consolidated Current Liabilities": of any Person at any date, all amounts
that would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet of
such Person and its Subsidiaries at such date, but excluding, with respect to
DOC, (a) the current portion of any Funded Debt of DOC and its Subsidiaries and
(b), without duplication, all Indebtedness consisting of Revolving Credit Loans
or Swing Line Loans, to the extent otherwise included therein.
"Consolidated EBITDA": of any Person for any period, Consolidated Net
Income of such Person and its Subsidiaries for such period plus, without
duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b)
Consolidated Interest Expense of such Person and its Subsidiaries, amortization
or writeoff of debt discount and debt issuance costs and commissions, discounts
and other fees and charges associated with Indebtedness, (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary losses
determined in accordance with GAAP (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, losses on sales of assets outside of the ordinary course of
business) and (f) any other non-recurring non-cash charges for such period
(provided that any cash expenditures made in respect of any such non-cash
charges added-back pursuant to this clause (f) shall be deducted for the
purposes of determining Consolidated EBITDA for the period during which such
cash expenditures are made), and minus, to the extent included in the statement
of such Consolidated Net Income for such period, the sum of (i) interest income
(except to the extent deducted in determining Consolidated Interest Expense),
(ii) any extraordinary gains determined in accordance with GAAP (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside of
the ordinary course of business) and (iii) any other non-cash income, all as
determined on a consolidated basis; provided that in determining Consolidated
EBITDA for the Parent, none of the Unrestricted Group shall be included as a
Subsidiary of the Parent in the foregoing calculations.
"Consolidated Fixed Charges": for any period, the sum (without duplication
and to the extent not included in the calculation of Consolidated EBITDA for DOC
for such period) of (a) Consolidated Interest Expense of DOC for such period,
(b) cash income taxes paid by DOC or any of its Subsidiaries on a consolidated
basis in respect of such period, (c) scheduled payments made during such period
on account of principal of Indebtedness of DOC or any of its Subsidiaries
(including scheduled principal payments in respect of the Term Loans), and (d)
(to the extent not included in the foregoing) the amount of Restricted Payments
made in cash during such period by DOC to the Parent.
"Consolidated Interest Expense": of any Person for any period, total cash
interest expense (including that attributable to Capital Lease Obligations) of
such Person and its Subsidiaries for such period with respect to all outstanding
Indebtedness of such Person and its Subsidiaries (including all commissions,
discounts and other fees and charges owed by such Person with respect to letters
of credit and bankers' acceptance financing and net costs of such Person under
Hedge Agreements in respect of interest rates to the extent such net costs are
allocable to such period in accordance with GAAP); provided that in determining
Consolidated Interest Expense with respect to the Parent, none of the
Unrestricted Group shall be included as a Subsidiary of the Parent in the
foregoing calculations.
"Consolidated Net Income": of any Person for any period, the consolidated
net income (or loss) of such Person and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP; provided that in
calculating Consolidated Net Income of such Person and its consolidated
Subsidiaries for any period, there shall be excluded (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of such Person
or is merged into or consolidated with such Person, as applicable, or any of its
Subsidiaries, (b) the income (or deficit) of any other Person (other than a
Subsidiary of such Person) in which the Person for which Consolidated Net Income
is being determined, or any of its Subsidiaries, has an ownership interest,
except to the extent that any such income is actually received by it in the form
of dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of such Person to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary; provided that in
determining Consolidated Net Income with respect to the Parent, none of the
Unrestricted Group shall be included as a Subsidiary of the Parent in the
foregoing calculations.
"Consolidated Total Debt": of any Person, at any date, the aggregate
principal amount of all Indebtedness (but not any preferred stock) of such
Person and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP; provided that in determining Consolidated Total Debt with
respect to the Parent, none of the Unrestricted Group shall be included as a
Subsidiary of the Parent in the foregoing calculations.
"Consolidated Working Capital": at any date, the difference of (a)
Consolidated Current Assets of DOC on such date less (b) Consolidated Current
Liabilities of DOC on such date.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its Property is bound.
"Control Investment Affiliate": as to any Person, any other Person that (a)
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person and (b) is organized by such Person primarily for the
purpose of making equity or debt investments in one or more companies. For
purposes of this definition, "control" of a Person means the power, directly or
indirectly, to direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"Declining Lender": as defined in Section 2.12(d).
"Default": any of the events specified in Section 9, whether or not any
requirement specified therein with respect to such event for the giving of
notice, the lapse of time, or both, has been satisfied.
"Derivatives Counterparty": as defined in Section 7.6.
"Disposition": with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof; and
the terms "Dispose" and "Disposed of" shall have correlative meanings.
"Xxxxxx/Sygnet": as defined in the preamble hereto.
"DOC": as defined in the preamble hereto.
"DOC Fixed Charge Coverage Ratio": for any period, the ratio of (a)
Consolidated EBITDA of DOC for such period minus the aggregate amount actually
paid by DOC in cash during such period on account of Capital Expenditures to (b)
Consolidated Fixed Charges for such period; provided that Capital Expenditures
made in cash in the following periods for the GSM build-out by DOC shall not be
included as Capital Expenditures in calculating the DOC Fixed Charge Coverage
Ratio up to the following respective amounts (without duplication) for the four
fiscal quarter periods of DOC ending on the following dates: (i) December 31,
2003, $75,000,000, (ii) March 31 2004, $95,000,000, (iii) June 30, 2004,
$80,000,000 and (iv) September 30, 2004, $70,000,000.
"DOC Leverage Ratio": as at the last day of any period of four consecutive
fiscal quarters of DOC, the ratio of (a) Consolidated Total Debt of DOC on such
day to (b) Consolidated EBITDA of DOC for such period; provided that for
purposes of calculating Consolidated EBITDA of DOC for any period, (i) the
Consolidated EBITDA of any Person acquired by DOC or its Subsidiaries during
such period shall be included on a pro forma basis for such period (assuming the
consummation of such acquisition occurred on the first day of such period) if
the consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and stockholders'
equity and of cash flows for the period in respect of which Consolidated EBITDA
is to be calculated (x) have been previously provided to the Administrative
Agent and the Lenders and (y) either (1) have been reported on without a
qualification arising out of the scope of the audit by independent certified
public accountants of nationally recognized standing or (2) have been found
acceptable by the Administrative Agent and (ii) the Consolidated EBITDA of any
Person Disposed of by DOC or its Subsidiaries during such period shall be
excluded for such period (assuming the consummation of such Disposition and the
repayment of any Indebtedness in connection therewith occurred on the first day
of such period).
"Dollars" or "$": lawful currency of the United States of America.
"Domestic Subsidiary": any Subsidiary organized under the laws of any
jurisdiction within the United States of America.
"Environmental Laws": any and all laws, rules, orders, regulations,
statutes, ordinances, guidelines, codes, decrees, or other legally enforceable
requirements (including common law) of any international authority, foreign
government, the United States, or any state, local, municipal or other
governmental authority, regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or of human
health, or employee health and safety, as has been, is now, or may at any time
hereafter be, in effect.
"Environmental Permits": any and all permits, licenses, approvals,
registrations, notifications, exemptions and other authorizations required under
any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"Eurocurrency Reserve Requirements": for any day, the aggregate (without
duplication) of the maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including basic, supplemental, marginal and
emergency reserves) under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board) maintained by a member
bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period, the rate per annum determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate" for
purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be
selected by the Administrative Agent.
"Eurodollar Loans": Loans for which the applicable rate of interest is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period, a
rate per annum determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
--------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans the then
current Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Loans shall originally have been
made on the same day).
"Event of Default": any of the events specified in Section 9, provided that
any requirement specified therein with respect to such event in for the giving
of notice, the lapse of time, or both (if applicable), has been satisfied.
"Excess Cash Flow": for any fiscal year of DOC, the difference, if any, by
which (a) the sum, without duplication, of (i) Consolidated EBITDA of DOC for
such fiscal year and (ii) the amount of the decrease, if any, in Consolidated
Working Capital for such fiscal year (other than any such decrease to the extent
that it is solely attributable to Permitted Acquisitions, Permitted Asset Swaps
and Dispositions consummated during such fiscal year) exceeds (b) the sum,
without duplication, of (i) the aggregate amount of capital expenditures (as
determined in accordance with GAAP) by DOC and its Subsidiaries during such
fiscal year (provided that the cash amount of such capital expenditures shall
exclude the principal amount of purchase-money Indebtedness and Capital Lease
Obligations incurred in connection therewith or financed with the proceeds of
any Reinvestment Deferred Amount during such fiscal year), (ii) Consolidated
Interest Expense of DOC and commissions, discounts and other fees and charges
associated with Indebtedness to the extent paid in cash during such fiscal year,
(iii) the aggregate amount of all regularly scheduled principal payments of
Funded Debt (including the Term Loans) of DOC and its Subsidiaries made during
such fiscal year (other than in respect of any revolving credit facility
(including the Revolving Credit Facility) to the extent there is not an
equivalent permanent reduction in commitments thereunder), (iv) the amount of
the increase, if any, in Consolidated Working Capital for such fiscal year
(other than any such increase to the extent that it is solely attributable to
Permitted Acquisitions, Permitted Asset Swaps and Dispositions consummated
during such fiscal year), (v) the amount of Taxes of DOC and its Subsidiaries
paid by them in cash during such fiscal year, (vi) any cash payments made by DOC
or its Subsidiaries during such fiscal year which were added to Consolidated Net
Income of DOC for the purposes of determining Consolidated EBITDA of DOC
pursuant to clause (e) of the definition thereof and (vii) (to the extent not
already deducted pursuant to any of the foregoing items (i) through (vi)) the
amount of Restricted Payments made during such fiscal year in cash by DOC to the
Parent pursuant to Sections 7.6(c)(i),(ii),(iii) and (iv); provided that for all
purposes of this Agreement with respect to the fiscal year of DOC ended December
31, 2003, Excess Cash Flow for such fiscal year shall only be calculated with
respect to the period from September 30, 2003 to December 31, 2003) .
"Excess Cash Flow Application Date": as defined in Section 2.12(c).
"Excluded Foreign Subsidiaries": any Foreign Subsidiary in respect of which
either (a) the pledge of all of the Capital Stock of such Subsidiary as
Collateral or (b) the guarantee by such Subsidiary of the Obligations would
result in adverse tax consequences to the Parent and its Domestic Subsidiaries.
"Excluded Collateral": means any Excluded Assets, as defined in the
Guarantee and Collateral Agreement, to the extent that such Property is of a
type which is excluded from the security interests granted pursuant to the
Guarantee and Collateral Agreement.
"Existing Credit Facilities": the Existing DOC Credit Facility and the
Existing Sygnet Wireless Credit Facility, which are to be terminated pursuant to
the Transactions.
"Existing DOC Credit Facility": the credit facility under the second
amended and restated credit agreement, dated as of September 26, 2003, among
DOC, as borrower, LCPI, as administrative agent and the various lenders party
thereto.
"Existing Xxxxxx/Sygnet Senior Notes": the 12.25% senior notes due 2008
issued by Xxxxxx/Sygnet pursuant to an indenture dated as of December 23, 1998,
all (or substantially all) of which are to be purchased pursuant to the
Transactions.
"Existing Parent Senior Notes": each of (a) the 10.875% senior notes due
2010 issued by the Parent pursuant to an Indenture dated as of June 22, 2000 and
(b) the 11.75% senior notes due 2007 issued by the Parent pursuant to an
Indenture dated as of February 28, 1997.
"Existing Sygnet Wireless Credit Facility": the credit facility under the
credit agreement dated as of December 22, 1998 (as amended, supplemented or
otherwise modified from time to time), among Sygnet Wireless, Inc., as borrower,
Bank of America, N.A.(formerly known as Nationsbank, N.A.), as administrative
agent and the various lenders and other agents party thereto.
"Existing Sygnet Wireless Senior Notes": the 11.5% senior notes due 2006
issued by Sygnet Wireless, Inc. pursuant to an indenture dated as of September
26, 1996.
"Facility": each of (a) the Term Loan Commitments and the Term Loans made
thereunder and (b) the Revolving Credit Commitments and the extensions of credit
made thereunder.
"Fair Market Value": (a) with respect to any asset or group of assets
(other than a marketable security) at any date, the value of the consideration
obtainable in a sale of such asset at such date assuming a sale by a willing
seller to a willing purchaser dealing at arm's length and arranged in an orderly
manner over a reasonable period of time having regard to the nature and
characteristics of such asset, as reasonably determined by the Board of
Directors of the Borrower or, if such asset shall have been the subject of a
relatively contemporaneous appraisal by an independent third party appraiser,
the basic assumptions underlying which have not materially changed since its
date, the value set forth in such appraisal and (b) with respect to any
marketable security at any date, the closing sale price of such Security on the
Business Day next preceding such date, as appearing in any published list of any
national securities exchange or the NASDAQ Stock Market or, if there is no such
closing sale price of such Security, the final price for the purchase of such
Security at face value quoted on such business day by a financial institution of
recognized standing regularly dealing in securities of such type and selected by
the Administrative Agent.
"FCC": the Federal Communications Commission and any successor regulatory
body.
"FCC License": each license which is issued by the FCC from time to time
for DOC and its Subsidiaries to operate each of the Systems.
"Federal Funds Effective Rate": for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"Foreign Subsidiary": any Subsidiary that is not a Domestic Subsidiary.
"Franchise Interest": any direct or indirect ownership in any Person that
is a Cellular Entity.
"Funded Debt": with respect to any Person, all Indebtedness of such Person
of the types described in clauses (a) through (e) of the definition of
"Indebtedness" in this Section.
"Funding Office": the office specified from time to time by the
Administrative Agent as its funding office by notice to the Borrower and the
Lenders.
"GAAP": generally accepted accounting principles in the United States of
America as in effect on the Closing Date.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"GRTI": Gila River Telecommunications Subsidiary, Inc., a corporation
organized pursuant to Gila River Indian Resolution Number GR-10-97.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
obligation of (a) the guaranteeing person or (b) another Person (including any
bank under any letter of credit), if to induce the creation of such obligation
of such other Person the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any Property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase Property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by the Loan Parties substantially in the
form of Exhibit A, as the same may be amended, supplemented or otherwise
modified from time to time.
"Guarantors": the collective reference to the Parent, DOC, the Subsidiary
Guarantors and each other Restricted Subsidiary (other than any Cellular
Partnership).
"Hedge Agreements": all interest rate or currency swaps, caps or collar
agreements, foreign exchange agreements, commodity contracts or similar
arrangements entered into by the Parent, DOC or its Subsidiaries providing for
protection against fluctuations in interest rates, currency exchange rates,
commodity prices or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"Indebtedness": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of Property or services (other than trade
payables incurred in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to Property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such Property), (e) all Capital Lease Obligations of such Person, (f)
all obligations of such Person, contingent or otherwise, as an account party or
applicant under acceptance, letter of credit or similar facilities, (g) all
obligations of such Person, contingent or otherwise, to purchase, redeem, retire
or otherwise acquire for value any Capital Stock of such Person, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above; (i) all obligations of the kind
referred to in clauses (a) through (h) above secured by (or for which the holder
of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on Property (including accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such obligation and (j) for the purposes of Section 9(e) only, all
obligations of such Person in respect of Hedge Agreements.
"Indemnified Liabilities": as defined in Section 11.5.
"Indemnitee": as defined in Section 11.5.
"Indentures": the New Parent Senior Notes Indenture and each other
indenture entered into by the Parent with respect to the Parent Notes, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with Section 7.8.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including copyrights,
copyright licenses, patents, patent licenses, trademarks, trademark licenses,
technology, know-how and processes, and all rights to xxx at law or in equity
for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to any Eurodollar Loan having an
Interest Period of three months or shorter, the last day of such Interest
Period, (c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day that is three months, or a whole multiple thereof, after
the first day of such Interest Period and the last day of such Interest Period
and (d) as to any Loan (other than any Revolving Credit Loan that is a Base Rate
Loan and any Swing Line Loan), the date of any repayment or prepayment made in
respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the period
commencing on the borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending one, two, three or six months thereafter, as
selected by the Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions
relating to Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the Revolving
Credit Termination Date or beyond the date final payment is due on the Term
Loans shall end on the Revolving Credit Termination Date or such due date,
as applicable; and
(3) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such Interest Period.
"Investments": as defined in Section 7.7.
"Issuing Lender": National City Bank and any other Revolving Credit Lender
from time to time designated by the Borrower as an Issuing Lender with the
consent of such Revolving Credit Lender and the Administrative Agent.
"L/C Commitment": $20,000,000.
"L/C Fee Payment Date": the last day of each March, June, September and
December and the last day of the Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the collective
reference to all the Revolving Credit Lenders other than the Issuing Lender that
issued such letter of Credit.
"Xxxxxx Entity": any of Xxxxxx Commercial Paper Inc. or any of its
affiliates (including Syndicated Loan Funding Trust).
"Lender Addendum": with respect to any initial Lender, a Lender Addendum,
substantially in the form of Exhibit J, to be executed and delivered by such
Lender on the Closing Date as provided in Section 11.17.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"Liquidity": means at any time, the Revolving Credit Availability plus the
aggregate amount of all cash and Cash Equivalents held by DOC, the Borrower and
each Subsidiary Guarantor at such time.
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the Applications,
any fee letter entered into among any Loan Party and the Agents with respect to
the Facilities and the Notes.
"Loan Parties": The Borrower and each Guarantor.
"Majority Facility Lenders": with respect to any Facility, the holders of
more than 50% of the aggregate unpaid principal amount of the Term Loans or the
Total Revolving Extensions of Credit, as the case may be, outstanding under such
Facility (or, in the case of the Revolving Credit Facility, prior to the
termination of all Revolving Credit Commitments, the holders of more than 50% of
the Total Revolving Credit Commitments).
"Majority Revolving Credit Facility Lenders": the Majority Facility Lenders
in respect of the Revolving Credit Facility.
"Maryland/Michigan Swap": the Permitted Asset Swap pursuant to an agreement
entered into in October 2003 by the Borrower and Cingular Wireless with respect
to their exchange of Cellular/PCS Assets respectively located in Maryland and
Michigan.
"Material Adverse Effect": a material adverse effect on (a) the
Transactions as of the Closing Date, (b) the business, assets, property or
condition (financial or otherwise) of the Parent and its Subsidiaries taken as a
whole or DOC and its Subsidiaries taken as a whole or (c) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Agents or the Lenders hereunder or thereunder.
"Material Agreements": as defined in Section 4.23.
"Material Environmental Amount": an amount or amounts payable by the
Borrower and/or any of its Subsidiaries, in the aggregate in excess of
$20,000,000, for: costs to comply with any Environmental Law; costs of any
investigation, and any remediation, of any Material of Environmental Concern;
and compensatory damages (including, without limitation damages to natural
resources), punitive damages, fines, and penalties pursuant to any Environmental
Law.
"Materials of Environmental Concern": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products, polychlorinated
biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants,
radioactivity, and any other substances or forces of any kind, whether or not
any such substance or force is defined as hazardous or toxic under any
Environmental Law, that is regulated pursuant to or could give rise to liability
under any Environmental Law.
"Merger": the merger of (i) Xxxxxx/Sygnet, SWI and Sygnet Communications
Inc. into and with the Borrower pursuant to which the Borrower is the surviving
entity and (ii) Sygnet Lease Co., LLC into and with DOC Lease Co., LLC. pursuant
to which DOC Lease Co., LLC is the surviving entity.
"Moody's": Xxxxx'x Investors Service, Inc.
"Mortgaged Properties": any real properties as to which the Administrative
Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to
one or more Mortgages pursuant to Section 6.10(b).
"Mortgages": each of the mortgages and deeds of trust made by any Loan
Party in favor of, or for the benefit of, the Administrative Agent for the
benefit of the Secured Parties, in form and substance reasonably satisfactory to
the Administrative Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any Recovery
Event, the proceeds thereof in the form of cash and Cash Equivalents (including
any such proceeds received by way of deferred payment of principal pursuant to a
note or installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received) of such Asset Sale or Recovery Event,
net of attorneys' fees, accountants' fees, investment banking fees, amounts
required to be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset which is the subject of such Asset
Sale or Recovery Event (other than any Lien pursuant to a Security Document) and
other customary fees and expenses actually incurred in connection therewith and
net of Taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available Tax credits or deductions and any Tax
sharing or allocation arrangements), (b) in connection with any issuance or sale
of equity securities or debt securities or instruments or the incurrence of
loans, the cash proceeds received from such issuance or incurrence, net of
attorneys' fees, investment banking fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred in connection therewith and (c) in connection with any Purchase Price
Refund, the cash amount thereof, net of any expenses incurred in the collection
thereof.
"New Parent Senior Notes": the 8.875% senior notes due 2013 issued by the
Parent pursuant to the New Parent Senior Notes Indenture.
"New Parent Senior Notes Indenture": the indenture, dated as of September
26, 2003, entered into by the Parent in connection with the issuance of the New
Parent Senior Notes, together with all instruments and other agreements entered
into by the Parent in connection therewith, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with Section
7.8
"Non-Excluded Taxes": as defined in Section 2.20(a).
"Non-U.S. Lender": as defined in Section 2.20(d).
"Note": any promissory note evidencing any Loan.
"Obligations": the unpaid principal of and interest on (including interest
accruing after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Loans, the Reimbursement Obligations and all
other obligations and liabilities of the Borrower to the Administrative Agent or
to any Lender or any Qualified Counterparty, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this Agreement,
any other Loan Document, the Letters of Credit, any Specified Hedge Agreement or
any other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise; provided that (i)
obligations of DOC or any of its Subsidiaries under any Specified Hedge
Agreement shall be secured and guaranteed pursuant to the Security Documents
only to the extent that, and for so long as, the other Obligations are so
secured and guaranteed and (ii) any release of Collateral or Guarantors effected
in the manner permitted by this Agreement shall not require the consent of
holders of obligations under Specified Hedge Agreements.
"Other Taxes": any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.
"Parent": as defined in the preamble hereto.
"Parent Interest Coverage Ratio": for any period, the ratio of (a)
Consolidated EBITDA of the Parent for such period to (b) Consolidated Interest
Expense of the Parent for such period; provided that in determining the Parent
Interest Coverage Ratio with respect to the Parent, none of the Unrestricted
Group shall be included as a Subsidiary of the Parent in the foregoing
calculations.
"Parent Leverage Ratio": as at the last day of any period of four
consecutive fiscal quarters of the Parent, the ratio of (a) Consolidated Total
Debt of the Parent on such day to (b) Consolidated EBITDA of the Parent for such
period; provided that for purposes of calculating Consolidated EBITDA of the
Parent for any period, (i) the Consolidated EBITDA of any Person acquired by the
Parent or any of its Subsidiaries during such period shall be included on a pro
forma basis for such period (assuming the consummation of such acquisition
occurred on the first day of such period) if the consolidated balance sheet of
such acquired Person and its consolidated Subsidiaries as at the end of the
period preceding the acquisition of such Person and the related consolidated
statements of income and stockholders' equity and of cash flows for the period
in respect of which Consolidated EBITDA is to be calculated (x) have been
previously provided to the Administrative Agent and the Lenders and (y) either
(1) have been reported on without a qualification arising out of the scope of
the audit by independent certified public accountants of nationally recognized
standing or (2) have been found acceptable by the Administrative Agent and (ii)
the Consolidated EBITDA of any Person Disposed of by the Parent or any of its
Subsidiaries during such period shall be excluded for such period (assuming the
consummation of such Disposition and the repayment of any Indebtedness in
connection therewith occurred on the first day of such period); provided that in
determining the Parent Leverage Ratio, none of the Unrestricted Group shall be
included as a Subsidiary of the Parent in the foregoing calculations.
"Parent Notes": collectively, the Existing Parent Senior Notes, the New
Parent Senior Notes and any other senior unsecured Indebtedness for borrowed
money issued by the Parent in accordance with this Agreement.
"Parent Preferred Stock": the Parent 12.25% Senior Exchangeable Preferred
Stock, the Parent 13% Senior Exchangeable Preferred Stock and the Parent Series
F Convertible Preferred Stock.
"Parent 12.25% Senior Exchangeable Preferred Stock": the 12.25% senior
exchangeable preferred stock of the Parent due 2008, to be redeemed in part
pursuant to the Transactions.
"Parent 13% Senior Exchangeable Preferred Stock": the 13% senior
exchangeable preferred stock of the Parent due 2009.
"Parent Series F Convertible Preferred Stock": the Series F convertible
preferred stock of the Parent.
"Participant": as defined in Section 11.6(b).
"Payment Office": the office specified from time to time by the
Administrative Agent as its payment office by notice to the Borrower and the
Lenders.
"PCS Systems": the wireless cellular telecommunication systems offering
"Personal Communication Services" authorized under Part 24 of the FCC Rules (47
C.F.R. ss. 24.1 et seq.).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition": any acquisition of all or substantially all of the
assets of, or Capital Stock of, a Person if immediately before and after giving
effect thereto: (a) no Default shall have occurred and be continuing or could
reasonably be expected to result therefrom, (b) all transactions related thereto
shall be consummated without material contravention of any applicable
Requirements of Law and Authorizations, (c) 90% of the Capital Stock of any
acquired or newly formed corporation, partnership, association or other business
entity is owned directly by the Borrower, DOC or any of its Wholly Owned
Subsidiaries (which is a Domestic Subsidiary) and all actions required to be
taken, if any, with respect to such acquired or newly formed Subsidiary under
Section 6.10 shall have been taken, (d) the Administrative Agent shall have
approved (such approval not to be unreasonably withheld or delayed) the
respective amounts of each such acquired Person's or business's actual and
contingent liabilities to the extent that such liabilities would be recourse to
DOC and its Subsidiaries, (e) such acquisition shall have been approved and
recommended by the board of directors or equivalent governing body of the Person
to be acquired or from which such assets are to be acquired and such approval
and recommendation has not been withdrawn, (f) not less than 14 days prior to
the consummation thereof, the Borrower shall have delivered to the
Administrative Agent and the Lenders a pro forma income statement and balance
sheet for DOC and its Subsidiaries (after giving effect to such acquisition) and
an officer's certificate certifying compliance with each of the foregoing and
containing all information necessary for determining such compliance, together
with all relevant financial statements, projections and information, in each
case, satisfactory to the Administrative Agent, (g) each material Authorization
issued by any Communications Regulatory Authority to be acquired in connection
with such acquisition shall be valid, binding, enforceable, and subsisting
without any defaults (except defaults which could not reasonably be expected to
result in the termination, revocation or non-renewal of such Authorization)
thereunder or enforceable materially adverse limitations thereon and shall not
be subject to any proceedings or claims (except proceedings or claims which
could not reasonably be expected to result in the termination, revocation or
non-renewal of such Authorization) opposing the issuance, development, or use
thereof or contesting the validity thereof unless the acquiring Person has
entered into an agreement with the seller of such Authorization protecting such
Person from such adverse limitations, proceedings, or claims, which agreement
shall be on terms and conditions, and from a Person whose credit is,
satisfactory to Administrative Agent, (h) as of the closing of such acquisition,
after giving effect thereto, the acquiring Person shall be Solvent and the
Parent, the Borrower and DOC, each on a consolidated basis, shall each be
Solvent and (i) to the extent that DOC or its Subsidiaries will make any
Supplemental Capital Expenditures in connection with such acquisition, the
Required Lenders shall have consented to such Supplemental Capital Expenditures.
"Permitted Asset Swap": A Disposition of Cellular/PCS Assets owned by DOC
or any of its Subsidiaries that satisfies each of the following conditions: (a)
such Disposition shall be in substantially contemporaneous exchange for the
acquisition of other Cellular/PCS Assets, (b) such acquisition of other
Cellular/PCS Assets shall be a Permitted Acquisition, (c) immediately prior to
and after giving effect to the Disposition of such Cellular/PCS Assets and
acquisition of other Cellular/PCS Assets, no Default or Event of Default shall
have occurred and be continuing or could reasonably be expected to result
therefrom, (d) the consideration received for such Disposition shall be at least
equal to the Fair Market Value of the Cellular/PCS Assets Disposed of, (e) any
cash consideration received, after giving effect to such Disposition and
substantially contemporaneous acquisition, shall not exceed 50% of the aggregate
consideration received and shall in each case be a bona fide means of equalizing
the value between the Cellular/PCS Assets Disposed of and those acquired and (f)
within 5 days of the consummation of such Disposition (and if applicable, within
5 days of such substantially contemporaneous acquisition) the Borrower shall
have delivered to the Administrative Agent an officer's certificate certifying
satisfaction of the conditions set forth in this definition and demonstrating
pro forma compliance with the financials covenants set forth in Section 7.1.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is covered by
ERISA and in respect of which the Borrower or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pops": with respect to any licensed area, the residents of such area based
on the most recent publication by Claritas Inc. (or any successor thereof).
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Prime Rate" the prime lending rate as set forth on the British Banking
Association Telerate Page 5 (or such other comparable publicly available page as
may, in the reasonable opinion of the Administrative Agent, after notice to the
Borrower, replace such page for the purpose of displaying such rate), as in
effect from time to time. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually available.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Projections": as defined in Section 6.2(c).
"Property": any right or interest in or to property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, including
Capital Stock.
"PUC": any state regulatory agency or governmental authority that exercises
jurisdiction over the services provided via, or the ownership, construction, or
operation of, commercial mobile radio service facilities.
"PUC Authorization": any license or other Authorization issued by any
applicable PUC from time to time that is required for DOC and its Subsidiaries
to enter into operations of each of the Systems.
"Purchase Price": with respect to any Permitted Acquisition or Permitted
Asset Swap, all direct, indirect, and deferred cash and non-cash payments made
to or for the benefit of the Person being acquired (or whose assets are being
acquired), its shareholders, officers, directors, employees, or Affiliates in
connection with such Permitted Acquisition or Permitted Asset Swap, including
the amount of any Indebtedness being assumed in connection with such Permitted
Acquisition or Permitted Asset Swap, seller financing, payments under
non-competition or consulting agreements entered into in connection with such
Permitted Acquisition or Permitted Asset Swap and similar agreements, all
non-cash consideration and the value of any stock, options, or warrants or other
Rights to acquire stock issued as consideration in such transaction; provided
that, for the purposes hereof, non-competition agreements and consulting
agreements shall be valued at their present value discounted over the term of
such agreement at the Base Rate in effect at the time of the Permitted
Acquisition.
"Purchase Price Refund": any amount received by DOC or any of its
Subsidiaries as a result of a purchase price adjustment or similar event in
connection with any acquisition of Property by DOC or any of its Subsidiaries.
"Qualified Counterparty": with respect to any Specified Hedge Agreement,
any counterparty thereto that, at the time such Specified Hedge Agreement was
entered into, was a Lender or an affiliate of a Lender.
"Recovery Event": any settlement of or payment in respect of any property
or casualty insurance claim or any condemnation proceeding relating to any asset
of DOC or any of its Subsidiaries which results in DOC or its Subsidiaries
receiving a settlement or payment which (i) when aggregated with all settlements
and payments from all such insurance claims and condemnation proceedings
received in the same fiscal year of DOC is in excess of $5,000,000 (but only to
the extent that they exceed $5,000,000) and (ii) for any single insurance claim
or condemnation proceeding (in excess of the aggregate amount referred to in
clause (i)) is equal to or greater than $50,000.
"Refunded Swing Line Loans": as defined in Section 2.7(b).
"Refunding Date": as defined in Section 2.7(c).
"Register": as defined in Section 11.6(d).
"Regulation H": Regulation H of the Board as in effect from time to time.
"Regulation U": Regulation U of the Board as in effect from time to time.
"Reimbursement Obligation": the obligation of the Borrower to reimburse
each Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of
Credit issued by such Issuing Lender.
"Reinvestment Deferred Amount": with respect to any Reinvestment Event, the
aggregate Net Cash Proceeds received by DOC or any of its Subsidiaries in
connection therewith that are not applied to prepay the Term Loans or reduce the
Revolving Credit Commitments pursuant to Section 2.12(b) as a result of the
delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale, Purchase Price Refund or Recovery
Event in respect of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible Officer
stating that no Default or Event of Default has occurred and is continuing and
that the Borrower (directly or indirectly through a Subsidiary of the Borrower)
intends and expects to use all or a specified portion of the Net Cash Proceeds
of an Asset Sale, Purchase Price Refund or Recovery Event to acquire assets
useful in its business.
"Reinvestment Prepayment Amount": with respect to any Reinvestment Event,
the Reinvestment Deferred Amount relating thereto less any amount expended prior
to the relevant Reinvestment Prepayment Date to acquire assets useful in the
Borrower's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment Event, the
earlier of (a) the date occurring one year after such Reinvestment Event and (b)
the date on which the Borrower shall have determined not to, or shall have
otherwise ceased to, acquire assets useful in the Borrower's business with all
or any portion of the relevant Reinvestment Deferred Amount.
"Related Fund": with respect to any Lender, any fund that (x) invests in
commercial loans and (y) is managed or advised by the same investment advisor
(or an Affiliate of such investment advisor) as such Lender, by such Lender or
an Affiliate of such Lender.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg. ss. 4043.
"Required Lenders": at any time, the holders of more than 50% of (a) until
the Closing Date, the Commitments and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of the Term Loans then outstanding and (ii)
the Total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in respect of
each Facility.
"Requirement of Law": as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and
any law (including the Communications Act), treaty, rule or regulation or
determination of an arbitrator or a court or of the FCC, any PUC or any other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its Property or to which such Person or any of its Property is
subject.
"Responsible Officer": the chief executive officer, president, chief
financial officer or treasurer of the Borrower, but in any event, with respect
to financial matters, the chief financial officer or treasurer of the Borrower.
"Restricted Payments": as defined in Section 7.6.
"Restricted Subsidiary": means each Subsidiary of the Parent that is not an
Unrestricted Subsidiary.
"Revolving Credit Availability": at any time, the maximum amount of
Available Revolving Credit Commitments which may be borrowed by the Borrower
pursuant to Section 2.4 at such time in compliance with Section 5.2 (including
on a pro forma basis as provided in Section 5.2).
"Revolving Credit Commitment": as to any Lender, the obligation of such
Lender, if any, to make Revolving Credit Loans and participate in Swing Line
Loans and Letters of Credit, in an aggregate principal and/or face amount not to
exceed the amount set forth under the heading "Revolving Credit Commitment"
opposite such Lender's name on Schedule 1 to the Lender Addendum delivered by
such Lender, or, as the case may be, in the Assignment and Acceptance pursuant
to which such Lender became a party hereto, as the same may be changed from time
to time pursuant to the terms hereof.
"Revolving Credit Commitment Period": the period from and including the
Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of "Facility" in
this Section 1.1.
"Revolving Credit Lender": each Lender that has a Revolving Credit
Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Note": as defined in Section 2.8(e).
"Revolving Credit Percentage": as to any Revolving Credit Lender at any
time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the Total Revolving Credit Commitments (or, at any time after the
Revolving Credit Commitments shall have expired or terminated, the percentage
which the aggregate amount of such Lender's Revolving Extensions of Credit then
outstanding constitutes the amount of the Total Revolving Extensions of Credit
then outstanding).
"Revolving Credit Termination Date": October 23, 2009 (or such earlier date
on which the Loans become due and payable pursuant to Section 9).
