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EXHIBIT 10.3.1
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CREDIT AGREEMENT
dated as of March 7, 2000
by and among
TRIVERGENT COMMUNICATIONS SOUTH, INC.
as Borrower
and
NORTEL NETWORKS INC.
as Administrative Agent
and
THE LENDERS NAMED HEREIN
$45,000,000 ADVANCING TERM LOAN FACILITY
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TABLE OF CONTENTS
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ARTICLE 1 Definitions.............................................................................................1
Section 1.1 Definitions, etc.......................................................................1
Section 1.2 Other Definitional Provisions.........................................................23
Section 1.3 Accounting Terms and Determinations...................................................23
Section 1.4 Financial Covenants and Reporting.....................................................24
ARTICLE 2 Loans..................................................................................................24
Section 2.1 Commitments...........................................................................24
Section 2.2 Notes.................................................................................24
Section 2.3 Repayment of Loans....................................................................25
Section 2.4 Interest..............................................................................26
Section 2.5 Borrowing Procedure...................................................................27
Section 2.6 Optional Prepayments, Conversions and Continuations of Loans..........................27
Section 2.7 Mandatory Prepayments.................................................................28
Section 2.8 Minimum Amounts.......................................................................29
Section 2.9 Certain Notices.......................................................................29
Section 2.10 Use of Proceeds.......................................................................30
Section 2.11 Fees..................................................................................30
Section 2.12 Computations..........................................................................30
Section 2.13 Termination or Reduction of Commitments...............................................31
ARTICLE 3 Payments...............................................................................................31
Section 3.1 Method of Payment.....................................................................31
Section 3.2 Pro Rata Treatment....................................................................32
Section 3.3 Sharing of Payments, Etc..............................................................32
Section 3.4 Non-Receipt of Funds by the Administrative Agent......................................32
Section 3.5 Taxes.................................................................................33
Section 3.6 Withholding Tax Exemption.............................................................34
Section 3.7 Reinstatement of Obligations..........................................................34
Section 3.8 No Force Majeure, Disputes............................................................34
ARTICLE 4 Yield Protection and Illegality........................................................................35
Section 4.1 Additional Costs......................................................................35
Section 4.2 Limitation on Types of Loans..........................................................36
Section 4.3 Illegality............................................................................37
Section 4.4 Treatment of Affected Loans...........................................................37
Section 4.5 Compensation..........................................................................38
Section 4.6 Capital Adequacy......................................................................38
Section 4.7 Additional Interest on Eurodollar Loans...............................................39
Section 4.8 Replacement of Lenders................................................................39
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ARTICLE 5 Security...............................................................................................40
Section 5.1 Collateral............................................................................40
Section 5.2 Guaranties............................................................................40
Section 5.3 New Subsidiaries; Additional Capital Stock............................................40
Section 5.4 New Mortgaged Properties; Landlord Waivers............................................41
Section 5.5 Management Services Agreement.........................................................42
Section 5.6 Further Assurances....................................................................42
Section 5.7 Setoff................................................................................42
ARTICLE 6 Conditions Precedent...................................................................................43
Section 6.1 Initial Extension of Credit...........................................................43
Section 6.2 All Extensions of Credit..............................................................47
Section 6.3 Closing Certificates..................................................................48
ARTICLE 7 Representations and Warranties.........................................................................48
Section 7.1 Existence.............................................................................48
Section 7.2 Financial Statements..................................................................48
Section 7.3 Corporate Action; No Breach...........................................................49
Section 7.4 Operation of Business; Licenses.......................................................49
Section 7.5 Intellectual Property.................................................................50
Section 7.6 Litigation and Judgments..............................................................50
Section 7.7 Rights in Properties; Liens...........................................................50
Section 7.8 Enforceability........................................................................51
Section 7.9 Approvals.............................................................................51
Section 7.10 Debt..................................................................................51
Section 7.11 Taxes.................................................................................51
Section 7.12 Margin Securities.....................................................................51
Section 7.13 ERISA.................................................................................52
Section 7.14 Disclosure............................................................................52
Section 7.15 [Reserved.]
Section 7.16 Compliance with Laws..................................................................52
Section 7.17 Investment Company Act................................................................53
Section 7.18 Public Utility Holding Company Act....................................................53
Section 7.19 Environmental Matters.................................................................53
Section 7.20 Year 2000 Compliance..................................................................54
Section 7.21 Labor Disputes and Acts of God........................................................54
Section 7.22 Material Contracts....................................................................54
Section 7.23 Bank Accounts.........................................................................55
Section 7.24 Outstanding Securities................................................................55
Section 7.25 Solvency..............................................................................55
Section 7.26 Employee Matters......................................................................55
Section 7.27 Insurance.............................................................................55
Section 7.28 Common Enterprise.....................................................................55
Section 7.30 Ownership of Customer Data, Billing Records, Etc......................................56
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ARTICLE 8 Affirmative Covenants..................................................................................56
Section 8.1 Reporting Requirements................................................................56
Section 8.2 Maintenance of Existence; Conduct of Business.........................................59
Section 8.3 Maintenance of Properties and Permits.................................................60
Section 8.4 Taxes and Claims......................................................................60
Section 8.5 Insurance.............................................................................60
Section 8.6 Inspection Rights.....................................................................61
Section 8.7 Keeping Books and Records.............................................................62
Section 8.8 Compliance with Laws..................................................................62
Section 8.9 Compliance with Agreements............................................................62
Section 8.10 Further Assurances....................................................................62
Section 8.11 ERISA.................................................................................63
Section 8.12 Non-Consolidation.....................................................................63
Section 8.13 Year 2000 Compliance..................................................................63
Section 8.14 Trade Accounts Payable................................................................63
Section 8.15 Delivery of Certain Amendments and Material Contracts.................................63
Section 8.16 Interest Rate Protection..............................................................63
Section 8.17 Ownership of Telecommunications Assets and Telecommunications Business................64
Section 8.18 Unified Cash Management System........................................................64
ARTICLE 9 Negative Covenants.....................................................................................64
Section 9.1 Debt. ...............................................................................64
Section 9.2 Limitation on Liens...................................................................65
Section 9.3 Mergers, Etc..........................................................................65
Section 9.4 Restricted Payments...................................................................65
Section 9.5 Investments...........................................................................66
Section 9.6 Limitation on Operating Leases of the Borrower........................................67
Section 9.7 Transactions with Affiliates..........................................................67
Section 9.8 Disposition of Property...............................................................67
Section 9.9 Sale and Leaseback....................................................................68
Section 9.10 Lines of Business.....................................................................68
Section 9.11 Environmental Protection..............................................................68
Section 9.12 Intercompany Transactions.............................................................68
Section 9.13 Management Fees.......................................................................69
Section 9.14 Master Purchase Agreement.............................................................69
Section 9.15 Modification of Certain Agreements....................................................69
Section 9.16 ERISA.................................................................................69
Section 9.17 No Prepayment of Debt, Etc............................................................70
ARTICLE 10 Financial Covenants...................................................................................70
Section 10.1 Total Debt to Total Capitalization....................................................70
Section 10.2 Total Debt to Annualized EBITDA.......................................................70
Section 10.3 Annualized EBITDA.....................................................................71
Section 10.4 Fixed Charge Coverage.................................................................71
Section 10.5 Interest Coverage.....................................................................71
Section 10.6 Capital Expenditures..................................................................71
Section 10.7 Quarterly Minimum Revenue Levels......................................................71
Section 10.8 Access Lines..........................................................................71
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ARTICLE 11 Default...............................................................................................71
Section 11.1 Events of Default.....................................................................71
Section 11.2 Remedies..............................................................................74
Section 11.3 Performance by the Administrative Agent, etc..........................................75
ARTICLE 12 The Administrative Agent..............................................................................75
Section 12.1 Appointment, Powers and Immunities....................................................75
Section 12.2 Rights of Administrative Agent as a Lender............................................76
Section 12.3 Defaults..............................................................................76
Section 12.4 INDEMNIFICATION.......................................................................76
Section 12.5 Independent Credit Decisions..........................................................77
Section 12.6 Several Commitments...................................................................78
Section 12.7 Successor Administrative Agent........................................................78
ARTICLE 13 Miscellaneous.........................................................................................79
Section 13.1 Expenses..............................................................................79
Section 13.2 INDEMNIFICATION.......................................................................79
Section 13.3 Limitation of Liability...............................................................80
Section 13.4 No Duty...............................................................................80
Section 13.5 No Fiduciary Relationship.............................................................81
Section 13.6 Equitable Relief......................................................................81
Section 13.7 No Waiver; Cumulative Remedies........................................................81
Section 13.8 Successors and Assigns................................................................81
Section 13.9 Survival..............................................................................85
Section 13.10 ENTIRE AGREEMENT......................................................................85
Section 13.11 Amendments............................................................................85
Section 13.12 Maximum Interest Rate.................................................................86
Section 13.13 Notices...............................................................................87
Section 13.14 GOVERNING LAW; SUBMISSION TO JURISDICTION; SERVICE OF PROCESS.........................87
Section 13.15 Counterparts..........................................................................88
Section 13.16 Severability..........................................................................88
Section 13.17 Headings..............................................................................88
Section 13.18 Construction..........................................................................88
Section 13.19 Independence of Covenants.............................................................88
Section 13.20 Confidentiality.......................................................................88
Section 13.21 WAIVER OF JURY TRIAL..................................................................88
Section 13.22 Approvals and Consent.................................................................89
Section 13.23 Service of Process....................................................................89
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INDEX TO EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Note
Exhibit C - Form of Notice of Borrowings, Conversions, Continuations
and Prepayments
Exhibit D - Form of Compliance Certificate
INDEX TO SCHEDULES
Schedule 1.1(a) - Certain Permitted Holders
Schedule 1.1(b) - Certain Permitted Liens
Schedule 7.4 - Permits, Franchises and Authorizations required by
Governmental Requirements or issued by Governmental
Authorities
Schedule 7.5 - Intellectual Property
Schedule 7.6 - Litigation, Etc.
Schedule 7.7 - Real Property
Schedule 7.10 - Existing Debt
Schedule 7.13 - Plans
Schedule 7.22 - Material Contracts
Schedule 7.23 - Bank Accounts
Schedule 7.26 - Employee Matters
Schedule 7.27 - Insurance
Schedule 7.29 - Loan Parties; Capitalization
Schedule 8.13 - Year 2000 Compliance
Schedule 8.17 - Telecommunications Assets Used in the Telecommunications
Business of the Borrower Not Owned by the Borrower
Schedule 9.5 - Certain Investments
Schedule 10 - Financial Covenants
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 7, 2000, is by and among
TRIVERGENT COMMUNICATIONS SOUTH, INC. (the "Borrower"), a South Carolina
corporation, each of the lending entities which is a party hereto (as evidenced
by the signature pages of this Agreement) or which may from time to time become
a party hereto as a lender or any successor or assignee thereof (individually, a
"Lender" and, collectively, the "Lenders"), and NORTEL NETWORKS INC., a Delaware
corporation, as administrative agent for itself and the other Lenders (in such
capacity, together with its successors in such capacity, the "Administrative
Agent").
RECITALS:
A. The Borrower desires to obtain a $45,000,000 advancing term loan
facility to finance a portion of its costs to purchase Nortel Networks Goods and
Services (as defined herein).
B. The Lender(s) identified on the signature pages of this Agreement
desire to provide such credit facilities with the assistance of the
Administrative Agent upon and subject to the terms and provisions contained in
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions, etc. As used in this Agreement, the following
terms shall have the following meanings:
"Access Lines" means, at any time, the total number of telephone lines
of end-users connected to the Network and for which the Borrower and its
Subsidiaries are providing local access at such time.
"Additional Costs" means as specified in Section 4.1(a).
"Adjusted Eurodollar Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of one percent) determined by the Administrative Agent to be
equal to (a) the Eurodollar Rate for such Eurodollar Loan for such Interest
Period divided by (b) one minus the Reserve Requirement for such Eurodollar Loan
for such Interest Period.
"Adjusted Net Income" means, as to the Borrower and its Consolidated
Subsidiaries and for any period, Consolidated Net Income less the following
(without duplication) to the extent that any of the following shall have been
included in Consolidated Net Income for such period: (a) any net gain or loss
arising from the sale of capital assets; (b) any net gain or loss arising from
any write-up or write-down of assets; (c) earnings or losses of any other
Person, substantially all of the assets of
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which have been acquired by the Borrower or a Consolidated Subsidiary of the
Borrower in any manner, to the extent that such earnings or losses were realized
by such other Person prior to the date of such acquisition; (d) earnings or
losses of any Person (other than a Consolidated Subsidiary of the Borrower) in
which the Borrower or a Consolidated Subsidiary has an ownership interest,
unless such earnings have actually been received by such Person or such
Consolidated Subsidiary in the form of cash distributions; and (e) any net gain
or loss arising from the acquisition of any securities of the Borrower or a
Consolidated Subsidiary of the Borrower.
"Administrative Agent" means as specified in the introductory paragraph
of this Agreement.
"Administrative Agent's Letter" means the letter agreement dated as of
March 7, 2000 between the Administrative Agent and the Borrower.
"Advances" means the Loans made under this Agreement.
"Affiliate" means, as to any Person, any other Person (a) that directly
or indirectly through one or more intermediaries controls or is controlled by,
or is under direct or indirect common control with, such first Person, (b) that
directly or indirectly beneficially owns or holds ten percent or more of any
class of voting Capital Stock of such first Person, or (c) ten percent or more
of the voting Capital Stock of which is directly or indirectly beneficially
owned or held by such first Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of the Loan Documents, neither the Administrative Agent nor any Lender
shall be deemed to be an Affiliate of the Borrower or any Loan Party.
"Agreement" means this Agreement and any and all amendments,
modifications, supplements, renewals, extensions or restatements hereof.
"Amortization Commencement Date" means the last day of the calendar
quarter following the calendar quarter in which the Commitment Termination Date
occurs.
"Annualized EBITDA" means EBITDA for the two most recently completed
fiscal quarters multiplied by two.
"Applicable Lending Office" means for each Lender and each Type of
Loan, the lending office of such Lender (or an Affiliate of such Lender)
designated for such Type of Loan below its name on the signature pages hereof
(or, with respect to a Lender that becomes a party to this Agreement pursuant to
an assignment made in accordance with Section 13.8, in the Assignment and
Acceptance executed by it) or such other office of such Lender (or an Affiliate
of such Lender) as such Lender may from time to time specify to the Borrower and
the Administrative Agent as the office by which its Loans of such Type are to be
made and maintained.
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"Applicable Margin" means the rate per annum equal to (a) with respect
to each Base Rate Loan, three and three-fourths of one percent (3.75%) and (b)
with respect to each Eurodollar Loan, four and three-fourths of one percent
(4.75%).
"Asset Disposition" means the disposition of any or all of the Property
of the Borrower or any of its Subsidiaries, whether by sale, lease, transfer,
assignment, condemnation or otherwise, but excluding (a) sales of inventory in
the ordinary course of business, (b) the grant of a Lien as security, (c) any
involuntary disposition resulting from casualty damage to Property, and (d)
dispositions of equipment if and to the extent that the equipment disposed of
is, concurrently therewith, exchanged or replaced by equipment of equal or
greater value.
"Assignee" means as specified in Section 13.8(b).
"Assigning Lender" means as specified in Section 13.8(b).
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and its Assignee and accepted by the Administrative Agent
pursuant to Section 13.8(e), in substantially the form of Exhibit A hereto.
"Bankruptcy Code" means as specified in Section 11.1(e).
"Base Rate" means, at any time, the greater of (a) the rate of interest
per annum then most recently announced or established by the Reference Bank at
its principal office in New York City as its highest commercial prime or base
rate then in effect, or (b) the Federal Funds Rate then in effect plus one-half
of one percent (0.50%). The Base Rate may not necessarily be the lowest rate of
interest charged by the Reference Bank to its commercial borrowers. Each change
in any interest rate provided for herein based upon the prime or base rate or
the Federal Funds Rate resulting from a change in the prime or base rate or the
Federal Funds Rate, respectively, shall take effect without notice to the
Borrower at the time of such change in the prime or base rate or the Federal
Funds Rate, respectively.
"Base Rate Loans" means Loans that bear interest at rates based upon
the Base Rate.
"Basle Accord" means the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, supplemented and
otherwise modified and in effect from time to time, or any replacement thereof.
"Board of Directors" means the board of directors of the Borrower.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Borrower to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"Borrower" means as specified in the initial paragraph of this
Agreement.
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"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which commercial banks are authorized or required by law to close in New
York, New York or Dallas, Texas, and (b) with respect to all borrowings,
payments, Conversions, Continuations, Interest Periods and notices in connection
with Eurodollar Loans, any day which is a Business Day described in clause (a)
above and which is also a day on which dealings in Dollar deposits are carried
out in the London interbank market.
"Business Plan" means the Borrower's marketing and build-out plans,
budget and schedule, including financial projections of Holdings, the Borrower
and the Consolidated Subsidiaries for the period beginning on the Closing Date
through the Maturity Date, certified by the Chief Financial Officer of the
Borrower as being prepared generally in accordance with GAAP (except for the
absence of footnotes), such projections giving effect to the Debt expected to be
incurred under this Agreement as well as the other Debt to be incurred by
Holdings, the Borrower and the Consolidated Subsidiaries during such period.
Unless any amendment or modification thereto or replacement thereof is
subsequently approved by the Administrative Agent in accordance with Section
9.15, the Business Plan narrative dated as of July 2, 1999, with updated
financial statements dated December 31, 1999, shall be the Business Plan for
purposes of this Agreement.
"Capital Expenditures" means, as to the Borrower and its Consolidated
Subsidiaries, amounts paid or Debt incurred by such Persons in connection with
the purchase or lease by such Persons of Property that would be required to be
capitalized and shown on the balance sheet of such Person or Persons in
accordance with GAAP.
"Capital Lease Obligations" means, as to the Borrower and its
Consolidated Subsidiaries, the obligations of such Persons to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) real
and/or personal Property, which obligations are classified as a capital lease on
a balance sheet of such Persons under GAAP. For purposes of this Agreement, the
amount of such Capital Lease Obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Capital Stock" means corporate stock and any and all securities,
shares, partnership interests, limited partnership interests, limited liability
company interests, membership interests, equity interests, participations,
rights or other equivalents (however designated) of corporate stock or any of
the foregoing issued by any entity (whether a corporation, a partnership, a
limited liability company or another entity) and includes, without limitation,
securities convertible into Capital Stock and rights or options to acquire
Capital Stock.
"Change in Control" means the existence or occurrence of any of the
following: (a) any of the Capital Stock of the Borrower is owned by any Person
other than Holdings; (b) any Capital Stock of any Subsidiary of the Borrower is
owned by any Person other than the Borrower or any Wholly-Owned Subsidiary of
the Borrower; (c) any Person or two or more Persons (other than the Permitted
Holders) acting as a group (as defined in Section 13d-3 of the Exchange Act)
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Exchange Act) of 30% or more of
the outstanding shares of Voting Stock of Holdings; (d) individuals who, as of
the Closing Date, constitute the Board of Directors of Holdings (the "Holdings
Incumbent Board") cease for any reason to constitute at least a majority of the
Board of
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Directors of Holdings; provided, however, that any individual becoming a
director of Holdings subsequent to the Closing Date whose election, or
nomination for election by Holdings' shareholders was approved by a vote of at
least a majority of the directors then comprising the Holdings Incumbent Board
shall be considered as though such individual were a member of the Holdings
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or contest by or on behalf of a Person other than the
Board of Directors of Holdings; (e) the consummation of any transaction the
result of which is that any Person or group beneficially owns more of the Voting
Stock of Holdings than is beneficially owned, in the aggregate, by the Permitted
Holders; or (f) a "Change of Control" shall occur under the terms of the
Holdings Senior Credit Facility. For purposes of this definition, one or more
persons shall not be deemed to be acting as a group solely because such Persons
hold shares of one or more series of preferred stock of Holdings.
"Closing Date" means March 7, 2000, the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated and rulings issued thereunder.
"Collateral" means all Property of any Person of any nature whatsoever
upon which a Lien is created or purported to be created by any Loan Document as
security for the Obligations or any portion thereof.
"Commitment" means, as to any Lender, the obligation of such Lender to
make or continue Loans hereunder in an aggregate principal amount up to but not
exceeding the amount set forth opposite the name of such Lender on the signature
pages hereto under the heading "Commitment" or, if such Lender is a party to an
Assignment and Acceptance, the amount of the "Commitment" set forth in the most
recent Assignment and Acceptance of such Lender, as the same may be reduced or
terminated pursuant to Section 2.13 or 11.2, and "Commitments" means such
obligations of all Lenders. As of the Closing Date, the aggregate principal
amount of the Commitments is $45,000,000.
"Commitment Percentage" means, as to any Lender and its Commitment, the
percentage equivalent of a fraction, the numerator of which is the amount of the
outstanding Commitment of such Lender (or, if such Commitment has terminated or
expired, the outstanding principal amount of Loans of such Lender) and the
denominator of which is the aggregate amount of the outstanding Commitments of
all Lenders (or, if such commitments have terminated or expired, the aggregate
outstanding principal amount of Loans of all Lenders), as adjusted from time to
time in accordance with Section 13.8.
"Commitment Termination Date" means the earlier to occur of (a) March
31, 2001 or (b) the date which is six months after the Closing Date, if less
than $10,000,000 in aggregate principal amount of the Loans has been advanced as
of such date.
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"Communications Act" means the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as amended and as the same may be in effect from time to time.
"Consolidated Fixed Charges" means, as to the Borrower and its
Consolidated Subsidiaries and for any period, the sum of (without duplication)
(a) Consolidated Interest Expense of such Persons paid or payable in cash during
such period, plus (b) all scheduled payments (as such scheduled payments are
reduced by application of any prepayments) of principal with respect to the
Loans and other outstanding Debt during such period, plus (c) income taxes of
such Persons paid or payable in cash during such period, plus (d) the scheduled
amount paid or payable by such Persons in cash during such period on account of
Capital Expenditures.
"Consolidated Interest Expense" means, as to the Borrower and its
Consolidated Subsidiaries and for any period, all interest on Debt of such
Persons paid or payable in cash during such period, including the interest
portion of payments under Capital Lease Obligations.
"Consolidated Net Income" means, as to the Borrower and its
Consolidated Subsidiaries and for any period, the net income (or loss) of such
Persons for such period, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Subsidiary" means, with respect to any Person, any
Subsidiary the financial attributes of which are or would be consolidated with
those of such Person in the consolidated financial statements of such Person in
accordance with GAAP.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to Section 2.6 of a Eurodollar Loan as a Eurodollar Loan
of the same Type from one Interest Period to the next Interest Period.
"Contract Rate" means as specified in Section 13.12(a).
"Contributed Capital" means as to the Borrower and its Consolidated
Subsidiaries and as of any date of determination, the sum of (without
duplication) (a) equity contributions made to such Persons as of such date
(including equity contributed on or before the Closing Date),minus (b) the
aggregate amount of any dividends or distributions paid or made by such Persons
as of such date.
"Convert", "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.6 or Article 4 of one Type of Loan into the other Type of
Loan.
"Current Date" means (a) a date occurring no more than 30 days prior to
the Closing Date or other relevant date as may be specified herein (as
applicable) or (b) such earlier date which is acceptable to the Administrative
Agent.
"Debt" means as to any Person at any time (without duplication): (a)
all indebtedness, liabilities and obligations of such Person for borrowed money;
(b) all indebtedness, liabilities and obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments; (c) all indebtedness,
liabilities and obligations of such Person to pay the deferred purchase price of
Property
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or services, except trade accounts payable of such Person arising in the
ordinary course of business that are not past due by more than 90 days; (d) all
Capital Lease Obligations of such Person; (e) all Debt of others Guaranteed by
such Person; (f) all indebtedness, liabilities and obligations secured by a Lien
existing on Property owned by such Person, whether or not the indebtedness,
liabilities or obligations secured thereby have been assumed by such Person or
are non-recourse to such Person; (g) all reimbursement obligations of such
Person (whether contingent or otherwise) in respect of letters of credit,
bankers' acceptances, surety or other bonds and similar instruments; (h) all
indebtedness, liabilities and obligations of such Person to redeem or retire
shares of Capital Stock of such Person; (i) all indebtedness, liabilities and
obligations of such Person under Interest Rate Protection Agreements; and (j)
all indebtedness, liabilities and obligations of such Person in respect of
unfunded vested benefits under any pension plans.
"Default" means an Event of Default or the occurrence of an event or
condition which with notice or lapse of time or both would become an Event of
Default.
"Default Rate" means, in respect of any principal of any Loan at all
times during which any Default has occurred and is continuing or in respect of
any other amount payable by the Borrower under this Agreement or any other Loan
Document which is not paid when due (whether at stated maturity, by acceleration
or otherwise), a rate per annum during the period of such Default or during the
period commencing on the due date of such other amount until such other amount
is paid in full equal to the lesser of (a) the sum of three percent (3.00%) plus
the Base Rate as in effect from time to time plus the Applicable Margin for Base
Rate Loans or (b) the Maximum Rate; provided, however, that if such amount in
default is principal of a Eurodollar Loan and the due date is a day other than
the last day of an Interest Period therefor, the "Default Rate" for such
principal shall be, for the period from and including the due date and to but
excluding the last day of the Interest Period therefor, the lesser of (A) the
rate per annum equal to the sum of three percent (3.00%) plus the interest rate
for such Eurodollar Loan for such Interest Period as provided in clause (ii) of
Section 2.4(a) hereof or (B) the Maximum Rate and, thereafter, the rate provided
for above in this definition.
"Dollars" and "$" mean lawful money of the U.S.
"DSL Lines" means, at any time, the total number of Access Lines
providing digital subscriber line services.
"EBITDA" means, as to the Borrower and its Consolidated Subsidiaries
and for any period, without duplication, the sum of the following for such
Persons for such period determined on a consolidated basis in accordance with
GAAP: (a) Adjusted Net Income, plus (b) Consolidated Interest Expense, plus (c)
income and franchise taxes to the extent deducted in determining Adjusted Net
Income, plus (d) depreciation and amortization expense and other non-cash,
non-tax items to the extent deducted in determining Adjusted Net Income, minus
(e) non-cash income (or losses) to the extent included in determining Adjusted
Net Income.
"Eligible Assignee" means (a) any Affiliate of a Lender, (b) any
commercial bank, savings and loan association, savings bank, finance company,
insurance company, pension fund, mutual fund or other financial institution
(whether a corporation, partnership, limited liability company or other entity)
which has been approved by the Administrative Agent as a Lender under this
Agreement or
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(c) any other entity approved by the Administrative Agent which is (or which is
managed by a manager which manages funds which are) primarily engaged in making,
purchasing or otherwise investing in commercial loans or extending, or investing
in extensions of, credit for its own account in the ordinary course of its
business; provided, however, that (i) Eligible Assignee shall not include any
Affiliate of the Borrower and (ii) Eligible Assignee shall not include any
business competitor of the Borrower except after the acceleration of the
Obligations or if any Obligations remain unpaid after the Maturity Date.
"Environmental Law" means any federal, state, provincial, local or
foreign law, statute, code or ordinance, principle of common law, rule or
regulation, as well as any Permit, order, decree, judgment or injunction issued,
promulgated, approved or entered thereunder, relating to pollution or the
protection, cleanup or restoration of the environment or natural resources, or
to the public health or safety, or otherwise governing the generation, use,
handling, collection, treatment, storage, transportation, recovery, recycling,
discharge or disposal of Hazardous Materials, including, without limitation as
to U.S. laws, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. ss. 9601 et seq., the Superfund Amendment and
Reauthorization Act of 1986, 99-499, 100 Stat. 1613, the Resource Conservation
and Recovery Act of 1976, 42 U. S. C. ss. 6901 et seq., the Occupational Safety
and Health Act, 29 U S.C. ss. 651 et seq., the Clean Air Act, 42 U.S.C. ss. 7401
et seq., the Clean Water Act, 33 U. S. C. ss. 1251 et seq., the Emergency
Planning and Community Right to Know Act, 42 U. S. C. ss. 11001 et seq., the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. ss. 136 et seq.,
and the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq., and any state
or local counterparts.
