FIRST-LIEN CREDIT AGREEMENT among RCN CORPORATION, VARIOUS LENDERS and DEUTSCHE BANK TRUST COMPANY AMERICAS, as ADMINISTRATIVE AGENT Dated as of May 30, 2006 DEUTSCHE BANK SECURITIES INC., as SOLE LEAD ARRANGER, DEUTSCHE BANK SECURITIES INC. and...
FIRST-LIEN
CREDIT AGREEMENT
among
RCN
CORPORATION,
VARIOUS
LENDERS
and
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
ADMINISTRATIVE AGENT
________________________________
Dated
as
of May 30, 2006
________________________________
DEUTSCHE
BANK SECURITIES INC.,
as
SOLE
LEAD ARRANGER,
DEUTSCHE
BANK SECURITIES INC.
and
CITIGROUP
GLOBAL MARKETS INC.,
as
JOINT
BOOK RUNNING MANAGERS
CITICORP
USA, INC.,
as
Syndication Agent
and
SOCIETE
GENERALE,
as
Documentation Agent
FIRST-LIEN
CREDIT AGREEMENT, dated as of May 30, 2006, among RCN CORPORATION, a Delaware
corporation (the “Borrower”),
the
Lenders party hereto from time to time, and DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Administrative Agent. All capitalized terms used herein and defined
in Section 11 are used herein as therein defined.
W
I T
N E S S E T H:
WHEREAS,
subject to and upon the terms and conditions set forth herein, the Lenders
are
willing to make available to the Borrower the respective credit facilities
provided for herein;
NOW,
THEREFORE, IT IS AGREED:
SECTION
1. Amount
and Terms of Credit.
1.01 The
Commitments.
(a)
Subject
to and upon the terms and conditions set forth herein, each Lender with an
Initial Term Loan Commitment severally agrees to make a term loan or term loans
(each an “Initial
Term Loan”
and
collectively the “Initial
Term Loans”)
to the
Borrower in an amount not more than such Lender’s Initial Term Loan Commitment,
which Initial Term Loans (i) shall be incurred pursuant to a single drawing
on
the Initial Borrowing Date, (ii) shall be denominated in Dollars, and (iii)
except as hereinafter provided, shall, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided
that (A)
except as otherwise specifically provided in Section 1.10(b), all Initial Term
Loans comprising the same Borrowing shall at all times be of the same Type,
and
(B) unless either the Administrative Agent otherwise agrees in its sole
discretion or has determined that the Syndication Date has occurred (at which
time this clause (B) shall no longer be applicable), prior to the 90th day
following the Initial Borrowing Date, Initial Term Loans may only be incurred
and maintained as, and/or converted into, Eurodollar Loans so long as all such
outstanding Eurodollar Loans are subject to an Interest Period of one month
which begins on the same day, with the first such Interest Period to begin
no
sooner than three Business Days (nor later than five Business Days) after the
Initial Borrowing Date, and (iv) shall be made by each such Lender in that
aggregate principal amount which does not exceed the Initial Term Loan
Commitment of such Lender on the Initial Borrowing Date. Once repaid, Initial
Term Loans may not be reborrowed.
(b) Subject
to and upon the terms and conditions set forth herein, each Lender with a
Revolving Loan Commitment severally agrees to make, at any time and from time
to
time on or after the Initial Borrowing Date and prior to the Revolving Loan
Maturity Date, a revolving loan or revolving loans (each, a “Revolving
Loan”
and,
collectively, the “Revolving
Loans”)
to the
Borrower, which Revolving Loans (i) shall be denominated in Dollars, (ii) shall,
at the option of the Borrower, be incurred and main-tained as, and/or converted
into, Base Rate Loans or Eurodollar Loans, provided
that (A)
except as otherwise specifically provided in Section 1.10(b), all Revolving
Loans comprising the same Borrowing shall at all times be of the same Type,
and
(B) unless either the Administrative Agent otherwise agrees in its sole
discretion or has determined that the Syndication Date has occurred (at which
time this clause (B) shall no longer be applicable), prior to the 90th day
following the Initial Borrowing Date, Revolving Loans may only be incurred
and
maintained as, and/or converted into, Eurodollar Loans so long as all such
outstanding Eurodollar Loans are subject to an Interest Period of one month
which begins on the same day, (iii) may be repaid and reborrowed in
accordance with the provisions hereof, and (iv) shall not exceed for any
such Lender at any time outstanding that aggre-gate principal amount which,
when
added to the product of (x) such Lender’s RL Percentage and (y) the sum of (I)
the aggregate amount of all Letter of Credit Outstandings (exclu-sive of Unpaid
Drawings which are repaid with the proceeds of, and simul-tan-eously with the
incurrence of, the respective incurrence of Revolving Loans) at such time and
(II) the aggregate principal amount of all Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incur-rence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Lender at such
time.
-1-
(c) Subject
to and upon the terms and conditions set forth herein, the Swingline Lender
agrees to make, at any time and from time to time on or after the Initial
Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or
revolving loans (each, a “Swingline
Loan”
and,
collectively, the “Swingline
Loans”)
to the
Borrower, which Swingline Loans (i) shall be incurred and maintained as Base
Rate Loans, (ii) shall be denominated in Dollars, (iii) may be repaid and
reborrowed in accordance with the provisions hereof, (iv) shall not exceed
in
aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
aggregate amount of all Letter of Credit Outstandings at such time, an amount
equal to the Total Revolving Loan Commitment at such time, and (v) shall not
exceed in aggre-gate principal amount at any time outstanding the Maximum
Swingline Amount. Notwithstanding anything to the contrary contained in this
Section 1.01(c), (i) the Swingline Lender shall not be obligated to make any
Swingline Loans at a time when a Lender Default exists with respect to an RL
Lender unless the Swingline Lender has entered into arrangements satisfactory
to
it and the Borrower to eliminate the Swingline Lender’s risk with respect to the
Defaulting Lender’s or Defaulting Lenders’ participation in such Swingline
Loans, including by cash collateralizing such Defaulting Lender’s or Defaulting
Lenders’ RL Percentage of the outstanding Swingline Loans, and (ii) the
Swingline Lender shall not make any Swingline Loan after it has received written
notice from the Borrower, any other Credit Party or the Required Lenders stating
that a Default or an Event of Default exists and is continuing until such time
as the Swingline Lender shall have received written notice (A) of rescission
of
all such notices from the party or parties originally delivering such notice
or
notices or (B) of the waiver of such Default or Event of Default by the Required
Lenders.
(d) On
any
Business Day, the Swingline Lender may, in its sole discretion, give notice
to
the RL Lenders that the Swingline Lender’s outstanding Swingline Loans shall be
funded with one or more Borrowings of Revolving Loans (provided
that
such notice shall be deemed to have been automatically given upon the occurrence
of a Default or an Event of Default under Section 10.05 or upon the exercise
of
any of the remedies provided in the last para-graph of Section 10), in which
case one or more Borrowings of Revolving Loans consti-tut-ing Base Rate Loans
(each such Borrowing, a “Mandatory
Borrowing”)
shall
be made on the immedi-ately succeeding Business Day by all RL Lenders
pro rata
based on
each such RL Lender’s RL Percentage and the proceeds thereof shall be
applied directly by the Swingline Lender to repay the Swingline Lender for
such
outstanding Swingline Loans. Each RL Lender hereby irrevocably agrees to make
Revolving Loans upon one Business Day’s notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Swingline Lender notwithstanding
(i) the amount of the Mandatory Borrowing may not comply with the Minimum
Borrowing Amount otherwise required hereunder, (ii) whether any conditions
speci-fied in Section 6 are then satisfied, (iii) whether a Default or an Event
of Default then exists, (iv) the date of such Mandatory Borrowing, and (v)
the amount of the Total Revolving Loan Commitment at such time. In the event
that any Mandatory Borrowing cannot for any reason be made on the date
other-wise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each RL Lender hereby agrees that it shall forthwith purchase
(as of the date the Mandatory Borrowing would other-wise have occurred, but
adjusted for any payments received from the Borrower on or after such date
and
prior to such purchase) from the Swingline Lender such participations in the
outstand-ing Swingline Loans as shall be necessary to cause the RL Lenders
to
share in such Swingline Loans ratably based upon their respective RL
Percentages, provided
that
(x) all interest payable on the Swingline Loans shall be for the account of
the Swingline Lender until the date as of which the respec-tive partici-pa-tion
is required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date
and
(y) at the time any purchase of partici-pa-tions pursuant to this sentence
is
actually made, the purchasing RL Lender shall be required to pay the Swingline
Lender interest on the principal amount of partici-pa-tion purchased for each
day from and includ-ing the day upon which the Mandatory Borrowing would
otherwise have occurred to but exclud-ing the date of payment for such
participation at the overnight Federal Funds Rate for the first three days
and
at the interest rate otherwise applicable to Revolving Loans maintained as
Base
Rate Loans hereunder for each day thereafter.
-2-
(e) Subject
to Section 1.14, the other terms and conditions set forth herein and the
relevant Incremental Term Loan Commitment Agreement, each Lender with an
Incremental Term Loan Commitment severally agrees to make a term loan or term
loans (each, an “Incremental
Term Loan”
and,
collectively, the “Incremental
Term Loans”
and,
together with the Initial Term Loans, the “Term
Loans”)
to the
Borrower, which Incremental Term Loans: (i) may be incurred from time to time
on
or after the Syndication Date and prior to the Revolving Loan Maturity Date;
(ii) except as hereafter provided, shall, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided
that all
Incremental Term Loans made as part of the same Borrowing shall, unless
otherwise specifically provided herein, consist of Incremental Term Loans of
the
same Type; (iii) shall be made by each such Lender in that aggre-gate
prin-ci-pal amount which does not exceed the Incremental Term Loan Commitment
of
such Lender (as set forth in the relevant Incremental Term Loan Commitment
Agreement) on the respec-tive Incremental Term Loan Borrowing Date, (iv) shall
be added to then outstanding borrowings of Initial Term Loans as provided in
Section 1.14(c) and (v) shall not exceed $125,000,000 in aggre-gate principal
amount for all Incremental Term Loans made by all Incremental Term Loan Lenders
pursuant to this Agreement and the various Incremental Term Loan Commitment
Agreements. Once prepaid or repaid, Incremental Term Loans may not be
reborrowed.
1.02 Minimum
Amount of Each Borrowing.
The
aggregate principal amount of each Borrowing of Loans under a respective Tranche
shall not be less than the Minimum Borrowing Amount applicable to such Tranche.
More than one Borrowing may occur on the same date, but at no time shall there
be outstanding more than ten Borrowings of Eurodollar Loans in the aggregate
for
all Tranches of Loans.
-3-
1.03 Notice
of Borrowing.
(a) Whenever
the Borrower desires to incur (x) Eurodollar Loans hereunder, the Borrower
shall
give the Administrative Agent at the Notice Office at least three Business
Days’
prior notice of each Eurodollar Loan to be incurred hereunder and (y) Base
Rate
Loans hereunder (excluding Swingline Loans and Revolving Loans made pursu-ant
to
a Mandatory Borrowing), the Borrower shall give the Administrative Agent at
the
Notice Office at least one Business Day’s prior notice of each Base Rate Loan to
be incurred hereunder, provided
that (in
each case) any such notice shall be deemed to have been given on a certain
day
only if given before 12:00 Noon (New York City time) on such day. Each such
notice (each, a “Notice
of Borrowing”),
except as otherwise expressly provided in Section 1.10, shall be irrevocable
and
shall be in writ-ing, or by telephone promptly confirmed in writing, in the
form
of Exhibit A-1, appropriately completed to specify: (i) the aggregate principal
amount of the Loans to be incurred pursuant to such Borrowing, (ii) the date
of
such Borrowing (which shall be a Business Day), (iii) whether the Loans being
incurred pursuant to such Borrowing shall constitute Initial Term Loans,
Incremental Term Loans or Revolving Loans, (iv) whether the Loans being incurred
pursuant to such Borrowing are to be initially main-tained as Base Rate Loans
or, to the extent permitted hereunder, Eurodollar Loans and, if Eurodollar
Loans, the initial Interest Period to be applicable thereto and (v) the location
and number of the Borrower’s account to which funds are to be disbursed. The
Administrative Agent shall promptly give each Lender which is required to make
Loans of the Tranche specified in the respective Notice of Borrowing, notice
of
such proposed Borrowing, of such Lender’s propor-tionate share thereof and of
the other matters required by the immediately preceding sentence to be specified
in the Notice of Borrowing.
(b) (i)
Whenever the Borrower desires to incur Swingline Loans hereunder, the Borrower
shall give the Swingline Lender no later than 1:00 P.M. (New York time) on
the
date that a Swingline Loan is to be incurred, written notice or telephonic
notice promptly confirmed in writ-ing of each Swingline Loan to be incurred
hereunder. Each such notice shall be irrevocable and specify in each case (A)
the date of Borrowing (which shall be a Business Day) and (B) the aggre-gate
principal amount of the Swingline Loans to be incurred pursuant to such
Borrowing.
(ii) Mandatory
Borrowings shall be made upon the notice specified in Section 1.01(d), with
the
Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to
the
making of the Mandatory Borrowings as set forth in Section 1.01(d).
(c) Without
in any way limiting the obligation of the Borrower to confirm in writ-ing any
telephonic notice of any Borrowing or prepayment of Loans, the Administrative
Agent or the Swingline Lender, as the case may be, may act without liability
upon the basis of telephonic notice of such Borrowing or prepayment, as the
case
may be, believed by the Administrative Agent or the Swingline Lender, as the
case may be, in good faith to be from an Authorized Representative of the
Borrower. In each such case, the Borrower hereby waives the right to dispute
the
Administrative Agent’s or the Swingline Lender’s, as the case may be, record of
the terms of such tele-phonic notice of such Borrowing or prepayment of Loans,
as the case may be, absent manifest error.
