Exhibit 10.1
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of September 28, 2000,
As amended and restated as of
April 11, 2001,
among
CORECOMM COMMUNICATIONS, INC.
CORECOMM LIMITED
CORECOMM HOLDCO, INC.
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral Agent
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CHASE SECURITIES INC.,
as Book Manager and Lead Arranger
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms........................................................................1
SECTION 1.02. Classification of Loans and Borrowings..............................................36
SECTION 1.03. Terms Generally.....................................................................36
SECTION 1.04. Accounting Terms; GAAP..............................................................37
ARTICLE II
The Credits
SECTION 2.01. Commitments.........................................................................38
SECTION 2.02. Loans and Borrowings................................................................38
SECTION 2.03. Requests for Borrowings.............................................................39
SECTION 2.04. Letters of Credit...................................................................40
SECTION 2.05. Funding of Borrowings...............................................................46
SECTION 2.06. Interest Elections..................................................................47
SECTION 2.07. Termination and Reduction of Commitments............................................49
SECTION 2.08. Repayment of Loans; Evidence of Debt................................................49
SECTION 2.09. Automatic Commitment Reductions;
Amortization of Tranche A Term Loans.................................50
SECTION 2.10. Prepayment of Loans.................................................................52
SECTION 2.11. Fees................................................................................54
SECTION 2.12. Interest............................................................................55
SECTION 2.13. Alternate Rate of Interest..........................................................57
SECTION 2.14. Increased Costs.....................................................................57
SECTION 2.15. Break Funding Payments..............................................................59
SECTION 2.16. Taxes...............................................................................59
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.........................61
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders..............................................................63
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers................................................................64
SECTION 3.02. Authorization; Enforceability.......................................................64
SECTION 3.03. Governmental Approvals; No Conflicts................................................65
SECTION 3.04. Financial Condition; No Material Adverse
Change...............................................................65
SECTION 3.05. Properties..........................................................................66
SECTION 3.06. Litigation and Environmental Matters................................................66
SECTION 3.07. Compliance with Laws and Agreements.................................................67
SECTION 3.08. Investment and Holding Company Status...............................................67
SECTION 3.09. Taxes...............................................................................67
SECTION 3.10. ERISA...............................................................................68
SECTION 3.11. Disclosure..........................................................................68
SECTION 3.12. Subsidiaries........................................................................68
SECTION 3.13. Insurance...........................................................................69
SECTION 3.14. Labor Matters.......................................................................69
SECTION 3.15. Security Interests..................................................................69
SECTION 3.16. Regulatory Compliance...............................................................71
ARTICLE IV
Conditions
SECTION 4.01. Effective Date......................................................................72
SECTION 4.02. Each Credit Event...................................................................75
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other
Information..........................................................79
SECTION 5.02. Notices of Material Events..........................................................82
SECTION 5.03. Information Regarding Collateral....................................................82
SECTION 5.04. Existence; Conduct of Business......................................................83
SECTION 5.05. Payment of Obligations..............................................................84
SECTION 5.06. Maintenance of Properties...........................................................84
SECTION 5.07. Insurance...........................................................................84
SECTION 5.08. Casualty and Condemnation...........................................................84
SECTION 5.09. Books and Records; Inspection and Audit
Rights...............................................................85
SECTION 5.10. Compliance with Laws................................................................85
SECTION 5.11. Use of Proceeds and Letters of Credit...............................................85
SECTION 5.12. Additional Subsidiaries.............................................................85
SECTION 5.13. Further Assurances..................................................................86
SECTION 5.14. Interest Rate Protection............................................................87
SECTION 5.15. Cash Collateral Account.............................................................87
SECTION 5.16. Strategic Initiatives...............................................................87
SECTION 5.17. Financial Advisor ..................................................................87
SECTION 5.18. Selection and Engagement of Investment
Bank.................................................................87
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness of the Parent and CCI;
Certain Equity Securities............................................88
SECTION 6.02. Indebtedness of Restricted Subsidiaries.............................................90
SECTION 6.03. Liens...............................................................................92
SECTION 6.04. Sale and Lease-Back Transactions....................................................93
SECTION 6.05. Fundamental Changes.................................................................94
SECTION 6.06. Investments, Loans, Advances, Guarantees
and Acquisitions.....................................................95
SECTION 6.07. Asset Sales.........................................................................96
SECTION 6.08. Hedging Agreements..................................................................97
SECTION 6.09. Restricted Payments; Certain Payments of
Indebtedness.........................................................97
SECTION 6.10. Transactions with Affiliates........................................................99
SECTION 6.11. Restrictive Agreements.............................................................100
SECTION 6.12. Amendment of Material Documents....................................................100
SECTION 6.13. Minimum Active Access Lines........................................................101
SECTION 6.14. Minimum On-Net Access Lines........................................................101
SECTION 6.15. Minimum............................................................................102
SECTION 6.16. Secured Debt to Total Capital......................................................102
SECTION 6.17. Total Debt to Total Capital........................................................102
SECTION 6.18. Positive EBITDA....................................................................102
SECTION 6.19. Maximum Secured Debt to Annualized
EBITDA..............................................................102
SECTION 6.20. Maximum Total Debt to Annualized EBITDA............................................103
SECTION 6.21. Minimum Consolidated EBITDA to Cash
Interest Expense....................................................103
SECTION 6.22. Minimum Consolidated EBITDA to
Consolidated Fixed Charges..........................................104
SECTION 6.23. Maximum Capital Expenditures.......................................................104
SECTION 6.24. Designation of Unrestricted
Subsidiaries........................................................105
SECTION 6.25. License Subsidiaries...............................................................107
SECTION 6.26. Certain Sales......................................................................107
ARTICLE VII
Events of Default.......................................107
ARTICLE VIII
The Administrative Agent....................................111
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................................................113
SECTION 9.02. Waivers; Amendments................................................................114
SECTION 9.03. Expenses; Indemnity; Damage Waiver.................................................116
SECTION 9.04. Successors and Assigns.............................................................118
SECTION 9.05. Survival...........................................................................121
SECTION 9.06. Counterparts; Integration;
Effectiveness.......................................................122
SECTION 9.07. Severability.......................................................................122
SECTION 9.08. Right of Setoff....................................................................122
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process..................................................123
SECTION 9.10. WAIVER OF JURY TRIAL...............................................................124
SECTION 9.11. Headings...........................................................................124
SECTION 9.12. Confidentiality....................................................................124
SECTION 9.13. Interest Rate Limitation...........................................................125
SECTION 9.14. Special Funding Option.............................................................126
SECTION 9.15. Release of Subsidiaries, Subordination of
Certain Liens.......................................................128
CREDIT AGREEMENT dated as of September
28, 2000, as amended and restated as of April
11, 2001 (this "Agreement"), among CoreComm
Limited (the "Parent"), CoreComm Holdco, Inc.
("CCI"), CoreComm Communications, Inc. (the
"Borrower"), the Lenders party hereto, and The
Chase Manhattan Bank, as Administrative Agent
and Collateral Agent.
WHEREAS, the Parent, CCI, the Borrower and Chase, as
lender and agent, have previously entered into that certain Credit
Agreement dated as of September 28, 2000, and have amended such agreement
under the terms of a First Amendment (the "First Amendment") dated as of
December 15, 2000, and a Second Amendment (the "Second Amendment") dated as
of January 25, 2001 (as so amended, the "Original Credit Agreement")(terms
used in the recitals but not defined have the meanings assigned to such
terms in Section 1.01);
WHEREAS, the Parent, CCI and the Borrower have requested
that the Lenders approve further amendments to the Original Credit
Agreement;
WHEREAS, the Lenders are willing, subject to the terms and
conditions set forth herein, to approve such amendments; and
WHEREAS, the parties hereto wish to amend and restate the
Original Credit Agreement to reflect all of the amendments agreed to by the
parties as of the Restatement Date.
NOW, THEREFORE, in consideration of the foregoing and for
other valuable consideration, the adequacy and sufficiency of which is
hereby acknowledged, the parties hereto agree that upon the Restatement
Effective Date, the Original Credit Agreement shall be amended and restated
in its entirety as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Alternate Base
Rate.
"Acquisition Documents" means the ATX Acquisition Documents
and the Voyager Acquisition Documents.
"Acquisitions" means the ATX Acquisition and the Voyager
Acquisition.
"Active Access Lines" means, on any date, the total
number of telephony and DSL dedicated data access lines provided by the
Parent, the Borrower and the other Restricted Subsidiaries (including
through resale arrangements) to customers of the Parent, the Borrower and
the other Restricted Subsidiaries whose service payments are not overdue to
a point where service is generally disconnected.
"Adjusted LIBO Rate" means, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the
LIBO Rate for such interest period multiplied by (b) the Statutory Reserve
Rate.
"Administrative Agent" means The Chase Manhattan Bank, in
its capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
"Agent" means The Chase Manhattan Bank, in its capacities
as Administrative Agent and Collateral Agent.
"Alternate Base Rate" means, for any day, a rate per
annum equal to the greater of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
Any change in the Alternate Base Rate due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"Annualized EBITDA" means, in respect of any fiscal
quarter, the product of (a) Consolidated EBITDA for the period of two
consecutive fiscal quarters ending on the last day of such fiscal quarter
times (b) two.
"AOL" means America Online, Inc.
"Applicable Commitment Fee Rate" means, with respect to
the commitment fee payable pursuant to Section 2.11(a), a rate per annum
equal to (x) 1.50% for each day on which Usage is less than or equal to
33.33%, (y) 1.25% for each day on which Usage is greater than 33.33% but
less than or equal to 66.66% and (z) 1.00% for each day on which Usage is
greater than 66.66%. For purposes of the foregoing, "Usage" means, on any
date, the percentage obtained by dividing (i) the sum of the aggregate
outstanding Tranche A Term Loans and the aggregate Revolving Exposure on
such date by (ii) the sum of the aggregate outstanding Tranche A Term Loans
and Revolving Commitments on such date.
"Applicable Percentage" means, with respect to any
Revolving Lender, the percentage of the total Revolving Commitments
represented by such Lender's Revolving Commitment. If the Revolving
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Revolving Commitments most recently in effect,
giving effect to any assignments.
"Applicable Rate" means 4.50% per annum with respect to
any Eurodollar Borrowing and 3.50% per annum with respect to any ABR
Borrowing.
"Arranger" means each financial institution that the
Administrative Agent and the Borrower designate as an "Arranger" in writing
so long as such financial institution is a Lender hereunder.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the consent of
any party whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved
by the Administrative Agent.
"ATX" means ATX Telecommunications Services, Inc., a Delaware
corporation and any successor thereto by merger or otherwise.
"ATX Acquisition" means the acquisition by Holdings of
ATX pursuant to the ATX Acquisition Documents.
"ATX Acquisition Documents" means the Recapitalization
Agreement and Plan of Merger, dated as of March 9, 2000, by and among ATX,
the ATX Stockholders and the Parent, as amended.
"ATX Notes" means the promissory notes of the Parent
dated September 29, 2000 in an initial aggregate principal amount of
$108,668,636 issued by the Parent to stockholders of ATX pursuant to the
ATX Note Purchase Agreement Documents in partial payment of the
consideration payable by the Parent for the ATX Acquisition.
"ATX Note Purchase Agreement" means the Note Purchase
Agreement made as of September 29, 2000, among the Parent and the initial
purchasers of the ATX Notes.
"Board" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Board of Directors" means the Board of Directors of the
Borrower, or any committee thereof duly authorized to act on behalf of the
Board of Directors.
"Booth" means Booth American Company.
"Borrower" means CoreComm Communications, Inc., a Delaware
corporation and a Wholly Owned Subsidiary of the Parent and CCI.
"Borrowing" means Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City are
authorized or required by law to remain closed; provided that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
"Capital Expenditures" means, for any period, without
duplication, (a) the additions to property, plant and equipment and other
capital expenditures of the Parent, the Borrower and the other Restricted
Subsidiaries that are (or would be) set forth in a consolidated statement
of cash flows of the Parent for such period prepared in accordance with
GAAP and (b) the amount of Capital Lease Obligations incurred by the
Parent, the Borrower and the other Restricted Subsidiaries during such
period.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of
(or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock
of a corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options to
purchase or subscribe for any of the foregoing, or any warrants, rights or
options to purchase or subscribe for any such warrants, rights or options.
"CCI" means CoreComm Holdco, Inc., a Delaware
corporation, which is a Wholly Owned Subsidiary of the Parent.
"Cash Collateral Account" has the meaning assigned to
such term in Section 4.03(f).
"Change of Control" means (a) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person
(i) other than the Parent of any Equity Interest in CCI or (ii) other than
CCI of any Equity Interest in the Borrower; (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person
or group (within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect on
the date hereof) of Equity Interests representing more than 35% of the
aggregate ordinary voting power represented by the issued and outstanding
Equity Interests in the Parent; (c) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Parent by
Persons who were neither (i) nominated by the board of directors of the
Parent on the date hereof nor (ii) appointed by directors so nominated; or
(d) the occurrence of a "Change of Control" or similar event (i) as defined
in any indenture or other agreement governing Long-Term Indebtedness of the
Parent or CCI which gives holders of such Indebtedness the right (pursuant
to a tender offer or otherwise) to have it repurchased by the Parent or CCI
or to declare such Indebtedness due and payable or (ii) as described in the
agreement governing the commitment to provide the Senior Unsecured
Facility, until the commitment to provide such facility has been terminated
for a reason other than a "Change of Control" or similar event.
"Change in Law" means (a) the adoption of any law, rule
or regulation after the date of this Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance
by any Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by
any lending office of such Lender or by such Lender's or the Issuing Bank's
holding company, if any) with any request, guideline or directive (whether
or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Chase" means The Chase Manhattan Bank.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Tranche A Term Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Commitment or
Tranche A Commitment.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" means any and all "Collateral", as defined
in any Security Document.
"Collateral Agent" means The Chase Manhattan Bank, in its
capacity as collateral agent under the Loan Documents.
"Collateral and Guarantee Requirement" means the
requirement that:
(a) the Collateral Agent shall have received (i) from the
Borrower, the Parent and the Subsidiary Loan Parties a counterpart
of each of the Security Documents duly executed and delivered on
behalf of all Loan Parties party thereto and (ii) in the case of
any Person that becomes a Subsidiary Loan Party after the
Effective Date, a supplement to each Security Document, in the
form specified therein, duly executed and delivered on behalf of
such Subsidiary Loan Party;
(b) all outstanding Equity Interests of the Borrower, CCI
and each other Restricted Subsidiary owned by or on behalf of any
Loan Party shall have been pledged pursuant to the Pledge
Agreement (except that the Loan Parties shall not be required to
pledge more than 65% of the outstanding voting Equity Interests of
any subsidiary of the Borrower that is a Foreign Subsidiary) and
the Agent shall have received certificates or other instruments
representing all such Equity Interests, together with stock powers
or other instruments of transfer with respect thereto endorsed in
blank;
(c) each promissory note evidencing any Indebtedness of the
Parent, the Borrower or any Subsidiary that is owing to any Loan Party
shall have been pledged pursuant to the Pledge Agreement and the Agent
shall have received all such promissory notes, together with instruments
of transfer with respect thereto endorsed in blank;
(d) all documents and instruments, including Uniform Commercial
Code financing statements, required by law or reasonably requested by the
Agent to be filed, registered or recorded to create the Liens intended to
be created by the Security Documents and perfect such Liens to the extent
required by, and with the priority required by, the Security Documents,
shall have been filed, registered or recorded or delivered to the Agent
for filing, registration or recording or arrangements satisfactory to the
Agent shall have been made therefor;
(e) the Collateral Agent shall have received (i) counterparts of
a Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy
or policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid
first Lien on the Mortgaged Property described therein, free of any other
Liens except as expressly permitted by Section 6.03, together with such
endorsements, coinsurance and reinsurance as the Agent or the Required
Lenders may reasonably request, and (iii) such surveys, abstracts,
appraisals, legal opinions and other documents as the Agent or the
Required Lenders may reasonably request with respect to any such Mortgage
or Mortgaged Property; and
(f) each Loan Party shall have obtained all consents and
approvals required to be obtained by it in connection with the execution
and delivery of all Security Documents to which it is a party, the
performance of its obligations thereunder and the granting by it of the
Liens thereunder.
"Commitment" means a Revolving Commitment.
"Communications Act" means the Communications Act of 1934 and
any similar or successor Federal statute and the rules, regulations and
published policies of the Federal Communications Commission thereunder, all
as amended and as the same may be in effect from time to time.
"Consolidated Cash Interest Expense" means, for any period, the
excess of (a) the sum of (i) the interest expense (including imputed
interest expense in respect of Capital Lease Obligations) of the Parent,
the Borrower and the other Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, (ii) any
interest accrued during such period in respect of Indebtedness of the
Parent, the Borrower or any other Restricted Subsidiary that is required to
be capitalized rather than included in consolidated interest expense for
such period in accordance with GAAP, (iii) any cash payments made during
such period in respect of obligations referred to in clause (b)(ii) below
that were amortized or accrued in a previous period, minus (b) the sum of
(i) to the extent included in such consolidated interest expense for such
period, non-cash amounts attributable to amortization of financing costs
paid in a previous period, plus (ii) to the extent included in such
consolidated interest expense for such period, non-cash amounts
attributable to amortization of debt discounts or accrued interest payable
in kind for such period.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period plus (a) without duplication and to the extent
deducted in determining such Consolidated Net Income, the sum of (i)
consolidated interest expense for such period, (ii) consolidated income tax
expense for such period, (iii) all amounts attributable to depreciation and
amortization for such period, and (iv) any extraordinary non-cash charges
for such period, and minus (b) without duplication and to the extent
included in determining such Consolidated Net Income, any extraordinary
gains for such period, all determined on a consolidated basis in accordance
with GAAP.
"Consolidated Fixed Charges" means, for any period, the sum of
(a) Consolidated Cash Interest Expense for such period, (b) the aggregate
amount of scheduled principal payments made during such period in respect
of Long-Term Indebtedness, including Capital Lease Obligations, of the
Parent, the Borrower and the other Restricted Subsidiaries, (c) the
aggregate amount of rental expense of the Parent, the Borrower and the
other Restricted Subsidiaries during such period in respect of leases other
than Capital Lease Obligations, (d) the aggregate amount of Capital
Expenditures during such period and (e) the aggregate amount of Taxes paid
in cash by the Parent, the Borrower and the other Restricted Subsidiaries
during such period.
"Consolidated Net Income" means, for any period, the net income
or loss of the Parent, the Borrower and the other Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income of any Person in which
any other Person (other than the Parent, the Borrower or any other
Restricted Subsidiary or any director holding qualifying shares in
compliance with applicable law) owns an Equity Interest, except to the
extent of the amount of dividends or other distributions actually paid to
the Parent, the Borrower or any of the other Restricted Subsidiaries during
such period, and (b) the income or loss of any Person accrued prior to the
date it becomes a Subsidiary or is merged into or consolidated with the
Parent, the Borrower or any other Restricted Subsidiary or the date that
such Person's assets are acquired by the Parent, the Borrower or any other
Restricted Subsidiary.
"Consolidated Service Revenue" means, for any period, the
revenues of the Parent, the Borrower and the other Restricted Subsidiaries
for such period, excluding any revenues (i) representing interest or
investment income, (ii) representing dividends or distributions from
Unrestricted Subsidiaries and (iii) representing any extraordinary revenues
from non-ordinary course of business transactions, including without
limitation revenues from the sale or disposition of businesses, assets
(other than in the ordinary course of business) or investments or from any
Prepayment Event.
"Contributed Capital" means, at any date, the sum (without
duplication) of (a) $326,836,000, plus (b) Equity Proceeds received by the
Parent subsequent to June 30, 2000, plus (c) the amount of Conversion
Proceeds received by the Parent after June 30, 2000, in respect of
convertible securities that were not included in the combined stockholders
equity of the Parent, the Borrower and the other Restricted Subsidiaries as
of June 30, 2000, plus (d) the undrawn commitments under the Senior
Unsecured Facility on such date which have neither expired or been
terminated.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract
or otherwise. "Controlling" and "Controlled" have meanings correlative
thereto.