"Environmental Liabilities" means, as to any Person, all liabilities,
obligations, responsibilities, Remedial Actions, losses, damages, punitive
damages, consequential damages, treble damages, costs and expenses (including,
without limitation, all reasonable fees, disbursements and expenses of counsel,
expert and consulting fees and costs of investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any claim or
demand, by any Person, whether based in contract, tort, implied or express
warranty, strict liability or criminal, penal or civil statute, including,
without limitation, any Environmental Law, Permit, order or agreement with any
Governmental Authority or other Person, arising from environmental, health or
safety conditions or the Release or threatened Release of a Hazardous Material
into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations and published interpretations
thereunder.
"ERISA Affiliate" means any corporation or trade or business which is a
member of a group of entities, organizations or employers of which a Loan Party
is also a member and which is treated as a single employer within the meaning of
Sections 414(b), (c), (m) or (o) of the Code.
"Eurodollar Loans" means Loans that bear interest at rates based upon
the Eurodollar Rate or the Adjusted Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars in the
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approximate amount of the proposed Eurodollar Loan at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period. If such rate ceases to be
available from Telerate News Service, the Eurodollar Rate shall be determined by
the Administrative Agent in good faith from another financial reporting service,
which service shall be reasonably acceptable to the Borrower.
"Event of Default" has the meaning specified in Section 11.1.
"Excess Cash Flow" means, as to the Borrower and its Consolidated
Subsidiaries and for any fiscal year, the remainder of (a) EBITDA for such
fiscal year minus (b) the sum of (i) taxes payable in cash for such fiscal year,
plus (ii) all principal and cash interest payments on Debt made during such
fiscal year, whether optional, mandatory or scheduled payments, plus (iii)
Capital Expenditures (but only to the extent paid in cash and not financed) made
during such fiscal year.
"Excess Proceeds Amount" means as specified in Section 2.7(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor act), and the rules and regulations thereunder (or respective
successors thereto).
"FCC" means the Federal Communications Commission and any successor
agency.
"FCC Licenses" means all Licenses issued by the FCC.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest one-sixteenth of one percent (1/16 of 1%))
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (a) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day and (b) if such
rate is not so published on such next succeeding Business Day, the Federal Funds
Rate for any day shall be the average rate which would be charged to the
Reference Bank on such day on such transactions as determined by the
Administrative Agent.
"GAAP" means generally accepted accounting principles, applied on a
consistent basis, as set forth in Opinions of the Accounting Principles Board of
the American Institute of Certified Public Accountants and/or in statements of
the Financial Accounting Standards Board and/or their respective successors and
which are applicable in the circumstances as of the date in question. Accounting
principles are applied on a "consistent basis" when the accounting principles
applied in a current period are comparable in all material respects to those
accounting principles applied in a preceding period.
"Governmental Authority" means any nation or government, any state,
provincial or political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
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"Governmental Requirement" means any law, statute, code, ordinance,
order, rule, regulation, judgment, decree, injunction, franchise, Permit,
certificate, License, authorization or other directive or requirement of any
federal, state, county, municipal, parish, provincial or other Governmental
Authority or any department, commission, board, court, agency or any other
instrumentality of any of them.
"Gross Margin Percentage" means, as to the Borrower and its
Consolidated Subsidiaries and for any period, the quotient of (a) the remainder
of (i) Gross Revenue for such period minus (ii) Network Costs, divided by (b)
Gross Revenue for such period, expressed as a percentage.
"Gross Revenues" means, as to the Borrower and its Consolidated
Subsidiaries and for any period, gross revenues of such Persons determined on a
consolidated basis in accordance with GAAP.
"Gross Up Lender" means as specified in Section 4.8.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any indebtedness, liability or obligation, direct or indirect,
contingent or otherwise, of such Person (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay or
to maintain financial statement conditions or otherwise) or (b) entered into for
the purpose of assuring in any other manner the obligee of such Debt or other
indebtedness, liability or obligation as to the payment thereof or to protect
the obligee against loss in respect thereof (in whole or in part), provided that
the term Guarantee shall not include endorsements for collection or deposit in
the ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum anticipated liability in respect thereof (assuming such Person is
required to perform thereunder).
"Guarantors" means each Subsidiary of the Borrower at any time existing
and each other Person which has executed a Guaranty and "Guarantor" means any of
such Persons.
"Guaranty" means a guaranty agreement guaranteeing payment and
performance of the Obligations in form and substance satisfactory to the
Administrative Agent executed by a Guarantor in favor of the Administrative
Agent and the Lenders, and any and all amendments, modifications, supplements,
renewals, extensions or restatements thereof.
"Hazardous Material" means any substance, product, liquid, waste,
pollutant, chemical, contaminant, insecticide, pesticide, gaseous or solid
matter, organic or inorganic matter, fuel, micro-organisms, ray, odor,
radiation, energy, vector, plasma, constituent or material which (a) is or
becomes listed, regulated or addressed under any Environmental Law or (b) is, or
is deemed to be, alone or in any combination, hazardous, hazardous waste, toxic,
a pollutant, a deleterious substance, a contaminant or a source of pollution or
contamination under any Environmental Law, including,
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without limitation, asbestos, petroleum, underground storage tanks (whether
empty or containing any substance) and polychlorinated biphenyls.
"Holdings" means State Communications, Inc., a South Carolina
corporation.
"Holdings Senior Bank Facility" means the credit facility of Holdings
and TriVergent providing for aggregate borrowings up to $120,000,000 under that
certain Loan Agreement dated as of January 31, 2000, as amended, supplemented or
restated from time to time.
"Insurance Recovery" means, with respect to any Property of the
Borrower or any of its Subsidiaries and any single occurrence or related
occurrences with respect thereto, the receipt or constructive receipt by such
Loan Party, or the payment by an insurance company to the Administrative Agent,
of proceeds of any such Property or casualty insurance.
"Intellectual Property" means any U.S. or foreign patents, patent
applications, trademarks, trade names, service marks, brand names, logos and
other trade designations (including unregistered names and marks), trademark and
service xxxx registrations and applications, copyrights and copyright
registrations and applications, inventions, invention disclosures, protected
formulae, formulations, processes, methods, trade secrets, computer software,
computer programs and source codes, manufacturing research and similar technical
information, engineering know-how, customer and supplier information, assembly
and test data drawings or royalty rights.
"Interest Period" means, with respect to any Eurodollar Loan, each
period commencing on the date such Loan is made or Converted from a Base Rate
Loan or (if Continued) the last day of the next preceding Interest Period with
respect to such Loan, and ending on the numerically corresponding day in the
first, second, third or sixth calendar month thereafter, as the Borrower may
select as provided in Section 2.9 hereof, except that each such Interest Period
which commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (a) each Interest Period which
would otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, if such succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); (b) any Interest
Period which would otherwise extend beyond the Maturity Date shall end on the
Maturity Date; (c) no more than five Interest Periods for Eurodollar Loans shall
be in effect at the same time; (d) no Interest Period shall have a duration of
less than one month and, if the Interest Period for any Eurodollar Loans would
otherwise be a shorter period, such Loans shall not be available hereunder; and
(e) no Interest Period for a Loan may commence before, and end after, any
principal payment date unless, after giving effect thereto, the aggregate
principal amount of the Eurodollar Loans having Interest Periods that end after
such principal payment date shall be equal to or less than the amount of the
applicable Loans scheduled to be outstanding hereunder after such principal
payment date.
"Interest Rate Protection Agreements" means, with respect to the
Borrower, an interest rate swap, cap or collar agreement or similar arrangement
between the Borrower and one or more Lenders providing for the transfer or
mitigation of interest rate risks either generally or under specified
contingencies.
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"Investments" means as specified in Section 9.5.
"Invoice" means a statement delivered under the Master Purchase
Agreement setting forth a description of the Nortel Networks Equipment and/or
the Nortel Networks Goods and Services delivered to the Borrower and/or the
Leasing Subsidiary, unit pricing, if applicable, freight charges and the total
amount due, with all charges reasonably itemized, which statement has not been
disputed by the Borrower or the Leasing Subsidiary in good faith.
"Leasing Subsidiary" means TriVergent Leasing South, LLC, a Delaware
single member limited liability company.
"Lender" and "Lenders" means as specified in the initial paragraph of
this Agreement.
"License" means any permit, certificate, approval, order, license or
other authorization, including, without limitation, any FCC License.
"Lien" means, with respect to any Property, any mortgage or deed of
trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, tax lien, financing statement, pledge, charge, hypothecation or other
lien, charge, easement (other than any easement not materially impairing
usefulness), encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to
such Property (including, without limitation, any conditional sale or other
title retention agreement having substantially the same economic effect as any
of the foregoing).
"Loan Documents" means this Agreement, the Notes, the Security
Documents, the Administrative Agent's Letter and all other agreements,
documents, instruments and certificates now or hereafter executed and/or
delivered pursuant to or in connection with any of the foregoing, and any and
all amendments, modifications, supplements, renewals, extensions or restatements
thereof.
"Loan Party" means the Borrower, Holdings, any Guarantor or any Person
who grants a Lien on any Property to secure the payment or performance of the
Obligations or any portion thereof, and "Loan Parties" means all of such
Persons.
"Loans" means as specified in Section 2.1(a).
"Management Services Agreement" means that certain Management Services
Agreement dated as of March 7, 2000, by and between the Borrower and TriVergent,
as amended, supplemented or restated from time to time.
"Master Asset Lease Agreement" means that certain Master Asset Lease
Agreement by and between Borrower and the Leasing Subsidiary and delivered to
the Administrative Agent prior to the date of the initial loan hereunder.
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"Master Purchase Agreement" means the that certain Master Purchase
Agreement dated as of May 29, 1999, by and between the Borrower, the Leasing
Subsidiary, TriVergent, TriVergent Leasing, LLC and Nortel Networks, as amended,
supplemented or restated from time to time.
"Material Adverse Effect" means any event, development or circumstance
that has had or could reasonably be expected to have a material adverse effect
on (a) the business, assets, financial condition, results of operations or
prospects of Holdings and its Subsidiaries taken as a whole, (b) the business,
assets, financial condition, results of operations or prospects of the Borrower
individually or of the Borrower and its Subsidiaries taken as a whole, (c) the
validity or enforceability of any of the Loan Documents or the rights and
remedies of the Administrative Agent and/or the Lenders thereunder, (d) the
ability of any Loan Party to pay and perform its indebtedness, liabilities
and/or obligations under any of the Loan Documents, or (e) the value of
Collateral available to the Administrative Agent and the Lenders after giving
effect to Liens in favor of other Persons.
"Material Contracts" means, as to any Loan Party, any supply, purchase,
service, employment, tax, indemnity, shareholder or other agreement or contract
for which the aggregate amount or value of services performed or to be performed
for or by, or funds or other Property transferred or to be transferred to or by,
any Loan Party to such agreement or contract, or by which any Loan Party or any
of its Properties is otherwise bound, during any fiscal year of the Borrower
exceeds $1,000,000 (or the equivalent amount in any currency) and any and all
amendments, modifications, supplements, renewals or restatements thereof.
"Maturity Date" means the earlier to occur of (a) the third anniversary
of the Amortization Commencement Date or (b) the termination or repayment in
full of the Holdings Senior Bank Facility.
"Maximum Rate" means, with respect to any Lender, the maximum
non-usurious interest rate or an amount computed in reference to such rate (as
applicable), if any, that any time or from time to time may be contracted for,
taken, reserved, charged or received with respect to the particular Obligations
as to which such rate is to be determined, payable to such Lender pursuant to
this Agreement or any other Loan Document, under laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum non-usurious interest rate than applicable laws now allow. The Maximum
Rate shall be calculated in a manner that takes into account any and all fees,
payments and other charges in respect of the Loan Documents that constitute
interest under applicable law. Each change in any interest rate provided for
herein based upon the Maximum Rate resulting from a change in the Maximum Rate
shall take effect without notice to the Borrower at the time of such change in
the Maximum Rate.
"Monthly Date" means the last day of each month of each year the first
of which shall be March 31, 2000.
"Mortgage" means a mortgage, deed of trust or other appropriate
agreement, document or instrument evidencing or creating a Lien on real Property
(and any related personal Property) as security for the Obligations or any
portion thereof in form and substance satisfactory to the Administrative Agent
executed by any Loan Party in favor of the Administrative Agent for the
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benefit of the Administrative Agent and the Lenders, and any and all amendments,
modifications, supplements, renewals, extensions or restatements thereof.
"Mortgaged Properties" means Properties in which a Lien has been
granted or purported to be granted pursuant to a Mortgage.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by or are required
from the Borrower or any ERISA Affiliate since 1974 and which is covered by
Title IV of ERISA.
"Net Proceeds" means, with respect to any Asset Disposition, (a) the
gross amount of cash received by the Borrower or any of its Subsidiaries from
such Asset Disposition, minus (b) the amount, if any, of all taxes paid or
payable by the Borrower or any of its Subsidiaries directly resulting from such
Asset Disposition (including the amount, if any, estimated by the Borrower in
good faith at the time of such Asset Disposition for taxes payable by the
Borrower or any of its Subsidiaries on or measured by net income or gain
resulting from such Asset Disposition), minus (c) the reasonable out-of-pocket
costs and expenses incurred by the Borrower or such Subsidiary in connection
with such Asset Disposition (including reasonable brokerage fees paid to a
Person other than an Affiliate of the Borrower) excluding any fees or expenses
paid to an Affiliate of the Borrower, minus (d) amounts applied to the repayment
of indebtedness (other than the Obligations) secured by any Permitted Lien (if
any) on the Property subject to the Asset Disposition. "Net Proceeds" with
respect to any Asset Disposition shall also include proceeds (after deducting
any amounts specified in clauses (b), (c) and (d) of the preceding sentence) of
insurance with respect to any actual or constructive loss of Property, an agreed
or compromised loss of Property or the taking of any Property under the power of
eminent domain and condemnation awards and awards in lieu of condemnation for
the taking of Property under the power of eminent domain.
"Network" means the Borrower's network for providing high speed data
and voice services in the Southeastern United States as described in the
Business Plan.
"Network Costs" means, for any period, all direct costs, other than
depreciation and amortization, associated with the provision of
telecommunications services (including resold services, switching, transport,
peripheral equipment components and all facilities costs) to customers of the
Borrower and its Subsidiaries.
"Nortel Networks" means Nortel Networks Inc., a Delaware corporation.
"Nortel Networks Equipment" means all equipment sold to the Borrower
and/or the Leasing Subsidiary pursuant to the Master Purchase Agreement.
"Nortel Networks Goods and Services" means sales, installation and
commissioning of Nortel Networks Equipment and related software, and project
management, system design and services performed by Nortel Networks personnel.
"Nortel Networks Software" means any and all software sold or licensed
by Nortel Networks to the Borrower or any other Loan Party, including, without
limitation, all source code and object
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code and all manuals and other documentation relating thereto and each copy
thereof regardless of the media in which they are stored.
"Notes" means the Notes in the form of Exhibit B hereto made by the
Borrower evidencing the Loans and any and all amendments, modifications,
supplements, renewals, extensions or restatements thereof and all substitutions
therefor (including promissory notes issued by the Borrower pursuant to Section
13.8), and "Note" means any such promissory note.
"Notice of Borrowing" means as specified in Section 2.9.
"Obligations" means any and all (a) indebtedness, liabilities and
obligations of the Borrower or any other Loan Party to the Administrative Agent
and the Lenders, or any of them, evidenced by and/or arising pursuant to any of
the Loan Documents (including, without limitation, this Agreement and the
Notes), now existing or hereafter arising, whether direct, indirect, related,
unrelated, fixed, contingent, liquidated, unliquidated, joint, several or joint
and several, including, without limitation, (i) the obligations of the Borrower
or any other Loan Party to repay the Loans, to pay interest on the Loans
(including, without limitation, interest accruing after any, if any, bankruptcy,
insolvency, reorganization or other similar filing) and to pay all fees,
indemnities, costs and expenses (including attorneys' fees) provided for in the
Loan Documents and (ii) the indebtedness constituting the Loans and such
interest, fees, indemnities, costs and expenses, and (b) indebtedness,
liabilities and obligations of the Borrower or any other Loan Party under any
and all Interest Rate Protection Agreements that it may enter into with any
Lender with the prior written consent of the Administrative Agent and the
Required Lenders.
"Payor" means as specified in Section 3.4.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to all or any of its functions under ERISA.
"Pension Plan" means an employee pension benefit plan as defined in
Section 3(2) of ERISA (including a Multiemployer Plan) which is subject to the
funding requirements under Section 302 of ERISA or Section 412 of the Code, in
whole or in part, and which is maintained or contributed to currently or at any
time within the six years immediately preceding the Closing Date or, in the case
of a Multiemployer Plan, at any time since September 2, 1974, by any Borrower or
any ERISA Affiliate for employees of any Borrower or any ERISA Affiliate.
"Permit" means any permit, certificate, approval, order, License,
right-of-way (whether an easement, contract or agreement in any form) or other
authorization.
"Permitted Holders" means (a) the Persons identified on Schedule 1.1(a)
hereto, (b) any spouse, parent, sibling, child or grandchild of any of the
aforesaid individuals (in each case, whether such relationship arises from
birth, adoption or through marriage) or any trust established for the benefit of
any such individuals or any spouse, parent, sibling, child or grandchild of any
such individuals (in each case whether such relationship arises from birth,
adoption or through marriage), and (c) any Person not less than 80% of the
voting Capital Stock of which is owned of record and beneficially by a Person
identified on Schedule 1.1(a) hereto.
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"Permitted Liens" mean:
(a) Liens disclosed on Schedule 1.1(b) hereto;
(b) Liens securing the Obligations in favor of the
Administrative Agent (for the benefit of the Administrative Agent and
the Lenders) pursuant to the Loan Documents;
(c) Encumbrances consisting of easements, rights-of-way,
zoning restrictions or other restrictions on the use of real Property
or imperfections to title that do not (individually or in the
aggregate) materially affect the value of the Property encumbered
thereby or materially impair the ability of the Borrower or any of its
Subsidiaries to use such Property in its businesses, and none of which
is violated in any material respect by existing or proposed structures
or land use;
(d) Liens for taxes, assessments or other governmental charges
that are not delinquent or which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the Property subject to such
Liens, and for which adequate reserves have been established;
(e) Liens of mechanics, materialmen, warehousemen, carriers,
landlords or other similar statutory Liens securing obligations that
are not yet due and are incurred in the ordinary course of business or
which are being contested in good faith by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture or sale
of the Property subject to such Liens, and for which adequate reserves
have been established;
(f) Liens resulting from good faith deposits to secure payment
of worker's compensation or other social security programs or to secure
the performance of tenders, statutory obligations, surety and appeal
bonds, bids, contracts (other than for payment of Debt) or leases, all
in the ordinary course of business;
(g) Purchase-money Liens on any Property hereafter acquired or
the assumption after the Closing Date of any Lien on Property existing
at the time of such acquisition (and not created in contemplation of
such acquisition), or a Lien incurred after the Closing Date in
connection with any conditional sale or other title retention agreement
or Capital Lease Obligation; provided that:
(i) any Property subject to the foregoing is acquired
by the Borrower or any of its Subsidiaries in the ordinary
course of its respective business and the Lien on the Property
attaches concurrently or within 90 days after the acquisition
thereof;
(ii) the Debt secured by any Lien so created, assumed
or existing shall not exceed the lesser of the cost or fair
market value at the time of acquisition of the Property
covered thereby (inclusive of the cost of engineering,
furnishing and installation services directly relating to such
Property) and shall not be less than 75% of the amortized
value of the Property acquired with the proceeds of such Debt;
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(iii) each such Lien shall attach only to the
Property so acquired and the proceeds thereof; and
(iv) the Debt secured by all such Liens, when
aggregated with the Debt secured by all purchase-money Liens
and all Liens in connection with any conditional sale or other
title retention agreement or Capital Lease Obligation existing
as of the Closing Date or at any other time, shall not exceed
$5,000,000 at any time outstanding in the aggregate; or
(h) Any extension, renewal or replacement of any of the
foregoing, provided that Liens permitted hereunder shall not be
extended or spread to cover any additional indebtedness or Property;
provided, however, that (A) none of the Permitted Liens (except those in favor
of the Administrative Agent) may attach or relate to the Capital Stock of or any
other ownership interest in the Borrower or any of its Subsidiaries and (B)
except as expressly set forth on Schedule 1.1(b), none of the Permitted Liens
referred to in clause (a) preceding may have a priority equal or prior to the
Liens in favor of the Administrative Agent as security for the Obligations.
"Person" means any individual, corporation, trust, association,
company, partnership, joint venture, limited liability company, joint stock
company, Governmental Authority or other entity.
"Plan" means any employee benefit plan as defined in Section 3(3) of
ERISA established or maintained or contributed to by any Loan Party or any ERISA
Affiliate, including any Pension Plan.
"Principal Office" means the principal office of the Administrative
Agent in Richardson, Texas, presently located at 0000 Xxxxxxxx Xxxx.,
Xxxxxxxxxx, Xxxxx 00000.
"Prohibited Transaction" means any transaction set forth in Section 406
of ERISA or Section 4975 of the Code.
"Property" means property and assets of all kinds, whether real,
personal or mixed, tangible or intangible (including, without limitation, all
rights relating thereto), whether owned or acquired on or after the Closing
Date.
"Quarterly Date" means the last day of each March, June, September and
December of each year, the first of which shall be March 31, 2000.
"Receivables" means, as at any date of determination thereof, each and
every "account" as such term is defined in the UCC and includes, without
limitation, the unpaid portion of the obligation, as stated on the respective
invoice, or, if there is no invoice, other writing, of a customer of the
Borrower or any of its Subsidiaries in respect of services rendered by the
Borrower or any of its Subsidiaries.
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"Reference Bank" means Citibank, N.A.
"Register" means as specified in Section 13.8(d).
"Registered Note" means as specified in Section 2.2(b).
"Registered Note Register" means as specified in Section 13.8(h).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as the same may be amended or supplemented from time to
time.
"Regulatory Change" means, with respect to any Lender, any change after
the Closing Date in any U.S. federal or state or foreign laws or regulations
(including Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of lenders including
such Lender of or under any U.S. federal or state or foreign laws or regulations
(whether or not having the force of law) by any Governmental Authority charged
with the interpretation or administration thereof.
"Release" means, as to any Person, any release, spill, emission,
leaking, pumping, injection, deposit, discharge, disposal, dispersement,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment or into or out of Property owned by such Person, including, without
limitation, the movement of Hazardous Materials through or in the air, soil,
surface water or ground water.
"Remedial Action" means all actions required to (a) cleanup, remove,
respond to, treat or otherwise address Hazardous Materials in the indoor or
outdoor environment, (b) prevent the Release or threat of Release or minimize
the further Release of Hazardous Materials so that they do not migrate or
endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment, (c) perform studies and investigations on the extent and
nature of any actual or suspected contamination, the remedy or remedies to be
used or health effects or risks of such contamination, or (d) perform
post-remedial monitoring, care or remedy of a contaminated site.
"Reportable Event" means any of the events set forth in Section 4043(b)
of ERISA other than any such event for which the 30-day notice requirement has
been waived in regulations issued by the PBGC.
"Required Lenders" means, at any date of determination, Lenders holding
at least two-thirds (in Dollar amount) of the sum of (a) the aggregate
outstanding principal amount of the Loans, plus (b) the aggregate amount of the
outstanding Commitments.
"Required Payment" means as specified in Section 3.4.
"Reserve Requirement" means, for any Eurodollar Loan of any Lender for
any Interest Period therefor, the maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under any regulations of the Board of Governors of
the Federal Reserve System (or any successor) by such Lender for deposits
exceeding $1,000,000 against "Eurocurrency Liabilities" as such term is used in
Regulation
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D. Without limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such Lenders by reason
of any Regulatory Change against (a) any category of liabilities which includes
deposits by reference to which the Eurodollar Rate or the Adjusted Eurodollar
Rate is to be determined or (b) any category of extensions of credit or other
assets which include Eurodollar Loans.
"Responsible Officer" means, as to any Loan Party, the chief executive
officer, the president, any vice president, the chief financial officer, the
chief operating officer or the treasurer of such Person.
"Restricted Payment" means (a) any dividend or other distribution
(whether in cash, Property or obligations), direct or indirect, on account of
(or the setting apart of money for a sinking or other analogous fund for) any
shares of any class of Capital Stock of the Borrower or any of its Subsidiaries
now or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class; (b) any redemption, conversion,
exchange, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of Capital
Stock of the Borrower or any of its Subsidiaries now or hereafter outstanding;
(c) any payment or prepayment of principal of, premium, if any, or interest on,
or any redemption, conversion, exchange, purchase, retirement or defeasance of,
or payment with respect to, any subordinated debt; (d) any loan, advance or
payment to any officer, director or shareholder of the Borrower or any of its
Subsidiaries (other than a shareholder consisting of the Borrower or a
Wholly-Owned Subsidiary of the Borrower), exclusive of reasonable compensation
paid to officers or directors paid in the ordinary course of business; and (e)
any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of Capital
Stock of the Borrower or any of its Subsidiaries now or hereafter outstanding.
"Security Agreements" means security agreements, pledge agreements,
securities pledge agreements and other agreements, documents or instruments
evidencing or creating a Lien as security for the Obligations or any portion
thereof in form and substance satisfactory to the Administrative Agent executed
by any Loan Party, in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders, and any such agreement, document or
instrument subsequently executed in accordance or connection with this Agreement
or any other Loan Document, and any and all amendments, modifications,
supplements, renewals, extensions or restatements thereof.
"Security Documents" means the Security Agreements and the Mortgages,
as they may be amended, modified, supplemented, renewed, extended or restated
from time to time, and any and all other agreements, deeds of trust, mortgages,
chattel mortgages, security agreements, pledges, guaranties, assignments of
proceeds, assignments of income, assignments of contract rights, assignments of
partnership interests, assignments of royalty interests, assignments of
performance or other collateral assignments, subordination agreements,
undertakings and other agreements, documents, instruments and financing
statements now or hereafter executed and/or delivered by any Person in
connection with or as security or assurance for the payment or performance of
the Obligations or any part thereof.
"Solvent" means, with respect to any Person as of the date of any
determination, that on such date (a) the fair value of the Property of such
Person (both at fair valuation and at present fair
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26
saleable value) is greater than the total liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
saleable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (d) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (e) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
Property would constitute unreasonably small capital after giving due
consideration to current and anticipated future capital requirements and current
and anticipated future business conduct and the prevailing practice in the
industry in which such Person is engaged. In computing the amount of contingent
liabilities at any time, such liabilities shall be computed at the amount which,
in light of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which at least a majority of the outstanding shares of stock or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors (or Persons performing similar
functions) of such corporation or entity (irrespective of whether or not at the
time, in the case of a corporation, stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries.
"Telecommunications Assets" means all assets, rights (contractual or
otherwise) and properties, whether tangible or intangible, used or intended for
use in connection with a Telecommunications Business.
"Telecommunications Business" means the business of (a) transmitting,
or providing services relating to the transmission of, voice, data or video
through owned or leased transmission facilities, (b) constructing, creating,
developing or marketing communications related network equipment, software and
other devices for use in a telecommunications business or (c) evaluating,
participating or pursuing any other activity or opportunity that is primarily
related to those identified in clause (a) or (b) above, provided that the
determination of what constitutes a Telecommunications Business shall be made in
good faith by the Board of Directors.
"Total Capitalization" means, as to the Borrower and its Consolidated
Subsidiaries and as of any date, the sum of (a) Total Debt of such Persons as of
such date plus (b) Contributed Capital of such Persons as of such date.
"Total Debt" means, as to the Borrower and its Consolidated
Subsidiaries and as of any date, the aggregate principal amount of all Debt of
such Persons outstanding, determined on a consolidated basis in accordance with
GAAP.
"TriVergent" means TriVergent Communications, Inc., a South Carolina
corporation.
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27
"Type" means any type of Loan (i.e., a Base Rate Loan or Eurodollar
Loan).
"UCC" means the Uniform Commercial Code as in effect in the State of
New York and/or any other jurisdiction, the laws of which may be applicable to
or in connection with the creation, perfection or priority of any Lien on any
Property created pursuant to any Security Document.
"U.S." means the United States of America.
"U.S. Person" means a citizen or resident of the U.S., a corporation,
partnership, limited liability company or other entity created or organized in
or under any laws of the U.S. or any estate or trust that is subject to U.S.