-4-
1.04 Disbursement
of Funds.
(a) No later than 1:00 P.M. (New York time) on the date specified in each
Notice of Borrowing (or (x) in the case of Swingline Loans, no later than 4:00
P.M. (New York time) on the date specified pursuant to Section 1.03(b)(i) or
(y)
in the case of Mandatory Borrowings, no later than 1:00 P.M. (New York time)
on
the date specified in Section 1.01(d)), each Lender with a Commitment of the
respective Tranche will make available its pro rata
portion
(determined in accordance with Section 1.07) of each such Borrowing requested
to
be made on such date (or in the case of Swingline Loans, the Swingline Lender
will make available the full amount thereof). All such amounts will be made
available in Dollars and in immediately available funds at the Payment Office,
and the Administrative Agent will, except in the case of Revolving Loans made
pursuant to a Mandatory Borrowing, transmit the aggregate of the amounts so
made
available by the Lenders to the account specified by the Borrower in the
applicable Notice of Borrowing by wire transfer of immediately available
funds.
(b) Unless
the Administrative Agent shall have been notified by any Lender prior to the
date of the proposed incurrence that such Lender does not intend to make
available to the Administrative Agent such Lender’s portion of the Borrowing or
Borrowings to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such
date of Borrowing and the Administrative Agent may (but shall not be obligated
to), in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such corre-sponding amount is not in fact made
available to the Administrative Agent by such Lender, the Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith upon
the
Administrative Agent’s demand therefor, the Administrative Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent also shall be
entitled to recover on demand from such Lender or the Borrower, as the case
may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to
the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Lender, the overnight Federal Funds Rate for the first three days and at the
interest rate otherwise applicable to such Loans for each day thereafter and
(ii) if recovered from the Borrower, the rate of interest applicable to the
respective Borrowing, as determined pursuant to Section 1.08. Nothing in this
Section 1.04 shall be deemed to relieve any Lender from its obligation to make
Loans hereunder or to prejudice any rights which the Borrower may have against
any Lender as a result of any failure by such Lender to make Loans
hereunder.
1.05 Notes.
(a)
The
Borrower’s obligation to pay the principal of, and interest on, the Loans made
by each Lender shall be evidenced in the Register maintained by the
Administrative Agent pursuant to Section 13.15 and shall, if requested by such
Lender, also be evidenced (i) in the case of Term Loans, by a promissory note
duly executed and delivered by the Borrower substan-tially in the form of
Exhibit B-1, with blanks appropriately completed in conform-ity here-with (each,
a “Term
Note”
and,
collectively, the “Term
Notes”),
(ii)
in the case of Revolving Loans, by a promissory note duly executed and delivered
by the Borrower substantially in the form of Exhibit B-2, with blanks
appropriately completed in conformity herewith (each, a “Revolving
Note”
and,
collectively, the “Revolving
Notes”);
and
(iii) in the case of Swingline Loans, by a promis-sory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-3, with blanks
appropriately completed in conformity herewith (the “Swingline
Note”).
-5-
(b) The
Term
Note issued to each Lender that has an Initial Term Loan Commitment, an
Incremental Term Loan Commitment or outstanding Term Loans shall (i) be executed
by the Borrower, (ii) be payable to such Lender or its registered assigns and
be
dated the Initial Borrowing Date (or, if issued after the Initial Borrowing
Date, be dated the date of issuance thereof), (iii) be in a stated principal
amount equal to the Term Loans made by such Lender on the Initial Borrowing
Date
(or, if issued after the Initial Borrowing Date, be in a stated principal amount
equal to the sum of (x) the aggregate principal amount of Term Loans held by
such Lender and (y) the Incremental Term Loan Commitment (if any) of such
Lender) and be payable in the outstanding principal amount of Term Loans
evidenced thereby, (iv) mature on the Term Loan Maturity Date, (v) bear interest
as provided in the appropriate clause of Section 1.08 in respect of the Base
Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby, (vi)
be
subject to voluntary prepayment as provided in Section 4.01, and mandatory
repayment as provided in Section 4.02, and (vii) be entitled to the benefits
of
this Agreement and the other Credit Documents.
(c) The
Revolving Note issued to each RL Lender requesting same shall (i) be executed
by
the Borrower, (ii) be payable to the RL Lender or its registered assigns and
be
dated the Initial Borrowing Date (or, if issued after the Initial Borrowing
Date, be dated the date of issuance thereof), (iii) be in a stated principal
amount equal to the Revolving Commitment of such RL Lender and be payable in
the
prin-cipal amount of the Revolving Loans evi-denced thereby, (iv) mature on
the Revolving Loan Maturity Date, (v) bear interest as provided in the
appro-priate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayments as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the bene-fits of this
Agreement and the other Credit Documents.
(d) The
Swingline Note issued to the Swingline Lender (if requested) shall (i) be
executed by the Borrower, (ii) be pay-able to the Swingline Lender or its
registered assigns and be dated the Initial Borrwing Date (or, if issued after
the Initial Borrwing Date, be dated the date of issuance thereof), (iii) be
in a
stated principal amount equal to the Maximum Swingline Amount and be payable
in
the principal amount of Swingline Loans evidenced thereby, (iv) mature on
the Swing-line Expiry Date, (v) bear interest as provided in Sec-tion 1.08
in respect of the Base Rate Loans evidenced thereby, (vi) be subject to
voluntary prepayments as provided in Section 4.01 and mandatory pre-pay-ment
as
provided in Section 4.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Docu-ments.
(e) Each
Lender will note on its internal records the amount of each Loan made by it
and
each payment in respect thereof and prior to any transfer of any of its Notes
will endorse on the reverse side thereof the outstanding principal amount of
Loans evidenced thereby. Failure to make any such notation or any error in
such
notation shall not affect the Borrower’s obligations in respect of such
Loans.
(f) Notwithstanding
anything to the contrary contained above in this Section 1.05 or elsewhere
in
this Agreement, Notes shall only be delivered to Lenders which at any time
specifically request the delivery of such Notes. No failure of any Lender to
request or obtain a Note evidencing its Loans to the Borrower shall affect
or in
any manner impair the obligations of the Borrower to pay the Loans (and all
related Obligations) incurred by the Borrower which would otherwise be evidenced
thereby in accordance with the requirements of this Agreement, and shall not
in
any way affect the security or guaranties therefor provided pursuant to the
various Credit Documents. Any Lender which does not have a Note evidencing
its
outstanding Loans shall in no event be required to make the notations otherwise
described in preceding clause (e). At any time when any Lender requests the
delivery of a Note to evidence any of its Loans, the Borrower shall promptly
execute and deliver to the respective Lender the requested Note in the
appropriate amount or amounts to evidence such Loans.
-6-
1.06 Conversions.
The Borrower shall have the option to convert, on any Business Day, all or
a
portion equal to at least the Minimum Borrowing Amount of the outstand-ing
principal amount of Loans (other than Swingline Loans which may not be converted
pursuant to this Section 1.06) made pursuant to one or more Borrowings (so
long
as of the same Tranche) of one or more Types of Loans into a Borrowing (of
the
same Tranche) of another Type of Loan, provided
that,
(i) except as otherwise provided in Section 1.10(b), Eurodollar Loans may be
con-verted into Base Rate Loans only on the last day of an Interest Period
applicable to the Loans being converted and no such partial conversion of
Eurodollar Loans shall reduce the outstanding princi-pal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) unless the Required Lenders otherwise
agree, Base Rate Loans may only be converted into Eurodollar Loans if no Default
or Event of Default is in existence on the date of the conversion, (iii) unless
the Administrative Agent otherwise agrees in its sole discretion or has
deter-mined that the Syndication Date has occurred (at which time this clause
(iii) shall no longer be applicable), prior to the 90th
day
follow-ing the Initial Borrowing Date, conversions of Base Rate Loans into
Eurodollar Loans shall be subject to the provisions of clause (B) of the
provisos in Section 1.01(a)(iii) and 1.01(b)(ii), (iv) no conversion pursuant
to
this Section 1.06 shall result in a greater num-ber of Borrowings of Eurodollar
Loans than is permitted under Section 1.02 and (v) the Borrower’s right to
convert Incremental Term Loans of a given Tranche shall be subject to the
limitations, if any, set forth in the applicable Incremental Term Loan
Commitment Agreement. Each such conver-sion shall be effected by the Borrower
by
giving the Administrative Agent at the Notice Office prior to 12:00 Noon (New
York City time) at least (x) in the case of conversions of Base Rate Loans
into
Eurodollar Loans, three Business Days’ prior notice and (y) in the case of
conversions of Eurodollar Loans into Base Rate Loans, one Business Day’s prior
notice (each, a “Notice
of Conversion/Continuation”),
in
each case in the form of Exhibit A-2, appropriately completed to specify the
Loans to be so converted, the Borrowing or Borrowings pursuant to which such
Loans were incurred and, if to be converted into Eurodollar Loans, the Interest
Period to be initially appli-cable thereto. The Administrative Agent shall
give
each Lender prompt notice of any such proposed conversion affecting any of
its
Loans. Upon any such conversion the proceeds thereof will be deemed to be
applied directly on the day of such conversion to prepay the outstanding
principal amount of the Loans being converted.
1.07 Pro
Rata Borrowings.
All Borrowings under this Agreement (other than Swingline Loans) shall be
incurred from the Lenders pro rata
on the
basis of their respective Commitments, provided
that all
Mandatory Borrowings shall be incurred from the RL Lenders pro rata
on the
basis of their RL Percentages. It is understood that no Lender shall be
responsible for any default by any other Lender of its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided
to
be made by it hereunder, regardless of the failure of any other Lender to make
its Loans hereunder.
-7-
1.08 Interest.
(a) The
Borrower agrees to pay interest in respect of the unpaid principal amount of
each Base Rate Loan from the date of Borrowing thereof until the earlier of
(i)
the maturity thereof (whether by acceleration or otherwise) and (ii) the
conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section
1.06
or 1.09, as applicable, at a rate per annum which shall be equal to the sum
of
the Applicable Margin plus
the Base
Rate, each as in effect from time to time.
(b) The
Borrower agrees to pay interest in respect of the unpaid principal amount of
each Eurodollar Loan from the date of Borrowing thereof until the earlier of
(i)
the maturity thereof (whether by acceleration or otherwise) and (ii) the
conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.06,
1.09 or 1.10, as applicable, at a rate per annum which shall, during each
Interest Period applicable thereto, be equal to the sum of the Applicable Margin
as in effect from time to time during such Interest Period plus the Eurodollar
Rate for such Interest Period.
(c) Overdue
principal and, to the extent permitted by law, overdue interest in respect
of
each Loan shall, in each case, bear interest at a rate per annum equal to the
greater of (x) the rate which is 2% in excess of the rate then borne by such
Loans and (y) the rate which is 2% in excess of the rate otherwise applicable
to
Base Rate Loans of the respective Tranche from time to time, and all other
overdue amounts payable hereunder and under any other Credit Document shall
bear
interest at a rate per annum equal to the rate which is 2% in excess of the
rate
otherwise applicable to Revolving Loans that are maintained as Base Rate Loans
from time to time. Interest that accrues under this Section 1.08(c) shall be
payable on demand.
(d) Accrued
(and theretofore unpaid) interest shall be payable (i) in respect of each Base
Rate Loan, (x) quarterly in arrears on each Quarterly Payment Date, (y) on
the
date of any repayment or prepayment in full of all outstanding Base Rate Loans
of any Tranche, and (z) at maturity (whether by acceleration or otherwise)
and,
after such maturity, on demand, and (ii) in respect of each Eurodollar Loan,
(x)
on the last day of each Interest Period applicable thereto and, in the case
of
an Interest Period in excess of three months, on each date occurring at three
month intervals after the first day of such Interest Period, and (y) on the
date
of any repayment or prepay-ment (on the amount repaid or prepaid), at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon
each
Interest Determination Date, the Administrative Agent shall determine the
Eurodollar Rate for each Interest Period applicable to the respective Eurodollar
Loans and shall promptly notify the Borrower and the Lenders thereof. Each
such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
1.09 Interest
Periods for Eurodollar Loans.