"Revolving Extensions of Credit": as to any Revolving Credit Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of all
Revolving Credit Loans made by such Lender then outstanding, (b) such Lender's
Revolving Credit Percentage of the L/C Obligations then outstanding and (c) such
Lender's Revolving Credit Percentage of the aggregate principal amount of Swing
Line Loans then outstanding.
"SEC": the Securities and Exchange Commission (or successors thereto or an
analogous Governmental Authority).
"Secured Parties": as defined in the Guarantee and Collateral Agreement.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any Property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.
"Single Employer Plan": any Plan that is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"Solvent": with respect to any Person, as of any date of determination, (a)
the amount of the "present fair saleable value" of the assets of such Person
will, as of such date, exceed the amount of all "liabilities of such Person,
contingent or otherwise", as of such date, as such quoted terms are determined
in accordance with applicable federal and state laws governing determinations of
the insolvency of debtors, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be
required to pay the liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such date, an
unreasonably small amount of capital with which to conduct its business, and (d)
such Person will be able to pay its debts as they mature. For purposes of this
definition, (i) "debt" means liability on a "claim", and (ii) "claim" means any
(x) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (y) right to an equitable
remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"Specified Hedge Agreement": any Hedge Agreement entered into by the
Borrower or any Subsidiary Guarantor and any Qualified Counterparty.
"S&P": Standard & Poor's Rating Services.
"Subordinated Debt": as to any Loan Party, any Indebtedness of such Loan
Party which is subordinated to the Obligations on terms acceptable to the
Administrative Agent.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified or
the context otherwise requires, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
DOC.
"Subsidiary Guarantor": each Subsidiary of DOC that is a Guarantor
(provided that the Cellular Partnerships shall not be required to be
Guarantors).
"Supplemental Capital Expenditures": means, for any period, the Capital
Expenditures, which have been consented to in writing by the Required Lenders,
projected to be made in such period (in excess of the Capital Expenditures
permitted for such period by Sections 7.1(e)(ii)(w), (x) and (y)) by DOC and its
Subsidiaries in connection with a Permitted Acquisition.
"SWI": Sygnet Wireless, Inc., an Ohio corporation.
"Swing Line Commitment": the obligation of the Swing Line Lender to make
Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount at any
one time outstanding not to exceed $20,000,000.
"Swing Line Lender": LCPI, in its capacity as the lender of Swing Line
Loans.
"Swing Line Loans": as defined in Section 2.6.
"Swing Line Note": as defined in Section 2.8(e).
"Swing Line Participation Amount": as defined in Section 2.7(c).
"Syndication Date": the Closing Date.
"System": each of the Cellular Systems and PCS Systems, now or hereafter
owned, operated, or managed by DOC or its Subsidiaries.
"Tax Sharing Agreement": the consolidated income tax payment agreement
dated as of February 28, 1997, entered into among the Parent and its
Subsidiaries (as such agreement may be further amended from time to time with
the consent of Administrative Agent).
"Taxes": means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets.
"Term Loan Commitment": as to any Lender, the obligation of such Lender, if
any, to make a Term Loan to the Borrower hereunder in a principal amount not to
exceed the amount set forth under the heading "Term Loan Commitment" opposite
such Lender's name on Schedule 1 to the Lender Addendum delivered by such
Lender, or, as the case may be, in the Assignment and Acceptance pursuant to
which such Lender became a party hereto, as the same may be changed from time to
time pursuant to the terms hereof. The original aggregate amount of the Term
Loan Commitments is $550,000,000.
"Term Loan Facility": as defined in the definition of "Facilities" in this
Section 1.1
"Term Loan Lenders": each Lender holding a Term Loan Commitment or a Term
Loan.
"Term Loans": as defined in Section 2.1
"Term Note": as defined in Section 2.8.
"Total Revolving Credit Commitments": at any time, the aggregate amount of
the Revolving Credit Commitments then in effect. The original aggregate amount
of the Total Revolving Credit Commitments is $150,000,000.
"Total Revolving Extensions of Credit": at any time, the aggregate amount
of the Revolving Extensions of Credit of the Revolving Credit Lenders
outstanding at such time.
"Transactions": collectively, each Merger, the Issuance of the New Parent
Senior Notes and the refinancings and repurchases contemplated in Sections
4.16(a) and 5.1(b).
"Transaction Documents": each agreement, Indenture, instrument and other
document set forth on Schedule 5.1(b) pursuant to which the respective
Transactions have been, or shall be, consummated.
"Transferee": as defined in Section 11.14.
"Type": as to any Loan, its nature as a Base Rate Loan or a Eurodollar
Loan.
"UCC": the Uniform Commercial Code as in effect from time to time in the
State of New York.
"Unrestricted Group": ACC and its Subsidiaries and each other Unrestricted
Subsidiary.
"Unrestricted Subsidiary": each Subsidiary of the Parent (other than DOC
and its Subsidiaries) which, from time to time, has been designated as an
"Unrestricted Subsidiary" pursuant to a resolution of the Board of Directors of
the Parent and notified in writing to the Administrative Agent; provided that no
Restricted Subsidiary which is a Guarantor may become an Unrestricted
Subsidiary, and no Unrestricted Subsidiary may become a Restricted Subsidiary,
without the prior written consent of the Administrative Agent (such consent not
to be unreasonably withheld or delayed).
"Voting Power": with respect to any Person, the rights attributable to
ownership of the Capital Stock of any class or kind ordinarily to vote for the
election of directors, managers or other voting members of the governing body of
such Person.
"Wholly Owned Subsidiary": as to any Person, any other Person all of the
Capital Stock of which (other than directors' qualifying shares required by law)
is owned by such Person directly and/or through other Wholly Owned Subsidiaries.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used in
the other Loan Documents or any certificate or other document made or delivered
pursuant hereto or thereto.
(a) As used herein and in the other Loan Documents, and any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
relating to the Parent, the Borrower, DOC and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(c) As used herein and in the other Loan Documents, the word "including"
shall mean "including without limitation".
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(e) All calculations of financial ratios set forth in Section 7.1 and the
calculation of the DOC Leverage Ratio for purposes of determining the Applicable
Margin shall be calculated to the same number of decimal places as the relevant
ratios are expressed in and shall be rounded upward if the number in the decimal
place immediately following the last calculated decimal place is five or
greater. For example, if the relevant ratio is to be calculated to the hundredth
decimal place and the calculation of the ratio is 5.126, the ratio will be
rounded up to 5.13.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. Subject to the terms and conditions hereof, the
Lenders severally agree to make term loans (the "Term Loans") to the Borrower on
the Closing Date in an amount not to exceed the amount of the Term Loan
Commitment of such Lender. The Term Loans may from time to time be Eurodollar
Loans or Base Rate Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.13.
2.2 Procedure for Term Loan Borrowing. The Borrower shall deliver to the
Administrative Agent a Borrowing Notice (which Borrowing Notice must be received
by the Administrative Agent prior to 10:00 A.M., New York City time, one
Business Day prior to the anticipated Closing Date) requesting that the Term
Loan Lenders make the Term Loans on the Closing Date. The Term Loans made on the
Closing Date shall initially be Base Rate Loans, and no Term Loan may be
converted into or continued as a Eurodollar Loan having an Interest Period in
excess of one month prior to the Syndication Date. Upon receipt of such
Borrowing Notice the Administrative Agent shall promptly notify each Term Loan
Lender thereof. Not later than 12:00 Noon, New York City time, on the Closing
Date each Term Loan Lender shall make available to the Administrative Agent at
the Funding Office an amount in immediately available funds equal to the Term
Loan or Term Loans to be made by such Lender. The Administrative Agent shall
make available to the Borrower the aggregate of the amounts made available to
the Administrative Agent by the Term Loan Lenders, in like funds as received by
the Administrative Agent.
2.3 Repayment of Term Loans. The principal balance of the Term Loans of
each Term Loan Lender shall be repayable in consecutive quarterly installments
on the last day of each fiscal quarter of the Borrower ending during the periods
set forth below, each such payment in the applicable quarterly percentage amount
of the Term Loans outstanding on the Closing Date which corresponds to each such
period, as follows:
Quarterly Percentage
Fiscal Quarters Ended Repayment of Term Loans
--------------------- -----------------------
December 31, 2003 through March 31, 2009 0.25%
June 30, 2009 through March 31, 2010 23.625%
; provided that if, on or prior to January 31, 2010, the Existing Parent
Senior Notes have not been refinanced on terms which are not materially less
favorable to the Lenders than the Indenture with respect to the Existing Parent
Senior Notes and with a maturity date which is not earlier than the date which
is seven and one-half years after the Closing Date, then the Term Loans will
mature, and all outstanding amounts thereunder will be repayable on, January 31,
2010. The outstanding principal balance of the Term Loans shall be repaid on
March 31, 2010 (or such earlier maturity date as provided above) to the extent
not otherwise paid prior to such date.
2.4 Revolving Credit Commitments. (a) Subject to the terms and conditions
hereof, the Revolving Credit Lenders severally agree to make revolving credit
loans ("Revolving Credit Loans") to the Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding for each Revolving Credit Lender which, when added to such
Lender's Revolving Credit Percentage of the sum of (i) the L/C Obligations then
outstanding and (ii) the aggregate principal amount of the Swing Line Loans then
outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.5 and 2.13, provided
that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit Loans on the
Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Borrower may borrow under
the Revolving Credit Commitments on any Business Day during the Revolving Credit
Commitment Period, provided that the Borrower shall deliver to the
Administrative Agent a Borrowing Notice (which Borrowing Notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans). Any Revolving Credit Loans made, converted or
continued before the Syndication Date shall be Base Rate Loans or Eurodollar
Loans having an Interest Period of one month. Each borrowing of Revolving Credit
Loans under the Revolving Credit Commitments shall be in an amount equal to (x)
in the case of Base Rate Loans, $1,000,000 or a whole multiple thereof (or, if
the then aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; provided that
the Swing Line Lender may request, on behalf of the Borrower, borrowings of Base
Rate Loans under the Revolving Credit Commitments in other amounts pursuant to
Section 2.7. Upon receipt of any such Borrowing Notice from the Borrower, the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof.
Each Revolving Credit Lender will make its Revolving Credit Percentage of the
amount of each borrowing of Revolving Credit Loans available to the
Administrative Agent for the account of the Borrower at the Funding Office prior
to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent in like funds as received by the Administrative Agent.
2.6 Swing Line Commitment. (a) Subject to the terms and conditions hereof,
the Swing Line Lender agrees that, during the Revolving Credit Commitment
Period, it will make available to the Borrower in the form of swing line loans
("Swing Line Loans") a portion of the credit otherwise available to the Borrower
under the Revolving Credit Commitments; provided that (i) the aggregate
principal amount of Swing Line Loans outstanding at any time shall not exceed
the Swing Line Commitment then in effect (notwithstanding that the Swing Line
Loans outstanding at any time, when aggregated with the Swing Line Lender's
other outstanding Revolving Credit Loans hereunder, may exceed the Swing Line
Commitment then in effect or such Swing Line Lender's Revolving Credit
Commitment then in effect) and (ii) the Borrower shall not request, and the
Swing Line Lender shall not make, any Swing Line Loan if, after giving effect to
the making of such Swing Line Loan, the aggregate amount of the Available
Revolving Credit Commitments would be less than zero. During the Revolving
Credit Commitment Period, the Borrower may use the Swing Line Commitment by
borrowing, repaying and reborrowing, all in accordance with the terms and
conditions hereof. Swing Line Loans shall be Base Rate Loans only.
(b) The Borrower shall repay all outstanding Swing Line Loans on the
Revolving Credit Termination Date.
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans. (a)
The Borrower may borrow under the Swing Line Commitment on any Business Day
during the Revolving Credit Commitment Period, provided that the Borrower shall
give the Swing Line Lender irrevocable telephonic notice confirmed promptly in
writing (which telephonic notice must be received by the Swing Line Lender not
later than 1:00 P.M., New York City time, on the proposed Borrowing Date),
specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date.
Each borrowing under the Swing Line Commitment shall be in an amount equal to
$500,000 or a whole multiple of $100,000 in excess thereof. Not later than 3:00
P.M., New York City time, on the Borrowing Date specified in the borrowing
notice in respect of any Swing Line Loan, the Swing Line Lender shall make
available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the amount of such Swing Line Loan. The
Administrative Agent shall make the proceeds of such Swing Line Loan available
to the Borrower on such Borrowing Date in like funds as received by the
Administrative Agent.
(b) The Swing Line Lender, at any time and from time to time in its sole
and absolute discretion may, on behalf of the Borrower (which hereby irrevocably
directs the Swing Line Lender to act on its behalf), on one Business Day's
notice given by the Swing Line Lender no later than 12:00 Noon, New York City
time, request each Revolving Credit Lender to make, and each Revolving Credit
Lender hereby agrees to make, a Revolving Credit Loan (which shall initially be
a Base Rate Loan), in an amount equal to such Revolving Credit Lender's
Revolving Credit Percentage of the aggregate amount of the Swing Line Loans (the
"Refunded Swing Line Loans") outstanding on the date of such notice, to repay
the Swing Line Lender. Each Revolving Credit Lender shall make the amount of
such Revolving Credit Loan available to the Administrative Agent at the Funding
Office in immediately available funds, not later than 10:00 A.M., New York City
time, one Business Day after the date of such notice. The proceeds of such
Revolving Credit Loans shall be made immediately available by the Administrative
Agent to the Swing Line Lender for application by the Swing Line Lender to the
repayment of the Refunded Swing Line Loans.
(c) If prior to the time a Revolving Credit Loan would have otherwise been
made pursuant to Section 2.7(b), one of the events described in Section 9(f)
shall have occurred and be continuing with respect to the Borrower, or if for
any other reason, as determined by the Swing Line Lender in its sole discretion,
Revolving Credit Loans may not be made as contemplated by Section 2.7(b), each
Revolving Credit Lender shall, on the date such Revolving Credit Loan was to
have been made pursuant to the notice referred to in Section 2.7(b) (the
"Refunding Date"), purchase for cash an undivided participating interest in the
then outstanding Swing Line Loans by paying to the Swing Line Lender an amount
(the "Swing Line Participation Amount") equal to (i) such Revolving Credit
Lender's Revolving Credit Percentage times (ii) the sum of the aggregate
principal amount of Swing Line Loans then outstanding which were to have been
repaid with such Revolving Credit Loans.
(d) Whenever, at any time after the Swing Line Lender has received from any
Revolving Credit Lender such Lender's Swing Line Participation Amount, the Swing
Line Lender receives any payment on account of the Swing Line Loans, the Swing
Line Lender will distribute to such Lender its Swing Line Participation Amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swing Line Loans then due); provided,
however, that in the event that such payment received by the Swing Line Lender
is required to be returned, such Revolving Credit Lender will return to the
Swing Line Lender any portion thereof previously distributed to it by the Swing
Line Lender.
(e) Each Revolving Credit Lender's obligation to make the Loans referred to
in Section 2.7(b) and to purchase participating interests pursuant to Section
2.7(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right which such Revolving Credit Lender or the Borrower may have against
the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 5; (iii) any adverse change in the condition (financial or otherwise) of
the Borrower; (iv) any breach of this Agreement or any other Loan Document by
the Borrower, any other Loan Party or any other Revolving Credit Lender; or (v)
any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
2.8 Repayment of Loans; Evidence of Debt . (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Revolving Credit Lender or Term Loan Lender, as the case may be,
(i) the then unpaid principal amount of each Revolving Credit Loan of such
Revolving Credit Lender on the Revolving Credit Termination Date (or on such
earlier date on which the Loans become due and payable pursuant to Section 9),
(ii) the then unpaid principal amount of each Swing Line Loan of such Swing Line
Lender on the Revolving Credit Termination Date (or on such earlier date on
which the Loans become due and payable pursuant to Section 9) and (iii) the
principal amount of each Term Loan of such Term Loan Lender in installments
according to the amortization schedule set forth in Section 2.3 (or on such
earlier date on which the Loans become due and payable pursuant to Section 9).
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
Section 2.15.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall maintain the
Register pursuant to Section 11.6(d), and a subaccount therein for each Lender,
in which shall be recorded (i) the amount of each Loan made hereunder and any
Note evidencing such Loan, the Type of such Loan and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Administrative Agent
by any Lender, the Borrower will promptly execute and deliver to such Lender a
promissory note of the Borrower evidencing any Term Loans, Revolving Credit
Loans or Swing Line Loans, as the case may be, of such Lender, substantially in
the forms of Exhibit G-1, G-2 or G-3, respectively (a "Term Note", "Revolving
Credit Note" or "Swing Line Note", respectively), with appropriate insertions as
to date and principal amount; provided that delivery of Notes shall not be a
condition precedent to the occurrence of the Closing Date or the making of the
Loans on the Closing Date.
2.9 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Borrower agrees to pay to the Syndication Agent the fees in the
amounts and on the dates previously agreed to in writing by the Borrower and the
Syndication Agent.
(c) The Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates from time to time agreed to in writing by the Borrower
and the Administrative Agent.
2.10 Termination or Reduction of Revolving Credit Commitments. The Borrower
shall have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the aggregate amount of the Revolving Credit
Commitments; provided that no such termination or reduction of Revolving Credit
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Credit Commitments. Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently
the Revolving Credit Commitments then in effect.
2.11 Optional Prepayments. The Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty (except
as otherwise provided herein), upon irrevocable notice delivered to the
Administrative Agent at least three Business Days prior thereto in the case of
Eurodollar Loans and at least one Business Day prior thereto in the case of Base
Rate Loans, which notice shall specify the date and amount of such prepayment,
whether such prepayment is of Term Loans or Revolving Credit Loans, and whether
such prepayment is of Eurodollar Loans or Base Rate Loans; provided that (i) if
a Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.21; (ii) no prior notice is required for the prepayment of
Swing Line Loans; (iii) each such partial prepayment shall be applied pro rata
to the remaining repayment installments thereof pursuant to Section 2.3 and (iv)
the amount of each such partial prepayment of the Term Loans may not be
reborrowed. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein, together with (except in the case of Revolving Credit Loans that are
Base Rate Loans and Swing Line Loans) accrued interest to such date on the
amount prepaid. Partial prepayments of Term Loans and Revolving Credit Loans
shall be in an aggregate principal amount of $1,000,000 or a whole multiple
thereof. Partial prepayments of Swing Line Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple thereof.
2.12 Mandatory Prepayments. (a) Unless the Required Prepayment Lenders
shall otherwise agree, if any Capital Stock shall be issued (excluding any
Capital Stock issued by DOC to the Parent or by a Wholly-Owned Subsidiary of DOC
to the direct parent of such Subsidiary), or any Indebtedness shall be incurred
(excluding any Indebtedness incurred pursuant to Section 7.2 (as such section is
in effect on the date of this Agreement), other than pursuant to Section
7.2(j)), by DOC or any of its Subsidiaries, then on the date of such issuance or
incurrence, the Loans shall be prepaid by an amount equal to the amount of the
Net Cash Proceeds of such issuance or incurrence, as set forth in Section
2.12(d). The provisions of this Section do not constitute a consent to the
issuance of any equity securities by any entity whose equity securities are
pledged pursuant to the Guarantee and Collateral Agreement, or a consent to the
incurrence of any Indebtedness by DOC or any of its Subsidiaries.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if on any
date DOC or any of its Subsidiaries shall receive Net Cash Proceeds from any
Asset Sale, Purchase Price Refund or Recovery Event then, unless a Reinvestment
Notice shall be delivered in respect thereof (which may be delivered, and
pursuant to which any such reinvestment may be made, only if no Default or Event
of Default has occurred which is continuing), within 20 days following the date
of receipt by DOC or any of its Subsidiaries of such Net Cash Proceeds, the
Loans shall be prepaid by an amount equal to the amount of such Net Cash
Proceeds, as set forth in Section 2.12(d); provided that, notwithstanding the
foregoing, on each Reinvestment Prepayment Date the Loans shall be prepaid by an
amount equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event, as set forth in Section 2.12(d). The provisions of this
Section do not constitute a consent to the consummation of any Disposition not
permitted by Section 7.5.
(c) Unless the Required Prepayment Lenders shall otherwise agree, if, at
the end of any fiscal year of DOC, the Parent Leverage Ratio for the preceding
four fiscal quarters is equal to or greater than 4.15 to 1, the Loans shall be
prepaid by an amount equal to 50% of such Excess Cash Flow, as set forth in
Section 2.12(d). Each such prepayment shall be made on a date (an "Excess Cash
Flow Application Date") no later than five days after the earlier of (i) the
date on which the financial statements of DOC referred to in Section 6.1(a), for
the fiscal year with respect to which such prepayment is made, are required to
be delivered to the Lenders and (ii) the date such financial statements are
actually delivered.
(d) (i) Amounts to be applied in connection with prepayments and Commitment
reductions made pursuant to this Section shall be applied, subject as provided
in clause (d)(ii) below, first, to the prepayment of the Term Loans and, second,
to the prepayment of the Revolving Credit Loans outstanding (but without
reducing the Revolving Credit Commitment). Each such prepayment of the Term
Loans shall be applied pro rata to reduce the remaining repayment installments
thereof pursuant to Section 2.3; provided that the amounts prepaid with respect
to the Term Loans may not be reborrowed. (ii) Notwithstanding the foregoing, any
Term Loan Lender may, at its option, elect not to accept such mandatory
prepayment of its Term Loan (any Term Loan Lender making such election being a
"Declining Lender") as follows: each Declining Lender shall give written notice
thereof to the Administrative Agent not later than 10:00 a.m. New York City time
on the Business Day preceding the date (as notified to each Term Loan Lender by
the Administrative Agent pursuant to a notice substantially in the form of
Exhibit H) of the applicable prepayment. On such date of prepayment, (x) an
amount equal to that portion of the Term Loans then to be prepaid to the Term
Loan Lenders (less the amount thereof that would otherwise be payable to
Declining Lenders) shall be paid to the Term Loan Lenders that are not Declining
Lenders and (y) an amount equal to that portion of the Term Loans that would
otherwise be payable to Declining Lenders shall be applied first in further
prepayment of the Term Loans held by Term Loan Lenders that are not Declining
Lenders (to the extent that they have not declined such further prepayment) and
second to the prepayment of the Revolving Credit Loans outstanding, in each case
on the basis provided in clause (d)(i) above. In the event that the
Administrative Agent has not, with respect to any mandatory prepayment, received
a notice from a Term Loan Lender in accordance with this clause (d)(ii), such
Term Loan Lender shall be deemed to have waived its rights under this clause
(d)(ii) to decline receipt thereof.
2.13 Conversion and Continuation Options. (a) The Borrower may elect from
time to time to convert Eurodollar Loans to Base Rate Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may be made
only on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefor), provided that no Base Rate Loan under a particular
Facility may be converted into a Eurodollar Loan (i) when any Event of Default
has occurred and is continuing and the Administrative Agent has, or the Majority
Facility Lenders in respect of such Facility have, determined in its or their
sole discretion not to permit such conversions or (ii) after the date that is
one month prior to the final scheduled termination or maturity date of such
Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) The Borrower may elect to continue any Eurodollar Loan as such upon the
expiration of the then current Interest Period with respect thereto by giving
irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan under a particular Facility may be continued as such (i)
when any Event of Default has occurred and is continuing and the Administrative
Agent has, or the Majority Facility Lenders in respect of such Facility have,
determined in its or their sole discretion not to permit such continuations or
(ii) after the date that is one month prior to the final scheduled termination
or maturity date of such Facility, and provided, further, that if the Borrower
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso, such
Loans shall be converted automatically to Base Rate Loans on the last day of
such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to
such elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than ten Eurodollar Tranches shall be outstanding at any one time.
2.15 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin in effect for such day.
(b) Each Base Rate Loan shall bear interest for each day on which it is
outstanding at a rate per annum equal to the Base Rate in effect for such day
plus the Applicable Margin in effect for such day.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) (to the extent legally permitted) shall
bear interest at a rate per annum that is equal to (x) in the case of the Loans,
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2% or (y) in the case of Reimbursement
Obligations, the rate applicable to Base Rate Loans under the Revolving Credit
Facility plus 2%, and (ii) if all or a portion of any interest payable on any
Loan or Reimbursement Obligation or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate then applicable to Base Rate Loans under the
relevant Facility plus 2% (or, in the case of any such other amounts that do not
relate to a particular Facility, the rate then applicable to Base Rate Loans
under the Revolving Credit Facility plus 2%), in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until such amount
is paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (c) of this Section shall
be payable from time to time on demand.
2.16 Computation of Interest and Fees. (a) Interest, fees, commissions
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to Base Rate Loans on which
interest is calculated on the basis of the Prime Rate, the interest thereon
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.15(a).
2.17 Inability to Determine Interest Rate. If prior to the first day of any
Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Majority
Facility Lenders in respect of the relevant Facility that the Eurodollar Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest
Period, the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the relevant Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans under the relevant
Facility requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (y) any Loans under the relevant Facility that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans
under the relevant Facility shall be converted, on the last day of the then
current Interest Period with respect thereto, to Base Rate Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans under the relevant Facility shall be made or continued as such, nor shall
the Borrower have the right to convert Loans under the relevant Facility to
Eurodollar Loans.
2.18 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower
from the Lenders hereunder, each payment by the Borrower on account of any
commitment fee or Letter of Credit fee, and any reduction of the Commitments of
the Lenders, shall be made pro rata according to the respective Term Loan
Percentages or Revolving Credit Percentages, as the case may be, of the relevant
Lenders. Each payment (other than as provided in Section 2.12(d)) in respect of
principal or interest in respect of the Term Loans and each payment in respect
of fees payable hereunder shall be applied to the amounts of such obligations
owing to the Lenders pro rata according to the respective amounts then due and
owing to the Lenders.
(b) The application of any payment of Loans under any Facility (including
optional and mandatory prepayments) shall be made, first, to Base Rate Loans
under such Facility and, second, to Eurodollar Loans under such Facility. Each
payment of the Loans (except in the case of Swing Line Loans and Revolving
Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest
to the date of such payment on the amount paid.
(c) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the relevant Lenders, at the Payment Office, in Dollars and in
immediately available funds. Any payment made by the Borrower after 12:00 Noon,
New York City time, on any Business Day shall be deemed to have been on the next
following Business Day. The Administrative Agent shall distribute such payments
to the Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In the case of
any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.
(d) Unless the Administrative Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its share of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Effective Rate for the period until
such Lender makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent submitted to any Lender with respect
to any amounts owing under this paragraph shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available
to the Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to Base Rate Loans
under the relevant Facility, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by
the Borrower prior to the date of any payment due to be made by the Borrower
hereunder that the Borrower will not make such payment to the Administrative
Agent, the Administrative Agent may assume that the Borrower is making such
payment, and the Administrative Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Lenders their respective
pro rata shares of a corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days after such due
date, the Administrative Agent shall be entitled to recover, on demand, from
each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate. Nothing herein shall be
deemed to limit the rights of the Administrative Agent or any Lender against the
Borrower.
2.19 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any Application or any
Eurodollar Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered by
Section 2.20 and changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any change
in any Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such corporation for such
reduction; provided that the Borrower shall not be required to compensate a
Lender pursuant to this paragraph for any amounts incurred more than six months
prior to the date that such Lender notifies the Borrower of such Lender's
intention to claim compensation therefor; and provided further that, if the
circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect.
(c) A certificate as to any additional amounts payable pursuant to this
Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.20 Taxes. (a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
net income taxes and franchise taxes (imposed in lieu of net income taxes)
imposed on any Agent or any Lender as a result of a present or former connection
between such Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from such
Agent's or such Lender's having executed, delivered or performed its obligations
or received a payment under, or enforced, this Agreement or any other Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings ("Non-Excluded Taxes") or any Other Taxes are
required to be withheld from any amounts payable to any Agent or any Lender
hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement; provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
such Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph (a).
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agents and the Lenders
for any incremental taxes, interest or penalties that may become payable by any
Agent or any Lender as a result of any such failure. The agreements in this
Section shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or resident of the
United States of America, a corporation, partnership or other entity created or
organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest" a statement substantially in the form of
Exhibit I and a Form W-8BEN, or any subsequent versions thereof or successors
thereto properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's reasonable judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
2.21 Indemnity. The Borrower agrees to indemnify each Lender for, and to
hold each Lender harmless from, any loss or expense that such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment or conversion of Eurodollar Loans on
a day that is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank Eurodollar
market. A certificate as to any amounts payable pursuant to this Section
submitted to the Borrower by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.22 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (b)
such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 2.21.
2.23 Change of Lending Office. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 2.19, 2.20(a) or 2.22 with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans affected by such event with the object of
avoiding the consequences of such event; provided that such designation is made
on terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no economic, legal or regulatory disadvantage, and
provided, further, that nothing in this Section shall affect or postpone any of
the obligations of any Borrower or the rights of any Lender pursuant to Section
2.19, 2.20(a) or 2.22.
2.24 Replacement of Lenders under Certain Circumstances. The Borrower shall
be permitted to replace any Lender that (a) requests reimbursement for amounts
owing pursuant to Section 2.19 or 2.20 or gives a notice of illegality pursuant
to Section 2.22 or (b) defaults in its obligation to make Loans hereunder, with
a replacement financial institution; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under Section 2.23 so
as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.19 or 2.20 or to eliminate the illegality referred to in such notice
of illegality given pursuant to Section 2.22, (iv) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the Borrower shall
be liable to such replaced Lender under Section 2.21 (as though Section 2.21
were applicable) if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 11.6 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) the Borrower shall
pay all additional amounts (if any) required pursuant to Section 2.19 or 2.20,
as the case may be, in respect of any period prior to the date on which such
replacement shall be consummated, and (ix) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof, each
Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in Section 3.4(a), agrees to issue letters of credit (the
"Letters of Credit") for the account of the Borrower on any Business Day during
the Revolving Credit Commitment Period in such form as may be approved from time
to time by such Issuing Lender; provided that no such Letter of Credit shall be
issued if, after giving effect to such issuance, (i) the L/C Obligations plus
the aggregate amount of Indebtedness outstanding at such time pursuant to
Section 7.2(k) would exceed the L/C Commitment or (ii) the aggregate amount of
the Available Revolving Credit Commitments would be less than zero. Each Letter
of Credit shall (i) be denominated in Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
which is five Business Days prior to the Revolving Credit Termination Date;
provided that any Letter of Credit with a one-year term may provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above).
(b) No Issuing Lender shall at any time be obligated to issue any Letter of
Credit hereunder if such issuance would conflict with, or cause such Issuing
Lender or any L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may from time
to time request that an Issuing Lender issue a Letter of Credit by delivering to
such Issuing Lender at its address for notices specified herein an Application
therefor, completed to the satisfaction of such Issuing Lender, and such other
certificates, documents and other papers and information as such Issuing Lender
may request. Upon receipt of any Application, an Issuing Lender will process
such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower
(but in no event shall any Issuing Lender be required to issue any Letter of
Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto). Each Issuing Lender shall promptly give notice to
the Administrative Agent of its receipt of each Application for the issuance of
a Letter of Credit (including the amount thereof). Upon the issuance by an
Issuing Lender of a Letter of Credit, such Issuing Lender shall furnish a copy
of such Letter of Credit to each of the Borrower and the Administrative Agent.
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on the
aggregate drawable amount of all outstanding Letters of Credit at a per annum
rate equal to the Applicable Margin then in effect with respect to Eurodollar
Loans under the Revolving Credit Facility, shared ratably among the Revolving
Credit Lenders in accordance with their respective Revolving Credit Percentages
and payable quarterly in arrears on each L/C Fee Payment Date after the issuance
date. In addition, the Borrower shall pay to the relevant Issuing Lender for its
own account a fronting fee on the aggregate drawable amount of all outstanding
Letters of Credit issued by it of 1/4 of 1% per annum, payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the Borrower shall pay or reimburse
each Issuing Lender for such normal and customary costs and expenses as are
incurred or charged by such Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees to grant
and hereby grants to each L/C Participant, and, to induce each Issuing Lender to
issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from each Issuing Lender,
on the terms and conditions hereinafter stated, for such L/C Participant's own
account and risk, an undivided interest equal to such L/C Participant's
Revolving Credit Percentage in each Issuing Lender's obligations and rights
under each Letter of Credit issued by such Issuing Lender hereunder and the
amount of each draft paid by such Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with each Issuing Lender
that, if a draft is paid under any Letter of Credit issued by such Issuing
Lender for which such Issuing Lender is not reimbursed in full by the Borrower
in accordance with the terms of this Agreement, such L/C Participant shall pay
upon demand to the Administrative Agent (for the account of such Issuing Lender)
at the Administrative Agent's address for notices specified herein, and the
Administrative Agent shall promptly thereafter pay to such Issuing Lender, an
amount equal to such L/C Participant's Revolving Credit Percentage of the amount
of such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to an Issuing
Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any
payment made by such Issuing Lender under any Letter of Credit is paid to such
Issuing Lender within three Business Days after the date such payment is due,
such Issuing Lender shall so notify the Administrative Agent who shall promptly
notify such L/C Participant and such L/C Participant shall pay upon demand to
the Administrative Agent (for the account of such Issuing Lender), and the
Administrative Agent shall promptly thereafter pay to such Issuing Lender, an
amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to such Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to such Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the
Administrative Agent on behalf of such Issuing Lender shall be entitled to
recover from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to Base Rate
Loans under the Revolving Credit Facility. A certificate of the Administrative
Agent submitted on behalf of any Issuing Lender to any L/C Participant with
respect to any such amounts owing under this Section shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made payment under
any Letter of Credit and has received from the Administrative Agent any L/C
Participant its pro rata share of such payment in accordance with Section
3.4(a), such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of
collateral applied thereto by such Issuing Lender), or any payment of interest
on account thereof, such Issuing Lender will distribute to the Administrative
Agent for the account of such L/C Participant, and the Administrative Agent
shall promptly thereafter pay to such L/C Participant, its pro rata share
thereof; provided, however, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to the Administrative Agent (for the account
of such Issuing Lender), and the Administrative Agent shall promptly thereafter
pay to such Issuing Lender, the portion thereof previously distributed by such
Issuing Lender and received by such L/C Participant.
3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
reimburse each Issuing Lender, on each date on which such Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by such Issuing Lender, for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment (the amounts
described in the foregoing clauses (a) and (b) in respect of any drawing,
collectively, the "Payment Amount"). Each such payment shall be made to such
Issuing Lender at its address for notices specified herein in lawful money of
the United States of America and in immediately available funds. Interest shall
be payable on each Payment Amount from the date of the applicable drawing until
payment in full at the rate set forth in (i) until the second Business Day
following the date of the applicable drawing, Section 2.15(b) and (ii)
thereafter, Section 2.15(c). Each drawing under any Letter of Credit shall
(unless an event of the type described in clause (i) or (ii) of Section 9(f)
shall have occurred and be continuing with respect to the Borrower, in which
case the procedures specified in Section 3.4 for funding by L/C Participants
shall apply) constitute a request by the Borrower to the Administrative Agent
for a borrowing pursuant to Section 2.5 of Base Rate Loans (or, at the option of
the Administrative Agent and the Swing Line Lender in their sole discretion, a
borrowing pursuant to Section 2.7 of Swing Line Loans) in the amount of such
drawing. The Borrowing Date with respect to such borrowing shall be the first
date on which a borrowing of Revolving Credit Loans (or, if applicable, Swing
Line Loans) could be made, pursuant to Section 2.5 (or, if applicable, Section
2.7), if the Administrative Agent had received a notice of such borrowing at the
time the Administrative Agent receives notice from the relevant Issuing Lender
of such drawing under such Letter of Credit.