Federal income taxation regardless of the source of its income.
"U.S. Taxes" means any present or future tax, assessment or other
charge or levy imposed by or on behalf of the U.S. or any taxing authority
thereof.
"Vendor" means Nortel Networks in its capacity as vendor under the
Master Purchase Agreement.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors, managers or general
partners (or persons performing similar functions) of such Person, whether at
all times or only for so long as no senior class of securities has such voting
power by reason of any contingency.
"Wholly-Owned Subsidiary" means, with respect to any Person, a
Subsidiary of such Person all of whose outstanding Capital Stock (other than
directors' qualifying shares, if any) shall at the time be owned by such Person
and/or one or more of its Wholly-Owned Subsidiaries.
"Year 2000 Compliant" means that (a) the services, products or other
item(s) at issue accurately process, provide and/or receive all date/time data
(including calculating, comparing, sequencing, processing and outputting)
within, from, into and between centuries (including the twentieth and
twenty-first centuries and the years 1999 and 2000), including leap year
calculations, and (b) neither the performance nor the functionality nor the
business' provision of the services, products and other item(s) at issue will be
affected by any dates/times prior to, on, after or spanning January 1, 2000. The
design of the services, products and other item(s) at issue to ensure compliance
with the "year 2000" representations and warranties and covenants contained in
this Agreement includes proper date/time data century recognition and
recognition of 1999 and 2000, calculations that accommodate single century and
multi-century formulae and date/time values before, on, after and spanning
January 1, 2000, and date/time data interface values that reflect the century,
1999 and 2000. In particular, but without limitation, such design means that (i)
no value for current date/time will cause any error, interruption or decreased
performance in or for such services, products and other item(s), (ii) all
manipulations of date and time related data (including calculating, comparing,
sequencing processing and outputting) will produce correct results for all valid
dates and times when used independently or in combination with other services,
products and/or items, (iii) date/time elements in interfaces and data storage
will specify the century to eliminate date ambiguity without human intervention,
including leap year calculations, (iv) where any date/time element is
represented without a century, the correct century will be unambiguous for all
manipulations involving that
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element, (v) authorization codes, passwords and zaps (purge functions) will
function normally and in the same manner during, prior to, on and after January
1, 2000, including the manner in which they function with respect to expiration
dates and CPU serial numbers, and (vi) the business' supply of the services,
products and other item(s) will not be interrupted, delayed, decreased or
otherwise affected by the advent of the year 2000.
Section 1.2 Other Definitional Provisions. All definitions contained in
this Agreement are equally applicable to the singular and plural forms of the
terms defined. The words "hereof", "herein" and "hereunder" and words of similar
import referring to this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. The term "continuing",
"continuation" or "continuance" means, in reference to any Default or Event of
Default that has occurred, that such Default or Event of Default has not been
either cured to the reasonable satisfaction of the Administrative Agent within
the applicable grace period (if any) specified in this Agreement or the other
Loan Documents (as applicable) or waived in writing by the requisite Lenders in
accordance with Section 13.11. Unless otherwise specified, all Article and
Section references pertain to this Agreement. Terms used herein that are defined
in the UCC, unless otherwise defined herein, shall have the meanings specified
in the UCC. All references in this Agreement to any agreement shall be deemed to
mean and refer to such agreement as it may be amended, modified or supplemented
from time to time if (but only if) such amendment, modification or supplement
has been approved by the Administrative Agent and the Required Lenders, is
expressly referred to in such reference or is otherwise expressly permitted by
the terms of this Agreement.
Section 1.3 Accounting Terms and Determinations.
(a) All accounting terms not specifically defined herein shall be
construed in accordance with GAAP (subject to year end adjustments, if
applicable) consistent with such accounting principles applied in the
preparation of the audited financial statements referred to in Section 7.2(a).
All financial information delivered to the Administrative Agent pursuant to
Section 8.1 shall be prepared in accordance with GAAP (subject to year end
adjustments, if applicable) applied on a basis consistent with such accounting
principles applied in the preparation of the audited financial statements of
such Person referred to in Section 7.2 or in accordance with Section 8.7.
(b) The Borrower shall deliver to the Administrative Agent and the
Lenders, at the same time as the delivery of any annual or quarterly financial
statement under Section 8.1, (i) a description, in reasonable detail, of any
material variation between the application of GAAP employed in the preparation
of the next preceding annual or quarterly financial statements in accordance
with the last sentence of subsection (a) preceding and (ii) reasonable estimates
of the difference between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance with
the covenants set forth in this Agreement, the Borrower will not change the last
day of its fiscal year from December 31 or the last days of the first three
fiscal quarters of the Borrower in each of its fiscal years from March 31, June
30 and September 30, respectively.
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(d) Unless otherwise expressly provided herein to the contrary, all
references herein to the Closing Date shall be deemed to mean and refer to the
Closing Date after giving effect to all transactions which occur on or before
such date.
Section 1.4 Financial Covenants and Reporting. All financial statements
and reports required to be delivered pursuant to this Agreement and the other
Loan Documents, and all financial covenants (if any) contained in this
Agreement, shall be prepared or determined (as applicable) in accordance with
GAAP (except as the absence of footnotes in unaudited financial statements and
except as may be expressly provided to the contrary herein). If and to the
extent that such financial statements, reports or covenants are to be prepared
or determined on a consolidated basis, they shall be prepared or determined on a
consolidated basis for Holdings and its Subsidiaries and the Borrower and its
Subsidiaries, as the case may be.
ARTICLE 2
Loans
Section 2.1 Commitments.
(a) Loans. Subject to the terms and conditions of this Agreement
(including, without limitation, Section 2.13(a)), each Lender severally agrees
to make one or more loans to the Borrower from time to time from and including
the Closing Date to but excluding the Commitment Termination Date up to but not
exceeding the amount of such Lender's Commitment as then in effect. (Such loans
referred to in this Section 2.1(a) now or hereafter made by the Lenders to the
Borrower, including, without limitation, such loans which remain outstanding
after the Commitment Termination Date, are hereinafter collectively called the
"Loans".) The Borrower may not reborrow the Loans which have been repaid.
(b) Continuation and Conversion of Loans. Subject to the terms and
conditions of this Agreement, the Borrower may borrow the Loans as Base Rate
Loans or Eurodollar Loans and, until the Maturity Date, the Borrower may
Continue Eurodollar Loans or Convert Loans of one Type into Loans of the other
Type.
(c) Lending Offices. Loans of each Type made by each Lender shall be
made and maintained at such Lender's Applicable Lending Office for Loans of such
Type.
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Section 2.2 Notes.
(a) Notes. The Loans made by each Lender shall be evidenced by a single
promissory note of the Borrower in substantially the form of Exhibit B hereto
dated the Closing Date (or such later date on which such Lender becomes a party
to this Agreement), payable to the order of such Lender in a principal amount
equal to the sum of (i) the aggregate principal amount of Loans of such Lender
plus (ii) the aggregate principal amount of the unfunded Commitment of such
Lender relating to Loans as originally in effect. Each Lender is hereby
authorized by the Borrower to endorse on the schedule (or a continuation
thereof) attached to the Note of such Lender, to the extent applicable, the
date, amount and Type of and the Interest Period for each applicable Loan made
by such Lender to the Borrower and the amount of each payment or prepayment of
principal of such Loan received by such Lender, provided that any failure by
such Lender to make any such endorsement shall not affect the obligations of the
Borrower under any such Note or this Agreement in respect of any such Loan.
(b) Registered Notes. Any Lender that is not a U.S. Person and that
could become completely exempt from withholding of U.S. Taxes in respect of
payment of any Obligations due to such Lender hereunder relating to any of its
Loans if such Loans were in registered form for U.S. Federal income tax purposes
may request the Borrower (through the Administrative Agent), and the Borrower
agrees thereupon, to exchange such Lender's Note evidencing its Loans for a
promissory note registered as provided in Section 13.8(h) hereof (a "Registered
Note"). Registered Notes may not be exchanged for Notes that are not in
registered form.
Section 2.3 Repayment of Loans. The Borrower shall pay to the
Administrative Agent for the account of each Lender the principal of the Loans
outstanding as of the Commitment Termination Date (and the principal of such
Loans outstanding as of such date shall be due and payable) in 12 quarterly
installments, commencing on the Amortization Commencement Date, and continuing
on each Quarterly Date thereafter through and including the Maturity Date, each
of which installments shall be in an amount equal to the percentage of the
aggregate principal amount of such Loans outstanding as of the Amortization
Commencement Date specified in the following table:
-------------------------------------------------------------------------------
Percentage of the Aggregate Principal Amount of
Principal Installment each of the Loans Due and Payable
-------------------------------------------------------------------------------
1 8.33%
-------------------------------------------------------------------------------
2 8.33%
-------------------------------------------------------------------------------
3 8.34%
-------------------------------------------------------------------------------
4 8.33%
-------------------------------------------------------------------------------
5 8.33%
-------------------------------------------------------------------------------
6 8.34%
-------------------------------------------------------------------------------
7 8.33%
-------------------------------------------------------------------------------
8 8.33%
-------------------------------------------------------------------------------
9 8.34%
-------------------------------------------------------------------------------
10 8.33%
-------------------------------------------------------------------------------
11 8.33%
-------------------------------------------------------------------------------
12 8.34%
-------------------------------------------------------------------------------
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In addition, the Borrower shall pay to the Administrative Agent for the account
of each Lender all outstanding principal of the Loans (and all outstanding
principal of the Loans shall be due and payable) on the Maturity Date.
Section 2.4 Interest.
(a) Interest Rate. The Borrower shall pay to the Administrative Agent
for the account of each Lender interest on the unpaid principal amount of each
Loan made by such Lender (or deemed made by such Lender with respect to a Loan
assigned to such Lender after the making of such Loan) to the Borrower for the
period commencing on the date of such Loan to, but excluding, the date such Loan
shall be paid in full, at the following rates per annum:
(i) during the periods such Loan is a Base Rate Loan, the
lesser of (A) the Base Rate plus the Applicable Margin or (B) the
Maximum Rate; and
(ii) during the periods such Loan is a Eurodollar Loan, the
lesser of (A) the Adjusted Eurodollar Rate plus the Applicable Margin
or (B) the Maximum Rate.
(b) Payment Dates. Accrued interest on Loans shall be due and payable
as follows:
(i) in the case of Base Rate Loans, on each Monthly Date;
(ii) in the case of each Eurodollar Loan, on the last day of
the Interest Period with respect thereto and, in the case of an
Interest Period greater than three months, at three-month intervals
after the first day of such Interest Period;
(iii) upon the payment or prepayment (whether mandatory or
optional) of any such Loan or the Conversion of any such Loan to a Loan
of the other Type (but only on the principal amount so paid, prepaid or
Converted); and
(iv) with respect to all such Loans, on the Maturity Date.
(c) Default Interest. Notwithstanding the foregoing, the Borrower shall
pay to the Administrative Agent for the account of each Lender interest at the
applicable Default Rate (i) at all times during which any Default has occurred
and is continuing, on any principal of any Loan outstanding, and (ii) to the
fullest extent permitted by law, any other amount payable by the Borrower under
this Agreement or any other Loan Document to or for the account of such Lender
which is not paid in full when due (whether at stated maturity, by acceleration
or otherwise) for the period from and including the due date thereof to but
excluding the date the same is paid in full. Interest payable at the Default
Rate shall be payable from time to time on demand by the Administrative Agent.
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Section 2.5 Borrowing Procedure.
(a) Standard Procedure. The Borrower shall give the Administrative
Agent notice of each borrowing hereunder in accordance with Section 2.9. Not
later than 1:00 p.m. (New York, New York time) on the date specified for each
borrowing hereunder, each Lender will make available the amount of the Loan to
be made by it on such date to the Administrative Agent, at the Principal Office,
in immediately available funds, for the account of the Borrower. The amount of
each borrowing hereunder so received by the Administrative Agent shall, subject
to the terms and conditions of this Agreement, be made available, for and on
behalf of the Borrower, in immediately available funds by no later than 1:00
p.m. (New York, New York time); provided, however, that the Administrative Agent
may, in its discretion, cause such amount to be made available directly to or
for the benefit of the Person who is to receive the proceeds of such Loan in
accordance with Section 2.10. Notwithstanding anything to the contrary contained
in this Agreement, if and to the extent that Nortel Networks is a Lender under
this Agreement, the Borrower further hereby irrevocably agrees that each Loan to
be advanced by Nortel Networks to the Borrower in accordance with this Agreement
(and only in accordance with this Agreement and after the Administrative Agent's
receipt of a Notice of Borrowing executed by the Borrower) may (in the
discretion of Nortel Networks and if and to the extent that the proceeds of such
Loan are to be paid to Nortel Networks) be effectively disbursed on the date set
forth in the Notice of Borrowing for such disbursement to the Borrower by virtue
of a credit in the amount of such Loan given to the Borrower and/or the Leasing
Subsidiary under the Master Purchase Agreement.
(b) Automatic Advancement of Loans. Notwithstanding anything to the
contrary contained in this Agreement, the Administrative Agent shall, at the
request of Nortel Networks so long as it is the sole Lender hereunder, cause
Loans to be advanced by the Lender for and on behalf of the Borrower whether or
not (i) any Notice of Borrowing is given in accordance with Section 2.9, (ii)
any of the conditions precedent set forth in Article 6 hereof are satisfied,
(iii) any Default exists, or (iv) any other fact or circumstance exists, if
Nortel Networks shall have given five Business Day's prior written notice to the
Administrative Agent and the Borrower of Nortel Networks' desire to cause the
Lender to make such Loans and all proceeds of such Loans are used to pay the
purchase price for Nortel Networks Goods and Services which has not been paid
within 45 days after the date of delivery to the Borrower and/or the Leasing
Subsidiary of an Invoice therefor and/or to pay accrued late charges relating to
such purchase price in accordance with the Master Purchase Agreement. All Loans
advanced pursuant to this Section 2.5(b) shall be initially advanced as
Eurodollar Loans with a one month Interest Period or, if the maximum number of
Interest Periods for Eurodollar Loans is already then in effect, as Base Rate
Loans (but after such advancement, may be Converted or Continued in accordance
with this Agreement).
Section 2.6 Optional Prepayments, Conversions and Continuations of
Loans. Subject to Section 2.7, the Borrower shall have the right from time to
time to prepay the Loans in whole or in part, to Convert all or part of a Loan
of one Type into a Loan of another Type or to Continue Eurodollar Loans;
provided that: (a) the Borrower shall give the Administrative Agent notice of
each such prepayment, Conversion or Continuation as provided in Section 2.9, (b)
Eurodollar Loans may only be Converted on the last day of the Interest Period
and any prepayment of Eurodollar Loans on any day other than the last day of the
Interest Period shall be subject to payment of the additional
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compensation specified in Section 4.5, (c) except for Conversions of Eurodollar
Loans into Base Rate Loans, no Conversions or Continuations shall be made while
a Default has occurred and is continuing, and (d) optional prepayments of the
Loans shall be applied pro rata to the principal of the Loans in the inverse
order of the maturities of the then remaining installments of such Loans. No
amounts prepaid pursuant to this Section 2.6 may be reborrowed.
Section 2.7 Mandatory Prepayments.
(a) Asset Dispositions, etc. The Borrower shall, within two Business
Days after it receives in excess of $100,000 during any period of 12 consecutive
months or less from any combination of Net Proceeds of any Asset Disposition,
proceeds of any Insurance Recovery or proceeds of condemnation awards (the
amount of such proceeds exceeding $100,000 received during any such period are
herein called the "Excess Proceeds Amount"), pay to the Administrative Agent, as
a prepayment of the Loans, an aggregate amount equal to the Excess Proceeds
Amount; provided, that no such prepayment will be required if and to the extent
that the Excess Proceeds Amount is fully re-invested in productive assets used
in the ordinary course of Borrower's or its Subsidiary's (as applicable)
business within 60 days of the receipt of such Excess Proceeds Amount; provided,
further, however, that the Excess Proceeds Amount shall be deposited into a cash
collateral account held by the Administrative Agent pursuant to an agreement in
form and substance satisfactory to the Administrative Agent until such time as
such amount is either re-invested within 60 days of the receipt thereof or
applied to the Loans or other Obligations as provided in this Section 2.7.
(b) Excess Cash Flow. The Borrower shall, commencing on the first March
31 following the Commitment Termination Date, and on each anniversary
thereafter, pay (or cause to be paid) to the Administrative Agent, as a
prepayment of the Loans and other Obligations then outstanding, an aggregate
amount equal to seventy-five percent (75%) of Excess Cash Flow for the fiscal
year then most recently ended.
(c) Proceeds of Sale or Placement of Debt or Capital Stock. The
Borrower shall, within five Business Days after Borrower receives proceeds after
the date hereof from sales or placements of Debt or Capital Stock, prepay the
outstanding Loans in the full amount of net proceeds (i.e. gross proceeds less
reasonable out-of-pocket transactions costs) received.
(d) Application of Mandatory Prepayments. All prepayments pursuant to
Section 2.7(a), Section 2.7(b), and Section 2.7(c) shall be applied pro rata to
the principal of the Loans in the inverse order of the maturities of the then
remaining installments of the Loans and then to the remaining outstanding
Obligations in such order as the Administrative Agent may determine. No
prepayment shall be required to be made by the Borrower pursuant to Section 2.7
until such date as the Borrower may make such prepayment without incurring an
additional cost or expense under Section 4.5(a) as a result of such prepayment.
(e) No Reborrowing. No amounts of the Loans prepaid pursuant to this
Section 2.7 may be reborrowed.
Section 2.8 Minimum Amounts. Except for Conversions and prepayments
pursuant to Section 2.7 and Article 4, each borrowing, Conversion and each
optional prepayment of principal
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of the Loans shall be in an amount at least equal to $1,000,000 or an integral
multiple of $100,000 in excess thereof (borrowings, prepayments or Conversions
of or into Loans of different Types or, in the case of Eurodollar Loans, having
different Interest Periods at the same time hereunder shall be deemed separate
borrowings, prepayments and Conversions for purposes of the foregoing, one for
each Type or Interest Period).
Section 2.9 Certain Notices. Notices by the Borrower to the
Administrative Agent of terminations or reductions of Commitments, of
borrowings, Conversions, Continuations and prepayments of Loans and of the
duration of Interest Periods shall be irrevocable and shall be effective only if
received by the Administrative Agent not later than 11:00 a.m. (New York, New
York, time) on the Business Day prior to the date of the relevant termination,
reduction, borrowing, Conversion, Continuation or prepayment or the first day of
such Interest Period specified below:
-----------------------------------------------------------------------------------
Number of
Notice Business Days Prior
-----------------------------------------------------------------------------------
Terminations or Reductions of Commitments 1
-----------------------------------------------------------------------------------
Borrowings of Loans which are Base Rate Loans 2
-----------------------------------------------------------------------------------
Borrowings of Loans which are Eurodollar Loans 3
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Prepayments of Loans 3
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Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation or prepayment shall specify the Loans to be borrowed,
Converted, Continued or prepaid and the amount (subject to Section 2.8 hereof)
and Type of the Loans to be borrowed, Converted, Continued or prepaid (and, in
the case of a Conversion, the Type of Loans to result from such Conversion) and
the date of borrowing, Conversion, Continuation or prepayment (which shall be a
Business Day). Each such notice of termination, reduction, borrowing,
Conversion, Continuation or prepayment shall be in the form of Exhibit C hereto,
appropriately completed as applicable. Each notice of borrowing (a "Notice of
Borrowing") (a) shall certify that all proceeds of the requested Loans are,
concurrently with the making of such Loans, being used by the Borrower for the
purpose specified in Section 2.10 and (b) shall be accompanied by such other
evidence as to use of the proceeds of such borrowing, as the Administrative
Agent may reasonably request from time to time. Each notice which includes
reference to the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Administrative Agent shall promptly
notify the Lenders of the contents of each such notice. In the event the
Borrower fails to select the Type of Loan, or the duration of any Interest
Period for any Eurodollar Loan, within the time period and otherwise as provided
in this Section 2.9, such Loan (if outstanding as Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of preceding
Interest Period for such Loan or (if outstanding as a Base Rate Loan) will
remain as, or (if not then outstanding) will be made as, a Base Rate Loan. The
Borrower may not borrow any Eurodollar Loans, Convert any Loans into Eurodollar
Loans or Continue any Loans as Eurodollar Loans if the interest rate for such
Eurodollar Loans would exceed the Maximum Rate.
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Section 2.10 Use of Proceeds.
(a) Loans. The Borrower agrees that all proceeds of the Loans shall be
used by the Borrower to (i) finance the Borrower's purchase of Nortel Networks
Goods and Services under the Master Purchase Agreement, excluding sales and use
taxes and freight charges and/or (ii) make advances to the Leasing Subsidiary to
finance the Leasing Subsidiary's purchase of Nortel Networks Goods and Services
under the Master Purchase Agreement, excluding sales and use taxes and freight
charges.
(b) Margin Stock. None of the proceeds of any Loan have been or will be
used to acquire any security in any transaction that is subject to Section 13 or
14 of the Exchange Act or to purchase or carry any margin stock (within the
meaning of Regulations T, U or X of the Board of Governors of the Federal
Reserve System).
Section 2.11 Fees.
(a) Subject to Section 13.12, the Borrower shall pay to the
Administrative Agent for the account of each applicable Lender, a commitment fee
on the daily average unused or unfunded amount of each of such Lender's
Commitments (as the same may be reduced or terminated pursuant to Section 2.13)
for the period from and including the Closing Date through the Commitment
Termination Date, at the rate of one percent (1.00%) per annum based on a 360
day year and the actual number of days elapsed, which accrued commitment fees
shall be payable in arrears on each Quarterly Date and on the Commitment
Termination Date.
(b) Subject to Section 13.12, the Borrower agrees to pay to the
Administrative Agent and Nortel Networks such additional fees as are specified
in the Administrative Agent's Letter, which fees shall be payable in such
amounts and on such dates as are specified therein.
Section 2.12 Computations. Interest and fees payable by the Borrower
hereunder and under the other Loan Documents on all Loans shall be computed on
the basis of a year of 360 days and the actual number of days elapsed (including
the first day but excluding the last day) occurring in the period for which
payable unless, in the case of interest, such calculation would result in a
usurious rate, in which case interest shall be calculated on the basis of a year
of 365 or 366 days, as the case may be.
Section 2.13 Termination or Reduction of Commitments.
(a) Notwithstanding anything to the contrary contained in this
Agreement, each of the Commitments shall automatically terminate upon the
occurrence of any Change in Control.
(b) The Borrower shall have the right to terminate or reduce in part
the unused portion of the Commitments at any time and from time to time prior to
the Commitment Termination Date; provided, however, that no such termination or
reduction shall be effective unless the Borrower shall have given notice of each
such termination or reduction as provided in Section 2.9 and each partial
reduction of the Commitments shall be in an aggregate amount at least equal to
$1,000,000 or an integral multiple of $100,000 in excess thereof.
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(c) The Commitments may not be reinstated after they have been
terminated or increased after they have been reduced.
ARTICLE 3
Payments
Section 3.1 Method of Payment. All payments of principal, interest,
fees and other amounts to be made by the Borrower under this Agreement and the
other Loan Documents shall be made to the Administrative Agent at the Principal
Office for the account of each Lender's Applicable Lending Office in Dollars and
in immediately available funds, without setoff, deduction or counterclaim, not
later than 1:00 p.m. (New York, New York time) on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day). The Borrower
shall, at the time of making each such payment, specify to the Administrative
Agent the sums payable by the Borrower under this Agreement and the other Loan
Documents to which such payment is to be applied (and in the event that the
Borrower fails to so specify, or if an Event of Default has occurred and is
continuing, the Administrative Agent may apply such payment to the Obligations
in such order and manner as the Administrative Agent may elect, subject to
Section 3.2). Upon the occurrence and during the continuation of an Event of
Default, all proceeds of any Collateral and all other funds of the Borrower in
the possession of the Administrative Agent or any Lender, may be applied by the
Administrative Agent to the Obligations in such order and manner as the
Administrative Agent may elect, subject to Section 3.2. Each payment received by
the Administrative Agent under this Agreement or any other Loan Document for the
account of a Lender shall be paid promptly to such Lender, in immediately
available funds, for the account of such Lender's Applicable Lending Office.
Whenever any payment under this Agreement or any other Loan Document shall be
stated to be due on a day that is not a Business Day, such payment may be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of the payment of interest and commitment
fee, as the case may be.
Section 3.2 Pro Rata Treatment. Except to the extent otherwise provided
in this Agreement: (a) each Loan shall be made by the Lenders under Section 2.1,
each payment of commitment fees under Section 2.11(a) shall be made for the
account of the Lenders, and each termination or reduction of the Commitments
under Section 2.13 shall be applied to the Commitments of the Lenders, pro rata
according to the respective unused Commitments; (b) the making, Conversion and
Continuation of Loans of a particular Type (other than Conversions provided for
by Section 4.4) shall be made pro rata among the Lenders holding Loans of such
Type according to the amounts of their respective Commitments; (c) each payment
and prepayment by the Borrower of principal of or interest on Loans of a
particular Type shall be made to the Administrative Agent for the account of the
Lenders holding Loans of such Type pro rata in accordance with the respective
unpaid principal amounts of such Loans held by such Lenders; and (d) Interest
Periods for Loans of a particular Type shall be allocated among the Lenders
holding Loans of such Type pro rata according to the respective principal
amounts held by such Lenders.
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Section 3.3 Sharing of Payments, Etc. If a Lender shall obtain payment
of any principal of or interest on any of the Obligations due to such Lender
hereunder through the exercise of any right of setoff, banker's lien,
counterclaim or similar right, or otherwise, it shall promptly purchase from the
other Lenders participations in the Obligations held by the other Lenders in
such amounts, and make such adjustments from time to time, as shall be equitable
to the end that all the Lenders shall share pro rata in accordance with the
unpaid principal and interest on the Obligations then due to each of them. To
such end, all of the Lenders shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if all or any portion of
such excess payment is thereafter rescinded or must otherwise be restored. The
Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any Lender so purchasing a participation in the Obligations by the
other Lenders may exercise all rights of setoff, banker's lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Obligations in the amount of such participation. Nothing
contained herein shall require any Lender to exercise any such right or shall
affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness, liability or
obligation of the Borrower.
Section 3.4 Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Lender or the Borrower
(the "Payor") prior to the date on which such Lender is to make payment to the
Administrative Agent of the proceeds of a Loan to be made by it hereunder or the
Borrower is to make a payment to the Administrative Agent for the account of one
or more of the Lenders, as the case may be (such payment being herein called the
"Required Payment"), which notice shall be effective upon receipt, that the
Payor does not intend to make the Required Payment to the Administrative Agent,
the Administrative Agent may assume that the Required Payment has been made and
may, in reliance upon such assumption (but shall not be required to), make the
amount thereof available to the intended recipient on such date and, if the
Payor has not in fact made the Required Payment to the Administrative Agent, the
recipient of such payment shall, on demand, pay to the Administrative Agent the
amount made available to it together with interest thereon in respect of the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such period.
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Section 3.5 Taxes.
(a) All payments by the Borrower of principal of and interest on the
Loans and of all fees and other amounts payable under the Loan Documents shall
be made free and clear of, and without withholding or deduction by reason of,
any present or future taxes, levies, duties, imposts, assessments or other
charges levied or imposed by any Governmental Authority (other than franchise
taxes and taxes on the overall net income of any Lender). If any such taxes,
levies, duties, imposts, assessments or other charges are so levied or imposed,
the Borrower will (i) make additional payments in such amounts so that every net
payment of principal of and interest on the Loans and of all other amounts
payable by it under the Loan Documents, after withholding or deduction for or on
account of any such present or future taxes, levies, duties, imposts,
assessments or other charges (including any tax imposed on or measured by net
income of a Lender attributable to payments made to or on behalf of a Lender
pursuant to this Section 3.5 and any penalties or interest attributable to such
payments), will not be less than the amount provided for herein or therein
absent such withholding or deduction (provided that the Borrower shall not have
any obligation to pay such additional amounts to any Lender to the extent that
such taxes, levies, duties, imposts, assessments or other charges are levied or
imposed by reason of the failure of such Lender to comply with the provisions of
Section 3.6), (ii) make such withholding or deduction and (iii) remit the full
amount deducted or withheld to the relevant Governmental Authority in accordance
with applicable law. Without limiting the generality of the foregoing, the
Borrower will, upon written request of any Lender, reimburse each such Lender
for the amount of (A) such taxes, levies, duties, imports, assessments or other
charges so levied or imposed by any Governmental Authority and paid by such
Lender as a result of payments made by the Borrower under or with respect to the
Loans other than such taxes, levies, duties, imports, assessments and other
charges previously withheld or deducted by the Borrower which have previously
resulted in the payment of the required additional amount to such Lender, and
(B) such taxes, levies, duties, assessments and other charges so levied or
imposed with respect to any Lender reimbursement under the foregoing clause (A),
so that the net amount received by such Lender (net of payments made under or
with respect to the Loans) after such reimbursement will not be less than the
net amount such Lender would have received if such taxes, levies, duties,
assessments and other charges on such reimbursement had not been levied or
imposed. The Borrower shall furnish promptly to the Administrative Agent for
distribution to each affected Lender, as the case may be, upon request of such
Lender, official receipts evidencing any such payment, withholding or reduction.