"Conversion Proceeds" means an amount deemed for purposes hereof
to have been received by the Parent at the time of conversion of any
convertible debt securities (other than New Convertible Notes) or preferred
stock (other than Non- Cash Pay Preferred Stock) of the Parent into common
stock or Non-Cash Pay Preferred Stock of the Parent equal to the principal
amount (or Imputed Principal Amount, as applicable) of such debt securities
or preferred stock so converted.
"Convertible Note Condition" means (a) the conversion prior to
April 1, 2006 of all the outstanding Convertible Notes into common stock of
the Parent and/or (b) the repayment prior to April 1, 2006 of all the
Convertible Notes with Net Proceeds from the issuance of unsecured
Long-Term Indebtedness of the Parent that is subordinated to the
Obligations in a manner reasonably satisfactory to the Administrative Agent
and that does not mature or amortize until the date that is eight years and
six months after the Effective Date, with the result that no Convertible
Notes are outstanding on April 1, 2006.
"Convertible Notes" means the Parent's 6% Convertible Notes due
2006.
"CSI" means Chase Securities Inc.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless
cured or waived, become an Event of Default.
"Derivatives Counterparty" means any financial institution,
commodities or stock exchange or clearinghouse with which the Parent, the
Borrower or any other Restricted Subsidiary enters into a derivatives
transaction.
"Disclosed Matters" means the actions, suits and proceedings and
the environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means September 28, 2000, on which date the
Original Credit Agreement became effective.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental
Authority, relating to the pollution or protection of the environment,
preservation or reclamation of natural resources, the management, release
or threatened release of any Hazardous Material.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Parent, the Borrower,
any other Restricted Subsidiary or (to the extent that the Parent, the
Borrower or any other Restricted Subsidiary may be liable as a result
thereof) any Unrestricted Subsidiary, directly or indirectly resulting from
or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of
the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"Equity Proceeds" means the cash Net Proceeds received by the
Parent from the issuance and sale of common stock of the Parent or Non-Cash
Pay Preferred Stock of the Parent.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to
a Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability under Title IV
of ERISA with respect to the termination of any Plan; (e) the receipt by
the Borrower or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan;
or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excess Capital" means, during any fiscal year, the aggregate
amount of Net Proceeds from the issuance of Indebtedness permitted to be
incurred under this Agreement (other than any proceeds of the Initial
Permitted Financing (including the Senior Unsecured Facility) and the
Loans) received during such year and not required to be applied to prepay
Term Borrowings pursuant to Section 2.10 or other Indebtedness, including
the ATX Notes.
"Excess Cash Flow" means, for any fiscal period, the sum
(without duplication) of:
(a) Consolidated Net Income for such fiscal period, adjusted to
exclude any gains or losses attributable to Prepayment Events; plus
(b) depreciation, amortization and other non-cash charges or
losses deducted in determining such Consolidated Net Income for such
fiscal period; plus
(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such fiscal period plus (ii) the net amount, if
any, by which the deferred revenues of the Parent, the Borrower and the
other Restricted Subsidiaries increased during such fiscal period plus
(iii) the amount, if any, by which the deferred cash expenses of the
Parent, the Borrower and the other Restricted Subsidiaries decreased
during such fiscal period; minus
(d) the sum of (i) any non-cash gains included in determining
such Consolidated Net Income for such fiscal period plus (ii) the amount,
if any, by which Net Working Capital increased during such fiscal period
plus (iii) the amount, if any, by which the deferred revenues of the
Parent, the Borrower and the other Restricted Subsidiaries decreased
during such fiscal period plus (iv) the amount, if any, by which the
deferred cash expenses of the Parent, the Borrower and the other
Restricted Subsidiaries increased during such fiscal period; minus
(e) the sum of (i) Capital Expenditures paid in cash during such
fiscal period (except to the extent attributable to the incurrence of
Capital Lease Obligations or otherwise financed by incurring Long-Term
Indebtedness and except to the extent paid with Net Proceeds in respect
of Prepayment Events or from the issuance of Capital Stock) plus (ii)
cash consideration paid during such fiscal period to make Permitted
Business Acquisitions or other investments permitted hereunder (other
than Permitted Investments and except to the extent financed by incurring
Long-Term Indebtedness or issuing Capital Stock); minus
(f) cash payments made during such fiscal period which were not
deducted in determining such Consolidated Net Income for such fiscal
period that will in a subsequent fiscal period become a non-cash charge
deducted in determining Consolidated Net Income for such subsequent
fiscal period; minus
(g) the aggregate principal amount of Long-Term Indebtedness
repaid or prepaid in cash by the Parent, the Borrower and the other
Restricted Subsidiaries during such fiscal period, excluding (i)
Indebtedness in respect of Revolving Loans and Letters of Credit (unless
accompanied by a corresponding permanent reduction in the Revolving
Commitments), (ii) Tranche A Term Loans prepaid pursuant to Section
2.10(b) or (c), and (iii) repayments or prepayments of Long-Term
Indebtedness financed by incurring other Long-Term Indebtedness or
issuing Capital Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment
to be made by or on account of any obligation of the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending
office is located, (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other jurisdiction
described in clause (a) above and (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section
2.18(b)), any withholding tax that (i) is in effect and would apply to
amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect
to any withholding tax pursuant to Section 2.16(a), or (ii) is attributable
to such Foreign Lender's failure to comply with Section 2.16(e).
"Executive Officer" means the chief executive officer, the
president, the chief financial officer, the secretary, the treasurer or a
vice president of any Loan Party.
"FCC" means the United States Federal Communications Commission,
and any successor agency thereto.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fiberstream" means Fiberstream, Inc., a Delaware corporation.
"Financial Covenants" means the covenants set forth in Sections
6.16 through 6.23, inclusive.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of any Loan Party.
"First Amendment" has the meaning assigned to such term in the
preamble.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America or
any State thereof or the District of Columbia.
"Funded Debt" means, as of any date, the sum of all Indebtedness
for borrowed money of the Parent, the Borrower and the other Restricted
Subsidiaries, determined on a consolidated basis, which by its terms
matures more than one year after such date, and any such Indebtedness for
borrowed money maturing within one year from such date which is renewable
or extendible at the option of the obligor to a date more than one year
from such date.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Goldman" means Xxxxxxx Sachs Credit Partners L.P.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any
security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to
pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support
such Indebtedness or obligation; provided, that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course
of business.
"Guarantee Agreement" means the Guarantee Agreement among the
Parent, the Subsidiary Guarantors and the Collateral Agent dated as of
September 28, 2000.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price
hedging arrangement.
"Imputed Principal Amount" means, with respect to any class of
preferred stock, the maximum amount that would be payable upon mandatory
redemption or repurchase of all such preferred stock or, if no mandatory
redemption or repurchase is applicable, the greater of the issue price or
liquidation preference of such preferred stock.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c)
all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business and earn-out agreements), (e) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person,
(h) all obligations, contingent or otherwise, of such Person as an account
party in respect of letters of credit and letters of guaranty and (i) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such Person is a
general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement among the Parent, CCI,
the Borrower and the Subsidiary Guarantors dated as of September 28, 2000.
"Information Memorandum" means the Information Memorandum dated
August 2000 relating to the Parent, the Borrower and the Transactions.
"Initial Permitted Financing" means one or more Permitted Parent
Financings (including the Senior Unsecured Facility) consummated after
August 10, 2000 (other than any financing or portion thereof effected in
lieu of, or used to refinance, any portion of the $119,000,000 principal
amount, or anticipated principal amount, of the ATX Notes) generating
aggregate gross cash proceeds of $100,000,000.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance
with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan,
the last day of each calendar month and (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Eurodollar Borrowing with
an Interest Period of more than one month's duration, each day prior to the
last day of such Interest Period that occurs at intervals of one month's
duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending
on the numerically corresponding day in the calendar month that is one,
two, three or six months thereafter as the Borrower may elect; provided,
that (a) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business
Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (b) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of
such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation
of such Borrowing.
"Investment" means purchasing, holding or acquiring (including
pursuant to any merger with any Person that was not a Wholly Owned
Restricted Subsidiary prior to such merger) any Capital Stock, evidences of
indebtedness or other securities (including any option, warrant or other
right to acquire any of the foregoing) of, or making or permitting to exist
any loans or advances (other than commercially reasonable extensions of
trade credit) to, guaranteeing any obligations of, or making or permitting
to exist any investment in, any other Person, or purchasing or otherwise
acquiring (in one transaction or a series of transactions) any assets of
any Person constituting a business unit. For purposes hereof, the term
"Investment" shall also include any royalty, license or other fees paid by
any Loan Party to any Subsidiary that is not a Loan Party in respect of or
for the use of or rights to any patents, trademarks or other intangible
assets, which payments will be deemed to be investments in such Subsidiary.
The amount, as of any date of determination, of any Investment shall be the
original cost of such Investment (including any Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary in
connection with any Investment and any Indebtedness assumed in connection
with any acquisition of assets), plus the cost of all additions, as of such
date, thereto and minus the amount, as of such date, of any portion of such
Investment repaid to the investor in cash or property as a repayment of
principal or a return of capital, as the case may be (except to the extent
such repaid amount has been included in Consolidated Net Income), but
without any other adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment. In
determining the amount of any Investment or repayment involving a transfer
of any property other than cash, such property shall be valued at its fair
market value at the time of such transfer.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity
as the issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.05(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b)
the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Revolving Lender at any time shall be its Applicable Percentage of the
total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01(a) and any
other Person that shall have become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Acceptance.
"Lender Affiliate" means (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of
credit in the ordinary course of its business and is administered or
managed by a Lender or an Affiliate of such Lender and (b) with respect to
any Lender that is a fund which invests in bank loans or similar extensions
of credit in the ordinary course of business, any Related Fund; provided,
that no entity shall be a "Lender Affiliate" unless such entity is capable
of performing the applicable obligations of a Lender hereunder.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement.
"Leverage Ratio" means, on any date, the ratio of (a) Total Debt
as of such date to (b) Annualized EBITDA in respect of the fiscal quarter
of the Parent ended on such date (or, if such date is not the last day of a
fiscal quarter, ended on the last day of the fiscal quarter of the Parent
most recently ended prior to such date).
"LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx
Market Service (or on any successor or substitute page of such Service, or
any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market), rounded upwards, if necessary, to the nearest
1/100th of a percent, at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the
rate for dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any
reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.
"License" means any license granted by the FCC (other than any
landing license granted by the FCC pursuant to Section 214 of the
Communications Act) or any equivalent foreign telecommunications regulatory
body.
"License Subsidiary" means Xxxxxxxxx Communications Corp., a
Delaware corporation, and any other wholly owned direct subsidiary of the
Borrower designated as a License Subsidiary by notice to the Administrative
Agent; provided, however, that (i) such Subsidiary is a Subsidiary Loan
Party and has no obligations or liabilities other than as permitted by
Section 6.25, (ii) all the Capital Stock of such Subsidiary is pledged to
the Collateral Agent for the benefit of the Secured Parties under the
Pledge Agreement and (iii) the Parent, the Borrower and such Subsidiary
have entered into a Special Purpose Subsidiary Funding Agreement.
"Lien" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset and (c) in the case
of securities, any purchase option, call or similar right of a third party
with respect to such securities.
"LMDS Business" means the business of (or potential business of)
the Loan Parties relating to any utilization of LMDS Technology or the LMDS
Licenses and any assets owned by the Parent or any Subsidiary that are
predominantly used or intended for use in connection with the LMDS
technology.
"LMDS Licenses" means the FCC Licenses covering local multipoint
distribution services which are owned by the Borrower on the date of this
Agreement.
"LMDS Technology" means technology utilizing a fixed broadband
wireless system for delivery of multiple telecommunications and television
distribution services.
"Loan Documents" means this Agreement and the Security Documents.
"Loan Parties" means the Parent, the Borrower and the Subsidiary
Loan Parties.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Long-Term Indebtedness" means any Indebtedness that, in
accordance with GAAP, constitutes (or, when incurred, constituted) a
long-term liability.
"Material Adverse Effect" means a material adverse effect on (a)
the actual or prospective business, assets, operations or condition
(financial or otherwise) of the Parent, the Borrower and the other
Restricted Subsidiaries, taken as a whole, (b) the ability of any Loan
Party to perform any of its material obligations under any Loan Document or
(c) the rights of or benefits available to the Administrative Agent, the
Collateral Agent and the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Parent, the Borrower and the other
Restricted Subsidiaries in an aggregate principal amount exceeding
$5,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Parent, the Borrower or any
other Restricted Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Parent, the Borrower or such other Restricted
Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time (or is required to pay, if such Hedging Agreement
has been terminated).
"Moody's" means Xxxxx'x Investors Service, Inc., or, if Xxxxx'x
Investors Service, Inc. shall cease rating the specified debt securities,
and such ratings business has been transferred to a successor Person, such
successor Person.
"Mortgage" means a mortgage, deed of trust, assignment of leases
and rents, leasehold mortgage or other security document granting a Lien on
any Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"Mortgaged Property" means each parcel of real property and the
improvements thereto with respect to which a Mortgage is granted pursuant
to Section 5.12 or 5.13.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash
proceeds received in respect of such event including (i) any cash received
in respect of any non-cash proceeds, but only as and when received, (ii) in
the case of a casualty, insurance proceeds, and (iii) in the case of a
condemnation or similar event, condemnation awards and similar payments,
net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses
paid by the Loan Parties to third parties (other than Affiliates) in
connection with such event, (ii) in the case of a sale, transfer or other
disposition of an asset (including pursuant to a sale and leaseback
transaction or a casualty or a condemnation or similar proceeding), the
amount of all payments required to be made by the Loan Parties as a result
of such event to repay Indebtedness (other than Loans) secured by such
asset or otherwise subject to mandatory prepayment as a result of such
event, and (iii) the amount of all taxes paid (or reasonably estimated to
be payable, provided, that such amounts withheld or estimated for tax
payments shall, to the extent not utilized for the payment of taxes, be
deemed to be Net Proceeds) by the Loan Parties, and the amount of any
reserves established by the Loan Parties to fund contingent liabilities
reasonably estimated to be payable (provided that any reversal of any such
reserves will be deemed to be Net Proceeds in the amount of such reversal),
in each case that are directly attributable to such event (as determined
reasonably and in good faith by the chief financial officer of the Parent).
"Net Working Capital" means, at any date, (a) the consolidated
current assets of the Parent, the Borrower and the other Restricted
Subsidiaries as of such date (excluding cash and Permitted Investments)
minus (b) the consolidated current liabilities of the Parent, the Borrower
and the other Restricted Subsidiaries as of such date (excluding current
liabilities in respect of Indebtedness). Net Working Capital at any date
may be a positive or negative number. Net Working Capital increases when it
becomes more positive or less negative and decreases when it becomes less
positive or more negative.
"New Convertible Notes" means CCI's senior unsecured convertible
notes in the aggregate principal amount of $41,100,000, $15,100,000 of
which were originally issued on December 15, 2000 (the "Original New
Convertible Notes"), $1,000,000 of which were issued on or about December
26, 2000, in substantially identical form to the Original New Convertible
Notes, and $25,000,000 of which were issued on or prior to the Restatement
Effective Date, on terms and conditions satisfactory to the Administrative
Agent.
"New Preferred Stock" means any preferred stock of the Parent
issued after the Effective Date that would qualify as Non-Cash Pay
Preferred Stock except for (i) any requirement that cash dividends accrue
in respect of periods after the third anniversary of the Effective Date and
(ii) any provision permitting conversion into, or exchange for, Permitted
Parent Indebtedness or other New Preferred Stock.
"Non-Cash Pay Preferred Stock" means preferred stock of the
Parent which (i) is not mandatorily redeemable, in whole or part, or
required to be repurchased or reacquired, in whole or in part, by the
Parent, the Borrower or any other Restricted Subsidiary, and which does not
require any payment of cash dividends, in each case, prior to March 22,
2009; provided, however, that any preferred stock which would constitute
Non-Cash Pay Preferred Stock but for provisions thereof giving holders
thereof the right to require the Parent to repurchase or redeem such
preferred stock upon the occurrence of a change of control shall constitute
Non-Cash Pay Preferred Stock if the change of control provisions (other
than the purchase price) applicable to such preferred stock are no more
favorable to the holders of such preferred stock than the provisions
applicable to the Loans contained in this Agreement and such preferred
stock specifically provides that the Parent, the Borrower and the other
Restricted Subsidiaries will not repurchase or redeem any such preferred
stock pursuant to such provisions prior to the repayment of the Loans and
LC Disbursements and the termination of all Commitments hereunder, (ii) is
not secured by any assets of the Parent, the Borrower or any other
Restricted Subsidiary, (iii) is not Guaranteed by the Borrower or any other
Restricted Subsidiary and (iv) is not exchangeable or convertible into
Indebtedness of the Parent, the Borrower or any other Restricted Subsidiary
or any preferred stock (other than Non-Cash Pay Preferred Stock) of the
Parent, the Borrower or any Subsidiary.
"Nortel" means Nortel Networks Inc.
"Nortel Condition" means that (i) the outstanding trade payables
in the amount of approximately $22,000,000 owed by the Borrower to Nortel
on the Restatement Effective Date shall have been restructured as a term
loan in accordance with the provisions of the Nortel letter attached as
Schedule 6.01 hereto pursuant to one or more written agreements (including
security agreements) with Nortel in form and substance satisfactory to the
Administrative Agent and (ii) Nortel and the Administrative Agent, acting
on behalf of the Lenders, shall have executed and delivered an
intercreditor agreement on terms substantially consistent with those
contemplated by Schedule 6.01 and otherwise satisfactory in form and
substance to the Administrative Agent (which is hereby authorized by the
Lenders to enter into such an intercreditor agreement).
"NTL" means NTL Incorporated.
"Obligations" has the meaning assigned to such term in the
Guarantee Agreement.
"On-Net Access Lines" means, on any date, the total number of
telephony and DSL/dedicated data access lines provided by the Parent, the
Borrower and the other Restricted Subsidiaries through their owned or
leased telecommunications system network facilities (excluding lines
provided through resale agreements) to customers of the Parent, the
Borrower and the other Restricted Subsidiaries whose service payments are
not overdue to a point where service is generally disconnected.
"Operating Budget" shall the meaning assigned to such term in
Section 4.03(i).
"Original Credit Agreement" has the meaning assigned to such
term in the preamble.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes,
charges or levies arising from any payment made under any Loan Document or
from the execution, delivery or enforcement of, or otherwise with respect
to, any Loan Document.
"Parent Convertible Notes" means the CoreComm Limited
$175,000,000 6% Convertible Subordinated Notes due 2006.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar
functions.
"Perfection Certificate" means a certificate in the form of
Annex II to the Security Agreement or any other form approved by the
Collateral Agent.
"Permitted Business Acquisition" means any acquisition (by
merger or otherwise) by the Parent, the Borrower or a Subsidiary Loan Party
of all or substantially all the assets of, or all the Equity Interests in,
a Person or division or line of business of a Person, if (a) immediately
after giving effect thereto, no Default has occurred and is continuing or
would result therefrom, (b) any such acquired Person is organized under the
laws of the United States and any such acquired Person or business is
predominately engaged in one or more Telecommunications Businesses in the
United States, (c) each Subsidiary resulting from such acquisition (and
which survives such acquisition) shall be a Subsidiary Loan Party (unless
it is a Foreign Subsidiary) and all the Equity Interests of each such
Subsidiary shall be owned directly by the Parent, the Borrower and/or
Subsidiary Loan Parties and shall have been pledged pursuant to the Pledge
Agreement (subject to the limitations with respect to the pledge of Capital
Stock of Foreign Subsidiaries set forth therein), (d) the Collateral and
Guarantee Requirement shall have been satisfied with respect to each such
Subsidiary, (e) the Parent, the Borrower and the other Restricted
Subsidiaries are in compliance, on a pro forma basis after giving effect to
such acquisition (without giving effect to operating expense reductions),
with the Financial Covenants, to the extent then applicable, as if such
acquisition had occurred on the first day of the relevant period for
testing compliance, and (f) the Parent has delivered to the Agent an
officer's certificate to the effect set forth in clauses (a), (b), (c), (d)
and (e) above, together with all relevant financial information for the
Person or assets acquired and reasonably detailed calculations
demonstrating satisfaction of the requirement set forth in clause (e)
above.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 60 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations and deposits securing
liabilities to insurance carriers or in connection with self-insurance
arrangements;
(d) deposits to secure the performance of bides, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in
the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Parent, the Borrower or any
Restricted Subsidiary;
(g) restrictions on the transfer or pledge of assets contained
in any License or imposed by the Communications Act, comparable state or
local legislation, regulations or ordinances;
(h) leases or subleases granted to others not interfering in any
material respect with the business of the Parent, the Borrower and any
Restricted Subsidiary and any interest or title of a lessor under any
lease not prohibited by this Agreement;
(i) ground leases in respect of real property on which
facilities owned or leased by the Parent, the Borrower or any Restricted
Subsidiary are located;
(j) the filing of financing statements regarding operating
leases (other than in connection with Sale and Leaseback Transactions)
not prohibited by this Agreement; and
(k) with respect to each Mortgaged Property, the exceptions
listed in the title insurance policy relating to such Mortgaged Property.