3.6 Obligations Absolute. The Borrower's obligations under this Section 3
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that the Borrower
may have or have had against any Issuing Lender, any beneficiary of a Letter of
Credit or any other Person. The Borrower also agrees with each Issuing Lender
that such Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Lender
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Issuing Lender.
The Borrower agrees that any action taken or omitted by an Issuing Lender under
or in connection with any Letter of Credit issued by it or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards or care specified in the UCC, shall be binding
on the Borrower and shall not result in any liability of such Issuing Lender to
the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for payment
under any Letter of Credit, the relevant Issuing Lender shall promptly notify
each of the Borrower and the Administrative Agent of the date and amount
thereof. The responsibility of the relevant Issuing Lender to the Borrower in
connection with any draft presented for payment under any Letter of Credit, in
addition to any payment obligation expressly provided for in such Letter of
Credit issued by such Issuing Lender, shall be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment appear on their face to be in conformity with
such Letter of Credit.
3.8 Applications. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and to
make the Loans and issue or participate in the Letters of Credit, DOC and the
Borrower hereby jointly and severally represent and warrant to each Agent and
each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma consolidated balance
sheet of each of the Parent and its consolidated Subsidiaries (other than ACC
and its Subsidiaries), each as of June 30, 2003 (including the notes thereto)
(the "Pro Forma Balance Sheets"), copies of which have heretofore been furnished
to each Lender, has been prepared giving effect (as if such events had occurred
on such date) to (x) the consummation of each of the Transactions, (y) the Loans
to be made on the Closing Date and the use of proceeds thereof (including
towards the Refinancing) and (z) the payment of fees and expenses in connection
with the foregoing. The Pro Forma Balance Sheets have been prepared based on the
best information available to the Parent as of the date of delivery thereof, and
presents fairly on a pro forma basis the estimated financial position of the
Parent and its consolidated Subsidiaries (other than ACC and its Subsidiaries),
as of June 30, 2003, assuming that the events specified in the preceding
sentence had actually occurred at such date.
(b) The audited consolidated balance sheets of the Parent as at December
31, 2001 and December 31, 2002, and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates, reported on
by and accompanied by an unqualified report from KPMG LLP, present fairly the
consolidated financial condition of the Parent as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. The unaudited consolidated balance sheet of
the Parent as at June 30, 2003, and the related unaudited consolidated
statements of income and cash flows for the six-month period ended on such date,
present fairly the consolidated financial condition of the Parent as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the six-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). The Parent, DOC and their respective
Subsidiaries do not have any material Guarantee Obligations, contingent
liabilities and liabilities for Taxes, or any long-term leases or unusual
forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph. During the period from June 30, 2003 to and
including the date hereof there has been no Disposition by any of the Parent,
DOC and their respective Subsidiaries of any material part of its business or
Property.
4.2 No Change. Since December 31, 2002 there has been no development or
event that has had or could reasonably be expected to have a Material Adverse
Effect.
4.3 Corporate Existence; Compliance with Law; Authorizations. Each of the
Parent, the Borrower, DOC and its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right, to
own and operate its Property, to lease the Property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of Property or the conduct of its
business requires such qualification, (e) is in compliance with all Requirements
of Law except to the extent that the failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect and (f)
possesses all Authorizations, franchises, permits, licenses, certificates of
compliance, and approvals and grants of authority necessary in the conduct each
of its respective businesses, and the same are valid, binding, enforceable, and
subsisting without any defaults thereunder or enforceable adverse limitations
thereon and are not subject to any proceedings or claims opposing the issuance,
development, or use thereof or contesting the validity thereof except to the
extent that failure to comply with any of the foregoing pursuant to this clause
(f) could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect .
4.4 Corporate Power; Authorization; Enforceable Obligations. Each Loan
Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents and the Transaction Documents to which it
is a party and, in the case of the Borrower, to borrow hereunder. Each Loan
Party has taken all necessary corporate or other action to authorize the
execution, delivery and performance of the Loan Documents and the Transaction
Documents to which it is a party and, in the case of the Borrower, to authorize
the borrowings on the terms and conditions of this Agreement. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
Transactions, the borrowings hereunder or the execution, delivery, performance,
validity or enforceability of this Agreement, any of the other Loan Documents or
the Transaction Documents, except (i) consents, authorizations, filings and
notices described in Schedule 4.4, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect and (ii) the
filings referred to in Section 4.19. Each Loan Document and each Transaction
Document has been duly executed and delivered on behalf of each Loan Party that
is a party thereto. This Agreement constitutes, and each other Loan Document and
Transaction Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party that is a party thereto, enforceable against each
such Loan Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this Agreement
and the other Loan Documents, the issuance of Letters of Credit, the borrowings
hereunder and the use of the proceeds thereof, and the closing of the
Transactions, will not violate any Requirement of Law, any Authorization or any
Contractual Obligation of the Parent, DOC or any of its Subsidiaries and will
not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any Requirement of Law, any
Authorization or any such Contractual Obligation (other than the Liens created
by the Security Documents). No Requirement of Law, Authorization or Contractual
Obligation applicable to DOC or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
4.6 No Material Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Parent, the Borrower or DOC, threatened by or against the
Parent, DOC or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to be adversely determined and, if so determined, could reasonably be
expected to have a Material Adverse Effect. Schedule 4.6 sets forth any such
litigation, investigation or proceeding which could, if adversely determined,
have a Material Adverse Effect.
4.7 No Default. None of the Parent, DOC or any of its Subsidiaries is in
default under or with respect to any of its Authorizations or Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred which is continuing.
4.8 Ownership of Property; Liens. Each of the Parent, DOC and its
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its real property, and marketable title to, or a valid leasehold interest in,
all its other Property, and none of such Property is subject to any Lien except
as permitted by Sections 7.3 or 8.2 (as applicable). As of the Closing Date,
none of DOC and its Subsidiaries own any fee interest in any tract (or series of
tracts at the same location) of real property which has a Fair Market Value
(together with improvements thereof) of $3,000,000 or more.
4.9 Intellectual Property. Each of the Parent, DOC and its Subsidiaries
owns, or is licensed to use, all Intellectual Property necessary for the conduct
of its business as currently conducted. No material claim has been asserted and
is pending by any Person challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual Property, nor does
the Parent, DOC or the Borrower know of any valid basis for any such claim. The
use of Intellectual Property by The Parent, DOC and its Subsidiaries does not
infringe on the rights of any Person in any material respect.
4.10 Taxes. Each of the Parent, the Borrower, DOC and each of its
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all Taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its Property and all other Taxes, fees or other charges imposed on it or
any of its Property by any Governmental Authority (other than the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Parent, DOC or its Subsidiaries, as the case may
be); and no Lien for Taxes has been filed, and, to the knowledge of the Parent,
the Borrower and DOC, no claim is being asserted, with respect to any such Tax,
fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans will be used
for "purchasing" or "carrying" any "margin stock" within the respective meanings
of each of the quoted terms under Regulation U as now and from time to time
hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1 referred to in Regulation U.
4.12 Labor Matters. There are no strikes or other labor disputes against
the Parent, DOC or any of its Subsidiaries pending or, to the knowledge of the
Parent, the Borrower, DOC, threatened that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect. Hours worked by
and payment made to employees of the Parent, the Borrower, DOC and its
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Requirement of Law dealing with such matters that (individually
or in the aggregate) could reasonably be expected to have a Material Adverse
Effect. All payments due from the Parent, DOC or any of its Subsidiaries on
account of employee health and welfare insurance that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect if not
paid have been paid or accrued as a liability on the books of the Parent, the
Borrower, DOC or the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan that
has resulted or could reasonably be expected to result in a material liability
under ERISA, and neither the Borrower nor any Commonly Controlled Entity would
become subject to any material liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. (a) The Subsidiaries listed on Schedule 4.15(a)
constitute all the Subsidiaries of the Parent at the date hereof and the Closing
Date. Schedule 4.15(a) sets forth as of the Closing Date the name and
jurisdiction of incorporation of each such Subsidiary and, as to DOC and each of
its Subsidiaries, the percentage of each class of Capital Stock owned by any
Loan Party.
(b) There are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments of any nature relating to any Capital
Stock of DOC or any of its Subsidiaries.
(c) None of DOC or its Subsidiaries owns any Capital Stock of any
Subsidiary of Parent which is not a Subsidiary of the Borrower or DOC.
(d) The number and percentage of shares of partnership interests in each of
the Cellular Partnerships, and the ownership thereof, are set forth on Schedule
4.15(d); all such partnership interests are validly issued under the terms of
the applicable Partnership Agreements and applicable Law; and any ownership
thereof by any Loan Party is free and clear of any Liens or security interests
or other contractual restrictions (except any restrictions set forth on Schedule
4.15(d)), other than the pledge thereof pursuant to the Collateral Documents. As
of the date hereof and the Closing Date, Schedule 4.15(d) sets forth all
Indebtedness which is owed to DOC or any of its Subsidiaries by any of their
respective Affiliates or by GRTI.
4.16 Use of Proceeds. (a) The proceeds of the Term Loans shall be used:
(i)(x) to repurchase, on or before November 15, 2003, all or substantially all
of the Existing Xxxxxx/Sygnet Senior Notes (and pending such application such
proceeds of the Term Loans shall be held in a cash collateral account maintained
with the Administrative Agent as security for the Obligations) and (y) to pay,
on the Closing Date, all outstanding amounts under the Existing Sygnet Wireless
Credit Facility; (ii) to repay to the Parent the intercompany loans made by the
Parent on September 26, 2003 (x) to the Borrower (made in the amount of
$197,000,000 to prepay certain Indebtedness under the Existing Sygnet Wireless
Credit Facility) and (y) to DOC (made in the amount of $70,000,000 to prepay
certain Indebtedness under the Existing DOC Credit Facility) provided that (1)
the portion of Term Loans applied pursuant to clause (ii)(y) shall be advanced
by the Borrower to DOC as an unsecured loan (subordinated to the Obligations on
terms acceptable to the Administrative Agent) and (2) the Parent shall apply the
proceeds of the Term Loans received by it pursuant to this clause (ii) in the
redemption, on or before November 15, 2003, of $250,000,000 in aggregate
liquidation preference of the Parent 12.25% Senior Exchangeable Preferred Stock
(and pending such application by the Parent such proceeds of the Term Loans
shall be held in a cash collateral account maintained with the Administrative
Agent as security for the Obligations); (iii) for general corporate purposes of
the Borrower, DOC and its Subsidiaries (including the redemption or purchase of
the portion of the Existing Xxxxxx/Sygnet Senior Notes remaining after giving
effect to the repurchase referred to in clause (i)(x) above); and (iv) to pay
related fees and expenses.
(b) The proceeds of the Revolving Credit Loans and the Swing Line Loans,
and the Letters of Credit shall be used, following the Closing Date, for general
corporate purposes of the Borrower, DOC and its Subsidiaries, including making
Permitted Acquisitions.
4.17 Environmental Matters. Other than exceptions to any of the following
that could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect:
(a) DOC and its Subsidiaries: (i) are, and within the period of all
applicable statutes of limitation have been, in compliance with all applicable
Environmental Laws except to the extent that the foregoing could not reasonably
be expected to result in any of them having a liability for a Material
Environmental Amount; (ii) hold all Environmental Permits (each of which is in
full force and effect) required for any of their current or intended operations
or for any property owned, leased, or otherwise operated by any of them; (iii)
are, and within the period of all applicable statutes of limitation have been,
in material compliance with all of their Environmental Permits; and (iv)
reasonably believe that: (x) each of their material Environmental Permits will
be timely renewed and complied with, without material expense, (y) any
additional Environmental Permits that may be required of any of them will be
timely obtained and complied with, without material expense and (z) compliance
with any Environmental Law that is or is expected to become applicable to any of
them will be timely attained and maintained, without material expense.
(b) Materials of Environmental Concern are not present at, on, under, in,
or about any real property owned, leased or operated by DOC or any of its
Subsidiaries, or at any other location (including any location to which
Materials of Environmental Concern have been sent for re-use or recycling or for
treatment, storage, or disposal) which could reasonably be expected to (i) give
rise to any cost or liability (in either case for a Material Environmental
Amount) of DOC or any of its Subsidiaries under any applicable Environmental
Law, or (ii) materially interfere with the Borrower's, DOC's or any of its
Subsidiaries' continued operations, or (iii) materially impair the fair saleable
value of any material real property owned or leased by DOC or any of its
Subsidiaries.
(c) There is no judicial, administrative, or arbitral proceeding (including
any notice of violation or alleged violation) under or relating to any
Environmental Law to which DOC or any of its Subsidiaries is, or to the
knowledge of DOC or any of its Subsidiaries will be, named as a party that is
pending or, to the knowledge of DOC or any of its Subsidiaries, threatened which
has resulted or could reasonably be expected to result in any of them having a
liability for a Material Environmental Amount.
(d) None of the Borrower, DOC and its Subsidiaries has received any written
request for information, or been notified that it is a potentially responsible
party under or relating to the federal Comprehensive Environmental Response,
Compensation, and Liability Act or any similar Environmental Law, or with
respect to any Materials of Environmental Concern which has resulted or could
reasonably be expected to result in any of them having a liability for a
Material Environmental Amount.
(e) Neither the Borrower, DOC nor any of its Subsidiaries has entered into
or agreed to any consent decree, order, or settlement or other agreement, or is
subject to any judgment, decree, or order or other agreement, in any judicial,
administrative, arbitral, or other forum for dispute resolution, relating to
compliance with or liability under any Environmental Law which has resulted or
could reasonably be expected to result in any of them having a liability for a
Material Environmental Amount.
(f) Neither the Borrower, DOC nor any of its Subsidiaries has assumed or
retained, by contract or operation of law, any material liabilities of any kind,
fixed or contingent under any Environmental Law or with respect to any Material
of Environmental Concern which has resulted or could reasonably be expected to
result in any of them having a liability for a Material Environmental Amount.
4.18 Accuracy of Information, etc. No statement or information contained in
this Agreement, any other Loan Document, the Confidential Information Memorandum
or any other document, certificate or statement furnished to the Administrative
Agent or the Lenders or any of them, by or on behalf of any Loan Party for use
in connection with the transactions contemplated by this Agreement or the other
Loan Documents, contained as of the date such statement, information, document
or certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading. The projections and pro
forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount. There is no fact known to any Loan Party that
could reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, in the Confidential
Information Memorandum or in any other documents, certificates and statements
furnished to the Agents and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents.
4.19 Security Documents. (a) The Guarantee and Collateral Agreement is
effective to create in favor of the Administrative Agent, for the benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. The Guarantee and Collateral
Agreement constitutes a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in the Collateral and the proceeds
thereof, as security for the Obligations (as defined in the Guarantee and
Collateral Agreement), in each case prior and superior in right to any other
Person, except in the case of Collateral other than Pledged Stock (x) Liens
permitted by Section 7.3 and (y) as otherwise expressly permitted by Section 4.3
of the Guarantee and Collateral Agreement. Schedule 4.19(a)-2 lists each UCC
Financing Statement that (i) names any Loan Party as debtor and (ii) will remain
on file after the Closing Date with respect to Liens permitted by Section 7.3
which do not secure the Obligations. Schedule 4.19(a)-3 lists each UCC Financing
Statement that (i) names any Loan Party as debtor and (ii) will be terminated on
or prior to the Closing Date (including each such UCC Financing Statement with
respect to the Existing Credit Facilities); and on or prior to the Closing Date,
the Borrower will have delivered to the Administrative Agent, or caused to be
filed, duly completed UCC termination statements, authorized or authenticated by
the relevant secured party, in respect of each such UCC Financing Statement
listed in Schedule 4.19(a)-3.
(b) Each of the Mortgages executed and delivered pursuant to Section 6.10
(b) shall, upon such execution and delivery, be effective to create in favor of
the Administrative Agent, for the benefit of the Secured Parties, a legal, valid
and enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof; and when the Mortgages are filed in the recording office designated by
the Borrower, each Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties described therein and the proceeds thereof, as security for
the Obligations (as defined in the relevant Mortgage), in each case prior and
superior in right to any other Person (other than Persons holding Liens or other
encumbrances or rights permitted by the relevant Mortgage).
4.20 Solvency. Each Loan Party is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith, and to the consummation of the Transactions and the
other transactions contemplated hereby, will be and will continue to be,
Solvent.
4.21 Senior Indebtedness. The Loans made to the Borrower and the Guarantee
Obligations of each Guarantor with respect thereto each rank at least pari passu
with, respectively, all other Indebtedness and Guarantee Obligations of the
Borrower and such Guarantor.
4.22 Regulation H. No Mortgage encumbers improved real property which is
located in an area that has been identified by the Secretary of Housing and
Urban Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of 1968
(except any Mortgaged Properties as to which such flood insurance as required by
Regulation H has been obtained and is in full force and effect as required by
this Agreement).
4.23 Material Agreements; Management Agreements. Schedule 4.23 sets forth
all contracts material to the respective business of DOC and its Subsidiaries
(including with respect to the Systems) (the "Material Agreements"), and there
exists no material default under any of such contracts. There are no failures of
any material written or oral agreements, contracts, commitments, or
understandings to which any Loan Party is a party to be in full force and effect
which could reasonably be expected have a Material Adverse Event, and no default
or potential default exists on the part of any Loan Party thereunder which could
reasonably be expected have a Material Adverse Event. Except as set forth on
Schedule 4.23: (i) no Loan Party is a party to any material management or
consulting agreement for the provision of services to it and (ii) the Parent has
not entered into any contract which is material to its business since the date
of issuance of the New Parent Senior Notes.
4.24 Permitted Acquisitions. With respect to any Permitted Acquisition
(including any Permitted Asset Swap) (a) each acquiring Person has the power and
authority under the Laws of its state of incorporation or organization and under
its articles of incorporation and bylaws, organizational documents, or
Partnership Agreement, as applicable, to enter into and perform the related
acquisition agreement to which it is a party and all other agreements,
documents, and actions required thereunder; and all actions (corporate or
otherwise) necessary or appropriate by such acquiring Person for the execution
and performance of such acquisition agreements, and all other documents,
agreements, and actions required thereunder, have been taken, and, upon their
execution, such acquisition agreements will constitute the valid and binding
obligation of each acquiring Person party thereto, enforceable in accordance
with their respective terms and (b) the making and performance of the related
Acquisition agreements, and all other agreements, documents, and actions
required thereunder, will not violate any provision of any Requirements of Law
and will not violate any provisions of the articles of incorporation, bylaws, or
Partnership Agreements of such acquiring Person, or constitute a default under
any agreement by which it or its property may be bound.
4.25 FCC and PUC Matters. (a) Set forth on Schedule 4.25 is a complete
list, as of the Closing date, of all FCC Licenses and the expiration date
thereof and each such FCC License is owned by the Borrower or one of its
Subsidiaries.
(b) Each of DOC and its Subsidiaries has all requisite power and authority,
all necessary FCC Licenses required under the Communications Act, and all
necessary PUC Authorizations to own and operate its properties and to carry on
its businesses as now conducted. Each such FCC License and each such PUC
Authorization (i) was validly issued to it and is in full force and effect, and
(ii) constitutes in all material respects all of the Authorizations from any
Communications Regulatory Authority necessary for the operation of DOC and its
Subsidiaries' business in the same manner as it is presently conducted.
(c) On and after the Closing Date, the Borrower and the Subsidiary
Guarantors (collectively) directly own FCC Licenses for licensed areas
representing at least 90% of the Pops of all licensed areas for which FCC
Licenses are owned by DOC and its Subsidiaries.
(d) Each of DOC and its Subsidiaries have taken all material actions and
performed all of their material obligations that are necessary to maintain each
FCC License and each PUC Authorization without adverse modification or
impairment and no event has occurred which (i) results in, or after notice or
lapse of time or both would result in, any revocation, suspension, materially
adverse modification, non-renewal or termination, material impairment of value
of, or any materially adverse order of forfeiture with respect to, any FCC
License or (ii) materially and adversely affects or in the future may materially
adversely affect any of the rights of DOC or any Subsidiary thereof with respect
to any FCC License or PUC Authorization.
(e) None of the DOC or any of its Subsidiaries (i) is a party to or has
knowledge of any investigation, notice of apparent liability, violation,
forfeiture or other order or complaint issued by or before any court or
regulatory body, including the FCC, or of any other proceedings (other than
proceedings relating to the wireless industries generally) which could in any
manner threaten or adversely affect the validity or continued effectiveness of
its or its Subsidiaries' FCC Licenses or PUC Authorizations or (ii) has any
reason to believe (other than in connection with there being no legal assurance
thereof) that any FCC License will not be renewed in the ordinary course.
(f) No approval by any Governmental Authority of a transfer of control of
any FCC License or any PUC Authorization would be required in the event that any
present stockholder (other than the Parent and its controlling stockholders),
director, officer or employee of DOC or any of its Subsidiaries respectively
ceases to be a stockholder, director, officer or employee of such Person.
(g) The Parent, DOC and its Subsidiaries have made in all material filings
which are required to be filed by it under the Communications Act and are in all
material respects in substantial compliance with the Communications Act relating
to the operation of each System.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each Lender
to make the initial extension of credit requested to be made by it hereunder is
subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the Borrower,
the Parent and DOC, (ii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of the Borrower, the Parent, DOC and each
Subsidiary Guarantor and (iii) a Lender Addendum executed and delivered by each
Lender and accepted by the Borrower.
(b) Transactions. The Administrative Agent shall have received (in a form
reasonably satisfactory to the Administrative Agent), true and correct copies,
certified as to authenticity by the Borrower, of each Transaction Document and
such other documents or instruments as may be reasonably requested by the
Administrative Agent, including a copy of any debt instrument, security
agreement or other material contract to which the Loan Parties may be a party.
Each Transaction Document shall be in full force and effect without any material
amendment thereto or default thereunder. The following Transactions shall have
been consummated, in each case in accordance with the terms of the relevant
Transaction Documents:
(i) The Parent shall have received not less $650,000,000 in aggregate
principal amount of gross proceeds from the issuance of the New Parent
Senior Notes;
(ii) Each Merger shall have been consummated on terms satisfactory to
the Administrative Agent; and
(iii) Simultaneously with the making of the Term Loans hereunder, the
Existing Credit Facilities shall be terminated and all amounts outstanding
thereunder shall be paid in full.
(c) Financial Statements. The Lenders shall have received (i) audited
consolidated financial statements of the Parent for the 2001 and 2002 fiscal
years and (ii) unaudited interim consolidated financial statements of the Parent
for each fiscal quarterly period ended subsequent to the date of the latest
applicable financial statements delivered pursuant to clause (i) of this
paragraph as to which such financial statements are available; and such
financial statements shall not, in the reasonable judgment of the Lenders,
reflect any material adverse change in the consolidated financial condition of
Parent as reflected in the financial statements or projections contained in the
Confidential Information Memorandum.
(d) Pro Forma Balance Sheet. The Lenders shall have received the pro forma
Balance Sheet of each of the Parent and its Subsidiaries (excluding the
Unrestricted Group) as at the date of the most recent consolidated balance sheet
delivered pursuant to Section 5.1(c), adjusted to give effect to the
consummation of the Transactions and the financings contemplated hereby as if
such transactions had occurred on such date.
(e) Approvals. All governmental, FCC, PUC and third party approvals and
other Authorizations necessary or, in the discretion of the Administrative
Agent, advisable in connection with the Credit Facilities, the Transactions, the
continuing operations of the Parent and its Subsidiaries and the transactions
contemplated hereby shall have been obtained and be in full force and effect,
and all applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority which would restrain, prevent or
otherwise impose adverse conditions on the Transactions or the financing
contemplated hereby.
(f) Fees. The Lenders, the Administrative Agent and the Arrangers shall
have received all fees required to be paid, and all expenses for which invoices
have been presented (including reasonable fees, disbursements and other charges
of counsel to the Agents), on or before the Closing Date. The Administrative
Agent shall have received reimbursement of all out-of-pocket expenses of the
Arrangers and the Administrative Agent payable by Borrower in connection with
the Credit Facilities. All such amounts will be paid with proceeds of Loans made
on the Closing Date and will be reflected in the funding instructions given by
the Borrower to the Administrative Agent on or before the Closing Date.
(g) Business Plan. The Lenders shall have received a satisfactory business
plan and analysis for the Parent (excluding the Unrestricted Group) for fiscal
years 2003-2010.
(h) Solvency Analysis. The Lenders shall have received a reasonably
satisfactory solvency analysis certified by the chief financial officer of each
of the Borrower and the Parent which shall document the solvency of the Borrower
and its Subsidiaries and the Parent and its Subsidiaries, in each case
considered as a whole after giving effect to the Transactions and the financings
contemplated hereby.
(i) Lien Searches. The Administrative Agent shall have received the results
of a recent lien search in each of the jurisdictions in which Uniform Commercial
Code financing statement or other filings or recordations should be made to
evidence or perfect security interests in all assets of the DOC and its
Subsidiaries, and such search shall reveal no Liens on any of the assets of DOC
or any of its Subsidiaries, except for Liens permitted by Section 7.3 or Liens
to be discharged on or prior to the Closing Date pursuant to documentation which
shall have been delivered, and shall be satisfactory, to the Administrative
Agent.
(j) Closing Certificate. The Administrative Agent shall have received a
certificate of each Loan Party, dated the Closing Date, substantially in the
form of Exhibit C, with each of the appropriate insertions and attachments
referred to therein (including certified charters from the relevant Secretary of
State, by-laws and other organizational documents, board resolutions approving
the Loan Documents, recent good standing certificates and other customary
closing documentation with respect to each Loan Party) and (in the case of the
Borrower) exhibiting up-to-date copies of the Transaction Documents, the
Material Agreements and each agreement referred to on Schedule 8.6.
(k) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of McAfee & Xxxx, counsel to the Loan Parties,
substantially in the form of Exhibit F-1; and
(ii) the legal opinion of Xxxxxxxxx Xxxxxx Xxxxxx, LLP, as to certain
FCC, PUC and other regulatory matters with respect to the Parent, DOC and
its Subsidiaries, substantially in the form of Exhibit F-2.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(l) Pledged Stock; Stock Powers; Acknowledgment and Consent; Pledged Notes;
Control Agreements. The Administrative Agent shall have received (i) the
certificates representing the shares of Capital Stock pledged pursuant to the
Guarantee and Collateral Agreement, together with an undated stock power for
each such certificate executed in blank by a duly authorized officer of the
pledgor thereof, (ii) an Acknowledgment and Consent, substantially in the form
of Annex II to the Guarantee and Collateral Agreement, duly executed by any
issuer of Capital Stock pledged pursuant to the Guarantee and Collateral
Agreement that is not itself a party to the Guarantee and Collateral Agreement,
(iii) each promissory note pledged pursuant to the Guarantee and Collateral
Agreement endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank satisfactory to the Administrative Agent) by the pledgor
thereof and (iv) executed control agreements (substantially in the form of Annex
III to the Guarantee and Collateral Agreement) with each applicable bank or
securities intermediary with respect to each deposit account or securities
account maintained by DOC, the Borrower or any Subsidiary Guarantor required
pursuant to the Guarantee and Collateral Agreement, provided that any such
control agreement which is not executed and delivered on the Closing Date, shall
be executed and delivered to the Administrative Agent as soon as practicable and
in any event not later than 10 Business Days following the Closing Date.
(m) Filings, Registrations and Recordings. Each document (including any
Uniform Commercial Code financing statement) required by the Security Documents
or under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative Agent,
for the benefit of the Secured Parties, a perfected Lien on the Collateral
described therein, prior and superior in right to any other Person (other than
with respect to Liens expressly permitted by Section 7.3), shall have been
filed, registered or recorded or shall have been delivered to the Administrative
Agent be in proper form for filing, registration or recordation.
(n) Insurance. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 5.3 of the Guarantee and
Collateral Agreement.
(o) Minimum Rating. The Facilities shall have received a prospective senior
secured credit rating of not less than B1 from Xxxxx'x (with a stable outlook)
and B- from S&P (with a stable outlook), both of which ratings shall be in
effect on the Closing Date.
5.2 Conditions to Each Extension of Credit. The agreement of each Lender to
make any extension of credit requested to be made by it hereunder on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents shall be
true and correct on and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit
requested to be made on such date provided that such determination shall be made
on a pro forma basis as if each such extension of credit were made (for the
purposes of Section 7.1) on the most recent test date under Section 7.1.
Each borrowing by and issuance of a Letter of Credit on behalf of the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such extension of credit that the conditions
contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
DOC and the Borrower hereby jointly and severally agree that, so long as
the Commitments remain in effect, any Letter of Credit remains outstanding or
any Loan or other amount is owing to any Lender or any Agent hereunder, each of
DOC and the Borrower shall and shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Agent and each Lender:
(a) as soon as available, but in any event within 120 days after the end of
each of its fiscal years, copies of (i) the audited consolidated balance sheet
of the Parent and its consolidated Subsidiaries and of DOC and its consolidated
Subsidiaries, (ii) the unaudited consolidating balance sheet of the Parent and
its consolidated Subsidiaries, (iii) the related audited consolidated statements
of income and cash flows of the Parent and its consolidated Subsidiaries and of
DOC and its consolidated Subsidiaries and (iv) the related unaudited
consolidating statement of income of the Parent and its consolidated
Subsidiaries, for such year, setting forth in each case in comparative form the
figures as of the end of and for the previous year, reported on, without any
qualification or exception (as such terms are used in accordance with generally
accepted auditing standards), by KPMG LLP or other independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 60 days after the
end of each of the first three quarterly periods of each of its fiscal years,
copies of (i) the unaudited consolidated balance sheet of the Parent and its
consolidated Subsidiaries and of DOC and its consolidated Subsidiaries, (ii) the
unaudited consolidating balance sheet of the Parent and its consolidated
Subsidiaries, (iii) the related unaudited consolidated statements of income and
cash flows of the Parent and its consolidated Subsidiaries and of DOC and its
consolidated Subsidiaries and (iv) the related unaudited consolidating statement
of income of the Parent and its consolidated Subsidiaries, for such quarter and
the portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures as of the end of and for the
corresponding period in the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end audit
adjustments); and
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Agent and each Lender,
or, in the case of clause (h), to the relevant Lender:
(a) concurrently with the delivery of the financial statements referred to
in Section 6.1(a), a certificate (substantially in the form of Exhibit D) of the
independent certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default with respect to the covenants set
forth in Section 7, except as specified in such certificate (it being understood
that such certificate shall be limited to the items that independent certified
public accountants are permitted to cover in such certificates pursuant to their
professional standards and customs of the profession);
(b) concurrently with the delivery of any financial statements pursuant to
Section 6.1, (i) a certificate of a Responsible Officer stating that, to the
best of such Responsible Officer's knowledge, each Loan Party during such period
has observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or satisfied by it,
and that such Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate and (ii) in the case of
quarterly or annual financial statements, (x) a Compliance Certificate
containing all information and calculations necessary for determining compliance
by the Parent, the Borrower, DOC and its Subsidiaries with the provisions of
this Agreement referred to therein as of the last day of the applicable fiscal
quarter or fiscal year, as the case may be, and (y) to the extent not previously
disclosed to the Administrative Agent, a listing of any material Intellectual
Property acquired by any Loan Party since the date of the most recent list
delivered pursuant to this clause (y) (or, in the case of the first such list so
delivered, since the Closing Date);
(c) as soon as available, and in any event no later than March 31 in each
fiscal year of DOC, a detailed consolidated quarterly budget for such fiscal
year (including a projected consolidated balance sheet of DOC and its
Subsidiaries as of the end of the following fiscal year, and the related
consolidated statements of projected cash flow and projected income) and, as
soon as available, significant revisions, if any, of such budget and quarterly
projections with respect to such fiscal year, including a description of
underlying assumptions with respect thereto (collectively, the "Projections"),
which Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on reasonable
estimates, information and assumptions and that such Responsible Officer has no
reason to believe that such Projections are incorrect or misleading in any
material respect;
(d) within 60 days after the end of each fiscal quarter of the Parent and
DOC, a narrative discussion and analysis of the financial condition and results
of operations of the Parent and its Subsidiaries and of DOC and its Subsidiaries
for such fiscal quarter and for the period from the beginning of the then
current fiscal year to the end of such fiscal quarter, as compared to the
portion of the Projections covering such periods and to the comparable periods
of the previous year;
(e) no later than 10 Business Days prior to the effectiveness thereof,
copies of substantially final drafts of any proposed amendment, supplement,
waiver or other modification with respect to the Transaction Documents;
(f) within five days after the same are sent, copies of all financial
statements and reports that the Parent or its Subsidiaries sends to the holders
of any class of its debt securities or public equity securities and, within five
days after the same are filed, copies of all financial statements and (to the
extent material to the interests of the Lenders hereunder) reports that the
Parent or its Subsidiaries may make to, or file with, the SEC or the FCC;
(g) as soon as possible and in any event within 10 days of obtaining
knowledge thereof: (i) any development, event, or condition that, individually
or in the aggregate with other developments, events or conditions, could
reasonably be expected to result in the payment by DOC and its Subsidiaries, in
the aggregate, of a Material Environmental Amount; and (ii) any notice that any
Governmental Authority may deny any application for an Environmental Permit
sought by, or revoke or refuse to renew any Environmental Permit held by, DOC or
any of its Subsidiaries;
(h) promptly and in any event within ten days of receipt thereof, copies of
all notices and communications received from the FCC, any PUC or any other
Governmental Authority which (i) relates to any forfeiture, non-renewal,
cancellation, revocation, suspension, impairment or termination of, or any other
adverse development with respect to, any FCC License or (to the extent that it
is material to the business of DOC or any of its Subsidiaries) any other
Authorization or (ii) has, or could reasonably be expected to have a Material
Adverse Effect; and
(i) promptly, such additional financial and other information as any Lender
may (through the Administrative Agent) from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of DOC or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence, etc. (a) (i)
Preserve, renew and keep in full force and effect its corporate or other
existence and (ii) take all reasonable action to maintain all rights, privileges
and franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 7.4 and except, in the
case of clause (ii) above, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (b) comply with
all Contractual Obligations, Authorizations issued by the FCC or any applicable
PUC and Requirements of Law, except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all Property and systems
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted, (b) maintain with financially sound and
reputable insurance companies insurance on all its Property (other than property
damage insurance for non-material Property, including vehicles) in at least such
amounts and against such risks (but including in any event public liability,
product liability and business interruption) as (i) are usually insured against
in the same general area by companies engaged in the same or a similar business
or (ii) are otherwise approved by the Administrative Agent from time to time
(provided that the insurance which is acceptable to the Administrative Agent on
the Closing Date shall be deemed to be acceptable to it following the Closing
Date in the absence of any change or development which, in the reasonable
opinion of the Administrative Agent, requires additional or alternative
insurance to be obtained) and (c) do all things necessary to obtain, renew,
extend, and continue in effect all Authorizations issued by the FCC or any
applicable PUC which may at any time and from time to time be necessary for the
Borrower, DOC and its Subsidiaries to operate their businesses in compliance
with applicable Law, except in each case under this Section 6.5, to the extent
that failure to do so could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower, DOC
and its Subsidiaries with officers and employees of the Borrower, DOC and its
Subsidiaries and with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of
the Parent, DOC or any of its Subsidiaries or (ii) litigation, investigation or
proceeding which may exist at any time between the Parent, DOC or any of its
Subsidiaries and any Governmental Authority, that in either case, if not cured
or if adversely determined, as the case may be, could reasonably be expected to
have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Parent, DOC or any of its
Subsidiaries in which the amount involved is $5,000,000 or more and not covered
by insurance or in which injunctive or similar relief (which could materially
interfere with the business of the Parent, DOC or any of its Subsidiaries) is
sought;
(d) the following events, as soon as possible and in any event within 30
days after the Borrower knows or has reason to know thereof: (i) the occurrence
of any Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably be expected
to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Parent, the Borrower, DOC or the relevant Subsidiary
proposes to take with respect thereto.