At the time the Borrower gives any Notice of Borrowing or Notice of
Conversion/Continuation in respect of the making of, or conversion into, any
Eurodollar Loan (in the case of the initial Interest Period applicable thereto)
or prior to 12:00 Noon (New York time) on the third Business Day prior to the
expiration of an Interest Period applicable to such Eurodollar Loan (in the
case
of any subsequent Interest Period), the Borrower shall have the right to elect
the interest period (each an “Interest
Period”)
applicable to such Eurodollar Loan, which Interest Period shall, at the option
of the Borrower (but otherwise subject to the provisions of clause (B) of the
provisos in Sections 1.01(a)(iii) and 1.10(b)(ii), be a one, two, three or
six
month period or, to the extent agreed by each Lender with Loans and/or
Commitments under the relevant Tranche, a nine or twelve month period,
provided
that (in
each case):
-8-
(i) all
Eurodollar Loans comprising a Borrowing shall at all times have the same
Interest Period;
(ii) the
initial Interest Period for any Eurodollar Loan shall commence on the date
of
Borrowing of such Eurodollar Loan (including the date of any conversion thereto
from a Base Rate Loan) and each Interest Period occurring thereafter in respect
of such Eurodollar Loan shall commence on the day on which the next preceding
Interest Period applicable thereto expires;
(iii) if
any
Interest Period for a Eurodollar Loan begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of such calendar
month;
(iv) if
any
Interest Period for a Eurodollar Loan would otherwise expire on a day which
is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided,
however,
that if
any Interest Period for a Eurodollar Loan would otherwise expire on a day which
is not a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) unless
the Required Lenders otherwise agree in writing, no Interest Period may be
selected at any time when a Default or an Event of Default is then in
existence;
(vi) no
Interest Period in respect of any Borrowing of any Tranche of Loans shall be
selected which extends beyond the Maturity Date for such Tranche of Loans;
(vii) the
Borrower’s right to select Interest Periods in respect of an Incremental Term
Loan of a given Tranche may be subject to the limitations, if any, set forth
in
the applicable Incremental Term Loan Commitment Agreement; and
(viii) no
Interest Period in respect of any Borrowing of Term Loans shall be selected
which extends beyond any date upon which a mandatory repay-ment of such Term
Loans will be required to be made under Section 4.02(b) if the aggregate
principal amount of such Term Loans which have Interest Periods which will
expire after such date will be in excess of the aggregate principal amount
of
such Term Loans then outstanding less the aggregate amount of such required
repayment.
If
by
12:00 Noon (New York time) on the third Business Day prior to the expiration
of
any Interest Period applicable to a Borrowing of Eurodollar Loans, the Borrower
has failed to elect, or is not permitted to elect, a new Interest Period to
be
applicable to such Eurodollar Loans as provided above, the Borrower shall be
deemed to have elected to convert such Eurodollar Loans into Base Rate Loans
effective as of the expiration date of such current Interest
Period.
-9-
1.10 Increased
Costs, Illegality, etc. (a)
In the
event that any Lender shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto
but,
with respect to clause (i) below, may be made only by the Administrative
Agent):
(i) on
any
Interest Determination Date that, by reason of any changes arising after the
date of this Agreement affecting the interbank Eurodollar market, adequate
and
fair means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at
any
time, that such Lender shall incur increased costs or reductions in the amounts
received or receivable hereunder with respect to any Eurodollar Loan because
of
(x) any change since the Effective Date in any applicable law or governmental
rule, regula-tion, order, guideline or request (whether or not having the force
of law) or in the inter-pretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order, guideline
or request, such as, but not limited to: (A) a change in the basis of
taxation of payment to any Lender of the principal of or interest on the Loans
or the Notes or any other amounts payable hereunder (except for changes in
the
rate of tax on, or determined by reference to, the net income or net profits
or
capital or franchise taxes imposed in lieu thereof of such Lender or, in the
case of a Lender that is a flow-through entity for tax purposes, a member or
a
partner of such Lender, pursuant to the laws of the country or national
jurisdiction (or any political subdivision thereof) in which it is organized
or
in which its principal office or applicable lending office is located) (the
preceding provisions of this clause (ii) shall not apply to increased costs
with
respect to Taxes which are addressed in Section 4.04) or (B) a change in
official reserve requirements, but, in all events, excluding reserves required
under Regulation D to the extent included in the computation of the Eurodollar
Rate and/or (y) other circumstances arising since the Effective Date affecting
such Lender, the interbank Eurodollar market or the position of such Lender
in
such market; or
(iii) at
any
time, that the making or continuance of any Eurodollar Loan has been made (x)
unlawful by any law or governmental rule, regulation or order, (y) impossible
by
compliance by any Lender in good faith with any governmental request (whether
or
not having force of law) or (z) impracticable as a result of a contingency
occurring after the Effective Date which materially and adversely affects the
interbank Eurodollar market;
then,
and
in any such event, such Lender (or the Administrative Agent, in the case of
clause (i) above) shall promptly give notice (by telephone promptly confirmed
in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x)
in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circum-stances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion/Continuation given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, but
subject to Section 13.17, the Borrower agrees to pay to such Lender, upon such
Lender’s written request therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as shall be required
to
compensate such Lender for such increased costs or reduc-tions in amounts
received or receivable hereunder (a written notice as to the additional amounts
owed to such Lender, showing in reasonable detail the basis for and the
calculation thereof, submitted to the Borrower by such Lender shall, absent
manifest error, be final and conclusive and binding on all the parties hereto)
and (z) in the case of clause (iii) above, the Borrower shall take one of the
actions specified in Section 1.10(b) as promptly as possible and, in any event,
within the time period required by law.
-10-
(b) At
any
time that any Eurodollar Loan is affected by the circumstances described in
Section 1.10(a)(ii), the Borrower may, and in the case of a Eurodollar Loan
affected by the circumstances described in Section 1.10(a)(iii), the Borrower
shall, either (x) if the affected Eurodollar Loan is then being made initially
or pursuant to a conversion, cancel such Borrowing by giving the Administrative
Agent telephonic notice (confirmed in writing) on the same date that the
Borrower was notified by the affected Lender or the Administrative Agent
pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar
Loan
is then outstanding, upon at least three Business Days’ written notice to the
Administrative Agent, require the affected Lender to convert such Eurodollar
Loan into a Base Rate Loan, provided
that, if
more than one Lender is affected at any time, then all affected Lenders must
be
treated the same pursuant to this Section 1.10(b).
(c) If
any
Lender determines that after the Effective Date the introduction of or any
change in any applicable law or governmental rule, regulation, order, guideline,
directive or request (whether or not having the force of law) concerning capital
adequacy, or any change in interpretation or administration thereof by the
NAIC
or any governmental authority, central bank or comparable agency, will have
the
effect of increasing the amount of capital required or expected to be maintained
by such Lender or any corporation controlling such Lender based on the existence
of such Lender’s Commitments hereunder or its obligations hereunder, then the
Borrower agrees to pay to such Lender, upon its written demand therefor, but
subject to the provisions of Section 13.17 (to the extent applicable), such
additional amounts as shall be required to compensate such Lender or such other
corporation for the increased cost to such Lender or such other corporation
or
the reduction in the rate of return to such Lender or such other corporation
as
a result of such increase of capital. In deter-min-ing such additional amounts,
each Lender will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable, provided
that
such Lender’s deter-mina-tion of compensation owing under this Section 1.10(c)
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto. Each Lender, upon determining that any addi-tional amounts
will
be payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Borrower, which notice shall show in reasonable detail the basis
for calculation of such additional amounts.
1.11 Compensation.
Subject to Section 13.17, the Borrower agrees to compensate each Lender,
upon its written request (which request shall set forth in reasonable detail
the
basis for requesting such compensation), for all losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other
funds
required by such Lender to fund its Eurodollar Loans but excluding loss of
anticipated profits) which such Lender may sustain: (i) if for any reason (other
than a default by such Lender or the Administrative Agent) a Borrowing of,
or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether
or not withdrawn by the Borrower or deemed withdrawn pursuant to Sec-tion
1.10(a)); (ii) if any prepayment or repayment (including any prepayment or
repayment made pursuant to Section 4.01, Section 4.02 or as a result of an
acceleration of the Loans pursuant to Section 10) or conversion of any of its
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period with respect thereto; (iii) if any prepayment of any of its Eurodollar
Loans is not made on any date specified in a notice of prepayment given by
the
Borrower; or (iv) as a consequence of (x) any other default by the Borrower
to
repay Eurodollar Loans when required by the terms of this Agreement or any
Note
held by such Lender or (y) any election made pursuant to Section
1.10(b).
-11-
1.12 Change
of Lending Office.
Each Lender agrees that on the occurrence of any event giving rise to the
operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
Section 2.06 or Section 4.04 with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Loans
or Letters of Credit affected by such event with the object of avoiding the
consequence of the event giving rise to the opera-tion of such Section,
provided
that
such designation is made on such terms that such Lender and its lending office
suffer no economic, legal or regulatory disadvantage. Nothing in this
Section 1.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Lender provided in Sections 1.10, 2.06 and
4.04.
1.13 Replacement
of Lenders.
(x) If any Lender becomes a Defaulting Lender or otherwise
defaults in its obligations to make Loans, (y) upon the occurrence of an event
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
Section 2.06 or Section 4.04 with respect to any Lender which results in such
Lender charging to the Borrower increased costs or requires the Borrower to
pay
any amounts under Section 4.04, in each case in excess of those being generally
charged by the other Lenders or (z) in the case of a refusal by a Lender to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Required Lenders
as
(and to the extent) provided in Section 13.12(b), the Borrower shall have the
right, if no Default or Event of Default then exists (or, in the case of
preceding clause (z), will exist immedi-ately after giving effect to such
replacement), to replace such Lender (the “Replaced
Lender”)
with
one or more other Eligible Transferees, none of whom shall constitute a
Defaulting Lender at the time of such replacement (collectively, the
“Replacement
Lender”)
and
each of whom shall be required to be reasonably acceptable to the Administrative
Agent (or, at the option of the Borrower, if the circumstances described above
in this Section 1.13, or the consents required of the respective Lender as
described above, relate to only a single Tranche hereunder, to replace only
the
Commitments and related outstandings and/or participations of such Tranche
of
the Replaced Lender with Commitments and related outstandings of a Replacement
Lender as described herein), provided
that (i)
at the time of any replacement pursuant to this Section 1.13, the Replacement
Lender shall enter into one or more Assignment and Assumption Agreements
pursuant to Section 13.04(b) (and with all fees payable pursuant to said Section
13.04(b) to be paid by the Replacement Lender and/or the Replaced Lender (as
may
be agreed to at such time by and among the Borrower, the Replacement Lender
and
the Replaced Lender)) pursuant to which the Replacement Lender shall acquire
all
of the Commitments and outstanding Loans of, and in each case participations
in
Letters of Credit by, the Replaced Lender (or all of the foregoing relating
to
the Tranche of the Replaced Lender being replaced, in the event that the
replacement is not in respect of all Tranches) and, in connection therewith,
shall pay to (x) the Replaced Lender in respect thereof an amount equal to
the
sum of (I) an amount equal to the principal of, and all accrued interest on,
all
outstanding Term Loans of the Replaced Lender (unless the Replaced Lender is
not
being replaced with respect to such Tranche), (II) an amount equal to all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Lender,
together with all then unpaid interest with respect thereto at such time (unless
the Replaced Lender is not being replaced with respect to such Tranche) and
(III) an amount equal to all accrued, but theretofore unpaid, Fees owing to
the
Replaced Lender pursuant to Section 3.01 (except to the extent that such Fees
relate to a Tranche with respect to which the Replaced Lender is not being
replaced) and, except in the case of the replacement of only outstanding Term
Loans of a Replaced Lender, each Issuing Lender an amount equal to such Replaced
Lender’s RL Percentage of any Unpaid Drawing (which at such time remains an
Unpaid Drawing) to the extent such amount was not theretofore funded by such
Replaced Lender to such Issuing Lender and (ii) all obligations of the Borrower
due and owing to the Replaced Lender at such time (other than (x) those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid and (y) those relating
to a Tranche where the respective Replaced Lender is not being replaced) shall
be paid in full to such Replaced Lender concurrently with such replacement.
Upon
the execution of the respective Assignment and Assumption Agreement, the payment
of amounts referred to in clauses (i) and (ii) above and, if so requested by
the
Replacement Lender, delivery to the Replacement Lender of the appropriate Notes
executed and delivered by the Borrower, the Replacement Lender shall become
a
Lender hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder (with respect to any Tranche or Tranches with respect to which it
is
being replaced), except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04,
12.06
and 13.01), which shall survive as to such Replaced Lender.
-12-
1.14 Incremental
Loan Commitments.
(a)
So long
as no Default or Event of Default then exists or would result therefrom, the
Borrower shall have the right to request on one or more occasions on or after
the Syndication Date and prior to the Revolving Loan Maturity Date that one
or
more Lenders and/or one or more other Eligible Transferees provide Incremental
Term Loan Commitments and, subject to the terms and condi-tions contained in
this Agreement and the relevant Incremental Term Loan Commitment Agreement,
make
Incremental Term Loans, pursuant thereto, it being understood and agreed,
however, that:
(i) no
Lender
shall be obligated to provide an Incremental Term Loan Commitment as a result
of
any such request by the Borrower, and until such time, if any, as such Lender
has agreed in its sole discretion to provide an Incremental Term Loan Commitment
and executed and delivered to the Administrative Agent an Incremental Term
Loan
Commitment Agreement as provided in clause (b) of this Section 1.14, such Lender
shall not be obligated to fund any Incremental Term Loans;
(ii) any
Lender or other Eligible Transferee may so provide an Incremental Term Loan
Commitment without the consent of any other Lender;
(iii) each
provision of Incremental Term Loan Commitments pursuant to this Section 1.14
on
a given date pursuant to a particular Incremental Term Loan Commitment Agreement
shall be in a minimum aggregate amount (for all Lenders and other Eligible
Transferees who will become Lenders pursuant thereto) of
$25,000,000;
-13-
(iv) the
aggregate amount of all Incremental Term Loan Commitments permit-xxx to be
provided pursuant to this Section 1.14 shall not exceed
$125,000,000;
(v) each
Lender agreeing to provide an Incremental Term Loan Commitment pursuant to
an
Incremental Term Loan Commitment Agreement shall, subject to the satisfac-tion
of the relevant conditions set forth in this Agreement, make Incremental Term
Loans as provided in Section 1.01(e) and such Loans shall thereafter be deemed
to be Term Loans for all purposes of this Agreement and the other Credit
Documents;
(vi) the
fees
to be paid to any Eligible Transferees that have been requested by the Borrower
to provide Incremental Term Loan Commitments shall be no greater than that
to be
paid to (or which was offered to) the then exist-ing Lenders provid-ing (or
which were requested to provide) any such requested Incremental Term Loan
Commitments;
(vii) all
Incremental Term Loans to be incurred pursuant to Incremental Term Loan
Commitments provided in response to a particular request for same made by the
Borrower in accordance with clause (b) of this Section 1.14 shall be incurred
pursuant to a single Incremental Term Loan Commitment Agreement, which may
be
executed in counterparts;
(viii) the
Borrower shall be in compliance with the Financial Covenants at such time
(calculated on a Pro Forma
Basis
and assuming that all Incremental Term Loans to be incurred pursuant to such
Incremental Term Loan Commitments (and any other then existing Incremental
Term
Loan Commitments) have been incurred and the proceeds thereof applied in a
manner as certified to by an Authorized Representative of the Borrower to the
Administrative Agent); and
(ix) all
actions taken by the Borrower pursuant to this Section 1.14 shall be taken
in
coordination with the Administrative Agent.