(b) The Borrower will indemnify the Administrative Agent and each
Lender (without duplication) against, and reimburse the Administrative Agent and
each Lender for, all present and future taxes, levies, duties, imposts,
assessments or other charges (including interest and penalties) levied or
collected (whether or not legally or correctly imposed, assessed, levied or
collected), excluding, however, any taxes imposed on the overall net income of
the Administrative Agent or such Lender or any lending office of the
Administrative Agent or such Lender by any jurisdiction in which the
Administrative Agent or such Lender or any such lending office is located, on or
in respect of this Agreement, any of the Loan Documents or the Obligations or
any portion thereof (the "reimbursable taxes"). Any such indemnification shall
be on an after-tax basis, taking into account any such reimbursable taxes
imposed on the amounts paid as indemnity.
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(c) Without prejudice to the survival of any other term or provision of
this Agreement, the obligations of the Borrower under this Section 3.5 shall
survive the payment of the Loans and the other Obligations and termination of
the Commitments.
Section 3.6 Withholding Tax Exemption. Each Lender that is not
incorporated or otherwise formed under the laws of the U.S. or a state thereof
agrees that it will, prior to or on or about the Closing Date or the date upon
which it initially becomes a party to this Agreement and if it is legally able
to do so, deliver to the Borrower and the Administrative Agent, two duly
completed copies of U.S. Internal Revenue Service Form 1001, 4224 or W-8, as
appropriate, certifying in any case that such Lender is entitled to receive
payments from the Borrower under any Loan Document without deduction or
withholding of any U.S. federal income taxes. Each Lender which so delivers a
Form 1001, 4224 or W-8 further undertakes to deliver to the Borrower and the
Administrative Agent, two additional copies of such form (or a successor form)
on or before the date such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrower or the Administrative Agent, in each case
certifying that such Lender is entitled to receive payments from the Borrower
under any Loan Document without deduction or withholding of any U.S. federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender advises the Borrower and the
Administrative Agent that it is not capable of receiving such payments without
any deduction or withholding of U.S. federal income tax.
Section 3.7 Reinstatement of Obligations. Notwithstanding anything to
the contrary contained in this Agreement or any other Loan Document, if the
payment of any amount of principal of or interest with respect to the Loans or
any other amount of the Obligations, or any portion thereof, is rescinded,
voided or must otherwise be refunded by the Administrative Agent or any Lender
upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise
for any reason whatsoever, then each of (a) the Obligations, (b) the Loan
Documents (including, without limitation, this Agreement, the Notes and the
Security Documents), (c) the indebtedness, liabilities and obligations of the
Borrower and any other Loan Parties and (d) all Liens for the benefit of the
Administrative Agent and the Lenders created under or evidenced by the Loan
Documents, will be automatically reinstated and become automatically effective
and in full force and effect, all to the extent that and as though such payment
so rescinded, voided or otherwise refunded had never been made.
Section 3.8 No Force Majeure, Disputes. The Borrower's obligation to
pay all amounts due under the Loans and the other Obligations shall not be
affected by (a) any set-off, counterclaim, recoupment, deduction, abatement,
suspension, diminution, reduction, defense or other right which the Borrower,
the Leasing Subsidiary, TriVergent or TriVergent Leasing, LLC may have against
the Vendor for any reason whatsoever arising under or pursuant to the Master
Purchase Agreement or otherwise relating to the purchase of goods or services
from the Vendor, (b) any defect in the condition, design, operation or fitness
for use of, or any damage to or loss or destruction of, any equipment or
material or service provided by the Vendor, (c) any insolvency, bankruptcy,
reorganization or similar proceedings by or against the Borrower or affecting
any of its Properties,
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(d) any action of any Governmental Authority or any damage to or destruction of
or any taking of the Borrower's Property or any part thereof, (e) any change,
waiver, extension, indulgence or failure to perform or comply with, or other
action or omission herein or in the other Loan Documents (except for express
written modifications to this Agreement or other Loan Documents as and in the
manner permitted under this Agreement or the other Loan Documents), (f) any
dissolution of the Borrower, (g) any inability or illegality with respect to the
use or ownership of the Borrower's Property, (h) any failure to obtain, or
expiration, suspension or other termination of, or interruption to, any required
licenses, permits, consents, authorizations, approvals or other legal
requirements, (i) the invalidity or unenforceability of any of the Loan
Documents or any other infirmity therein or any lack of power or authority of
the Administrative Agent or any Lender or the Borrower, or (j) any other event
or circumstance whatsoever, whether or not similar to any of the foregoing and
whether or not the Borrower shall have notice or knowledge of any of the
foregoing, it being the intention of the Administrative Agent and the Lenders
and the Borrower that the Obligations of the Borrower shall be absolute and
unconditional and shall be separate and independent covenants and agreements and
shall continue unaffected unless the requirements to pay or perform the same
shall have been terminated pursuant to an express provision thereof or of any of
the other Loan Documents.
ARTICLE 4
Yield Protection and Illegality
Section 4.1 Additional Costs.
(a) The Borrower shall pay directly to each Lender from time to time,
promptly upon the request of such Lender, the costs incurred by such Lender
which such Lender determines are attributable to its making or maintaining of
any Eurodollar Loans or its obligation to make any of such Loans, or any
reduction in any amount receivable by such Lender hereunder in respect of any
such Loans or obligations (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to
such Lender under this Agreement or its Notes in respect of any of such
Loans (other than taxes imposed on the overall net income of such
Lender or its Applicable Lending Office for any of such Loans by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office);
(ii) imposes or modifies any reserve, special deposit, minimum
capital, capital ratio or similar requirement relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities or commitments of, such Lender (including any of such Loans
or any deposits referred to in the definition of "Eurodollar Rate" in
Section 1.1 hereof, but excluding the Reserve Requirement to the extent
it is included in the calculation of the Adjusted Eurodollar Rate); or
(iii) imposes any other condition affecting this Agreement or
the Notes or any extensions of credit or liabilities or commitments
contemplated hereunder or thereunder.
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Each Lender will notify the Borrower (with a copy to the Administrative Agent)
of any event occurring after the Closing Date which will entitle such Lender to
compensation pursuant to this Section 4.1(a) as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation, and (if
so requested by the Borrower) will designate a different Applicable Lending
Office for the Eurodollar Loans of such Lender if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
sole opinion of such Lender, violate any law, rule or regulation or be in any
way disadvantageous to such Lender, provided that such Lender shall have no
obligation to so designate an Applicable Lending Office located in the U.S. Each
Lender will furnish the Borrower with a certificate setting forth the basis and
the amount of each request of such Lender for compensation under this Section
4.1(a). If any Lender requests compensation from the Borrower under this Section
4.1(a), the Borrower may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender to make or Continue
making, or Convert Base Rate Loans into, Eurodollar Loans until the Regulatory
Change giving rise to such request ceases to be in effect (in which case the
provisions of Section 4.4 hereof shall be applicable).
(b) Without limiting the effect of the foregoing provisions of this
Section 4.1, in the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender which includes Eurodollar
Loans or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Lender so elects by
notice to the Borrower (with a copy to the Administrative Agent), the obligation
of such Lender to make or Continue making, or Convert Base Rate Loans into,
Eurodollar Loans hereunder shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provisions of Section 4.4 hereof shall
be applicable).
(c) Determinations and allocations by any Lender for purposes of this
Section 4.1 of the effect of any Regulatory Change on its costs of maintaining
its obligation to make Loans or of making or maintaining Loans or on amounts
receivable by it in respect of Loans and of the additional amounts required to
compensate such Lender in respect of any Additional Costs, shall be conclusive
in the absence of manifest error, provided that such determinations and
allocations are made on a reasonable basis.
Section 4.2 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if with respect to any Eurodollar Loans for any
Interest Period therefor:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that quotations of interest rates for the
relevant deposits referred to in the definition of "Eurodollar Rate" in Section
1.1 hereof are not being provided in the relative amounts or for the relative
maturities for purposes of determining the rate of interest for such Loans as
provided in this Agreement; or
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(b) the Required Lenders determine (which determination shall be
conclusive absent manifest error) and notify the Administrative Agent that the
relevant rates of interest referred to in the definition of "Eurodollar Rate" or
"Adjusted Eurodollar Rate" in Section 1.1 hereof on the basis of which the rate
of interest for such Loans for such Interest Period is to be determined do not
accurately reflect the cost to the Lenders of making or maintaining such Loans
for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof and,
so long as such condition remains in effect, the Lenders shall be under no
obligation to make Eurodollar Loans or to Convert Base Rate Loans into
Eurodollar Loans and the Borrower shall, on the last day(s) of the then current
Interest Period(s) for the outstanding Eurodollar Loans, either prepay such
Loans or Convert such Loans into Base Rate Loans in accordance with the terms of
this Agreement.
Section 4.3 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to (a) honor its obligation to make Eurodollar Loans
or (b) maintain Eurodollar Loans, then such Lender shall promptly notify the
Borrower (with a copy to the Administrative Agent) thereof and such Lender's
obligation to make or maintain Eurodollar Loans and to Convert Base Rate Loans
into Eurodollar Loans hereunder shall be suspended until such time as such
Lender may again make and maintain Eurodollar Loans (in which case the
provisions of Section 4.4 hereof shall be applicable).
Section 4.4 Treatment of Affected Loans. If the obligation of any
Lender to make or Continue, or to Convert Base Rate Loans into, Eurodollar Loans
is suspended pursuant to Section 4.1 or 4.3 hereof, such Lender's Eurodollar
Loans shall be automatically Converted into Base Rate Loans on the last day(s)
of the then current Interest Period(s) for the Eurodollar Loans (or, in the case
of a Conversion required by Section 4.1(b) or 4.3 hereof, on such earlier date
as such Lender may specify to the Borrower with a copy to the Administrative
Agent) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.1 or 4.3 hereof which gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal which would otherwise be
applied to such Lender's Eurodollar Loans shall be applied instead to its Base
Rate Loans; and
(b) all Loans which would otherwise be made or Continued by such Lender
as Eurodollar Loans shall be made as or Converted into Base Rate Loans and all
Loans of such Lender which would otherwise be Converted into Eurodollar Loans
shall be Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower that the circumstances specified in
Section 4.1 or 4.3 hereof which gave rise to the Conversion of such Lender's
Eurodollar Loans pursuant to this Section 4.4 no longer exist (which such Lender
agrees to do promptly upon such circumstances ceasing to exist) at a time when
Eurodollar Loans are outstanding, such Lender's Base Rate Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Loans, to the extent necessary so
that, after giving effect thereto, all
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Loans held by the Lenders holding Eurodollar Loans and by such Lender are held
pro rata (as to principal amounts, Types and Interest Periods) in accordance
with their respective Commitments.
Section 4.5 Compensation. The Borrower shall pay to the Administrative
Agent for the account of each Lender, promptly upon the request of such Lender
through the Administrative Agent, such amount or amounts as shall be sufficient
(in the reasonable opinion of such Lender) to compensate it for any loss, cost
or expense incurred by it as a result of:
(a) Any payment, prepayment or Conversion of a Eurodollar Loan for any
reason (including, without limitation, the acceleration of the outstanding Loans
pursuant to Section 11.2) on a date other than the last day of an Interest
Period for such Loan; or
(b) Any failure by the Borrower for any reason (including, without
limitation, the failure of any conditions precedent specified in Article 6 to be
satisfied) to borrow, Convert or prepay a Eurodollar Loan on the date for such
borrowing, Conversion or prepayment specified in the relevant notice of
borrowing, prepayment or Conversion under this Agreement.
Section 4.6 Capital Adequacy. If, after the Closing Date, any Lender
shall have determined that the adoption or implementation of any applicable law,
rule or regulation regarding capital adequacy (including, without limitation,
any law, rule or regulation implementing the Basle Accord), or any change
therein, or any change in the interpretation or administration thereof by any
central bank or other Governmental Authority charged with the interpretation or
administration thereof, or compliance by such Lender (or its parent) with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any central bank or other Governmental Authority
(including, without limitation, any guideline or other requirement implementing
the Basle Accord), has or would have the effect of reducing the rate of return
on such Lender's (or its parent's) capital as a consequence of its obligations
hereunder or the transactions contemplated hereby to a level below that which
such Lender (or its parent) could have achieved but for such adoption,
implementation, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time, within ten Business Days
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender (or its parent) for such reduction. A certificate of such
Lender claiming compensation under this Section 4.6 and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive
absent manifest error, provided that the determination thereof is made on a
reasonable basis. In determining such amount or amounts, such Lender may use any
reasonable averaging and attribution methods.
Section 4.7 Additional Interest on Eurodollar Loans. Without
duplication of Section 2.4 or amounts directly included in the definition of the
term "Adjusted Eurodollar Rate", the Borrower shall pay, directly to each Lender
from time to time, additional interest on the unpaid principal amount of each
Eurodollar Loan held by such Lender, from the date of the making of such
Eurodollar Loan until such principal amount is paid in full, at an interest rate
per annum determined by such Lender in good faith equal to the positive
remainder (if any) of (a) the Adjusted Eurodollar Rate applicable to such
Eurodollar Loan minus (b) the Eurodollar Rate applicable to such Eurodollar
Loan. Each payment of additional interest pursuant to this Section 4.7 shall be
payable by the
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Borrower on each date upon which interest is payable on such Eurodollar Loan
pursuant to Section 2.4(b); provided, however, that the Borrower shall not be
obligated to make any such payment of additional interest until the first
Business Day after the date when the Borrower has been informed (i) that such
Lender is subject to a Reserve Requirement and (ii) of the amount of such
Reserve Requirement (after which time the Borrower shall be obligated to make
all such payments of additional interest, including, without limitation, such
payment of additional interest that otherwise would have been payable by the
Borrower on or prior to such time had the Borrower been earlier informed).
Section 4.8 Replacement of Lenders. If at any time a Lender, other than
Nortel Networks, becomes a Gross Up Lender (as defined in this Section 4.8), the
Borrower shall have the right to replace such Lender with another Person;
provided that (a) such other Person shall be an Eligible Assignee and such other
Person shall execute an Assignment and Acceptance, (b) neither the Agent nor any
Lender shall have any obligation to the Borrower to find such other Person, (c)
in the event of a replacement of a Gross Up Lender, in order for the Borrower to
be entitled to replace such Lender, such replacement must take place no later
than 90 days after the date the Gross Up Lender shall notify the Borrower and
the Agent of its desire to be paid any amounts pursuant to Section 3.5, 4.1 or
4.6, and (d) if the Borrower replaces one Gross Up Lender, it must replace all
Gross Up Lenders or replace all Gross Up Lenders on a pro rata basis. Each
Lender, other than Nortel Networks, agrees to its replacement at the option of
the Borrower pursuant to this Section 4.8 and in accordance with Section 12.8;
provided that the successor Lender shall purchase without recourse such Lender's
interest in the Obligations of the Borrower to such Lender for cash in an
aggregate amount equal to the aggregate unpaid principal thereof, all unpaid
interest accrued thereon, all unpaid commitment fees accrued for the account of
such Lender, any breakage costs incurred by the selling Lender because of the
prepayment of any Eurodollar Loans, all other fees (if any) applicable thereto
and all other amounts (including any amounts under this Article 4) then owing to
such Lender hereunder or under any other Loan Document and the Loan Parties
shall execute a release addressed to such Lender releasing such Lender from all
claims arising in connection with the Loan Documents. Any Lender who requests a
payment pursuant to Section 3.5, 4.1 or 4.6 shall be deemed a "Gross Up Lender".
ARTICLE 5
Security
Section 5.1 Collateral. To secure the full and complete payment and
performance of the Obligations, the Borrower will, and will cause Holdings and
each of the Subsidiaries of the Borrower to, grant to the Administrative Agent
for the benefit of the Administrative Agent and the Lenders a perfected, first
priority Lien (except as expressly set forth on Schedule 1.1(b)) on all of its
right, title and interest in and to the Collateral, whether now owned or
hereafter acquired, pursuant to the Security Documents, including, without
limitation, the following:
(a) all Capital Stock of the Borrower and its Subsidiaries;
(b) all of the Property (as such Property is more specifically
described in the Security Documents) of the Borrower and each of the
Subsidiaries of the Borrower, including, without
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limitation, the following: Investments (including certificates of deposit);
accounts; inventory (including, without limitation, work in process); equipment;
deposit accounts (including cash collateral accounts), contract rights
(including, without limitation, all contracts relating to the construction or
operation of the Network, including rights of way, easements, leases and all
related contracts); customer deposits in connection with purchase orders;
general intangibles; Mortgaged Properties; instruments; chattel paper; Permits;
Intellectual Property; and intercompany Debt; and
(c) all cash and non-cash proceeds and products of any of the
foregoing.
Section 5.2 Guaranties. The Borrower will cause each of the
Subsidiaries of the Borrower (whether owned as of the Closing Date or thereafter
organized or created) to Guarantee the payment and performance of the
Obligations pursuant to the Guaranties.
Section 5.3 New Subsidiaries; Additional Capital Stock.
Contemporaneously with the creation or acquisition of any Subsidiary of the
Borrower after the Closing Date, the Borrower shall:
(a) grant or cause to be granted to the Administrative Agent, for the
benefit of itself and the Lenders, a perfected, first priority security interest
in all Capital Stock of such Subsidiary owned by the Borrower or any Subsidiary
of the Borrower (to the extent such Capital Stock was not previously pledged to
the Administrative Agent);
(b) cause each such Subsidiary to Guarantee the payment and performance
of the Obligations by executing and delivering to the Administrative Agent a
Guaranty or a joinder therein acceptable to the Administrative Agent; and
(c) cause each such Subsidiary to execute and deliver to the
Administrative Agent a Security Agreement and such other Security Documents, in
form and substance acceptable to the Administrative Agent, as the Administrative
Agent may request to grant the Administrative Agent, for the benefit of itself
and the Lenders, a perfected, first priority Lien on all Property of such
Subsidiary.
Contemporaneously with the issuance of any additional Capital Stock of the
Borrower or any of the Subsidiaries of the Borrower after the Closing Date, the
Borrower shall, and shall cause Holdings and each of the Subsidiaries of the
Borrower to, grant or cause to be granted to the Administrative Agent, for the
benefit of the Administrative Agent and the Lenders, a perfected, first priority
security interest in all Capital Stock or other ownership interests in the
Borrower or such Subsidiary owned by Holdings, the Borrower or any Subsidiary of
the Borrower (to the extent such Capital Stock or other ownership interests are
already not so pledged to the Administrative Agent). The Borrower covenants that
none of the Capital Stock to be pledged in accordance with this Section 5.3
shall be subject to any transfer restriction, shareholders' agreement or other
restriction except for such restrictions as have been waived, restrictions under
applicable securities laws, such restrictions existing as of the Closing Date
which have been disclosed to the Administrative Agent in the Security Documents
and such restrictions, if any, as may be reasonably acceptable to the
Administrative Agent. In connection with and in addition to the foregoing, the
Borrower shall, and shall cause Holdings and each of the Subsidiaries of the
Borrower and other appropriate Persons (as applicable) to, execute and/or
deliver such further agreements, documents and instruments
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(including, without limitation, stock certificates, stock powers and financing
statements) as the Administrative Agent may reasonably request in order for it
to obtain and maintain the perfected, first priority Liens (except as expressly
set forth on Schedule 1.1(b)) to be granted in accordance with this Section 5.3.
Section 5.4 New Mortgaged Properties; Landlord Waivers. The Borrower
shall, and shall cause each of the other Loan Parties to, contemporaneously with
the acquisition of any fee real Property, execute, acknowledge and deliver to
the Administrative Agent a Mortgage or an amendment or modification to an
existing Mortgage covering all fee real Property acquired by any such Loan Party
subsequent to the Closing Date, together with evidence satisfactory to the
Administrative Agent and its counsel that the Mortgage creates a valid, first
priority Lien on the fee estate, in favor of the Administrative Agent for the
benefit of the Administrative Agent and the Lenders; provided, that the Borrower
shall not be required to execute a Mortgage or Mortgages in favor of the
Administrative Agent unless and until the Borrower owns an aggregate of $250,000
of real Property (at which time all real Property owned by the Borrower shall be
mortgaged in favor of the Administrative Agent). Following the date of each such
acquisition of Property, if reasonably requested by the Administrative Agent,
the Borrower shall, and shall cause each of such Loan Parties with an interest
in such Property to, provide the Administrative Agent with a current
environmental assessment of such Property in form and substance reasonably
satisfactory to the Administrative Agent. In addition, with respect to each
lease of real Property executed by any Loan Party the Borrower will, and will
cause each Loan Party to, obtain waivers of landlord's Liens from each lessor
and other agreements from such lessor and its lenders necessary or appropriate
to ensure Administrative Agent's perfected, first priority Lien (except as
expressly set forth on Schedule 1.1(b)) on the Collateral or Property affected
thereby, the Administrative Agent's access to such Collateral or Property and
the right of the Administrative Agent, the Lenders or their designee to succeed
to the rights of the Loan Party that is the lessee under the lease, in each case
in form and substance reasonably satisfactory to the Administrative Agent;
provided, that such waivers need not be obtained for individual leases where
inventory or equipment of a Loan Party having a fair market value of less than
$50,000 is located (but not more than $250,000 of inventory or equipment in the
aggregate shall be located on leaseholds for which waivers have not been
obtained).
Section 5.5 Management Services Agreement. The Borrower will, and will
cause each Loan Party to, obtain agreements from Holdings and TriVergent and any
lender to Holdings or TriVergent necessary or appropriate to ensure
Administrative Agent's perfected, first priority Lien (except as expressly set
forth on Schedule 1.1(b)) in the Management Services Agreement and the
Collateral or Property affected thereby (including, without limitation,
Borrower's customer lists, billing records and other customer data), the
Administrative Agent's access to such Collateral or Property (including, without
limitation, Borrower's customer lists, billing records and other customer data)
and the right of the Administrative Agent, the Lenders or their designee to
succeed to the rights of the Borrower and any Loan Party in the Management
Services Agreement, in each case in form and substance reasonably satisfactory
to the Administrative Agent.
Section 5.6 Further Assurances. In addition to the foregoing, the
Borrower shall, and shall cause each of the other Loan Parties and other
appropriate Persons (as applicable) to, execute and/or deliver such further
agreements, documents and instruments (including, without limitation, financing
statements) as the Administrative Agent may reasonably request in order for it
to obtain
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and maintain the perfected, first priority Liens (except as expressly set forth
on Schedule 1.1(b)) to be granted in accordance with this Article 5.
Section 5.7 Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time,
without notice to the Borrower (any such notice being hereby expressly waived by
the Borrower), to set off and apply any and all deposits (general or special,
time or demand, provisional or final excluding any trust accounts) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any and all of the Obligations of
the Borrower now or hereafter existing under this Agreement, such Lender's Note
or any other Loan Document, irrespective of whether or not the Administrative
Agent or such Lender shall have made any demand under this Agreement, such
Lender's Note or any such other Loan Document and although such Obligations may
be unmatured. Each Lender agrees promptly to notify the Borrower (with a copy to
the Administrative Agent) after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and
application. The rights and remedies of each Lender hereunder are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) which such Lender may have.
ARTICLE 6
Conditions Precedent
Section 6.1 Initial Extension of Credit. The obligation of each Lender
to make its initial Loan under this Agreement is subject to the receipt by the
Administrative Agent of all of the following in form and substance satisfactory
to the Administrative Agent and, in the case of actions to be taken, the taking
of the following required actions and evidence that such actions have been taken
to the satisfaction of the Administrative Agent:
(a) Resolutions. Resolutions of the board of directors or equivalent
governing body (as applicable) certified by the Secretary or an Assistant
Secretary or equivalent officer or representative of each Loan Party which
authorize the execution, delivery and performance by such Loan Party of the Loan
Documents to which it is or is to be a party;
(b) Incumbency Certificate. A certificate of incumbency certified by
the Secretary or an Assistant Secretary (or other analogous officer) of each
Loan Party certifying as to the name of each officer or other representative of
such Loan Party (i) who is authorized to sign the Loan Documents to which it is
or is to be a party (including any certificates contemplated therein), together
with specimen signatures of each such officer or other representative, and (ii)
who will, until replaced by other officers or representatives duly authorized
for that purpose, act as its representative for the purposes of signing
documents and giving notices and other communications in connection with the
Loan Documents and the transactions contemplated thereby;
(c) Articles of Incorporation. The articles of incorporation of each
Loan Party certified by the Secretary of State or other applicable Governmental
Authority of the state of incorporation of such corporation and dated as of a
Current Date;
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(d) Bylaws. The bylaws of each Loan Party certified by its Secretary or
an Assistant Secretary (or other analogous officer or representative);
(e) Governmental Certificates. Certificates of appropriate officials as
to the existence and good standing of each of the Loan Parties in its
jurisdiction of incorporation and in all jurisdictions in which such Loan Party
is qualified or is required to qualify to do business as a foreign entity, each
such certificate to be dated as of a Current Date;
(f) Notes. The Notes duly completed and executed by the Borrower (one
payable to the order of each Lender with respect to its Commitment);
(g) Security Agreements and Other Security Documents. Security
Agreements and other Security Documents executed by each of the Loan Parties
pertaining to the Collateral owned by such Loan Party or in which such Loan
Party has rights sufficient to create a Lien (one such Security Agreement
executed by each such Loan Party) together with all related financing statements
and other filings, consents to collateral assignments from all parties to all
Material Contracts included as part of the Collateral in form and substance
acceptable to the Administrative Agent, delivery of all pledged Capital Stock
and instruments together with appropriate stock powers and endorsements and,
with respect to each existing lease of real Property where Collateral is
located, waivers of landlord's Liens from each lessor and other agreements from
such lessor and its lenders necessary or appropriate to ensure Administrative
Agent's perfected, first priority Lien (except as expressly set forth on
Schedule 1.1(b)) on the Collateral or Property affected thereby, the
Administrative Agent's access to such Collateral or Property and the right of
the Administrative Agent, the Lenders or their designee to succeed to the rights
of the Loan Party that is the lessee under the lease, in form and substance
reasonably satisfactory to the Administrative Agent;
(h) Mortgages. Subject to the provisions of Section 5.4, the Borrower
and its Subsidiaries shall execute Mortgages in favor of the Administrative
Agent for the benefit of the Lenders covering all real property owned by the
Borrower and its Subsidiaries, and with respect to each tract of real property
owned by the Borrower and its Subsidiaries shall provide to the Administrative
Agent a mortgagee policy of title insurance insuring the first Lien status of
each such Mortgage, a current survey certified to the Administrative Agent and
the Lenders, an appraisal complying with all applicable regulatory requirements,
and an environmental survey acceptable to the Administrative Agent.