6.8 Environmental Laws. (a) Comply in all material respects with, and
ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply in all
material respects with and maintain, and ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, except to the extent that the foregoing could
not, in the aggregate, reasonably be expected to result in a liability for a
Material Environmental Amount.
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws, except
to the extent that the foregoing could not, in the aggregate, reasonably be
expected to result in a liability for a Material Environmental Amount.
6.9 Interest Rate Protection. In the case of the Borrower, within 60 days
after the Closing Date, enter into Hedge Agreements to the extent necessary to
provide that at least 50% of the aggregate principal amount of Consolidated
Total Debt and preferred stock of the Parent is subject to either a fixed
interest rate or interest rate protection for a period of not less than two
years, which Hedge Agreements shall have terms and conditions reasonably
satisfactory to the Administrative Agent.
6.10 Additional Collateral, etc. (a) With respect to any Property (other
than Excluded Collateral and real property) acquired after the Closing Date by
any Loan Party (other than the Parent), including (if applicable) any acquired
assets referred to in Section 6.10(e) below, (other than (x) any Property
described in paragraph (b) or paragraph (c) of this Section, (y) any Property
subject to a Lien expressly permitted by Section 7.3(g) and (z) Property
acquired by an Excluded Foreign Subsidiary) as to which the Administrative
Agent, for the benefit of the Secured Parties, does not have a perfected Lien,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement or such other documents as the
Administrative Agent deems necessary or advisable to grant to the Administrative
Agent, for the benefit of the Secured Parties, a security interest in such
Property and (ii) take all actions necessary or advisable to grant to the
Administrative Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in such Property, including without limitation, the
filing of Uniform Commercial Code financing statements in such jurisdictions as
may be required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent.
(b) With respect to any fee interest in any tract (or series of tracts at
the same location) of real property having a Fair Market Value (together with
improvements thereof) of at least $3,000,000 acquired after the Closing Date by
any Loan Party (other than the Parent), including (if applicable) any acquired
assets referred to in Section 6.10(e) below, (other than any such real property
owned by an Excluded Foreign Subsidiary or subject to a Lien expressly permitted
by Section 7.3(g)), promptly (i) execute and deliver a first priority Mortgage
in favor of the Administrative Agent, for the benefit of the Secured Parties,
covering such real property, (ii) if requested by the Administrative Agent,
provide the Lenders with (x) title and extended coverage insurance covering such
real property in an amount at least equal to the purchase price of such real
property (or such other amount as shall be reasonably specified by the
Administrative Agent) as well as a current ALTA survey thereof, together with a
surveyor's certificate and (y) any consents or estoppels reasonably deemed
necessary or advisable by the Administrative Agent in connection with such
Mortgage, each of the foregoing in form and substance reasonably satisfactory to
the Administrative Agent and (iii) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(c) With respect to any new Subsidiary (other than an Unrestricted
Subsidiary or an Excluded Foreign Subsidiary) created or acquired after the
Closing Date (which, for the purposes of this paragraph, shall include any
existing Subsidiary that ceases to be an Unrestricted Subsidiary or an Excluded
Foreign Subsidiary), by any Loan Party (other than the Parent, except if
applicable pursuant to Section 6.10(e)), promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in the Capital Stock of such new Restricted
Subsidiary, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the applicable Loan Party
or such Restricted Subsidiary, as the case may be, (iii) cause such new
Restricted Subsidiary (A) to become a party to the Guarantee and Collateral
Agreement and (B) to take such actions necessary or advisable to grant to the
Administrative Agent for the benefit of the Secured Parties a perfected first
priority security interest in the Collateral described in the Guarantee and
Collateral Agreement with respect to such new Restricted Subsidiary, including
the filing of Uniform Commercial Code financing statements in such jurisdictions
as may be required by the Guarantee and Collateral Agreement or by law or as may
be requested by the Administrative Agent, and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(d) With respect to any new Excluded Foreign Subsidiary (except any
Unrestricted Subsidiary) directly created or acquired after the Closing Date by
any Loan Party (other than the Parent, except if applicable pursuant to Section
6.10(e)), promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement or such other documents as
the Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in the Capital Stock of such new Excluded Foreign
Subsidiary that is owned by such Loan Party (other than any Excluded Foreign
Subsidiaries), (provided that in no event shall more than 65% of the total
outstanding Capital Stock of any such new Excluded Foreign Subsidiary be
required to be so pledged), (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of such
Loan Party or such Subsidiary, as the case may be, and take such other action as
may be necessary or, in the opinion of the Administrative Agent, desirable to
perfect the Lien of the Administrative Agent thereon, and (iii) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(e) In the event that the Parent acquires all or substantially all of the
Assets or Capital Stock of any Person (other than a Person which immediately
upon the acquisition of its Capital Stock, becomes an Unrestricted Subsidiary),
the Parent shall promptly notify the Administrative Agent thereof and, if
requested by the Administrative Agent, the Parent and its relevant Restricted
Subsidiary shall comply with the provisions of this Section 6.10 with respect to
such Assets or Person so acquired.
6.11 Further Assurances. From time to time execute and deliver, or cause to
be executed and delivered, such additional instruments, certificates or
documents, and take such actions, as the Administrative Agent may reasonably
request for the purposes of implementing or effectuating the provisions of this
Agreement and the other Loan Documents, or of more fully perfecting or renewing
the rights of the Administrative Agent and the Lenders with respect to the
Collateral (or with respect to any additions thereto or replacements or proceeds
thereof or with respect to any other property or assets hereafter acquired by
DOC or any of its Subsidiaries which may be deemed to be part of the Collateral)
pursuant hereto or thereto. Upon the exercise by the Administrative Agent or any
Lender of any power, right, privilege or remedy pursuant to this Agreement or
the other Loan Documents which requires any consent, approval, recording,
qualification or authorization of any Governmental Authority, the Borrower will
execute and deliver, or will cause the execution and delivery of, all
applications, certifications, instruments and other documents and papers that
the Administrative Agent or such Lender may be required to obtain from DOC or
any of its Subsidiaries for such governmental consent, approval, recording,
qualification or authorization.
SECTION 7. NEGATIVE COVENANTS
The Borrower, DOC and (with respect to Sections 7.1(b) and (c)) the Parent
hereby jointly and severally agree that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or any Agent hereunder, each of the Borrower, DOC and (with
respect to Sections 7.1(b) and (c)) the Parent shall not, and shall not permit
any of their respective Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) DOC Leverage Ratio. Permit the DOC Leverage Ratio as at the last day of
any period of four consecutive fiscal quarters of DOC (or, if less, the number
of full fiscal quarters subsequent to the Closing Date, in which case the
applicable amounts used in determining such ratio shall be Annualized) ending
with any fiscal quarter set forth below to exceed the ratio set forth below
opposite such fiscal quarter:
Fiscal Quarter Ended DOC Leverage Ratio
-------------------- ------------------
December 31, 2003 2.25:1
March 31, 2004 2.25:1
June 30, 2004 2.20:1
September 30, 2004 2.20:1
December 31, 2004 2.15:1
March 31, 2005 2.05:1
June 30, 2005 2.05:1
September 30, 2005 2.00:1
December 31, 2005 1.90:1
March 31, 2006 1.85:1
June 30, 2006 1.75:1
September 30, 2006 1.70:1
December 31, 2006 1.70:1
March 31, 2007 1.65:1
June 30, 2007 1.60:1
September 30, 2007 1.60:1
December 31, 2007 1.60:1
March 31, 2008 1.55:1
June 30, 2008 1.55:1
September 30, 2008 and each fiscal
quarter ended thereafter 1.50:1
(b) Parent Leverage Ratio. Permit the Parent Leverage Ratio as at the last
day of any period of four consecutive fiscal quarters of the Parent (or, if
less, the number of full fiscal quarters subsequent to the Closing Date, in
which case the applicable amounts used in determining such ratio shall be
Annualized) ending with any fiscal quarter set forth below to exceed the ratio
set forth below opposite such fiscal quarter:
Fiscal Quarter Ended Parent Leverage Ratio
-------------------- ---------------------
December 31, 2003 6.00:1
March 31, 2004 6.00:1
June 30, 2004 6.00:1
September 30, 2004 6.00:1
December 31, 2004 6.00:1
March 31, 2005 5.75:1
June 30, 2005 5.65:1
September 30, 2005 5.55:1
December 31, 2005 5.45:1
March 31, 2006 5.20:1
June 30, 2006 5.10:1
September 30, 2006 4.95:1
December 31, 2006 4.75:1
March 31, 2007 4.70:1
June 30, 2007 4.60:1
September 30, 2007 4.45:1
December 31, 2007 4.35:1
March 31, 2008 4.30:1
June 30, 2008 4.25:1
September 30, 2008 4.20:1
December 31, 2008 4.15:1
March 31, 2009 4.00:1
June 30, 2009 4.00:1
September 30, 2009 3.75:1
December 31, 2009 and each fiscal 3.50:1
quarter ended thereafter
(c) Parent Interest Coverage Ratio. Permit the Parent Interest Coverage
Ratio for any period of four consecutive fiscal quarters of the Parent (or, if
less, the number of full fiscal quarters subsequent to the Closing Date, in
which case the applicable amounts used in determining such ratio shall be
Annualized) ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
Parent
Fiscal Quarter Ended Interest Coverage Ratio
-------------------- -----------------------
December 31, 2003 1.75:1
March 31, 2004 1.75:1
June 30, 2004 1.75:1
September 30, 2004 1.75:1
December 31, 2004 1.75:1
March 31, 2005 1.75:1
June 30, 2005 1.75:1
September 30, 2005 1.75:1
December 31, 2005 2.00:1
March 31, 2006 2.00:1
June 30, 2006 2.00:1
September 30, 2006 2.00:1
December 31, 2006 2.00:1
March 31, 2007 2.00:1
June 30, 2007 2.00:1
September 30, 2007 2.00:1
December 31, 2007 2.00:1
March 31, 2008 2.00:1
June 30, 2008 2.15:1
September 30, 2008 2.15:1
December 31, 2008 2.25:1
March 31, 2009 2.25:1
June 30, 2009 and each fiscal quarter 2.50:1
ended thereafter
(d) DOC Fixed Charge Coverage Ratio. Permit the DOC Fixed Charge Coverage
Ratio for any period of four consecutive fiscal quarters of DOC (or, if less,
the number of full fiscal quarters subsequent to the Closing Date, in which case
the applicable amounts used in determining such ratio shall be Annualized)
ending with any fiscal quarter set forth below to be less than the ratio set
forth below opposite such fiscal quarter:
DOC Fixed Charge
Fiscal Quarter Ended Coverage Ratio
-------------------- --------------
December 31, 2003 1.10:1
March 31, 2004 1.10:1
June 30, 2004 1.10:1
September 30, 2004 1.10:1
December 31, 2004 1.10:1
March 31, 2005 1.10:1
June 30, 2005 1.10:1
September 30, 2005 1.10:1
December 31, 2005 1.10:1
March 31, 2006 1.10:1
June 30, 2006 1.15:1
September 30, 2006 1.15:1
December 31, 2006 1.15:1
March 31, 2007 1.15:1
June 30, 2007 1.15:1
September 30, 2007 1.15:1
December 31, 2007 1.15:1
March 31, 2008 1.15:1
June 30, 2008 1.20:1
September 30, 2008 1.20:1
December 31, 2008 1.20:1
March 31, 2009 and each fiscal quarter 1.25:1
ended thereafter
(e) Limitation on Capital Expenditures. Make or commit to make any Capital
Expenditure, except Capital Expenditures of DOC and its Subsidiaries in the
ordinary course of business not exceeding (i) during the period from and
including the Closing Date until December 31, 2003, $95,000,000 and (ii) in any
fiscal year of DOC thereafter, an amount equal to the sum of (w) $125,000,000,
(x) 33.33% of the amount of increase (if any) of Consolidated EBITDA of DOC for
the preceding fiscal year compared to the previous fiscal year thereto, (y) the
amount of cash capital contributions made by the Parent to DOC or any of its
Subsidiaries during such fiscal year for the purpose of making Capital
Expenditures in such fiscal year and (z) the amount of any Supplemental Capital
Expenditures permitted to be made during such fiscal year in connection with a
Permitted Acquisition; provided that (A) 100% of any such amount referred to
above, if not so expended in cash in the fiscal year for which it is permitted,
may be carried over for expenditure in the next succeeding fiscal year only and
(B) Capital Expenditures made during any fiscal year shall be deemed made,
first, in respect of amounts permitted for such fiscal year as provided above
and second, in respect of amounts carried over from the prior fiscal year
pursuant to clause (A) above.
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness of any Loan Party (other than the Parent) pursuant to any
Loan Document;
(b) Indebtedness of (i) the Borrower owed to any Subsidiary Guarantor, (ii)
any Subsidiary Guarantor owed to the Borrower or to any other Subsidiary
Guarantor, (iii) to the extent that it is permitted by Section 7.7(c)(iii), any
Subsidiary of DOC owed to DOC or to any other Subsidiary (other than a Cellular
Partnership) of DOC and (iv) DOC owed to the Borrower and advanced in accordance
with (x) Section 4.16(a)(ii)(y) in an aggregate principal amount not to exceed
$70,000,000 or (y) Section 7.6(c);
(c) Indebtedness (including Capital Lease Obligations) secured by Liens
permitted by Section 7.3(g) in an aggregate principal amount not to exceed
$40,000,000 at any one time outstanding;
(d) Indebtedness outstanding on the date hereof and listed on Schedule
7.2(d) and any refinancings, refundings, renewals or extensions thereof (without
any increase in the principal amount thereof outstanding at the time of such
refinancing, refunding, renewal or extension, or any shortening of the maturity
of any principal amount thereof and otherwise on terms not materially less
favorable to the Parent and the issuer thereof than under the refinanced,
refunded, renewed or extended Indebtedness);
(e) Guarantee Obligations made in the ordinary course of business by the
Borrower, DOC or any of its Subsidiaries of obligations of the Borrower or any
Subsidiary Guarantor;
(f) Indebtedness of DOC, the Borrower or any Subsidiary Guarantor owed to
the Parent which is subordinated to the Obligations on terms acceptable to the
Administrative Agent;
(g) Indebtedness of any Cellular Partnership owed to the Borrower, DOC or
any Subsidiary Guarantor, provided that (i) such Indebtedness is evidenced by a
promissory note the form and substance of which, including amortization
schedules, are acceptable to Administrative Agent, (ii) such promissory note is
secured by a first priority perfected security interest (to the extent permitted
by applicable law) in all of the assets of such Cellular Partnership, (iii) such
promissory note is pledged, and has been delivered, to the Administrative Agent
pursuant to the Guaranty and Collateral Agreement as security for the
Obligations and (iv) the aggregate principal amount of all such Indebtedness
under this Section 7.2(g) shall not exceed $30,000,000 at any one time
outstanding;
(h) Indebtedness of Foreign Subsidiaries of DOC in an aggregate principal
amount not to exceed the Dollar equivalent (as determined by the Administrative
Agent from time to time) of $5,000,000 at any one time outstanding;
(i) Indebtedness of the Borrower under an Additional Facility in an
aggregate principal amount not to exceed $200,000,000 and which meets the
requirements specified in clauses (i) through (vii) of Section 11.1(b), provided
that the documentation giving effect to any such Additional Facility (whether or
not pursuant to any amendment to the Loan Documents) shall be in form and
substance satisfactory to the Administrative Agent;
(j) Indebtedness of the Borrower or DOC pursuant to senior unsecured notes
(which may be guaranteed on a senior unsecured basis by the Borrower and each
Guarantor) used to refinance all or part of the Term Loans and any Additional
Term Loans; provided that such Indebtedness matures not less than six months
following the final maturity of the Facilities and any Additional Facilities,
the weighted average life of such Indebtedness is longer than the Facilities and
any Additional Facilities and all other terms of such Indebtedness are
acceptable to the Administrative Agent;
(k) Indebtedness with respect to letters of credit and banker's acceptances
(which have been notified by the Borrower in writing to the Administrative
Agent) in an aggregate face amount not to exceed at any time $20,000,000 minus
the aggregate amount of any Letters of Credit and Reimbursement Obligations
outstanding at such time pursuant to this Agreement; and
(l) Other Indebtedness not to exceed the amount of $5,000,000 at any one
time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except for:
(a) Liens for Taxes not yet due or which are being contested in good faith
by appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of DOC or its Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or that are being contested in good
faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate, are not
substantial in amount and which do not in any case materially detract from the
value of the Property subject thereto or materially interfere with the ordinary
conduct of the business of DOC or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f),
securing Indebtedness permitted by Section 7.2(d), provided that no such Lien is
extended to cover any additional Property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness incurred pursuant to Section 7.2(c) to
finance the acquisition of fixed or capital assets, provided that (i) such Liens
shall be created substantially simultaneously with the acquisition of such fixed
or capital assets, (ii) such Liens do not at any time encumber any Property
other than the Property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the amount of
Indebtedness initially secured thereby is not more than 100% of the purchase
price of such fixed or capital asset;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by DOC
or any of its Subsidiaries in the ordinary course of its business and covering
only the assets so leased;
(j) Liens on cash collateral securing Indebtedness outstanding pursuant to
Section 7.2(k), provided that the amount of such cash collateral shall not
exceed 110% of the outstanding Indebtedness or Guarantee Obligation secured
thereby; and
(k) Liens not otherwise permitted by this Section 7.3 so long as neither
(i) the aggregate outstanding principal amount of the obligations secured
thereby nor (ii) the aggregate Fair Market Value (determined, in the case of
each such Lien, as of the date such Lien is incurred) of the assets subject
thereto exceeds (as to the Borrower and all its Subsidiaries) $4,000,000.
7.4 Limitation on Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
Property or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with or
into the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or with or into any Subsidiary Guarantor (provided that
(i) the Subsidiary Guarantor shall be the continuing or surviving corporation or
(ii) simultaneously with such transaction, the continuing or surviving
corporation shall become a Subsidiary Guarantor and the provisions of Section
6.10 shall be satisfied in connection therewith)
(b) DOC may be merged or consolidated with or into the Borrower (provided
that the Borrower shall be the continuing or surviving corporation) with the
prior written approval of, and on terms acceptable to, the Administrative Agent;
and
(c) any Subsidiary of the Borrower may Dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to any Subsidiary Guarantor.
7.5 Limitation on Disposition of Property. Dispose of any of its Property
(including receivables and leasehold interests), whether now owned or hereafter
acquired, or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary course
of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(c);
(d) the sale or issuance of (i) any Subsidiary of the Borrower's Capital
Stock to the Borrower or any Subsidiary Guarantor, (ii) the Borrower's Capital
Stock to DOC or (iii) DOC's Capital Stock to the Parent;
(e) Dispositions of assets which are Permitted Asset Swaps, having a Fair
Market Value not to exceed in aggregate (i) $225,000,000 in any fiscal year of
DOC (provided that the Maryland/Michigan Swap shall be deemed consummated in the
fiscal year of DOC ended December 31, 2003 for the purposes of the foregoing
dollar limitation) and (ii) $475,000,000 during the term of this Agreement;
provided that in calculating the Fair Market Value with respect to each
Permitted Asset Swap pursuant to this Section 7.5(e), there shall be subtracted
from such amount of Fair Market Value the amount of any cash consideration
received pursuant to such Permitted Asset Swap to the extent that such cash
consideration exceeds 30% of the total consideration received pursuant to such
Permitted Asset Swap (such subtracted amount to be in the amount of such
excess);
(f) provided that no Default has occurred and is continuing or would result
therefrom, other Dispositions of assets (not constituting Permitted Asset Swaps,
subject as provided below) in the ordinary course of business on arms length
terms for not less than their Fair Market Value, not to exceed in aggregate (i)
$40,000,000 in any fiscal year of DOC (provided that the Maryland/Michigan Swap
shall be deemed consummated in the fiscal year of DOC ended December 31, 2003
for the purposes of the foregoing dollar limitation) and (ii) $100,000,000 in
aggregate during the term of this Agreement; provided that in calculating the
aggregate Fair Market Value with respect to Dispositions made during any
applicable period pursuant to this Section 7.5(f), there shall be added to such
aggregate amount of Fair Market Value an amount equal to that portion of any
cash consideration received pursuant to a Permitted Asset Swap during such
period which shall have been subtracted pursuant to the proviso in Section
7.5(e); and
(g) any Recovery Event, provided that the requirements of Section 2.12(b)
are complied with in connection therewith.
7.6 Limitation on Restricted Payments. Declare or pay any dividend on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of the Parent, the Borrower or DOC or any of
its Subsidiaries, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Parent, the Borrower or DOC or any of its
Subsidiaries, or enter into any derivatives or other transaction with any
financial institution, commodities or stock exchange or clearinghouse (a
"Derivatives Counterparty") obligating the Borrower or DOC or any of its
Subsidiaries to make payments to such Derivatives Counterparty as a result of
any change in market value of any such Capital Stock (collectively, "Restricted
Payments"), except that:
(a) any Subsidiary of the Borrower may make Restricted Payments to the
Borrower or any Subsidiary Guarantor;
(b) the Borrower may make Restricted Payments in the form of its Capital
Stock to DOC and DOC may make Restricted Payments in the form of its Capital
Stock to the Parent;
(c) so long as no Default shall have occurred and be continuing or would
result therefrom (determined on a pro forma basis after giving effect thereto),
the Borrower may pay dividends or make loans to DOC and DOC may pay dividends to
the Parent: (i) to pay corporate overhead expenses incurred in the ordinary
course of business (which have been allocated to DOC and its Subsidiaries, and
are in amounts, in accordance with Section 8.7); (ii) to pay Taxes which are
then due and payable by the Parent and DOC as part of a consolidated group
pursuant to the Tax Sharing Agreement (except any such Taxes which are
attributable to Subsidiaries of the Parent other than DOC and its Subsidiaries);
(iii) to pay regularly scheduled interest payments which are due and payable
with respect to the Parent Notes; (iv) to pay regularly scheduled dividends
which are then due and payable with respect to the Parent Preferred Stock (to
the extent required, or elected by the Parent, to be paid in cash); and (v) in
an aggregate amount not to exceed the respective portions of Excess Cash Flow
which in each fiscal year of DOC are not required to be applied or offered in
mandatory prepayment of the Loans pursuant to Section 2.12(c) (provided that,
with respect to any Restricted Payment pursuant to this clause (v), (A) no
Default shall have occurred or would result therefrom determined on a pro forma
basis as if such Restricted Payment had been made on the last day of each
applicable fiscal year of DOC in which any such Excess Cash Flow is generated
(but excluding, for the purposes of such determination, any Restricted Payments
made in cash pursuant to this clause (v) during such fiscal year), (B) the
amount of Liquidity immediately before and after giving effect to such
Restricted Payment shall not be less than $50,000,000 and (C) the Borrower shall
have complied with its obligations pursuant to Section 2.12(c).
7.7 Limitation on Investments. Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any
Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting an ongoing business from, or make any other investment in,
any other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) Investments made by (i) the Borrower in any Subsidiary Guarantor; (ii)
DOC or any Subsidiary Guarantor in the Borrower or any Subsidiary Guarantor that
is a Subsidiary Guarantor before making such Investment, (iii) DOC or any of its
Subsidiaries in any other Subsidiary of DOC not to exceed (with respect to
Investments made pursuant to this clause (c)(iii)) $5,000,000 at any one time
outstanding and (iv) as an intercompany loan or Guarantee Obligation which is
otherwise permitted by Sections 7.2(b), (e) or (g);
(d) loans and advances to employees of the Borrower or any of its
Subsidiaries in the ordinary course of business (including for travel,
entertainment and relocation expenses) in an aggregate amount for the Borrower
and its Subsidiaries not to exceed $1,000,000 at any one time outstanding;
(e) Permitted Acquisitions, the Purchase Price of which shall not exceed
(i) with respect to any Permitted Acquisitions which are Permitted Asset Swaps,
in aggregate, (x) $225,000,000 in any fiscal year of DOC (provided that the
Maryland/Michigan Swap shall be deemed consummated in the fiscal year of DOC
ended December 31, 2003 for the purposes of the foregoing dollar limitation) and
(y) $475,000,000 during the term of this Agreement and (ii) with respect to all
other Permitted Acquisitions, (x) $40,000,000 individually, (y) $80,000,000 in
aggregate in any fiscal year of DOC and (z) $200,000,000 in aggregate during the
term of this Agreement; provided that any Permitted Acquisition financed with
(A) the proceeds of a capital contribution made by the Parent to DOC and its
Subsidiaries for the purposes of consummating such Permitted Acquisition (and so
applied within 90 days of the Parent making such capital contribution) or (B)
the cash portion of the consideration received pursuant to a Permitted Asset
Swap or any other Disposition of Cellular/PCS Assets (to the extent that such
cash is used within 12 months of receipt by DOC, the Borrower or any Subsidiary
Guarantor in consummating a Permitted Acquisition of Cellular/PCS Assets), shall
not be subject to the foregoing dollar limitations set forth in this clause (e);
and
(f) Investments (other than pursuant to Permitted Asset Swaps) in assets
useful in DOC's and its Subsidiaries' business made by DOC or any of its
Subsidiaries with the proceeds of any Reinvestment Deferred Amount provided that
such Investments made by a Subsidiary of DOC which is not a Subsidiary Guarantor
shall only be permitted to be made with the proceeds of Reinvestment Deferred
Amounts which are directly owned by, and payable to, such Subsidiary.
7.8 Limitation on Optional Payments and Modifications of Debt Instruments,
etc. (a) Except pursuant to the Transactions or a refinancing, refunding,
renewal or extension (to the extent such refinancing, refunding, renewal or
extension is permitted by Section 7.2(d)), make or offer to make any optional or
voluntary payment, prepayment, repurchase or redemption of, or otherwise
voluntarily or optionally defease, any Indebtedness owed to the Parent or to any
Affiliate of the Parent which is not the Borrower or a Subsidiary Guarantor, or
any long-term Indebtedness of the Parent or its Subsidiaries (other than the
Existing Xxxxxx/Sygnet Senior Notes and the Existing Sygnet Wireless Senior
Notes), or segregate funds for any such payment, prepayment, repurchase,
redemption or defeasance, or enter into any derivative or other transaction with
any Derivatives Counterparty obligating DOC or any of its Subsidiaries to make
payments to such Derivatives Counterparty as a result of any change in market
value of the Parent Notes or any other securities of the Parent or its
Subsidiaries, (b) amend, modify or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms of the
Parent Notes or any other long-term Indebtedness of the Parent or its
Subsidiaries (other than any such amendment, modification, waiver or other
change which (i) would extend the maturity or reduce the amount of any payment
of principal thereof, reduce the rate or extend the date for payment of interest
thereon or relax any covenant or other restriction applicable to the Parent or
any of its Subsidiaries and (ii) does not involve the payment of a consent fee
(unless such fee has been approved by the Administrative Agent, which approval
shall not be unreasonably withheld or delayed), or (c) amend its certificate of
incorporation in any manner determined by the Administrative Agent to be adverse
to the Lenders.
7.9 Limitation on Transactions with Affiliates. Enter into any transaction,
including any purchase, sale, lease or exchange of Property, the rendering of
any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than DOC, the Borrower or any Subsidiary Guarantor) unless such
transaction is (a) otherwise expressly permitted under this Agreement or (b) in
the ordinary course of business of DOC, the Borrower or such Subsidiary, as the
case may be, and (in each case under clause (a) or (b)) is upon fair and
reasonable terms no less favorable to DOC, the Borrower or such Subsidiary, as
the case may be, than it would obtain in a comparable arm's length transaction
with a Person that is not an Affiliate; provided that the foregoing shall not
restrict any commercially reasonable employment agreement, employee benefit
plan, officer and director indemnification agreement or any similar commercially
reasonable arrangement entered into by DOC or its Subsidiaries in the ordinary
course of business.
7.10 Limitation on Sales and Leasebacks. Enter into any arrangement with
any Person providing for the leasing by DOC or any of its Subsidiaries of real
or personal property which has been or is to be sold or transferred by DOC or
such Subsidiary to such Person or to any other Person to whom funds have been or
are to be advanced by such Person on the security of such property or rental
obligations of DOC or such Subsidiary.
7.11 Limitation on Changes in Fiscal Periods. Permit the fiscal year of the
Borrower or DOC to end on a day other than December 31 or change the Borrower or
DOC's method of determining fiscal quarters.
7.12 Limitation on Negative Pledge Clauses. Enter into or suffer to exist
or become effective any agreement that prohibits or limits the ability of DOC or
any of its Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its Property or revenues, whether now owned or hereafter acquired,
to secure the Obligations or, in the case of any guarantor, its obligations
under the Guarantee and Collateral Agreement, other than (a) this Agreement and
the other Loan Documents (b) provisions existing at the date hereof contained in
the Indentures governing the Existing Parent Notes and the New Parent Notes and
the Parent Preferred Stock and in any refinancing of the foregoing (to the
extent permitted by this Agreement) after the Closing Date which does not
contain more restrictive provisions and (c) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in
which case, any prohibition or limitation shall only be effective against the
assets financed thereby).
7.13 Limitation on Restrictions on Subsidiary Distributions. Enter into or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Subsidiary of DOC to (a) make Restricted Payments in respect
of any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed
to, the Borrower or any other Subsidiary, (b) make Investments in the Borrower
or any other Subsidiary or (c) transfer any of its assets to the Borrower or any
other Subsidiary, except for such encumbrances or restrictions existing under or
by reason of (i) any restrictions existing under the Loan Documents and (ii) any
restrictions with respect to a Subsidiary imposed pursuant to an agreement that
has been entered into in connection with the Disposition of all or substantially
all of the Capital Stock or assets of such Subsidiary.
7.14 Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary, except (with respect to the Borrower and its
Subsidiaries) for those businesses in which the Borrower and its Subsidiaries
are engaged on the date of this Agreement or that are reasonably related
thereto.
7.15 Limitation on Amendments to Transaction Documents. (a) Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the indemnities and licenses furnished to DOC or any of its
Subsidiaries pursuant to the Transaction Documents such that after giving effect
thereto such indemnities or licenses shall be materially less favorable to the
interests of the Loan Parties or the Lenders with respect thereto or (b)
otherwise amend, supplement or otherwise modify the terms and conditions of the
Transaction Documents except to the extent that any such amendment, supplement
or modification could not reasonably be expected to have a Material Adverse
Effect.
7.16 Limitation on Amendments to Other Documents. (a) Amend, supplement or
otherwise modify (pursuant to a waiver or otherwise) the terms and conditions of
the Tax Sharing Agreement in any manner that would materially increase the
amounts payable by the Borrower, DOC or any of its Subsidiaries thereunder or
(b) otherwise amend, supplement, terminate or otherwise modify the terms and
conditions of the Tax Sharing Agreement or any Material Agreement, except to the
extent that any such amendment, supplement, termination or modification pursuant
to this clause (b) could not reasonably be expected to have a Material Adverse
Effect.
7.17 Limitation on Hedge Agreements. Enter into any Hedge Agreement other
than Hedge Agreements entered into in the ordinary course of business, and not
for speculative purposes, to manage its exposure to interest rates or foreign
exchange rates.
SECTION 8. COVENANTS OF THE PARENT
The Parent hereby agrees that, so long as the Commitments remain in effect,
any Letter of Credit remains outstanding or any Loan or other amount is owing to
any Lender or any Agent hereunder, it shall not, directly or indirectly:
8.1 Limitation on Indebtedness. (a) Create, incur, assume or suffer to
exist any Indebtedness, except (i) Indebtedness existing on the Closing Date set
forth on Schedule 8.1 and any refinancings, refundings, renewals or extensions
thereof (without any increase in the principal amount thereof outstanding at the
time of such refinancing, refunding, renewal or extension, or any shortening of
the maturity of any principal amount thereof and otherwise on terms not
materially less favorable to the Parent and the Lenders than under the
refinanced, refunded, renewed or extended Indebtedness); (ii) Indebtedness
(including Capital Lease Obligations) secured by Liens permitted by Section
8.2(g) in an aggregate principal amount not to exceed $20,000,000 at any one
time outstanding; (iii) additional unsecured Indebtedness (x) on terms which are
not materially less favorable to the Parent and the Lenders than those contained
in the New Parent Notes Indenture and (y) the aggregate amount of which shall
not exceed $200,000,000 minus the principal amount of Indebtedness outstanding
pursuant to Section 8.1(b) unless (with respect to this clause (y)), on a pro
forma basis giving effect to the incurrence of such Indebtedness, the Parent
Leverage Ratio for the four fiscal quarters ending on the last day of the fiscal
quarter of the Parent then most recently ended, is less than 4.15 to 1; (iv) its
Guarantee Obligations pursuant to the Guarantee and Collateral Agreement; and
(v) Guarantee Obligations with respect to any other Indebtedness of Borrower or
any Subsidiary Guarantor which is permitted to be incurred by Section 7.2.
(b) Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Indebtedness
(other than Indebtedness outstanding under the Facilities) to an extent that the
Borrower would thereby be prevented (pursuant to any Indenture or other
Contractual Obligation limiting the incurrence of Indebtedness by the Parent and
its Subsidiaries then in effect) from making, or permitting to remain
outstanding, Revolving Credit Borrowings in an aggregate principal amount of
$75,000,000.
8.2 Liens. Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, except for: (a) Liens for
Taxes not yet due or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are maintained
on the books of the Parent or its Subsidiaries, as the case may be, in
conformity with GAAP; (b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or that are being contested in
good faith by appropriate proceedings; (c) pledges or deposits in connection
with workers' compensation, unemployment insurance and other social security
legislation; (d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business; (e) easements, rights-of-way, restrictions
and other similar encumbrances incurred in the ordinary course of business that,
in the aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the Property subject thereto or materially
interfere with the ordinary conduct of the business of the Parent and (f) Liens
created pursuant to the Security Documents and (g) Liens securing Indebtedness
outstanding on the Closing Date and permitted pursuant to Section 8.1(a) or
incurred pursuant to Section 8.1(b) in each case to finance the acquisition of
fixed or capital assets, provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any Property other than the
Property financed by such Indebtedness, (iii) the amount of Indebtedness secured
thereby is not increased and (iv) the amount of Indebtedness initially secured
thereby is not more than 100% of the purchase price of such fixed or capital
asset.