(b) At
the
time of any provision of Incremental Term Loan Commitments pur-suant to this
Section 1.14, (i) the Borrower and each Lender or other Eligible Transferee
which agrees to provide an Incremental Term Loan Commitment (each an
“Incremental
Term Loan Lender”)
shall
execute (which execution may be in counterparts) and deliver to the
Administrative Agent an Incremental Term Loan Commitment Agreement (it being
understood that a single Incremental Term Loan Commitment Agreement shall be
executed and delivered by all Incremental Term Loan Lenders providing
Incremental Term Loan Commitments in response to a particular request for same
made by the Borrower) substantially in the form of Exhibit C (appro-pri-ately
completed and with such modifications as may be reason-ably acceptable to the
Administrative Agent, with the effectiveness of the Incremental Term Loan
Commitment(s) provided therein to occur on the date set forth in such
Incremental Term Loan Commitment Agreement and the payment of any fees required
in connec-tion there-with; (ii) the Borrower and its Subsidiaries shall deliver
such amend-ments, modifications and/or supple-ments to the Intercreditor
Agreement and the Security Documents (if any) as are necessary or, in the
reasonable opinion of the Administrative Agent, desirable to ensure that the
additional Obligations to be incurred pursuant to the Incremental Term Loan
Commitments are secured by, and entitled to the benefits of the Intercreditor
Agreement and the Security Documents; (iii) the Administrative Agent shall
receive an acknowl-edgment from the Credit Parties that the Incremental Term
Loans to be incurred pursuant to such Incremental Term Loan Commitments are
entitled to the benefits of the Subsidiaries Guaranty, the Intercreditor
Agreement and the Security Documents; and (iv) the Administrative Agent shall
have received evidence reasonably satisfactory to it that the additional
Obligations to be incurred pursuant to the Incremental Term Loan Commitments
(x)
are permitted by, and constitute “First-Lien Obligations” under, and as defined
in, Intercreditor Agreement and shall be entitled to the benefits afforded
to
First Lien Obligations pursuant to such documentation and (y) are permitted
by
and constitute “Senior Indebtedness” (or such equivalent term) under the
Permitted Subordinated Debt Documents (if any); and (v) the Borrower shall
deliver to the Administrative Agent an opinion or opinions, in form and
substance reasonably satisfactory to the Administra-tive Agent, from counsel
to
the Borrower reason-ably satisfactory to the Administrative Agent and dated
such
date, covering such matters as the Administrative Agent may reasonably request
(including, without limitation, the matters described in immediately preceding
clause (iv)). The Administrative Agent shall promptly notify each Lender as
to
the effectiveness of each Incremental Term Loan Commitment Agreement and as
to
any increase in the Applicable Margin for Term Loans in connection therewith,
and shall deliver to each Lender a copy of same, and (i) at such time Schedule
1.01 shall be deemed modified to reflect the Incremental Term Loan Commitments
of the respective Incremental Term Loan Lenders and (ii) to the extent requested
by such Incremental Term Loan Lenders, Term Notes will be issued, at the
Borrower’s expense, to such Incremental Term Loan Lenders, to be consistent with
the require-ments of Section 1.05 (with appropriate modi-fications, to the
extent needed) to reflect the Incremental Term Loans made by such Incremental
Term Loan Lenders or Lender, as the case may be.
-14-
(c) The
Incremental Term Loans made pursuant to each Incremental Term Loan Commitment
Agreement shall constitute part of, and be added to, the Tranche comprising
the
Initial Term Loans and, consequently:
(i) such
Incremental Term Loans shall have the same Maturity Date and shall bear interest
at the same rates (i.e.,
have
the same Applicable Margins) applicable to Initial Term Loans; provided
that if
the Applicable Margins for such Incremental Term Loans set forth in the
Incremental Term Loan Commitment Agreement related thereto are higher than
Applicable Margins applicable to the then outstanding Term Loans, the Applicable
Margins for the then outstanding Term Loans shall be increased as provided
in
the last sentence of the definition of Applicable Margin;
(ii) the
Incremental Term Loans shall have the same Scheduled Repayment dates as then
remain with respect to the Term Loans (with the amount of each Scheduled
Repayment applicable to such Incremental Term Loans to be the same (on a
propor-tionate basis) as is theretofore applicable to the Term Loans, thereby
increasing the amount of each then remaining Scheduled Repayment
proportionately; and
(iii) on
the
date of the making of such Incremental Term Loans, and notwith-standing anything
to the contrary set forth in Section 1.09, same shall be added to (and form
part
of) each Borrowing of outstanding Term Loans on a pro rata
basis
(based on the relative sizes of the various outstanding Borrowings), so that
each Lender under the Term Loan Tranche will participate proportionately in
each
then outstanding Borrowing of Term Loans, and so that the Lenders having
outstanding Term Loans prior to the incurrence by the Borrower of such
Incremental Term Loans continue to have the same participation (by amount)
in
each Borrowing of Term Loans as they had before the making of such Incremental
Term Loans.
-15-
To
the
extent the provisions of preceding clause (iii) require that Lenders making
such
Incremental Term Loans add same to then outstanding Borrowings of Eurodollar
Loans, it is acknowledged that the effect thereof may result in such Incremental
Term Loans having short Interest Periods (i.e.,
an
Interest Period that began during an Interest Period then applicable to
outstanding Eurodollar Loans and which will end on the last day of such Interest
Period). In connection therewith, the Borrower may agree, in the respective
Incremental Term Loan Commitment Agreement, to compensate the Incremental Term
Loan Lenders making such Incremental Term Loans for funding Eurodollar Loans
during an existing Interest Period on such basis as may be agreed to by the
Borrower and the respective Incremental Term Loan Lender or Incremental Term
Loan Lenders.
SECTION
2. Letters
of Credit.
2.01 Letters
of Credit.
(a)
Subject
to and upon the terms and conditions set forth herein, the Borrower may request
that an Issuing Lender issue, at any time and from time to time on and after
the
Initial Borrowing Date and prior to the 60th day prior to the Revolving Loan
Maturity Date, for the account of the Borrower and for the benefit of (x) any
holder (or any trustee, agent or other similar representative for any such
holders) of L/C Supportable Obligations, an irrevocable standby letter of
credit, in a form customarily used by such Issuing Lender or in such other
form
as is reasonably acceptable to such Issuing Lender, and (y) sellers of goods
to
the Borrower or any of its Subsidiaries, an irrevocable trade letter of credit,
in a form customarily used by such Issuing Lender or in such other form as
has
been approved by such Issuing Lender (each such letter of credit, together
with
each Existing Standby Letter of Credit, a “Letter
of Credit”
and,
collectively, the “Letters
of Credit”).
All
Letters of Credit shall be denominated in Dollars and shall be issued on a
sight
basis only.
(b) Schedule
2.01(b) hereto contains a description of certain letters of credit issued
pursuant to the Existing First-Lien Credit Agreement and outstanding on the
Initial Borrowing Date (and setting forth, with respect to each such letter
of
credit, (i) the name of the issuing lender, (ii) the letter of credit number,
(iii) the name(s) of the account party or account parties, (iv) the Stated
Amount, (v) the name of the beneficiary, (vi) the expiry date and (vii) whether
such letter of credit constitutes a standby letter of credit or a trade letter
of credit). Each such letter of credit, including any extension or renewal
thereof (each, as amended from time to time in accordance with the terms thereof
and hereof, an “Existing
Standby Letter of Credit”)
shall
constitute a “Letter
of Credit”
for
all
purposes of this Agreement, issued, for purposes of Section 2.04(a), on the
Initial Borrowing Date. Any Lender hereunder which has issued an Existing
Standby Letter of Credit shall constitute a “Issuing
Lender”
for
all
purposes of this Agreement.
(c) Subject
to and upon the terms and conditions set forth herein, each Issuing Lender
agrees that it will, at any time and from time to time on and after the Initial
Borrowing Date and prior to the 60th day prior to the Revolving Loan Maturity
Date, following its receipt of the respective Letter of Credit Request, issue
for account of the Borrower, one or more Letters of Credit as are permitted
to
remain outstanding hereunder without giving rise to a Default or an Event of
Default, provided
that no
Issuing Lender shall be under any obligation to issue any Letter of Credit
of
the types described above if at the time of such issuance:
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(i) any
order, judgment or decree of any governmental authority or arbitrator shall
purport by its terms to enjoin or restrain such Issuing Lender from issuing
such
Letter of Credit or any requirement of law applicable to such Issuing Lender
or
any request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over such Issuing Lender shall
prohibit, or request that such Issuing Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Lender with respect to such Letter of Credit any
restric-tion or reserve or capital requirement (for which such Issuing Lender
is
not otherwise compen-sated hereunder) not in effect with respect to such Issuing
Lender on the date hereof, or any unreimbursed loss, cost or expense which
was
not applicable or in effect with respect to such Issuing Lender as of the date
hereof and which such Issuing Lender reason-ably and in good xxxxx xxxxx
material to it; or
(ii) such
Issuing Lender shall have received from the Borrower, any other Credit Party
or
the Required Lenders prior to the issuance of such Letter of Credit notice
of
the type described in the second sentence of Section 2.03(b).
2.02 Maximum
Letter of Credit Outstandings; Final Maturities.
Notwithstanding anything to the contrary contained in this Agreement, (i) no
Letter of Credit shall be issued if the sum of (w) the Stated Amount of such
Letter of Credit, (x) the Letter of Credit Outstandings (exclusive of
Unpaid Drawings which are repaid on the date of, and prior to the issuance
of,
the respective Letter of Credit) at such time, (y) the aggregate principal
amount of all Revolving Loans then outstanding and (z) the aggregate principal
amount of all Swingline Loans then outstanding would exceed the Total Revolving
Loan Commitment at such time, and (ii) each Letter of Credit shall by its terms
terminate (x) in the case of standby Letters of Credit, on or before the earlier
of (A) the date which occurs 12 months after the date of the issuance thereof
(although any such standby Letter of Credit shall be extendible for successive
periods of up to 12 months, but, in each case, not beyond the tenth Business
Day
prior to the Revolving Loan Maturity Date, on terms acceptable to the respective
Issuing Lender) and (B) ten Business Days prior to the Revolving Loan Maturity
Date, and (y) in the case of trade Letters of Credit, on or before the earlier
of (A) the date which occurs 180 days after the date of issuance thereof and
(B)
30 days prior to the Revolving Loan Maturity Date.
2.03 Letter
of Credit Requests; Minimum Stated Amount.
(a)
Whenever
the Borrower desires that a Letter of Credit be issued for its account, the
Borrower shall give the Administrative Agent and the respective Issuing Lender
at least five Business Days’ (or such shorter period as is acceptable to such
Issuing Lender) written notice thereof (including by way of facsimile). Each
notice shall be in the form of Exhibit D, appropriately completed (each a
“Letter
of Credit Request”).
(b) The
making of each Letter of Credit Request shall be deemed to be a representation
and warranty by the Borrower to the Lenders that such Letter of Credit may
be
issued in accordance with, and will not violate the requirements of, Section
2.02. Unless the respective Issuing Lender has received notice from the
Borrower, any other Credit Party or the Required Lenders before it issues a
Letter of Credit that one or more of the conditions specified in Section 5
or 6
are not then satis-fied, or that the issuance of such Letter of Credit would
violate Section 2.02, then such Issuing Lender shall, subject to the terms
and
conditions of this Agreement, issue the requested Letter of Credit for the
account of the Borrower in accordance with such Issuing Lender’s usual and
custom-ary practices. Upon the issuance of or modification or amendment to
any
standby Letter of Credit, each Issuing Lender shall promptly notify the Borrower
and the Administrative Agent in writing of such issuance, modification or
amendment and such notice shall be accompanied by a copy of such Letter of
Credit or the respective modification or amendment thereto, as the case may
be.
Promptly after receipt of such notice the Administrative Agent shall notify
the
Participants, in writing, of such issuance, modification or amendment, and
if so
requested by a Participant the Administrative Agent shall furnish such
Participant with a copy of such issuance, amendment or modification. On the
first Business Day of each week, each Issuing Lender shall furnish the
Administrative Agent with a written (including via facsimile) report of the
daily aggregate outstandings of trade Letters of Credit issued by such Issuing
Lender for the immediately preceding week. Notwithstand-ing anything to the
contrary contained in this Agreement, in the event that a Lender Default exists
with respect to an RL Lender, no Issuing Lender shall be required to issue
any
Letter of Credit unless such Issuing Lender has entered into arrangements
satisfactory to it and the Borrower to eliminate such Issuing Lender’s risk with
respect to the participation in Letters of Credit by the Defaulting Lender
or
Lenders, including by cash collateralizing such Defaulting Lender’s or Lenders’
RL Percentage of the Letter of Credit Outstandings.