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or place with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above; and
(e) investments in money market funds substantially all of whose
assets consist of securities of the types described in clauses (a)
through (d).
"Permitted Parent Financing" means the issuance of common stock
of the Parent, Non-Cash Pay Preferred Stock, New Preferred Stock or
Permitted Parent Indebtedness.
"Permitted Parent Indebtedness" means unsecured senior or
subordinated Indebtedness of the Parent or CCI that (a) is not Guaranteed
by the Borrower or any Restricted Subsidiary (other than CCI), (b) does not
mature or amortize or require any payment of principal, and is not subject
to any sinking fund requirement, prior to March 22, 2009 (other than
pursuant to a prepayment obligation), (c) is not convertible into or
exchangeable into any Indebtedness or Equity Interests other than a
Permitted Parent Financing, provided however that, the New Convertible
Notes may be convertible into Equity Interests in a Subsidiary so long as
(i) if such Subsidiary is a Restricted Subsidiary, (A) the holders of such
resulting Equity Interests enter into a consent agreement reasonably
satisfactory to the Collateral Agent in which such holders acknowledge and
consent to such Subsidiary's Guarantee of the Indebtedness hereunder and
its grant of security interests under the Loan Documents to secure the
Obligations and (B) the Required Lenders consent thereto and the terms of
this Agreement (including, without limitation, the Financial Covenants and
the definitions applicable thereto) are amended to account for the
existence of minority equity interests held by non-Loan Parties in such
Subsidiary, (ii) if such Subsidiary is an Unrestricted Subsidiary, the
Required Lenders shall otherwise consent if any related transactions with
respect to such Subsidiary are not permitted pursuant to this Agreement or
the other Loan Documents and (iii) the requisite lenders under the Senior
Unsecured Facility shall also consent thereto (if necessary pursuant to the
terms of the commitment under, or the definitive documentation for, such
facility), (d) either requires no cash interest payments or provides for a
pre-funded cash interest reserve sufficient to cover all interest
payments, in each case for the period of three years commencing on the
Effective Date, and (e) in the case of subordinated debt, contains
subordination terms reasonably satisfactory to the Administrative Agent.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
the Parent, the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" means the Pledge Agreement among the Parent,
CCI, the Borrower, the Subsidiary Guarantors and the Collateral Agent dated
as of September 28, 2000.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant
to a sale and leaseback transaction) of any property or asset of the
Parent, the Borrower or any other Restricted Subsidiary, other than (i)
dispositions described in clauses (a), (b) and (d) of Section 6.07, but
including in any event:
(i) the sale of the LMDS Business or any assets relating
thereto;
(ii) the sale of Voyager or any of the assets or business
acquired in the Voyager Acquisition; or
(iii) the sale of ATX or any of the assets or business
acquired in the ATX Acquisition;
(b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
Telecommunications Asset of the Parent, the Borrower or any other
Restricted Subsidiary;
(c) the incurrence by the Parent, the Borrower or any other
Restricted Subsidiary of any Indebtedness other than Indebtedness
permitted by Section 6.01(a) or Section 6.02; and
(d) the issuance or sale of any Equity Interests by the Parent,
the Borrower or any Restricted Subsidiary or the receipt of any Equity
Proceeds other than Equity Proceeds received after the Restatement
Effective Date in an aggregate amount not in excess of $30,000,000 and
not utilized to repay Indebtedness.
Notwithstanding the foregoing, so long as any Indebtedness under the Senior
Unsecured Facility remains outstanding, the term "Prepayment Event" shall
also mean the occurrence of any event (other than a Permitted Parent
Financing the proceeds of which are utilized to repay outstandings under
the Senior Unsecured Facility) that would require prepayment of
Indebtedness under the Senior Unsecured Facility in aggregate amount
greater than the aggregate amount of Loans which would be required to be
prepaid upon the occurrence of such event pursuant to Section 2.10 if this
sentence were not included in this definition, so that the Net Proceeds of
such event shall be applied first to prepay all outstanding Term Borrowings
before any Indebtedness under the Senior Unsecured Facility shall be
prepaid.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate
in effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
"Register" has the meaning set forth in Section 9.04.
"Related Fund" means with respect to any Lender that is a fund
that invests in bank loans or similar extensions of credit in the ordinary
course of business, any other fund that invests in bank loans or similar
extensions of credit in the ordinary course of business and is advised or
managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, trustees, partners,
members, officers, employees, agents and advisors of such Person and such
Person's Affiliates.
"Required Lenders" means, at any time, Lenders having aggregate
Revolving Exposures, Tranche A Term Loans and unused Commitments
representing more than 50.0% of the sum of the total Revolving Exposures,
outstanding Tranche A Term Loans and unused Commitments at such time.
"Restatement Effective Date" means the date the conditions in
Section 4.03 are satisfied (or waived in accordance with Section 9.02).
"Restricted Indebtedness" means Indebtedness of the Parent, the
Borrower or any Restricted Subsidiary the payment, prepayment, redemption,
repurchase or defeasance of which is restricted under Section 6.09(b).
"Restricted Payment" means (a) any dividend or other
distribution (whether in cash, securities or other property) with respect
to any Equity Interests in the Parent, the Borrower or any other Restricted
Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of (i) any
Equity Interests in the Parent, the Borrower or any other Restricted
Subsidiary or (ii) any option, warrant or other right to acquire any such
Equity Interests in the Parent, the Borrower or any other Restricted
Subsidiary or (b) any payment under a Synthetic Purchase Agreement.
"Restricted Subsidiary" means (i) each Subsidiary of the Parent
on the date hereof, including CCI and the Borrower, and (ii) each
Subsidiary of the Parent organized or acquired after the date hereof that
has not been designated an Unrestricted Subsidiary in accordance with the
provisions of Section 6.24.
"Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Sections 2.07, 2.09, and 2.10 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The amount of each Lender's Revolving Commitment on the
Restatement Effective Date is set forth on Schedule 2.01(a), or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed
its Revolving Commitment, as applicable. The aggregate amount of the
Lenders' Revolving Commitments on the Restatement Effective Date is
$50,000,000.
"Revolving Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and its LC Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"Revolving Loan" means a Loan made or deemed made pursuant to
clause (ii) of Section 2.01(a).
"Revolving Maturity Date" means April 1, 2006; provided that if
and when the Convertible Note Condition is satisfied prior to April 1,
2006, the Revolving Maturity Date will be September 22, 2008.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill Companies, or, if Standard & Poor's Ratings Group shall cease
rating the specified debt securities, and such ratings business has been
transferred to a successor Person, such successor Person.
"Secured Debt" means, on any date, the Loans and all other
Indebtedness that would be reflected as a liability on a consolidated
balance sheet of the Parent, the Borrower and the other Restricted
Subsidiaries prepared as of such date in accordance with GAAP and that is
secured by any assets of the Parent, the Borrower or any other Restricted
Subsidiary.
"Secured Parties" is defined in the Security Agreement.
"Security Agreement" means the Security Agreement among the
Parent, the Borrower, the Subsidiary Guarantors and the Collateral Agent
dated as of September 28, 2000.
"Security Documents" means the Security Agreement, the Pledge
Agreement, the Guarantee Agreement, the Indemnity, Subrogation and
Contribution Agreement, the Mortgages and each other security agreement or
other instrument or document executed and delivered pursuant to Section
5.12 or 5.13 to secure any of the Obligations.
"Senior Unsecured Facility" means the senior unsecured credit
facility provided for in the Commitment Letter dated September 19, 2000,
among The Chase Manhattan Bank, Chase Securities Inc. and CCI, under which
The Chase Manhattan Bank commits to make senior unsecured loans to CCI in
aggregate principal amount of $50,000,000.
"Special Purpose Subsidiary Funding Agreement" means an
agreement among the Parent, the Borrower and each License Subsidiary, in
form and substance satisfactory to the Administrative Agent, pursuant to
which (a) such License Subsidiary agrees to provide to the Borrower and the
other Restricted Subsidiaries the benefit of the use of such License
Subsidiary's assets, (b) the Parent and the Borrower jointly and severally
agree to pay to such License Subsidiary an amount equal to all liabilities
of such License Subsidiary as and when such liabilities become due and
payable (less any amounts contributed at such time to the equity of such
License Subsidiary to fund such liabilities), (c) the Parent and the
Borrower agree to cause all contractual obligations of such License
Subsidiary to be performed and all laws and regulations applicable to such
License Subsidiary to be complied with and (d) the Parent, the Borrower and
such License Subsidiary agree to the assignment by each of its rights
thereunder to the Collateral Agent for the benefit of the Secured Parties.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board and any other
banking authority to which the Administrative Agent is subject and
applicable to "Eurocurrency Liabilities", as such term is defined in
Regulation D of the Board, or any similar category of assets or liabilities
relating to eurocurrency fundings. Eurodollar Loans shall be deemed to
continue Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit or credit for proration, exemptions or offsets
that may be available to a Lender rom time to time under Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements
if such financial statements were prepared in accordance with GAAP as of
such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other
ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power or, in the case of a partnership, more
than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise Controlled,
by the parent or one or more subsidiaries of the parent or by the parent
and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Parent.
"Subsidiary Loan Party" means any Restricted Subsidiary (other
than the Borrower) that is not a Foreign Subsidiary, including without
limitation Fiberstream.
"Synthetic Purchase Agreement" means any swap, derivative or
other agreement or combination of agreements pursuant to which the Parent,
the Borrower or any Restricted Subsidiary is or may become obligated to
make (i) any payment in connection with a purchase by any third party from
a Person other than the Parent, the Borrower or any Restricted Subsidiary
of any Equity Interest or Restricted Indebtedness or (ii) any payment
(other than on account of a permitted purchase by it of any Equity Interest
or any Restricted Indebtedness) the amount of which is determined by
reference to the price or value at any time of any Equity Interest or
Restricted Indebtedness; provided that no phantom stock or similar plan
providing for payments only to current or former directors, officers or
employees of the Parent, the Borrower or any Restricted Subsidiary (or to
their heirs or estates) shall be deemed to be a Synthetic Purchase
Agreement.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Telecommunications 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,
but shall not include any Capital Stock or Equity Interests.
"Telecommunications Business" means the business of (i)
transmitting, or providing services relating to the transmission of, voice,
video or data through owned or leased terrestrial or submarine transmission
facilities and (ii) constructing, installing, maintaining, creating,
developing or marketing terrestrial or submarine communications related
network infrastructure, components, equipments, software and other devices
for use in a telecommunications business and any other business that is
reasonably related or complementary thereto.
"Total Capital" means, on any date, the sum of (a) Funded Debt,
on such date plus (b) Contributed Capital on such date.
"Total Debt" means, on any date, the sum of (a) all Indebtedness
(other than Indebtedness under the Senior Unsecured Facility and the New
Convertible Notes) of the Parent, the Borrower and the other Restricted
Subsidiaries that would be reflected as a liability on a consolidated
balance sheet of the Parent, the Borrower and the other Restricted
Subsidiaries prepared as of such date in accordance with GAAP plus (b) the
Imputed Principal Amount of any New Preferred Stock outstanding on such
date.
"Tranche A Lender" means a Lender with an outstanding Tranche A
Term Loan.
"Tranche A Maturity Date" means April 1, 2006; provided that if
and when the Convertible Note Condition is satisfied prior to April 1,
2006, the Tranche A Maturity Date will be September 22, 2008.
"Tranche A Term Borrowing" means a borrowing of Tranche A Term
Loans.
"Tranche A Term Loan" means a Loan made or deemed made pursuant
to clause (i) of Section 2.01(a). The amount of each Lender's outstanding
Tranche A Term Loans on the Restatement Effective Date is set forth on
Schedule 2.01(a), or in the Assignment and Acceptance pursuant to which
such Lender shall have purchased a Tranche A Term Loan, as applicable. The
aggregate amount of the Lenders' Tranche A Term Loans on the Restatement
Effective Date is $106,100,000.
"Transactions" means the execution, delivery and performance by
each Loan Party of the Loan Documents to which it is to be a party, the
granting and perfection of Liens on the Collateral under the Security
Documents, the borrowing of Loans, the use of the proceeds thereof and the
issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Unrestricted Subsidiary" means any Subsidiary of the Parent
that has been designated as an Unrestricted Subsidiary by the Parent
pursuant to and in compliance with Section 6.24. No Unrestricted Subsidiary
may own any Capital Stock of a Restricted Subsidiary.
"Voting Stock" means, with respect to any Person, securities of
any class or classes of Capital Stock in such Person entitling the holders
thereof (whether at all times or at the times that such class of Capital
Stock has voting power by reason of the happening of any contingency) to
vote in the election of members of the board of directors or comparable
body of such Person.
"Voyager" means Xxxxxxx.xxx, Inc., a Delaware corporation.
"Voyager Acquisition" means the acquisition by Holdings of
Voyager pursuant to the Voyager Acquisition Documents.
"Voyager Acquisition Documents" means the Agreement and Plan of
Merger, dated as of March 12, 2000, among the Parent, CoreComm Group Sub I,
Inc. and Voyager.
"Wholly Owned subsidiary" of any Person shall mean a subsidiary
of such Person of which securities or other ownership interests (except for
directors' qualifying shares and other de minimis amounts of outstanding
securities or ownership interests) representing 100% of the ordinary voting
power and 100% of equity or 100% of the general partnership interests are,
at the time any determination is being made, owned, controlled or held by
such Person or one or more Wholly Owned subsidiaries of such Person or by
such Person and one or more Wholly Owned subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by
Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or
by Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also
may be classified and referred to by Class (e.g., a "Revolving Borrowing")
or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a
"Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument
or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein to
any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, this
Agreement, (e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights and (f) any references to "the date hereof" or "the date of
this Agreement" or other similar references shall be references to
September 28, 2000, the date of the execution of the Original Credit
Agreement.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless
of whether any such notice is given before or after such change in GAAP or
in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a)(i) On or prior to the Restatement
Effective Date, the Tranche A Lenders have made (and are hereby deemed to
have made) Tranche A Term Loans to the Borrower in the principal amounts
and at the times set forth in respect of each such Lender on Schedule
2.01(a)(certain such Loans initially extended as Revolving Loans having
been converted into Tranche A Term Loans on the Restatement Effective
Date), (ii) subject to the terms and conditions set forth herein, each
Lender agrees to make Revolving Loans to the Borrower from time to time
during the Revolving Availability Period in an aggregate principal amount
that will not result in such Lender's Revolving Exposure exceeding such
Lender's Revolving Commitment. The Revolving Loans of each Revolving Lender
outstanding on the Restatement Effective Date, and the dates on which such
Loans were initially made, are set forth on Schedule 2.01(a) (certain such
Loans initially extended as Tranche A Term Loans having been converted into
Revolving Loans on the Restatement Effective Date). Subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans. Amounts repaid in respect of Tranche A Term Loans
may not be reborrowed.
(b) [intentionally omitted]
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Loans of the same Type
made by the Lenders ratably in accordance with their respective Revolving
Commitments. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender
shall be responsible for any other Lender's failure to make Loans as
required. Each Tranche A Lender shall be deemed to have made Tranche A Term
Loans as part of each Tranche A Borrowing outstanding on the Restatement
Effective Date ratably in accordance with the respective amounts of each
Tranche A Lender's Tranche A Loans outstanding on the Restatement Effective
Date (provided that interest on Tranche A Term Loans and commitment fees
with respect to commitments to make Tranche A Term Loans accruing prior to
the Restatement Effective Date shall be for the accounts of the Lenders
holding such Loans and Commitments prior to such date).
(b) Subject to Section 2.13, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as
the Borrower may request in accordance herewith. Each Lender at its option
may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $1,000,000 and not less
than $10,000,000; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Revolving Commitments or that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e). Borrowings of more
than one Type and Class may be outstanding at the same time; provided that
there shall not at any time be more than a total of 10 Eurodollar
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Revolving Maturity Date or Tranche A Maturity
Date then in effect, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of
the proposed Borrowing; provided that any such notice of an ABR Revolving
Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.04(e) may be given not later than 10:00 a.m., New
York City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed
by the Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:
(i) that the requested Borrowing is to be a Revolving Borrowing
under this Agreement;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period";
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06; and
(vii) a description of any Telecommunications Assets being
acquired with the proceeds of such Borrowing and all information required
in Section 2 of the Perfection Certificate with respect to such assets to
the extent not previously provided.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified
with respect to any requested Eurodollar Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Revolving Lender of the
details thereof and of the amount of such Lender's Loan to be made as part
of the requested Borrowing.
SECTION 2.04. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Borrower may request the
issuance of Letters of Credit for its own account, in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time
and from time to time during the Revolving Availability Period. In the
event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered
into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control. Such
terms and conditions of any such application shall not, in any event,
contain any operating covenants or restrictions, provide for any collateral
not provided under the Loan Documents or provide for the imposition of fees
(other than customary charges).
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably
in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew
or extend such Letter of Credit. If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit application on the Issuing
Bank's standard form in connection with any request for a Letter of Credit.
A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $10,000,000 and (ii) subject to Section 2.01(b),
the total Revolving Exposures shall not exceed the total Revolving
Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the case of
any renewal or extension thereof, one year after such renewal or extension)
and (ii) the date that is five Business Days prior to the Revolving
Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Revolving Lender, and each Revolving
Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Lender
hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Bank, such Lender's Applicable
Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to
the Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal
or extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal
to such LC Disbursement not later than 12:00 noon, New York City time, on
(i) the date that the Borrower shall have received notice of such LC
Disbursement, if such notice is received prior to 10:00 a.m., New York City
time, on such date, or (ii) the Business Day immediately following the day
that the Borrower receives such notice, in all other cases; provided that,
if such LC Disbursement is not less than $5,000,000, the Borrower may,
subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 that such payment be financed with an ABR
Revolving Borrowing in an equivalent amount and, to the extent so financed,
the Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing. If the Borrower fails to
make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then due
from the Borrower in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.05 with respect to Loans made by such Lender (and
Section 2.05 shall apply, mutatis mutandis, to the payment obligations of
the Revolving Lenders), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Revolving Lenders.
Promptly following receipt by the Administrative Agent of any payment from
the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as
their interests may appear. Any payment made by a Revolving Lender pursuant
to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or a Swingline Loan as
contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment
by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter
of Credit, or (iv) any other event or circumstance whatsoever, whether or
not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a
right of setoff against, the Borrower's obligations hereunder. Neither the
Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or
in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of
Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing
shall not be construed to excuse the Issuing Bank from liability to the
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to
the extent permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof. The parties hereto expressly agree that, in
the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction),
the Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with
the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of
such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank
shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether
the Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse the Issuing Bank and
the Revolving Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the
Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to ABR Revolving Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.12(c) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Bank. At the time any such replacement shall
become effective, the Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.11(b). From and
after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of the Issuing Bank under
this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term "Issuing Bank" shall be deemed to
refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require.
After the replacement of an Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all the rights
and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit or to extend any existing
Letters of Credit issued by it hereunder.