8.3 Limitation on Restricted Payments and Investments. Subject as provided
below, (a) Declare or pay any dividend on, or make any payment on account of, or
set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any Capital Stock of
the Parent or any of its Subsidiaries, whether now or hereafter outstanding, or
make any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of the Parent or any of its
Subsidiaries, or enter into any derivatives or other transaction with any
Derivatives Counterparty obligating it or any of its Subsidiaries to make
payments to such Derivatives Counterparty as a result of any change in market
value of any such Capital Stock, except (i) payments in the form of the Parent's
Capital Stock, (ii) regularly-scheduled cash dividends and regularly-scheduled
redemption payments on each series of Parent Preferred Stock, (iii) optional
redemption payments on, and payments to effect repurchases of, each series of
Parent Preferred Stock and exchanges or conversions of Parent Preferred Stock
for or into common stock of the Parent (provided that any consent fee payable in
connection with such exchange or conversion has been approved by the
Administrative Agent, which approval shall not be unreasonably withheld or
delayed), (iv) regularly scheduled dividends on the Parent Preferred Stock, paid
solely in the form of additional shares of Parent Preferred Stock having an
aggregate liquidation preference equal to the amount of such dividends or (v) as
otherwise permitted by Section 8.4(c); or
(b) make any loan to, or capital contribution or other Investment in, or
incur any Guarantee Obligation of any Indebtedness of, any Unrestricted
Subsidiary or any Cellular Partnership unless (i) immediately before and after
giving effect thereto the Parent shall be in pro forma compliance with this
Agreement and (ii) the aggregate amount of all cash and Cash Equivalents
directly owned by the Parent plus the aggregate amount of fully committed
unconditionally available loan facilities available to the Parent at such time
(to the extent that loans can be borrowed by the Parent thereunder without
resulting in a Default under this Agreement or a default under such facilities,
each determined on a pro forma basis after giving effect to such borrowing)
shall be not less than $20,000,000;
provided that the Parent may additionally pay cash dividends on, or purchase or
redeem, any of its Capital Stock, or make any Investments (which are otherwise
restricted pursuant to this Section 8.3) in an aggregate amount not to exceed,
during the term of this Agreement, $5,000,000 plus 10% of the aggregate amount
of all Restricted Payments received by the Parent (following the Closing Date)
from Excess Cash Flow pursuant to Section 7.6(c)(v).
8.4 Limitation on Optional Payments and Modifications of Debt Instruments,
etc. (a) Other than with respect to the refinancing contemplated by the
Transactions, make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, any Subordinated Debt of the Parent or its Subsidiaries (or any
Indebtedness of the Unrestricted Group), or segregate funds for any such
payment, prepayment, repurchase, redemption or defeasance, or enter into any
derivative or other transaction with any Derivatives Counterparty obligating the
Parent or any of its Subsidiaries to make payments to such Derivatives
Counterparty as a result of any change in market value of any Subordinated Debt
of the Parent or its Subsidiaries (or any Indebtedness of the Unrestricted
Group), (b) amend, modify or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms of the
Parent Notes, any Subordinated Debt or other long-term Indebtedness of the
Parent or its Subsidiaries, or any certificate of designation or exchange
debentures with respect to any Parent Preferred Stock (other than any such
amendment, modification, waiver or other change which (i) would extend the
maturity or reduce the amount of any payment of principal thereof, reduce the
rate or extend the date for payment of interest thereon or relax any covenant or
other restriction applicable to the Parent or any of its Subsidiaries and (ii)
does not involve the payment of a consent fee (unless such fee has been approved
by the Administrative Agent, which approval shall not be unreasonably withheld
or delayed), (c) permit any of the convertible or exchangeable Parent Preferred
Stock to be converted into, or exchanged for, Indebtedness of the Parent or any
of its Subsidiaries unless (i) such Indebtedness is incurred by the Parent in
accordance with this Agreement and (ii) does not involve the payment of a
consent fee (unless such fee has been approved by the Administrative Agent,
which approval shall not be unreasonably withheld or delayed) or (d) amend its
certificate of incorporation in any manner determined by the Administrative
Agent to be adverse to the Lenders.
8.5 Limitation on Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of the
Parent or any of its Restricted Subsidiaries to create, incur, assume or suffer
to exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any guarantor,
its obligations under the Guarantee and Collateral Agreement, other than (a)
this Agreement and the other Loan Documents (b) provisions existing at the date
hereof contained in the Indentures governing the Existing Parent Notes and the
New Parent Notes and the Parent Preferred Stock and in any refinancing of the
foregoing (to the extent permitted by this Agreement) after the Closing Date
which does not contain more restrictive provisions and (c) any agreements
governing any purchase money Liens or Capital Lease Obligations otherwise
permitted hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby).
8.6 Limitation on Transactions with Affiliates. Enter into any transaction,
including any purchase, sale, lease or exchange of Property, the rendering of
any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than the Borrower or any Guarantor) unless such transaction is
(a) otherwise expressly permitted under this Agreement or (b) in the ordinary
course of business and (in each case under clause (a) or (b)) upon fair and
reasonable terms no less favorable to the Parent, as the case may be, than it
would obtain in a comparable arm's length transaction with a Person that is not
an Affiliate, except (to the extent not otherwise restricted by this Agreement,
the Indentures or the terms of the Parent's preferred stock, which are then in
effect): (i) any employment agreement, employee benefit plan, officer and
director indemnification agreement or any similar arrangement entered into by
the Parent in the ordinary course of business; (ii) any transaction solely
between the Parent and any Restricted Subsidiary; (iii) the payment of
reasonable and customary regular fees and indemnity payments to directors of the
Parent who are not employees of the Parent and the payment of reasonable
compensation and indemnity payments to officers of the Parent; (iv) any payments
or other transactions pursuant to any tax-sharing agreement between the Parent
and any Person with which the Parent files a consolidated tax return or with
which the Parent is part of a consolidated group for tax purposes; (v) any
payment or Investment or payment permitted by Section 8.3; (vi) any agreement
among the Parent and its Restricted Subsidiaries existing and as in effect on
the Closing Date (provided that any such agreement may be amended or modified to
the extent that the interests of the Parent and the Lenders are not materially
and adversely affected thereby); (vii) payments under the agreements set forth
on Schedule 8.6 in the ordinary course of the Parent's business and on terms no
less favorable to the Parent than would have been obtained in a comparable arm's
length transaction with a Person that is not an Affiliate; (viii) loans or
advances to employees in the ordinary course of the Parent's business not to
exceed in aggregate $3,000,000 at any one time outstanding; and (ix) any
issuance of Capital Stock of the Parent to any of its Affiliates.
8.7 Management Expenses. Charge any of DOC and its Subsidiaries for
management expenses except those which are fair and reasonable and allocated (as
such allocation is approved from time to time by the Administrative Agent) among
all its Subsidiaries on a consistently-applied basis.
8.8 Limitation on Changes in Fiscal Periods. Permit its fiscal year to end
on a day other than December 31 or change its method of determining fiscal
quarters
8.9 Limitation on Hedge Agreements. Enter into any Hedge Agreement other
than Hedge Agreements entered into in the ordinary course of business, and not
for speculative purposes, to manage its exposure to interest rates or foreign
exchange rates.
8.10 Holding Company Status. (Notwithstanding anything to the contrary in
this Agreement or any other Loan Document) conduct, transact or otherwise engage
in, or commit to conduct, transact or otherwise engage in, any business or
operations other than those incidental to its ownership of the Capital Stock of
its Subsidiaries.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance with
the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by any Loan Party
herein or in any other Loan Document or that is contained in any certificate,
document or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove to
have been inaccurate in any material respect on or as of the date made or deemed
made or furnished; or
(c) Any Loan Party shall default in the observance or performance of any
agreement contained in clause (i) or (ii) of Section 6.4(a), Section 6.7(a),
Section 7, Section 8 or in Section 5 of the Guarantee and Collateral Agreement
or (ii) an "Event of Default" under and as defined in any Mortgage shall have
occurred and be continuing; or
(d) Any Loan Party shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied (i) for a period of 5 days with respect to a
default under Sections 6.1 or 6.2 and (ii) for a period of 30 days in each other
case; or
(e) The Parent, the Borrower, DOC or any Subsidiary of the Parent (other
than the Unrestricted Group) shall (i) default in making any payment of any
principal of any Indebtedness (including any Guarantee Obligation, but
excluding, for the purposes of this clause (e), the Loans and Reimbursement
Obligations) on the scheduled or original due date with respect thereto; or (ii)
default in making any payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder
or beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or to become subject to
or mandatory offer to purchase by the obligor thereunder or (in the case of any
such Indebtedness constituting a Guarantee Obligation) to become payable;
provided that a default, event or condition described in clause (i), (ii) or
(iii) of this paragraph (e) shall not at any time constitute an Event of Default
unless, at such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (e) shall have
occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $3,000,000; or
(f) (i) The Parent, the Borrower, DOC or any Subsidiary of the Parent
(other than the Unrestricted Group) shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or the Parent, the Borrower, DOC
or any Subsidiary of the Parent (other than the Unrestricted Group) shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Parent, the Borrower, DOC or any Subsidiary of the Parent
(other than the Unrestricted Group) any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Parent, the Borrower, DOC or any Subsidiary of the Parent
(other than the Unrestricted Group) any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
the Parent, the Borrower, DOC or any Subsidiary of the Parent (other than the
Unrestricted Group) shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Parent, the Borrower, DOC or any
Subsidiary of the Parent (other than the Unrestricted Group) shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) Any Person shall engage in any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any
"accumulated funding deficiency" (as defined in Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan, or any Lien in favor of the
PBGC or a Plan shall arise on the assets of the Parent, the Borrower, DOC or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Parent, Borrower, DOC or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders shall be likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events
or conditions, if any, could, in the sole judgment of the Required Lenders,
reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the Parent,
the Borrower, DOC or any Subsidiary of the Parent (other than the Unrestricted
Group) involving for the Parent, DOC and its Subsidiaries (other than the
Unrestricted Group) taken as a whole a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged coverage)
of $20,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
(i) Any of the Security Documents shall cease, for any reason (other than
by reason of the express release thereof pursuant to Section 11.15), to be in
full force and effect, or any Loan Party or any Affiliate of any Loan Party
shall so assert, or any Lien created by any of the Security Documents shall
cease to be enforceable and of the same effect and priority purported to be
created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and Collateral
Agreement shall cease, for any reason (other than by reason of the express
release thereof pursuant to Section 11.15), to be in full force and effect or
any Loan Party or any Affiliate of any Loan Party shall so assert; or
(k) Any Change of Control shall occur; or
(l) An order is issued by any Governmental Authority, which is not stayed,
vacated or reversed within 30 days of being made, that (i) the Borrower, the
Parent, DOC or any Subsidiary of the Parent (other than the Unrestricted Group)
thereof shall divest a significant portion of its assets pursuant to any
antitrust, restraint of trade, unfair competition, industry regulation, or
similar Laws, or (ii) all or any substantial portion of the assets of the
Borrower, the Parent, DOC or any Subsidiary of the Parent (other than the
Unrestricted Group) shall be condemned, seized, or otherwise appropriated, or
taken into custody or control, which in each case has, or could reasonably be
expected to have, a Material Adverse Effect; or
(m) (i) Any Authorization necessary for the ownership or operations of the
Borrower, the Parent, DOC or any Subsidiary of the Parent (other than the
Unrestricted Group) shall expire, and on or prior to such expiration, the same
shall not have been renewed or replaced by another Authorization authorizing
substantially the same operations by such Person; (ii) any Authorization
necessary for the ownership or operations of the Borrower, the Parent, DOC or
any Subsidiary of the Parent (other than the Unrestricted Group) shall be
canceled, revoked, terminated, rescinded, annulled, suspended, or modified in a
materially adverse respect, or shall no longer be in full force and effect, or
the grant or the effectiveness thereof shall have been stayed, vacated,
reversed, or set aside, (iii) the Borrower, the Parent, DOC or any Subsidiary of
the Parent (other than the Unrestricted Group) is required by any Governmental
Authority to halt construction or operations under any Authorization and such
action shall continue uncorrected for 30 days after the applicable entity has
received notice thereof; or (iv) any Governmental Authority shall make any other
adverse determination which, in each case has, or could reasonably be expected
to have, a Material Adverse Effect;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Majority Revolving Credit Facility Lenders, the Administrative Agent may, or
upon the request of the Majority Revolving Credit Facility Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Revolving
Credit Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. In the case of all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
SECTION 10. THE AGENTS
10.1 Appointment. Each Lender hereby irrevocably designates and appoints
the Agents as the agents of such Lender under this Agreement and the other Loan
Documents, and each Lender irrevocably authorizes each Agent, in such capacity,
to take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to such Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, no Agent shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against any Agent.
10.2 Delegation of Duties. Each Agent may execute any of its duties under
this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions. Neither any Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Loan Document (except to
the extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from its or such
Person's own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by any Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agents under
or in connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or for any failure of any Loan Party
to perform its obligations hereunder or thereunder. The Agents shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party.
10.4 Reliance by Agents. Each Agent shall be entitled to rely, and shall be
fully protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including counsel to
the Loan Parties), independent accountants and other experts selected by such
Agent. The Agents may deem and treat the payee of any Note as the owner thereof
for all purposes unless such Note shall have been transferred in accordance with
Section 11.6 and all actions required by such Section in connection with such
transfer shall have been taken. Each Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Required Lenders
(or, if so specified by this Agreement, all Lenders or any other instructing
group of Lenders specified by this Agreement) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required Lenders (or,
if so specified by this Agreement, all Lenders or any other instructing group of
Lenders specified by this Agreement), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
10.5 Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent shall have received notice from a Lender, the Parent, DOC or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent shall receive such a notice, the Administrative Agent
shall promptly give notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by
this Agreement); provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
10.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither any of the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the possession of such Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification. The Lenders agree to indemnify each Agent in its
capacity as such (to the extent not reimbursed by The Parent or the Borrower and
without limiting the obligation of The Parent or the Borrower to do so), ratably
according to their respective Aggregate Exposure Percentages in effect on the
date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), for,
and to save each Agent harmless from and against, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (including
at any time following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
10.8 Agent in Its Individual Capacity. Each Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with any Loan Party as though such Agent were not an Agent. With respect to its
Loans made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, each Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the
same as though it were not an Agent, and the terms "Lender" and "Lenders" shall
include each Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders and the Borrower. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
shall (unless an Event of Default under Section 9(a) or Section 9(f) with
respect to the Borrower shall have occurred and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective, and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. The Syndication Agent may, at any time, by notice
to the Lenders and the Administrative Agent, resign as Syndication Agent
hereunder, whereupon the duties, rights, obligations and responsibilities of the
Syndication Agent hereunder shall automatically be assumed by, and inure to the
benefit of, the Administrative Agent, without any further act by the Syndication
Agent, the Administrative Agent or any Lender. After any retiring Agent's
resignation as Agent, the provisions of this Section 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement and the other Loan Documents.
10.10 Authorization to Release Liens and Guarantees. The Administrative
Agent is hereby irrevocably authorized by each of the Lenders to effect any
release of Liens or guarantee obligations contemplated by Section 11.15.
10.11 The Arrangers; the Co-Documentation Agents. None of the Arrangers or
the Co-Documentation Agents, in their respective capacities as such, shall have
duties or responsibilities, and shall incur no liability, under this Agreement
and the other Loan Documents.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. (a) Neither this Agreement or any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 11.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Administrative Agent and
each Loan Party party to the relevant Loan Document may, from time to time, (x)
enter into written amendments, supplements or modifications hereto and to the
other Loan Documents (including amendments and restatements hereof or thereof)
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (y) waive, on such terms and conditions as
may be specified in the instrument of waiver, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall:
(i) forgive or reduce the principal amount or extend the final
scheduled date of maturity of any Loan or Reimbursement Obligation, extend
the scheduled date of any amortization payment in respect of any Term Loan,
reduce the stated rate of any interest or fee payable hereunder or extend
the scheduled date of any payment thereof, or increase the amount or extend
the expiration date of any Commitment of any Lender; require additional
consents to be obtained with respect to the sale or any assignment or
participations of any interests of the Lenders hereunder, in each case
without the consent of each Lender directly affected thereby;
(ii) amend, modify or waive any provision of this Section or reduce
any percentage specified in the definition of Required Lenders or Required
Prepayment Lenders, consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement and the other
Loan Documents, release (or subordinate or otherwise agree to change the
priority of the Administrative Agent's security interest in) all or
substantially all of the Collateral or release any of the Guarantors from
its guarantee obligations under the Guarantee and Collateral Agreement, in
each case without the consent of all Lenders, except with respect to any
such release which is made pursuant to Section 11.15;
(iii) amend, modify or waive any condition precedent to any extension
of credit under the Revolving Credit Facility set forth in Section 5.2
(including the waiver of an existing Default or Event of Default required
to be waived in order for such extension of credit to be made) without the
consent of the Majority Revolving Credit Facility Lenders;
(iv) reduce the percentage specified in the definition of Majority
Facility Lenders with respect to any Facility without the written consent
of all Lenders under such Facility;
(v) amend, modify or waive any provision of Section 10, or any other
provision of this Agreement affecting the rights and obligations of any
Agent, without the consent of any Agent directly affected thereby;
(vi) amend, modify or waive any provision of Sections 2.6 or 2.7
without the written consent of the Swing Line Lender;
(vii) amend, modify or waive any provision of Section 2.18 without the
consent of each Lender directly affected thereby; or
(viii) amend, modify or waive any provision of Section 3 without the
consent of the Issuing Lender.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Agents and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Agents shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. Any such waiver,
amendment, supplement or modification shall be effected by a written instrument
signed by the parties required to sign pursuant to the foregoing provisions of
this Section; provided that delivery of an executed signature page of any such
instrument by facsimile transmission shall be effective as delivery of a
manually executed counterpart thereof.
(b) This Agreement and any other Loan Document may be amended (or amended
and restated), provided that no Default shall have occurred which is continuing
or would result therefrom, upon the prior written request of the Borrower to the
Administrative Agent, and without the written consent of the Required Lenders or
the Lenders, (x) to add an additional term loan facility (an "Additional Term
Loan") or revolving credit facility (an "Additional Revolving Credit Facility",
and collectively with the Additional Term Loans, the "Additional Facilities) to
this Agreement and the accrued interest and fees in respect thereof
(collectively, the "Additional Loans") to share ratably in the benefits of this
Agreement and the other Loan Documents with the Term Loans and Revolving Credit
Loans, the accrued interest and fees in respect thereof and the other
Obligations and (y) to include appropriately the Lenders holding such Additional
Loans in any determination of the Required Lenders or Majority Facility Lenders;
provided, however, that (i) the Additional Facilities made on the same date
shall be in a principal amount of at least $50,000,000 and the principal amount
of all Additional Facilities shall not in aggregate exceed $200,000,000, (ii)
any Additional Revolving Credit Facility shall be effected not later than the
date which is 12 months prior to the Revolving Credit Termination Date and any
Additional Term Loans shall be made not later than the date which is 30 months
following the Closing Date, (iii) the Additional Loans shall have a weighted
average life and final maturity which is no shorter than (x) in the case of any
Additional Revolving Credit Facility, the Revolving Credit Facility and (y) in
the case of any Additional Term Loan, the Term Loan Facility, (iv) the
Additional Term Loans shall be repayable in quarterly installments equal to
0.25% of the initial aggregate principal amount thereof in each year until the
final year of maturity, with the remainder being repayable in 4 equal quarterly
installments in the final year of maturity, and such payments shall be on the
same dates as the dates of the Term Loan installments under Section 2.3, (v) the
pricing (including fees, interest and original issue discount) for such
Additional Term Loans shall not exceed the pricing for the Term Loan Facility by
more than 25 basis points unless the pricing of the Term Loan Facility is
increased to the have same pricing as the Additional Term Loans, (vi) except for
any differences permitted hereby, the Additional Term Loans shall have the same
terms and conditions as the Term Loans and the Additional Revolving Credit
Facility shall have the same terms and conditions as the Revolving Credit
Facility and (vii) the proceeds of the Additional Loans shall be used solely to
finance the general corporate purposes of the Borrower and its Subsidiaries,
including making Permitted Acquisitions. The Lenders shall be granted an option
by the Borrower (but no Lender shall have any obligation) to provide the
commitments under any Additional Facility, and each Lender may do so in its sole
discretion.
11.2 Notices. (a) All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (i) in the case of the Parent, DOC, the Borrower and the
Agents, as follows and (ii) in the case of the Lenders, as set forth in an
administrative questionnaire delivered to the Administrative Agent or on
Schedule I to the Lender Addendum to which such Lender is a party or, in the
case of a Lender which becomes a party to this Agreement pursuant to an
Assignment and Acceptance, in such Assignment and Acceptance or (iii) in the
case of any party, to such other address as such party may hereafter notify to
the other parties hereto:
The Parent, DOC and the Borrower 00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Treasurer
Telecopy: 000 000 0000
Telephone: 000 000 0000
The Administrative Agent: Xxxxxx Commercial Paper Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000 000 0000
Telephone: 000 000 0000
Issuing Lender: National City Bank
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: 000 000 0000
Telephone: 000 000 0000.
provided that any notice, request or demand to or upon any Agent, the Issuing
Lender or any Lender shall not be effective until received.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications (other than by telecopy)
pursuant to procedures approved by the Administrative Agent and financial
statements required to be furnished hereunder by the Loan Parties may be
furnished by means of posting to an IntraLinks site to which the Administrative
Agent and each Lender has been granted access; provided that the foregoing shall
not apply to notices pursuant to Sections 2 and 3 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower and each other Loan Party may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications,
and not by telecopy, pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of any Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All representations and
warranties made herein, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
11.5 Payment of Expenses. The Borrower agrees (a) to pay or reimburse the
Agents for all their reasonable out-of-pocket costs and expenses (invoiced in
reasonable detail) incurred in connection with the syndication of the Facilities
(other than fees payable to syndicate members) and the development, preparation
and execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees and
disbursements and other charges of counsel to the Administrative Agent and the
charges of Intralinks, (b) to pay or reimburse each Lender and the Agents for
all their costs and expenses (invoiced in reasonable detail) incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including the fees and disbursements of
counsel (including the allocated fees and disbursements and other charges of
in-house counsel) to each Lender and of counsel to the Agents, (c) to pay,
indemnify, or reimburse each Lender and the Agents for, and hold each Lender and
the Agents harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify or reimburse each Lender, each Agent, their respective
affiliates, and their respective officers, directors, trustees, employees,
advisors, agents and controlling persons (each, an "Indemnitee") for, and hold
each Indemnitee harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Parent, the Borrower, DOC any of its Subsidiaries or any
of the Properties and the fees and disbursements and other charges of legal
counsel in connection with claims, actions or proceedings by any Indemnitee
against the Borrower hereunder (all the foregoing in this clause (d),
collectively, the "Indemnified Liabilities"), provided that the Borrower shall
have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee. No
Indemnitee shall be liable for any damages arising from the use by unauthorized
persons of Information or other materials sent through electronic,
telecommunications or other information transmission systems that are
intercepted by such persons or for any special, indirect, consequential or
punitive damages in connection with the Facilities. Without limiting the
foregoing, and to the extent permitted by applicable law, the Borrower agrees
not to assert and to cause its Subsidiaries not to assert, and hereby waives and
agrees to cause its Subsidiaries so to waive, all rights for contribution or any
other rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws, that any of them might have by
statute or otherwise against any Indemnitee. All amounts due under this Section
shall be payable not later than 10 days after written demand therefor.
Statements payable by the Borrower pursuant to this Section shall be submitted
to the Borrower at the address of the Borrower set forth in Section 11.2, or to
such other Person or address as may be hereafter designated by the Borrower in a
notice to the Administrative Agent. The agreements in this Section shall survive
repayment of the Loans and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of The Parent, the
Borrower, the Lenders, the Agents, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower, in accordance with
applicable law, at any time sell to one or more banks, financial institutions or
other entities (each, a "Participant") participating interests in any Loan owing
to such Lender, any Commitment of such Lender or any other interest of such
Lender hereunder and under the other Loan Documents. In the event of any such
sale by a Lender of a participating interest to a Participant, such Lender's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Agents shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. In no event shall any Participant under any such
participation have any right to approve any amendment or waiver of any provision
of any Loan Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver or consent would
require the consent of all Lenders pursuant to Section 11.1. The Borrower agrees
that if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 11.7(a) as
fully as if such Participant were a Lender hereunder. The Borrower also agrees
that each Participant shall be entitled to the benefits of Sections 2.19, 2.20
and 2.21 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if such Participant were a Lender; provided
that, in the case of Section 2.20, such Participant shall have complied with the
requirements of said Section, and provided, further, that no Participant shall
be entitled to receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable law and
upon written notice to the Administrative Agent, at any time and from time to
time assign to any Lender or any affiliate, Related Fund or Control Investment
Affiliate thereof or, in the case of an assignment to any other Person with the
consent of the Borrower and the Administrative Agent and, in the case of any
assignment of Revolving Credit Commitments, the written consent of the Issuing
Lender and the Swing Line Lender (which, in each case, shall not be unreasonably
withheld or delayed) (provided (x) that no such consent need be obtained by any
Xxxxxx Entity or any Agent for a period of 180 days following the Closing Date
and (y) the consent of the Borrower need not be obtained with respect to any
assignment of Term Loans), to an additional bank, financial institution or other
entity (an "Assignee") all or any part of its rights and obligations under this
Agreement pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit E, executed by such Assignee and such Assignor (and, where the consent
of the Borrower or, the Administrative Agent or the Issuing Lender or the Swing
Line Lender is required pursuant to the foregoing provisions, by the Borrower
and such other Persons) and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided that no such assignment to an
Assignee (other than any Lender or any Affiliate or Related Fund thereof) shall
be in an aggregate principal amount of, and no Assignor shall hold following
such assignment, less than $1,000,000 with respect to the Term Loans and
$1,000,000 with respect to the Revolving Credit Facility (other than in the case
of an assignment of all of a Lender's interests under this Agreement), unless
otherwise agreed by the Borrower and the Administrative Agent. Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with Commitments and/or
Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of an Assignor's rights and obligations under this Agreement, such Assignor
shall cease to be a party hereto, except as to Section 2.19, 2.20 and 10.5 in
respect of the period prior to such effective date). Notwithstanding any
provision of this Section, the consent of the Borrower shall not be required for
any assignment that occurs at any time when any Event of Default shall have
occurred and be continuing. For purposes of the minimum assignment amounts set
forth in this paragraph, multiple assignments by two or more Related Funds shall
be aggregated.
(d) The Administrative Agent shall, on behalf of the Borrower, maintain at
its address referred to in Section 11.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Borrower, each Agent
and the Lenders shall treat each Person whose name is recorded in the Register
as the owner of the Loans and any Notes evidencing such Loans recorded therein
for all purposes of this Agreement. Any assignment of any Loan, whether or not
evidenced by a Note, shall be effective only upon appropriate entries with
respect thereto being made in the Register (and each Note shall expressly so
provide). Any assignment or transfer of all or part of a Loan evidenced by a
Note shall be registered on the Register only upon surrender for registration of
assignment or transfer of the Note evidencing such Loan, accompanied by a duly
executed Assignment and Acceptance; thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the designated Assignee, and the
old Notes shall be returned by the Administrative Agent to the Borrower marked
"canceled". The Register shall be available for inspection by the Borrower or
any Lender (with respect to any entry relating to such Lender's Loans) at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor and an Assignee (and, in any case where the consent of any other Person
is required by Section 11.6(c), by each such other Person) together with payment
to the Administrative Agent of a registration and processing fee of $3,500
(treating multiple, simultaneous assignments by or to two or more Related Funds
as a single assignment) (except that no such registration and processing fee
shall be payable (y) in connection with an assignment by or to a Xxxxxx Entity
or (z) in the case of an Assignee which is already a Lender or is an affiliate
or Related Fund of a Lender or a Person under common management with a Lender),
the Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Borrower. On or prior to such effective date, the
Borrower, at its own expense, upon request, shall execute and deliver to the
Administrative Agent (in exchange for the Revolving Credit Note and/or
applicable Term Notes, as the case may be, of the assigning Lender) a new
Revolving Credit Note and/or applicable Term Notes, as the case may be, to the
order of such Assignee in an amount equal to the Revolving Credit Commitment
and/or applicable Term Loans, as the case may be, assumed or acquired by it
pursuant to such Assignment and Acceptance and, if the Assignor has retained a
Revolving Credit Commitment and/or Term Loans, as the case may be, upon request,
a new Revolving Credit Note and/or Term Notes, as the case may be, to the order
of the Assignor in an amount equal to the Revolving Credit Commitment and/or
applicable Term Loans, as the case may be, retained by it hereunder. Such new
Note or Notes shall be dated the Closing Date and shall otherwise be in the form
of the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement acknowledge that
the provisions of this Section concerning assignments of Loans and Notes relate
only to absolute assignments and that such provisions do not prohibit
assignments creating security interests in Loans and Notes, including any pledge
or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
(g) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any state thereof. In addition,
notwithstanding anything to the contrary in this Section 11.6(g), any SPC may
(A) with notice to, but without the prior written consent of, the Borrower and
the Administrative Agent and without paying any processing fee therefor, assign
all or a portion of its interests in any Loans to the Granting Lender, or with
the prior written consent of the Borrower and the Administrative Agent (which
consent shall not be unreasonably withheld) to any financial institutions
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans, and (B) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC; provided that non-public information with
respect to the Borrower may be disclosed only with the Borrower's consent which
will not be unreasonably withheld. This paragraph (g) may not be amended without
the written consent of any SPC with Loans outstanding at the time of such
proposed amendment.
11.7 Adjustments; Set-off. (a) Except to the extent that this Agreement
provides for payments to be allocated to a particular Lender or to the Lenders
under a particular Facility, if any Lender (a "Benefited Lender") shall at any
time receive any payment of all or part of the Obligations owing to it, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 9(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Obligations, such Benefited Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Obligations, or shall provide such other Lenders with the benefits of
any such collateral, as shall be necessary to cause such Benefited Lender to
share the excess payment or benefits of such collateral ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefited Lender, such purchase shall
be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to the Parent, DOC or the
Borrower, any such notice being expressly waived by the Parent, DOC and the
Borrower to the extent permitted by applicable law, upon any amount becoming due
and payable by the Parent, DOC or the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the Parent,
DOC or the Borrower, as the case may be. Each Lender agrees promptly to notify
the Borrower and the Administrative Agent after any such setoff and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such setoff and application.
11.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement or of a
Lender Addendum by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
11.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents represent
the entire agreement of The Parent, the Borrower, the Agents, the Arranger and
the Lenders with respect to the subject matter hereof and thereof, and there are
no promises, undertakings, representations or warranties by the Arranger, any
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. Each of The Parent, DOC and the
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or proceeding
relating to this Agreement and the other Loan Documents to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in Section 11.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to xxx in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
11.13 Acknowledgments. Each of The Parent, DOC and the Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Arranger, any Agent nor any Lender has any fiduciary
relationship with or duty to any Loan Party arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Arranger, the Agents and the Lenders, on one hand, and any Loan Party on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Arranger, the Agents and the Lenders or among the Loan Parties, the Borrower and
the Lenders.
11.14 Confidentiality. Each of the Agents and the Lenders agrees to keep
confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to any Agent, any other Lender or any
affiliate of any thereof, (b) to any Participant or Assignee (each, a
"Transferee") or prospective Transferee that agrees to comply with the
provisions of this Section or substantially equivalent provisions, (c) to any of
its employees, directors, agents, attorneys, accountants and other professional
advisors, in each case on a "need to know" basis, (d) to any financial
institution that is a direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section), (e) upon the
request or demand of any Governmental Authority having jurisdiction over it, (f)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (g) in connection with
any litigation or similar proceeding, (h) that has been publicly disclosed other
than in breach of this Section, (i) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender or (j) in
connection with the exercise of any remedy hereunder or under any other Loan
Document; provided that prior to disclosure pursuant to clauses (f) or (g)
above, the relevant Agent or Lender shall (to the extent that it is lawfully
permitted to do so, as determined by it in consultation with counsel) give
reasonable prior notice of such disclosure to the Borrower. Notwithstanding
anything herein to the contrary, any party subject to confidentiality
obligations hereunder or under any other related document (and any employee,
representative or other agent of such party) may disclose to any and all
persons, without limitation of any kind, such party's U.S. federal income tax
treatment and tax structure of the transactions contemplated by this Agreement
relating to such party and all materials of any kind (including opinions or
other tax analyses) that are provided to it relating to such tax treatment and
tax structure. However, no such party shall be required to disclose any
information relating to such tax treatment or tax structure to the extent
nondisclosure is reasonably necessary in order to comply with applicable
securities laws. Subject to the foregoing, nothing herein shall release any
Lender from any other confidentiality agreement previously executed with any
Borrower.
11.15 Release of Collateral and Guarantee Obligations.
(a) Notwithstanding anything to the contrary contained herein or in any
other Loan Document, upon request of the Borrower in connection with any
Disposition of Property permitted by the Loan Documents, the Administrative
Agent shall (without notice to, or vote or consent of, any Lender, or any
affiliate of any Lender that is a party to any Specified Hedge Agreement) take
such actions as shall be required to release its security interest in any
Collateral being Disposed of in such Disposition, and to release any guarantee
obligations under any Loan Document of any Person being Disposed of in such
Disposition, to the extent necessary to permit consummation of such Disposition
in accordance with the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein or any other
Loan Document, when all Obligations (other than obligations in respect of any
Specified Hedge Agreement) have been paid in full, all Commitments have
terminated or expired and no Letter of Credit shall be outstanding, upon request
of the Borrower, the Administrative Agent shall (without notice to, or vote or
consent of, any Lender, or any affiliate of any Lender that is a party to any
Specified Hedge Agreement) take such actions as shall be required to release its
security interest in all Collateral, and to release all guarantee obligations
under any Loan Document, whether or not on the date of such release there may be
outstanding Obligations in respect of Specified Hedge Agreements. Any such
release of guarantee obligations shall be deemed subject to the provision that
such guarantee obligations shall be reinstated if after such release any portion
of any payment in respect of the Obligations guaranteed thereby shall be
rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or any
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Borrower or any
Guarantor or any substantial part of its property, or otherwise, all as though
such payment had not been made.
11.16 Accounting Changes. In the event that any "Accounting Change" (as
defined below) shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this Agreement, then
the Borrower and the Administrative Agent agree to enter into negotiations in
order to amend such provisions of this Agreement so as to equitably reflect such
Accounting Change with the desired result that the criteria for evaluating the
Borrower's financial condition shall be the same after such Accounting Change as
if such Accounting Change had not been made. Until such time as such an
amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. "Accounting Change"
refers to any change in accounting principles required by the promulgation of
any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
11.17 Delivery of Lender Addenda. Each initial Lender shall become a party
to this Agreement by delivering to the Administrative Agent a Lender Addendum
duly executed by such Lender, the Borrower and the Administrative Agent.
11.18 FCC Compliance. Notwithstanding anything to the contrary in this
Agreement and the other Loan Documents, no party hereto or thereto shall,
without first obtaining the approval of the applicable Communications Regulatory
Authority, take any action under this Agreement or the other Loan Documents that
would constitute or result in an assignment of any FCC License or a change of
control over any FCC License, to the extent that such assignment or change of
control would require, under any Requirements of Law applicable at the time,
such prior approval of such Communications Regulatory Authority.
11.19 WAIVERS OF JURY TRIAL. THE PARENT, DOC, THE BORROWER, THE AGENTS AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
[SIGNATURE PAGE TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
XXXXXX CELLULAR SYSTEMS, INC.,
as Borrower,
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
XXXXXX OPERATING CO., L.L.C.