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(c) The
initial Stated Amount of each Letter of Credit shall not be less than $100,000
or such lesser amount as is acceptable to the respective Issuing
Lender.
2.04 Letter
of Credit Participations.
(a)
Immediately upon the issuance by an Issuing Lender of any Letter of Credit,
such
Issuing Lender shall be deemed to have sold and transferred to each RL Lender,
and each such RL Lender (in its capacity under this Section 2.04, a
“Participant”)
shall
be deemed irrevocably and unconditionally to have purchased and received from
such Issuing Lender, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant’s RL Percentage, in such Letter
of Credit, each drawing or payment made thereunder and the obligations of the
Borrower under this Agreement with respect thereto, and any security therefor
or
guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments
or RL Percentages of the Lenders pursuant to Section 1.13 or 13.04(b), it is
hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings relating thereto, there shall be an automatic adjustment to the
participations pursuant to this Section 2.04 to reflect the new RL Percentages
of the assignor and assignee Lender, as the case may be.
(b) In
determining whether to pay under any Letter of Credit, no Issuing Lender shall
have any obligation relative to the other Lenders other than to confirm that
any
documents required to be delivered under such Letter of Credit appear to have
been delivered and that they appear to substantially comply on their face with
the requirements of such Letter of Credit. Any action taken or omitted to be
taken by an Issuing Lender under or in connection with any Letter of Credit
issued by it shall not create for such Issuing Lender any resulting liability
to
the Borrower, any other Credit Party, any Lender or any other Person unless
such
action is taken or omitted to be taken with gross negligence or willful
misconduct on the part of such Issuing Lender (as determined by a court of
competent jurisdiction in a final and non-appealable decision).
-18-
(c) In
the
event that an Issuing Lender makes any payment under any Letter of Credit issued
by it and the Borrower shall not have reimbursed such amount in full to such
Issuing Lender pursuant to Section 2.05(a), such Issuing Lender shall promptly
notify the Administrative Agent, which shall promptly notify each Participant
of
such failure, and each Participant shall promptly and unconditionally pay to
such Issuing Lender the amount of such Participant’s RL Percentage of such
unreimbursed payment in Dollars and in same day funds. If the Administrative
Agent so notifies, prior to 12:00 Noon (New York time) on any Business Day,
any Participant required to fund a payment under a Letter of Credit, such
Participant shall make available to the respective Issuing Lender in Dollars
such Participant’s RL Percentage of the amount of such payment on such Business
Day in same day funds. If and to the extent such Participant shall not have
so
made its RL Percentage of the amount of such payment available to the respective
Issuing Lender, such Participant agrees to pay to such Issuing Lender, forthwith
on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to such Issuing Lender at the overnight
Federal Funds Rate for the first three days and at the interest rate appli-cable
to Revolving Loans that are maintained as Base Rate Loans for each day
thereafter. The failure of any Participant to make available to an Issuing
Lender its RL Percentage of any pay-ment under any Letter of Credit issued
by
such Issuing Lender shall not relieve any other Participant of its obligation
hereunder to make available to such Issuing Lender its RL Percentage of any
payment under any Letter of Credit on the date required, as specified above,
but
no Participant shall be responsible for the failure of any other Participant
to
make available to such Issuing Lender such other Participant’s RL Percentage of
any such payment.
(d) Whenever
an Issuing Lender receives a payment of a reimbursement obligation as to which
it has received any payments from the respective Participants pursuant to clause
(c) above, such Issuing Lender shall pay to each such Participant which has
paid its RL Percentage thereof, in Dollars and in same day funds, an amount
equal to such Participant’s share (based upon the proportionate aggregate amount
originally funded by such Participant to the aggregate amount funded by all
Participants) of the principal amount of such reimbursement obligation and
interest thereon accruing after the purchase of the respective
participations.
(e) Upon
the
request of any Participant, each Issuing Lender shall furnish to such
Participant copies of any standby Letter of Credit issued by it and such other
documentation as may reasonably be requested by such Participant.
(f) The
obligations of the Participants to make payments to each Issuing Lender with
respect to Letters of Credit shall be irrevocable and not subject to any
qualifi-ca-tion or exception whatsoever and shall be made in accordance with
the
terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circum-stances:
(i) any
lack
of validity or enforceability of this Agreement or any of the other Credit
Documents;
-19-
(ii) the
existence of any claim, setoff, defense or other right which the Borrower or
any
of its Subsidiaries may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any Person for whom any
such transferee may be acting), the Administrative Agent, any Participant,
or
any other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower or any Subsidiary
of
the Borrower and the beneficiary named in any such Letter of
Credit);
(iii) any
draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any
state-ment therein being untrue or inaccurate in any respect;
(iv) the
surrender or impairment of any security for the performance or xxxxx-xxxxx
of
any of the terms of any of the Credit Documents; or
(v) the
occurrence of any Default or Event of Default.
2.05 Agreement
to Repay Letter of Credit Drawings.
(a)
The
Borrower agrees to reimburse each Issuing Lender, by making payment to the
Administrative Agent in immediately available funds at the Payment Office,
for
any payment or disbursement made by such Issuing Lender under any Letter of
Credit issued by it (each such amount, so paid until reimbursed, an
“Unpaid
Drawing”),
not
later than one Business Day follow-ing receipt by the Borrower of notice of
such
payment or disbursement (provided that no such notice shall be required to
be
given if a Default or an Event of Default under Section 10.05 shall have
occurred and be continuing, in which case the Unpaid Drawing shall be due and
payable immediately without presentment, demand, protest or notice of any kind
(all of which are hereby waived by the Borrower)), with interest on the amount
so paid or disbursed by such Issuing Lender, to the extent not reimbursed prior
to 12:00 Noon (New York time) on the date of such payment or disbursement,
from and including the date paid or disbursed to but excluding the date such
Issuing Lender was reimbursed by the Borrower therefor at a rate per annum
equal
to the Base Rate in effect from time to time plus the Applicable Margin as
in
effect from time to time for Revolving Loans that are main-tained as Base Rate
Loans; provided,
however,
to the
extent such amounts are not xxxx-bursed prior to 12:00 Noon (New York time)
on the third Business Day following the receipt by the Borrower of notice of
such payment or disbursement or following the occurrence of a Default or an
Event of Default under Section 10.05, interest shall thereafter accrue on the
amounts so paid or disbursed by such Issuing Lender (and until reimbursed by
the
Borrower) at a rate per annum equal to the Base Rate in effect from time to
time
plus the Applicable Margin for Revolving Loans that are maintained as Base
Rate
Loans as in effect from time to time plus 2%, with such interest to be payable
on demand. Each Issuing Lender shall give the Borrower prompt written notice
of
each Drawing under any Letter of Credit issued by it, provided
that the
failure to give any such notice shall in no way affect, impair or diminish
the
Borrower’s obligations hereunder.
(b) The
obligations of the Borrower under this Section 2.05 to reimburse each Issuing
Lender with respect to drafts, demands and other presentations for payment
under
Letters of Credit issued by it (each a “Drawing”)
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim
or
defense to payment which the Borrower or any Subsidiary of the Borrower may
have
or have had against any Lender (including in its capacity as an Issuing Lender
or as a Participant), including, without limitation, any defense based upon
the
failure of any drawing under a Letter of Credit to conform to the terms of
the
Letter of Credit or any nonapplication or misapplication by the beneficiary
of
the proceeds of such Drawing; provided,
however,
that
the Borrower shall not be obligated to reimburse any Issuing Lender for any
wrongful payment made by such Issuing Lender under a Letter of Credit issued
by
it as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of such Issuing Lender (as determined by a court of
competent jurisdiction in a final and non-appealable decision).
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2.06 Increased
Costs.
If at any time after the Effective Date, the introduction of or any change
in any applicable law, rule, regulation, order, guideline or request or in
the
inter-pretation or administration thereof by the NAIC or any governmental
authority charged with the interpretation or administration thereof, or
compliance by any Issuing Lender or any Participant with any request or
directive by the NAIC or by any such governmental authority (whether or not
having the force of law), shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement against
letters of credit issued by any Issuing Lender or participated in by any
Participant, or (ii) impose on any Issuing Lender or any Participant any other
conditions relating, directly or indirectly, to this Agreement or any Letter
of
Credit; and the result of any of the foregoing is to increase the cost to any
Issuing Lender or any Participant of issuing, maintaining or participating
in
any Letter of Credit, or reduce the amount of any sum received or receivable
by
any Issuing Lender or any Participant hereunder or reduce the rate of return
on
its capital with respect to Letters of Credit (except for changes in the rate
of
tax on, or determined by reference to, the net income or profits or capital
or
franchise taxes imposed in lieu thereof of such Issuing Lender or such
Participant or, in the case of an Issuing Lender or Participant that is a
flow-through entity for tax purposes, a member or a partner of such Issuing
Lender or Participant, pursuant to the laws of the country or national
jurisdiction (or any political subdivision thereof) in which it is organized
or
in which its principal office or applicable lending office is located), then,
upon the delivery of the certificate referred to below to the Borrower by any
Issuing Lender or any Participant (a copy of which certificate shall be sent
by
such Issuing Lender or such Participant to the Administrative Agent), the
Borrower agrees, subject to the provisions of Section 13.17, to pay to such
Issuing Lender or such Participant such additional amount or amounts as will
compensate such Issuing Lender or such Participant for such increased cost
or
reduction in the amount receivable or reduction on the rate of return on its
capital, it being agreed that this Section 2.06 shall not apply to Taxes which
are the subject of Section 4.04(a). Any Issuing Lender or any Participant,
upon
determining that any addi-tional amounts will be payable pursuant to this
Section 2.06, will give prompt written notice thereof to the Borrower, which
notice shall include a certificate submitted to the Borrower by such Issuing
Lender or such Participant (a copy of which certificate shall be sent by the
Issuing Lender or such Participant to the Administrative Agent), setting forth
in reasonable detail the basis for and the calculation of such additional amount
or amounts necessary to compensate such Issuing Lender or such Participant.
The
certificate required to be delivered pursuant to this Section 2.06 shall, absent
manifest error, be final and conclusive and binding on the
Borrower.
-21-
SECTION
3. Commitment
Commission; Fees; Reductions of Commitment.
3.01 Fees.
(a)
The
Borrower agrees to pay to the Administrative Agent for distribution to each
RL
Lender which is a Non-Defaulting Lender a commitment commission (the
“Commitment
Commission”)
for
the period from and including the Effective Date to and including the Revolving
Loan Maturity Date (or such earlier date on which the Total Revolving Loan
Commitment has been terminated) computed at a rate per annum equal to
the
Applicable RL Commitment Percentage of the Unutilized Revolving Loan Commitment
of such Non-Defaulting RL Lender as in effect from time to time. Accrued
Commitment Commission shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the date upon which the Total Revolving Loan
Commitment is terminated.
(b) The
Borrower agrees to pay to the Administrative Agent for distribution to each
Non-Defaulting Lender with an Incremental Term Loan Commitment such up-front
fees and other amounts, if any, as are specified in the Incremental Term Loan
Commitment Agreement pursuant to which such Incremental Term Loan Commitment
has
been provided, with such up-front fees and other amounts, if any, to be payable
at the times set forth in such Incremental Term Loan Commitment
Agreement.
(c) The
Borrower agrees to pay to the Administrative Agent for distribution to each
RL
Lender (based on each such Lender’s respective RL Percentage) a fee in respect
of each Letter of Credit (the “Letter
of Credit Fee”)
for
the period from and including the date of issuance of such Letter of Credit
to
and including the date of termi-nation or expiration of such Letter of Credit,
computed at a rate per annum equal to the Applicable Margin as in effect from
time to time during such period with respect to Revolving Loans that are
maintained as Eurodollar Loans in respect of the daily Stated Amount of each
such Letter of Credit. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and on the first day on
or
after the termination of the Total Revolving Loan Commitment upon which no
Letter of Credit remains outstanding.
(d) The
Borrower agrees to pay to each Issuing Lender, for its own account, a facing
fee
in respect of each Letter of Credit issued by it (the “Facing
Fee”)
for
the period from and including the date of issuance of such Letter of Credit
to
and including the date of termination or expiration of such Letter of Credit,
computed at a rate per annum equal to 1/8 of 1% on the daily Stated Amount
of
such Letter of Credit, provided
that in
any event the minimum amount of Facing Fees payable in any twelve-month period
for each Letter of Credit shall be not less than $500; it being agreed that,
on
the day of issuance of any Letter of Credit and on each anniversary thereof
prior to the termination or expiration of such Letter of Credit, if $500 will
exceed the amount of Facing Fees that will accrue with respect to such Letter
of
Credit for the immediately succeeding twelve-month period, the full $500 shall
be payable on the date of issuance of such Letter of Credit and on each such
anniversary thereof. Except as otherwise provided in the proviso to the
immediately preceding sentence, accrued Facing Fees shall be due and payable
quarterly in arrears on each Quarterly Payment Date and upon the first day
on or
after the termination of the Total Revolving Loan Commitment upon which no
Letter of Credit remains outstanding.
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(e) The
Borrower agrees to pay to each Issuing Lender, for its own account, upon each
payment under, issuance of, or amendment to, any Letter of Credit issued by
it,
such amount as shall at the time of such event be the administrative charge
and
the reason-able expenses which such Issuing Lender is generally imposing in
connection with such occur-rence with respect to letters of credit.