(j) Cash Collateralization. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity
of the Loans has been accelerated, Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash
equal to 105% of the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (h) or (i) of Article VII. Each such deposit
shall be held by the Administrative Agent as collateral for the payment and
performance of the Obligations, and the Borrower hereby grants the
Collateral Agent, for the benefit of the Secured Parties, a security
interest in all funds and investments from time to time in such account,
and the proceeds thereof, to secure the Obligations. The Administrative
Agent shall have exclusive dominion and control, including the exclusive
right of withdrawal, over such account. Other than any interest earned on
the investment of such deposits in readily marketable Permitted Investments
maturing in not more than 60 days, which investments shall be made at the
direction of the Borrower and at the Borrower's risk and expense, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the Issuing Bank and/or
the Revolving Lenders, as applicable, for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be held for
the satisfaction of the reimbursement obligations of the Borrower for the
LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC
Exposure representing greater than 50% of the total LC Exposure), be
applied to satisfy other obligations of the Borrower under this Agreement
or the other Loan Documents. If the Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to the Borrower within three Business Days after all
Events of Default have been cured or waived. If the Borrower is required to
provide an amount of cash collateral hereunder pursuant to Section 2.10(b),
such amount (to the extent not applied as aforesaid) shall be returned to
the Borrower as and to the extent that, after giving effect to such return,
the Borrower would remain in compliance with Section 2.10(b) and no Default
shall have occurred and be continuing.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time,
to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the amounts
so received, in like funds, to an account of the Borrower maintained with
the Administrative Agent in New York City and designated by the Borrower in
the applicable Borrowing Request; provided that ABR Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section
2.05(e) shall be remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's share of
such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation or (ii) in the case of the Borrower, the
interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's
Loan included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing
and Tranche A Term Borrowing initially shall be of the Type specified in
the applicable Borrowing Request (or equivalent request made in respect of
new Tranche A Term Loans made on the Restatement Effective Date) and, in
the case of a Eurodollar Borrowing, shall have an initial Interest Period
as specified in such request. Thereafter, the Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurodollar Borrowing, may elect Interest Periods therefor,
all as provided in this Section. The Borrower may elect different options
with respect to different portions of the affected Borrowing, in which case
each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall
be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies
the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted into an ABR Borrowing at the end of the Interest Period
applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Revolving Commitments shall terminate on
the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to
any concurrent prepayment of the Revolving Loans and any deposit of cash
collateral in accordance with Section 2.10, the sum of the Revolving
Exposures would exceed the total Revolving Commitments.
(c) [intentionally omitted]
(d) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments under paragraph
(b) of this Section at least three Business Days prior to the effective
date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Revolving
Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which
case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
of any Class shall be permanent. Each reduction of the Revolving
Commitments shall be made ratably among the Lenders in accordance with
their respective Revolving Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of
each Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to
the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Tranche A Term Loan of such Lender as provided in
Section 2.09.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder for the account of the Lenders and
each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans and LC Disbursements in accordance with
the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section
9.04) be represented by one or more promissory notes in such form payable
to the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
SECTION 2.09. Automatic Commitment Reductions; Amortization of
Tranche A Term Loans. (a) The aggregate amount of the Lenders' Revolving
Commitments shall be automatically and permanently reduced in nineteen
consecutive quarterly reductions commencing on December 31, 2003 and a
twentieth and final reduction on the Revolving Maturity Date, in each case
in the amount set forth opposite such reduction date below:
December 31, 2003 $625,000
March 31, 2004 $625,000
June 30, 2004 $625,000
September 30, 2004 $625,000
December 31, 2004 $1,250,000
March 31, 2005 $1,250,000
June 30, 2005 $1,250,000
September 30, 2005 $1,250,000
December 31, 2005 $4,375,000
March 31, 2006 $4,375,000
June 30, 2006 $4,375,000
September 30, 2006 $4,375,000
December 31, 2006 $3,125,000
March 31, 2007 $3,125,000
June 30, 2007 $3,125,000
September 30, 2007 $3,125,000
December 31, 2007 $3,125,000
March 31, 2008 $3,125,000
June 30, 2008 $3,125,000
Revolving Maturity Date $3,125,000
Any reduction of the Revolving Commitments shall be applied to reduce the
subsequent scheduled reductions of the Revolving Commitments to be made
pursuant to this Section ratably.
(b) [intentionally omitted]
(c) The Borrower shall repay Tranche A Term Borrowings on each
date set forth below in the aggregate principal amount of Tranche A Term
Loans set forth opposite such date:
Date Amount
---- ------
December 31, 2003 $1,325,000
March 31, 2004 $1,325,000
June 30, 2004 $1,325,000
September 30, 2004 $1,325,000
December 31, 2004 $2,650,000
March 31, 2005 $2,650,000
June 30, 2005 $2,650,000
September 30, 2005 $2,650,000
December 31, 2005 $9,275,000
March 31, 2006 $9,275,000
June 30, 2006 $9,275,000
September 30, 2006 $9,275,000
December 31, 2006 $6,625,000
March 31, 2007 $6,625,000
June 30, 2007 $6,625,000
September 30, 2007 $6,625,000
December 31, 2007 $6,625,000
March 31, 2008 $6,625,000
June 30, 2008 $6,625,000
Tranche A Maturity Date $6,725,000
(d) To the extent not previously paid, (i) all Tranche A Term
Loans shall be due and payable on the Tranche A Maturity Date.
(e) Any prepayment of Tranche A Term Loans shall be applied to
reduce the subsequent scheduled repayments of the Tranche A Term Loans to
be made pursuant to this Section ratably.
(f) Prior to any repayment of any Tranche A Term Loans
hereunder, the Borrower shall select the Borrowing or Borrowings to be
repaid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 11:00 a.m., New York City time,
three Business Days before the scheduled date of such repayment. Each
repayment of a Borrowing shall be applied ratably to the Loans included in
the repaid Borrowing. Repayments of Tranche A Term Loans shall be
accompanied by accrued interest on the amount repaid.
SECTION 2.10. Prepayment of Loans; Mandatory Commitment
Reductions. (a) The Borrower shall have the right at any time and from time
to time to prepay any Borrowing in whole or in part, subject to the
requirements of this Section.
(b) In the event and on such occasion that the sum of the
Revolving Exposures exceeds the total Revolving Commitments, the Borrower
shall prepay Revolving Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.04(j)), in an aggregate amount equal to such
excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Parent, the Borrower or any other
Restricted Subsidiary in respect of any Prepayment Event, immediately after
such Net Proceeds are received, (i) the Revolving Commitments shall be
permanently reduced and (ii) the Borrower shall prepay Tranche A Term Loans
in an aggregate amount (for all such reductions and prepayments) equal to
such Net Proceeds; provided, however, that only 75% of the Net Proceeds
from a sale of Voyager will be required to be applied in reducing the
Revolving Commitments and prepaying the Tranche A Term Loans, if the
retention by the Borrower of the remaining 25% of such Net Proceeds from
the sale of Voyager would not result in any requirement to reduce, in whole
or in part, any other Indebtedness of the Parent or any Subsidiary, and the
Administrative Agent shall have received evidence thereof reasonably
satisfactory to it in its sole discretion including, without limitation, an
opinion of counsel to such effect.
(d) Following the end of each fiscal year of the Parent,
commencing with fiscal year ending December 31, 2004, (i) the Revolving
Commitments shall be permanently reduced and (ii) the Borrower shall prepay
Tranche A Term Loans in an aggregate amount (for all such reductions and
prepayments) equal to 50% of Excess Cash Flow for such fiscal year. Each
prepayment and Commitment reduction pursuant to this paragraph shall be
made on or before the date on which financial statements are delivered
pursuant to Section 5.01 with respect to the fiscal year for
which Excess Cash Flow is being calculated (and in any event) within 100
days after the end of such fiscal year).
(e) The aggregate amount of Revolving Commitment reductions and
prepayments of Tranche A Term Loans required pursuant to paragraphs (c) and
(d) of this Section 2.10 shall be applied pro rata to the reduction of
Revolving Commitments and the prepayment of Tranche A Term Loans based on
the relative amounts of the Revolving Commitments and outstanding Tranche A
Term Loans. The Borrower shall prepay Revolving Borrowings (or cash
collateralize Revolving Exposure) to the extent of any reduction of
Revolving Commitments pursuant to paragraphs (c) or (d) of this Section.
The Borrower shall notify the Administrative Agent by telephone (confirmed
by telecopy) of any optional or mandatory prepayment hereunder (i) in the
case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment and
(ii) in the case of prepayment of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of prepayment.
Each such notice shall be irrevocable and shall specify the prepayment
date, the principal amount of each Borrowing or portion thereof to be
prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a notice of
optional prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.07,
then such notice of prepayment may be revoked if such notice of termination
is revoked in accordance with Section 2.07(d). Promptly following receipt
of any such notice, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Borrowing shall be in
an amount that would be permitted in the case of an advance of a Borrowing
of the same Type as provided in Section 2.02, except as necessary to apply
fully the required amount of a mandatory prepayment. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Commitment Fee Rate on the daily unused
amount of each Revolving Commitment and (in respect of periods prior to the
Restatement Effective Date) Tranche A Commitment (as defined in the
Original Credit Agreement) of such Lender during the period from and
including the date hereof to but excluding the date on which such
Commitment terminates. Accrued commitment fees shall be payable in arrears
on the last day of March, June, September and December of each year and on
the date on which the applicable Commitment terminates, commencing on the
first such date to occur after the date hereof. All commitment fees shall
be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the
last day). For purposes of computing commitment fees with respect to
Revolving Commitments, a Revolving Commitment of a Lender shall be deemed
to be used to the extent of the outstanding Revolving Loans and LC Exposure
of such Lender.
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Revolving Lender a participation fee with respect
to its participations in Letters of Credit, which shall accrue at the same
Applicable Rate as interest on Eurodollar Revolving Loans on the daily
amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on
which such Lender's Revolving Commitment terminates and the date on which
such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a
fronting fee, which shall accrue at the rate or rates per annum equal to
0.25% per annum (or such other rate as may be separately agreed upon
between the Borrower and the Issuing Bank) on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date
to but excluding the later of the date of termination of the Revolving
Commitments and the date on which there ceases to be any LC Exposure, as
well as the Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through
and including the last day of March, June, September and December of each
year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the
Revolving Commitments terminate and any such fees accruing after the date
on which the Revolving Commitments terminate shall be payable on demand.
Any other fees payable to the Issuing Bank pursuant to this paragraph shall
be payable within 10 days after demand. All participation fees and fronting
fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the
Issuing Bank, in the case of fees payable to it) for distribution, in the
case of commitment fees, participation fees and prepayment fees, to the
Lenders entitled thereto. The amendment and restatement of the Original
Credit Agreement on the Restatement Effective Date will not affect interest
or fees accruing under the Original Credit Agreement during periods prior
to the Restatement Effective Date, all of which shall remain payable to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus the
Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after
(to the extent permitted by applicable law) as well as before judgment, at
a rate per annum equal to (i) in the case of overdue principal of any Loan,
2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Revolving Loans as provided in
paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving
Loans, upon termination of the Revolving Commitments; provided that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable
on demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the end of the
Revolving Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Loan
prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366
days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the LIBO Rate for such Interest
Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and
the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any Borrowing to,
or continuation of any Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan (or of maintaining
its obligation to make any such Loan) or to increase the cost to such
Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal,
interest or otherwise) (other than by virtue of Taxes or amounts related to
Taxes, which are subject to Section 2.16 rather than this Section 2.14),
then, subject to Section 2.18, the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital
or on the capital of such Lender's or the Issuing Bank's holding company,
if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Lender
or the Issuing Bank or such Lender's or the Issuing Bank's holding company
could have achieved but for such Change in Law (taking into consideration
such Lender's or the Issuing Bank's policies and the policies of such
Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then, subject to Section 2.18, from time to time the Borrower
will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph
(a) or (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such
compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date
that such Lender or the Issuing Bank, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or the Issuing Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 270-day
period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event
of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan or Tranche A Term
Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice may be revoked under Section 2.10(e) and
is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each
Lender for the loss, cost and expense attributable to such event. In the
case of a Eurodollar Loan, such loss, cost or expense to any Lender shall
be deemed to include an amount determined by such Lender to be the excess,
if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the LIBO Rate
(excluding any Applicable Margin) that would have been applicable to such
Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to
borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other
banks in the Eurodollar market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent,
Lender or Issuing Bank (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 15 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender
or the Issuing Bank, or by the Administrative Agent on its own behalf or on
behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent; provided, however, that in no case shall the Borrower
be required to deliver documentation not normally issued by such
Governmental Authority.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed
by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as
will permit such payments to be made without withholding or at a reduced
rate.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set- offs. (a) The Borrower shall make each payment required to be made by
it hereunder or under any other Loan Document (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable
under Section 2.14, 2.15 or 2.16, or otherwise) by the time expressly
required hereunder or under such other Loan Document for such payment (or,
if no such time is expressly required, prior to 1:00 p.m., New York City
time), on the date when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date
may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except
payments to be made directly to the Issuing Bank as expressly provided
herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and
9.03 shall be made directly to the Persons entitled thereto and payments
pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment under any Loan
Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments under each Loan Document
shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Tranche A Term Loans or
participations in LC Disbursements resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving
Loans, Tranche A Term Loans and participations in LC Disbursements and
accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash
at face value) participations in the Revolving Loans, Tranche A Term Loans
and participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Tranche A Term Loans
and participations in LC Disbursements; provided that (i) if any such
participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). Each of
the Borrower and the Parent consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may
exercise against the Loan Parties rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct
creditor of the Loan Parties in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the Issuing Bank, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or Issuing Bank with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater
of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(d) or (e), 2.05(b), 2.17(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
2.16, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.14 or 2.16, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or
if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to
Section 2.16, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment
is being assigned, the Issuing Bank), which consent shall not unreasonably
be withheld, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments
required to be made pursuant to Section 2.16, such assignment will result
in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
Each of the Parent, CCI and the Borrower represents and warrants
to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Parent, CCI, the
Borrower and the other Restricted Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, is qualified to do business in, and is
in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions to
be entered into by each Loan Party are within such Loan Party's corporate
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and
delivered by the Parent, CCI and the Borrower and constitutes, and each
other Loan Document to which any Loan Party is to be a party, when executed
and delivered by such Loan Party, will constitute, a legal, valid and
binding obligation of the Parent, CCI and the Borrower or such Loan Party
(as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except
such as have been obtained or made and are in full force and effect and
except those set forth on Schedule 3.03 (the failure of which to be
obtained could not reasonably be expected to result in a Material Adverse
Effect) and filings necessary to perfect Liens created under the Loan
Documents, (b) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of the Parent, CCI, the
Borrower or any of their Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
or any material agreement or other material instrument binding upon the
Parent, CCI, the Borrower or any of their Subsidiaries or their assets, or
give rise to a right thereunder to require any payment to be made by the
Parent, CCI, the Borrower or any of their Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of the
Parent, CCI, the Borrower or any of the other Restricted Subsidiaries,
except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
The Parent has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as
of and for the fiscal year ended December 31, 1999, reported on by Ernst &
Young LLP, independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended June 30, 2000,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Parent and its consolidated Subsidiaries
as of such dates and for such periods in accordance with GAAP, subject to
year-end audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above.
(b) Except for matters occurring prior to the Restatement
Effective Date which have been disclosed to the Lenders prior to such date,
since December 31, 1999, there has been no material adverse change in the
actual or prospective business, assets, operations or condition (financial
or otherwise) of the Parent, the Borrower and the other Restricted
Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Parent, the Borrower
and the other Restricted Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to the business
(including its Mortgaged Properties) of the Parent, the Borrower and the
other Restricted Subsidiaries taken as a whole, except for exceptions
listed in each title insurance policy relating to any such Mortgaged
Property or defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties
for their intended purposes.
(b) Each of the Parent, the Borrower and the other Restricted
Subsidiaries owns, or is licensed to use, all trademarks, trade names,
copyrights, patents and other intellectual property material to its
business, and the use thereof by the Parent, the Borrower and the other
Restricted Subsidiaries does not to the knowledge of the Parent or the
Borrower infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property
that is owned or leased by the Parent, the Borrower or any other Restricted
Subsidiary as of the Restatement Effective Date after giving effect to the
Transactions and the Acquisitions.
(d) As of the Effective Date, neither the Parent, the Borrower
nor any of the other Restricted Subsidiaries has received notice of, or has
knowledge of, any pending or contemplated condemnation proceeding affecting
any Mortgaged Property or any sale or disposition thereof in lieu of
condemnation. Neither any Mortgaged Property nor any interest therein is
subject to any right of first refusal, option or other contractual right to
purchase such Mortgaged Property or interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Parent,
CCI or the Borrower, threatened against or affecting the Parent, CCI, the
Borrower or any of the other Restricted Subsidiaries (i) as to which there
is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that relate to any of the Loan Documents or the
Transactions.
(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, none of the
Parent, CCI, the Borrower, the other Subsidiaries, (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv)
knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Parent, CCI, the Borrower and the other Restricted Subsidiaries is in
compliance with (a) all laws, regulations and orders of any Governmental
Authority applicable to it or its property and (b) all indentures,
agreements and other instruments binding upon it or its property, except,
in the case of clause (a) and clause (b), where the failure to do so,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
Parent, CCI, the Borrower nor any of the other Restricted Subsidiaries is
(a) an "investment company" as defined in, or subject to regulation under,
the Investment Company Act of 1940 or (b) a "holding company" as defined
in, or subject to regulation under, the Public Utility Holding Company Act
of 1935.
SECTION 3.09. Taxes. Each of the Parent, CCI, the Borrower, the
other Restricted Subsidiaries and (to the extent that the Parent, CCI, the
Borrower or any other Restricted Subsidiary may be liable as a result
thereof) the Unrestricted Subsidiaries has timely filed or caused to be
filed all Tax returns and reports required to have been filed and has paid
or caused to be paid all material Taxes required to have been paid by it,
except any Taxes that are being contested in good faith by appropriate
proceedings and for which the Parent, CCI, the Borrower or such Subsidiary,
as applicable, has set aside on its books adequate reserves.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the
assets of such Plan by an amount that could reasonably be expected to
result in a Material Adverse Effect, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the
assets of all such underfunded Plans by an amount that could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure. As of the Restatement Effective Date
the Parent has disclosed to the Lenders (a) all material agreements,
material instruments and material corporate or other restrictions to which
the Parent, CCI, the Borrower or any of the other Restricted Subsidiaries
is subject and (b) all other matters known to any of them, that, in the
case of this clause (b), individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the other reports, financial statements, certificates
or other documents furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or
thereunder (as of the date thereof and as modified or supplemented by other
information so furnished when taken as a whole) contains any material
misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected
financial information, the Parent, CCI and the Borrower represent only that
such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
SECTION 3.12. Subsidiaries. (a) Schedule 3.12 sets forth the
name of, and the ownership interest of the Parent in, each Subsidiary of
the Parent and identifies each Subsidiary that is a Subsidiary Loan Party,
in each case as of the Restatement Effective Date.
(b) All Licenses which are directly or indirectly held by the
Parent, the Borrower or any other Restricted Subsidiary are owned
beneficially and of record by a License Subsidiary, free and clear of all
Liens (other than Liens under the Security Documents or imposed by the
Communications Act).
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description
of all material insurance maintained by or on behalf of the Parent, the
Borrower and the Restricted Subsidiaries as of the Restatement Effective
Date. The Parent believes that the insurance maintained by or on behalf of
the Parent, the Borrower and the other Restricted Subsidiaries is adequate.
All premiums in respect of any such insurance have been paid to the extent
due.
SECTION 3.14. Labor Matters. As of the Restatement Effective
Date, there are no strikes, lockouts or slowdowns against the Parent, CCI,
the Borrower or any other Restricted Subsidiary pending or, to the
knowledge of the Parent, threatened. All significant payments due from the
Parent, CCI, the Borrower or any other Restricted Subsidiary, or for which
any claim may be made against the Parent, CCI, the Borrower or any other
Restricted Subsidiary, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on
the books of the Parent, CCI, the Borrower or such other Restricted
Subsidiary in accordance with GAAP. The consummation of the Transactions
and the Acquisitions will not give rise to any right of termination or
right of renegotiation on the part of any union under any collective
bargaining agreement to which the Parent, CCI, the Borrower or any other
Restricted Subsidiary is bound.