(i) Insurance Certificates and Policies. Certificates evidencing all
insurance policies required by this Agreement and the other Loan Documents and,
if requested by the Administrative Agent, copies of all such insurance policies;
(j) Lien Searches. Lien searches in the name of each of the Loan
Parties (and in all names under which any of them has done business within the
last five years) in each jurisdiction where such Loan Party maintains an office
or has Property, showing no financing statements or other Lien instruments of
record affecting the Collateral except for Permitted Liens and Liens being
released prior to or concurrently with the making of the initial Loan;
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(k) Master Purchase Agreement. The Master Purchase Agreement shall have
been executed and delivered by all parties thereto, and the Administrative Agent
shall have received a photocopy of the Master Purchase Agreement as so executed
and delivered, certified by a Responsible Officer of the Borrower as being a
true and correct copy of such document as of the Closing Date;
(l) Capital Contribution. The Administrative Agent shall have received
evidence satisfactory to Administrative Agent of the contribution of at least
$22,500,000 in cash to the equity capital of the Borrower;
(m) Payment of Fees and Expenses. The Borrower shall have paid all fees
due on or before the Closing Date as specified in this Agreement or in the
Administrative Agent's Letter;
(n) Compliance with Laws. As of the Closing Date, the Borrower and the
other Loan Parties shall have complied in all material respects with all
Governmental Requirements necessary to consummate the transactions contemplated
by this Agreement and the other Loan Documents;
(o) No Prohibitions. No Governmental Requirement shall prohibit the
consummation of the transactions contemplated by this Agreement or any other
Loan Document, and no order, judgment or decree of any Governmental Authority or
arbitrator shall, and no litigation or other proceeding shall be pending or to
the Borrower's knowledge, threatened which would, enjoin, prohibit, restrain or
otherwise adversely affect in any material manner the consummation of the
transactions contemplated by this Agreement and the other Loan Documents or
otherwise have a Material Adverse Effect;
(p) Financial Statements. Copies of each of the financial statements
referred to in Section 7.2;
(q) Opinions of Counsel. Favorable legal opinions of counsel for the
Loan Parties, in form and substance and issued by law firms satisfactory to the
Administrative Agent, with respect to the Loan Parties and with respect to the
Loan Documents and a favorable legal opinion of regulatory counsel to the
Borrower and its Subsidiaries in form and substance satisfactory to the
Administrative Agent;
(r) Legal Matters and Loan Documents. All matters of a legal nature
relating to the Borrower and the Loan Documents shall be reasonably satisfactory
to the Administrative Agent and its counsel, and the Administrative Agent shall
have received all such other agreements, documents and instruments, each in form
and substance and executed and delivered by all parties, as the Administrative
Agent may have reasonably requested to receive;
(s) Business Plan. A copy of the Business Plan in form and substance
satisfactory to the Administrative Agent;
(t) Material Contracts. A true and correct and fully executed copy of
each of the Material Contracts in existence as of the Closing Date, in form and
substance satisfactory to the Administrative Agent;
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(u) Permits. Copies of all licenses and all other material Permits
affecting each Loan Party or any Subsidiary of such Loan Party in connection
with its businesses or any of the Properties owned or leased by it and in
connection with its businesses to be conducted and Properties to be owned or
leased as contemplated by the Business Plan, and evidence satisfactory to the
Administrative Agent that the Borrower and each Loan Party is able to conduct
its businesses as currently conducted and as to be conducted as contemplated by
the Business Plan with the use of such licenses and Permits in full force and
effect; and the Administrative Agent shall be satisfied that (i) the Borrower
and each Loan Party has the exclusive, unrestricted right to use each of such
licenses and Permits pursuant to license agreements or other agreements,
documents or instruments in form and substance reasonably satisfactory to the
Administrative Agent and (ii) the Borrower and each Loan Party has complied with
all initial and on-going conditions of the issuance and use of all such licenses
and Permits and all other terms and provisions thereof;
(v) Waivers and Consents. To the extent not referred to in clause (g)
preceding, copies of all material waivers and consents necessary for the
execution, delivery and performance by the Loan Parties of the Loan Documents to
which it is a party, including, without limitation, waivers or consents in
connection with the Master Purchase Agreement as the Administrative Agent may
require, which waivers and consents shall be certified by a Responsible Officer
of the Borrower as true and correct copies of such consents as of the Closing
Date;
(w) Regulatory Approvals. Evidence satisfactory to the Administrative
Agent that all filings, consents or approvals with or of Governmental
Authorities necessary to consummate the transactions contemplated by the Loan
Documents have been made and obtained, as applicable;
(x) No Material Adverse Change. As of the Closing Date, (i) no material
adverse change shall have occurred with respect to the financial condition,
results of operations, businesses, operations, capitalization, indebtedness,
liabilities, obligations, profitability or prospects or Properties or of the
general affairs or management of Holdings and its Subsidiaries, taken as a
whole, or of the Borrower, in each case since December 31, 1998 and (ii) the
Administrative Agent shall be satisfied that the financial performance of
Holdings and its Subsidiaries and of the Borrower to the Closing Date is not
materially different from the financial projections for such Person(s) through
the Closing Date that were previously submitted to the Administrative Agent;
(y) Accountant's Letter. A letter from Holdings authorizing the
independent public accountants of Holdings and its Subsidiaries to communicate
with the Administrative Agent and the Lenders and acknowledging reliance with
the Administrative Agent and the Lenders on past, present and future financial
statements;
(z) Solvency. A certificate from Holdings and the Borrower certifying
that each of Holdings and the Borrower is Solvent, together with contribution
agreements between and among Holdings and the Borrower;
(aa) Management Services Agreement. The Management Services Agreement
shall have been executed and delivered by all parties thereto, and the
Administrative Agent shall have received a photocopy of the Management Services
Agreement as so executed and delivered, certified by a Responsible Officer of
the Borrower as being a true and correct copy of such document as of the
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Closing Date and such document shall be in form and substance acceptable to the
Administrative Agent and the Lenders; and
(bb) Customer Data, Billing Records, Etc. Evidence satisfactory to the
Administrative Agent that the Borrower owns the customer data, customer lists,
billing records and other information related to the customers served by the
Network.
(cc) Post-Closing Letter Agreement. The Borrower shall have delivered
to the Administrative Agent, within 30 days after the Closing Date, the items
required by the letter agreement relating to post-closing requirements dated as
of the Closing Date by and between the Administrative Agent and the Borrower,
all in form and substance satisfactory to the Administrative Agent.
The Borrower shall deliver, or cause to be delivered, to the Administrative
Agent sufficient counterparts of each agreement, document or instrument to be
received by the Administrative Agent under this Section 6. 1 to permit the
Administrative Agent to distribute a copy of the same to each of the Lenders.
After the request of the Borrower, the Administrative Agent shall inform the
Borrower in writing as to the status of satisfaction of the conditions precedent
set forth in this Section 6.1.
Section 6.2 All Extensions of Credit. The obligation of each Lender to
make any Loan (including the initial Loan) under this Agreement is subject to
the continued satisfaction of each of the conditions precedent set forth in
Sections 6.1 and each of the following additional conditions precedent:
(a) No Default or Material Adverse Effect. No Default or Material
Adverse Effect shall have occurred and be continuing, or would result from such
Loan;
(b) Representations and Warranties. All of the representations and
warranties of the Borrower contained in this Agreement and in the other Loan
Documents shall be true and correct on and as of the date of such Loan with the
same force and effect as if such representations and warranties had been made on
and as of such date unless they relate solely to an earlier date;
(c) Use of Proceeds. The Borrower shall have certified to the
Administrative Agent that all proceeds of the Loans then being made by the
Lenders are, concurrently with the making of such Loans, being used by the
Borrower and the Leasing Subsidiary for the purposes specified in Section 2.10,
and the Borrower and the Leasing Subsidiary shall have delivered to the
Administrative Agent such further evidence thereof (if any) as the
Administrative Agent may reasonably request;
(d) Master Purchase Agreement. The Master Purchase Agreement shall not
have been terminated by the Borrower, the Leasing Subsidiary, TriVergent or
TriVergent Leasing, LLC;
(e) Full Disclosure. Neither the Borrower nor any other Loan Party has,
to the knowledge of the Borrower after due inquiry, failed to disclose to the
Administrative Agent or any Lender any material fact with respect to their
business or their respective financial conditions (including any contingent
liabilities), or has failed to disclose any information the absence of which
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makes any information previously disclosed to the Administrative Agent or any
Lender materially misleading;
(f) Ratio of Debt to Contributed Capital. After giving effect to the
requested Advance, the ratio of Total Debt to Contributed Capital of the
Borrower and its Consolidated Subsidiaries shall not exceed 2.0 to 1.0; and
(g) Additional Documentation. The Administrative Agent shall have
received such additional approvals, agreements, documents and instruments as the
Administrative Agent may reasonably request.
Each notice of borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower that the conditions precedent set
forth in this Section 6.2 have been satisfied (both as of the date of such
notice and, unless the Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing, as of the date of such borrowing).
Section 6.3 Closing Certificates. The Borrower shall, concurrently with
the Closing Date (with respect to the conditions precedent set forth in Sections
6.1) and concurrently with the date of the making of each other Loan, execute
and deliver to the Administrative Agent a certificate in form and substance
satisfactory to the Administrative Agent certifying as to the satisfaction of
each of the conditions precedent set forth in this Article 6 which are required
to be satisfied on or before such date (without regard to whether such matters
are, in fact, satisfactory to the Administrative Agent to the extent that such
satisfaction is required hereunder).
ARTICLE 7
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent and
the Lenders that the following statements are and, after giving effect to the
funding of the initial Loans, will be true, correct and complete:
Section 7.1 Existence. Each Loan Party (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (b) has all requisite power and authority to
own its Properties and carry on its business as now conducted, and (c) is
qualified to do business in all jurisdictions in which the nature of its
business makes such qualification necessary and where failure to so qualify
would have a Material Adverse Effect. Each of the Loan Parties has the power and
authority and legal right to execute, deliver and perform its obligations under
the Loan Documents to which it is or may become a party.
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Section 7.2 Financial Statements.
(a) The Borrower has delivered to the Administrative Agent and the
Lenders (i) the audited consolidated and consolidating financial statements
(including balance sheet and statements of income or operations, shareholders'
equity and cash flows) of Holdings and its Subsidiaries as of and for the fiscal
year ended December 31, 1999, and (ii) an unaudited pro forma balance sheet of
Holdings and its Subsidiaries dated as of the Closing Date which gives effect to
the initial Loans made on the Closing Date and the other transactions to occur
on such date. All financial statements required to be delivered to the
Administrative Agent in accordance with this Agreement (including, without
limitation, those referred to in the immediately preceding sentence) are or will
be when delivered (as applicable) true and correct, have been or will be (as
applicable) prepared in accordance with GAAP and fairly and accurately present
or will fairly and accurately present (as applicable), on a consolidated and
consolidating (where applicable) basis, the financial condition of Holdings, the
Borrower and their respective Consolidated Subsidiaries as of such dates and the
results of operations for the respective periods indicated therein. There has
not been, as of the Closing Date, any material adverse change in the financial
condition, results of operations, businesses, operations, Properties,
capitalization, assets, liabilities or prospects of Holdings and its
Subsidiaries, taken as a whole, or of the Borrower on an individual basis, or of
the Borrower and its Subsidiaries, taken as a whole, since December 31, 1999.
(b) The Business Plan (including, without limitation, the financial
projections contained therein) represents, as of the Closing Date, the good
faith, reasonable estimate of the Borrower and its senior management concerning
the financial condition and performance of the Borrower and its Subsidiaries for
the time period covered thereunder based upon the assumptions believed to be
reasonable at the time made.
Section 7.3 Corporate Action; No Breach. The execution, delivery and
performance by each of the Loan Parties of the Loan Documents to which it is or
may become a party and compliance with the terms and provisions hereof and
thereof have been duly authorized by all requisite entity action and do not and
will not (a) violate or conflict with, or result in a breach of, or require any
consent (except such consents as have been obtained) under (i) the articles of
incorporation, articles of organization, bylaws, regulations or other
constitutional documents of such Loan Party, (ii) any Governmental Requirement
(including, without limitation, the Communications Act, any rule or regulation
of the FCC or any rule or regulation of any federal or state public utility
commission or other Governmental Authority) or any order, writ, injunction or
decree of any Governmental Authority or arbitrator, or (iii) any material
agreement, document or instrument to which any Loan Party is a party or by which
any Loan Party or any of its Property is bound or subject, or (b) constitute a
default under any such material agreement, document or instrument, or result in
the creation or imposition of any Lien (except a Lien in favor of the
Administrative Agent for and on behalf of the Lenders under the Security
Documents as provided in Article 5) upon any of the revenues or Property of any
Loan Party.
Section 7.4 Operation of Business; Licenses. Each Loan Party and its
Subsidiaries (a) possesses or will timely possess all material Permits,
franchises, licenses and authorizations necessary or appropriate to conduct its
businesses substantially as now conducted and as to be conducted as contemplated
by the Business Plan, and (b) has complied with all initial and on-going
conditions to the issuance and use of all such Permits, franchises, licenses and
authorizations, except where failure to comply could not reasonably be expected
to have a Material Adverse Effect. None
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of such Persons is in violation of any such material Permits, franchises,
licenses or authorizations which could be expected to result in any termination
or cessation thereof. All of such material Permits, franchises, licenses and
authorizations required by any Governmental Requirement (including, without
limitation, the Communications Act, any rule or regulation of the FCC or any
state public utility commission) or issued by any Governmental Authority as of
the Closing Date are summarized by category or type, as relevant to the
operation of each Loan Party and its Subsidiaries, on Schedule 7.4. Such
licenses and Permits set forth on Schedule 7.4 have been duly issued by the
appropriate Governmental Authority (as applicable) and are in full force and
effect, and all provisions of such licenses and Permits have been complied with
in all material respects. As of the Closing Date, no such license or Permit is
subject to any pending or, to the knowledge of the Borrower, threatened
revocation or termination proceeding or action.
Section 7.5 Intellectual Property. The Intellectual Property owned or
used by each Loan Party in the operation of its business is set forth on
Schedule 7.5. Except as disclosed on Schedule 7.5, each Loan Party owns or
possesses (or will be licensed or have the full right to use) all Intellectual
Property which is necessary or appropriate for the operation of its businesses
as presently conducted and as proposed to be conducted, without any known
conflict with the rights of others. The consummation of the transactions
contemplated by this Agreement and the other Loan Documents will not materially
alter or impair, individually or in the aggregate, any of such rights of such
Persons. No product or service of any Loan Party infringes upon any Intellectual
Property of any other Person, and no claim or litigation is pending or, to the
knowledge of the Borrower, threatened against any such Person contesting its
right to sell or otherwise use any product or material or service which could
reasonably be expected to have a Material Adverse Effect. There is no violation
by any Loan Party of any right of such Person with respect to any material
Intellectual Property owned or used by such Person.
Section 7.6 Litigation and Judgments. Each material action, suit,
investigation or proceeding before or by any Governmental Authority or
arbitrator pending or, to the knowledge of the Borrower, threatened against or
affecting any Loan Party, or that relates to any of the Loan Documents as of the
Closing Date, is disclosed on Schedule 7.6. None of such actions, suits,
investigations or proceedings could, if adversely determined, reasonably be
expected to have a Material Adverse Effect. Except as may be disclosed on
Schedule 7.6, as of the Closing Date, there are no outstanding judgments against
any Loan Party. No Loan Party has received any opinion or memorandum or legal
advice from legal counsel to the effect that it is exposed to any liability or
disadvantage that could reasonably be expected to have a Material Adverse
Effect.
Section 7.7 Rights in Properties; Liens. Except as disclosed on
Schedule 7.7, none of the Loan Parties owns any right, title or interest in any
real Property. Each Loan Party has good and marketable title to or, with respect
to leasehold interests, valid leasehold interests in all of its material
Properties and assets, real and personal, including the material Properties,
assets and leasehold interests reflected in the financial statements described
in Section 7.2(a), except where failure to have good and marketable title or
valid leasehold interests could not reasonably be expected to have a Material
Adverse Effect, and none of the Properties or leasehold interests of any of the
Loan Parties is subject to any Lien, except Permitted Liens. Other than with
respect to Permitted Liens, no Loan Party has granted or voluntarily allowed or
permitted to exist any Lien to or in favor of any Person (other than the
Administrative Agent for and on behalf of the Lenders as security for the
Obligations)
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which attaches or relates to any of the Collateral. Other than with respect to
Permitted Liens expressly permitted hereunder to have a priority equal to or
prior to the Liens in favor of the Administrative Agent, the Liens on the
Collateral in favor of the Administrative Agent are perfected, first priority
Liens.
Section 7.8 Enforceability. The Loan Documents have been duly and
validly executed and delivered by each of the Loan Parties that is a party
thereto, and such Loan Documents constitute the legal, valid and binding
obligations of such Persons, enforceable against each such Person in accordance
with their respective terms, except as limited by bankruptcy, insolvency or
other laws of general application relating to the enforcement of creditors'
rights and general principles of equity.
Section 7.9 Approvals. No authorization, approval or consent of, and no
filing or registration with or notice to, any Governmental Authority (including
the FCC) or third party is or will be necessary for the execution, delivery or
performance by any Loan Party of any of the Loan Documents or any of the
Material Contracts to which it is or will be a party or for the validity or
enforceability thereof, except for such consents, approvals and filings as have
been validly obtained or made and are in full force and effect. The consummation
of the transactions contemplated by the Loan Documents and the Material
Contracts does not require the consent or approval of any other Person, except
such consents and approvals (a) as have been validly obtained and are in full
force and effect or (b) as to which the failure to obtain is not, individually
or in the aggregate, material. No Loan Party has failed to obtain any material
consent, approval, Permit, franchise, license or other authorization of any
Governmental Authority (including the FCC) necessary for the ownership or use of
any of its Properties, conduct of its business and performance of the Business
Plan.
Section 7.10 Debt. As of the Closing Date, the Borrower does not have
any Debt other than (a) the Obligations and (b) the Debt disclosed on Schedule
7.10 hereto.
Section 7.11 Taxes. Each of the Loan Parties has filed (a) all tax
returns (federal, state and local) and reports required to be filed including
all income, franchise, employment, Property and sales tax returns, and (b) all
other material tax returns and reports required to be filed except where failure
to file could not reasonably be expected to have a Material Adverse Effect, and
has paid all federal and other material taxes (shown on such returns or reports
to be due and payable), assessments, fees and other governmental charges levied
or imposed upon it or its Properties, income or assets otherwise due and payable
before they become delinquent, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP and no notice of Lien has been filed or
recorded or, as to such Loan Parties only, except where failure to pay could not
reasonably be expected to have a Material Adverse Effect. There is no proposed
tax assessment against any Loan Party which could, if the assessment were made,
reasonably be expected to have a Material Adverse Effect.
Section 7.12 Margin Securities. None of the Loan Parties is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulations T, U or X of the Board of Governors of the Federal
Reserve System), and no part of the proceeds of any Loan will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying margin stock.
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Section 7.13 ERISA. None of the Loan Parties or any ERISA Affiliate
maintains or contributes to, or has any obligation under, any Pension Plan other
than the Pension Plans identified on Schedule 7.13. Each Plan of the Loan
Parties is in compliance in all material respects with all applicable provisions
of ERISA and the Code. Neither a Reportable Event nor a Prohibited Transaction
has occurred within the last 60 months with respect to any Plan that could
reasonably be expected have a Material Adverse Effect. No notice of intent to
terminate a Pension Plan has been filed, nor has any Pension Plan been
terminated. No circumstances exist which constitute grounds entitling the PBGC
to institute proceedings to terminate, or appoint a trustee to administer, a
Pension Plan, nor has the PBGC instituted any such proceedings. None of the Loan
Parties, any Subsidiary of any Loan Party or any ERISA Affiliate has completely
or partially withdrawn from a Multiemployer Plan. Each Loan Party and its
Subsidiaries and each ERISA Affiliate have met their minimum funding
requirements under ERISA and the Code or with respect to all of their Pension
Plans subject to such requirements, and, as of the Closing Date except as
specified on Schedule 7.13, the present value of all vested benefits under each
funded Plan (exclusive of any Multiemployer Plan) does not and will not exceed
the fair market value of all such Plan assets allocable to such benefits, as
determined on the most recent valuation date of such Plan and in accordance with
ERISA. None of the Loan Parties, any Subsidiary of any Loan Party or any ERISA
Affiliate has incurred any liability to the PBGC under ERISA. No litigation is
pending or, to the Borrower's knowledge, threatened concerning or involving any
Plan that could reasonably be expected to have a Material Adverse Effect. There
are no unfunded or unreserved liabilities (on either a going-concern basis or a
wind-up basis) relating to any Plan that could, individually or in the
aggregate, have a Material Adverse Effect if the Borrower were required to fund
or reserve such liability in full. As of the Closing Date, no funding waivers
have been or will have been requested or granted under Section 412 of the Code
with respect to any Plan. No unfunded or unreserved liability for benefits under
any Plan or Plans (exclusive of any Multiemployer Plans) exceeds $100,000, with
respect to any such Plan, or $200,000 with respect to all such Plans, in the
aggregate as of the Closing Date, on either a going-concern basis or a wind-up
basis.
Section 7.14 Disclosure. To the knowledge of the Borrower after due
inquiry, no written statement, information, report, representation or warranty
made by any Loan Party in any Loan Document or furnished to the Administrative
Agent or any Lender by or on behalf of any Loan Party in connection with the
Loan Documents or any transaction contemplated hereby or thereby contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the statements herein or therein, in light of the
circumstances in which made, not misleading. There is no fact known to the
Borrower which has had a Material Adverse Effect, and there is no fact known to
the Borrower which could reasonably be expected in the future to have a Material
Adverse Effect except as may have been disclosed in writing to the
Administrative Agent.
Section 7.15 [Reserved.]
Section 7.16 Compliance with Laws. None of the Loan Parties or any
Subsidiary of any Loan Party is in violation of any Governmental Requirement
(including, without limitation, the Communications Act, any rule or regulation
of the FCC or any rule or regulation of any federal or state public utility
commission or other Governmental Authority), except for instances of
non-
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compliance that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 7.17 Investment Company Act. No Loan Party is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
Section 7.18 Public Utility Holding Company Act. No Loan Party is a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" or a "public utility" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
Section 7.19 Environmental Matters.
(a) Except for instances of noncompliance with or exceptions to any of
the following representations and warranties that could not have, individually
or in the aggregate, a Material Adverse Effect:
(i) Each Loan Party and its Subsidiaries and all of their
respective Properties and operations are in full compliance with all
Environmental Laws. The Borrower is not aware of, and no Loan Party or
any Subsidiary of a Loan Party has received written notice of, any
past, present or future conditions, events, activities, practices or
incidents which may interfere with or prevent the compliance or
continued compliance by the Loan Party and its Subsidiaries with all
Environmental Laws;
(ii) Each Loan Party and its Subsidiaries have obtained all
Permits that are required under applicable Environmental Laws, and all
such Permits are in good standing and all such Persons are in
compliance with all of the terms and conditions thereof;
(iii) No Hazardous Materials exist on, about or within or have
been (to the knowledge of the Borrower) or are being used, generated,
stored, transported, disposed of on or Released from any of the
Properties of each Loan Party and its Subsidiaries except in compliance
with applicable Environmental Laws. The use which each Loan Party and
its Subsidiaries make and intend to make of their respective Properties
will not result in the use, generation, storage, transportation,
accumulation, disposal or Release of any Hazardous Material on, in or
from any of their currently owned Properties except in compliance with
applicable Environmental Laws;
(iv) There are no conditions or circumstances associated with
the currently owned or leased Properties or operations of each Loan
Party and its Subsidiaries that could reasonably be expected to give
rise to any Environmental Liabilities or claims resulting in any
Environmental Liabilities;
(v) None of the Loan Parties and none of their respective
currently or previously owned or leased Properties or operations are
subject to any outstanding or, to the knowledge of the Borrower,
threatened order from or agreement with any Governmental Authority or
other Person or subject to any judicial or administrative proceeding
with respect to (A) any
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failure to comply with Environmental Laws, (B) any Remedial Action, or
(C) any Environmental Liabilities;
(vi) None of the Loan Parties is subject to, or has received
written notice of any claim from any Person alleging that it is or will
be subject to, any Environmental Liabilities;
(vii) None of the Properties of any of the Loan Parties is a
treatment facility (except for the recycling of Hazardous Materials
generated on-site and the treatment of liquid wastes subject to the
Clean Water Act or other applicable Environmental Law for temporary
storage of Hazardous Materials generated on-site prior to their
disposal off-site) or disposal facility requiring a permit under the
Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 et seq.,
regulations thereunder or any comparable provision of state law. The
Loan Parties are in compliance with all applicable financial
responsibility requirements of all Environmental Laws; and
(viii) None of the Loan Parties has failed to file any notice
required under applicable Environmental Law reporting a Release.
(b) No Lien arising under any Environmental Law that could have,
individually or in the aggregate, a Material Adverse Effect has attached to any
Property or revenues of any of the Loan Parties.
Section 7.20 Year 2000 Compliance. Each Loan Party has (a) initiated a
review and assessment of all areas within its and each of its Subsidiaries'
business and operations (including those affected by suppliers and vendors) that
could reasonably be expected to be relevant to whether the Loan Party and its
Subsidiaries are Year 2000 Compliant, (b) developed a plan and timeline for
ensuring that the Loan Party and its Subsidiaries are Year 2000 Compliant
(except for such instances as individually or in the aggregate would not have a
Material Adverse Effect) on a timely basis, and (c) to date, implemented that
plan in accordance with that timetable. Based upon the foregoing, each Loan
Party believes that it and its Subsidiaries are Year 2000 Compliant as of the
Closing Date except to the extent described in Schedule 8.13 and except for such
instances as individually or in the aggregate would not have a Material Adverse
Effect.
Section 7.21 Labor Disputes and Acts of God. Neither the business nor
the Properties of any of the Loan Parties are presently affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that is having or could reasonably be
expected to have a Material Adverse Effect.
Section 7.22 Material Contracts. Attached hereto as Schedule 7.22 is a
complete list, as of the Closing Date, of all Material Contracts of each Loan
Party, other than the Loan Documents. All of the Material Contracts are in full
force and effect and no Loan Party is in default under any Material Contract. To
the knowledge of the Borrower after due inquiry, no other Person that is a party
to a Material Contract is in default thereunder such that the default could
materially adversely affect any Loan Party's rights and benefits under such
Material Contract. None of the Material Contracts prohibits the transactions
contemplated under the Loan Documents. Except as may be provided on Schedule
7.22, each of the Material Contracts is currently in the name of a Loan Party.
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The Borrower has delivered to the Administrative Agent a complete and current
copy of each Material Contract (other than purchase orders entered into in the
ordinary course of business) existing on the Closing Date and, with respect to
each Material Contract (other than purchase orders entered into in the ordinary
course of business) entered into after the Closing Date, will deliver to the
Administrative Agent a complete and current copy of such Material Contract in a
reasonably prompt fashion after the creation thereof.
Section 7.23 Bank Accounts. As of the Closing Date, Schedule 7.23 sets
forth the account numbers and location of all bank accounts (including lock box
and special deposit accounts) of the Loan Parties.
Section 7.24 Outstanding Securities. All outstanding securities (as
defined in the Securities Act of 1933, as amended, or any successor thereto, and
the rules and regulations of the Securities and Exchange Commission thereunder)
of the Loan Parties have been offered, issued, sold and delivered in compliance
with all applicable Governmental Requirements.
Section 7.25 Solvency. Each of the Loan Parties, as a separate entity,
is Solvent, both before and after giving effect to the Loans.
Section 7.26 Employee Matters. Except as set forth on Schedule 7.26, as
of the Closing Date (a) no Loan Party nor any of their employees is subject to
any collective bargaining agreement, and (b) no petition for certification or
union election is pending with respect to the employees of any Loan Party, and
no union or collective bargaining unit has sought such certification or
recognition with respect to the employees of any such Person. There are no
strikes, slowdowns, work stoppages or controversies pending or, to the best
knowledge of the Borrower after due inquiry, threatened against, any Loan Party
or its respective employees which could have, either individually or in the
aggregate, a Material Adverse Effect. Except as set forth on Schedule 7.26, as
of the Closing Date, none of the Loan Parties is subject to an employment
contract.
Section 7.27 Insurance. Schedule 7.27 sets forth a complete and
accurate description of all policies of insurance that relate to the Collateral.
To the extent such policies have not been replaced, no notice of cancellation
has been received for such policies and the Borrower and the owner and holder of
each such policy are in compliance with all of the terms and conditions of such
policies.
Section 7.28 Common Enterprise. The Borrower and each Loan Party are
members of an affiliated group with each other such Person and are collectively
engaged in a common enterprise with one another. Each of the Loan Parties
expects to derive substantial benefit (and may reasonably be expected to derive
substantial benefit), directly and indirectly, from the Loans contemplated by
this Agreement, both in its separate capacity and as a member of an affiliated
and integrated group.