(f) The
Borrower agrees to pay to the Administrative Agent such fees as may be agreed
to
in writing from time to time by the Borrower or any of its Subsidiaries and
the
Administrative Agent.
3.02 Voluntary
Termination of Unutilized Revolving Loan Commitments.
(a)
Upon at
least three Business Days’ prior notice from an Authorized Representative of the
Borrower to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, at any time or from time to time, without premium
or penalty, to terminate the Total Unutilized Revolving Loan Commitment at
such
time, in whole or in part, in integral multiples of $5,000,000 in the case
of
partial reductions of the Total Unutilized Revolving Loan Commitment. Each
reduction to the Total Unutilized Revolving Loan Commitment pursuant to this
Section 3.02 shall apply to proportionately and permanently reduce the Revolving
Loan Commitment of each RL Lender (based on their respective RL
Percentages).
(b) In
the
event of a refusal by a Lender to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Lenders as (and to the extent) provided in Section
13.12(b), the Borrower may, subject to its compliance with the requirements
of
Section 13.12(b), upon five Business Days’ prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative
Agent
shall promptly transmit to each of the Lenders) terminate all of the Revolving
Loan Commitment of such Lender, so long as all Loans, together with accrued
and
unpaid interest, Fees and all other amounts, owing to such Lender (other than
any such amounts owing in respect of any Tranche maintained by such Lender
which
are not being repaid pursuant to Section 13.12(b)) are repaid concurrently
with
the effectiveness of such termination pursuant to Section 4.01(b) (at which
time
Schedule 1.01 shall be deemed modi-fied to reflect such changed amounts) and
such Lender’s RL Percentage of all outstanding Letters of Credit is cash
collateralized in a manner satisfactory to the Administrative Agent and the
respective Issuing Lenders (unless the respective Lender is not being repaid
with respect to its Revolving Loan Commitment pursuant to Section 13.12(b)),
and
at such time, unless the respective Lender continues to have outstanding Term
Loans or Commitments hereunder, such Lender shall no longer constitute a
“Lender” for purposes of this Agreement, except with respect to indemnifications
under this Agreement (includ-ing, without limitation, Sections 1.10, 1.11,
2.06,
4.04, 12.06 and 13.01), which shall survive as to such repaid
Lender.
3.03 Mandatory
Reduction of Commitments.
(a)
The
Total Commitment (and the Commitment of each Lender) shall terminate in its
entirety on May 31, 2006, unless the Initial Borrowing Date has occurred on
or
prior to such date.
(b) In
addition to any other mandatory commitment reductions pursuant to this Section
3.03, the Total Initial Term Loan Commitment (and the Initial Term Loan
Commitment of each Lender) shall terminate in its entirety on the Initial
Borrowing Date (after giving effect to the incurrence of Initial Term Loans
on
such date pursuant to Section 1.01).
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(c) In
addition to any other mandatory commitment reductions pursuant to this Section
3.03, the Total Revolving Loan Commitment shall terminate in its entirety upon
the earlier of (x) the Revolving Loan Maturity Date and (y) unless the Required
Lenders otherwise agree in writing, the date on which a Change of Control
occurs.
(d) In
addition to any other mandatory commitment reductions pursuant to this Section
3.03, (i) the Incremental Term Loan Commitment of each Lender provided pursuant
to a particular Incremental Term Loan Commitment Agreement shall be permanently
reduced on each Incremental Term Loan Borrowing Date on which Incremental Term
Loans are incurred pursuant to such Incremental Term Loan Commitment Agreement
in an amount equal to the aggregate principal amount of Incremental Term Loans
made by such Lender pursuant to such Incremental Term Loan Commitment Agreement
on such date, and (ii) the Incremental Term Loan Commitment of each Lender
provided pursuant to a particular Incremental Term Loan Commitment Agreement
shall terminate at 5:00 P.M. (New York time) on the earlier of (I) the date
specified in such Incremental Term Loan Commitment Agreement and (II) the
Revolving Loan Maturity Date (whether or not any Incremental Term Loans are
incurred on either such date).
(e) Each
reduction to, or termination of, the Total Revolving Loan Commitment shall
be
applied to proportionately reduce or terminate, as the case may be, the
Revolving Loan Commitment of each Lender with a Revolving Loan
Commitment.
SECTION
4. Prepayments;
Payments; Taxes.
4.01 Voluntary
Prepayments.
(a)
The
Borrower shall have the right to prepay Loans, without premium or penalty,
in
whole or in part at any time and from time to time on the following terms and
conditions: (i) the Borrower shall give the Administrative Agent prior to 12:00
Noon (New York time) at the Notice Office (x) at least one Business Day’s
prior written notice (or telephonic notice promptly confirmed in writing) of
its
intent to prepay Base Rate Loans (or same day notice in the case of a prepayment
of Swingline Loans) and (y) at least three Business Days’ prior written notice
(or telephonic notice promptly confirmed in writing) of its intent to prepay
Eurodollar Loans, which notice (in each case) shall specify whether Term Loans,
Revolving Loans or Swingline Loans shall be prepaid, the amount of such
prepayment and the Types of Loans to be prepaid and, in the case of Eurodollar
Loans, the specific Borrowing or Borrowings pursuant to which such Eurodollar
Loans were made, and which notice the Administrative Agent shall, except in
the
case of a prepayment of Swingline Loans, promptly transmit to each of the
Lenders; (ii) (x) each partial prepayment of Term Loans pursuant to this Section
4.01(a) shall be in an aggre-gate principal amount of at least $1,000,000 (or
such lesser amount as is acceptable to the Administrative Agent), (y) each
partial prepayment of Revolving Loans pursuant to this Section 4.01(a) shall
be
in an aggregate principal amount of at least $500,000 (or such lesser amount
as
is acceptable to the Administrative Agent) and (z) each partial prepayment
of
Swingline Loans pursuant to this Section 4.01(a) shall be in an aggregate
principal amount of at least $100,000 (or such lesser amount as is acceptable
to
the Administrative Agent in any given case), provided
that if
any partial prepayment of Eurodollar Loans made pursuant to any Borrowing shall
reduce the outstanding principal amount of Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then such Borrowing may not be continued as a Borrowing of Eurodollar
Loans (and same shall automatically be converted into a Borrowing of Base Rate
Loans) and any election of an Interest Period with respect thereto given by
the
Borrower shall have no force or effect; (iii) each prepayment pursuant to this
Section 4.01(a) in respect of any Loans made pursuant to a particular Borrowing
shall be applied pro rata
among
such Loans comprising such Borrowing; and (iv) each voluntary prepayment of
Term
Loans pursuant to this Section 4.01(a) shall be applied to reduce the then
remaining Scheduled Repayments of the Term Loans on a pro rata
basis
(based upon the then remaining unpaid principal amounts of such Scheduled
Repayments after giving effect to all prior reductions thereto).
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(b) In
the
event of a refusal by a Lender to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Lenders as (and to the extent) provided in Section
13.12(b), the Borrower may, upon five Business Days’ prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative
Agent
shall promptly transmit to each of the Lenders) repay all Loans, together with
accrued and unpaid interest, Fees, and other amounts owing to such Lender (or
owing to such Lender in respect of the Tranche being repaid in the event such
Lender is being repaid with respect to a single Tranche only in accordance
with,
and subject to the requirements of, said Sec-tion 13.12(b) so long as (I)
all Commitments of such Lender (other than Commitments relating to any Tranche
with respect to which such Lender is not being replaced or terminated) are
terminated con-currently with such repayment pursuant to Section 3.02(b) (at
which time Schedule 1.01 shall be deemed modified to reflect the changed
Commitments), (II) unless such Lender is an RL Lender that is not being repaid
or replaced with respect to its Revolving Loan Commitment, such Lender’s RL
Percentage of all outstanding Letters of Credit is cash collateralized in a
manner satisfactory to the Administrative Agent and the respective Issuing
Lenders and (III) the consents, if any, required under Sec-tion 13.12(b) in
connection with the repayment pursuant to this clause (b) have been obtained.
Each prepayment of any Term Loans pursuant to this Section 4.01(b) shall be
applied to reduce the then remaining Scheduled Repayments of the Term Loans
on a
pro rata
basis
(based upon the then remaining unpaid principal amounts of such Scheduled
Repayments after giving effect to all prior reductions thereto).
4.02 Mandatory
Repayments.
(a)
On any
day on which the sum of (I) the aggregate outstanding principal amount of all
Revolving Loans (after giving effect to all other repayments thereof on such
date), (II) the aggregate outstanding principal amount of all Swingline Loans
(after giving effect to all other repayments thereof on such date) and (III)
the
aggregate amount of all Letter of Credit Outstandings exceeds the Total
Revolving Loan Commitment at such time, the Borrower shall prepay on such day
the principal of Swingline Loans and, after all Swingline Loans have been repaid
in full or if no Swingline Loans are outstanding, Revolving Loans in an amount
equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Loans, the aggregate amount of the
Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment at
such time, the Borrower shall pay to the Administrative Agent at the Payment
Office on such day an amount of cash and/or Cash Equivalents equal to the amount
of such excess (up to a maximum amount equal to the Letter of Credit
Outstandings at such time), such cash and/or Cash Equivalents to be held as
security for all obligations of the Borrower to the Issuing Lenders and the
Lenders hereunder in a cash collateral account to be established by the
Administrative Agent until such time as all proceeds are applied to such
obliga-tions, provided that if any Letter of Credit so collateralized expires
undrawn or is otherwise terminated undrawn or all drawings thereunder are paid,
an amount shall be returned to the Borrower such that, after giving effect
to
the return of such amount, the Total Revolving Loan Commitment then in effect
exceeds or equals the aggregate amount of Letter of Credit
Outstandings.
-25-
(b) In
addition to any other mandatory repayments pursuant to this Section 4.02, on
each date set forth below (each, a “Scheduled
Repayment Date”),
the
Borrower shall be required to repay that principal amount of Term Loans, to
the
extent then outstanding, as is set forth opposite each such date below (each
such repayment, as the same may be reduced as provided in Section 4.01(a),
4.01(b) or 4.02(h), a “Scheduled
Repayment”):
|
Scheduled
Repayment Date
|
Amount
|
|
|
September
30, 2006
|
$187,500
|
|
|
December
31, 2006
|
$187,500
|
|
|
March
31, 2007
|
$187,500
|
|
|
June
30, 2007
|
$187,500
|
|
|
|
|
|
|
September
30, 2007
|
$187,500
|
|
|
December
31, 2007
|
$187,500
|
|
|
March
31, 2008
|
$187,500
|
|
|
June
30, 2008
|
$187,500
|
|
|
|
|
|
|
September
30, 2008
|
$187,500
|
|
|
December
31, 2008
|
$187,500
|
|
|
March
31, 2009
|
$187,500
|
|
|
June
30, 2009
|
$187,500
|
|
|
|
||
|
September
30, 2009
|
$187,500
|
|
|
December
31, 2009
|
$187,500
|
|
|
March
31, 2010
|
$187,500
|
|
|
June
30, 2010
|
$187,500
|
|
|
|
|
|
|
September
30, 2010
|
$187,500
|
|
|
December
31, 2010
|
$187,500
|
|
|
March
31, 2011
|
$187,500
|
|
|
June
30, 2011
|
$187,500
|
|
|
|
||
|
September
30, 2011
|
$187,500
|
|
|
December
31, 2011
|
$187,500
|
|
|
March
31, 2012
|
$187,500
|
|
|
June
30, 2012
|
$187,500
|
|
|
|
|
|
|
September
30, 2012
|
$187,500
|
|
|
December
31, 2012
|
$187,500
|
|
|
March
31, 2013
|
$187,500
|
|
|
|
|
|
|
Term
Loan Maturity Date
|
$69,937,500
|
-26-
In
the
event that the Borrower incurs any Incremental Term Loans pursuant to Section
1.01(e), the amount of each remaining Scheduled Repayment shall be
proportionally increased (with the aggregate increases to the then remaining
Scheduled Repayments to equal the aggregate principal amount of such new
Incremental Term Loans then being incurred) in accordance with the requirements
of Section 1.14(c)
(c) In
addition to any other mandatory repayments pursuant to this Section 4.02, on
each date on or after the Initial Borrowing Date upon which the Borrower or
any
of its Subsidiaries receives any cash proceeds from any issuance or incurrence
by the Borrower or any of its Subsidiaries of Indebtedness for borrowed money
(other than Indebtedness for borrowed money permitted to be incurred pursuant
to
Section 9.04 as in effect on the Effective Date), an amount equal to 100% of
the
Net Debt Proceeds of the respective incurrence of Indebtedness shall be applied
on such date as a mandatory repayment in accor-dance with the requirements
of
Sections 4.02(g) and (h).
(d) In
addition to any other mandatory repayments pursuant to this Section 4.02, on
each date on or after the Initial Borrowing Date upon which the Borrower or
any
of its Subsidiaries receives any cash proceeds from any Asset Sale, the Borrower
shall make a mandatory repayment in accordance with the requirements of Sections
4.02(g) and (h) in an amount equal to the Net Sale Proceeds therefrom;
provided,
however,
that
with respect to Net Sale Proceeds from Specified Asset Sales and Net Sale
Proceeds of no more than $25,000,000 in the aggregate from Asset Sales other
than Specified Asset Sales, such Net Sale Proceeds shall not be required to
be
so applied on such date so long as no Default and no Event of Default then
exists and such Net Sale Proceeds shall be used to purchase assets (other than
working capital) used or to be used in the businesses permitted pursuant to
Section 9.13 within 365 days following the date of such Asset Sale, and
provided further,
that if
all or any portion of such Net Sale Proceeds not required to be so applied
as
provided above in this Sec-tion 4.02(d) are not so reinvested within such
365-day period (or such earlier date, if any, as the Borrower or the relevant
Subsidiary determines not to reinvest the Net Sale Proceeds from such Asset
Sale
as set forth above), such remaining portion shall be applied on the last day
of
such period (or such earlier date, as the case may be) as provided above in
this
Section 4.02(d) without regard to the preceding proviso.