SECTION 3.15. Security Interests. (a) When executed and
delivered, the Pledge Agreement will be effective to create in favor of the
Agent for the ratable benefit of the Secured Parties a valid and
enforceable security interest in the Collateral (as defined in the Pledge
Agreement) and, when the portion of the Collateral constituting
certificated securities (as defined in the Uniform Commercial Code) is
delivered to the Collateral Agent thereunder together with instruments of
transfer duly endorsed in blank, the Pledge Agreement shall constitute a
fully perfected first priority Lien on, and security interest in, all
right, title and interest of the pledgors thereunder in such Collateral,
prior and superior in right to any other Person.
(b) The Security Agreement is effective to create in favor of
the Collateral Agent for the ratable benefit of the Secured Parties a valid
and enforceable security interest in the Collateral, and, when financing
statements in appropriate form are filed in the offices specified in the
Perfection Certificate, the Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest
of the grantors thereunder in such Collateral, to the extent perfection can
be obtained by filing Uniform Commercial Code financing statements, other
than the Intellectual Property (as defined in the Security Agreement), in
which a security interest may be perfected by filing, recording or
registering a security agreement, financing statement or analogous document
in the United States Patent and Trademark Office or the United States
Copyright Office, as applicable, in each case prior and superior in right
to any other Person to the extent perfection can be obtained by filing
Uniform Commercial Code financing statements, other than with respect to
the rights of Persons pursuant to Liens expressly permitted by Section
6.03.
(c) When the Security Agreement is filed in the United States
Patent and Trademark Office and the United States Copyright Office, the
security interest created thereunder shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the
Loan Parties in the Intellectual Property (as defined in the Security
Agreement) in which a security interest may be perfected by filing,
recording or registering a security agreement, financing statement or
analogous document in the United States Patent and Trademark Office or the
United States Copyright Office, as applicable, in each case prior and
superior in right to any other Person, other than with respect to the
rights of Persons pursuant to Liens expressly permitted by Section 6.03 (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and
copyrights acquired by the Loan Parties after the date hereof).
(d) The Mortgages, if any, entered into after the date hereof,
are effective to create, subject to the exceptions listed in each title
insurance policy covering such Mortgage, in favor of the Agent for the
ratable benefit of the Secured Parties a legal, valid and enforceable Lien
on all of the Loan Parties' right, title and interest in and to the
Mortgaged Properties thereunder and the proceeds thereof, and when filed in
the appropriate real estate filing offices, the Mortgages shall constitute
a perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Mortgaged Properties and the proceeds
thereof, in each case prior and superior in right to any other Person,
other than with respect to Permitted Encumbrances.
SECTION 3.16. Regulatory Compliance. (a) The Parent, CCI, the
Borrower and each other Restricted Subsidiary are in compliance with the
Communications Act except where the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.
(b) To the knowledge of the Parent, there is no investigation,
notice of apparent liability, violation, forfeiture or other order or
complaint issued by or before the FCC, or of any other proceedings of or
before the FCC, affecting it, CCI, the Borrower or any other Restricted
Subsidiary which could reasonably be expected to have a Material Adverse
Effect.
(c) To the knowledge of the Parent, no event has occurred which
(i) results in, or after notice or lapse of time or both would result in,
revocation, suspension, adverse modifications, non-renewal, impairment,
restriction or termination of, or order of forfeiture with respect to, any
License in any respect which could reasonably be expected to have a
Material Adverse Effect or (ii) affects or could reasonably be expected in
the future to affect any of the rights of the Parent, CCI, the Borrower or
any other Restricted Subsidiary under any License in any respect which
could reasonably be expected to have a Material Adverse Effect.
(d) The Parent, CCI, the Borrower and each other Restricted
Subsidiary have duly filed in a timely manner all material filings,
reports, applications, documents, instruments and information required to
be filed by it under the Communications Act, and all such filings were when
made true, correct and complete in all respects except where the failure to
do so could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.17. Absence of Non-Permitted Obligations. None of the
License Subsidiaries has any obligations or liabilities other than (a)
under the Guarantee Agreement and the Security Agreement, (b) under the
Special Purpose Subsidiary Funding Agreement and (c) in respect of
franchise and corporate taxes and administrative expenses incurred in the
ordinary course in order for it to continue to maintain its existence.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to
make Loans and of the Issuing Bank to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders)
of each of (i) Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP, counsel for the
Borrower dated as of September 29, 2000, (ii) the general counsel of the
Parent dated as of September 28, 2000, (iii) Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., special U.S. communications counsel for the
Parent dated as of September 28, 2000, and (iv) the general counsel of
the Borrower dated as of September 28, 2000, Xxxxx Xxxx Plc, dated as of
September 28, 2000 and Skadden, Arps, Slate, Xxxxxxx & Xxxx, dated as of
September 29, 2000, and, in the case of each such opinion required by
this paragraph, covering such other matters relating to the Loan Parties,
the Loan Documents or the Transactions as the Required Lenders shall
reasonably request. Each of the Parent, CCI and the Borrower hereby
requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, the Loan Documents
or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or
a Financial Officer of the Parent, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel) required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been
satisfied and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by an
Executive Officer or Financial Officer of the Parent, together with all
attachments contemplated thereby, including the results of a search of
the Uniform Commercial Code (or equivalent) filings made with respect to
the Loan Parties in the jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing
statements (or similar documents) are permitted by Section 6.03 or have
been released.
(g) The Administrative Agent shall have received evidence that
the insurance required by Section 5.07 and the Security Documents is in
effect.
(h) The Parent shall, on a pro forma basis, be in compliance
with the Financial Covenants.
(i) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the
Transactions and the Acquisitions shall have been obtained, and all
applicable waiting periods and appeal periods shall have expired, in each
case without the imposition of any burdensome conditions. The
Acquisitions shall have been, or substantially simultaneously with the
initial funding of Loans on the Effective Date shall be, consummated in
accordance with the Acquisition Documents and applicable law, without any
amendment to or waiver of any material terms or conditions of the
Acquisition Documents not approved by the Required Lenders. The
Administrative Agent shall have received copies of the Acquisition
Documents and all certificates, opinions and other documents delivered
thereunder, certified by a Financial Officer of the Parent as complete
and correct.
(j) The Initial Permitted Financing Condition shall have been
satisfied.
(k) The Lenders shall have received a pro forma consolidated
balance sheet of the Parent as of the Effective Date, reflecting all pro
forma adjustments as if the Transactions, the Initial Permitted
Financings and the Acquisitions had been consummated on such date, and
such pro forma consolidated balance sheet shall be consistent in all
material respects with the information previously provided to the
Lenders. After giving effect to the Transactions, the Acquisitions and
the Initial Permitted Financing, none of the Parent, CCI, the Borrower or
any of the Restricted Subsidiaries shall have outstanding any shares of
preferred stock or any Indebtedness for borrowed money, other than (i)
Indebtedness incurred under the Loan Documents, (ii) the ATX Note in a
principal amount not in excess of $119,000,000 and on substantially the
terms set forth in Schedule 4.01(k), (iii) the Indebtedness listed on
Schedules 6.01 or 6.02, and (iv) the Non-Cash Pay Preferred Stock which
is part of the Initial Permitted Financing. The material terms and
conditions of the ATX Note shall be as set forth in Schedule 4.01(k).
(l) The Lenders shall have received a ten-year business plan of
the Parent, with quarterly projections for the two-year period following
the Effective Date, which shall be reasonably satisfactory to the
Lenders.
(m) The Agent shall have received evidence reasonably
satisfactory to it that all existing bank credit facilities of the
Parent, the Borrower and the Restricted Subsidiaries (including ATX and
Voyager) shall have been, or substantially simultaneously with the
initial funding of Loans on the Effective Date shall be, repaid, that all
commitments in connection therewith shall have been, or substantially
simultaneously with the initial funding of Loans on the Effective Date
shall be, terminated and all Liens securing any Indebtedness thereunder
shall have been, or substantially simultaneously with the initial funding
of Loans on the Effective Date shall be, released.
(n) Each License of the Parent, CCI, the Borrower and any other
Restricted Subsidiary shall have been contributed to, and all Licenses
shall be owned by, one or more License Subsidiaries. Each License
Subsidiary, the Borrower, CCI and the Parent shall have executed and
delivered a Special Purpose Subsidiary Funding Agreement.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or
waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City
time, on November 15, 2000 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to receipt
of the request therefor in accordance herewith and to the satisfaction of
the following conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable,
except to the extent that any representation or warranty expressly
relates to an earlier date (in which case such representation shall be
correct as of such earlier date); provided, that the representation in
Sections 3.04(b) and 3.06(c) shall not be restated on the occasion of a
Borrowing consisting of a continuation or conversion of a Borrowing
pursuant to Section 2.06 that does not increase the principal amount of
outstanding Loans of any Class.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, (i) no Default shall have occurred and be
continuing and (ii) the Parent shall, on a pro forma basis giving effect
to such Borrowing, issuance, amendment, renewal or extension, be in
compliance with the Financial Covenants.
Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
SECTION 4.03. Conditions to Restatement Effective Date. The
amendments to the Original Credit Agreement embodied in this Agreement
shall not be effective (in which case the Original Credit Agreement shall
remain in full force and effect) until satisfaction (or written waiver by
the Required Lenders) of each of the following conditions precedent prior
to 5:00 p.m., New York time, on April 13, 2001:
(a) The Administrative Agent (or its counsel) shall have
received copies hereof that, when taken together, bear the signatures of
the Parent, CCI, the Borrower, the Agent and each of the Lenders referred
to in Schedule 2.01.
(b) The Administrative Agent shall have received a certificate
of the President, a Vice President or a Financial Officer of the Parent,
confirming compliance as of the Restatement Effective Date with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(c) Each of the following shall have occurred: (i) AOL shall
have funded $15,000,000 of Tranche A Term Loans as contemplated by
Section 2.01(a)(i) hereof, (ii) Xxxxxxx shall have funded $15,000,000 of
Tranche A Term Loans as contemplated by Section 2.01(a)(i) hereof, (iii)
CCI shall have received $15,000,000 in cash proceeds in connection with
the issuance of New Convertible Notes to NTL on the Restatement Effective
Date, (iv) CCI shall have received $10,000,000 in cash proceeds in
connection with the issuance of New Convertible Notes to Booth on the
Restatement Effective Date, (v) the full amount of cash proceeds referred
to in clauses (iii) and (iv) shall have been contributed by CCI to the
Borrower's common equity and (vi) the Administrative Agent shall have
been furnished with evidence satisfactory to it of the foregoing. The
terms and conditions of the New Convertible Notes issued in accordance
with clauses (iii) and (iv) of this paragraph shall be substantially
identical to those of the New Convertible Notes issued prior to the
Restatement Effective Date, and the Administrative Agent shall have been
furnished with true and complete copies thereof.
(d) The Parent shall have received an audit opinion from Ernst &
Young LLP (without a "going concern" or like qualification or exception
and without any qualification or exception as to the scope of such audit)
with respect to the consolidated financial statements of the Parent for
the fiscal year ended December 31, 2000, to the effect that the
consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Parent, the
Borrower and the other Restricted Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied.
(e) The boards of directors of the relevant Loan Parties shall
have approved resolutions providing for (i) the engagement of an
investment bank in connection with the sale of certain assets and
businesses as heretofore discussed with the Administrative Agent and (ii)
the sale of such assets and businesses, including the minimum price and
terms allowed for such sales. The foregoing board resolutions shall be
satisfactory to the Administrative Agent in its sole discretion.
(f) The Borrower shall have established with the Collateral
Agent a deposit account (the "Cash Collateral Account") to hold
substantially all cash and cash equivalents of the Loan Parties, which
account shall be in the name of the Administrative Agent for the benefit
of the Lenders and shall be subject to documentation satisfactory to the
Administrative Agent. The cash proceeds of Tranche A Term Loans, New
Convertible Notes and any other Borrowings on the Restatement Effective
Date shall have been deposited in such account. All funds and investments
in the Cash Collateral Account shall be held by the Administrative Agent
as collateral for the payment and performance of the Obligations, and the
Borrower hereby grants the Collateral Agent, for the benefit of the
Secured Parties, a security interest in all funds and investments from
time to time in such account, and the proceeds thereof, to secure the
Obligations. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account.
(g) The Administrative Agent and the Lenders party to the
Original Credit Agreement shall have received all fees, expenses and
other consideration presented to the Borrower for payment on or prior to
the Restatement Effective Date.
(h) The warrants issued to CSI to purchase 402,500 shares of
common stock of the Parent shall have been exchanged for new warrants on
terms agreed to by CSI and the Parent.
(i) The Administrative Agent shall have approved, in its sole
discretion, the Borrower's operating budget, which operating budget shall
have been delivered under separate cover to the Administrative Agent (the
"Operating Budget").
(j) The Administrative Agent shall have received such favorable
written opinions (addressed to the Administrative Agent and the Lenders
and dated the Restatement Effective Date) from Skadden, Arps, Slate,
Xxxxxxx & Xxxx, LLP, counsel to the Borrower, and from the general
counsel to the Parent, relating to the amendment and restatement of the
Original Credit Agreement effected hereby and to the Transactions as the
Administrative Agent may request, and such opinions shall be in form and
substance satisfactory to the Administrative Agent. Each of the Parent,
CCI and the Borrower hereby requests such counsel to deliver such
opinions.
In the event that all of the foregoing conditions have not been satisfied
or waived on or before 5:00 p.m., New York time, on April 13, 2001, this
Agreement shall be of no force and effect and the Original Credit Agreement
shall continue in full force and effect.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, each of the
Parent, CCI and the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Parent will furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year of the
Parent, an audited consolidated balance sheet of the Parent, the Borrower
and the other Restricted Subsidiaries and related statements of income,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Ernst & Young LLP or other
independent public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of
the Parent, the Borrower and the other Restricted Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Parent, a balance sheet of the
Parent, the Borrower and the other Restricted Subsidiaries and related
statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, in each case presented on both consolidated and
consolidating bases and setting forth in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of the Parent, the
Borrower and the other Restricted Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Parent (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with the
Financial Covenants, (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the Parent's audited
financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate, (iv) attaching statements,
certified to be true and correct, of Consolidated Service Revenue, Active
Access Lines and On-Net Access Lines for the period or periods of, or
last days of the period or periods of, such accompanying financial
statements, (v) identifying any Restricted Subsidiary formed or acquired
since the end of the previous fiscal quarter, (vi) identifying any
parcels of real property or improvements thereto with a value exceeding
$250,000 that have been acquired by any Loan Party since the end of the
previous fiscal quarter, (vii) identifying any changes of the type
described in Section 5.03(a) that have not been previously reported by
the Borrower, (viii) identifying any Permitted Business Acquisition,
other acquisitions of going concerns and joint ventures that have been
consummated since the end of the previous fiscal quarter, including the
date on which each such acquisition or joint venture was consummated and
the consideration therefor, (ix) identifying any material Intellectual
Property (as defined in the Security Agreement) with respect to which a
notice is required to be delivered under the Security Agreement and has
not been previously delivered, and (x) identifying any Prepayment Events
that have occurred since the end of the previous fiscal quarter and
setting forth a reasonably detailed calculation of the Net Proceeds
received from Prepayment Events since the end of such previous fiscal
quarter;
(d) concurrently with any delivery of financial statements under
clause (a) above, (i) a certificate of the accounting firm that reported
on such financial statements stating whether they obtained knowledge
during the course of their examination of such financial statements of
any Default (which certificate may be limited to the extent required by
accounting rules or guidelines) and (ii) forecasted financial statements
(on a consolidated basis for the Parent, CCI, the Borrower and the other
Restricted Subsidiaries) covering the period ending with the Tranche A
Maturity Date;
(e) within 10 Business Days after final approval thereof by the
board of directors, but in any event no later than February 28 of each
fiscal year of the Parent, a detailed consolidated budget for such fiscal
year covering the Parent, the Borrower and the Restricted Subsidiaries
(including a projected consolidated balance sheet for the Parent, the
Borrower and the Restricted Subsidiaries and related statements of
projected operations and cash flow as of the end of and for such fiscal
year and setting forth the assumptions used for purposes of preparing
such budget) and, promptly when available, any significant revisions of
such budget;
(f) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by the Parent, CCI, the Borrower or any other Restricted Subsidiary
with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission,
or with any national securities exchange, or distributed by the Parent to
its shareholders generally, as the case may be;
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Parent, CCI, the Borrower or any other Restricted
Subsidiary, the status of any asset sales and any engagements with
financial advisors in connection therewith, or compliance with the terms
of any Loan Document, as the Administrative Agent or any Lender may
reasonably request;
(h) as soon as they are prepared and in no event any later than
the 45th day (or, in the case of calendar months ending on or after July
31, 2001, the 30th day) after the end of each calendar month, unaudited
(i) balance sheets and the related statements of operations and cash flow
of the Parent, the Borrower and the other Restricted Subsidiaries for
such month and the then-elapsed portion of the fiscal year to the end of
such month, prepared on consolidated and consolidating bases in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes, certified by one of its
Financial Officers and (ii) status reports on the development of the
Borrower's telecommunications network infrastructure, including a
schedule of planned and actual capital expenditures and a report of
year-to-date compliance with the annual budget for the fiscal year in
which such month occurs, in each case prepared by a Financial Officer of
the Borrower or the Parent;
(i) within 15 days after the end of each calendar month, an
estimated consolidated cash general ledger balance of the Parent, the
Borrower and the Restricted Subsidiaries as of the end of such month,
subject to certain adjustments to reconcile such ledger balance with bank
statement balances; and
(j) within 15 days after the end of each calendar month, a
projection of cash flows for the Parent, the Borrower and the other
Restricted Subsidiaries covering the twelve week period beginning on the
first day of the preceding month, such projections to be presented on a
consolidating basis and to be in form satisfactory to the Administrative
Agent.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice
of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting the Parent, CCI, the Borrower or any Affiliate thereof as to
which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected to result in
a Material Adverse Effect; and
(c) any other development (including any ERISA Event) that
results in, or could reasonably be expected to result in, a Material
Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other Executive Officer of the Borrower
or the Parent setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with
respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Parent
will furnish to the Collateral Agent prompt written notice of any change
(i) in any Loan Party's corporate name, (ii) in the location of any Loan
Party's chief executive office, its principal place of business, any office
in which it maintains books or records relating to Collateral owned by it
or any office or facility at which Collateral owned by it is located
(including the establishment of any such new office or facility), (iii) in
any Loan Party's identity, corporate structure or jurisdiction of
incorporation or formation or (iv) in any Loan Party's Federal Taxpayer
Identification Number. The Parent agrees not to effect or permit any change
referred to in the preceding sentence unless it shall have given the
Collateral Agent 10 days notice of such change and shall promptly make all
filings under the Uniform Commercial Code or otherwise that are required in
order for the Collateral Agent to continue at all times following such
change to have a valid, legal and perfected security interest in all the
Collateral. The Parent also agrees promptly to notify the Collateral Agent
if any material portion of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a)
of Section 5.01, the Borrower shall deliver to the Collateral Agent a
certificate of a Financial Officer and a legal officer of the Parent or the
Borrower (i) setting forth and changes in or additions or modifications to
the information required pursuant to Section 2 of the Perfection
Certificate or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Effective
Date or the date of the most recent certificate delivered pursuant to this
Section and (ii) certifying that all Uniform Commercial Code financing
statements (including fixture filings, as applicable) or other appropriate
filings, recordings or registrations, including all refilings, rerecordings
and reregistrations, containing a description of the Collateral have been
filed of record in each governmental, municipal or other appropriate office
in each jurisdiction identified pursuant to clause (i) above to the extent
necessary to protect and perfect the security interests under the Security
Agreement for a period of not less than 18 months after the date of such
certificate (except as noted therein with respect to any continuation
statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. Each of the
Parent, CCI and the Borrower will, and will cause each of the other
Restricted Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and
its material rights, licenses (including the Licenses), permits,
privileges, franchises, patents, copyrights, trademarks and trade names;
provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.05.