Section 7.29 Loan Parties; Capitalization. Schedule 7.29 attached
hereto contains, as of the Closing Date, complete and accurate information
regarding (a) the identities of each direct and indirect Subsidiary of the
Borrower, (b) the number of issued and outstanding shares (or other units) of
each class of Capital Stock issued by the Borrower and each of its direct and
indirect Subsidiaries and the identities of, and number and percentage of each
of such shares (or other units) held by, the
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owner(s) (both of record and beneficially) of such Capital Stock, and (c) the
jurisdiction of incorporation or other organization of each of the Loan Parties.
Section 7.30 Ownership of Customer Data, Billing Records, Etc. The
Borrower owns the customer data, customer lists, billing records and other
information related to the customers served by the Network.
ARTICLE 8
Affirmative Covenants
The Borrower covenants and agrees that, as long as the Obligations or
any part thereof are outstanding or any Lender has any Commitment hereunder, it
will perform and observe, or cause to be performed and observed, the following
covenants:
Section 8.1 Reporting Requirements. The Borrower will furnish (or will
cause to be furnished) to the Administrative Agent and each Lender:
(a) Annual Financial Statements. As soon as available, and in any event
within 120 days after the end of each fiscal year of the Borrower (90 days if
Holdings is a reporting company under the Securities Exchange Act of 1934),
beginning with the fiscal year ending December 31, 1999, either (i) a copy of
the Form 10-K (including all financial statements contained therein) filed by
Holdings as of the end of and for such fiscal year then ended, together with
consolidating schedules for each of Holdings and its Subsidiaries (including,
without limitation, the Borrower) with respect to the financial statements
contained therein, or (ii) a copy of the annual audit report of Holdings and its
Subsidiaries as at the end of such year and the related consolidated statements
of income or operations, shareholders' equity and cash flows for such fiscal
year, together with consolidating schedules for Holdings and its Subsidiaries
(including, without limitation, the Borrower) with respect to each of such
financial statements, in each case (other than with respect to the consolidating
schedules) setting forth in comparative form the figures for the previous fiscal
year, and accompanied by the opinion of independent certified public accountants
of recognized standing reasonably acceptable to the Administrative Agent, which
opinion shall state that such consolidated financial statements present fairly
the financial position and results of operations for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years and which
opinion shall not be qualified or limited because of a restricted or limited
examination by such accountant of any material portion of such Person's records;
(b) Quarterly Financial Statements. As soon as available, and in any
event within 45 days after the end of each of the quarters of each fiscal year
of the Borrower, beginning with the fiscal quarter ending March 31, 2000, either
(i) a copy of the Form 10-Q (including all financial statements contained
therein) filed by Holdings as of the end of and for such fiscal quarter then
ended, together with consolidating schedules for each of Holdings and its
Subsidiaries (including, without limitation, the Borrower) with respect to each
of the financial statements contained therein, or (ii) a copy of the unaudited
consolidated balance sheet of Holdings and its Subsidiaries as at the end of
such quarter and the related consolidated statements of income or operations,
shareholders'
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equity and cash flows for the period commencing on the first day and ending on
the last day of such quarter, together with unaudited consolidating schedules
for Holdings and its Subsidiaries (including, without limitation, the Borrower)
with respect to each of such financial statements, in each case (other than with
respect to the consolidating schedules) setting forth in comparative form the
quarterly operating budgets figures for the corresponding period of the
preceding fiscal year, and certified by an appropriate Responsible Officer of
the Borrower as fairly presenting, in accordance with GAAP, the financial
position and the results of operations of the Borrower and its Subsidiaries
(except for year-end adjustments and financial statement footnotes required by
GAAP);
(c) Compliance Certificate. Concurrently with the delivery of each of
the financial statements referred to in Sections 8.1(a) and 8.1(b), a Compliance
Certificate of a Responsible Officer of the Borrower substantially in the form
of Exhibit D hereto, appropriately completed, stating that, to the best of such
officer's knowledge, no Default has occurred and is continuing or, if a Default
has occurred and is continuing, stating the nature thereof and the action that
has been taken and is proposed to be taken with respect thereto;
(d) Notice of Actions, Suits or Proceedings. Promptly after the
commencement thereof, notice of all actions, suits and proceedings before any
Governmental Authority (including the FCC) or arbitrator affecting any Loan
Party or any license or Permit, which, if determined adversely to the Borrower
or any Subsidiary of the Borrower, could reasonably be expected to have a
Material Adverse Effect;
(e) Notice of Default, etc.. As soon as possible and in any event
immediately upon the Borrower's knowledge of the occurrence of any Default, a
written notice setting forth the details of such Default and the action that the
Borrower has taken and, if and to the extent known, proposes to take with
respect thereto;
(f) ERISA Plan Reports. Promptly after the filing or receipt thereof,
copies of all reports, including annual reports, and notices which the Borrower
or any of its ERISA Affiliates files with or receives from the PBGC or the U.S.
Department of Labor under ERISA with respect to a Pension Plan or for which the
Borrower has any potential liability; and as soon as possible and in any event
within five days after the Borrower knows or has reason to know that any Pension
Plan is insolvent, or that any Reportable Event or Prohibited Transaction has
occurred with respect to any Plan or Multiemployer Plan, or that the PBGC, or
the Borrower or any ERISA Affiliate has instituted or will institute proceedings
under ERISA to terminate or withdraw from or reorganize any Pension Plan, a
certificate of a Responsible Officer of the Borrower setting forth the details
as to such insolvency, withdrawal, Reportable Event, Prohibited Transaction or
termination and the action that the Borrower has taken and proposes to take with
respect thereto;
(g) Proxy Statements, Etc. As soon as available, one copy of each (if
any) financial statement, report, notice or proxy statement sent by Holdings to
its stockholders or other security holders generally and one copy of each (if
any) regular, periodic or special report (including, without limitation, reports
on Forms 10-K, 10-Q and 8-K), registration statement or prospectus filed by
Holdings with any securities exchange or the Securities and Exchange Commission
or any successor agency;
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(h) Insurance. Within 60 days prior to the end of each fiscal year of
the Borrower, a report in form and substance reasonably satisfactory to the
Administrative Agent summarizing all material insurance coverage maintained by
the Loan Parties as of the date of such report and all material insurance
coverage planned to be maintained by such Persons in the subsequent fiscal year;
(i) Plan Information. From time to time, as reasonably requested by the
Administrative Agent or any Lender, such books, records and other documents
relating to any Pension Plan as the Administrative Agent or any Lender shall
specify; prior to any termination, partial termination or merger of a Pension
Plan covering employees of the Borrower or any ERISA Affiliate, or a transfer of
assets of a Pension Plan covering employees of the Borrower or any ERISA
Affiliate, written notification thereof; promptly upon the Borrower's receipt
thereof, a copy of any determination letter or advisory opinion regarding any
Pension Plan received from any Governmental Authority and any amendment or
modification thereto as may be necessary as a condition to obtaining a favorable
determination letter or advisory opinion; and promptly upon the occurrence
thereof, written notification of any action requested by any Governmental
Authority to be taken as a condition to any such determination letter or
advisory opinion;
(j) Business Plan, etc. Not later than 15 days prior to the end of each
year, an update of the Business Plan in reasonable detail generally consistent
with the form and substance of the Business Plan provided to the Administrative
Agent on or before the Closing Date, which update shall reflect the
corresponding information for the prior year;
(k) Management Letters. Promptly upon each receipt thereof by any Loan
Party, a copy of any management letter or other written report submitted to such
Loan Party by independent certified public accountants with respect to the
business, condition (financial or otherwise), operations, prospects or
Properties of any Loan Party;
(l) Reports to Other Creditors. Promptly after the furnishing thereof,
a copy of any financial or other material statement or report furnished by the
Borrower or any Loan Party to any other party pursuant to the terms of any
indenture, loan, stock purchase or credit or similar agreement and not otherwise
required to be furnished to the Administrative Agent and the Lenders pursuant to
any other subsection of this Section 8.1;
(m) Notice of Material Adverse Effect. Within three Business Days after
the Borrower becomes aware thereof, written notice of any matter that could
reasonably be expected to have a Material Adverse Effect;
(n) Environmental Assessments and Notices. Promptly after the receipt
thereof, a copy of each environmental assessment (including any analysis
relating thereto) prepared with respect to any Property of the Borrower or any
Loan Party and each notice sent by any Governmental Authority relating to any
failure or alleged failure to comply with any Environmental Law or any liability
with respect thereto;
(o) Notices Under Material Contracts. Promptly after the receipt by the
Borrower or any Loan Party and promptly after the delivery by the Borrower or
any Loan Party, a copy of each written notice delivered under any Material
Contract which notice (i) relates to any alleged default
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under or noncompliance with or proposed termination of such Material Contract or
(ii) otherwise relates to any matter under any Material Contract which could
give rise to Material Adverse Effect;
(p) Accounts Receivable and Payable. As soon as available and in any
event within 45 days after the end of each fiscal quarter, an aged trial balance
of all then-existing Receivables and all then existing accounts payable of the
Borrower and its Subsidiaries;
(q) Accountant's Letter. A letter from Holdings authorizing the
independent public accountants of Holdings and its Subsidiaries to communicate
with the Administrative Agent and the Lenders and acknowledging reliance with
the Administrative Agent and the Lenders on past, present and future financial
statements;
(r) Quarterly Report as to Key Business Statistics. As soon as
available and in any event within 45 days after the end of each fiscal quarter,
reports as to key business and operational statistics of the Borrower,
including, the number of potential Access Lines, number of Access Lines, number
of DSL Lines, number of on-Network Access Lines and number of off-Network Access
Lines, and such related information as the Administrative Agent may reasonably
request from time to time; and
(s) General Information. Promptly, such other business, financial,
corporate affairs and other similar information concerning the Loan Parties
and/or the Collateral as the Administrative Agent or any Lender may from time to
time reasonably request.
Section 8.2 Maintenance of Existence; Conduct of Business. The Borrower
will, and will cause each Loan Party to, preserve and maintain its existence and
all of its leases, privileges, licenses, Permits, franchises, qualifications,
Intellectual Property, intangible Property and contract and other rights that
are necessary in the ordinary conduct of its business except to the extent that
failure to so preserve and maintain such could not reasonably be expected to
have a Material Adverse Effect. The Borrower will, and will cause each Loan
Party to, conduct its business in an orderly and efficient manner in accordance
with good business practices and the Business Plan.
Section 8.3 Maintenance of Properties and Permits. The Borrower will,
and will cause each Loan Party to, maintain, keep and preserve all of its
Properties and Permits necessary in the proper conduct of its businesses in good
repair, working order and condition (ordinary wear and tear excepted) and make
all necessary repairs, renewals and replacements and improvements thereof.
Section 8.4 Taxes and Claims. The Borrower will, and will cause each
Loan Party to, pay or discharge before becoming delinquent (a) all taxes,
levies, assessments and governmental charges imposed on it or its income or
profits or any of its Property and (b) all lawful claims for labor, material and
supplies, which, if unpaid, might become a Lien upon any of its Property;
provided, however, that neither the Borrower nor any Loan Party shall be
required to pay or discharge any tax, levy, assessment or governmental charge,
or claim for labor, material or supplies, whose amount, applicability or
validity is being contested in good faith by appropriate proceedings being
diligently pursued and for which adequate reserves have been established under
GAAP.
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Section 8.5 Insurance.
(a) The Borrower will, and will cause each Loan Party to, keep insured
by financially sound and reputable insurers all Property of a character usually
insured by responsible corporations engaged in the same or a similar business
similarly situated against loss or damage of the kinds and in the amounts
customarily insured against by such corporations or entities and carry such
other insurance as is usually carried by such corporations or entities, provided
that in any event the Borrower and the other Loan Parties will maintain:
(i) Property Insurance. Insurance against loss or damage
covering substantially all of the tangible real and personal Property
(including, without limitation, the Nortel Networks Equipment and
related equipment) and improvements of such Person by reason of any
Peril (as defined below) in such amounts (subject to any deductibles as
shall be satisfactory to the Administrative Agent) as shall be
reasonable and customary and sufficient to avoid the insured named
therein from becoming a co-insurer of any loss under such policy, but
in any event in such amounts as are reasonably available as determined
by the Borrower's independent insurance broker reasonably acceptable to
the Administrative Agent.
(ii) Automobile Liability Insurance for Bodily Injury and
Property Damage. Insurance in respect of all vehicles (whether owned,
hired or rented by such Person) at any time located at, or used in
connection with, its Properties or operations against liabilities for
bodily injury and Property damage in such amounts as are then customary
for vehicles used in connection with similar Properties and businesses,
but in any event to the extent required by applicable law.
(iii) Comprehensive General Liability Insurance. Insurance
against claims for bodily injury, death or Property damage occurring
on, in or about the Property (and adjoining streets, sidewalks and
waterways) of such Person, in such amounts as are then customary for
Property similar in use in the jurisdictions where such Properties are
located.
(iv) Worker's Compensation Insurance. Worker's compensation
insurance (including employers' liability insurance) to the extent
required by applicable law, which may be self-insurance to the extent
permitted by applicable law.
Without limiting the generality of the foregoing, the Borrower shall purchase
and maintain in effect all-risk, property and casualty insurance (including
casualty insurance covering earthquake and flood damage) reasonably acceptable
and in amounts reasonably acceptable to the Administrative Agent covering all
equipment purchased by the Borrower or any of its Subsidiaries from Nortel
Networks and liability insurance covering the operations of the Borrower and its
Subsidiaries. Such insurance shall be written by financially responsible
companies selected by the Borrower and having an A.M. Best Rating of "A-" or
better and being in a financial size category of "VI" or larger, or by other
companies reasonably acceptable to the Administrative Agent. Each policy
referred to in this Section 8.5 shall name the Administrative Agent (for the
benefit of itself and the other Lenders) as loss payee (with respect to casualty
insurance policies) and additional insured (with respect to liability insurance
policies) and shall provide that it will not be canceled, amended or reduced
except after not less than 30 days' prior written notice to the Administrative
Agent and shall also provide that the interests of the Administrative Agent and
the Lenders shall not be invalidated by any act or negligence of any Loan Party.
The Borrower will advise the Administrative Agent promptly of any
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policy cancellation, reduction or amendment. For purposes hereof, the term
"Peril" shall mean, collectively, fire, lightning, flood, windstorm, hail,
explosion, riot and civil commotion, vandalism and malicious mischief, damage
from aircraft, vehicles and smoke and other perils covered by the "all-risk"
endorsement then in use in the jurisdictions where the Properties of the Loan
Parties are located.
(b) The Borrower will cause each Insurance Recovery (other than any
portion of an Insurance Recovery payable to a landlord to repair or replace
Property leased by the Borrower or any of its Subsidiaries) payable by any
insurance company to be deposited promptly with the Administrative Agent as
security for the Obligations if a Default has then occurred and is continuing,
and will pay all Insurance Recoveries to the Administrative Agent for
application against the Obligations if and to the extent required in accordance
with Section 2.7(a).
(c) If a Default shall have occurred and be continuing, the Borrower
will cause all proceeds of insurance paid on account of the loss of or damage to
any Property of the Borrower or any Loan Party and all awards of compensation
for any Property of the Borrower or any Loan Party taken by condemnation or
eminent domain to be paid directly to the Administrative Agent to be applied
against or held as security for the Obligations, at the election of the
Administrative Agent and the Required Lenders.
Section 8.6 Inspection Rights. The Borrower will, and will cause each
of the Loan Parties to, permit representatives and agents of the Administrative
Agent and the Lenders, during normal business hours and upon reasonable notice
to the Borrower, to examine, copy and make extracts from its books and records,
to visit and inspect its Properties and to discuss its business, operations and
financial condition with its officers and independent certified public
accountants. The Borrower will authorize, and will cause each of the Loan
Parties to authorize, its accountants in writing (with a copy to the
Administrative Agent) to comply with this Section 8.6. The Administrative Agent
or its representatives may, at any time and from time to time at the Borrower's
expense, conduct field exams for such purposes as the Administrative Agent may
reasonably request.
Section 8.7 Keeping Books and Records. The Borrower will, and will
cause each of the Loan Parties to, maintain appropriate books of record and
account in accordance with GAAP consistently applied in which true, full and
correct entries will be made of all their respective dealings and business
affairs. If any changes in accounting principles from those used in the
preparation of the financial statements referenced in Section 8.1 are hereafter
required or permitted by GAAP and are adopted by the Borrower with the
concurrence of its independent certified public accountants and such changes in
GAAP result in a change in the method of calculation or the interpretation of
any of the covenants, standards or terms contained in this Agreement, the
Borrower and the Required Lenders agree to amend any such affected terms and
provisions so as to reflect such changes in GAAP with the result that the
criteria for evaluating the financial condition or performance of the Loan
Parties shall be the same after such changes in GAAP as if such changes in GAAP
had not been made.
Section 8.8 Compliance with Laws. The Borrower will, and will cause
each of the Loan Parties to, comply with all Governmental Requirements
applicable to the operation of its business (including, without limitation, the
Communications Act, any rule or regulation of the FCC or any
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rule or regulation of any federal or state public utility commission or other
Governmental Authority), except for instances of noncompliance that could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section 8.9 Compliance with Agreements. The Borrower will, and will
cause each of the Loan Parties to, comply with all agreements, documents and
instruments binding on it or affecting its Properties or business, including,
without limitation, all Material Contracts, except for instances of
noncompliance that could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
Section 8.10 Further Assurances. The Borrower will execute and deliver
and will cause each of the Loan Parties to execute and deliver such further
agreements, documents and instruments (including, without limitation, financing
statements and amendments to financing statements specifying each item of the
Collateral and the serial number therefor) and take such further action as may
be reasonably requested by the Administrative Agent to carry out the provisions
and purposes of this Agreement and the other Loan Documents, to evidence the
Obligations and to create, preserve, maintain and perfect the Liens of the
Administrative Agent for the benefit of itself and the Lenders in and to the
Collateral and the required priority of such Liens.
Section 8.11 ERISA. The Borrower will, and will cause each of its ERISA
Affiliates to, comply with all minimum funding requirements and all other
material requirements of ERISA so as not to give rise to any material liability
thereunder.
Section 8.12 Non-Consolidation. The Borrower will, and will cause each
other Loan Party to: (a) maintain entity records and books of account separate
from those of any other entity which is an Affiliate of such Loan Party; (b) not
commingle its funds or assets with those of any other entity which is an
Affiliate of such Loan Party; and (c) provide that its board of directors or
other analogous governing body will hold all appropriate meetings to authorize
and approve such Person's entity actions, which meetings will be separate from
those of other Loan Parties.
Section 8.13 Year 2000 Compliance. Except as set forth in Schedule 8.13
and except for such instances as individually or in the aggregate would not have
a Material Adverse Effect, all of the material computer software, computer
hardware (whether general or special purpose), and other similar or related
items of automated, computerized or software systems that are used or relied
upon by the Borrower or any Loan Party in the conduct of its business are and
will continue to be Year 2000 Compliant and, without limiting the generality of
the foregoing, will not malfunction, will not cease to function, will not
generate incorrect data and will not produce incorrect results when processing,
providing or receiving (a) date-related data into and between the twentieth and
twenty-first centuries and (b) date-related data in connection with any valid
date in the twentieth and twenty-first centuries. The Borrower will promptly
notify the Administrative Agent in the event the Borrower discovers or
determines that any computer application (including those of its suppliers and
vendors) that is material to its or any Loan Party's business and operations
will not be Year 2000 Compliant on a timely basis.
Section 8.14 Trade Accounts Payable. The Borrower will, and will cause
the other Loan Parties to, pay all trade accounts payable before the same become
more than 90 days past due, except
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(a) trade accounts payable contested in good faith or (b) trade accounts payable
in an aggregate amount not to exceed $100,000 at any time outstanding and with
respect to which no proceeding to enforce collection has been commenced or, to
the knowledge of the Borrower, threatened.
Section 8.15 Delivery of Certain Amendments and Material Contracts. The
Borrower will, and will cause the other Loan Parties to, promptly deliver to the
Administrative Agent any amendment, modification or supplement to (a) the
articles of incorporation, articles of organization, bylaws, regulations or
other constitutional documents of the Borrower or any other Loan Party, (b) any
Material Contract to which it is a party or any license or Permit which it
possesses; provided, however, that any such amendment, modification, or
supplement to be subject to the provisions of Section 9.15 hereof. The Borrower
will, and will cause each of its Subsidiaries to, deliver to the Administrative
Agent, promptly after such Material Contract comes into existence, a true and
correct copy of each Material Contract in existence which is not identified on
Schedule 7.22.
Section 8.16 Interest Rate Protection. The Borrower shall, commencing
on or before the thirtieth (30th) day after the Closing Date, maintain in full
force and effect through the Maturity Date one or more Interest Rate Protection
Agreements reasonably satisfactory to the Administrative Agent with one or more
counterparties rated in one of the three of the highest rating categories of
Standard & Poors Corporation or Xxxxx'x Investors Services, Inc. and otherwise
reasonably acceptable to the Administrative Agent, that enable the Borrower to
fix or place a limit upon a rate of interest with respect to not less than an
aggregate notional amount (not less than zero) equal to fifty percent (50%) of
Total Debt minus the amount of such Total Debt with a fixed interest rate. The
maximum amount for which interest may be fixed or limited under all such
Interest Rate Protection Agreements shall not exceed one hundred percent (100%)
of the Total Debt of the Borrower and its Subsidiaries bearing interest at a
variable rate.
Section 8.17 Ownership of Telecommunications Assets and
Telecommunications Business. The Borrower and/or its Subsidiaries shall, on or
prior to the Closing Date and at all times thereafter during the term of the
Loans, and except as set forth on Schedule 8.17 or as may be provided to the
Borrower by TriVergent pursuant to the Management Services Agreement, own all
Telecommunication Assets used or useful in the operation of the
Telecommunications Business of the Borrower and its Subsidiaries.
Section 8.18 Unified Cash Management System. The Borrower will, and
will cause each of its Subsidiaries to, on and after the Closing Date, maintain
a unified cash management system and the Borrower will ensure, and will cause
each of its Subsidiaries to ensure, that all cash proceeds (including, without
limitation, proceeds of all Collateral) are (a) deposited directly, as received,
into a lockbox or collection account of the Borrower or such Subsidiary (as
applicable) and (b) on a daily basis after such deposit, transferred into a
lockbox or concentration account of the Borrower or such Subsidiary (as
applicable). The Borrower will, and will cause each of its Subsidiaries to,
maintain in effect an agreement governing each of its lockbox accounts,
collection accounts and/or concentration accounts and pledging such accounts to
the Administrative Agent, in a form approved by the Administrative Agent with a
depository bank satisfactory to the Administrative Agent.
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ARTICLE 9
Negative Covenants
The Borrower covenants and agrees that, as long as the Obligations or
any part thereof are outstanding or any Lender has any Commitment hereunder, it
will perform and observe, or cause to be performed and observed, the following
covenants:
Section 9.1 Debt. The Borrower will not, and will not permit any
Subsidiary of the Borrower to, incur, create, assume or permit to exist any
Debt, except:
(a) Debt to the Lenders pursuant to the Loan Documents;
(b) unsecured Debt under Interest Rate Protection Agreements entered
into in compliance with Section 8.16; provided, however, that Debt thereunder
may be secured if such Debt constitutes a part of the Obligations;
(c) (i) existing Debt in the principal amounts and as otherwise
described on Schedule 7.10 hereto and renewals, extensions or refinancings of
such Debt which do not increase the outstanding principal amount of such Debt,
which do not shorten the maturity of any principal of such Debt and the terms
and provisions of which are not materially more onerous than the terms and
conditions of such Debt on the Closing Date, (ii) purchase money Debt (including
Capital Lease Obligations) secured by purchase money Liens, which Debt and Liens
are permitted under and meet all of the requirements of clause (g) of the
definition of Permitted Liens contained in Section 1.1, and (iii) Debt owed to
the Borrower by the Leasing Subsidiary, which Debt has been incurred to finance
the Leasing Subsidiary's purchase Nortel Networks Goods and Services under the
Master Purchase Agreement; and
(d) liabilities of the Borrower in respect of unfunded vested benefits
under any Plan if and to the extent that the existence of such liabilities will
not constitute, cause or result in a Default.
Section 9.2 Limitation on Liens. The Borrower will not, and will not
permit any Subsidiary of the Borrower to, incur, create, assume or permit to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, except Permitted Liens and will not enter into any negative
pledge or similar arrangement in favor of other creditors (other than such
negative pledge or similar arrangement under purchase money Debts and Capital
Lease Obligations with respect to the assets financed or secured thereby).
Section 9.3 Mergers, Etc. The Borrower will not, and will not permit
its Subsidiaries to, (a) become a party to a merger or consolidation, (b)
wind-up, dissolve or liquidate itself, or (c) purchase or acquire all or a
material or substantial part of the business or Properties of any Person;
provided, however, that any Subsidiary of the Borrower may merge with and into
the Borrower or a Subsidiary of the Borrower if the Borrower or a Subsidiary of
the Borrower is the surviving entity, provided that no consideration is given by
the surviving entity in such merger other than the issuance of any Capital Stock
of the surviving entity. The surviving entity in any such merger shall
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ratify the Security Documents and other obligations of the non-surviving entity
under the Loan Documents.
Section 9.4 Restricted Payments. The Borrower will not, and will not
permit any Subsidiary of the Borrower to, make any Restricted Payments, except:
(a) Subsidiaries of the Borrower may make Restricted Payments to the
Borrower;
(b) the Borrower and its Subsidiaries may make temporary loans or
advances to employees, officers and directors of the Loan Parties in the
ordinary course of business that do not exceed $250,000 in aggregate amount at
any time outstanding; or
(c) Salaries and advances paid in the ordinary course of business;
provided, however, that no Restricted Payments may be made pursuant to the
preceding clause (a) if a Default exists at the time of such Restricted Payment
or would result therefrom.
Section 9.5 Investments. The Borrower will not, and will not permit any
Subsidiary of the Borrower to, make or permit to remain outstanding any advance,
loan, extension of credit or capital contribution to or investment in any
Person, or purchase or own any stock, bonds, notes, debentures or other
securities of any Person, or be or become a joint venturer with or partner of
any Person (all such transactions being herein called "Investments"), except:
(a) Investments in obligations or securities received in settlement of
debts (created in the ordinary course of business) owing to the Borrower or
another Loan Party;
(b) existing Investments identified on Schedule 9.5 hereto;
(c) Investments in securities issued or guaranteed by the U.S. or any
agency thereof with maturities of one year or less from the date of acquisition;
(d) Investments in certificates of deposit and Eurodollar time deposits
with maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any Lender or with any domestic commercial bank
having capital and surplus in excess of $500,000,000;
(e) Investments in repurchase obligations with a term of not more than
seven days for securities of the types described in clause (c) preceding with
any Lender or with any domestic commercial bank having capital and surplus in
excess of $500,000,000;
(f) Investments in commercial paper of a domestic issuer rated A-1 or
better or P-1 or better by Standard & Poor's Corporation or Xxxxx'x Investors
Services, Inc., respectively, maturing not more than 270 days from the date of
acquisition;
(g) (i) Investments (other than intercompany Debt referred to in clause
(h) below) by the Borrower in its Subsidiaries existing on the Closing Date or
required to occur in accordance with this
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Agreement, and (ii) additional Investments by the Borrower in its Subsidiaries
made after the Closing Date which, together with intercompany Debt referred to
in clause (h) below, does not in the aggregate exceed $250,000;
(h) intercompany Debt (in addition to the obligations of the Borrower
under the Master Asset Lease Agreement) which, together with Investments
referred to in clause (g)(ii) above, does not in the aggregate exceed $250,000
provided that payment of such Debt shall be fully subordinated to the
Obligations;
(i) Interest Rate Protection Agreements entered into in compliance with
Section 8.16; or
(j) temporary loans or advances to employees, officers and directors of
the Loan Parties in the ordinary course of business that do not exceed $250,000
at any time outstanding in aggregate amount;
provided, however, that no Investments may be made by the Borrower pursuant to
clauses (g), (h) or (k) preceding if a Default exists at the time of such
Investment or would result therefrom.