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Assistant General Manager
XXXXXX COMMUNICATIONS CORPORATION
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
XXXXXX BROTHERS INC.,
as Administrative Agent, Swingline Lender and
a Lender
By: G. XXXXXX XXXXXXX
Name: G. Xxxxxx Xxxxxxx
Title: Managing Director
BEAR XXXXXXX CORPORATE LENDING INC.,
as Syndication Agent and a Lender
By: XXXXXXX XXXX XXXXX
Name: Xxxxxxx Xxxx Xxxxx
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Documentation Agent and a Lender
By: JAAP L. TONCKENS
Name: Jaap L. Tonckens
Title: Vice President
Xxxxxx Xxxxxxx Senior Funding
NATIONAL CITY BANK,
as Issuing Lender and a Lender
By: XXXXX X. XxXXXXX
Name: Xxxxx X. XxXxxxx
Title: Senior Vice President
Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE LOANS,
AND COMMITMENT FEES
---------------------------------------------------------- ----------------------------------------------------
Applicable Margin for the Revolving Credit Applicable Margin for the Term Loan Facility
Facility --------------------------------------------
------------------------------------------
Parent Leverage Ratio Eurodollar Base Rate DOC Leverage Ratio Eurodollar Base Rate
Loans Loans Loans Loans
--------------------- ---------- --------- ------------------ ---------- ---------
equal to or greater than 3.25% 2.25% equal to or greater 3.25% 2.25%
4.5:1 than 1.0:1
less than 4.5:1 but equal 3.00% 2.00% less than 1.0:1 3.00% 2.00%
to or greater than 4.0:1
less than 4.0:1 but equal 2.75% 1.75%
to or greater than 3.5:1
less than 3.5:1 but equal 2.50% 1.50%
to or greater than 3.0:1
less than 3.0:1 2.25% 1.25%
Changes in the Applicable Margin with respect to Revolving Credit Facility
resulting from changes in the Parent Leverage Ratio or the Term Loan Facility
resulting from changes in the DOC Leverage Ratio shall become effective on the
date (the "Adjustment Date") on which financial statements are delivered to the
Lenders pursuant to Section 6.1 of the Credit Agreement (but in any event not
later than the 60th day after the end of each of the first three quarterly
periods of each fiscal year or the 120th day after the end of each fiscal year,
as the case may be) and shall remain in effect until the next change to be
effected pursuant to this paragraph. If any financial statements referred to
above are not delivered within the time periods specified above, then, until
such financial statements are delivered, the Parent Leverage Ratio as at the end
of the fiscal period that would have been covered thereby shall for the purposes
of this Pricing Grid be deemed to be greater than 4.5 to 1 and the DOC Leverage
Ratio as at the end of the fiscal period that would have been covered thereby
shall for the purposes of this Pricing Grid be deemed to be greater than 1.0 to
1. In addition, at all times while an Event of Default shall have occurred and
be continuing, the Parent Leverage Ratio shall for the purposes of this Pricing
Grid be deemed to be greater than 4.5 to 1 and the DOC Leverage Ratio shall for
the purposes of this Pricing Grid be deemed to be greater than greater than 1.0
to 1. Each determination of the Parent Leverage Ratio and the DOC Leverage Ratio
pursuant to this Pricing Grid shall be made for the periods and in the manner
contemplated by Section 7.1 of the Credit Agreement.
Schedule 4.4
Consents, Authorizations, Filings and Notices
1. Xxxxxx Communications Corporation and Xxxxxx/Sygnet Communications Company
must provide notice to their respective holders of their 12 1/4% Senior
Exchangeable Preferred Stock and the Xxxxxx/Sygnet Senior Notes of (i) the
closing of the Credit Agreement, and (ii) the acceptance of tendered 12
1/4% Senior Exchangeable Preferred Stock and the Xxxxxx/Sygnet Senior
Notes. These notices will be made on or about the Closing Date and five
business days thereafter respectively.
2. Xxxxxx Cellular Systems, Inc. must provide notice of the Merger to (a) the
State of Ohio contemporaneous with the Merger, and (b) to the FCC after the
Merger.
Schedule 4.6
1. Xxxxxx Communications Corporation and Xxxxxx Cellular Systems, Inc., are
named as defendants in a lawsuit filed on May 2, 2003, by LS PCS, Inc. d/b/a
Lone Star Phones, in the United Stated District Court for the Northern District
of Texas (Civ. Action No: 3-03CV-0925-H). The plaintiff was a dealer-agent for
Xxxxxx Cellular Systems for about 18 months, but had no contractual relationship
with Xxxxxx Communications Corporation. The plaintiff has alleged that it had
three agreements with Xxxxxx Cellular Systems to enroll subscribers in three
cellular systems in Texas operated by Xxxxxx Cellular Systems. The plaintiff
also claims that Xxxxxx Cellular Systems orally agreed to grant the plaintiff
the right to enroll subscribers in cellular systems operated by Xxxxxx Cellular
Systems on a nationwide basis. The plaintiff claims, inter alia, that Xxxxxx
Cellular Systems prevented plaintiff from enrolling subscribers on a nationwide
basis and that Xxxxxx Cellular Systems wrongfully terminated the plaintiff's
dealer agreements for Texas. The plaintiff seeks actual damages in excess of $27
million, exemplary damages, punitive damages, interest and costs.
2. Xxxxxx Communications Corporation and Xxxxxx Cellular Systems, Inc. are
named defendants in Xxxxxxx v. Audiovox, et al. Further, several class actions
are pending against numerous defendants, including Cellular One Group, and in
connection with those suits Cellular One has asserted a claim against Xxxxxx
Communications Corporation for indemnification against liabilities resulting
from that litigation. All of these cases have been consolidated as part of a
multidistrict litigation proceeding in the United States District Court for the
District of Maryland. These cases involve claims by the plaintiffs that cell
phone manufacturers and service providers (i) failed to disclose alleged dangers
of radio frequency radiation and (ii) failed to provide free headsets to prevent
the alleged risks. The District Court granted defendants' motion to dismiss the
class actions, but that decision is on appeal.
Schedule 4.15(a)
Subsidiaries
Subsidiary Guarantors to Credit Facility
----------------------------------------
Ownership
Issuer Jurisdiction Class of Equity Shareholder Interest
------ ------------ --------------- ----------- --------
Xxxxxx Cellular Systems, Inc. Oklahoma Common Stock Xxxxxx Operating Co., L.L.C. 100%
Xxxxxx Operating Co., L.L.C. Oklahoma Membership Xxxxxx Communications Corporation 100%
Interest
DOC Lease Co., L.L.C. Oklahoma Membership Xxxxxx Cellular Systems, Inc. 100%
Interest
Maryland RSA 2, LLC Delaware Membership Xxxxxx Cellular Systems, Inc. 100%
Interest
Michigan RSA Sub LLC Delaware Membership Xxxxxx Cellular Systems, Inc. 100%
Interest
Subsidiaries of the Parent which are not Guarantors of Credit Facility
----------------------------------------------------------------------
Jurisdiction of
Entity Incorporation/Organization
------ --------------------------
Western Financial Services Corp.** Oklahoma
DCC PCS, Inc. Oklahoma
Xxxxxx XX Company Oklahoma
Xxxxxx Tower Company** Oklahoma
Santa Xxxx Cellular Telephone, Inc.* ** California
Oklahoma Independent RSA 5 Partnership* Oklahoma
Oklahoma Independent RSA 7 Partnership* Oklahoma
Oklahoma RSA 5 Limited Partnership* Oklahoma
Oklahoma RSA 7 Limited Partnership* Oklahoma
Texas RSA 2 Limited Partnership* Texas
American Cellular Corporation Delaware
ACC of Michigan Corporation Delaware
ACC of Minnesota Corporation Delaware
ACC of Ohio Corporation Delaware
ACC of West Virginia Corporation Delaware
Alexandra Cellular Corporation Delaware
ACC Lease Co., Inc. Oklahoma
ACC of Kentucky, LLC Delaware
ACC of Pennsylvania, LLC Delaware
ACC of Wisconsin LLC Delaware
American Cellular Wireless, LLC Delaware
PCPCS Corporation** Delaware
Chill Cellular Corporation Delaware
ACC West Virginia License LLC Delaware
ACC Pennsylvania License LLC Delaware
ACC of Tennessee LLC** Delaware
ACC Tennessee License LLC** Delaware
ACC Minnesota License LLC Delaware
ACC New York I License LLC Delaware
ACC New York II License LLC Delaware
ACC New York III License LLC Delaware
ACC Michigan License LLC Delaware
Dutchess County Cellular Telephone Company, Inc. Delaware
ACC Ohio License LLC Delaware
ACC Wisconsin License LLC Delaware
ACC of Wausau Corporation Delaware
ACC Wausau License LLC Delaware
ACC Kentucky License LLC Delaware
Xxxxx CellTelCo Cellular Corporation Delaware
Xxxxx CellTelCo Partnership Illinois
* DCS subsidiaries. See 4.15(d) for amount of ownership interest related to
all subsidiaries other than Santa Xxxx Cellular Telephone, Inc. Santa Xxxx
Cellular Telephone, Inc. is wholly owned by DCS.
** Inactive entities without assets; Santa Xxxx Cellular Telephone, Inc. to be
dissolved as soon as final tax return is released from State of California.
Schedule 4.15(d)
Partnership Interests
Limited Partnership Interests
-----------------------------
1. Oklahoma RSA 5 Limited Partnership
Formation: 8-9-89 Oklahoma
Partnership Interest: Oklahoma Independent RSA 5 Partnership - 99%
2. Oklahoma RSA 7 Limited Partnership
Formation: 8-9-89 Oklahoma
Partnership Interest: Oklahoma Independent RSA 7 Partnership - 99%
3. Texas RSA No. 2 Limited Partnership
Formation: 2-19-91 Texas
Partnership Interest: Xxxxxx Cellular Systems, Inc. - 61% (General Partner)
4. Oklahoma RSA 3 Limited Partnership
Formation: Oklahoma
Partnership Interest: Xxxxxx Cellular Systems, Inc. - 5% (Limited Partner)
General Partnerships
--------------------
1. Oklahoma Independent RSA 5 Partnership
Formation: 3-21-94 Oklahoma
Partnership Interest: Xxxxxx Cellular Systems, Inc. - 65%
2. Oklahoma Independent RSA 7 Partnership
Formation: 3-21-94 Oklahoma
Partnership Interest: Xxxxxx Cellular Systems, Inc. - 65%
3. Xxxxx CellTelCo Partnership
Partnership Interest: American CellTelCo Corporation - 87%
Affiliate Indebtedness
----------------------
Current
Issuer Payee Principal Amount
------ ----- ----------------
1. DCC PCS, INC. Xxxxxx Operating Co., L.L.C. $50,000,000
2. Gila River Telecommunications Xxxxxx Operating Co., L.L.C. $1,394,313.46
Subsidiary, Inc.
3. Xxxxxx Operating Co., L.L.C. Xxxxxx Cellular Systems, Inc. $70,000,000
Schedule 4.19(a)-1
UCC Filing Jurisdictions
1. Oklahoma County, Oklahoma with respect to each Loan Party other than
Maryland RSA 2, LLC and Michigan RSA Sub LLC.
2. Delaware Secretary of State with respect to Maryland RSA 2, LLC and
Michigan RSA Sub LLC.
3. Transmitting utility filings with respect to each Loan Party, as
applicable, according to the laws of the states where such a filing is required,
including, but not limited to:
A. Central filing office of Alaska's Department of Natural Resources
B. Arizona Secretary of State
C. Kansas Secretary of State
D. Maryland State Department of Assessments and Taxation
E. Michigan Secretary of State
F. Missouri Secretary of State
G. New York Secretary of State
H. Ohio Secretary of State
I. Oklahoma Secretary of State pursuant to Sections 17 and 18 of
Title 46 of the Oklahoma Statutes.
J. Pennsylvania Secretary of the Commonwealth
K. Texas Secretary of State
L. West Xxxxxxxx Secretary of State
4. United States Patent and Trademark Office
5. Office in which fixture filings are made according to the governing laws
of the applicable state.
Schedule 4.19(a)-2
UCC Financing Statements to Remain on File
Original
Debtor Secured Party Jurisdiction File No. Collateral
------- ------------------------ ------------------------ ------------------- ----------------- -------------------
1. Xxxxxx Cellular Norwest Financial California Sec. 0000000000 Equipment
Systems, Inc. Leasing, Inc. of State
2. Cellco Partnership Oklahoma County, 2002002633927 Equipment
OK
3. Nortel Networks, Inc. Oklahoma County, 2002007002720 Equipment
OK
4. Palisades Acquisition Oklahoma County, 200300758937 Notice Filing
I, LLC OK
------- ------------------------ ------------------------ ------------------- ----------------- -------------------
5. Xxxxxx Communications Sun Microsystems Oklahoma County, 0046207 Lease Notice Filing
Corporation Finance OK
6. Copelco Capital Inc. Xxxxxxxx Xxxxxx, 0000000 Lease Notice Filing
OK
7. United Capital Leasing Xxxxxxxx Xxxxxx, 0000000 Equipment
Corp. OK
8. Bank Xxxxxx Xxxxxxxx Xxxxxx, 0000000 Equipment
OK
9. Bank United Oklahoma County, 0016254 Equipment
OK
10. Bank United Oklahoma County, 0026201 Equipment
OK
11. Texas Capital Bank Oklahoma County, 0026468 Equipment
OK
12. Forum Financial Xxxxxxxx Xxxxxx, 0000000 Equipment
Services OK
13. Forum Financial Xxxxxxxx Xxxxxx, 0000000 Equipment
Services OK
14. Forum Financial Xxxxxxxx Xxxxxx, 0000000 Equipment
Services OK
15. Forum Financial Xxxxxxxx Xxxxxx, 0000000 Equipment
Services OK
16. Forum Financial Oklahoma County, N0004801 Equipment
Services OK
17. Texas Capital Bank Oklahoma County, N0004802 Equipment
OK
18. Forum Financial Oklahoma County, N0004803 Equipment
Services OK
19. Forum Financial Oklahoma County, N0000273 Equipment
Services OK
20. Citicorp Vendor Oklahoma County, 0015712 Lease Notice Filing
Finance, Inc. OK
21. Leasetec Corporation Oklahoma County, 0032060 Equipment
OK
22. Forum Financial Oklahoma County, 2001010979534 Equipment
Services, Inc. OK
23. Great American Leasing Oklahoma County, 2001011030816 Equipment
Corporation OK
24. Forum Financial Oklahoma County, 2001011012917 Equipment
Services, Inc. OK
25. Nortel Networks, Inc. Oklahoma County, 2001011093623 Equipment
OK
26. Forum Financial Oklahoma County, 2002001379226 Equipment
Services OK
27. Washington Mutual Bank Oklahoma County, 2002004422319 Equipment
OK
28. Alcatel USA Marketing, Oklahoma County, 2002010583627 Equipment
Inc. OK
29. Alcatel USA Marketing, Oklahoma County, 2002010584325 Equipment
Inc. OK
30. Alcatel USA Marketing, Oklahoma County, 2002010584426 Equipment
Inc. OK
31. General Electric Oklahoma County, 200303262826 Aircraft
Capital Corporation OK
32. Washington Mutual Texas Sec. of 02-0016220518 Equipment
Bank, S.A. State
33. Xxxxxxx National Bank Texas Sec. of 03-0019673433 Equipment
State
34. Xxxxxxx National Bank Texas Sec. of 03-0020453178 Equipment
State
35. Xxxxxxx National Bank Texas Sec. of 03-0020467274 Equipment
State
36. Xxxxxxx National Bank Texas Sec. of 03-0023550381 Equipment
State
37. Xxxxxxx National Bank Texas Sec. of 03-0024061874 Equipment
State
38. Xxxxxxx National Bank Texas Sec. of 03-0025351726 Equipment
State
39. Xxxxxxx National Bank Texas Sec. of 03-0027758658 Equipment
State
------- ------------------------ ------------------------ ------------------- ----------------- -------------------
40. Sygnet Communications Nortel Networks Ohio Sec. of State OH00050021862 Equipment
Company
------- ------------------------ ------------------------ ------------------- ----------------- -------------------
41. Sygnet Wireless, Inc. Xxxxxx Cellular Ohio Sec. of State OH00065457630 Notice Filing
Systems, Inc. and
American Cellular
Corporation
42. Xxxxxx Cellular Oklahoma County, 2003007235022 Notice Filing
Systems, Inc. and OK
American Cellular
Corporation
------- ------------------------ ------------------------ ------------------- ----------------- -------------------
43. Xxxxxx/Sygnet Xxxxxx Leasing Corp. Oklahoma County, 2001007261928 Equipment
Communications Company OK
------- ------------------------ ------------------------ ------------------- ----------------- -------------------
44. Xxxxxx Operating Co., BCC Equipment Leasing Oklahoma County, 0059432 Equipment
L.L.C. Corporation OK
45. Xxxxxx Cellular Oklahoma County, 2003007235022 Notice Filing
Systems, Inc., OK
American Cellular
Corporation
------- ------------------------ ------------------------ ------------------- ----------------- -------------------
46. DOC Lease Co., LLC Nortel Networks Oklahoma County, 2003005028828 Equipment
OK
Schedule 4.19(a)-3
UCC Financing Statements to be Terminated
Debtor Jurisdiction Original Oklahoma
File No. In Lieu Filings
---- --------------------------------- ------------------------- -------------------- -----------------------
1. Xxxxxx Cellular Systems, Inc. Alaska, (Central file) 476096 2002013125319
(Oklahoma corporation)
2. Alaska, (Utility filing) 476097
3. Arizona Sec. of State 01101478 2002002144116
4. Arizona Sec. of State 01101477 1548.2
(Utility Security
Filing)
5. Arizona Sec. of State 01011466 2002002144116
6. Arizona Sec. of State 01086879 2002002144116
7. Arizona Sec. of State 01086880 1548.2
(Utility Security
filing)
8. California Sec. of State 0003160159 2002002144116
9. California Sec. of State 9828960467 2002002144116
10. California Sec. of State 9809860573 2002002144116
11. California Sec. of State 9809860565 2002002144116
12. California Sec. of State 9820360931 2002002144116
13. California Sec. of State 9809860571 2002002144116
14. Georgia, Xxxxxx County 060200020810 2002002144116
Superior Court
15. Kansas Sec. of State 3256351 2002013125319
16. Kansas Sec. of State 3256336
(Utility filing)
17. Kansas Sec. of State 2229585 2002014647935
18. Kansas Sec. of State 2229584 2002014647935
19. Kansas Sec. of State 2446022
(Utility filing)
20. Kansas Sec. of State 2229586
21. Maryland State 181052019 2002013125319
Department of
Assessments and Taxation
22. Maryland State 181052020
Department of
Assessments and
Taxation (Utility
filing)
23. Maryland Department of 170658439 Liber 2002001300109
Assessment and Taxation 3905 Folio
2300-2304
24. Maryland Department of 181035188, Book 2002014647935
Assessment and Taxation 96, Page 2563
25. Michigan Sec. of State D612620 2002013125319
26. Michigan Sec. of State D612619
(Utility filing)
27. Michigan Sec. of State D430423 2002014647935
28. Michigan Sec. of State D361462 2002014647935
29. Michigan Sec. of State D361461 2002014647935
30. Xxxxxxxxxx Xxxxxx, XX 0000-00 2002013125319
31. Xxxxxxx Xxxxxx, XX 00000 2002013125319
32. Missouri Sec. of State 4005890 2002013125319
33. Missouri Sec. of State 4005886
(Utility filing)
34. Missouri Sec. of State 2645121 2002014647935
35. Xxxxxxxxxx County, MO 96-337 2002014647935
36. Xxxxxxxxxx Xxxxxx, XX 00-000, Book 467,
(fixture filing) Page 378
37. Nodaway County, MO 0994, Book 495,
(fixture filing) Page 222
38. Xxxxxxx Xxxxxx, XX 00000 2002014647935
39. Missouri Sec. of State 2645119 2002014647935
40. Missouri Sec. of State 2645120
(Utility filing)
41. Missouri Sec. of State 2899294
(Utility filing)
42. Ohio, Erie County 21618 2002002144116
Recorder (Local filing)
43. Ohio, Erie County 22162
Recorder (Chattel
Mortgage)
44. Xxxx, Xxxxx Xxxxxx 00000 2002002144116
Recorder (Local filing)
45. Ohio, Huron County 000082729
Recorder (Chattel
Mortgage)
46. Ohio Sec. of State AP0209136 2002002144116
47. Ohio Sec. of State AP0209135 1548.2
(Utility filing)
48. Ohio, Seneca County 200000005280 2002002144116
Recorder (Local filing)
49. Ohio, Seneca County 200000005956
Recorder (Chattel
Mortgage)
50. Ohio Sec. of State XX0000000 2002002144116
51. Xxxxxxxx Xxxxxx, XX X0000000
52. Oklahoma Sec. of State 1548.1
(Utility filing)
53. Xxxxxxxx Xxxxxx, XX X00000
54. Xxxxxxxx Xxxxxx, XX X00000
55. Xxxxxxxx Xxxxxx, XX X00000
56. Xxxxxxxx Xxxxxx, XX X00000
57. Xxxxxxxx Xxxxxx, XX X00000
58. Xxxxxxxx Xxxxxx, XX X00000
59. Xxxxxxxx Xxxxxx, XX X00000
60. Oklahoma Sec. of State 1137.5
(Utility filing)
61. Oklahoma Sec. of State 1137.2
(Utility filing)
62. Xxxxxxxx Xxxxxx, XX X00000
63. Xxxxxxxx Xxxxxx, XX 000000
64. Xxxxxxxx Xxxxxx, XX X00000
65. Xxxxxxxx Xxxxxx, XX 000000 2002001300109
66. Xxxxxxxx Xxxxxx, XX X00000
67. Xxxxxxxx Xxxxxx, XX X00000
68. Xxxxxxxx Xxxxxx, XX X0000000
69. Xxxxxxxx Xxxxxx, XX X00000
70. Xxxxxxxx Xxxxxx, XX X00000
71. Xxxxxxxx Xxxxxx, XX X00000
72. Oklahoma Sec. of State 1138.5
(Utility filing)
73. Oklahoma Sec. of State 1138.2
(Utility filing)
74. Xxxxxxxx Xxxxxx, XX X00000
75. Oklahoma County, OK 2003006923328
76. Pennsylvania, Bedford 35892 2002013125319
County Prothonotary
77. Pennsylvania, Sec. of 31210990 2002013125319
the Commonwealth
78. Pennsylvania, Sec. of 31210995
the Commonwealth
(Utility filing)
79. Pennsylvania Sec. of 26431057 - 2002001300109
the Commonwealth 26431060
80. Pennsylvania Sec. of 28770423
the Commonwealth
(Utility filing)
81. Bedford County 34,215 2002001300109
Prothonotary, PA
82. Texas Sec. of State 00-415194 2002013125319
83. Texas Sec. of State 00-415198
(Utility filing)
84. Texas Sec. of State 98-067794 2002014647935
85. Texas Sec. of State 053545 2002014647935
86. Texas Sec. of State 98-243588 2002014647935
87. Texas Sec. of State 98-067795 2002014647935
88. Texas Sec. of State 98-070192
(Utility filing)
89. Texas Sec. Of State 98-067796
(Utility filing)
90. West Virginia Sec. of 532890 2002013125319
State
91. West Virginia Sec. of 532889
State (Utility filing)
92. West Virginia Sec. of 0520851 2002014647935
State
93. West Virginia Sec. of 0520852
State (Utility filing)
94. Xxxxxx Communications Xxxxxxxx Xxxxxx, XX X0000000
Corporation (Oklahoma
corporation)
95. Xxxxxxxx Xxxxxx, XX X00000
96. Texas Sec. of State 00-415195 2002013125218
97. Xxxxxx Operating Co., L.L.C. Xxxxxxxx Xxxxxx, XX X000000
(Oklahoma L.L.C.)
98. Oklahoma Sec. of State 1549.1
(Utility filing)
99. Xxxxxxxx Xxxxxx, XX X00000
100. Oklahoma County, OK 2002004200717
101. Oklahoma County, OK 2002001300210
102. Xxxxxxxx Xxxxxx, XX X00000
103. Xxxxxxxx Xxxxxx, XX X00000
104. Texas Sec. of State 00-420023 2002013125117
105. Texas Sec. of State 036117 2002001300210
106. Texas Sec. Of State 98-067796
107. Oklahoma RSA 0 Xxxxxxx Xxxxxxxx Xxxxxx, XX X0000000
Partnership (Oklahoma LP)
108. Oklahoma Sec. of State 1251.3
(Utility filing)
109. Xxxxxxxx Xxxxxx, XX X00000
110. Oklahoma Sec. of State 1251.1
(Utility filing)
111. Oklahoma Sec. of State 1251.2
(Utility filing)
112. Oklahoma RSA 0 Xxxxxxx Xxxxxxxx Xxxxxx, XX X0000000
Partnership (Oklahoma LP)
113. Oklahoma Sec. of State 1252.4
(Utility filing)
114. Xxxxxxxx Xxxxxx, XX X00000
115. Oklahoma Sec. of State 1252.3
(Utility filing)
116. Oklahoma Sec. of State 1252.1
(Utility filing)
117. Santa Xxxx Cellular Telephone, California Sec. of State 0003160301 2002014648027
Inc. (Oklahoma corporation)
118. California Sec. of State 9817760993 2002014648027
119. Oklahoma County, OK N0000530 200201312506
120. Oklahoma Sec. of State 1550.1
(Utility filing)
121. Xxxxxxxx Xxxxxx, XX X00000
122. Texas Sec. of State 00-415196 200201312506
123. Texas RSA Xx. 0 Xxxxxxx Xxxxxxxx Xxx. xx Xxxxx 0000.0
Partnership (Texas LP) (Utility filing)
124. In lieu filing made with the Oklahoma County, OK N0000531 03-0005336212
Texas Secretary of State
125. In lieu filing made with the Oklahoma County, OK N02758 03-0009271052
Texas Secretary of State
126. Oklahoma Sec. of State 1477.1
(Utility filing)
127. Texas Sec. of State 00-415197
128. Texas Sec. of State 00-415199
(Utility filing)
129. Texas Sec. of State 98-067796
(Utility filing)
130. Texas Sec. of State 94-220682
(Utility filing)
131. Xxxxx Xxxxx County, OK 4167, Book 1552,
(fixture filing) Page 533
132. Xxxxxxxxx Xxxxxx, XX 00000, Book 21,
(fixture filing) Page 755
133. Xxxxxx/Sygnet Operating Company Oklahoma County, OK N0011312 OH00055736731
(successor by merger into (central)
Sygnet Wireless, Inc.)
134. Xxxxxx/Sygnet Communications Xxx Xxxx Xxxx. xx Xxxxx. 000000
Company
135. Xxxxxxxx Xxxxxx, XX 0000000
136. Sygnet Wireless, Inc. Ohio Sec. of State AP0109917
(central)
137. Ohio Sec. of State AP0109914
(utility)
138. Cuyahoga County, Ohio 199901129238 OH00055736731
139. Oklahoma County, N0011311 OH00055736731
Oklahoma (central)
140. Sygnet Communications, Inc. Xxx Xxxx Xxx. xx Xxxxx 000000 OH00055736620
(central)
141. Xxx Xxxx Xxx. xx Xxxxx 000000 OH00055736620
(utility)
142. Ohio Sec. of State AP0109918
(central)
143. Ohio Sec. of State AP0109915
(utility)
144. Ashtabula County, Ohio 9800137158 OH00055736620
145. Xxxxxxxxxx Xxxxxx, Xxxx 00000 OH00055736620
146. Mahoning County, Ohio 0000000000 OH00044302143
147. Mahoning County, Ohio 9800050964 OH00044302254
148. Xxxxxxxx Xxxxxx, Xxxx 0000000000 XX00000000000
000 Xxxxxxxx Xxxxxx, Xxxx 9800052217, OH00044302476
Bk. 3992,
Page 225
150. Xxxxxxxx Xxxxxx, Xxxx 000000 OH00055736620
151. Oklahoma Sec. of State 1500
(utility)
152. Oklahoma County, N0011310 OH00044302587
Oklahoma (central)
153. Oklahoma County, N0011313 OH00044301686
Oklahoma (utility)
154. Pennsylvania Sec. of 30051465 OH00055736620
Commonwealth (central)
155. Pennsylvania Sec. of 29720733
Commonwealth (utility)
RELEASE of each of the following: Pledge, Assignment, and Security Agreement
intended to qualify as a mortgage of property and as a security agreement dated
as of December 23, 1998 and filed in the following Ohio counties on the dates
listed below and under the recordation numbers indicated below:
Debtor County of filing File No.
--------------------------------- ------------------------- --------------------------------
Sygnet Communications, Inc. Ashtabula Vol. 109, Page 3587
Columbiana Vol. 707, Page 706
Mahoning Vol. 3992, Page 225;
Ohio in lieu filing
OH00044302476
Trumbull Vol. 1326, Page 10
Schedule 4.23
Material Agreements
The following are documents that are material to Xxxxxx Operating Co., L.L.C.
and its subsidiaries when considered collectively:
1. InterCarrier Multi-Standard Roaming Agreement effective as of January 25,
2002 between Cingular Wireless, LLC, and its affiliates, and Xxxxxx
Cellular Systems, Inc. and its affiliates.
2. Master Services Agreement between Xxxxxx Cellular Systems, Inc. and
Convergys Information Management Group Inc. dated December 1, 2002.
3. Roaming Agreement for GSM/GPRS between AT&T Wireless Services, Inc. and
Xxxxxx Cellular Systems, Inc. dated July 11, 2003.
4. GSM/GPRS Operating Agreement between AT&T Wireless Services, Inc. and
Xxxxxx Cellular Systems, Inc. dated July 11, 2003, as amended.
5. Agreement and Plan of Merger by and between Xxxxxx Cellular Systems, Inc.,
Xxxxxx/Sygnet Communications Company, Sygnet Wireless, Inc. and Sygnet
Communications, Inc. dated October 23, 2003.
6. Agreement and Plan of Merger by and between DOC Lease Co., L.L.C. and
Sygnet Lease Co., L.L.C. dated October 23, 2003.
7. Dealer Manager and Solicitation Agent Agreement by and between
Xxxxxx/Sygnet Communications Company and Xxxxxx Brothers, Inc. dated
September 8, 2003.
8. Offer to Purchase and Consent Solicitation Statement relating to
Xxxxxx/Sygnet Communications Company's offer to purchase all of its
outstanding 12.25% Senior Notes due 2008.
9. Second Amended, Restated and Consolidated Revolving Credit Agreement dated
September 26, 2003 by and between Xxxxxx Operating Co., L.L.C. and Xxxxxx
Commercial Paper, Inc., Bear Xxxxxxx Corporate Lending, Inc. and Xxxxxx
Xxxxxxx Senior Funding, Inc. (to be terminated at closing).
10. Assignment and Acceptance Agreement dated September 26, 2003 by and between
Xxxxxx Commercial Paper, Inc., Bear Xxxxxxx Corporate Lending, Inc. and
Xxxxxx Xxxxxxx Senior Funding, Inc.
11. Assignment and Release Agreement by and between Bank of America, N.A.,
Xxxxxx Commercial Paper Inc., Xxxxxx Operating Co., L.L.C. and its
Guarantors dated September 26, 2003.
12. Global Assignment and Acceptance Agreement by and between Xxxxxx Commercial
Paper, Inc. and Certain Assignors dated September 26, 2003.
13. Management Agreement between Xxxxxx Cellular Systems, Inc. and American
Cellular Corporation dated August 19, 2003.
14. Loan Documents.
15. Subordinated Promissory Note between Xxxxxx Operating Co., L.L.C. and
Xxxxxx Communications Corporation in the amount of $70,000,000 dated
September 26, 2003.
16. Subordinated Promissory Note between Xxxxxx Cellular Systems, Inc. and
Xxxxxx Communications Corporation in the amount of $197,000,000 dated
September 26, 2003.
17. Exchange Agreement between Xxxxxx Cellular Systems, Inc., SWBW B-Band
Development, L.L.C. and Ameritech Mobile Communications, L.L.C. dated
October 13, 2003.
18. Promissory Note between DCC PCS, Inc. and Xxxxxx Operating Co., L.L.C. in
the amount of $50,000,000 dated November 24, 2000.
19. Unsecured Loan Agreement between Xxxxxx Communications Corporation and
Xxxxxx Operating Co., L.L.C. in the amount of $63,000,000 dated January 23,
1998.
20. Promissory Note between Gila River Telecommunications Subsidiary, Inc. and
Xxxxxx Operating Co., L.L.C. in the amount of $1,394,313.46.
21. Promissory Note between Xxxxxx Operating Co., L.L.C. and Xxxxxx Cellular
Systems, Inc. in the amount of $70,000,000 dated October 23, 2003.
22. January 1, 2003, Equipment Lease Agreement between Xxxxxx Operating Co.,
LLC ("Owner") and Sygnet Communications, Inc. ("User") for various assets.
23. January 1, 2003, Equipment Lease Agreement between Xxxxxx Operating Co.,
LLC ("Owner") and American Cellular Corporation ("User") for various
assets.
24. January 1, 2003, Equipment Lease Agreement between Xxxxxx Operating Co.,
LLC ("Owner") and American Cellular Corporation ("User") for Xxxxxxxxx
assets.
25. January 1, 2003, Equipment Lease Agreement between Sygnet Communications,
Inc. ("Owner") and Xxxxxx Cellular Systems, Inc. ("User") for TDMA shared
assets.
26. January 1, 2003, Equipment Lease Agreement between Sygnet Communications,
Inc. ("Owner") and American Cellular Corporation ("User") for TDMA shared
assets.
27. January 1, 2003, Switch Sharing Agreement between American Cellular
Wireless, LLC ("Owner") and Xxxxxx Cellular Systems, Inc. ("User") for TDMA
OK Switch.
28. January 1, 2003, Equipment Lease Agreement between Xxxxxx Operating Co.,
LLC ("Owner") and Sygnet Communications, Inc. ("User") for GSM shared
assets.
29. January 1, 2003, Equipment Lease Agreement between Xxxxxx Operating Co.,
LLC ("Owner") and American Cellular Corporation ("User") for GSM shared
assets.
30. January 1, 2003, Switch Sharing Agreement between Xxxxxx Operating Co., LLC
("Owner") and American Cellular Wireless, LLC ("User") for GSM Switch -
Cheyenne.
31. January 1, 2003, Switch Sharing Agreement between Xxxxxx Operating Co., LLC
("Owner") and Sygnet Communications, Inc. ("User") for GSM Switch -
Youngstown.
32. January 1, 2003, Switch Sharing Agreement between Xxxxxx Operating Co., LLC
("Owner") and American Cellular Corporation ("User") for GSM Switch -
Youngstown.