SECTION 5.05. Payment of Obligations. Each of the Parent, CCI
and the Borrower will, and will cause each of the Restricted Subsidiaries
to, pay its material Tax liabilities before any of the same shall become
delinquent or in default, except where (a) the validity or amount thereof
is being contested in good faith by appropriate proceedings, (b) the
Parent, CCI, the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) such
contest effectively suspends collection of the contested obligation and the
enforcement of any Lien securing such obligation.
SECTION 5.06. Maintenance of Properties. Each of the Parent, CCI
and the Borrower will, and will cause each of the Restricted Subsidiaries
to, keep and maintain all property material to the conduct of its business
in good working order and condition, ordinary wear and tear excepted.
SECTION 5.07. Insurance. Each of the Parent, CCI and the
Borrower will, and will cause each of the Restricted Subsidiaries to,
maintain, with financially sound and reputable insurance companies (a)
insurance in such amounts (with no greater risk retention) and against such
risks as are customarily maintained by companies of established repute
engaged in the same or similar businesses operating in the same or similar
locations and (b) all insurance required to be maintained pursuant to the
Security Documents. Each of the Parent, CCI and the Borrower will furnish
to the Lenders, upon request of the Administrative Agent, information in
reasonable detail as to the insurance so maintained.
SECTION 5.08. Casualty and Condemnation. The Parent (a) will
furnish to the Administrative Agent and the Lenders prompt written notice
of any casualty or other insured damage to the Collateral in any material
respect or the commencement of any action or proceeding for the taking of
the Collateral in any material respect under power of eminent domain or by
condemnation or similar proceeding and (b) will ensure that the Net
Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance
with the applicable provisions hereof and of the Security Documents.
SECTION 5.09. Books and Records; Inspection and Audit Rights.
Each of the Parent, CCI and the Borrower will, and will cause each of the
Restricted Subsidiaries to, keep proper books of record and account in
which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. Each of the
Parent, CCI and the Borrower will, and will cause each of the Restricted
Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its
officers, financial advisors and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.10. Compliance with Laws. Each of the Parent, CCI and
the Borrower will, and will cause each of the Restricted Subsidiaries to,
comply with all laws (including the Communications Act), rules, regulations
and orders of any Governmental Authority applicable to it or its property
(including obligations under Licenses), except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. The
proceeds of the Loans and the issuance or renewal of Letters of Credit
received or effected on or after the Restatement Effective Date will be
used solely for general corporate purposes of the Borrower and its
Restricted Subsidiaries, including for working capital purposes and to
finance the construction, engineering, acquisition, installation,
development or improvement by the Borrower or Restricted Subsidiaries of
the Borrower of Telecommunications Assets in the United States (but not
elsewhere); provided, however, that no portion of the proceeds of such
Loans will be utilized to repay any Indebtedness (other than under the Loan
Documents), to make any Restricted Payment or to finance any acquisition.
No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations U and X.
SECTION 5.12. Additional Subsidiaries. If any additional
Subsidiary is formed or acquired (and such Subsidiary has assets in excess
of $50,000 or acquires assets in excess of $50,000) after the Effective
Date, the Parent, CCI and the Borrower will, within three Business Days
after such Subsidiary is formed or acquired, notify the Administrative
Agent and the Lenders thereof and promptly cause the Collateral and
Guarantee Requirement to be satisfied with respect to such Subsidiary (if
it is a Subsidiary Loan Party) and with respect to any Equity Interest in
or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.
SECTION 5.13. Further Assurances. (a) The Parent, CCI and the
Borrower will, and will cause each Subsidiary Loan Party to, execute any
and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, mortgages, deeds of
trust and other documents), which may be required under any applicable law,
or which the Agent or the Required Lenders may reasonably request, to cause
the Collateral and Guarantee Requirement to be and remain satisfied, all at
the expense of the Loan Parties; provided, that the Collateral and
Guarantee Requirement need not be satisfied with respect to real properties
owned by the Parent, CCI, the Borrower or any other Restricted Subsidiary
with an individual fair market value (including fixtures and improvements)
that is less than $500,000, provided, further, that the aggregate fair
market value of all such excluded properties does not at any time exceed
$2,000,000. Each of the Parent, CCI and the Borrower also agrees to provide
to the Agent, from time to time upon request, evidence reasonably
satisfactory to the Agent as to the perfection and priority of the Liens
created or intended to be created by the Security Documents.
(b) Subject to the proviso of the first sentence of Section
5.13(a) relating to real property, if any material assets (including any
real property or improvements thereto or any interest therein) are acquired
by Parent, CCI, the Borrower or any Subsidiary Loan Party after the
Effective Date (other than assets constituting Collateral under the
Security Documents that become subject to the Lien of the Security
Documents upon acquisition thereof), the Parent will notify the Agent and
the Lenders thereof, and, if requested by the Agent or the Required
Lenders, the Parent will cause such assets to be subjected to a Lien
securing the Obligations and will take, and cause the Subsidiary Loan
Parties to take, such actions as shall be necessary or reasonably requested
by the Agent to grant and perfect such Liens, including actions described
in paragraph (a) of this Section, all at the expense of the Loan Parties.
(c) As promptly as practicable, and in any event within 30 days
after the acquisition or grant thereof, the Parent shall cause all Licenses
that are issued by the FCC and that are acquired by the Parent, CCI, the
Borrower or any other Restricted Subsidiary, to be transferred to a License
Subsidiary, free and clear of all Liens (other than Liens under the
Security Documents and those imposed by the Communications Act). The
Borrower shall use its reasonable commercial efforts to cause all Licenses,
other than Licenses subject to the preceding sentence, acquired by the
Parent, CCI, the Borrower or any other Restricted Subsidiary to be
transferred as soon as practicable to a License Subsidiary, free and clear
of all Liens.
SECTION 5.14. Interest Rate Protection. Within 90 days after the
Effective Date, the Borrower, if necessary to satisfy the requirements set
forth in this Section 5.14, will enter into, and thereafter will maintain
in effect, one or more interest rate protection agreements on such terms
and with such parties as shall be reasonably satisfactory to the
Administrative Agent, the effect of which (when taken together with any
fixed rate debt and interest rate protection agreements) shall be to fix or
limit the interest cost with respect to at least 50% of the Parent's, the
Borrower's and the other Restricted Subsidiaries' outstanding Total Debt.
SECTION 5.15. Cash Collateral Account. As promptly as
practicable, and in any event within 30 days, after the Restatement
Effective Date, the Parent and the Borrower will (i) cause substantially
all the cash and Permitted Investments of each Loan Party to be transferred
to and held in the Cash Collateral Account and (ii) implement cash
concentration procedures satisfactory to and approved by the Administrative
Agent to ensure that substantially all cash balances of the Loan Parties
are, on a daily or other periodic basis acceptable to the Administrative
Agent, transferred to the Cash Collateral Account, which will thereafter
serve as a cash concentration account for the Loan Parties. The Borrower
and the Parent will, and will cause each Subsidiary Loan Party to, observe
and follow such procedures at all times after they have been implemented.
SECTION 5.16. Strategic Initiatives. Unless the Parent has
received, and contributed to the common equity capital of the Borrower, at
least an aggregate of $30,000,000 of Net Proceeds from Permitted Parent
Financings consummated after the Restatement Effective Date and prior to
September 30, 2001 (no portion of which shall be used to repay or refinance
any Indebtedness), the Parent and the Borrower will, not later than October
15, 2001, engage a nationally recognized investment bank acceptable to the
Administrative Agent to advise the Parent and the Borrower with respect to
various strategic alternatives available to the Parent and the Borrower and
to assist in implementing one or more strategic initiatives, in each case
to improve the Parent's consolidated financial position, capital structure
and liquidity.
SECTION 5.17. Financial Advisor. The Parent and the Borrower
will continue to retain on an ongoing basis a financial advisor, such
financial advisor and the duties of such advisor to be satisfactory to the
Administrative Agent.
SECTION 5.18. Investment Bank. Within 14 days following the
Restatement Effective Date, the Borrower will select and retain one or more
investment banks reasonably satisfactory to the Administrative Agent, for
the purpose of conducting the sale of certain assets and business, each on
a basis that has been previously discussed with the Administrative Agent.
The Borrower will keep the Administrative Agent apprised, from time to time
and at the request of the Administrative Agent, of any material
developments relating to such sales.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have
been paid in full and all Letters of Credit have expired or terminated and
all LC Disbursements shall have been reimbursed, each of the Parent, CCI
and the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness of the Parent and CCI; Certain Equity
Securities. (a) Neither the Parent nor CCI will create, incur, assume or
permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in
Schedule 6.01(a);
(iii) Indebtedness of the Parent or CCI to any Restricted
Subsidiary;
(iv) Guarantees by the Parent or CCI of Indebtedness of any
Restricted Subsidiary that is a Loan Party;
(v) Indebtedness of the Parent or CCI pursuant to Hedging
Agreements entered into to manage the effective rate of interest on the
Loans or other Indebtedness or manage foreign currency exposures,
provided such transactions are entered into to manage interest rate or
currency exposures and not for the purpose of speculation;
(vi) (x) Permitted Parent Indebtedness incurred to refinance the
ATX Notes, the Senior Unsecured Facility and the Parent Convertible Notes
and (y) Indebtedness incurred to refinance Indebtedness (other than the
ATX Note, the Senior Unsecured Facility and the Parent Convertible Notes)
permitted under clause (ii) of this Section 6.01(a); provided that (a)
such refinancing Indebtedness (i) shall not have a greater outstanding
principal amount (except to the extent necessary to pay fees, expenses,
underwriting discounts, accreted discount and accrued interest and
prepayment premiums in connection therewith), an earlier maturity date or
a decreased weighted average life than the Indebtedness refinanced and
(ii) shall be subordinated to the Indebtedness created under the Loan
Documents to at least the extent (if any) of, and shall otherwise be
issued on terms no less favorable in any material respect to the Lenders
than, the Indebtedness refinanced, (b) the proceeds of such Indebtedness
shall be used solely to repay the Indebtedness refinanced thereby and
fees, expenses, underwriting discounts, accreted discount and accrued
interest and prepayment premiums in connection therewith and (c) such
refinancing Indebtedness is not Guaranteed by any Restricted Subsidiary
(other than CCI);
(vii) surety, performance and other similar bonds incurred in
the ordinary course of business not securing Indebtedness for borrowed
money;
(viii) other Permitted Parent Indebtedness (other than New
Convertible Notes) not in excess of $40,000,000 at any time outstanding,
provided that (i) such Indebtedness is issued solely for cash and the
Parent and the Restricted Subsidiaries are in compliance, on a pro forma
basis after giving effect to the incurrence of such Indebtedness, with
the Financial Covenants, to the extent then applicable, (ii) no portion
of the Net Proceeds of such Indebtedness is, or is required to be,
applied to the repayment of any other Indebtedness, including the ATX
Notes, and (iii) the Net Proceeds of such Indebtedness are contributed to
the common equity capital of the Borrower;
(ix) Guarantees in the ordinary course of business of the
obligations of suppliers, landlords, customers, franchisees and licensees
of the Parent, the Borrower or any Restricted Subsidiary and Guarantees
in respect of customary indemnification and purchase price adjustment
obligations incurred in connection with asset sales permitted by Section
6.07 or Permitted Business Acquisitions;
(x) Indebtedness of CCI permitted under Section 6.02; and
(xi) New Convertible Notes issued on or prior to the Restatement
Effective Date in an aggregate principal amount not in excess of
$41,100,000 at any time outstanding (excluding any PIK dividends paid in
accordance with the terms of the New Convertible Notes).
(b) The Parent and CCI will not, and will not permit any
Restricted Subsidiary to, issue any preferred stock; provided, that the
Parent may issue Non- Cash Pay Preferred Stock and New Preferred Stock so
long as the Parent and the Restricted Subsidiaries are in compliance, on a
pro forma basis after giving effect to the issuance of such preferred
stock, with the Financial Covenants, to the extent then applicable.
SECTION 6.02. Indebtedness of Restricted Subsidiaries. The
Parent, CCI and the Borrower will not permit the Borrower or any other
Restricted Subsidiary to create, incur, assume or permit to exist any
Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in
Schedule 6.02.
(iii) Indebtedness of the Borrower or any Subsidiary of the
Borrower that is a Loan Party to the Parent or any other Restricted
Subsidiary;
(iv) Guarantees by any Restricted Subsidiary of Indebtedness of
any other Restricted Subsidiary that is a Loan Party other than CCI;
(v) Indebtedness of any Person that becomes a Restricted
Subsidiary after the date hereof; provided that (A) such Indebtedness
exists at the time such Person becomes a Restricted Subsidiary and is not
created in contemplation of or in connection with such Person becoming a
Restricted Subsidiary, (B) the Parent and the Restricted Subsidiaries are
in compliance, on a pro forma basis after giving effect to the incurrence
of such Indebtedness, with the Financial Covenants, to the extent then
applicable and (C) the aggregate principal amount of Indebtedness
permitted under this clause (v), together with any refinancing
Indebtedness relating to Indebtedness incurred pursuant to this clause
(v) shall not exceed $10,000,000 at any time outstanding; provided,
further, that any such Indebtedness may be permitted by this clause (v)
only until such time as such Person merges or consolidates with the
Borrower or another Person that is a Loan Party;
(vi) surety, performance and other similar bonds incurred in the
ordinary course of business not securing Indebtedness for borrowed money;
(vii) Indebtedness of the Borrower pursuant to Hedging
Agreements entered into to manage the effective rate of interest on the
Loans or other Indebtedness or to manage foreign currency exposures,
provided such transactions are entered into to manage actual interest
rate or currency exposures and not for the purpose of speculation;
(viii) Indebtedness incurred to refinance Indebtedness incurred
pursuant to Section 6.02(v); provided that (a) such refinancing
Indebtedness (i) shall not have a greater outstanding principal amount
(except to the extent necessary to pay fees, expenses, underwriting
discounts, accreted discount and accrued interest and prepayment premiums
in connection therewith), an earlier maturity date or a decreased
weighted average life than the Indebtedness refinanced and (ii) shall be
subordinated (structurally or otherwise) to the Indebtedness created
under the Loan Documents to at least the extent (if any) of, and shall
otherwise be issued on terms no less favorable in any material respect to
the Lenders than, the Indebtedness refinanced, (b) the proceeds of such
Indebtedness shall be used solely to repay the Indebtedness refinanced
thereby and fees, expenses, underwriting discounts, accreted discount and
accrued interest and prepayment premiums in connection therewith, (c)
such refinancing Indebtedness is not Guaranteed by any Restricted
Subsidiary other than CCI and (d) any such refinancing Indebtedness shall
be permitted only until such time as the relevant acquired Person merges
or consolidates with the Borrower or another Loan Party;
(ix) Guarantees in the ordinary course of business of the
obligations of suppliers, landlords, customer, franchisees and licensees
of the Parent, the Borrower or any Restricted Subsidiary and Guarantees
in respect of customary indemnification and purchase price adjustment
obligations incurred in connection with asset sales permitted by Section
6.07 or Permitted Business Acquisitions;
(x) Capital Lease Obligations outstanding on the Restatement
Effective Date in aggregate principal amount, together with the aggregate
principal amount of Capital Lease Obligations permitted under Section
6.02(ii), not to exceed $26,000,000 at anytime outstanding;
(xi) Indebtedness (other than Indebtedness described in (x)
above) incurred to finance the acquisition, construction or improvement
of any fixed or capital assets and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted
average life thereof; provided that such Indebtedness is incurred prior
to or within 180 days after such acquisition or the completion of such
construction or improvement and shall not exceed $3,000,000 in aggregate
principal amount at any time outstanding; and
(xii) provided that the Nortel Condition has been satisfied,
Indebtedness of the Borrower owed to Nortel in any amount not at any time
in excess of $22,000,000 minus the amount of cumulative principal
payments made on such Indebtedness (or predecessor trade payable
obligations) on or after the Restatement Effective Date, representing
trade payables that have been converted into term loans as contemplated
by Schedule 6.01.
SECTION 6.03. Liens. The Parent, CCI and the Borrower will not,
and will not permit any Restricted Subsidiary to, create, incur, assume or
permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Parent, CCI, the
Borrower or any other Restricted Subsidiary existing on the date hereof
and set forth in Schedule 6.03; provided that (i) such Lien shall not
apply to any other property or asset of the Parent, CCI, the Borrower or
any other Restricted Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof and any extension,
renewal, refinancing, refunding or replacement thereof that does not
(except as permitted by Section 6.01(a)(vi) or Section 6.02(ix)) increase
the outstanding principal amount thereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Parent or any Restricted Subsidiary or
existing on any property or asset of any Person that becomes a Restricted
Subsidiary after the date hereof prior to the time such Person becomes a
Restricted Subsidiary; provided that (A) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Restricted Subsidiary, as the case may be, (B) such Lien shall
not apply to any other property or assets of the Parent or any Restricted
Subsidiary and (C) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person becomes a
Restricted Subsidiary, as the case may be and any extension, renewal,
refinancing, refunding or replacement (or successive extensions,
renewals, refinancings, refundings and replacements) thereof that does
not increase the outstanding principal amount thereof (except as
permitted by Section 6.01(a)(vi) or Section 6.02(ix));
(v) Liens securing Indebtedness of any Restricted Subsidiary to any
Subsidiary Loan Party;
(vi) Liens securing Indebtedness permitted by Section 6.02(v) or
6.02(viii); provided that for any Indebtedness permitted by Section
6.02(v) or 6.02(viii), such Liens shall extend only to the property or
assets that secured the Indebtedness being refinanced with such
Indebtedness permitted by Section 6.02(viii);
(vii) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Restricted Subsidiary; provided that (A)
such security interests secure Indebtedness permitted by clause (xi) of
Section 6.02, (B) such security interests and the Indebtedness secured
thereby are incurred prior to or within 180 days after such acquisition
or the completion of such construction or improvement, (C) the
Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets and (D) such
security interests shall not apply to any other property or assets of the
Parent, CCI, the Borrower or any other Restricted Subsidiary; and
(viii) provided that the Nortel Condition has been satisfied,
first-priority Liens on equipment purchased by the Borrower from Nortel
with the proceeds of Indebtedness (or predecessor trade payable
obligations) referred to in Section 6.01(a)(xii) and securing only such
Indebtedness; provided, however, that Collateral Agent continues to have
a second priority Lien on all such equipment under the Security
Agreement.
SECTION 6.04. Sale and Lease-Back Transactions. The Parent, CCI
and the Borrower will not, nor will it permit the Borrower or any other
Restricted Subsidiary to, enter into any arrangement, directly or
indirectly, with any Person whereby it shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other
property which it intends to use for substantially the same purpose as the
property being sold or transferred.
SECTION 6.05. Fundamental Changes. (a) The Parent, CCI and the
Borrower will not, nor will they permit any Restricted Subsidiary to, merge
into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or liquidate or dissolve, except that,
if at the time thereof and immediately after giving effect thereto no
Default shall have occurred and be continuing, (i) any Person (other than
the Borrower or CCI) may merge into or amalgamate or consolidate with the
Parent in a transaction in which the Parent is the surviving corporation,
(ii) any Person (other than the Parent) may merge into or amalgamate or
consolidate with the Borrower in a transaction in which the Borrower is the
surviving corporation and continues to be organized under the laws of the
United States or a state thereof and no Change of Control results, (iii)
any Person may merge into or amalgamate or consolidate with any Restricted
Subsidiary in a transaction in which the surviving entity is a Wholly Owned
Restricted Subsidiary and (if any party to such merger is a Subsidiary Loan
Party) is a Subsidiary Loan Party and (iv) any Subsidiary (other than the
Borrower) may liquidate or dissolve if the Parent determines in good faith
that such liquidation or dissolution is in the best interests of the Parent
and is not materially disadvantageous to the Lenders; provided that any
such merger involving a Person that is not a Wholly Owned Subsidiary
immediately prior to such merger shall not be permitted unless also
permitted by Section 6.06.
(b) The Parent will not, and will not permit the Borrower or any
other Restricted Subsidiaries to, engage to any material extent in any
business other than Telecommunications Business or any businesses of the
type conducted by the Parent and the Restricted Subsidiaries on the date of
execution of this Agreement and businesses reasonably related thereto.