Section 9.6 Limitation on Operating Leases of the Borrower. The
Borrower will not, and will not permit any Subsidiary of the Borrower to, at any
time enter into or be a party to operating leases that in the aggregate obligate
the Borrower and/or its Subsidiaries to make annual payments in excess of
$500,000; provided, however, that Borrower may enter into and perform the Master
Asset Lease Agreement.
Section 9.7 Transactions with Affiliates. The Borrower will not, and
will not permit any Subsidiary of the Borrower to, enter into any transaction,
including, without limitation, the purchase, sale or exchange of Property or the
rendering of any service, with any Affiliate of the Borrower except in the
ordinary course of and pursuant to the reasonable requirements of the Borrower's
business and upon fair and reasonable terms no less favorable to the Borrower
than would be obtained in a comparable arms-length transaction with a Person not
an Affiliate of the Borrower; provided, however, that transactions between or
among the Borrower and its Affiliates may be on terms more favorable to the
Borrower than would be obtained in a comparable arms-length transaction with a
Person not an Affiliate of the Borrower and provided, further, that the Borrower
and the Leasing Subsidiary may enter into and perform the Master Asset Lease
Agreement. In addition to the foregoing, no transactions between or among (a)
Affiliates of the Borrower and (b) the Borrower and its Subsidiaries relating to
the purchases of equipment from any such Affiliate or the provision of services
by any such Affiliate shall be permitted unless the same are purchased or
provided at the cost to such Affiliate.
Section 9.8 Disposition of Property. The Borrower will not, and will
not permit any Subsidiary of the Borrower to, sell, lease, assign, transfer or
otherwise dispose of any of its Property (including, without limitation, the
Nortel Networks Goods and Services), except (subject to the succeeding proviso):
(a) dispositions of Inventory (other than equipment) in the ordinary
course of business;
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(b) Asset Dispositions of Property, other than accounts and
Receivables, by the Borrower made in the ordinary course of business if each of
the following conditions have been satisfied: (i)(A) the Net Proceeds from any
single Asset Disposition or series of related Asset Dispositions in any fiscal
year of the Borrower do not exceed $250,000 and (B) the Borrower receives fair
consideration for such assets and (ii) no Default exists at the time of or will
result from such Asset Disposition;
(c) Asset Dispositions of Property, other than equipment, accounts and
Receivables, by the Borrower to any Wholly-Owned Subsidiary of the Borrower if
each of the following conditions have been satisfied: (i) the assets sold,
disposed of or otherwise transferred to a Wholly-Owned Subsidiary of the
Borrower shall continue to be subject to a perfected, first priority Lien
(except for Permitted Liens, if any, which are expressly permitted by the Loan
Documents to have priority over the Liens in favor of the Administrative Agent)
in favor of the Administrative Agent and the Lenders, and (ii) no Default exists
at the time of or will result from such Asset Disposition; and
(d) dispositions of Property no longer used or useful in the ordinary
course of business, including, without limitation, dispositions of equipment
being exchanged or replaced with comparable or better equipment;
provided, however, that the Borrower will not, and will not permit the Leasing
Subsidiary or any other Subsidiary of the Borrower to, sell, lease, assign,
transfer or otherwise dispose of any of the equipment that constitutes Nortel
Networks Goods and Services without the prior written consent of the Required
Lenders.
Section 9.9 Sale and Leaseback. The Borrower will not, and will not
permit any Subsidiary of the Borrower to, enter into any arrangement with any
Person pursuant to which it leases from such Person real or personal Property
that has been or is to be sold or transferred, directly or indirectly, by it to
such Person.
Section 9.10 Lines of Business. The Borrower will not, and will not
permit any Subsidiary of the Borrower to, engage in any line or lines of
business activity other than the businesses described in and contemplated by the
Business Plan and the conduct of related Telecommunications Businesses.
Section 9.11 Environmental Protection. The Borrower will not, and will
not permit any Loan Party to, (a) use (or permit any tenant to use) any of its
Properties for the handling, processing, storage, transportation or disposal of
any Hazardous Material except in compliance with applicable Environmental Laws,
(b) generate any Hazardous Material except in compliance with applicable
Environmental Laws, (c) conduct any activity that is likely to cause a Release
or threatened Release of any Hazardous Material in violation of any
Environmental Law, or (d) otherwise conduct any activity or use any of its
Properties in any manner, that violates or is likely to violate any
Environmental Law or create any Environmental Liabilities for which the Borrower
or any Loan Party would be responsible, except for circumstances or events
described in clauses (a) through (d) preceding that could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
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Section 9.12 Intercompany Transactions. Except as may be expressly
permitted or required by the Loan Documents, the Borrower will not, and will not
permit any Loan Party to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Loan Party to (a) pay dividends or make any other distribution to the
Borrower or any of its Subsidiaries in respect of such Subsidiary's Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, (b) pay any indebtedness owed to the Borrower or any of its
Subsidiaries, (c) make any loan or advance or capital contribution to the
Borrower or any of its Subsidiaries, or (d) sell, lease or transfer any of its
Property to the Borrower or any of its Subsidiaries.
Section 9.13 Management Fees. The Borrower and its Subsidiaries shall
not pay any management fees; provided, however, that so long as no Default has
occurred and is continuing, the Borrower may pay management fees to Holdings or
a subsidiary of Holdings in an aggregate amount per fiscal quarter not to exceed
the amount set forth in the Management Agreement as in effect on the date of
this Agreement and may reimburse reasonable out-of-pocket expenses advanced by
Holdings or a subsidiary of Holdings to Borrower.
Section 9.14 Master Purchase Agreement. None of the Borrower, the
Leasing Subsidiary, TriVergent or TriVergent Leasing, LLC will terminate the
Master Purchase Agreement prior to the later to occur of the Amortization
Commencement Date or the satisfaction in full of the purchase commitments under
the Master Purchase Agreement.
Section 9.15 Modification of Certain Agreements. The Borrower will not,
and will not permit any Loan Party to, consent to or implement any termination,
amendment, modification, supplement or waiver of (a) the articles of
incorporation, articles of organization, bylaws, regulations or other
constitutional documents of the Borrower or any other Loan Party, (b) the
Business Plan or (c) any Material Contract to which it is a party, or any Permit
which it possesses; provided, however, that the Loan Parties may amend or modify
(i) the documents referred to in clause (a) preceding if and to the extent that
such amendment or modification is not substantive or material and could not be
adverse to any Loan Party, the Administrative Agent or any Lender, provided,
however, that none of such documents referred to in clause (a) preceding may be
amended or modified as they relate to, in any way, any capital contribution to
the Borrower or any obligation or agreement relating thereto, (ii) the Business
Plan with the prior written consent of the Administrative Agent and the Required
Lenders, which consent shall not be unreasonably withheld if such amendment or
modification could not be adverse to any Loan Party, the Administrative Agent or
any Lender, and (iii) the Material Contracts referred to in clause (c) preceding
if and to the extent that such amendment or modification could not reasonably be
expected to be materially adverse to any Loan Party, the Administrative Agent or
any Lender.
Section 9.16 ERISA. The Borrower will not, and will not permit any Loan
Party to:
(a) allow, or take (or permit any ERISA Affiliate to take) any action
which would cause, any unfunded or unreserved liability for benefits under any
Plan (exclusive of any Multiemployer Plan) to exist or to be created that
exceeds $100,000 with respect to any such Plan or $200,000 with respect to all
such Plans in the aggregate on either a going concern or a wind-up basis; or
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(b) with respect to any Multiemployer Plan, allow, or take (or permit
any ERISA Affiliate to take) any action which would cause, any unfunded or
unreserved liability for benefits under any Multiemployer Plan to exist or to be
created, either individually as to any such Plan or in the aggregate as to all
such Plans, that could, upon any partial or complete withdrawal from or
termination of any such Multiemployer Plan or Plans, have a Material Adverse
Effect.
Section 9.17 No Prepayment of Debt, Etc. The Borrower will not, and
will not permit any Subsidiary of the Borrower to, directly or indirectly, make
any optional prepayment or distribution on account of, or voluntarily purchase,
acquire, redeem or retire, any Debt, prior to 30 days before its originally
stated maturity (or its stated maturity as of the Closing Date in the case of
Debt outstanding on the Closing Date), or in the case of interest, its stated
due date, or directly or indirectly become obligated to do any of the foregoing
by amending the terms thereof or otherwise, except for:
(a) prepayments of the Loans or other Obligations pursuant to or as
permitted by the Loan Documents;
(b) prepayments made with the proceeds of new Debt incurred for the
purpose of refinancing the Debt being prepaid, provided that (i) no portion of
such new Debt matures or is required to be prepaid, purchased or otherwise
retired earlier than the corresponding portion of the Debt being prepaid
(including as a result of any prepayment or redemption upon the occurrence of a
condition), (ii) such new Debt (A) is subordinated to the Obligations to at
least the same extent as the Debt being refinanced if such Debt is subordinated
debt or (B) is permitted in accordance with this Agreement, and (iii) no Default
or Event of Default then exists or would result from such prepayment or
refinancing; and
(c) prepayments of trade payables incurred in the ordinary course of
the Borrower's or any Subsidiary's business and not overdue by more than 120
days.
In addition, the Borrower will not, and will not permit any Subsidiary of the
Borrower to, prepay any rent or other obligations under any operating lease or
any other Material Contract prior to 90 days before the originally stated due
date therefor (or the due date therefor as of the Closing Date in the case of
operating leases or Material Contracts in existence on the Closing Date).
ARTICLE 10
Financial Covenants
Section 10.1 Total Debt to Total Capitalization. The Borrower will not
permit its ratio of (a) Total Debt outstanding at the end of any of the calendar
quarters set forth on on Column 1 of Schedule 10 to (b) Total Capitalization on
such date, to exceed the ratio set forth opposite such date on such Schedule.
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Section 10.2 Total Debt to Annualized EBITDA. The Borrower will not
permit its ratio of (a) Total Debt outstanding at the end of any of the calendar
quarters set forth on Column 2 of Schedule 10 to (b) Annualized EBITDA for the
calendar quarter ending on such date, to exceed the ratio set forth opposite
such date on such Schedule.
Section 10.3 Annualized EBITDA. The Borrower will not permit Annualized
EBITDA at the end of any of the calendar quarters set forth on Column 3 of
Schedule 10 to be less than the amount set forth opposite such date on such
Schedule.
Section 10.4 Fixed Charge Coverage. The Borrower will not permit its
ratio of (a) Annualized EBITDA during any of the calendar quarters ending on any
of the dates set forth on Column 4 of Schedule 10 plus cash balances on such
date to (b) Consolidated Fixed Charges for the immediately succeeding four
calendar quarters, to be less than the ratio set forth opposite such date on
such Schedule.
Section 10.5 Interest Coverage. The Borrower will not permit its ratio
of (a) Annualized EBITDA during any of the calendar quarters ending on any of
the dates set forth on Column 5 of Schedule 10 plus cash balances on such date
to (b) Consolidated Interest Expense for the immediately succeeding four
calendar quarters, to be less than the ratio set forth opposite such date on
such Schedule.
Section 10.6 Capital Expenditures. The Borrower will not permit
cumulative Capital Expenditures for the period beginning on the Closing Date and
ending on any of the dates set forth on Column 6 of Schedule 10 to exceed the
amount set forth opposite such date on such Schedule.
Section 10.7 Quarterly Minimum Revenue Levels. The Borrower will not
permit its Gross Revenues for any of the calendar quarters ending on any of the
dates set forth on Column 7 of Schedule 10 to be less than the amount set forth
opposite such date on such Schedule.
Section 10.8 Access Lines. The Borrower will not permit the number of
the total Access Lines in service at the end of any of the calendar quarters
ending on any of the dates set forth on Column 8 of Schedule 10 to be less than
the amount set forth opposite such date on such Schedule.
ARTICLE 11
Default
Section 11.1 Events of Default. Each of the following shall be deemed
an "Event of Default":
(a) (i) The Borrower shall fail to pay, repay or prepay when due, any
amount of principal or interest owing to the Administrative Agent or any Lender
pursuant to this Agreement or any other Loan Document, or (ii) the Borrower
shall fail to pay, within two Business Days after the due date thereof, any fee,
expense or other amount or other Obligation owing to the Administrative Agent or
any Lender pursuant to this Agreement or any other Loan Document.
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(b) Any representation or warranty made or deemed made by or on behalf
of any Loan Party in any Loan Document or in any certificate, report, notice or
financial statement furnished at any time in connection with this Agreement or
any other Loan Document shall be false, misleading or erroneous in any material
respect when made or deemed to have been made.
(c) Any Loan Party shall fail to perform, observe or comply with any
covenant, agreement or term contained in Section 5.1, 8.1(e), 8.2, Article 9 or
Article 10; any Loan Party shall fail to perform, observe or comply with any
covenant, agreement or term contained in Article 5 or Section 8.1, 8.3, 8.5,
8.6, 8.7, 8.8, 8.9, 8.10, 8.13 and 8.15, and such failure is not remedied or
waived within ten days after such failure commenced; or any Loan Party shall
fail to perform, observe or comply with any other covenant, agreement or term
contained in this Agreement or any other Loan Document (other than covenants to
pay the Obligations) and such failure is not remedied or waived within the
earlier to occur of 30 days after such failure commenced or, if a different
grace period is expressly made applicable in such other Loan Documents, such
applicable grace period.
(d) Any Loan Party, Holdings or TriVergent ceases to be Solvent or
shall admit in writing its inability to, or be generally unable to, pay its
debts as such debts become due.
(e) Any Loan Party, Holdings or TriVergent shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee, liquidator or administrator of itself or of all or a
substantial part of its Property, (ii) admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due, subject to any
applicable grace periods, (iii) make a general assignment for the benefit of its
creditors, (iv) commence a voluntary case under the United States Bankruptcy
Code (as now or hereafter in effect, the "Bankruptcy Code"), (v) file a petition
seeking to take advantage of any other law providing for the relief of debtors
or relating to bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement or winding up, or composition or readjustment of debts, (vi) fail to
controvert in a timely or appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the Bankruptcy Code or
other applicable Governmental Requirement, (vii) dissolve, or (viii) take any
entity action for the purpose of effecting any of the foregoing.
(f) A proceeding or case shall be commenced, without the application or
consent of any Loan Party, Holdings or TriVergent in any court of competent
jurisdiction, seeking (i) the liquidation, reorganization, dissolution,
arrangement, winding up, or composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, custodian, examiner, liquidator,
administrator or the like of it or of all or any substantial part of its
Property, or (iii) similar relief in respect of it, under any law providing for
the relief of debtors or relating to bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement or winding up, or composition or
readjustment of debts, and such proceeding or case shall continue undismissed,
or an order, judgment or decree approving or ordering any of the foregoing shall
be entered and continue unstayed and in effect, for a period of 60 or more days;
or an order for relief shall be entered in an involuntary case under the
Bankruptcy Code against any Loan Party, Holdings or TriVergent and shall
continue unstayed and in effect for any period of 60 consecutive days.
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(g) Any Loan Party, Holdings or TriVergent shall fail to discharge
within a period of 30 days after the commencement thereof any attachment,
sequestration, forfeiture or similar proceeding or proceedings involving an
aggregate amount in excess of $250,000 against any of its Properties.
(h) A final judgment or judgments for the payment of money in excess of
$250,000 in the aggregate shall be rendered by a court or courts against any
Loan Party, Holdings or TriVergent on claims not covered by insurance and the
same shall not be discharged, bonded or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof and any Loan Party,
Holdings or TriVergent shall not, within said period of 30 days, or such longer
period during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal.
(i) Any Loan Party, Holdings or TriVergent shall fail to pay when due
any principal of or interest on any Debt of such Person (other than the
Obligations) having (either individually or in the aggregate) a principal amount
of at least $1,000,000 or the maturity of any such Debt shall have been
accelerated, or any such Debt shall have been required to be prepaid prior to
the stated maturity thereof, or any event shall have occurred (and shall not
have been waived or otherwise cured) that permits (or, with the giving of notice
or lapse of time or both, would permit) any holder or holders of such Debt or
any Person acting on behalf of such holder or holders to accelerate the maturity
thereof or require any such prepayment.
(j) This Agreement or any other Loan Document shall cease to be in full
force and effect or shall be declared null and void or the validity or
enforceability thereof shall be contested or challenged by any Loan Party or any
Loan Party shall deny that it has further liability or obligation under any of
the Loan Documents; or any Lien created or purported to be created by the Loan
Documents shall for any reason cease to be or fail to be a valid, first priority
perfected Lien upon any of the Collateral purported to be covered thereby (other
than in the case of a Permitted Lien expressly permitted hereunder to have a
priority equal to or prior to the Liens in favor of the Administrative Agent).
(k) Any of the following events shall occur or exist with respect to
any Loan Party or any ERISA Affiliate: (i) any Prohibited Transaction involving
any Plan; (ii) any Reportable Event with respect to any Pension Plan; (iii) the
filing under Section 4041 of ERISA of a notice of intent to terminate any
Pension Plan or the termination of any Pension Plan; (iv) any event or
circumstance that could reasonably be expected to constitute grounds entitling
the PBGC to institute proceedings under Section 4042 of ERISA for the
termination of, or for the appointment of a trustee to administer, any Pension
Plan, or the institution by the PBGC of any such proceedings; (v) any
"accumulated funding deficiency" (as defined in Section 302 of ERISA or Section
412 of the Code), whether or not waived, shall exist with respect to any Pension
Plan; or (vi) complete or partial withdrawal under Section 4201 or 4204 of ERISA
from a Multiemployer Plan or the reorganization, insolvency or termination of
any Pension Plan; and in each case above, such event or condition, together with
all other events or conditions, if any, have subjected or could in the
reasonable opinion of Required Lenders subject any Loan Party or any ERISA
Affiliate to any tax, penalty or other liability to a Plan, a Multiemployer
Plan, the PBGC or otherwise (or any combination thereof) which in the aggregate
exceed or could reasonably be expected to exceed $250,000.
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(l) The occurrence of any breach or default by the Borrower, the
Leasing Subsidiary, TriVergent or TriVergent Leasing, LLC under the Master
Purchase Agreement (after giving effect to any grace or cure period specified
therein) which breach or default entitles Nortel Networks to exercise a right or
remedy under or in connection with the Master Purchase Agreement.
(m) Any termination, revocation or non-renewal by the FCC or any
federal or state public utility commission or other Governmental Authority of
any material license or Permit of the Borrower or any of its Subsidiaries.
(n) The occurrence of any Material Adverse Effect.
(o) The occurrence of any Change in Control.
Section 11.2 Remedies. If any Event of Default shall occur and be
continuing, the Administrative Agent may and, if directed by the Required
Lenders, the Administrative Agent shall do any one or more of the following:
(a) Acceleration. Declare all outstanding principal of and accrued and
unpaid interest on the Loans and all other amounts payable by the Borrower under
the Loan Documents immediately due and payable, and the same shall thereupon
become immediately due and payable, without notice, demand, presentment, notice
of dishonor, notice of acceleration, notice of intent to accelerate, protest or
other formalities of any kind, all of which are hereby expressly waived by the
Borrower;
(b) Termination of Commitments. Terminate each of the Commitments
without notice to the Borrower;
(c) Judgment. Reduce any claim to judgment;
(d) Foreclosure. Foreclose or otherwise enforce any Lien granted to the
Administrative Agent for the benefit of the Administrative Agent and the Lenders
to secure payment and performance of the Obligations in accordance with the
terms of the Loan Documents; or
(e) Rights. Exercise any and all rights and remedies afforded by the
laws of the State of New York or any other jurisdiction, by any of the Loan
Documents, by equity or otherwise;
provided, however, that upon the occurrence of an Event of Default under Section
11.1(e) or Section 11.1(f), the Commitments of all of the Lenders shall
immediately and automatically terminate, and the outstanding principal of and
accrued and unpaid interest on the Loans and all other amounts payable by the
Borrower under the Loan Documents shall thereupon become immediately and
automatically due and payable, without notice, demand, presentment, notice of
dishonor, notice of acceleration, notice of intent to accelerate, protest or
other formalities of any kind, all of which are hereby expressly waived by the
Borrower.
Section 11.3 Performance by the Administrative Agent, etc. If the
Borrower shall fail to perform any covenant or agreement in accordance with the
terms of the Loan Documents, the Administrative Agent may perform or attempt to
perform, or may cause any Lender (with the consent of such Lender) to perform or
attempt to perform, such covenant or agreement on behalf of
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the Borrower. In such event, the Borrower shall, at the request of the
Administrative Agent, promptly pay any amount expended by the Administrative
Agent or the Lenders in connection with such performance or attempted
performance to the Administrative Agent at its Principal Office, together with
interest thereon at the applicable Default Rate from and including the date of
such expenditure to but excluding the date such expenditure is paid in full.
Notwithstanding the foregoing, it is expressly agreed that neither the
Administrative Agent nor any Lender shall have any liability or responsibility
for the performance of any obligation of the Borrower or any other Person under
this Agreement or any of the other Loan Documents.
ARTICLE 12
The Administrative Agent
Section 12.1 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Neither the Administrative Agent nor any of its
Affiliates, officers, directors, employees, attorneys or agents shall be liable
for any action taken or omitted to be taken by any of them hereunder or
otherwise in connection with this Agreement or any of the other Loan Documents
except for its or their own gross negligence or willful misconduct. Without
limiting the generality of the preceding sentence, the Administrative Agent (a)
may treat the payee of any Note as the holder thereof until the Administrative
Agent receives written notice of the assignment or transfer thereof signed by
such payee and in form satisfactory to the Administrative Agent, (b) shall have
no duties or responsibilities except those expressly set forth in this Agreement
and the other Loan Documents, and shall not by reason of this Agreement or any
other Loan Document be a trustee or fiduciary for any Lender, (c) shall not be
required to initiate any litigation or collection proceedings hereunder or under
any other Loan Document except to the extent requested by the Required Lenders,
(d) shall not be responsible to the Lenders for any recitals, statements,
representations or warranties contained in this Agreement or any other Loan
Document, or any certificate or other document referred to or provided for in,
or received by any of them under, this Agreement or any other Loan Document, or
for the value, validity, effectiveness, enforceability or sufficiency of this
Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or for any failure by any Person to perform any
of its obligations hereunder or thereunder, (e) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts, and (f) shall incur no liability under or in respect of
any Loan Document by acting upon any notice, consent, certificate or other
instrument or writing reasonably believed by it to be genuine and signed or sent
by the proper party or parties. As to any matters not expressly provided for by
this Agreement, the Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder in accordance with
instructions signed by the Required Lenders, and such instructions of the
Required Lenders and any action taken or failure to act pursuant thereto shall
be binding on all of the Lenders; provided, however, that the Administrative
Agent shall not be required to take any action which exposes the Administrative
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Agent to liability or which is contrary to this Agreement or any other Loan
Document or applicable law. The Administrative Agent shall not be deemed to have
any fiduciary relationship with any Lender or any Loan Party, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
Without limiting the generality of the foregoing, the use of the term "agent" in
this Agreement with respect to the Administrative Agent is not intended to
connote any fiduciary or other express or implied obligation arising under
agency doctrine of any applicable law; instead, such term is used merely as a
matter of market custom and is intended to create or reflect only an
administrative relationship among independent contracting parties.
Section 12.2 Rights of Administrative Agent as a Lender. With respect
to its Commitments, the Loans made by it and the Note(s) issued to it, Nortel
Networks (and any successor acting as Administrative Agent) in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the
Administrative Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, act as
trustee under indentures of, provide merchant banking services to, own
securities of, and generally engage in any kind of banking, trust or other
business with, the Borrower or any of its Affiliates and any other Person who
may do business with or own securities of the Borrower or any of its Affiliates,
all as if it were not acting as the Administrative Agent and without any duty to
account therefor to the Lenders.
Section 12.3 Defaults. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default (other than the
non-payment of principal of or interest on the Loans or of commitment fees)
unless the Administrative Agent has received notice from a Lender or the
Borrower specifying such Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice of
the occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders (and shall give each Lender prompt notice of each such
non-payment). The Administrative Agent shall (subject to Section 12.1) take such
action with respect to such Default as shall be directed by the Required
Lenders, 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 as it shall seem advisable and in the best interest of the
Lenders.
SECTION 12.4 INDEMNIFICATION. EACH LENDER HEREBY AGREES TO INDEMNIFY
THE ADMINISTRATIVE AGENT FROM AND HOLD THE ADMINISTRATIVE AGENT HARMLESS AGAINST
(TO THE EXTENT NOT REIMBURSED UNDER SECTIONS 13.1 AND 13.2, BUT WITHOUT LIMITING
THE OBLIGATIONS OF THE BORROWER UNDER SECTIONS 13.1 AND 13.2), RATABLY IN
ACCORDANCE WITH ITS PRO RATA SHARE (CALCULATED ON THE BASIS OF ITS COMMITMENT
PERCENTAGE OF THE COMMITMENTS), ANY AND ALL LIABILITIES (INCLUDING, WITHOUT
LIMITATION, ENVIRONMENTAL LIABILITIES), OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, DEFICIENCIES, SUITS, COSTS, EXPENSES (INCLUDING ATTORNEYS'
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FEES) AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED
ON, INCURRED BY OR ASSERTED AGAINST THE ADMINISTRATIVE AGENT IN ANY WAY RELATING
TO OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY ACTION TAKEN OR OMITTED TO
BE TAKEN BY THE ADMINISTRATIVE AGENT UNDER OR IN RESPECT OF ANY OF THE LOAN
DOCUMENTS; PROVIDED, FURTHER, THAT NO LENDER SHALL BE LIABLE FOR ANY PORTION OF
THE FOREGOING TO THE EXTENT CAUSED BY THE ADMINISTRATIVE AGENT'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. WITHOUT LIMITATION OF THE FOREGOING, IT IS THE
EXPRESS INTENTION OF THE LENDERS THAT THE ADMINISTRATIVE AGENT SHALL BE
INDEMNIFIED HEREUNDER FROM AND HELD HARMLESS AGAINST ALL OF SUCH LIABILITIES
(INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL LIABILITIES), OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, DEFICIENCIES, SUITS, COSTS, EXPENSES
(INCLUDING ATTORNEYS' FEES) AND DISBURSEMENTS OF ANY KIND OR NATURE DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE
OF THE ADMINISTRATIVE AGENT (EXCEPT TO THE EXTENT THE SAME ARE CAUSED BY THE
ADMINISTRATIVE AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT). WITHOUT LIMITING
ANY OTHER PROVISION OF THIS SECTION 12.4, EACH LENDER AGREES TO REIMBURSE THE
ADMINISTRATIVE AGENT PROMPTLY UPON DEMAND FOR ITS PRO RATA SHARE (CALCULATED ON
THE BASIS OF ITS COMMITMENT PERCENTAGE OF THE COMMITMENTS) OF ANY AND ALL
OUT-OF-POCKET EXPENSES (INCLUDING ATTORNEYS' FEES) INCURRED BY THE
ADMINISTRATIVE AGENT IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY,
ADMINISTRATION, MODIFICATION, AMENDMENT OR ENFORCEMENT (WHETHER THROUGH
NEGOTIATIONS, LEGAL PROCEEDINGS OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT OF
RIGHTS OR RESPONSIBILITIES UNDER, THE LOAN DOCUMENTS, TO THE EXTENT THAT THE
ADMINISTRATIVE AGENT IS NOT PROMPTLY REIMBURSED FOR SUCH EXPENSES BY THE
BORROWER.
Section 12.5 Independent Credit Decisions. Each Lender agrees that it
has independently and without reliance on the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of Holdings, the Borrower and the
Subsidiaries of the Borrower and its own decision to enter into this Agreement
and that it will, independently and without reliance upon the Administrative
Agent or any other Lender, and based upon such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or any of the
other Loan Documents. The Administrative Agent shall not be required to keep
itself informed as to the performance or observance by any Loan Party of this
Agreement or any other Loan Document or to inspect the Properties or books of
the Borrower (or any other Person). Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Administrative Agent hereunder or under the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other financial information concerning the affairs,
financial condition or business of any Loan Party which may come into the
possession of the Administrative Agent or any of its Affiliates.