33. Management Services Agreement dated as of January 1, 2003 between Xxxxxx
Cellular Systems, Inc. and Sygnet Lease Co., LLC
34. Management Services Agreement dated as of January 1, 2003 between Xxxxxx
Cellular Systems, Inc. and DOC Lease Co., LLC
35. Master Equipment Lease dated as of January 1, 2003 between Sygnet Lease
Co., LLC ("Lessor") and Sygnet Communications, Inc. ("Lessee")
36. Master Equipment Lease dated as of January 1, 2003 between DOC Lease Co.,
LLC ("Lessor") and Xxxxxx Cellular Systems, Inc. ("Lessee")
37. Master Equipment Lease dated as of January 1, 2003 between DOC Lease Co.,
LLC ("Lessor") and Oklahoma 5 Limited Partnership ("Lessee")
38. Master Equipment Lease dated as of January 1, 2003 between DOC Lease Co.,
LLC ("Lessor") and Oklahoma RSA 7 Limited Partnership ("Lessee")
39. Master Equipment Lease dated as of January 1, 2003 between DOC Lease Co.,
LLC ("Lessor") and Texas RSA 2 Limited Partnership ("Lessee")
Schedule 4.25
FCC Licenses held by Xxxxxx Operating Co. LLC and its Subsidiaries
(Current through October 23,
2003) List is in alphabetical order by
licensee name.
Licensee License Type Call Sign Expiration Date
================================ ====================== =============== ===================
Xxxxxx Cellular Systems, Inc. Cellular KNKN407 10/1/2010
Xxxxxx Cellular Systems, Inc. Cellular KNKQ402 10/1/2004
Xxxxxx Cellular Systems, Inc. Cellular KNKQ316 10/1/2011
Xxxxxx Cellular Systems, Inc. Cellular KNKA536 1/22/2008
Xxxxxx Cellular Systems, Inc. Cellular KNKN268 10/1/2010
Xxxxxx Cellular Systems, Inc. Cellular KNKA570 11/27/2008
Xxxxxx Cellular Systems, Inc. Cellular KNKR271 10/1/2005
Xxxxxx Cellular Systems, Inc. Cellular KNKA818 10/1/2011
Xxxxxx Cellular Systems, Inc. Cellular KNKA779 11/27/2008
Xxxxxx Cellular Systems, Inc. Cellular KNKN637 10/1/2011
Xxxxxx Cellular Systems, Inc. Cellular KNKN938 10/1/2011
Xxxxxx Cellular Systems, Inc. Cellular KNKQ436 10/1/2005
Xxxxxx Cellular Systems, Inc. Cellular KNKN545 10/1/2010
Xxxxxx Cellular Systems, Inc. Cellular KNKN656 10/1/2010
Xxxxxx Cellular Systems, Inc. Cellular KNKN711 10/1/2010
Xxxxxx Cellular Systems, Inc. Cellular KNKN553 10/1/2011
Xxxxxx Cellular Systems, Inc. Cellular KNKN376 11/23/2008
Xxxxxx Cellular Systems, Inc. Cellular KNKN829 10/1/2011
Xxxxxx Cellular Systems, Inc. Cellular KNKQ434 10/1/2010
Xxxxxx Cellular Systems, Inc. Cellular KNKN629 10/1/2011
Xxxxxx Cellular Systems, Inc. Cellular KNKN596 10/1/2010
Xxxxxx Cellular Systems, Inc. Cellular KNKN779 10/1/2011
Xxxxxx Cellular Systems, Inc. Cellular KNKN457 10/1/2011
Xxxxxx Cellular Systems, Inc. Cellular KNKR336 10/1/2007
Xxxxxx Cellular Systems, Inc. Cellular KNKN657 10/1/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW664 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMG862 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMM914 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMM915 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMQ271 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMQ272 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMQ840 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMQ841 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMQ882 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMQ887 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMQ890 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMR582 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMR583 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMT434 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMT590 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMV915 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMV916 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMV993 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW977 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW978 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPNC507 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPNC970 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPNG590 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPNH400 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WLU930 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMJ656 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMJ657 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMR956 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMR958 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMR959 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW930 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW931 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW932 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW933 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW934 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW935 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW936 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMW937 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPNB325 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPND460 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPNH433 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPOR750 3/18/2009
Xxxxxx Cellular Systems, Inc. Microwave WPOR751 3/08/2009
Xxxxxx Cellular Systems, Inc. Microwave WMG801 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMG802 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMK941 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMK942 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMK943 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WML525 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WML526 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WML527 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMQ282 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMT241 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMT419 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMT657 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPOR698 2/04/2009
Xxxxxx Cellular Systems, Inc. Microwave WPOR699 2/04/2009
Xxxxxx Cellular Systems, Inc. Microwave WPOR700 2/04/2009
Xxxxxx Cellular Systems, Inc. Microwave WPOR701 2/04/2009
Xxxxxx Cellular Systems, Inc. Microwave WPOR702 2/04/2009
Xxxxxx Cellular Systems, Inc. Microwave WPOS939 4/30/2009
Xxxxxx Cellular Systems, Inc. Microwave WPNJ813 2/17/2008
Xxxxxx Cellular Systems, Inc. Microwave WPNJ814 2/17/2008
Xxxxxx Cellular Systems, Inc. Microwave WHD214 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WHD215 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WHD216 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMJ612 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMJ613 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMM459 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMM460 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMS738 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPOR674 6/01/2008
Xxxxxx Cellular Systems, Inc. Microwave WLW659 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WLM849 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WLT270 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WLT271 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WLT272 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WMR579 2/01/2011
Xxxxxx Cellular Systems, Inc. Microwave WPOS893 6/17/2009
Xxxxxx Cellular Systems, Inc. Microwave WPOS894 6/17/2009
Xxxxxx Cellular Systems, Inc. Microwave WPXD842 3/13/2013
Xxxxxx Cellular Systems, Inc. Microwave WPXD858 3/13/2003
Oklahoma RSA 5 Limited Partnership Cellular KNKN607 10/1/2010
Oklahoma RSA 7 Limited Partnership Cellular KNKN578 10/1/2010
Sygnet Communications, Inc. Cellular KNKA743 11/27/2008
Sygnet Communications, Inc. Cellular KNKN865 10/1/2011
Sygnet Communications, Inc. Cellular KNKN660 10/1/2010
Sygnet Communications, Inc. Cellular KNKN937 10/1/2011
Sygnet Communications, Inc. Cellular KNKQ442 7/28/2008
Sygnet Communications, Inc. Cellular KNKN625 10/1/2010
Sygnet Communications, Inc. Cellular KNKN562 10/1/2010
Sygnet Communications, Inc. Cellular KNKA555 11/29/2006
Sygnet Communications, Inc. Cellular KNKA318 2/9/2006
Sygnet Communications, Inc. Microwave WHD222 2/01/2011
Sygnet Communications, Inc. Microwave WMN588 2/01/2011
Sygnet Communications, Inc. Microwave WPTX391 1/07/2012
Sygnet Communications, Inc. Microwave WMJ673 2/01/2011
Sygnet Communications, Inc. Microwave WMS259 2/01/2011
Sygnet Communications, Inc. Microwave WMS262 2/01/2011
Sygnet Communications, Inc. Microwave WMS263 2/01/2011
Sygnet Communications, Inc. Microwave WMS264 2/01/2011
Sygnet Communications, Inc. Microwave WMS265 2/01/2011
Sygnet Communications, Inc. Microwave WPJD305 2/01/2011
Sygnet Communications, Inc. Microwave WPJD306 2/01/2011
Sygnet Communications, Inc. Microwave WPJD307 2/01/2011
Sygnet Communications, Inc. Microwave WPNA580 2/01/2011
Sygnet Communications, Inc. Microwave WPNG885 2/01/2011
Sygnet Communications, Inc. Microwave WPNG886 2/01/2011
Sygnet Communications, Inc. Microwave WPNG887 2/01/2011
Sygnet Communications, Inc. Microwave WPNG888 2/01/2011
Sygnet Communications, Inc. Microwave WPNH426 2/01/2011
Sygnet Communications, Inc. Microwave WPNH427 2/01/2011
Sygnet Communications, Inc. Microwave WPNH428 2/01/2011
Sygnet Communications, Inc. Microwave WPNH429 2/01/2011
Sygnet Communications, Inc. Microwave WPNH770 2/01/2011
Sygnet Communications, Inc. Microwave WPNH774 2/01/2011
Sygnet Communications, Inc. Microwave WPNH775 2/01/2011
Sygnet Communications, Inc. Microwave WPNH777 2/01/2011
Sygnet Communications, Inc. Microwave WHD220 2/01/2011
Sygnet Communications, Inc. Microwave WHD221 2/01/2011
Sygnet Communications, Inc. Microwave WHF607 2/01/2011
Sygnet Communications, Inc. Microwave WHF611 2/01/2011
Sygnet Communications, Inc. Microwave WLA974 2/01/2011
Sygnet Communications, Inc. Microwave WLA975 2/01/2011
Sygnet Communications, Inc. Microwave WLL890 2/01/2011
Sygnet Communications, Inc. Microwave WLL936 2/01/2011
Sygnet Communications, Inc. Microwave WLN229 2/01/2011
Sygnet Communications, Inc. Microwave WLN230 2/01/2011
Sygnet Communications, Inc. Microwave WLN231 2/01/2011
Sygnet Communications, Inc. Microwave WLN778 2/01/2011
Sygnet Communications, Inc. Microwave WLS574 2/01/2011
Sygnet Communications, Inc. Microwave WLW476 2/01/2011
Sygnet Communications, Inc. Microwave WLW477 2/01/2011
Sygnet Communications, Inc. Microwave WMJ410 2/01/2011
Sygnet Communications, Inc. Microwave WMJ411 2/01/2011
Sygnet Communications, Inc. Microwave WMJ412 2/01/2011
Sygnet Communications, Inc. Microwave WMJ415 2/01/2011
Sygnet Communications, Inc. Microwave WMJ737 2/01/2011
Sygnet Communications, Inc. Microwave WMJ738 2/01/2011
Sygnet Communications, Inc. Microwave WMK453 2/01/2011
Sygnet Communications, Inc. Microwave WMK454 2/01/2011
Sygnet Communications, Inc. Microwave WMK455 2/01/2011
Sygnet Communications, Inc. Microwave WMK795 2/01/2011
Sygnet Communications, Inc. Microwave WML722 2/01/2011
Sygnet Communications, Inc. Microwave WMM464 2/01/2011
Sygnet Communications, Inc. Microwave WMM465 2/01/2011
Sygnet Communications, Inc. Microwave WMM909 2/01/2011
Sygnet Communications, Inc. Microwave WPSJ710 5/23/2011
Sygnet Communications, Inc. Microwave WMR258 2/01/2011
Sygnet Communications, Inc. Microwave WMR259 2/01/2011
Sygnet Communications, Inc. Microwave WMR482 2/01/2011
Sygnet Communications, Inc. Microwave WMR485 2/01/2011
Sygnet Communications, Inc. Microwave WMR487 2/01/2011
Sygnet Communications, Inc. Microwave WMW725 2/01/2011
Sygnet Communications, Inc. Microwave WPSI374 5/07/2011
Sygnet Communications, Inc. Microwave WPXD859 3/13/2013
Texas RSA 2 Limited Partnership Cellular KNKN646 10/1/2010
Schedule 5.1(b)
Transaction Documents
1. Merger Documents
A. Agreement and Plan of Merger by and between Xxxxxx Cellular Systems,
Inc., Xxxxxx/Sygnet Communications Company, Sygnet Wireless, Inc. and
Sygnet Communications, Inc. dated October 23, 2003.
B. Agreement and Plan of Merger by and between DOC Lease Co., L.L.C. and
Sygnet Lease Co., L.L.C. dated October 23, 2003.
2. Tender Offer for Xxxxxx/Sygnet Communications Company's 12.25% Senior Notes
Due 2008
A. Dealer Manager and Solicitation Agent Agreement by and between
Xxxxxx/Sygnet Communications Company and Xxxxxx Brothers, Inc. dated
September 8, 2003.
B. Offer to Purchase and Consent Solicitation Statement relating to
Xxxxxx/Sygnet Communications Company's offer to purchase all of its
outstanding 12.25% Senior Notes due 2008.
3. Tender Offer for Xxxxxx Communications Corporation 12.25% Senior
Exchangeable Preferred Stock
A. Dealer Manager Agreement by and between Xxxxxx Communications
Corporation and Xxxxxx Brothers, Inc. dated September 8, 2003.
B. Schedule TO related to Xxxxxx Communications Corporation offer to
purchase up to 250,000 shares of its 12.25% Senior Exchangeable
Preferred Stock, including the Offer to Purchase related thereto.
4. Xxxxxx Communications Corporation 8.875% Senior Note Offering
A. Purchase Agreement dated September 12, 2003 by and between Xxxxxx
Communications Corporation and Xxxxxx Brothers, Inc., Xxxxxx Xxxxxxx &
Co. Incorporated, Bear, Xxxxxxx & Co. Inc. and Rabo Securities USA,
Inc.
B. Indenture dated September 26, 2003 by and between Xxxxxx
Communications Corporation and Bank of Oklahoma, National Association.
C. Registration Rights Agreement dated September 26, 2003 by and between
Xxxxxx Communications Corporation, Xxxxxx Brothers, Inc., Xxxxxx
Xxxxxxx & Co., Incorporated and Bear, Xxxxxxx & Co., Inc.
D. Second Amended, Restated and Consolidated Revolving Credit Agreement
dated September 26, 2003 by and between Xxxxxx Operating Co., L.L.C.
and Xxxxxx Commercial Paper, Inc., Bear Xxxxxxx Corporate Lending,
Inc. and Xxxxxx Xxxxxxx Senior Funding, Inc.
E. Assignment and Acceptance Agreement dated September 26, 2003 by and
between Xxxxxx Commercial Paper, Inc., Bear Xxxxxxx Corporate Lending,
Inc. and Xxxxxx Xxxxxxx Senior Funding, Inc.
F. Assignment and Release Agreement by and between Bank of America, N.A.,
Xxxxxx Commercial Paper Inc., Xxxxxx Operating Co., L.L.C. and its
Guarantors dated September 26, 2003.
G. Global Assignment and Acceptance Agreement by and between Xxxxxx
Commercial Paper, Inc. and Certain Assignors dated September 26, 2003.
H. Subordinated Promissory Note between Xxxxxx Operating Co., L.L.C. and
Xxxxxx Communications Corporation in the amount of $70,000,000 dated
September 26, 2003.
I. Subordinated Promissory Note between Xxxxxx Cellular Systems, Inc. and
Xxxxxx Communications Corporation in the amount of $197,000,000 dated
September 26, 2003.
5. Sygnet Credit Facility Refinancing
A. Payoff Letter Re: Payment and Satisfaction of Obligations to Bank of
America, N.A. and other Lenders executed by Bank of America, N.A. and
Sygnet Wireless, Inc. and Sygnet Communications, Inc. on October 23,
2003.
B. Letter Agreement Re: Payment and Satisfaction of Obligations to Bank
of America, N.A. and other Lenders dated October 23, 2003.
6. Xxxxxx Operating Co., L.L.C. Credit Facility Refinancing
A. General Release dated October __, 2003, by Xxxxxx Commercial Paper
Inc. of Amended, Restated, and Consolidated Pledge, Assignment and
Security Agreement dated January 18, 2000 as amended on September 26,
2003.
7. Loan Documents
A. Loan Documents
Schedule 7.2(d)
Existing Indebtedness
Debtor Description Principal Amount
--------------------------------------------------- ---------------------------------------------- ------------------
Xxxxxx Cellular Systems, Inc. (as successor of 12.25% Senior Notes (substantially all to be $188,500,000
Xxxxxx/Sygnet Communications Company by merger) paid at closing)
Xxxxxx Cellular Systems, Inc. (as successor of 11.50% Senior Notes $70,000
Sygnet Wireless, Inc. by merger)
Xxxxxx Cellular Systems, Inc. (as successor of Existing Sygnet Wireless Credit Facility (to $54,008,299.45
Sygnet Wireless, Inc. by merger) be paid at closing)
Xxxxxx Cellular Systems, Inc. Promissory Note issued to Xxxxxx $197,000,000
Communications Corporation (to be paid at
closing)
Xxxxxx Operating Co., L.L.C. Promissory Note issued to Xxxxxx $70,000,000
Communications Corporation (to be paid at
closing)
Xxxxxx Operating Co., L.L.C. Existing DOC Credit Facility (to be paid at Less than
closing) $30,000,000
Xxxxxx Operating Co., L.L.C. Promissory Note issued to Xxxxxx Cellular $70,000,000
Systems, Inc.
Xxxxxx Operating Co., L.L.C. (as successor of Unsecured Loan Agreement issued to Xxxxxx $63,000,000
Xxxxxx Cellular Operations Company by merger) Communications Corporation
Borrower and Guarantors Various Intercompany receivables incurred in Various Amounts
the ordinary course of business
Indebtedness secured by liens listed
on Schedule 4.19(a)-2.
Schedule 7.3(f)
Existing Liens
1. Liens existing pursuant to the Existing Credit Facilities.
2. Liens listed on Schedule 4.19(a)-2
Schedule 8.1
Limitation on Indebtedness
Debtor Description Principal Amount
------------------------------------------------------------------ -------------------------------- ------------------
Xxxxxx Cellular Systems, Inc. (as successor of Xxxxxx/Sygnet 12.25% Senior Notes $188,500,000
Communications Company by merger) (substantially all to be paid
at closing)
Xxxxxx Cellular Systems, Inc. (as success of Sygnet Wireless, 11.50% Senior Notes $70,000
Inc. by merger)
Existing Sygnet Wireless $54,008,299.45
Credit Facility (to be paid at
closing)
Xxxxxx Cellular Systems, Inc. Promissory Note issued to $197,000,000
Xxxxxx Communications
Corporation (to be paid at
closing)
Xxxxxx Operating Co., L.L.C. Promissory Note issued to $70,000,000
Xxxxxx Communications
Corporation (to be paid at
closing)
Existing DOC Credit Facility Less than
(to be paid at closing) $30,000,000
Unsecured Loan Agreement $63,000,000
issued to DCC
Promissory Note issued to $70,000,000
Xxxxxx Cellular Systems, Inc.
Xxxxxx Communications Corporation (DCC) 10 7/8% DCC Bonds $300,000,000
11 3/4% DCC Bonds $20,000
121/4% Preferred Stock (approx. $354,123,000
$250,000,000 to be paid at
closing)
13% Preferred Stock $189,701,000
Series F Preferred Stock $122,535,599
8 7/8% Senior Notes $650,000,000
Letter of Credit-CFS Air, $3,625,673
L.L.C.
Letter of Credit-General $525,000
Electric Capital Corporation
Letter of Credit-Fifth Third $100,000
Bank
Capital Lease-Key Equipment $1,145,257
Corp.
Capital Lease-United Capital $18,561
Leasing Corporation
Capital Lease-Forum Financial $110,965
Services, Inc.
Borrower and Guarantors Various intercompany Various Amounts
receivables in the ordinary
course of business
Schedule 8.6
Parent Affiliate Agreements
1. Payments under the three Equipment Lease Agreements and the three Switch
Sharing Agreements between Xxxxxx Operating Co., L.L.C. and American
Cellular Corporation, and the one Equipment Lease Agreement between Sygnet
Communications, Inc. and American Cellular Corporation, all dated as of
January 1, 2003 which provide for the leasing or sharing of certain
telecommunications equipment between the parties hereto, including any
amendments or modifications thereto; provided, however, that such
amendments or modifications may not adversely affect the Parent and its
Subsidiaries when compared with the provisions in place immediately prior
to the time of such amendment.
2. Office Lease between Xxxxxx Parkway, LLC and the Parent and all amendments
thereto.
3. Management Agreement between Xxxxxx Cellular Systems, Inc. and American
Cellular Corporation dated August 19, 2003.
4. Obligation of American Cellular Corporation to incur 40% of any outstanding
future purchase obligations under the Purchase and License Agreement
between Nortel Networks, Inc. and Xxxxxx Communications Corporation, dated
as of November 16, 2001.
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to Section 6.2(b) of
the Credit Agreement, dated as of October 23, 2003, as amended, supplemented or
modified from time to time (the "Credit Agreement"), among XXXXXX CELLULAR
SYSTEMS, INC. an Oklahoma corporation (the "Borrower"), XXXXXX COMMUNICATIONS
CORPORATION, an Oklahoma corporation, XXXXXX OPERATING CO. L.L.C., an Oklahoma
limited liability company, the Lenders parties thereto, XXXXXX COMMERCIAL PAPER
INC., as Administrative Agent, and others party thereto. Terms defined in the
Credit Agreement are used herein as therein defined.
The undersigned hereby certifies to the Arranger, the Agents and the
Lenders as follows:
1. I am the duly elected, qualified and acting [INSERT TITLE OF
RESPONSIBLE OFFICER] of the Borrower.
2. I have reviewed and am familiar with the contents of this
Certificate.
3. I have reviewed the terms of the Credit Agreement and the Loan
Documents and have made or caused to be made under my supervision, a review in
reasonable detail of the transactions and condition of the Borrower during the
accounting period covered by the financial statements attached hereto as
Attachment 1 (the "Financial Statements"). Such review did not disclose the
existence during or at the end of the accounting period covered by the Financial
Statements, and I have no knowledge of the existence, as of the date of this
Certificate, of any condition or event which constitutes a Default or Event of
Default [, except as set forth below].
4. Attached hereto as Attachment 2 are the computations showing
compliance with the covenants set forth in Section 7.1, 7.2, 7.5, 7.6 and 7.7 of
the Credit Agreement.
5. Since the Closing Date:
(a) No Loan Party has changed its corporate name, identity or
corporate structure;
(b) No Loan Party has changed its jurisdiction of organization
or the location of its chief executive office or its
principal place of business; and
(c) No Loan Party has acquired any material Intellectual
Property;
except, in each case, (i) any of the foregoing that has been previously
disclosed in writing to the Administrative Agent and in respect of which the
Borrower has delivered to the Administrative Agent all required UCC financing
statements and other filings required to maintain the perfection and priority of
the Administrative Agent's security interest in the Collateral after giving
effect to such event, in each case as required by Section 5.6 of the Guarantee
and Collateral Agreement and (ii) any of the foregoing described in Attachment 3
hereto in respect of which the Borrower is delivering to the Administrative
Agent herewith all required UCC financing statements and other filings required
to maintain the perfection and priority of the Administrative Agent's security
interest in the Collateral after giving effect to such event, in each case as
required by Section 5.6 of the Guarantee and Collateral Agreement.
6. Since the Closing Date:
(a) No Loan Party (other than the Parent) has acquired any
Property of the type described in Section 6.10(a) of the
Credit Agreement as to which the Administrative Agent does
not have a perfected Lien pursuant to the Security
Documents;
(b) No Loan Party (other than the Parent) has acquired any fee
interest in any tract (or series of Tracts at the same
location) of real property having a value (together with
improvements thereof) of at least $3,000,000;
(c) No Loan Party has formed or acquired any Restricted
Subsidiary (and no Foreign Subsidiary that was an Excluded
Foreign Subsidiary has ceased to be an Excluded Foreign
Subsidiary); and
(d) No Loan Party has acquired or formed any Excluded Foreign
Subsidiary;
except, in each case, (i) any of the foregoing that has been previously
disclosed in writing to the Administrative Agent and in respect of which the
Borrower has taken all actions required by Section 6.10 of the Credit Agreement
with respect thereto and (ii) any of the foregoing described in Attachment 3
hereto in respect of which the Borrower is concurrently herewith taking all
actions required by Section 6.10 of the Credit Agreement with respect thereto.
IN WITNESS WHEREOF, the undersigned has executed this Compliance
Certificate as of the date set forth below.
[BORROWER]
By:
Title:
Date: ____________, 200_
Attachment 2
to Exhibit B
The information described herein is as of ______, 200__, and pertains
to the period from _________, _ to ________________ __, __.
[Set forth Covenant Calculations]
Attachment 3
to Exhibit B
Disclosure of Events Pursuant to Section 5.6 of Guarantee and Collateral
Agreement and Section 6.10 of the Credit Agreement
EXHIBIT C
FORM OF CLOSING CERTIFICATE
[NAME OF LOAN PARTY]
This Closing Certificate is delivered by the undersigned officers of
_________________, a _____________ corporation (the "Corporation"), pursuant to
Section 5.1(j) of the Credit Agreement dated as of October 23, 2003 (the "Credit
Agreement"), among the Corporation, as Borrower, Xxxxxx Commercial Paper, Inc.,
as administrative agent ("Administrative Agent"), certain Lenders party thereto
(the "Lenders"), and others. Unless otherwise indicated herein, all terms used
herein with initial letter capitalized are used with their meaning as defined in
the Credit Agreement. For the Corporation, we certify the following to
Administrative Agent and the Lenders:
1. Representations and Warranties. The representations and warranties
of the Corporation set forth in each of the Loan Documents to which it is a
party or which are contained in any certificate furnished by or on behalf of the
Corporation pursuant to any of the Loan Documents to which it is a party are
true and correct in all material respects on and as of the date hereof with the
same effect as if made on the date hereof, except for representations and
warranties expressly stated to relate to a specific earlier date, in which case
such representations and warranties were true and correct in all material
respects as of such earlier date.
2. No Default or Event of Default. No Default or Event of Default has
occurred and is continuing as of the date hereof or after giving effect to the
Loans to be made on the date hereof. [BORROWER ONLY]
3. Conditions Precedent. The conditions precedent set forth in Section
5.1 of the Credit Agreement were satisfied as of the Closing Date except as set
forth on Annex A hereto. [BORROWER ONLY]
4. Liquidation; Dissolution. There are no liquidation or dissolution
proceedings pending or to my knowledge threatened against the Corporation, nor
has any other event occurred adversely affecting or threatening the continued
corporate existence of the Corporation.
5. Resolutions. The copy attached hereto as Annex B is an authentic
copy of the Corporation's resolutions (relating to the approval of the Credit
Agreement and Guaranty and Collateral Agreement to be executed by such
Corporation); such resolutions have been duly adopted by the Corporation's
directors on _______________ have not been amended, modified, revoked or
rescinded, have been in full force and effect since their adoption to and
including the date hereof and are now in full force and effect and are the only
corporate proceedings of the Corporation now in force relating to or affecting
the matters referred to herein.
6. Incumbency. The following individuals are the duly elected,
qualified, and acting officers of the Corporation in the positions beside their
names. The signatures beside their names are their true and genuine signatures,
and each of such officers is duly authorized to execute and deliver on behalf of
the Corporation each of the Loan Documents to which it is a party and any
certificate (including this Closing Certificate) or other document to be
delivered by the Corporation pursuant to the Loan Documents to which it is a
party.
NAME TITLE SPECIMEN SIGNATURE
---- ----- ------------------
--------------------- ---------------- ---------------------------------
--------------------- ---------------- ---------------------------------
--------------------- ---------------- ---------------------------------
7. Bylaws. The copy attached hereto as Annex C is an authentic copy of
the Corporation's bylaws as in effect on the date hereof, and there have been no
additional completed or authorized amendments to the Corporation's bylaws.
8. Charter. The copy attached hereto as Annex D is an authentic copy
of the Corporation's charter as in effect on the date hereof, and there have
been no additional filed or authorized amendments to the Corporation's charter.
9. Good Standing. The Corporation is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
organization. The copy attached hereto as Annex E is an authentic copy of the
good standing certificate of the Secretary of State of _____________ dated
____________, 2003 and authentic copies of the good standing certificates of all
other states in which the Corporation is qualified to do business.
10. Transaction Documents; Material Agreements; Tax Sharing Agreement.
Attached hereto as Annex F are complete and authentic copies of each Transaction
Document, each Material Agreement and the Tax Sharing Agreement (including any
amendments thereto) which are in full force and effect as of the date hereof.
[BORROWER ONLY]
EXECUTED as of October ___, 2003.
_________________________________ _______________________________
Name: Name:
Title: Title:
EXHIBIT D
FORM OF AUDITORS' CERTIFICATE
[Date]
The Board of Directors
Xxxxxx Communications Corporation:
We have audited, in accordance with auditing standards generally accepted in the
United States of America, the balance sheet of each of Xxxxxx Communications
Corporation and Xxxxxx Operating Co. L.L.C. (together, the "Companies") as of
_______________________, ____, and the related statements of operations,
stockholders' equity (deficit), and cash flows for the year then ended, and have
issued our report thereon dated ____________________, ____.
In connection with our audit, nothing came to our attention that caused us to
believe that either Company failed to comply with the respective financial
covenants applicable to it as set forth in Section 7 of the Credit Agreement,
dated October 23, 2003 (the "Credit Agreement"), among Xxxxxx Cellular Systems
Inc. as borrower, the Companies, Xxxxxx Commercial Paper Inc. as administrative
agent, and the lenders and other parties thereto, insofar as they relate to
accounting matters. However, our audit was not directed primarily toward
obtaining knowledge of such noncompliance.
This report is intended solely for the information and use of the Board of
Directors and management of the Companies and their subsidiaries, Xxxxxx
Commercial Paper Inc., as administrative agent, and the lenders party to the
Credit Agreement, and is not intended to be and should not be used by anyone
other than these specified parties.
KPMG LLP
By:____________________________
Name:
Title
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of October 23,
2003 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Xxxxxx Cellular Systems, Inc. (the "Borrower"),
Xxxxxx Communications Corporation, Xxxxxx Operating Co. L.L.C., the Lenders
parties thereto, Xxxxxx Commercial Paper Inc., as Administrative Agent, and
others. Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and the
Assignee identified on Schedule l hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) 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 with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor is the legal
and beneficial owner of, and it has not created any adverse claim upon, the
interest being assigned by it hereunder and that such interest is free and clear
of any such adverse claim; (b) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower, any
of its Subsidiaries or any other obligor or the performance or observance by the
Borrower, any of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement or any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto; and (c)
attaches any Notes held by it evidencing the Assigned Facilities and (i)
requests that the Administrative Agent, upon request by the Assignee, exchange
the attached Notes for a new Note or Notes payable to the Assignee and (ii) if
the Assignor has retained any interest in the Assigned Facility, requests that
the Administrative Agent exchange the attached Notes for a new Note or Notes
payable to the Assignor, in each case in amounts which reflect the assignment
being made hereby (and after giving effect to any other assignments which have
become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Credit Agreement, together with copies of the financial statements
delivered pursuant to Section 5.1 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; (c) agrees that it will,
independently and without reliance upon the Assignor, the Agents 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, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Agents to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Agents by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to Section
2.20(d) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) [to
the Assignor for amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued subsequent to the Effective Date] [to
the Assignee whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Agent for periods prior to
the Effective Date or with respect to the making of this assignment directly
between themselves.]
6. From and after the Effective Date, (a) 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 under the
other Loan Documents and shall be bound by the provisions thereof and (b) 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.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor: _______________________
Name of Assignee: _______________________
Effective Date of Assignment: _________________
Credit Principal [Revolving Credit Percentage
Facility Assigned Amount Assigned Assigned]*
$------- ---.---%
[Name of Assignor] [Name of Assignee]
By: By:
Title: Title:
Accepted: Consented To:
XXXXXX COMMERCIAL PAPER, INC, as [XXXXXX CELLULAR SYSTEMS, INC.]
Administrative Agent
By: By:
Title: Title:
[XXXXXX COMMERCIAL PAPER, INC, as
Administrative Agent]
By: ]
Title:
[NATIONAL CITY BANK]
By:
Title:
[XXXXXX COMMERCIAL PAPER, INC]
By:
Title:
---------------
* Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all Lenders.
EXHIBIT F-1
FORM OF LEGAL OPINION OF MCAFEE & XXXX
October 23, 2003
Xxxxxx Commercial Paper Inc., as Administrative Agent
Each Lender a party to the Credit Agreement referred to below
Re: Credit Agreement for Xxxxxx Cellular Systems, Inc.
Ladies and Gentlemen:
We have acted as counsel to Xxxxxx Cellular Systems, Inc.
("Borrower"), Xxxxxx Communications Corporation ("Parent"), Xxxxxx Operating
Co., L.L.C. ("DOC"), DOC Lease Co., LLC ("Lease Co."), Michigan RSA Sub LLC
("Michigan") and Maryland RSA 2, LLC ("Maryland") (collectively with Borrower,
the "Companies") in connection with (i) the Credit Agreement, dated as of
October 23, 2003 (as amended, modified, supplemented, or restated from time to
time, the "Credit Agreement"), among Borrower, Parent, DOC, the several Lenders
from time to time parties thereto ("Lenders"), Xxxxxx Brothers Inc. and Bear,
Xxxxxxx & Co. Inc., as Joint Lead Arrangers and Joint Book Runners, Bear Xxxxxxx
Corporate Lending Inc., as Syndication Agent, Xxxxxx Xxxxxxx Senior Funding,
Inc., as Co-Arranger and Documentation Agent, and Xxxxxx Commercial Paper Inc.,
as Administrative Agent, and (ii) the Merger (as defined in the Credit
Agreement).
This opinion is delivered pursuant to Section 5.1(k)(i) of the Credit
Agreement. Except as otherwise defined herein, each capitalized term used herein
has the meaning given to such term in the Credit Agreement.
In arriving at the opinions expressed below, we have examined such
corporate documents and records of the Companies, certificates of public
officials and of officers of the Companies, other documents, and matters of law
as we deemed necessary or appropriate, including, without limitation, originals
or copies of (a) the Credit Agreement and (b) the Guarantee and Collateral
Agreement and each other Security Document executed by Borrower and the
Companies (all of the foregoing are collectively, the "Transaction Documents");
additionally, we have examined the Agreement and Plan of Merger dated as of
October 23, 2003, by and among Borrower, Xxxxxx/Sygnet Communications Company,
Sygnet Wireless, Inc. and Sygnet Communications, Inc. (the "Sygnet Merger
Agreement"), as well as the Agreement and Plan of Merger dated as of October 23,
2003, by and between Lease Co. and Sygnet Lease Co., L.L.C. (the "Lease Merger
Agreement," and with the Sygnet Merger Agreement, the "Merger Agreements"), and
certificates reflecting the transactions described in the Merger Agreements
prepared for filing in appropriate state offices (the "Reorganization
Documents").
Based upon the foregoing, we are of the opinion that:
1. The Borrower (a) is a corporation validly existing and in good
standing under the laws of Oklahoma, (b) is duly qualified to transact business
as a foreign corporation in each other state identified on Annex A, (c)
possesses all requisite authority and power to execute, deliver, and comply with
the terms of each of the Transaction Documents and the Reorganization Documents
to which it is a party, which have been duly authorized and approved by all
necessary corporate action and for which no approval or consent of any Person or
Governmental Authority is required which has not been obtained, and (d) is the
successor by merger with Xxxxxx/Sygnet Communications Company, Sygnet Wireless,
Inc. and Sygnet Communications, Inc. Parent (a) is a corporation validly
existing and in good standing under the laws of the State of Oklahoma, and (b)
possesses all requisite corporate authority and power to execute, deliver, and
comply with the terms of each of the Transaction Documents and the
Reorganization Documents to which it is a party, which have been duly authorized
and approved by all necessary corporate action and for which no approval or
consent of any Person or Governmental Authority is required which has not been
obtained. Each of DOC and Lease Co. (a) is a limited liability company validly
existing and in good standing under the laws of the State of Oklahoma, (b)
possesses all requisite authority and power to execute, deliver, and comply with
the terms of each of the Transaction Documents and the Reorganization Documents
to which it is a party, which have been duly authorized and approved by all
necessary limited liability company action and for which no approval or consent
of any Person or Governmental Authority is required which has not been obtained,
and (c) in the case of Lease Co., is the successor by merger with Sygnet Lease
Co., LLC. Each of Michigan and Maryland (a) is a limited liability company
validly existing and in good standing under the laws of the State of Delaware,
and (b) possesses all requisite authority and power to execute, deliver, and
comply with the terms of each of the Transaction Documents to which it is a
party, which have been duly authorized and approved by all necessary limited
liability company action and for which no approval or consent of any Person or
Governmental Authority is required which has not been obtained.