(c) Except in connection with the disposition of all the Equity
Interests in a Wholly Owned Restricted Subsidiary permitted by Section
6.07, the Parent will not permit any Wholly Owned Restricted Subsidiary to
merge, amalgamate or consolidate with any other Person other than the
Borrower, or another Wholly Owned Restricted Subsidiary, issue or sell
shares of its Capital Stock or take any other action if as a result thereof
such Restricted Subsidiary would cease to be a Wholly Owned Restricted
Subsidiary of the Borrower.
SECTION 6.06. Investments, Loans, Advances, Guarantees and
Acquisitions. The Parent and the Borrower will not, and will not permit any
of the Restricted Subsidiaries to, make or permit to exist any Investment
in any other Person, or purchase or otherwise acquire (in one transaction
or a series of transactions) any assets of any other Person constituting a
business unit, except:
(a) Permitted Investments;
(b) Investments existing on the date hereof and set forth on
Schedule 6.06;
(c) Investments by the Parent and the Restricted Subsidiaries in
the Capital Stock of Restricted Subsidiaries (other than Fiberstream)
existing on the Restatement Effective Date that are Loan Parties;
provided that such shares of Capital Stock shall be pledged pursuant to
the Pledge Agreement;
(d) loans or advances made by the Parent or any Restricted
Subsidiary to a Loan Party (other than Fiberstream); provided that any
such loans and advances made by a Loan Party shall if evidenced by a
promissory note, be pledged pursuant to the Pledge Agreement and no such
loans or advances shall be made to CCI or the Parent at any time when a
Default has occurred and is continuing;
(e) [intentionally omitted]
(f) the Acquisitions;
(g) Guarantees constituting Indebtedness permitted by Sections
6.01 or 6.02, provided that a Loan Party shall not Guarantee any
obligation of a Subsidiary that is not a Loan Party;
(h) Investments received in satisfaction of judgments or in
connection with the bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with, customers and suppliers, in each
case in the ordinary course of business;
(i) loans, advances or extensions of credit to employees and
directors made in the ordinary course of business in an aggregate amount
at any time outstanding not to exceed $1,000,000;
(j) negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar
deposits in the ordinary course of business;
(k) Investments in Hedging Agreements permitted by Section 6.08;
and
(l) promissory notes and other non-cash consideration received
in connection with any asset sale permitted by Section 6.07.
SECTION 6.07. Asset Sales. The Parent, CCI and the Borrower will
not, and will not permit any of the Restricted Subsidiaries to, sell,
transfer, lease or otherwise dispose of any asset, including any Capital
Stock owned by it, nor will the Parent, CCI or the Borrower permit any of
the Restricted Subsidiaries to issue any additional shares of its Capital
Stock or other ownership interests in such Restricted Subsidiary, except:
(a) sales of inventory, used or surplus equipment and Permitted
Investments in each case in the ordinary course of business;
(b) sales, transfers and dispositions among Loan Parties (other
than sales, transfers or dispositions to Fiberstream or, if any Default
has occurred and is continuing, to CCI or the Parent);
(c) sales, transfers and other dispositions of assets (excluding
Capital Stock of Restricted Subsidiaries) that are not permitted by any
other clause of this Section; provided that the aggregate fair market
value of all assets sold, transferred or otherwise disposed of in
reliance on this clause (c) shall not exceed $500,000 in any fiscal
year;
(d) the issuance by Fiberstream of additional shares, or
warrants or options to purchase additional shares, of its Capital Stock
to its employees under stock option plans; provided that (A) the
aggregate number of such additional shares issued or under option or
warrant shall at no time represent more than 30% of the outstanding
Capital Stock of Fiberstream and (B) the recipients of such shares,
options or warrants are provided notice of Fiberstream's guarantee of
the Indebtedness hereunder and its grant of security interests under the
Loan Documents; and
(e) sales of the LMDS Business, ATX or Voyager, provided that
the terms and consideration of any such sale is approved by the Required
Lenders prior to consummation of such sale.
provided that (i) all sales, transfers, leases and other dispositions
permitted hereby (other than those permitted by clause (b) and (d) above)
shall be made for fair value and not less than 100% of the consideration
therefor shall consist of cash payable upon consummation of such
transaction and (ii) the Net Proceeds of any sale, transfer or other
disposition referred to in clauses (c) or (e) are applied immediately upon
receipt to the prepayment of Tranche A Term Loans and reductions of
Revolving Commitments in accordance with the provisions of Section 2.10.
SECTION 6.08. Hedging Agreements. The Parent, CCI and the
Borrower will not, and will not permit any of the Restricted Subsidiaries
to, enter into any Hedging Agreement, other than (a) Hedging Agreements
required by Section 5.14 and (b) Hedging Agreements entered into in the
ordinary course of business to hedge, manage or mitigate risks to which the
Parent or any Restricted Subsidiary is exposed in the conduct of its
business or the management of its liabilities.
SECTION 6.09. Restricted Payments; Certain Payments of
Indebtedness. (a) The Parent, CCI and the Borrower will not, nor will they
permit any Restricted Subsidiary to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except (i) the Parent may
declare and pay dividends with respect to its Capital Stock payable solely
in additional shares of its common stock or Non-Cash Pay Preferred Stock,
(ii) Restricted Subsidiaries (other than the Borrower and CCI) may declare
and pay dividends and make distributions ratably with respect to any Class
of their Capital Stock, (iii) the Parent may make Restricted Payments,
pursuant to and in accordance with stock option plans or other benefit
plans for directors, management or employees of the Parent and the
Restricted Subsidiaries, in an aggregate amount not in excess of $2,000,000
during any fiscal year, (iv) so long as no Event of Default exists or would
result therefrom, the Parent may pay regular required cash dividends on New
Preferred Stock and (v) so long as no Default exists or would result
therefrom, the Borrower may pay cash dividends to CCI, and CCI may pay cash
dividends to the Parent, at such times and in such amounts as may be
necessary to permit the Parent to make payment of regular required cash
dividends on New Preferred Stock and the Parent and CCI to service their
Indebtedness permitted hereunder and pay their other liabilities incurred
in the ordinary course of business.
(b) The Parent, CCI and the Borrower will not, nor will they
permit any Restricted Subsidiary to, make or agree to pay or make, directly
or indirectly, any payment or other distribution (whether in cash,
securities or other property) of or in respect of principal of or interest
on any Indebtedness, or any payment or other distribution (whether in cash,
securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness, other than
payments in respect of subordinated debt prohibited by the subordination
provisions thereof, provided that any payment of interest accruing under
the ATX Note shall be made only with common stock of the Parent;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01 and 6.02;
(iv) payment of secured Indebtedness that becomes due as a
result of the casualty, condemnation, voluntary sale or transfer of the
property or assets securing such Indebtedness;
(v) payment of intercompany Indebtedness owed to the Borrower or
any Restricted Subsidiary of the Borrower that is a Loan Party; and
(vi) payment of Indebtedness under Hedging Agreements in
connection with the termination (including early termination) of such
Hedging Agreements by the Parent, the Borrower or a Restricted Subsidiary
in the ordinary course of business.
(c) The Parent, CCI and the Borrower will not, nor will they
permit any Restricted Subsidiary to, enter into or be party to, or make any
payment under, any Synthetic Purchase Agreement unless (i) in the case of
any Synthetic Purchase Agreement related to any Equity Interest, the
payments required to be made by the Parent, CCI, the Borrower or the
Restricted Subsidiaries thereunder are limited to amounts permitted to be
paid as Restricted Payments under paragraph (a) of this Section 6.09, (ii)
in the case of any Synthetic Purchase Agreement related to any Restricted
Indebtedness, the payments required to be made by the Parent, CCI, the
Borrower or the Restricted Subsidiaries thereunder are limited to the
amount permitted under paragraph (b) of this Section 6.09 and (iii) in the
case of any Synthetic Purchase Agreement, the obligations of the Parent,
CCI, the Borrower and the Restricted Subsidiaries thereunder are
subordinated to the Obligations on terms satisfactory to the Administrative
Agent.
(d) The Parent, CCI and the Borrower will not, nor will they
permit any Restricted Subsidiary to, make any payment of Indebtedness under
the Senior Unsecured Facility other than with Equity Proceeds or the
proceeds of a Permitted Parent Financing.
(e) All Indebtedness under the ATX Note shall be prepaid not
later than the date that is 270 days prior to the final maturity of the ATX
Note (unless no Indebtedness or further commitment to lend is outstanding
under the Senior Unsecured Facility at such time, in which case all
Indebtedness under the ATX Note shall be prepaid on the date that is six
months prior to the final maturity of the ATX Note).
(f) Promptly after receiving any Net Proceeds from borrowings
under the Senior Unsecured Facility or from any other component of the
Initial Permitted Financing, the Parent and CCI shall either contribute
such Net Proceeds to the common equity of the Borrower and/or loan such Net
Proceeds to the Borrower on a subordinated basis evidenced by a promissory
note pledged pursuant to the Pledge Agreement.
SECTION 6.10. Transactions with Affiliates. The Parent, CCI and
the Borrower will not, nor will they permit any Restricted Subsidiary to,
sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or otherwise engage
in any other transactions with, any of its Affiliates, except (a)
transactions in the ordinary course of business that are at prices and on
terms and conditions not less favorable to the Parent, CCI, the Borrower or
such other Restricted Subsidiary than could be obtained on an arm's- length
basis from unrelated third parties, (b) transactions between or among the
Parent, CCI, the Borrower and the Subsidiary Loan Parties not involving any
other Affiliate, (c) any Restricted Payment permitted by Section 6.09, and
(d) transactions pursuant to any agreement or arrangement existing on the
date hereof and set forth in Schedule 6.10.
SECTION 6.11. Restrictive Agreements. The Parent, CCI and the
Borrower will not, nor will they permit any Restricted Subsidiary to,
directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition
upon (a) the ability of the Parent, CCI, the Borrower or any other
Restricted Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets or (b) the ability of any Restricted Subsidiary
to pay dividends or other distributions with respect to any shares of its
Capital Stock or to make or repay loans or advances to the Parent, CCI, the
Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of
the Parent, CCI, the Borrower or any other Restricted Subsidiary; provided
that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by any Loan Document, (ii) the foregoing shall not apply
to restrictions and conditions under (A) agreements existing on the date
hereof identified on Schedule 6.11 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any
such restriction or condition) and (B) the definitive documentation for the
Senior Unsecured Facility, so long as the restrictions and conditions under
such documentation are substantially similar to those described in the
Commitment Letter referred to in the definition of Senior Unsecured
Facility, (iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Restricted
Subsidiary pending such sale, provided such restrictions and conditions
apply only to the Restricted Subsidiary that is to be sold or its immediate
parent and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if
such restrictions or conditions apply only to the property or assets
securing such Indebtedness, (v) clause (a) of the foregoing shall not apply
to customary provisions restricting the assignment thereof.
SECTION 6.12. Amendment of Material Documents. The Parent, CCI
and the Borrower will not, nor will they permit any Restricted Subsidiary
to, amend, modify or waive any of its rights under (a) its certificate of
incorporation, by-laws or other organizational documents or (b) the ATX
Note, the Senior Unsecured Facility, the New Convertible Notes or any other
instrument governing Indebtedness, in each case in a manner that is adverse
in any significant respect to the Lenders.
SECTION 6.13. Minimum Active Access Lines. The Borrower, CCI and
the Parent will not permit the number of Active Access Lines, on the last
day of any fiscal quarter, to be less than the number indicated below for
such date:
Date Minimum Active Access Lines
---- ---------------------------
December 31, 2000 192,000
March 31, 2001 207,000
June 30, 2001 207,000
September 30, 2001 207,000
December 31, 2001 202,000
March 31, 2002 212,000
June 30, 2002 223,000
September 30, 2002 234,000
December 31, 2002 244,000
March 31, 2003 255,000
June 30, 2003 266,000
September 30, 2003 276,000
SECTION 6.14. Minimum On-Net Access Lines. The Borrower, CCI and
the Parent will not permit the number of On-Net Access Lines, on the last
day of any fiscal quarter, to be less than the number indicated below for
such date:
Date Minimum On-Net Access Lines
---- ---------------------------
December 31, 2000 45,000
March 31, 2001 59,000
June 30, 2001 89,000
September 30, 2001 101,000
December 31, 2001 113,000
March 31, 2002 128,000
June 30, 2002 144,000
September 30, 2002 158,000
December 31, 2002 172,000
March 31, 2003 186,000
June 30, 2003 199,000
September 30, 2003 211,000
SECTION 6.15. Minimum Consolidated Service Revenues. The
Borrower, CCI and the Parent will not permit Consolidated Service Revenue
for any fiscal quarter ending on a date set forth below to be less than the
amount set forth opposite such date below:
Minimum Consolidated
Fiscal Quarter Ending Service Revenue
--------------------- ---------------------
December 31, 2000 65,000,000
March 31, 2001 67,000,000
June 30, 2001 66,000,000
September 30, 2001 67,000,000
December 31, 2001 68,000,000
March 31, 2002 67,000,000
June 30, 2002 70,000,000
September 30, 2002 73,000,000
December 31, 2002 77,000,000
March 31, 2003 78,000,000
June 30, 2003 82,000,000
September 30, 2003 87,000,000
SECTION 6.16. Secured Debt to Total Capital. During the period
from the Effective Date through and including September 30, 2003, the
Borrower, CCI and the Parent will not permit the ratio of (a) Secured Debt
to (b) Total Capital, as of the last day of any fiscal quarter, to be
greater than 0.25 to 1.00.
SECTION 6.17. Total Debt to Total Capital. During the period
from the Effective Date through and including September 30, 2003, the
Borrower, CCI and the Parent will not permit the ratio of (a) Total Debt to
(b) Total Capital, as of the last day of any fiscal quarter, to be greater
than 0.60 to 1.00.
SECTION 6.18. Positive EBITDA. The Borrower, CCI and the Parent
will not permit Consolidated EBITDA for any fiscal quarter ending on or
after March 31, 2003 to be negative.
SECTION 6.19. Maximum Secured Debt to Annualized EBITDA. The
Borrower, CCI and the Parent will not permit the ratio of (i) Secured Debt
outstanding on any date during the periods set forth below to (ii)
Annualized EBITDA in respect of the fiscal quarter most recently ended on
or prior to such date, to exceed the ratio set forth below opposite the
period below that includes the last day of such fiscal quarter:
Period Maximum Ratio
------ -------------
December 31, 2003 through
June 29, 2004 5.00 to 1.00
June 30, 2004 through
December 30, 2004 4.00 to 1.00
December 31, 2004 through
December 30, 2005 3.00 to 1.00
December 31, 2005 and thereafter 2.00 to 1.00
SECTION 6.20. Maximum Total Debt to Annualized EBITDA. The
Borrower, CCI and the Parent will not permit the ratio of (i) Total Debt
outstanding on any date during the periods set forth below to (ii)
Annualized EBITDA in respect of the fiscal quarter most recently ended on
or prior to such date to exceed the ratio set forth below opposite the
period that includes the last day of such fiscal quarter:
Period Maximum Ratio
------ -------------
December 31, 2003 through
June 29, 2004 7.00 to 1.00
June 30, 2004 through
September 29, 2004 6.50 to 1.00
September 30, 2004 through
December 30, 2004 6.00 to 1.00
December 31, 2004 through
September 29, 2005 5.00 to 1.00
September 30, 2005 through
December 30, 2005 4.00 to 1.00
December 31, 2005 and thereafter 3.00 to 1.00
SECTION 6.21. Minimum Consolidated EBITDA to Cash Interest
Expense. The Borrower, CCI and the Parent will not permit the ratio of
Consolidated EBITDA to Consolidated Cash Interest Expense for any period of
four consecutive fiscal quarters ending during a period set forth below to
be less than the ratio set forth below opposite such period:
Period Minimum Ratio
------ -------------
December 31, 2003 through
December 30, 2004 1.50 to 1.00
December 31, 2004 through
March 30, 2006 2.50 to 1.00
March 31, 2006 and thereafter 3.00 to 1.00
SECTION 6.22. Minimum Consolidated EBITDA to Consolidated Fixed
Charges. The Borrower, CCI and the Parent will not permit the ratio of (i)
Consolidated EBITDA to (ii) Consolidated Fixed Charges for any period of
four consecutive fiscal quarters ending on or after December 31, 2003 to be
less than 1.10 to 1.00.
SECTION 6.23. Maximum Capital Expenditures. The Borrower, CCI
and the Parent will not permit Capital Expenditures of the Parent, CCI, the
Borrower and the other Restricted Subsidiaries to exceed the sum of (a)
Excess Capital, if any, received by the Parent or CCI during such year and
used to finance Capital Expenditures plus (b) the amount set forth below
opposite such year:
Maximum Capital
Fiscal Year Ending Expenditures
------------------ ---------------
December 31, 2001 $13,000,000
December 31, 2002 18,500,000
December 31, 2003 17,600,000
December 31, 2004 19,000,000
December 31, 2005 22,600,000
December 31, 2006 23,600,000
December 31, 2007 24,200,000
December 31, 2008 26,700,000
December 31, 2009 24,600,000
; provided, however, that the amount of Capital Expenditures in any fiscal
year permitted to be incurred pursuant to the table above shall be
increased by an amount equal to the lesser of (i) the unused Capital
Expenditures permitted pursuant to the table above for the fiscal year
immediately preceding such fiscal year and (ii) 20% of the amount of
Capital Expenditures permitted to be incurred pursuant to the table above
for such fiscal year.
SECTION 6.24. Designation of Unrestricted Subsidiaries. (a) The
Parent may not designate any Restricted Subsidiary as an Unrestricted
Subsidiary and may hereafter designate any other Subsidiary as an
Unrestricted Subsidiary under this Agreement (a "Designation") only if:
(i) such Subsidiary does not own any Capital Stock of any
Restricted Subsidiary;
(ii) no Event of Default shall have occurred and be continuing
at the time of or after giving effect to such Designation;
(iii) after giving effect to such Designation and any related
Investment to be made in such designated Subsidiary by the Parent, CCI,
the Borrower or any other Restricted Subsidiary (which shall in any
event include the existing Investment in such Subsidiary at the time it
is designated as an Unrestricted Subsidiary), (A) any such existing
Investment and related Investment would comply with Section 6.06 and (B)
the Parent, CCI and the Borrower would be in compliance with each of the
Financial Covenants, calculated on a pro forma basis as if such
Designation and Investment had occurred immediately prior to the first
day of the period of four consecutive fiscal quarters most recently
ended in respect of which financial statements have been delivered by
the Parent pursuant to Section 5.01(a) or (b); and
(iv) the Parent has delivered to the Administrative Agent (x)
written notice of such Designation and (y) a certificate, dated the
effective date of such Designation, of a Financial Officer of the Parent
stating that no Event of Default has occurred and is continuing and
setting forth reasonably detailed calculations demonstrating pro forma
compliance with the Financial Covenants in accordance with paragraph
(iii) above.
(b) The Parent may designate any Unrestricted Subsidiary as a
Restricted Subsidiary under this Agreement (an "RS Designation") only if:
(i) such Subsidiary is predominantly engaged in one or more
Telecommunications Businesses in the United States;
(ii) no Event of Default shall have occurred and be continuing
at the time of or after giving effect to such RS Designation, and after
giving effect thereto, the Parent, CCI and the Borrower would be in
compliance with each of the Financial Covenants, calculated on a pro
forma basis as if such RS Designation had occurred immediately prior to
the first day of the period of four consecutive fiscal quarters most
recently ended in respect of which financial statements have been
delivered by the Parent pursuant to Section 5.01(a) or (b); and
(iii) all Liens on assets of such Unrestricted Subsidiary and
all Indebtedness of such Unrestricted Subsidiary outstanding immediately
following the RS Designation would have been permitted to be incurred
pursuant to Sections 6.02 and 6.03 (without reliance on Section 6.02(v)
or Section 6.03(iv)) if such Unrestricted Subsidiary had been a
Restricted Subsidiary at the time of incurrence of such Indebtedness or
Liens.