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Section 12.6 Several Commitments. The Commitments and other obligations
of the Lenders under this Agreement are several. The default by any Lender in
making a Loan in accordance with any of its Commitments shall not relieve the
other Lenders of their obligations under this Agreement. In the event of any
default by any Lender in making any Loan, each nondefaulting Lender shall be
obligated to make its Loan but shall not be obligated to advance the amount
which the defaulting Lender was required to advance hereunder. In no event shall
any Lender be required to advance an amount or amounts with respect to any of
the Loans which would in the aggregate exceed such Lender's Commitment with
respect to such Loans. No Lender shall be responsible for any act or omission of
any other Lender.
Section 12.7 Successor Administrative Agent. Subject to the appointment
and acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving notice thereof to the
Lenders and the Borrower. Upon any such resignation, the Required Lenders will
have the right to appoint another Lender as a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the U.S. or any state thereof or of a foreign country if acting through its
U.S. branch and having combined capital and surplus of at least $100,000,000.
Upon the acceptance of its appointment as successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all rights, powers, privileges, immunities and duties of the resigning
Administrative Agent, and the resigning Administrative Agent shall be discharged
from its duties and obligations under this Agreement and the other Loan
Documents. After any Administrative Agent's resignation as Administrative Agent,
the provisions of this Article 12 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was the
Administrative Agent. Each Administrative Agent (including each successor
Administrative Agent) agrees that, so long as it is acting as Administrative
Agent under this Agreement, it shall be a Lender under this Agreement.
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ARTICLE 13
Miscellaneous
Section 13.1 Expenses. The Borrower hereby agrees, on demand, to pay or
reimburse the Administrative Agent and each of the Lenders for paying: (a) all
reasonable out-of-pocket costs and expenses of the Administrative Agent accrued
in connection with the preparation, negotiation, execution and delivery of the
Loan Documents and in connection with any and all waivers, amendments,
modifications, renewals, extensions and supplements of or to the Loan Documents,
including, without limitation, the reasonable fees and expenses of legal counsel
(including all local counsel) for the Administrative Agent, (b) all
out-of-pocket costs and expenses of the Administrative Agent and the Lenders in
connection with any Default, the exercise of any right or remedy and the
enforcement of this Agreement or any other Loan Document or any term or
provision hereof or thereof, including, without limitation, the fees and
expenses of all legal counsel for the Administrative Agent and/or any Lender,
(c) all transfer, stamp, documentary or other similar taxes, assessments or
charges levied by any Governmental Authority in respect of this Agreement or any
of the other Loan Documents, (d) all costs, expenses, assessments and other
charges incurred in connection with any filing, registration, recording or
perfection of any Lien contemplated by this Agreement or any other Loan
Document, and (e) all reasonable out-of-pocket costs and expenses incurred by
the Administrative Agent in connection with due diligence, computer services,
copying, appraisals, environmental audits, collateral audits, field exams,
insurance, consultants and search reports.
SECTION 13.2 INDEMNIFICATION. THE BORROWER HEREBY AGREES TO INDEMNIFY
THE ADMINISTRATIVE AGENT AND EACH LENDER AND EACH AFFILIATE THEREOF AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS FROM, AND HOLD
EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES (INCLUDING,
WITHOUT LIMITATION, ENVIRONMENTAL LIABILITIES), CLAIMS, DAMAGES, PENALTIES,
JUDGMENTS, DISBURSEMENTS, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS'
AND CONSULTANTS' FEES) TO WHICH ANY OF THEM MAY BECOME SUBJECT WHICH DIRECTLY OR
INDIRECTLY ARISE FROM OR RELATE TO (A) THE NEGOTIATION, EXECUTION, DELIVERY,
PERFORMANCE, ADMINISTRATION OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS,
INCLUDING, WITHOUT LIMITATION, THE EXERCISE OF ANY FORECLOSURE RIGHT OR OTHER
RIGHT OR REMEDY WHETHER OR NOT SUCH EXERCISE IS IN COMPLIANCE WITH LAWS
AFFECTING OTHER PERSONS OR RESULTS IN DAMAGES PAYABLE TO OTHER PERSONS, (B) ANY
OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (C) ANY BREACH BY THE
BORROWER OF ANY MATERIAL REPRESENTATION, WARRANTY, COVENANT OR OTHER AGREEMENT
CONTAINED IN ANY OF THE LOAN DOCUMENTS, (D) THE USE OR PROPOSED USE OF ANY LOAN,
(E) THE PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL, REMOVAL OR CLEANUP OF
ANY HAZARDOUS MATERIAL LOCATED ON, ABOUT, WITHIN OR AFFECTING ANY OF THE
PROPERTIES OF THE BORROWER OR ANY OF ITS AFFILIATES, EXCEPT TO THE EXTENT THAT
THE LOSS, DAMAGE OR CLAIM IS THE RESULT OF GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE PERSON TO BE INDEMNIFIED, OR (F) ANY INVESTIGATION, LITIGATION
OR OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY THREATENED
INVESTIGATION, LITIGATION OR OTHER PROCEEDING RELATING TO ANY OF THE FOREGOING;
BUT EXCLUDING
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ANY OF THE FOREGOING TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE PERSON TO BE INDEMNIFIED. WITHOUT LIMITING ANY PROVISION OF
THIS AGREEMENT OR OF ANY OTHER LOAN DOCUMENT, IT IS THE EXPRESS INTENTION OF THE
PARTIES HERETO THAT EACH PERSON TO BE INDEMNIFIED UNDER THIS SECTION 13.2 SHALL
BE INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES
(INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL LIABILITIES), CLAIMS, DAMAGES,
PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES) ARISING OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY
NEGLIGENCE OF SUCH PERSON. WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER TERM
OR PROVISION OF THIS AGREEMENT, THE OBLIGATIONS OF THE BORROWER UNDER THIS
SECTION 13.2 SHALL SURVIVE THE REPAYMENT OF THE LOANS AND OTHER OBLIGATIONS AND
TERMINATION OF THE COMMITMENTS.
Section 13.3 Limitation of Liability. None of the Administrative Agent,
any Lender or any Affiliate, officer, director, employee, attorney or agent
thereof shall be liable for any error of judgment or act done in good faith, or
be otherwise liable or responsible under any circumstances whatsoever (including
such Person's negligence), except for such Person's gross negligence or willful
misconduct. None of the Administrative Agent, any Lender or any Affiliate,
officer, director, employee, attorney or agent thereof shall have any liability
with respect to, and the Borrower hereby waives, releases and agrees not to xxx
any of them upon, any claim for any special, indirect, incidental or
consequential damages suffered or incurred by the Borrower or any Affiliate of
the Borrower in connection with, arising out of or in any way related to this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents. The Borrower
hereby waives, releases and agrees not to xxx the Administrative Agent or any
Lender or any of their respective Affiliates, officers, directors, employees,
attorneys or agents for exemplary or punitive damages in respect of any claim in
connection with, arising out of or in any way related to this Agreement or any
of the other Loan Documents, or any of the transactions contemplated by this
Agreement or any of the other Loan Documents.
Section 13.4 No Duty. All attorneys, accountants, appraisers and other
professional Persons and consultants retained by the Administrative Agent and
the Lenders shall have the right to act exclusively in the interest of the
Administrative Agent and the Lenders and shall have no duty of disclosure, duty
of loyalty, duty of care or other duty or obligation of any type or nature
whatsoever to the Borrower or any of its Affiliates or any other Person.
Section 13.5 No Fiduciary Relationship. The relationship between the
Borrower and each Lender is solely that of debtor and creditor, and neither the
Administrative Agent nor any Lender has any fiduciary or other special
relationship with the Borrower or any of its Affiliates, and no term or
condition of any of the Loan Documents shall be construed so as to deem the
relationship between the Borrower and any Lender, or such Affiliate and any
Lender, to be other than that of debtor and creditor. No joint venture or
partnership is created by this Agreement among the Lenders or among the Borrower
or any of its Affiliates and the Lenders.
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Section 13.6 Equitable Relief. The Borrower recognizes that, in the
event it fails to pay, perform, observe or discharge any or all of the
Obligations, any remedy at law may prove to be inadequate relief to the
Administrative Agent and the Lenders. The Borrower therefore agrees that the
Administrative Agent and the Lenders, if the Administrative Agent or the Lenders
so request, shall be entitled to temporary and permanent injunctive relief in
any such case without the necessity of proving actual damages.
Section 13.7 No Waiver; Cumulative Remedies. No failure on the part of
the Administrative Agent or any Lender to exercise and no delay in exercising,
and no course of dealing with respect to, any right, power or privilege under
this Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege under this
Agreement or any other Loan Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies provided for in this Agreement and the other Loan Documents are
cumulative and not exclusive of any rights and remedies provided by law.
Section 13.8 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. The Borrower may
not assign or transfer any of its rights or obligations under this Agreement or
any other Loan Document without the prior written consent of the Administrative
Agent and the Lenders. Any Lender may sell participations in all or a portion of
its rights and obligations under this Agreement and the other Loan Documents
(including, without limitation, all or a portion of its Commitments and the
Loans owing to it); provided, however, that (i) such Lender's obligations under
this Agreement and the other Loan Documents (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the Borrower for the performance of such obligations, (iii) such
Lender shall remain the holder of its Notes for all purposes of this Agreement,
(iv) the Borrower 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, (v) the Lenders shall not grant any participation to a
business competitor of the Borrower except after the acceleration of the
Obligations or if any Obligations remain unpaid after the Maturity Date, and
(vi) the Lenders shall not grant any participation under which the participant
shall have the right to approve (or under which the consent of the participant
must be obtained prior to the Lenders' being able to approve) any amendment or
waiver of this Agreement or the other Loan Documents, except to the extent that
such amendment or waiver (A) increases any Commitment, (B) reduces the interest
rate or the amount of principal or fees applicable to the Loans or Commitments
in which such participant is participating, (C) extends any Maturity Date, (D)
releases any of the Collateral (except as provided for herein or in any other
Loan Document) or any guaranty of the Obligations, or (E) releases any Loan
Party from its monetary Obligations under any of the Loan Documents.
(b) The Borrower and each of the Lenders agree that any Lender (the
"Assigning Lender") may at any time assign to one or more Eligible Assignees all
or any part of its rights and/or obligations under this Agreement and the other
Loan Documents (including, without limitation, its Commitments and/or Loans)
(each an "Assignee"); provided, however, that (i) each such assignment may be of
a varying percentage of the Assigning Lender's rights and/or obligations under
this
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Agreement and the other Loan Documents and may relate to some but not all of
such rights and/or obligations, (ii) except in the case of an assignment of all
of a Lender's rights and obligations under this Agreement and the other Loan
Documents, the amount of the Commitment(s) and/or Loans of the Assigning Lender
being assigned pursuant to each assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $5,000,000 calculated based upon the aggregate amount of the
Commitment(s) and/or Loans assigned and (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent for its
acceptance and recording in the Register (as defined below), an Assignment and
Acceptance, together with the Note subject to such assignment, and a processing
and recordation fee of $3,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof or such other date as may be approved by the Administrative
Agent, (1) the Assignee thereunder shall be a party hereto as a "Lender" and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder and under the Loan Documents, and (2) the Assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement and the other Loan
Documents (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of a Lender's rights and obligations under the Loan Documents,
such Lender shall cease to be a party thereto, provided that such Lender's
rights under Article 4, Section 13.1 and Section 13.2 accrued through the date
of assignment shall continue). The Borrower will provide full and prompt
assistance to each Lender as it may reasonably request from time to time in
connection with such Lender's efforts to assign its Commitments and/or Loans or
sell any participation interest therein. Such assistance shall include, without
limitation, making senior officers of the Borrower available for meetings with
prospective Lenders and participants and providing (in a timely manner) such
assistance as may be reasonably requested by such Lender and/or its advisors,
including, without limitation, providing information to and responding to
inquiries from such prospective Lenders and participants with respect to the
businesses, operations, business plan, financial condition and results of
operations of the Borrower and its Subsidiaries. Nortel Networks shall reimburse
the Borrower for its out-of-pocket expenses incurred in connection with such
assistance so long as Nortel Networks holds at least $20,000,000 in principal
amount of Loans and Commitments.
(c) By executing and delivering an Assignment and Acceptance, the
Assigning Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such Assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any other instrument or document
furnished pursuant thereto; (ii) such Assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition or results of operations of the Borrower or any of its Affiliates or
the performance or observance by the Borrower or any of its Affiliates of its
obligations under the Loan Documents; (iii) such Assignee confirms that it has
received a copy of the Loan Documents, together with copies of the financial
statements referred to in Section 7.2 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and
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Acceptance; (iv) such Assignee will, independently and without reliance upon the
Administrative Agent or such Assigning Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents; (v) such Assignee confirms that it is an Eligible
Assignee; (vi) such Assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and exercise such powers under the Loan
Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; and (vii) such
Assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
(d) The Administrative Agent shall maintain at its Principal Office a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amount of the Loans owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes under the Loan
Documents. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assigning Lender and Assignee representing that it is an Eligible Assignee,
together with the Note(s) subject to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit A hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register, and
(iii) give prompt written notice thereof to the Borrower. Within five Business
Days after its receipt of such notice, the Borrower, at its expense, shall
execute and deliver to the Administrative Agent in exchange for each surrendered
Note evidencing the Loans assigned, a new Note evidencing such Loans payable to
the order of such Eligible Assignee in an amount equal to such Loans assigned to
it and, if the Assigning Lender has retained any Loans, a new Note evidencing
each such Loans payable to the order of the Assigning Lender in the amount of
such Loans retained by it (each such promissory note shall constitute a "Note"
for purposes of the Loan Documents). Such new Notes shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit B hereto.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 13.8, disclose
to the Assignee or participant or proposed Assignee or participant any
information relating to the Borrower or any of its Affiliates furnished to such
Lender by or on behalf of the Borrower or any of its Affiliates; provided that
each such actual or proposed Assignee or participant shall agree to be bound by
the provisions of Section 13.20.
(g) Any Lender may assign and pledge any Note held by it to any Federal
Reserve Bank or the U.S. Treasury as collateral security pursuant to Regulation
A of the Board of Governors of the Federal Reserve System and any operating
circular issued by such Federal Reserve System
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and/or Federal Reserve Bank; provided, however, that any payment made by the
Borrower for the benefit of such assigning and/or pledging Lender in accordance
with the terms of the Loan Documents shall satisfy the Borrower's obligations
under the Loan Documents in respect thereof to the extent of such payment. No
such assignment and/or pledge shall release the assigning and/or pledging Lender
from its obligations hereunder.
(h) The Borrower shall maintain, or cause to be maintained, a register
(the "Registered Note Register") (which, at the request of the Borrower (which
request the Borrower makes by the execution of this Agreement) shall be kept by
the Administrative Agent on behalf of the Borrower at no extra charge to the
Borrower at the address to which notices to the Administrative Agent are to be
sent hereunder) on which it shall enter the name of the registered owner of each
of the Loans which is evidenced by a Registered Note. Notwithstanding anything
to the contrary contained in this Section 13.8, a Registered Note and the Loans
evidenced thereby may be assigned or otherwise transferred in whole or in part
only by registration of such assignment or transfer of such Registered Note and
the Loans evidenced thereby on the Registered Note Register (and each Registered
Note shall expressly so provide). Any assignment or transfer of all or part of
such Loans and the Registered Note evidencing the same shall be registered on
the Registered Note Register only upon surrender for registration of assignment
or transfer of the Registered Note evidencing such Loans, duly endorsed by (or
accompanied by a written instrument of assignment or transfer duly executed by)
the registered noteholder thereof, and thereupon one or more new Registered
Notes in the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s). Prior to the due presentment for registration of
transfer of any Registered Note, the Borrower and the Administrative Agent shall
treat the Person in whose name such Loans and the Registered Note(s) evidencing
the same are registered as the owner thereof for the purpose of receiving all
payments thereon and for all other purposes, notwithstanding any notice to the
contrary. The Registered Note Register shall be available for inspection by the
Borrower and any Lender at any reasonable time upon reasonable prior notice.
(i) The Borrower will not become a party to any loan agreement, credit
agreement or similar agreement which restricts or prohibits the right or ability
of any lender which is a party thereto to become a Lender under this Agreement.
(j) The Borrower shall provide prompt assistance to the Administrative
Agent and the Lenders in connection with their efforts in syndicating the Loans
and Commitments. Such assistance shall include making senior officers and other
representatives of the Borrower and its Affiliates available for meetings with
prospective Lenders and providing, in a timely manner, such assistance as may be
reasonably requested by the Administrative Agent or its advisors, including,
without limitation, providing information to and responding to inquiries from
prospective Lenders with respect to the business, operations, Business Plan,
results and other matters relating to the business of the Borrower and the other
Loan Parties.
Section 13.9 Survival. All representations and warranties made or
deemed made in this Agreement or any other Loan Document or in any document,
statement or certificate furnished in connection with this Agreement shall
survive the execution and delivery of this Agreement and the other Loan
Documents and the making of the Loans, and no investigation by the
Administrative Agent or any Lender or any closing shall affect the
representations and warranties or the right of the
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Administrative Agent or any Lender to rely upon them. Without prejudice to the
survival of any other obligation of the Borrower hereunder, the obligations of
the Borrower under Article 4 and Sections 13.1 and 13.2 shall survive repayment
of the Loans and the Reimbursement Obligations and the other Obligations.
SECTION 13.10 ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES AND THE OTHER
LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, TERM SHEETS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES
HERETO.
Section 13.11 Amendments. No amendment or waiver of any provision of
this Agreement, the Notes or any other Loan Document to which the Borrower is a
party, nor any consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be agreed or consented to by the
Required Lenders and the Borrower in writing, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all of the Lenders and the Borrower, do any of
the following: (a) increase the Commitments of the Lenders (or any Lender) or
subject the Lenders to any additional obligations; (b) reduce the principal of,
or interest on, the Loans or any fees or other amounts payable hereunder; (c)
postpone any date fixed for any payment (including, without limitation, any
mandatory prepayment) of principal of, or interest on, the Loans or any fees or
other amounts payable hereunder; (d) change the Commitment Percentages or the
aggregate unpaid principal amount of the Loans or the number or interests of the
Lenders which shall be required for the Lenders or any of them to take any
action under this Agreement; (e) change any provision contained in Section 3.2,
3.3 or 5.1 or this Section 13.11 or modify the definition of "Required Lenders"
contained in Section 1.1; or (f) except as expressly authorized by this
Agreement, release any Collateral from any of the Liens created by the Security
Documents; and provided further, however, that no amendment, waiver or consent
relating to Sections 12.1, 12.2, 12.3, 12.4 or 12.5 shall require the agreement
of the Borrower. Notwithstanding anything to the contrary contained in this
Section 13.11, no amendment, waiver or consent shall be made with respect to (i)
Article 12 hereof without the prior written consent of the Administrative Agent,
(ii) the definition of "Nortel Networks Goods and Services" or "Master Purchase
Agreement" or Section 2.5, 2.9 or 2.10 hereof without the prior written consent
of Nortel Networks (whether or not Nortel Networks is then a Lender hereunder),
or (iii) any condition precedent set forth in Article 6 with respect to the
making of any Loans without the prior written consent of the Lenders that hold,
at the time of such amendment, waiver or consent, at least a majority (in Dollar
amount) of the Commitments.
Section 13.12 Maximum Interest Rate.
(a) No interest rate specified in this Agreement or any other Loan
Document shall at any time exceed the Maximum Rate. If at any time the interest
rate (the "Contract Rate") for any
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Obligation shall exceed the Maximum Rate, thereby causing the interest accruing
on such Obligation to be limited to the Maximum Rate, then any subsequent
reduction in the Contract Rate for such Obligation shall not reduce the rate of
interest on such Obligation below the Maximum Rate until the aggregate amount of
interest accrued on such Obligation equals the aggregate amount of interest
which would have accrued on such Obligation if the Contract Rate for such
Obligation had at all times been in effect.
(b) Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents, none of the terms and provisions of this
Agreement or the other Loan Documents shall ever be construed to create a
contract or obligation to pay interest at a rate in excess of the Maximum Rate;
and neither the Administrative Agent nor any Lender shall ever charge, receive,
take, collect, reserve or apply, as interest on the Obligations, any amount in
excess of the Maximum Rate. The parties hereto agree that any interest, charge,
fee, expense or other obligation provided for in this Agreement or in the other
Loan Documents which constitutes interest under applicable law shall be, ipso
facto and under any and all circumstances, limited or reduced to an amount equal
to the lesser of (i) the amount of such interest, charge, fee, expense or other
obligation that would be payable in the absence of this Section 13.12(b) or (ii)
an amount, which when added to all other interest payable under this Agreement
and the other Loan Documents, equals the Maximum Rate. If, notwithstanding the
foregoing, the Administrative Agent or any Lender ever contracts for, charges,
receives, takes, collects, reserves or applies as interest any amount in excess
of the Maximum Rate, such amount which would be deemed excessive interest shall
be deemed a partial payment or prepayment of principal of the Obligations and
treated hereunder as such; and if the Obligations, or applicable portions
thereof, are paid in full, any remaining excess shall promptly be paid to the
Borrower. In determining whether the interest paid or payable, under any
specific contingency, exceeds the Maximum Rate, the Borrower, the Administrative
Agent and the Lenders shall, to the maximum extent permitted by applicable law,
(i) characterize any nonprincipal payment as an expense, fee or premium rather
than as interest, (ii) exclude voluntary prepayments and the effects thereof,
and (iii) amortize, prorate, allocate and spread in equal or unequal parts the
total amount of interest throughout the entire contemplated term of the
Obligations, or applicable portions thereof, so that the interest rate does not
exceed the Maximum Rate at any time during the term of the Obligations; provided
that, if the unpaid principal balance is paid and performed in full prior to the
end of the full contemplated term thereof, and if the interest received for the
actual period of existence thereof exceeds the Maximum Rate, the Administrative
Agent and/or the Lenders, as appropriate, shall refund to the Borrower the
amount of such excess and, in such event, the Administrative Agent and the
Lenders shall not be subject to any penalties provided by any laws for
contracting for, charging, receiving, taking, collecting, reserving or applying
interest in excess of the Maximum Rate.
(c) Pursuant to Article 15.10(b) of Chapter 15, Subtitle 79, Revised
Civil Statutes of Texas 1925, as amended, the Borrower agrees that such Chapter
15 (which regulates certain revolving credit loan accounts and revolving
tri-party accounts) shall not govern or in any manner apply to the Obligations.
Section 13.13 Notices. All notices and other communications provided
for in this Agreement and the other Loan Documents to which the Borrower is a
party shall be given or made by telecopy or in writing and telecopied, mailed by
certified mail return receipt requested or
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delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof (or, with respect to a Lender that
becomes a party to this Agreement pursuant to an assignment made in accordance
with Section 13.8, in the Assignment and Acceptance executed by it); or, as to
any party, at such other address as shall be designated by such party in a
notice to each other party given in accordance with this Section 13.13. Except
as otherwise provided in this Agreement, all such communications shall be deemed
to have been duly given when transmitted by telecopy or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid; provided, however, that notices to the Administrative Agent shall be
deemed given when received by the Administrative Agent.
SECTION 13.14 GOVERNING LAW; SUBMISSION TO JURISDICTION; SERVICE OF
PROCESS. EXCEPT AS MAY BE EXPRESSLY STATED TO THE CONTRARY IN CERTAIN LOAN
DOCUMENTS, THIS AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES) AND EACH OF THE PARTIES HERETO
CHOOSE THE LAWS OF THE STATE OF NEW YORK TO GOVERN THIS AGREEMENT PURSUANT TO
N.Y. GEN. OBLIG. LAW SECTION 5-1401 (CONSOL. 1995) AND APPLICABLE LAWS OF THE
U.S. THE BORROWER HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF EACH OF
(1) THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, (2) ANY NEW
YORK STATE COURT SITTING IN NEW YORK, NEW YORK, (3) THE U.S. DISTRICT COURT FOR
THE NORTHERN DISTRICT OF TEXAS, AND (4) ANY TEXAS STATE COURT SITTING IN DALLAS
COUNTY, TEXAS, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. THE BORROWER HEREBY IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SET FORTH UNDERNEATH ITS
SIGNATURE HERETO. THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORM.
Section 13.15 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 13.16 Severability. Any provision of this Agreement held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Agreement and the effect thereof shall be
confined to the provision held to be invalid or illegal.
Section 13.17 Headings. The headings, captions and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
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Section 13.18 Construction. The Borrower, the Administrative Agent and
each Lender acknowledges that it has had the benefit of legal counsel of its own
choice and has been afforded an opportunity to review this Agreement and the
other Loan Documents with its legal counsel and that this Agreement and the
other Loan Documents shall be construed as if jointly drafted by the parties
hereto.
Section 13.19 Independence of Covenants. All covenants hereunder shall
be given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not avoid the occurrence of a Default if such action is taken or such condition
exists.
Section 13.20 Confidentiality. Each Lender agrees to exercise its best
efforts to keep any information delivered or made available by the Borrower to
it which is clearly indicated to be confidential information, confidential from
anyone other than Persons employed or retained by such Lender who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Loans; provided that nothing herein shall prevent any Lender
from disclosing such information (a) to any other Lender, (b) to any Person if
reasonably incidental to the administration of the Loans, (c) upon the order of
any court or administrative agency, (d) upon the request or demand of any
regulatory agency or authority having jurisdiction over such Lender, (e) which
has been publicly disclosed, (f) in connection with any litigation to which the
Administrative Agent, any Lender or their respective Affiliates may be a party,
(g) to the extent reasonably required in connection with the exercise of any
right or remedy under the Loan Documents, (h) to such Lender's legal counsel,
independent auditors and affiliates, and (i) to any actual or proposed
participant or Assignee of all or part of its rights hereunder, so long as such
actual or proposed participant or Assignee agrees to be bound by the provisions
of this Section 13.20.
SECTION 13.21 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE
ACTIONS OF THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION OR ENFORCEMENT THEREOF.
Section 13.22 Approvals and Consent. Except as may be expressly
provided to the contrary in this Agreement or in the other Loan Documents (as
applicable), in any instance under this Agreement of the other Loan Documents
where the approval, consent or exercise of judgment of the Administrative Agent
or any Lender is requested or required, (a) the granting or denial of such
approval or consent and the exercise of such judgment shall be within the sole
discretion of the Administrative Agent or such Lender, respectively, and the
Administrative Agent and such Lender shall not, for any reason or to any extent,
be required to grant such approval or consent or to exercise such judgment in
any particular manner, regardless of the reasonableness of the request or the
action or judgment of the Administrative Agent or such Lender, and (b) no
approval or consent of the
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Administrative Agent or any Lender shall in any event be effective unless the
same shall be in writing and the same shall be effective only in the specific
instance and for the specific purpose for which given.
Section 13.23 Service of Process. The Borrower irrevocably consents to
the service of process by the mailing thereof by the Administrative Agent or the
Required Lenders by registered or certified mail, postage prepaid, to the
Borrower at its address listed on the signature pages hereof. Nothing in this
Section 13.23 shall affect the right of the Administrative Agent or the Lenders
to serve legal process in any other manner permitted by law or affect the right
of the Administrative Agent or any Lender to bring any action or proceeding
against the Borrower or its Property in the court of any jurisdiction.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BORROWER:
TRIVERGENT COMMUNICATIONS SOUTH, INC.
By:
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
Address for Notices:
TriVergent Communications South, Inc.
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx III
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
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ADMINISTRATIVE AGENT:
NORTEL NETWORKS INC.,
as Administrative Agent
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address for Notices:
Nortel Networks Inc.
GMS 991 15 A40
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Day
Vice President,
Customer Finance North America
Telecopy No.: (000) 000-0000
Telephone No.:(000) 000-0000
and
Nortel Networks Inc.
XX Xxx 000000
Xxxxxxxxxx, Xxxxx 00000-0000
Mail Stop 468/05/B40
Attention: Xxxxxxxx Xxx, Loan Administration
Telecopy No.: (000) 000-0000
Telephone No.:(000) 000-0000
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LENDERS:
Commitment: $45,000,000 NORTEL NETWORKS INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Address for Notices:
Nortel Networks Inc.
GMS 991 15 A40
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Day
Vice President,
Customer Finance North America
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
and
Nortel Networks Inc.
XX Xxx 000000
Xxxxxxxxxx, Xxxxx 00000-0000
Mail Stop 468/05/B40
Attention: Xxxxxxxx Xxx, Loan Administration
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Lending Office for Base Rate Loans:
Nortel Networks Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000
Lending Office for Eurodollar Loans:
Nortel Networks Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000
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