2. The execution, delivery and performance of each Transaction
Document and each Reorganization Document to which each Company is a party are
within its corporate or limited liability company power (as applicable) and have
been duly authorized by all necessary corporate or other action of each Company.
Each Company has duly executed and delivered each Transaction Document and each
Reorganization Document to which it is a party.
3. The execution, delivery, and performance of and compliance with the
terms of the Transaction Documents and the Reorganization Documents will not
cause the Borrower or Parent to be in violation of their respective Certificates
of Incorporation or Bylaws. The execution, delivery, and performance of and
compliance with the terms of the Transaction Documents and the Reorganization
Documents will not cause any Company that is a limited liability company to be
in violation of its respective Operating Agreement or Articles of Organization.
4. Following the incurrence of Indebtedness under and consummation of
all transactions described in the Transaction Documents and the Reorganization
Documents, Parent will not be in violation of the Certificates of Designation
relating to the respective issues of the Parent Preferred Stock or of the
Indentures and other agreements governing the Parent Notes.
5. The execution, delivery, and performance of and compliance with the
terms of the Transaction Documents and the Reorganization Documents will not
cause any Company to be in violation of any Requirement of Law other than such
violations which will not, individually or collectively, result in a Material
Adverse Effect.
6. The execution, delivery, and performance of and compliance with the
terms of the Transaction Documents and the Reorganization Documents will not
cause any Company to be in default under any of the Material Agreements
described on Schedule 4.23 to the Credit Agreement or the Indentures and other
agreements governing the Existing Xxxxxx/Sygnet Senior Notes.
7. To our knowledge there is no alleged violation by any Company of
any applicable Requirement of Law, federal, state, and local (including without
limitation, Environmental Laws and those statutes administered by each state
public utility commission that, on the date of this opinion, exercises
jurisdiction over the Companies (collectively, the "Local Authorities")), which,
if determined adversely, would be material to the conduct of its business and
operations. Except as have been obtained or are otherwise described on Schedule
4.4 to the Credit Agreement, no authorization, consent, approval, waiver,
licenses, or formal exemptions from, nor any filing, declaration, or
registration with, any Governmental Authority or non-governmental entity, under
the terms of the contracts or under any Requirement of Law, is required by
reason of or in connection with the execution, delivery, and performance of the
Transaction Documents and the Reorganization Documents. To our knowledge, the
consummations of the Merger, the termination of the Existing Credit Facilities,
the tender offer for the Existing Xxxxxx/Sygnet Notes and the transactions
contemplated by the Transaction Documents in the manner therein contemplated are
not restrained by any decree, judgment, ruling or injunction.
8. Except for matters described on Schedule 4.6 to the Credit
Agreement, to our knowledge, there is no pending litigation against any Company
that, if determined adversely to such Company, would be material to the conduct
of its business or operations.
9. Assuming that, for the purposes of this paragraph 9, the laws of
the State of New York are the same as the laws of the State of Oklahoma in all
material respects, (a) the Transaction Documents constitute the legal, valid and
binding obligations of each Company which is a party thereto, enforceable
against such Companies in accordance with their respective terms, and (b) the
Guarantee and Collateral Agreement creates, as security for the Obligations, a
security interest in the Collateral described therein, to the extent the
Collateral consists of assets in which a security interest may be created in
accordance with Article 9 of the Uniform Commercial Code in effect in the State
of Oklahoma (the "Uniform Commercial Code"), in favor of the Administrative
Agent for the benefit of the Secured Parties.
10. The Persons pledging to Administrative Agent, for the benefit of
Lenders, any of the Pledged Stock (as defined in the Guarantee and Collateral
Agreement) are the record owners thereof, free and clear of any restrictions or,
to our knowledge, any encumbrances other than exist pursuant to the Existing
Credit Facilities or otherwise set forth in the partnership agreements of the
Cellular Partnerships or the operating agreement of DOC. The Pledged Stock
includes 100% of the capital stock in Borrower, and 100% of the membership
interests in DOC, Lease Co., Michigan and Maryland.
11. (a) The financing statements with respect to the Security
Documents each in the form reviewed by us and naming as debtor any of the
Companies other than Michigan or Maryland (the "Oklahoma Financing Statements")
are in sufficient form for recordation under the Uniform Commercial Code. When
the Oklahoma Financing Statements have been filed and recorded with the County
Clerk of Oklahoma County, Oklahoma, and, with respect to transmitting utility
filings, the Secretary of State of Oklahoma, as referred to therein, no further
action, including any filing or recording of any document, is necessary in order
to establish and perfect Administrative Agent's security interests created by
the Security Documents in the assets described in the Oklahoma Financing
Statements (other than (a) commercial tort claims, which must be specifically
described in a financing statement, and (b) fixtures and other interests in real
estate), to the extent the same may be perfected by the filing of financing
statements under the applicable laws of Oklahoma. No further action is required
under Oklahoma law in order to maintain the perfection of such security
interests other than the periodic filing of continuation statements with respect
to financing statements filed under the Uniform Commercial Code.
(b) The financing statements with respect to the Security
Documents each in the form reviewed by us and naming Michigan or Maryland as
debtor (the "Delaware Financing Statements") are in sufficient form for
recordation under the Delaware Uniform Commercial Code. When the Delaware
Financing Statements have been filed and recorded with the Secretary of State of
Delaware, as referred to therein, no further action, including any filing or
recording of any document, is necessary in order to establish and perfect
Administrative Agent's security interests created by the Security Documents in
the assets described in the Delaware Financing Statements (other than (a)
commercial tort claims, which must be specifically described in a financing
statement, and (b) fixtures and other interests in real estate), to the extent
the same may be perfected by the filing of financing statements under the
applicable laws of Delaware. No further action is required under Delaware law in
order to maintain the perfection of such security interests other than the
periodic filing of continuation statements with respect to financing statements
filed under the Delaware Uniform Commercial Code.
(c) Assuming delivery to the Administrative Agent in the State of
New York of all certificates that represent the Pledged Stock issued by
corporate entities (together with stock powers executed in blank), the Pledged
Notes and Chattel Paper, the security interest of the Administrative Agent
therein is perfected in accordance with the applicable provisions of the Uniform
Commercial Code.
(d) Upon the execution and delivery of each control agreement
substantially in the form of Annex III to the Guarantee and Collateral Agreement
by each applicable Company, the Administrative Agent and each bank a party
thereto, the security interest created in the deposit account described in such
control agreements in favor of the Administrative Agent is perfected in
accordance with Article 9 of the Uniform Commercial Code.
12. The Reorganization Documents have been duly executed and delivered
by all parties thereto, and constitute the valid and legally binding obligations
of such parties, enforceable in accordance with their terms, except as the
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting the rights and remedies of creditors generally or the
application of principles of equity, whether in an action in law or proceeding
in equity, and except that the remedies available with respect thereto may be
subject to general principles of equity (regardless of whether such remedies are
sought in a proceeding in equity or at law). The Reorganization has been
consummated in accordance with the Reorganization Documents and applicable law.
13. None of the Companies is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
The foregoing opinions are subject to the following qualifications,
assumptions and exceptions:
(a) Our opinions are limited to matters governed by laws of the
State of Oklahoma and applicable federal law. We express no opinion on matters
governed by the laws of other states. In particular, although we have assumed
for the purposes of the opinions in paragraphs 9, 11(c) and 11(d) that the laws
of the State of New York are substantially the same as the laws of the State of
Oklahoma, and that for purposes of the opinions in paragraphs 11(b) that the
laws of the State of Delaware are substantially the same as the laws of the
State of Oklahoma, we express no opinion as to the laws of the State of New York
or the laws of the State of Delaware. Our opinions in paragraph 1 above are
based solely on our review of the organizational documents of such Companies and
certificates of good standing issued by the Secretaries of State of Oklahoma and
Delaware. Our opinions as to the qualification and good standing of the entities
described in paragraph 1 and the consummation of the Reorganization are based on
the certificates of the Secretaries of State of the applicable jurisdictions or,
in some cases, confirmation of certain filings with such Secretaries of State by
CT Corporation. Further, we express no opinion as to certain regulatory matters,
as such matters are addressed in the separate opinion of this date issued to you
by Wilkinson, Barker, Xxxxxx & Xxxxx.
(b) We express no opinion on title to or the relative priority of
liens or encumbrances on any property described in the Transaction Documents.
(c) The Credit Agreement and other Transaction Documents provide
that they will be governed by and construed in accordance with the substantive
laws of the State of New York. For purposes of our opinion, we have assumed,
with your consent, that the Credit Agreement and other Transaction Documents
will be governed by the laws of the State of Oklahoma, notwithstanding their
express terms. We express no opinion about what law will actually govern the
Credit Agreement.
(d) The enforceability of obligations under any of the
Transaction Documents is subject to (i) bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting the rights and remedies of creditors
generally or the application of principles of equity, whether in an action in
law or proceeding in equity; (ii) the requirement under the Uniform Commercial
Code that a secured party exercise its rights in a commercially reasonable
manner, (iii) public policy considerations which may limit the right to obtain
certain remedies and to indemnification; (iv) fraudulent transfer and conveyance
laws; and (v) applicable limitations on creation of encumbrances on, and
transfers of, licenses. Moreover, a court may fail or refuse to enforce
provisions of agreements or documents if the enforcement thereof is based upon
defaults or breaches which are immaterial to the ultimate performance
contemplated thereby. No opinion is expressed as to the legality, validity, or
enforceability of any waiver of the right to receive notice, any waiver of any
legal or equitable defense, any waiver of equity, redemption, stay or appraisal,
any waiver of the availability of specific performance, injunctive relief or
other equitable remedies, or any other waiver, including, without limitation,
any waiver as to trial by jury. Finally, certain provisions of the Transaction
Documents may be unenforceable or their enforceability limited, but such
unenforceability or limitation on enforceability will not impair the practical
realization of the rights of the Lenders under the Transaction Documents.
(e) Our opinion in paragraph 10 as to the Pledged Stock is based
solely on our review of the corporate stock records and other records reflecting
their equity ownership provided by the Companies and certificates of officers of
such entities.
(f) The laws of various states require filings (in addition to
the periodic filing of continuation statements with respect to financing
statements filed under the Uniform Commercial Code) to perfect mortgages or
security interests in the assets of public transmission companies and similarly
designated entities (a "Transmitting Utility"). We express no opinion as to
whether any of the Companies constitute a Transmitting Utility, and if so,
whether such Companies would be subject to such laws or the procedures or forms
required by the several states to comply with such laws.
(g) We have assumed the authenticity of all documents submitted
to us as originals, the conformity with the originals of all documents submitted
to us as copies and the genuineness of all signatures on documents we have
reviewed.
This opinion is addressed to you solely for your use in connection
with the transactions contemplated by the Transaction Documents, and no person
other than Administrative Agent, each Lender, each assignee that hereafter
becomes a Lender as permitted by the Credit Agreement, is entitled to rely
hereon without our prior written consent. This opinion is given as of the date
hereof, and we have no obligation to revise or update this opinion subsequent to
the date hereof or to advise you or any other person of any matter subsequent to
the date hereof which would cause us to modify this opinion in whole or in part.
Very truly yours,
ANNEX A
TO OPINION OF COUNSEL OF BORROWER
JURISDICTION OF FOREIGN
COMPANY ORGANIZATION QUALIFICATIONS
------- ------------ --------------
Corporations:
Xxxxxx Communications
Corporation OK
Xxxxxx Cellular Systems, Inc. OK TX, OH, MD, PA, WV, AZ,
KS, MO, AK, KY, NY, MI,
WI, MN
Limited Liability Companies:
Xxxxxx Operating Co., L.L.C. OK
DOC Lease Co., L.L.C. OK
Michigan RSA Sub LLC DE
Maryland RSA 2, LLC DE
EXHIBIT F-2
FORM OF LEGAL OPINION OF XXXXXXXXX XXXXXX XXXXXX, LLP
October 23, 2003
Xxxxxx Commercial Paper Inc.
As Administrative Agent
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Lenders described below
Re: Credit Agreement dated as of October 23, 2003, among Xxxxxx Cellular
Systems, Inc. as Borrower, Xxxxxx Communications Corporation, Xxxxxx
Operating Co. L.L.C., Xxxxxx Commercial Paper Inc. as Administrative
Agent, Xxxxxx Brothers Inc. and Bear, Xxxxxxx & Co. Inc. as Joint Lead
Arrangers and Joint Book Runners, Bear Xxxxxxx Corporate Lending Inc.
as Syndication Agent, Xxxxxx Xxxxxxx Senior Funding, Inc. as
Co-Arranger and Documentation Agent, and the Lenders party thereto
Dear Ladies and Gentlemen
Xxxxxxxxx Xxxxxx Xxxxxx, LLP (the "Firm") has acted as special regulatory
counsel to Xxxxxx Cellular Systems, Inc. (the "Borrower"), Xxxxxx Communications
Corporation ("Parent"), Xxxxxx Operating Co. L.L.C. ("DOC"), and certain of
their respective subsidiaries (the "Subsidiaries") (collectively the "Loan
Parties") in connection with (a) the Credit Agreement dated as of October 23,
2003, among the Loan Parties and Xxxxxx Commercial Paper Inc. as Administrative
Agent, Xxxxxx Brothers Inc. and Bear, Xxxxxxx & Co. Inc. as Joint Lead Arrangers
and Joint Book Runners, Bear Xxxxxxx Corporate Lending Inc. as Syndication
Agent, Xxxxxx Xxxxxxx Senior Funding, Inc. as Co-Arranger and Documentation
Agent, and the Lenders party thereto (collectively, the "Lender Parties") (the
"Credit Agreement"), and (b) the Guarantee and Collateral Agreement dated as of
October 23, 2003, among the Loan Parties and the Administrative Agent (the
"Guarantee and Collateral Agreement" and, together with the Credit Agreement,
the "Loan Documents").
This opinion is being delivered to you on the Closing Date pursuant to
Section 5.1(k) (ii) of the Credit Agreement. Capitalized terms used herein which
are not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement.
Our opinion is limited to the provisions of the Communications Act of 1934
as amended, 47 U.S.C. ss. 151 et seq., (the "Act") and all relevant rules,
regulations and published policies of the Federal Communications Commission
("FCC") (collectively, with the Act, hereafter the "Communications Laws"), and
all relevant rules, regulations, and published policies of and laws administered
by any state public utility commissions having jurisdiction over the Loan
Parties ("Applicable PUC") (the "PUC Laws"), and we express no opinion and
assume no responsibility as to the applicability of any other laws.
This opinion is based upon our examination of (i) the Communications Laws
and the PUC Laws, (ii) the records and files of the Loan Parties that have been
made available to us on or before the date hereof, and (iii) the Loan Documents.
As to any facts material to these opinions which we did not establish by relying
upon such examination, we have relied upon statements, representations and/or
certificates of the Loan Parties and/or their officers, directors, principals,
trustees or agents in the Credit Agreement or the other Loan Documents, or made
directly for our benefit in the preparation of this opinion, as well as upon
representations made to us by state PUC officials. No other investigation has
been undertaken in connection with this opinion, and in particular, we have made
no independent audit of any of the businesses or operations of the Loan Parties.
To the extent that certain factual matters are stated "to our knowledge," or a
similar phrase, it is intended to indicate that those attorneys in this firm who
have rendered legal services to any of the Loan Parties on a regular basis do
not have current actual knowledge of the inaccuracy of such statement. However,
except as otherwise expressly indicated, we have not undertaken any independent
investigation to determine the accuracy of any such statement, and no inference
that we have any knowledge of any matters pertaining to such statement should be
drawn from our representation of the Loan Parties.
With respect to our review of the Loan Documents, we reviewed drafts of the
Loan Documents that have been represented to us as closely conforming in all
material respects to the Loan Documents as executed. We have assumed the
genuineness of signatures of all persons signing any documents, the authority of
all persons signing any document on behalf of parties thereto, the authority of
all public officials and governmental authorities, the authenticity of all
documents submitted to us as originals, the conformity to authentic originals of
all documents submitted to us as copies, and the correctness of public files,
records and certificates of, or furnished by, governmental or regulatory
agencies or authorities.
Determinations as to the de facto control of an FCC licensee are made by
the FCC on a case-by-case basis. Our opinion assumes that the covenants and
conditions contained in the Loan Documents will be exercised and/or enforced in
a commercially reasonable manner.
Members of our firm are admitted to the bar of the District of Columbia.
While members of the Firm are admitted to the bars of other states in which any
of the Loan Parties may be operating, we hold no opinions with respect to the
laws in those states that are implicated, if any, by the transactions herein.
With respect to the PUC Laws examined for purposes of rendering this opinion, we
do not purport to render opinions as members of the particular state bars;
instead, our opinions are based solely upon our examination of the PUC Laws and
discussions with state PUC officials. Further, we express no opinion as to any
other federal laws or the laws or rules of any other jurisdiction, state, county
or municipality, except, as applicable, the Communications Laws and the PUC
Laws.
In rendering this opinion, we have undertaken no independent review to
determine whether the Loan Parties are in good standing under the laws of any
states where they conduct or are authorized to do business. We have relied
solely upon the information described explicitly above, and on no other
information. We disclaim any responsibility or duty to investigate, ascertain or
report on any document, matter, condition or proceeding which is outside the
scope of our review described in this letter, or which may develop subsequent to
the date of this letter, including any amendments or revisions to the Loan
Documents made after the date hereof. This disclaimer includes, but is not
limited to, judicial proceedings involving other parties (such as antitrust
proceedings in the communications industry), legislative proceedings, rulemaking
proceedings before the FCC, any Applicable PUC or other agencies, and official
or informal proceedings which are not a matter of written public record (such as
investigations, confidential deliberations, and the like). If we subsequently
become aware of any change in the information in this letter, we disclaim any
duty or responsibility to bring it to your attention or to the attention of your
counsel.
Based upon and subject to the foregoing, we are of the opinion that:
1. The FCC Licenses set forth on Schedule 4.25 to the Credit Agreement (the
"FCC Licenses") were validly issued to the Borrower and its Subsidiaries, are in
full force and effect, and constitute in all material respects, together with
any PUC Authorizations issued to them, all of the Authorizations from any
Communications Regulatory Authority necessary for the operation of DOC's and its
Subsidiaries' business in the same manner as it is, to the best of our
knowledge, presently conducted.
2. The execution, delivery and performance by each Loan Party of the Loan
Documents, the granting of liens thereunder and the consummation of the Merger
(a) will not result in a violation of the Communications Laws or any PUC Laws
and (b) will not cause any revocation, suspension, materially adverse
modification, non-renewal or termination of any FCC License.
3. No consent or authorization of, filing with, notice to or other act by
or in respect of, the FCC or any Applicable PUC is required in connection with
the execution and delivery of the Loan Documents, the granting of security
interests thereunder, and the consummation of the transactions contemplated
thereby, except for (i) such filings, notices, consents or approvals which have
been made or obtained on or prior to the Closing Date, or which (in the case of
any other notices, filings, consents or approvals which may be required to be
filed with or obtained from any Applicable PUCs), if not made or obtained, would
not materially adversely affect the ability of the Loan Parties to operate any
of the Systems or the enforceability of the Loan Documents against the Loan
Parties, and (ii) notifications to the FCC and certain Applicable PUCs with
respect to the Merger which are permitted to be made after the Closing Date.
4. To the best of our knowledge, the Parent, DOC and its Subsidiaries have
made all material filings which are required to be filed by it under the
Communications Laws and are in all material respects in substantial compliance
with the Communications Laws relating to the operation of each System.
5. To the best of our knowledge, each of DOC and its Subsidiaries have
taken all material actions and performed all of their material obligations that
are necessary to maintain each FCC License without adverse modification or
impairment and no event has occurred which (i) results in, or after notice or
lapse of time or both would result in, any revocation, suspension, materially
adverse modification, non-renewal or termination, material impairment of value
of, or any materially adverse order of forfeiture with respect to, any FCC
License or (ii) materially and adversely affects or in the future may materially
adversely affect any of the rights of DOC or any Subsidiary thereof with respect
to any FCC License.
6. To the best of our knowledge, (i) no Loan Party is the subject of any
investigation, notice of apparent liability, violation, forfeiture or other
order or complaint issued by or before any court or regulatory body, including
the FCC, or of any other proceedings (other than proceedings relating to the
wireless industry generally) which could threaten or adversely affect the
validity or continued effectiveness of such Loan Parties' FCC Licenses, and (ii)
there is no reason to believe (other than there being no legal assurance
thereof) that any FCC License will not be renewed in the ordinary course.
In rendering the opinions in this letter, we are engaged in acting solely
as counsel for the Loan Parties, and we are not engaged or acting as counsel for
the Administrative Agent or for any of the Lender Parties or any other person or
entity. This opinion letter is provided to the Administrative Agent, its
counsel, and each Lender and their respective assignees or other transferees, by
us in our capacity as federal communications regulatory counsel to the Loan
Parties and can be relied upon, on a confidential basis, in connection with the
transactions contemplated by the Credit Agreement solely by such persons and by
Lender Parties under the Credit Agreement. This opinion may not be relied upon
by any other person or for any other purpose except with the prior written
consent of the undersigned. This letter is provided to you on the condition that
its contents are not disclosed to any other person or entity, except as stated
in this paragraph. This opinion is not to be quoted in whole or in part or
otherwise referred to in any document except as directly a part of and related
to the transactions contemplated under the Credit Agreement and, except as
required by applicable law, it is not to be filed with any governmental
authority or any other entity or person whatsoever.
Sincerely,
XXXXXXXXX XXXXXX XXXXXX, LLP
EXHIBIT G-1
FORM OF TERM NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
________ __, 200___
FOR VALUE RECEIVED, the undersigned, ____________________, a __________
corporation (the "Borrower"), hereby unconditionally promises to pay to
________(the "Lender") or its registered assigns at the Payment Office specified
in the Credit Agreement (as hereinafter defined) in lawful money of the United
States and in immediately available funds, the principal amount of (a)
____________DOLLARS ($____), or, if less, (b) the unpaid principal amount of the
Term Loan made by the Lender pursuant to Section 2.1 of the Credit Agreement.
The principal amount shall be paid in the amounts and on the dates specified in
Section 2.3 of the Credit Agreement. The Borrower further agrees to pay interest
in like money at such office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in Section 2.15 of the
Credit Agreement.
The holder of this Note is authorized to indorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of the Term
Loan and the date and amount of each payment or prepayment of principal with
respect thereto, each conversion of all or a portion thereof to another Type,
each continuation of all or a portion thereof as the same Type and, in the case
of Eurodollar Loans, the length of each Interest Period with respect thereto.
Each such indorsement shall constitute prima facie evidence of the accuracy of
the information indorsed. The failure to make any such indorsement or any error
in any such indorsement shall not affect the obligations of the Borrower in
respect of the Term Loan.
This Note (a) is one of the Term Notes referred to in the Credit Agreement
dated as of October 23, 2003 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, Xxxxxx
Communications Corporation, Xxxxxx Operating Co. L.L.C., the Lender, the other
Lenders parties thereto, Xxxxxx Commercial Paper Inc., as Administrative Agent,
and others, (b) is subject to the provisions of the Credit Agreement and (c) is
subject to optional and mandatory prepayment in whole or in part as provided in
the Credit Agreement. This Note is secured and guaranteed as provided in the
Loan Documents. Reference is hereby made to the Loan Documents for a description
of the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the rights
of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
principal and all accrued interest then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, indorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT
AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE
WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 11.6 OF THE CREDIT
AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
[Borrower]
By:
Name:
Title:
Schedule A
to Term Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
Amount of Principal Unpaid Principal
Amount of Amount of Base Rate Balance
Amount of Base Converted to Base Rate Loans Loans Converted to of Base Rate
Date Rate Loans Base Rate Loans Repaid Eurodollar Loans Loans Notation Made By
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Schedule B
to Term Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Interest Period Amount of
and Amount of Eurodollar Unpaid Principal
Amount of Amount Eurodollar Rate Principal of Loans Converted Balance of
Eurodollar Converted to with Eurodollar Loans to Eurodollar Notation
Date Loans Eurodollar Loans Respect Thereto Repaid Base Rate Loans Loans Made By
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========= ================= ================= ================= ================== ================= ================== ============
EXHIBIT G-2
FORM OF REVOLVING CREDIT NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
__________ __, 200_
FOR VALUE RECEIVED, the undersigned, ____________________, a __________
corporation (the "Borrower"), hereby unconditionally promises to pay to
____________________ (the "Lender") or its registered assigns at the Payment
Office specified in the Credit Agreement (as hereinafter defined) in lawful
money of the United States and in immediately available funds, on the Revolving
Credit Termination Date the principal amount of (a) ________DOLLARS ($_____),
or, if less, (b) the aggregate unpaid principal amount of all Revolving Credit
Loans made by the Lender to the Borrower pursuant to Section 2.4 of the Credit
Agreement. The Borrower further agrees to pay interest in like money at such
Payment Office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in Section 2.15 of the
Credit Agreement.
The holder of this Note is authorized to indorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each
Revolving Credit Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such indorsement shall constitute prima facie evidence of the
accuracy of the information indorsed. The failure to make any such indorsement
or any error in any such indorsement shall not affect the obligations of the
Borrower in respect of any Revolving Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to in the
Credit Agreement dated as of October 23, 2003 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, Xxxxxx Communications Corporation, Xxxxxx Operating Co. L.L.C., the
Lender, the other Lenders parties thereto, Xxxxxx Commercial Paper Inc., as
Administrative Agent, and others, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to optional and mandatory prepayment in whole or in
part as provided in the Credit Agreement. This Note is secured and guaranteed as
provided in the Loan Documents. Reference is hereby made to the Loan Documents
for a description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee were
granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
principal and all accrued interest then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, indorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT
AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE
WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 11.6 OF THE CREDIT
AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
[Borrower]
By:
Name:
Title:
Schedule A
to Revolving Credit Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
Amount of Base
Amount Amount of Principal Rate Loans Unpaid Principal
Amount of Base Converted to of Base Converted to Balance of
Date Rate Loans Base Rate Loans Rate Loans Repaid Eurodollar Loans Base Rate Loans Notation Made By
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Schedule B
to Revolving Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Amount of
Amount of Amount Interest Period and Principal of Amount of Eurodollar Unpaid Principal
Eurodollar Converted to Eurodollar Rate with Eurodollar Loans Loans Converted to Balance of Eurodollar Notation
Date Loans Eurodollar Loans Respect Thereto Repaid Base Rate Loans Loans Made By
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EXHIBIT G-3
FORM OF SWING LINE NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
________ __, 200___
FOR VALUE RECEIVED, the undersigned, [____________________], a __________
corporation (the "Borrower"), hereby unconditionally promises to pay to
____________________ (the "Swing Line Lender") or its registered assigns at the
Payment Office specified in the Credit Agreement (as hereinafter defined) in
lawful money of the United States and in immediately available funds, on the
Revolving Credit Termination Date the principal amount of (a) ________DOLLARS
($____________), or, if less, (b) the aggregate unpaid principal amount of all
Swing Line Loans made by the Swing Line Lender to the Borrower pursuant to
Section 2.6 of the Credit Agreement, as hereinafter defined. The Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in Section 2.15 of such Credit Agreement.
The holder of this Note is authorized to indorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date and amount of each Swing Line
Loan made pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof. Each such indorsement shall
constitute prima facie evidence of the accuracy of the information indorsed. The
failure to make any such indorsement or any error in any such indorsement shall
not affect the obligations of the Borrower in respect of any Swing Line Loan.
This Note (a) is one of the Swing Line Notes referred to in the Credit
Agreement dated as of October 23, 2003 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, Xxxxxx
Communications Corporation, Xxxxxx Operating Co. L.L.C., the Lender, the other
Lenders parties thereto, Xxxxxx Commercial Paper Inc., as Administrative Agent,
and others, (b) is subject to the provisions of the Credit Agreement and (c) is
subject to optional and mandatory prepayment in whole or in part as provided in
the Credit Agreement. This Note is secured and guaranteed as provided in the
Loan Documents. Reference is hereby made to the Loan Documents for a description
of the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the rights
of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
principal and all accrued interest then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, indorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT
AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE
WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 11.6 OF THE CREDIT
AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
[Borrower]
By:
Name:
Title:
Schedule A
to Swing Line Note
LOANS AND REPAYMENTS OF SWING LINE LOANS
Amount of Principal Unpaid Principal Balance
Amount of of Swing Line of Swing
Date Swing Line Loans Loans Repaid Line Loans Notation Made By
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EXHIBIT H
FORM OF PREPAYMENT OPTION NOTICE
Attention of [ ]
Telecopy No. [ ]
[Date]
Ladies and Gentlemen:
The undersigned, Xxxxxx Commercial Paper Inc., as administrative agent
(in such capacity, the "Administrative Agent") for the Lenders, refers to the
Credit Agreement, dated as of October 23, 2003 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Xxxxxx
Cellular Systems, Inc. as borrower (the "Borrower"), Xxxxxx Communications
Corporation, Xxxxxx Operating Co. L.L.C., the Lenders parties thereto and the
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement
The Administrative Agent hereby gives notice of a mandatory prepayment
of the Term Loan to be made by the Borrower pursuant to Section 2.12(d) of the
Credit Agreement. The portion of the prepayment amount to be allocated to the
Term Loan held by you and the date on which such prepayment will be made to you
(should you elect to receive such prepayment) are set forth below:
(A) Term Loan Prepayment Amount __________
(B) Prepayment Date: __________
IF YOU DO NOT WISH TO RECEIVE ALL OF THE TERM LOAN PREPAYMENT AMOUNT
TO BE ALLOCATED TO YOU ON THE MANDATORY PREPAYMENT DATE INDICATED IN PARAGRAPH
(B) ABOVE, please sign this notice in the space provided below and indicate the
percentage of the Term Loan Prepayment Amount otherwise payable which you do not
wish to receive. Please return this notice as so completed via telecopy to the
attention of [_____________] at ________________, no later than 10:00 a.m., New
York City time, on the Prepayment Date, at Telecopy No. [________________]. IF
YOU DO NOT RETURN THIS NOTICE, YOU WILL RECEIVE 100% OF THE TERM LOAN PREPAYMENT
ALLOCATED TO YOU ON THE MANDATORY PREPAYMENT DATE.
XXXXXX COMMERCIAL PAPER INC,
as Administrative Agent
By:___________________
Name:
Title:
---------------------------------,
as Lender
By:___________________
Name:
Title:
Percentage of Term Loan
Prepayment Amount
Declined: ____%
EXHIBIT I
FORM OF EXEMPTION CERTIFICATE
Reference is made to the Credit Agreement, dated as of October 23,
2003 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among XXXXXX CELLULAR SYSTEMS, INC. an Oklahoma corporation
(the "Borrower"), XXXXXX COMMUNICATIONS CORPORATION, an Oklahoma corporation,
XXXXXX OPERATING CO. L.L.C., an Oklahoma limited liability company, the Lenders
parties thereto, XXXXXX BROTHERS INC. and BEAR, XXXXXXX & CO. INC. as Arrangers,
XXXXXX COMMERCIAL PAPER INC., as Administrative Agent, and others. Capitalized
terms used herein that are not defined herein shall have the meanings ascribed
to them in the Credit Agreement.
______________________ (the "Non-U.S. Lender") is providing this
certificate pursuant to Section 2.20(d) of the Credit Agreement. The Non-U.S.
Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of the Loans
or the obligations evidenced by Note(s) in respect of which it is providing this
certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section 881(c)(3)(A)
of the Internal Revenue Code of 1986, as amended (the "Code"). In this regard,
the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for purposes
of any tax, securities law or other filing or submission made to
any Governmental Authority, any application made to a rating
agency or qualification for any exemption from tax, securities
law or other legal requirements;
3. The Non-U.S. Lender is not a 10-percent shareholder of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code; and
4. The Non-U.S. Lender is not a controlled foreign corporation receiving
interest from a related person within the meaning of Section 881(c)(3)(C) of the
Code.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the
date set forth below.
[NAME OF NON-U.S. LENDER]
By:
Name:
Title:
Date: ____________________
EXHIBIT J
FORM OF LENDER ADDENDUM
Reference is made to the Credit Agreement, dated as of October 23,
2003 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Xxxxxx Cellular Systems, Inc., as Borrower, Xxxxxx
Communications Corporation, Xxxxxx Operating Co. ,L.L.C., the Lenders parties
thereto, Xxxxxx Commercial Paper Inc., as Administrative Agent, and others party
thereto. Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
Upon execution and delivery of this Lender Addendum by the parties
hereto as provided in Section 5.1(a) of the Credit Agreement, the undersigned
hereby becomes a Lender thereunder having the Commitments set forth in Schedule
1 hereto, effective as of the Closing Date.
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Lender Addendum may be executed by one or more of the parties
hereto on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page hereof by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lender
Addendum to be duly executed and delivered by their proper and duly authorized
officers as of this ____ day of October, 2003
--------------------------------
Name of Lender
By:
Name:
Title:
Accepted and agreed:
XXXXXX CELLULAR SYSTEMS, INC.
By:
Name:
Title:
XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent
By:
Name:
Title:
Schedule 1
COMMITMENTS AND NOTICE ADDRESS
1. Name of Lender: _____________________________
Notice Address: _____________________________
_____________________________
Attention: _____________________________
Telephone: _____________________________
Facsimile: _____________________________
2. Revolving Credit Commitment:
3. Term Loan Commitment:
EXHIBIT K
FORM OF BORROWING NOTICE
To: Xxxxxx Commercial Paper Inc.,
as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000 000 0000
Telephone: 000 000 0000
Reference is hereby made to the Credit Agreement, dated as of October
23, 2003(as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Xxxxxx Communications Corporation, an Oklahoma
corporation (the "Parent"), Xxxxxx Cellular Systems, Inc., an Oklahoma
corporation ("Borrower"), Xxxxxx Communications Corporation, an Oklahoma
corporation, Xxxxxx Operating Co. L.L.C., an Oklahoma limited liability company,
the Lenders party thereto (the "Lenders"), Xxxxxx Commercial Paper Inc., as
Administrative Agent, and others. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the meanings so defined.
The Borrower hereby gives notice to the Administrative Agent that
Loans under the Facility, and of the type and amount, set forth below are
requested to be made on the date indicated below:
[TERM] [REVOLVING CREDIT] LOANS*
Interest Aggregate
Type of Loans Period Amount Date of Loans
------------- -------- --------- -------------
Base Rate Loans N/A ________ ___________
Eurodollar Loans** ______ ________ ___________
______ ________
______ ________
______ ________
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to it as follows:
[insert/refer to attached transmittal wire instructions]
The Borrower hereby certifies that all conditions contained in the
Credit Agreement to the making of any Loan requested have been met or satisfied
in full.
XXXXXX CELLULAR SYSTEMS, INC.
By:
Title:
DATE:_____________
------------------
* Specify the Facility under which Loans are requested. The Borrower shall
submit a separate Borrowing Notice for requested Loans under each Facility.
** If more than one Interest Period is requested, the Borrower shall list
duration of each requested Interest Period and amount of requested Loans
allocated to each Interest Period.