Upon any such RS Designation with respect to an Unrestricted
Subsidiary (i) the Parent, CCI, the Borrower and the other Restricted
Subsidiaries shall be deemed to have received a return of their Investment
in such Unrestricted Subsidiary equal to the lesser of (x) the amount of
such Investment immediately prior to such RS Designation and (y) the fair
market value (as reasonably determined by the Parent) of the net assets of
such Subsidiary at the time of such RS Designation and (ii) the Parent, the
Borrower and the other Restricted Subsidiaries shall be deemed to have a
permanent Investment in an Unrestricted Subsidiary equal to the excess, if
positive, of the amount referred to in clause (i)(x) above over the amount
referred to in clause (i)(y) above.
(c) Neither the Parent, CCI, the Borrower nor any other
Restricted Subsidiary shall at any time (x) provide a Guarantee of any
Indebtedness of any Unrestricted Subsidiary, (y) be directly or indirectly
liable for any Indebtedness of any Unrestricted Subsidiary or (z) be
directly or indirectly liable for any other Indebtedness which provides
that the holder thereof may (upon notice, lapse of time or both) declare a
default thereon (or cause such Indebtedness or the payment thereof to be
accelerated, payable or subject to repurchase prior to its final scheduled
maturity) upon the occurrence of a default with respect to any other
Indebtedness that is Indebtedness of an Unrestricted Subsidiary, except in
the case of clause (x) or (y) to the extent permitted under Section 6.01
and Section 6.06 hereof. Except as provided in clause (b) above, each
Designation shall be irrevocable, and no Unrestricted Subsidiary may become
a Restricted Subsidiary, be merged with or into the Parent, CCI, the
Borrower or any other Restricted Subsidiary or liquidate into or transfer
substantially all its assets to the Parent, CCI, the Borrower or any other
Restricted Subsidiary.
SECTION 6.25. License Subsidiaries. The Parent, CCI and the
Borrower will not permit any License Subsidiary (a) to incur, assume or
permit to exist any Indebtedness or other liabilities (other than under the
Guarantee Agreement and the Security Documents and the Communications Act
and taxes and other liabilities incurred in the ordinary course in order to
maintain its existence or (b) to engage in any business or activities other
than the holding of Licenses.
SECTION 6.26. Certain Sales. In the event that the Borrower
determines to sell Voyager in a transaction in which the Net Proceeds from
such sale would be applied to the prepayment of Loans and reductions of
Revolving Commitments in accordance with Section 2.10 and seeks a consent
from the Required Lenders to effect such a sale without violating Section
6.07, the Lenders, acting through the Administrative Agent, will undertake
to enter into amendments to the financial covenants in Article VI to
reflect the anticipated impact of such sale on the Borrower's assets,
financial condition and results of operations, which amendments, if agreed
to by the Required Lenders, will take effect (subject to customary
conditions) upon the consummation of such sale and the related prepayment
of Loan and reductions in the Commitments. Nothing contained in this
Section shall require the Lenders to make any amendment to Article VI.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan or
any reimbursement obligation in respect of any LC Disbursement when and
as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of the Parent, CCI, the Borrower or any other Restricted
Subsidiary in or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, shall prove to have been incorrect in any
material respect when made or deemed made;
(d) the Parent, CCI or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.02,
5.04 (with respect to the existence of the Parent, CCI and the Borrower),
5.11, 5.15 or 5.16 or in Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other
than those specified in clause (a), (b) or (d) of this Article), and such
failure shall continue unremedied for a period of 30 days after notice
thereof from the Administrative Agent to the Borrower (which notice will
be given at the request of any Lender);
(f) the Parent, CCI, the Borrower or any other Restricted
Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable (after
giving effect to any applicable period of grace provided for in the
instrument governing such Indebtedness);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee
or agent on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; provided that this
clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Parent, CCI, the
Borrower or any other Restricted Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent, the
Borrower or any other Restricted Subsidiary or for a substantial part of
its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Parent, CCI, the Borrower or any other Restricted
Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent, the
Borrower or any other Restricted Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Parent, CCI, the Borrower or any other Restricted
Subsidiary shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments (other than to the extent covered by
insurance as to which the insurance company has acknowledged coverage in
writing) for the payment of money in an aggregate amount in excess of
$2,000,000 shall be rendered against the Parent, CCI, the Borrower, any
other Restricted Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the
Parent, CCI, the Borrower or any other Restricted Subsidiary to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(m) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral (other than immaterial
portions of the Collateral), with the priority required by the applicable
Security Document, except (i) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under
the Loan Documents or (ii) as a result of the Agent's failure to maintain
possession of any stock certificates, promissory notes or other
instruments delivered to it under the Pledge Agreement; or the Guarantee
Agreement shall cease to be, or shall be asserted by any Loan Party not
to be, valid and enforceable;
(n) any termination, revocation or nonrenewal by the FCC of one
or more Licenses (other than any immaterial Licences) of the Parent, CCI,
the Borrower or any Restricted Subsidiary;
(o) a Change of Control shall occur; or
(p) Xxxxxxx Xxxxx (i) voluntarily resigns or is terminated as
chief executive officer of the Parent and the Borrower or (ii) other than
by reason of death or incapacitation fails to remain actively involved in
the day-to-day management and operations of the Parent and the Borrower
in a manner commensurate with that of a chief executive officer, and in
the instance of such death or incapacity the Board of Directors of the
Parent and the Borrower fail to appoint a successor which is reasonably
acceptable to the Administrative Agent;
then, and in every such event (other than an event with respect to the
Parent, CCI or the Borrower described in clause (h) or (i) of this
Article), and at any time thereafter during the continuance of such event,
the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) terminate the Commitments, and
thereupon the Commitments shall terminate immediately, and (ii) declare the
Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans
so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower;
and in case of any event with respect to the Parent, CCI or the Borrower
described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations
accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Agent as its agent and authorizes the Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Agent by the terms of the Loan Documents, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Agent hereunder.
The Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality
of the foregoing, (a) the Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Agent shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights
and powers expressly contemplated by the Loan Documents that the Agent is
required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth in the Loan Documents, the Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information
relating to the Parent, the Borrower or any of their Subsidiaries that is
communicated to or obtained by the bank serving as Agent or any of its
Affiliates in any capacity. The Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or wilful misconduct. The Agent shall
be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Agent by the Borrower or a Lender, and the
Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate, report or
other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other
terms or conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to the
Agent.
The Agent shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Agent
also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Agent may consult with legal counsel
(who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants
or experts.
The Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by the
Agent. The Agent and any such sub-agent may perform any and all its duties
and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions of the preceding paragraphs shall apply
to any such sub-agent and to the Related Parties of each Agent and any such
sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well
as activities as Agent.
Subject to the appointment and acceptance of a successor Agent
as provided in this paragraph, the Agent may resign at any time by
notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with, so long as no
Default or Event of Default shall have occurred and be continuing, the
consent of the Borrower (which consent shall not be unreasonably withheld
or delayed), to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may, on behalf of the Lenders and the Issuing Bank,
appoint a successor Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Agent's resignation hereunder, the provisions of this Article and Section
9.03 shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the Agent or any other
Lender and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document
or related agreement or any document furnished hereunder or thereunder.
None of the Lenders identified on the facing page of, or
elsewhere in, this Agreement or in any other Loan Document as a
"syndication agent" or a "co- documentation agent", shall have any right,
power, obligation, liability, responsibility or duty under this Agreement
or the other Loan Documents other than those applicable to all of the
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with
any Lender.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, CCI or the Parent, to it at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxx Xxxxxxx, (Telecopy
No. 212-906-8489);
(b) if to the Agent or the Issuing Bank, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xx. Xxxxxx Xxxxxx (Telecopy
No. (000) 000-0000), with a copy to The Chase Manhattan Bank, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxxxx and Xxxx
Xxxxx Xxxxxx (Telecopy No. (000) 000-0000); and
(c) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Each of the Parent and CCI hereby irrevocably appoints and authorizes the
Borrower to give and receive any notices hereunder on its behalf and any
notice given or received by the Borrower shall be effective as notice given
or received by CCI or the Parent. Any party hereto may change its address
or telecopy number for notices and other communications hereunder by notice
to the other parties hereto. All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
the Agent, the Issuing Bank or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Agent,
the Issuing Bank and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting
the generality of the foregoing, the making of a Loan or issuance of a
Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether the Agent, any Lender or the Issuing Bank may have
had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in
the case of this Agreement, pursuant to an agreement or agreements in
writing entered into by the Parent, CCI, the Borrower and the Required
Lenders or, in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Administrative Agent
and the Loan Party or Loan Parties that are parties thereto, in each case
with the consent of the Required Lenders; provided that no such agreement
shall (i) increase the Commitment or extend the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent
of each Lender affected thereby, (iii) postpone the maturity of any Loan,
or any scheduled date of payment of the principal amount of any Term Loan
under Section 2.09, or the required date of reimbursement of any LC
Disbursement, or any date for the payment of any interest or fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration or reduction of any Commitment,
without the written consent of each Lender affected thereby, (iv) change
Section 2.17(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the percentage set forth in
the definition of "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent
of each Lender (or each Lender of such Class, as the case may be), (vi)
release any Loan Party from its Guarantee under the Guarantee Agreement
(except as expressly provided in Section 9.15), or limit its liability in
respect of such Guarantee, without the written consent of each Lender,
(vii) release all or any substantial portion of the Collateral from the
Liens of the Security Documents, without the written consent of
each Lender, in each case other than in connection with any sale of
Collateral permitted by this Agreement or (viii) change any provisions of
any Loan Document in a manner that by its terms adversely affects the
rights in respect of payments due to Lenders holding Loans of any Class
differently than those holding Loans of any other Class, without the
written consent of Lenders holding a majority in interest of the
outstanding Loans and unused Commitments of each affected Class; provided
further that (A) no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or the Issuing Bank
without the prior written consent of the Administrative Agent or the
Issuing Bank, as the case may be, (B) any waiver, amendment or modification
of this Agreement that by its terms affects only the rights or duties under
this Agreement of a particular Class of Lenders may be effected by an
agreement or agreements in writing entered into by the Borrower and
requisite percentage in interest of the affected Class of Lenders that
would be required to consent thereto under this Section if such Class of
Lenders were the only Class of Lenders hereunder at the time and (C) any
amendment to Section 9.14 is subject to Section 9.14(e). Notwithstanding
the foregoing, any provision of this Agreement may be amended by an
agreement in writing entered into by the Parent, CCI, the Borrower, the
Required Lenders and the Administrative Agent (and, if its rights or
obligations are affected thereby, the Issuing Bank) if (i) by the terms of
such agreement the Commitment of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of
such amendment and (ii) at the time such amendment becomes effective, each
Lender not consenting thereto receives payment in full of the principal of
and interest accrued on each Loan made by it and all other amounts owing to
it or accrued for its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of a financial advisor to the Administrative
Agent and the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the
Loan Documents or any amendments, modifications or waivers of the
provisions thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder, (iii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Bank or any Lender, including the
reasonable fees, charges and disbursements of counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with
the enforcement or protection of its rights in connection with the Loan
Documents, including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit and (iv) all
expenses incurred by the Administrative Agent or any Lender, including the
reasonable fees, charges and disbursements of counsel for the
Administrative Agent and the Lenders, in connection with the restructuring
of any Nortel obligations of the Company or its Subsidiaries or the
satisfaction of the Nortel Condition.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against,
and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties
to the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions, the Acquisitions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any Mortgaged Property or any
other property currently or formerly owned or operated by the Parent or any
of its Subsidiaries, or any Environmental Liability related in any way to
the Parent or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses resulted from
the bad faith, gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Issuing Bank
under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to the Administrative Agent or the Issuing Bank, as the case may be,
such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent or the Issuing Bank in its
capacity as such. For purposes hereof, a Lender's "pro rata share" shall be
determined based upon its share of the sum of the total Revolving
Exposures, outstanding Tranche A Term Loans and unused Commitments at the
time.
(d) To the extent permitted by applicable law, each of the
Parent, CCI and the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or
any agreement or instrument contemplated hereby, the Transactions, the
Acquisitions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that the Parent, CCI and the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or
transfer without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the
Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans at the time owing to it);
provided that (i) except in the case of an assignment to a Lender, a Lender
Affiliate or a Related Fund of a Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a portion
of a Revolving Commitment or any Lender's obligations in respect of its LC
Exposure, the Issuing Bank) must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed),
(ii) except in the case of an assignment to a Lender or an Affiliate of a
Lender or a Related Fund of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment or Loans, the amount
of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, (iii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender's rights and obligations in
respect of one Class of Commitments or Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee
of $3,500, and (v) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire; and provided
further that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event of Default under clause (h) or
(i) of Article VII has occurred and is continuing. Subject to acceptance
and recording thereof pursuant to paragraph (d) of this Section, from and
after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations
in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of
New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the
Parent, the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Parent, the Borrower, the Issuing Bank and
any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already
be a Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (i)
such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce the Loan
Documents and to approve any amendment, modification or waiver of any
provision of the Loan Documents; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in
the first proviso to Section 9.02(b) that affects such Participant. Subject
to paragraph (f) of this Section, the Parent, CCI and the Borrower agree
that each Participant shall be entitled to the benefits of Sections 2.14,
2.15 and 2.16 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section. To
the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.17(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.16 unless the Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including, without limitation, any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan
Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the other parties hereto
and shall survive the execution and delivery of the Loan Documents and the
making of any Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder,
and shall continue in full force and effect as long as the principal of or
any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Commitments or
the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but
all of which when taken together shall constitute a single contract. This
Agreement, the other Loan Documents and the Chase Agreements constitute the
entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear
the signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of the Borrower, CCI, the Parent or any other Loan
Party against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective
of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each of the Parent, CCI and the Borrower hereby irrevocably
and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of the
Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to any Loan Document,
or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in
such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement or any other Loan Document shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against the Parent, CCI, the Borrower or their
properties in the courts of any jurisdiction.
(c) Each of the Parent, CCI and the Borrower hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any court referred
to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
(d) Each party to this Agreement irrevocably consents to service
of process by registered or certified mail, return receipt requested, sent
to its address provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent,
the Issuing Bank and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be
disclosed (a) to its and its Affiliates' directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to
keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section (in the case of the
following clauses (i) and (ii)), (i) to any assignee of or Participant in,
or any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement, (ii) to any direct or indirect
contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty
agrees to be bound by the provisions of this Section 9.12) or (iii) to the
National Association of Insurance Commissioners or any similar organization
or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with
ratings issued with respect to such Lender, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii)
becomes available to the Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Loan Parties. For the
purposes of this Section, "Information" means all information received from
the Loan Parties relating to the Parent, CCI, the Borrower or their
business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Loan Parties. Any Person required to
maintain the confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan, together with all fees, charges and other amounts which are treated
as interest on such Loan under applicable law (collectively the "Charges"),
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by the Lender holding
such Loan in accordance with applicable law, the rate of interest payable
in respect of such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of
such Loan but were not payable as a result of the operation of this Section
shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall
have been received by such Lender.
SECTION 9.14. Special Funding Option. (a) Notwithstanding
anything to the contrary contained herein, any Lender (for the purposes of
this Section 9.16, a "Granting Lender") may grant to a special purpose
funding vehicle (for the purposes of this Section 9.16, an "SPC") the
option to make, on behalf of such Granting Lender, all or a portion of the
Loans which such Granting Lender is obligated to make (a "Funding
Obligation") under the Revolving Credit Facility, such option to be
exercisable in the sole discretion of the SPC, provided, however, that
(i) such Granting Lender's obligations under this Agreement and
the Loan Documents shall remain unchanged, including without limitation
the indemnification obligations of the Granting Lender pursuant to
Section 9.03 hereof;
(ii) such Granting Lender shall remain solely responsible to the
other parties hereto for the performance of all Funding Obligations;
(iii) the Borrower and the Lenders shall continue to deal solely
and directly with such Granting Lender in connection with such Granting
Lender's rights and obligations under this Agreement; the Agent shall
continue to deal directly with the Granting Lender as agent for the SPC
with respect to distribution of payment of principal; interest and fees,
notices of Conversion and Continuation and all other matters;
(iv) such Granting Lender shall retain the sole right to enforce
the obligations of the Borrower relating to its Loans and its Notes and
to approve any amendment, modification, or waiver of any provisions of
this Agreement, each of which may, if so agreed in writing between the
Granting Lender and the SPC, require the prior consent of any such SPC
which has exercised the option to undertake the Funding Obligation in
connection with such Granting Lender's Commitments and Obligations owing
thereto before the Granting Lender approves any such amendment,
modification or waiver;
(v) the granting of such option shall not constitute an
assignment to or participation of such SPC of or in the Granting Lender's
Commitments and Obligations owing thereto;
(vi) such SPC shall not become a Lender hereunder as a result of
the granting of such option;
(vii) such SPC shall not become obligated or committed to make
Loans as a result of the granting of such option;
(viii) if such SPC elects not to exercise such option or
otherwise fails to make all or any part of a Loan, the Granting Lender
shall retain its Funding Obligation and be obligated to make the entire
Loan or any portion of such Loan not made by such SPC; and
(ix) any SPC may, with notice to, but without the prior written
consent of, the Borrowers and the Agent and without paying any processing
fee therefor, assign all or a portion of its interests as a participant
or subparticipant in any Loans to the Granting Bank or to any financial
institutions (consented to by the Borrowers and Agent) providing
liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans.
(b) Loans made by an SPC hereunder shall be deemed to satisfy
the Funding Obligation and utilize the Revolving Credit Commitment of the
Granting Lender as if, and to the same extent, such Loans were made by such
Granting Lender.
(c) Each party hereto agrees that no SPC shall be liable for any
indemnity or payment under this Agreement for which a Granting Lender would
otherwise be liable so long as, and to the extent that, the Granting Lender
provides such indemnity or makes such payment. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper
or other senior Indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under
the laws of the United States or any State thereof arising out of or
relating to transactions under this Agreement or the other Loan Documents.
(d) Notwithstanding anything to the contrary contained in this
Agreement, an SPC may disclose on a confidential basis any nonpublic
information relating to Loans made by such SPC hereunder to any rating
agency, commercial paper dealer or provider of any surety or guarantee to
such SPC.
(e) This Section 9.14 may not be amended without the prior
written consent of the Granting Lenders on behalf of which each SPC has
made all or any part of its Loans which remain outstanding at the time of
such amendment.
SECTION 9.15. Release of Subsidiaries; Subordination of Certain
Liens. (a) If (i) the Agent receives a certificate from an Executive
Officer of the Parent certifying as of the date of that certificate that,
after the consummation of the transaction or series of transactions
described in reasonable detail satisfactory to the Agent in such
certificate on such date, the Subsidiary Loan Party identified in such
certificate will no longer be a subsidiary of the Parent and (ii) such
transactions are consummated on such date in accordance with and without
violating the provisions of this Agreement or any other Loan Document, the
such Subsidiary's guarantee under the Guarantee Agreement shall
automatically terminate and such Subsidiary shall cease to be a party to
any Loan Document.
(b) No such termination or cessation shall release, reduce, or
otherwise adversely affect the obligations of any other Loan Party under
this Agreement, any other guarantee, or any other Loan Document, all of
which obligations will remain in full force and effect.
(c) The Agent shall, at the Parent's expense, executive such
documents as te Parent may reasonably request to evidence such termination
or cessation, as the case may be.
(d) Provided that the Nortel Condition has been satisfied, the
Collateral Agent shall, at the expense of the Parent and the Borrower,
execute and deliver to Nortel such amendments to UCC financing statements
covering equipment referred to in Section 6.03(viii) as may be necessary to
reflect the subordination of the Lien on such equipment under the Security
Agreement to Liens in favor of Nortel referred to in Section 6.03(viii).
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
CORECOMM COMMUNICATIONS, INC.,
by /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
CORECOMM LIMITED,
by /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
CORECOMM HOLDCO, INC.,
by /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK,
individually and as Agent,
by /s/ Xxxx Xxxxx Xxxxxx
-------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Managing Director
AMERICA ONLINE, INC.,
by /s/ Xxxxxx Xxxx
-------------------------
Name: Xxxxxx Xxxx
Title: Chief Financial Officer
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
by /s/ Xxxxxx Xxxxxx
-------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX SENIOR FUNDING INC.,
by /s/ Xxxxx Xxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