(e) In
addition to any other mandatory repayments pursuant to this Section 4.02, on
each Excess Cash Payment Date, an amount equal to the Applicable ECF Percentage
of the Excess Cash Flow for the related Excess Cash Payment Period shall be
applied as a mandatory repayment in accordance with the requirements of Sections
4.02(g) and (h).
(f) In
addition to any other mandatory repayments pursuant to this Section 4.02, within
10 days following each date on or after the Initial Borrowing Date upon which
the Borrower or any of its Subsidiaries receives any cash proceeds from any
Recovery Event (other than Recovery Events where the Net Insurance Proceeds
therefrom do not exceed $50,000), 100% of the Net Insurance Proceeds from such
Recovery Event shall be applied within such ten day period as a mandatory
repayment in accordance with the require-ments of Sections 4.02(g) and (h);
provided,
however,
that so
long as no Default or Event of Default then exists, such Net Insurance Proceeds
shall not be required to be so applied within such ten day period to the extent
that the Borrower has delivered a certificate to the Administrative Agent within
such ten day period stating that such Net Insurance Proceeds shall be used
to
replace or restore properties or assets in respect of which such Net Insurance
Proceeds were paid within 365 days following the date of the receipt of such
Net
Insurance Proceeds (which certificate shall set forth the estimates of the
Net
Insurance Proceeds to be so expended), provided further,
that if
all or any portion of such Net Insurance Proceeds not required to be so applied
pursuant to the preceding proviso are not so used within 365 days after the
date
of the receipt of such Net Insurance Proceeds (or such earlier date, if any,
as
the Borrower or the relevant Subsidiary deter-mines not to reinvest the Net
Insurance Proceeds relat-ing to such Recovery Event as set forth above), an
amount equal to such remaining portion shall be applied on the last day of
such
period (or such earlier date, as the case may be) as provided above in this
Section 4.02(f) without regard to the preceding proviso.
-27-
(g) Each
amount required to be applied pursuant to Sections 4.02(c), (d), (e) and (f)
shall be applied to reduce the then remaining Scheduled Repayments on a
pro rata
basis
(based upon the then remaining unpaid principal amounts of such Scheduled
Repayments after giving effect to all prior reductions thereto).
(h) With
respect to each repayment of Loans required by this Section 4.02, the Borrower
may designate the Types of Term Loans which are to be repaid and, in the case
of
Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which such
Eurodollar Loans were made, provided
that:
(i) repayments of Eurodollar Loans pursuant to this Section 4.02 may only be
made on the last day of an Interest Period applicable thereto unless all
Eurodollar Loans with Interest Periods ending on such date of required repayment
and all Term Loans maintained as Base Rate Loans have been paid in full; (ii)
if
any repayment of Eurodollar Loans made pursuant to a single Borrowing shall
reduce the out-stand-ing Eurodollar Loans made pursuant to such Borrowing to
an
amount less than the Minimum Borrowing Amount applicable thereto, such Borrowing
shall be automatically con-verted into a Borrowing of Base Rate Loans; and
(iii)
each repayment of any Loans made pursu-ant to a Borrowing shall be applied
pro rata
among
such Loans. In the absence of a designation by the Borrower as described in
the
preceding sentence, the Administrative Agent shall, subject to the above, make
such designation in its sole discretion.
(i) In
addition to any other mandatory repayments pursuant to this Section 4.02, (i)
all then outstanding Loans of the respective Tranche shall be repaid in full
on
the respective Maturity Date for such Tranche of Loans and (ii) unless the
Required Lenders otherwise agree in writing, all then outstanding Loans shall
be
repaid in full on the date on which a Change of Control occurs.
4.03 Method
and Place of Payment.
Except as otherwise specifically provided herein, all payments under this
Agreement and under any Note shall be made to the Administrative Agent for
the
account of the Lender or Lenders entitled thereto not later than 12:00 Noon
(New York time) on the date when due and shall be made in Dollars in
immediately available funds at the Payment Office. Whenever any payment to
be
made hereunder or under any Note shall be stated to be due on a day which is
not
a Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
-28-
4.04 Net
Payments.
(a)
All
payments made by the Borrower hereunder and under any Note will be made without
setoff, counterclaim or other defense. Except as provided in Section 4.04(b),
all such payments will be made free and clear of, and without deduction or
with-hold-ing for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by
any
jurisdiction or by any political sub-division or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in
the
second succeeding sentence, any tax imposed on or measured by the net income,
net profits or capital or franchise taxes imposed in lieu thereof of a Lender
or, in the case of a Lender or Administrative Agent that is a flow-through
entity for tax purposes, a member or a partner of such Lender or Administrative
Agent, pursuant to the laws of the country or national jurisdiction (or any
political subdivision thereof) in which it is organized or the country or
national jurisdiction (or any political subdivision thereof) in which the
principal office or applicable lending office of such Lender is located) and
all
interest, penalties or similar liabilities with respect to such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collec-tively as “Taxes”).
If
any Taxes are so levied or imposed on payments made by the Borrower hereunder
and under any Note, the Borrower agrees to pay the full amount of such Taxes
to
the appropriate taxing authority, and shall pay to the applicable Lender or,
in
the case of a Lender or Administrative Agent that is a flow-through entity
for
tax purposes, a member or a partner of such Lender or Administrative Agent,
such
additional amounts as may be necessary so that every payment of all amounts
due
under this Agreement or under any Note, after withholding or deduction for
or on
account of any Taxes, will not be less than the amount provided for herein
or in
such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, the Borrower agrees to reimburse each Lender, upon the
written request of such Lender, for taxes imposed on or measured by the net
income or net profits of such Lender pursuant to the laws of the jurisdiction
in
which such Lender is organized or in which the principal office or applicable
lending office of such Lender is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction in which such Lender
is
organized or in which the principal office or applicable lending office of
such
Lender is located and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender, in respect of such
amounts so paid to or on behalf of such Lender pursuant to the pre-ceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. The Borrower will furnish to the Administrative
Agent
within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts or other evidence reasonably
satisfactory to the Administrative Agent evidencing such payment by such
Borrower. The Borrower agrees to indemnify and hold harmless each Lender or,
in
the case of a Lender or Administrative Agent that is a flow-through entity
for
tax purposes, a member or a partner of such Lender or Administrative Agent,
and
reimburse such Lender or, in the case of a Lender or Administrative Agent that
is a flow-through entity for tax purposes, a member or a partner of such Lender
or Administrative Agent, upon its written request, for the amount of any Taxes
so levied or imposed and paid by such Lender or, in the case of a Lender or
Administrative Agent that is a flow-through entity for tax purposes, a member
or
a partner of such Lender or Administrative Agent.
-29-
(b) Each
Lender that is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees to deliver
to the Borrower and the Administrative Agent on or prior to the Effective Date
or, in the case of a Lender that is an assignee or transferee of an interest
under this Agreement pursuant to Section 1.13 or 13.04(b) (unless the respective
Lender was already a Lender hereunder immediately prior to such assignment
or
transfer), on the date of such assignment or transfer to such Lender, (i) two
accurate and complete original signed copies of Internal Revenue Service Form
W-8ECI or Form W-8BEN (with respect to a complete exemption under an income
tax
treaty) (or successor forms) certifying to such Lender’s entitlement as of such
date to a complete exemption from United States withholding tax with respect
to
payments to be made under this Agreement and under any Note, or (ii) if the
Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code
and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN
(with respect to a complete exemption under an income tax treaty) (or any
successor forms) pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit E (any such certificate, a “Section
4.04(b)(ii) Certificate”)
and
(y) two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN (with respect to the portfolio interest exemption) (or
successor form) certifying to such Lender’s entitlement as of such date to a
complete exemption from United States withholding tax with respect to payments
of interest to be made under this Agreement and under any Note, or (iii) if
a
Lender or the Administrative Agent is a foreign intermediary or flow-through
entity for U.S. federal income tax purposes, two accurate and complete signed
copies of Internal Revenue Service Form W-8IMY (and all necessary attachments)
establishing a complete exemption from United States withholding tax with
respect to payments made to the Administrative Agent or the applicable Lender
as
the case may be under this Agreement and under any Note. In addition, each
Lender and the Administrative Agent agree that from time to time after the
Effective Date, when a lapse in time or change in circumstances or law renders
the previous certification obsolete, invalid or inaccurate in any material
respect, it will deliver to the Borrower and the Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service Form
W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty),
Form W-8BEN (with respect to the portfolio interest exemption) and a Section
4.04(b)(ii) Certificate, or Form W-8IMY (with respect to foreign intermediary
or
flow through entity), as the case may be, and such other forms and necessary
attachments as may be required in order to confirm or estab-lish the entitlement
of such Lender to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any Note,
or
such Lender shall immediately notify the Borrower and the Administrative Agent
of its inability to deliver any such Form or Certificate, in which case such
Lender shall not be required to deliver any such Form or Certificate pursuant
to
this Section 4.04(b). The Administrative Agent and each Lender that is a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
for
U.S. federal income tax purposes (other than a Lender or Administrative Agent
that may be treated as an exempt recipient based on the indicators described
in
U.S. Treasury Regulation Section 1.6049-4(c)(1)(ii) except to the extent
required by Treasury Regulation Section 1.1441-1(d)(4) (and any successor
provision)) agrees to deliver to the Borrower and the Administrative Agent
on or
prior to the Effective Date or, in the case of such a Lender that is an assignee
or transferee of an interest under this Agreement pursuant to Section 1.13
or
13.04(b) (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender and at the other times described above
with respect to Lenders that are not United States persons, two accurate and
complete original signed copies of U.S. Internal Revenue Service Form W-9 (or
successor forms) certifying to such Lender’s and/or Administrative Agent’s
entitlement as of such date to a complete exemption from United States backup
withholding tax with respect to payments to be made under this Agreement and
under any other Credit Document. Notwithstanding anything to the con-trary
contained in Section 4.04(a), but subject to Section 13.04(b) and the
immediately suc-ceeding sentence, (x) the Borrower shall be entitled, to
the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political sub-division or
taxing authority thereof or therein) from interest, Fees or other amounts
payable here-under to the extent that such Lender has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a com-plete
exemption from such deduction or withholding and (y) the Borrower shall not
be obli-gated pursuant to Section 4.04(a) to gross-up payments to be made to
a
Lender in respect of withholdings, income or similar taxes imposed by the United
States if (I) such Lender has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant to this Section
4.04(b) or (II) in the case of a payment, other than interest, to a Lender
described in clause (ii) above, to the extent that such forms provided by such
Lender do not establish a complete exemption from with-holding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence
or
elsewhere in this Section 4.04 and except as set forth in Section 13.04(b),
the
Borrower agrees to pay any additional amounts and to indemnify each Lender
in
the manner set forth in Section 4.04(a) (without regard to the identity of
the
jurisdiction requiring the deduction or withholding) in respect of any amounts
deducted or withheld by it as described in the immediately preceding sentence
as
a result of any changes that are effective after the Effective Date in any
applicable law, treaty, governmental rule, regulation, guideline or order,
or in
the inter-pretation thereof, relating to the deducting or withholding of such
Taxes.
-30-
(c) If
the
Administrative Agent has not provided to the Borrower the U.S. Internal Revenue
Service Forms required to be provided to the Borrower pursuant to
Section 4.04(b) hereof, the Administrative Agent shall deliver such U.S.
Internal Revenue Service Forms within 30 days following written notice from
the
Borrower to the Administrative Agent requesting the same; provided,
however,
that if
the Administrative Agent does not deliver such U.S. Internal Revenue Service
Forms within such 30-day period, the Administrative Agent shall, upon the
subsequent written request of the Borrower, designate an affiliate or another
Lender that is a “United States person” (as such term is defined in Section
7701(a)(30) of the Code) to serve as the Administrative Agent, subject to such
designation not having an adverse effect on the Administrative Agent and subject
to the internal policy considerations of the Administrative Agent, each to
be
determined in the sole discretion of the Administrative Agent; provided further,
however,
that if
the Administrative Agent is unwilling or unable (within its sole discretion)
to
make such appointment, the Borrower shall have the right to cause the
Administrative Agent to resign in accordance with Section 12.09 hereof.
(d) If
the
Borrower pays any additional amount under this Section 4.04 to a Lender and
such
Lender determines in its sole discretion that it has actu-ally received or
realized in connection therewith any refund or any reduction of, or credit
against, its Tax liabilities in or with respect to the taxable year in which
the
additional amount is paid (a “Tax
Benefit”),
such
Lender shall pay to the Borrower an amount that the Lender shall, in its sole
discretion, determine is equal to the net benefit, after tax, which was obtained
by the Lender in such year as a consequence of such Tax Benefit; provided,
however,
that
(i) any Lender may determine, in its sole discretion consistent with the
policies of such Lender, whether to seek a Tax Benefit; (ii) any Taxes that
are
imposed on a Lender as a result of a disallowance or reduction (including
through the expiration of any tax credit carryover or carryback of such Lender
that otherwise would not have expired) of any Tax Benefit with respect to which
such Lender has made a payment to the Borrower pursuant to this Section 4.04(d)
shall be treated as a Tax for which the Borrower is obligated to indemnify
such
Lender pursuant to this Section 4.04 without any exclusions or defenses; (iii)
subject to Section 13.16, nothing in this Section 4.04(d) shall require the
Lender to disclose any confidential information to the Borrower (including,
without limitation, its tax returns); and (iv) no Lender shall be required
to
pay any amounts pursuant to this Section 4.04(d) at any time which a Default
or
Event of Default exists.
-31-
SECTION
5. Conditions
Precedent to Credit Events on the Initial Borrowing Date.
The
obligation of each Lender to make Loans, and the obligation of each Issuing
Lender to issue Letters of Credit, on the Initial Borrowing Date, are subject
at
the time of the making of such Loans or the issuance of such Letters of Credit
to the satisfaction of the following conditions:
(a) Effective
Date; Notes.
On or
prior to the Initial Borrowing Date, (i) the Effective Date shall have occurred
and (ii) there shall have been delivered to the Administrative Agent for the
account of each of the Lenders that has requested same the appropriate Term
Note
or Revolving Note executed by the Borrower and, if requested by the Swingline
Lender, the Swingline Note executed by the Borrower, in each case in the amount,
maturity and as otherwise provided herein.
(b) Officer’s
Certificate.
On the
Initial Borrowing Date, the Administrative Agent shall have received from the
Borrower a certificate, dated such date and signed on behalf of the Borrower
by
an Authorized Representative of the Borrower, certifying on behalf of the
Borrower that all of the conditions in each of Sections 5.01(e), (f), (g),
(h),
(j) and (p) and 6, have been satisfied on such date.
(c) Opinions
of Counsel.
On the
Initial Borrowing Date, the Administrative Agent shall have received from (i)
Xxxxxxx Xxxxx LLP, counsel to the Credit Parties, an opinion addressed to each
Agent and the Lenders and dated the Initial Borrowing Date substantially in
the
form of Exhibit F-1, (ii) Xxxxxxxx X. Xxxxxxx, general counsel to the Credit
Parties, an opinion addressed to each Agent and the Lenders and dated the
Initial Borrowing Date substantially in the form of Exhibit F-2 and (iii) from
local counsel to the Credit Parties reasonably satisfactory to the
Administrative Agent practicing in those jurisdictions in which Credit Parties
are organized (if organized other than under the laws of Delaware or New York),
which opinions shall be addressed to the Administrative Agent and each of the
Lenders and dated the Initial Borrowing Date and shall cover the perfection
of
the security interests and/or liens granted pursuant to the relevant Security
Documents, matters relating to the organization, good standing and due
authorization, execution and delivery of the various Credit Documents and such
other opinions as the Administrative Agent may reasonably request and shall
be
in form and substance reasonably satisfactory to the Administrative
Agent.
-32-
(d) Existing
Second-Lien Note Consent.
On or
prior to the Initial Borrowing Date, (i) the Borrower shall have delivered
to
the Administrative Agent evidence satisfactory to it that the holders of at
least a majority of the aggregate principal amount of the outstanding Existing
Second-Lien Notes shall have delivered such consents as are required under
the
Existing Second-Lien Note Indenture and the other Existing Second-Lien Note
Documents in order to permit the consummation of the Transaction (the
“Required
Consents”),
which
Required Consents shall be in form and substance satisfactory to the
Administrative Agent and the Required Lenders, and (ii) subject to any
amendments contemplated by the Required Consents, the Existing Second-Lien
Note
Indenture and the other Existing Second-Lien Note Documents shall be in full
force and effect in all respects.
(e) Adverse
Change.
On the
Initial Borrowing Date, there shall not have occurred (and neither the
Administrative Agent nor the Required Lenders shall have become aware of any
facts or conditions not previously known) which the Administrative Agent or
the
Required Lenders shall determine has had or could reasonably be expected to
have
a Material Adverse Effect.
(f) Litigation.
On the
Initial Borrowing Date, no litigation by any entity (private or governmental)
shall be pending or, to the knowledge of the Borrower, threat-ened (i) with
respect to the Transaction or any documentation executed in connection therewith
(including any Credit Document) or the transactions contemplated thereby or
(ii)
which has had, or could reasonably be expected to have, a Material Adverse
Effect.
(g) Governmental
Approvals; etc.
On or
prior to the Initial Borrowing Date, (A) all necessary governmental (domestic
and foreign) and third party approvals in connection with the Credit Documents
and otherwise referred to herein or therein shall have been obtained and remain
in full force and effect and evidence thereof shall have been provided to the
Administrative Agent, and (B) all necessary material governmental (domestic
and
foreign) and third party approvals in con-nection with any Existing Indebtedness
which is to remain outstanding after the Initial Borrowing Date and the
consum-mation of the Transaction shall have been obtained and remain in full
force and effect and evidence thereof shall have been provided to the
Administrative Agent. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed by any governmental authority
or a
hearing seeking injunctive relief or other restraint pend-ing or notified
prohibiting or imposing materially adverse conditions upon, or materi-ally
delaying, or making economically unfeasible, the consum-ma-tion of the
Transaction or the making of the Loans, the issuance of Letters of Credit or
the
transactions contemplated by this Agreement.
(h) Fees,
etc.
On the
Initial Borrowing Date, the Borrower shall have paid to the Agents and the
Lenders all costs, fees and expenses (including, without limitation, legal
fees
and expenses of the Agents and their affiliates incurred prior to the Initial
Borrowing Date) payable to the Agents and the Lenders or otherwise payable
in
respect of the Transaction to the extent then due.
(i) Corporate
Documents; Proceedings; etc. (i)
On the
Initial Borrowing Date, the Administrative Agent shall have received a
certificate, dated the Initial Borrowing Date, signed by a secretary or
assistant secretary of each Credit Party and attested to by an authorized
officer of such Credit Party, substantially in the form of Exhibit G with
appropriate insertions, together with copies of the certificate of
incorporation, by-laws or equivalent organizational docu-ments of such Credit
Party and the resolutions of such Credit Party authorizing the transactions
referred to herein and occurring on or prior to the Initial Borrowing
Date.
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(ii) All
corporate, partnership, limited liability company and legal proceedings and
all
instruments and agree-ments in connection with the transactions contemplated
by
this Agreement and the other Documents shall be in form and substance reasonably
satisfactory to the Administrative Agent, and the Administrative Agent shall
have received all information and copies of all docu-ments and papers, including
records of corporate proceedings, governmental approvals, good stand-ing
certificates and a bring down telegram or facsimile with respect to the
Borrower, which the Administrative Agent reasonably may have requested in
connection therewith, such documents and papers where appro-priate to be
certified by proper corporate or governmental authorities.
(j) Consummation
of the Refinancing.
(i)
On the
Initial Borrowing Date, concurrently with the incurrence of Loans and the use
of
proceeds thereof for such purpose, all Indebtedness of the Borrower and its
Subsidiaries under the Existing Credit Agreements shall have been repaid in
full, together with all fees, premiums and other amounts owing pursuant thereto,
all commitments under the Existing Credit Agreements shall have been terminated
and all letters of credit issued pursuant to the Existing Credit Agreements
shall have been terminated (or either incorporated as Letters of Credit
hereunder or fully supported with Letters of Credit issued hereunder).
(ii) On
the
Initial Borrowing Date, concurrently with the incurrence of Loans and the use
of
proceeds thereof for such purpose, all security interests in respect of, and
Liens securing, the Indebtedness under the Existing Credit Agreements created
pursuant to the security documentation relating thereto shall have been
terminated and released, and the Administrative Agent shall have received all
such releases as may have been requested by the Administrative Agent, which
releases shall be in form and substance satisfactory to the Administrative
Agent. Without limiting the foregoing, there shall have been delivered to the
Administrative Agent (x) proper termination statements (Form UCC-3 or the
appropriate equivalent) for filing under the UCC or equivalent statute or
regulation of each jurisdiction where a financing statement or application
for
registration (Form UCC-1 or the appropriate equivalent) was filed with respect
to the Borrower or any of its Subsidiaries in connection with the security
interests created with respect to the Existing Credit Agreements, (y)
terminations or reassignments of any security interest in, or Lien on, any
patents, trademarks, copyrights, or similar interests of the Borrower or any
of
its Subsidiaries on which filings have been made and (z) terminations of all
mortgages, leasehold mortgages, hypothecs and deeds of trust created with
respect to property of the Borrower or any of its Subsidiaries, in each case,
to
secure the obligations under the Existing Credit Agreements, all of which shall
be in form and substance reasonably satisfactory to the Administrative
Agent.
(iii) On
the
Initial Borrowing Date and after giving effect to the consummation of the
Transaction, the Borrower and its Subsidiaries shall have no outstanding
preferred equity or Indebtedness, except for (x) Indebtedness pursuant to (or
in
respect of) the Credit Documents, (y) Indebtedness pursuant to (or in respect
of) the Second-Lien Note Documents, and (z) such other outstanding
Indebtedness of the Borrower and its Subsidiaries permitted pursuant to Section
9.04. On and as of the Initial Borrowing Date, all Indebtedness to remain
outstanding as described in the immediately preced-ing sentence shall remain
outstanding after giving effect to the Transaction and the other transactions
contemplated hereby without any breach, required repayment, required offer
to
purchase, default, event of default or termination rights existing thereunder
or
aris-ing as a result of the Transaction and the other transactions contemplated
hereby and there shall not be any amendments or modifications to either the
Second-Lien Note Documents or the documents governing any Existing Indebtedness
that are adverse to the interests of the Lenders (other than as requested or
approved by the Administrative Agent). On and as of the Initial Borrowing Date,
the Administrative Agent shall be satisfied with the amount of and the terms
and
conditions of all Indebtedness described above in this Section 5(j).
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(k) Subsidiaries
Guaranties.
On the
Initial Borrowing Date, each Subsidiary Guarantor shall have duly authorized,
executed and delivered the Subsidiaries Guaranty substantially in the form
of
Exhibit H (as amended, modified, restated and/or supplemented from time to
time,
the “Subsidiaries
Guaranty”),
guaranteeing all of the obligations of the Borrower as more fully provided
therein, and the Subsidiaries Guaranty shall be in full force and
effect.
(l) Pledge
Agreement.
On the
Initial Borrowing Date, each Credit Party shall have duly authorized, executed
and delivered the Pledge Agreement in the form of Exhibit I (as amended,
modified or supplemented from time to time, the “Pledge
Agreement”)
and
shall have delivered to the Collateral Agent, as Pledgee thereunder, all of
the
Pledge Agreement Collateral, if any, referred to therein and then owned by
such
Credit Party, (i) endorsed in blank in the case of promissory notes constituting
Pledge Agreement Collateral and (ii) together with executed and undated
endorsements for transfer in the case of certificated Equity Interests
constituting certificated Pledge Agreement Collateral, along with evidence
that
all other actions necessary or, in the reasonable opinion of the Collateral
Agent, desirable to perfect the security interests purported to be created
by
the Pledge Agreement have been taken and the Pledge Agreement shall be in full
force and effect.
(m) Security
Agreement.
On the
Initial Borrowing Date, each Credit Party shall have duly authorized, executed
and delivered the Security Agreement in the form of Exhibit J (as amended,
modified or supplemented from time to time, the “Security
Agreement”)
covering all of such Credit Party’s Security Agreement Collateral, together
with:
(i) proper
financing statements (Form UCC-1 or the equivalent) authorized for filing under
the UCC or other appropriate filing offices of each jurisdiction as may be
necessary or, in the reasonable opinion of the Collateral Agent, desirable,
to
perfect the security interests purported to be created by the Security
Agreement;
(ii) certified
copies of requests for information or copies (Form UCC-11), or equivalent
reports as of a recent date, listing all effective financing statements that
name the Borrower or any of its Subsidiaries as debtor and that are filed in
the
jurisdictions referred to in clause (i) above and in such other jurisdictions
as
the Collateral Agent may deem necessary or desirable (in its sole discretion)
to
ensure the perfection of the security interests purported to be created by
the
Security Agreement, together with copies of such other financing statements
that
name the Borrower or any of its Subsidiaries as debtor (none of which shall
cover any of the Collateral except (x) to the extent evidencing Permitted Liens
or (y) those in respect of which the Collateral Agent shall have received
termination statements (Form UCC-3) or such other termination statements as
shall be required by local law authorized for filing);
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(iii) evidence
of the completion of all other recordings and filings of, or with respect to,
the Security Agreement as may be necessary or, in the reasonable opinion of
the
Collateral Agent, desirable, to perfect the security interests intended to
be
created by the Security Agreement; and
(iv) evidence
that all other actions necessary or, in the reasonable opinion of the Collateral
Agent, desirable to perfect and protect the security interests purported to
be
created by the Security Agreement have been taken, and the Security Agreement
shall be in full force and effect.
(n) Intercreditor
Agreement.
The
Intercreditor Agreement shall be in full force and effect.
(o) Financial
Statements; etc.
On or
prior to the Initial Borrowing Date, the Administrative Agent and the Lenders
shall have received true and correct copies of the historical financial
statements and the Projections referred to in Sections 7.05(a) and (d), which
historical financial statements and Projections shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Required
Lenders.
(p) Solvency
Opinion; Insurance Certificates.
On the
Initial Borrowing Date, the Administrative Agent shall have
received:
(i) a
solvency opinion from the chief financial officer of the Borrower in the form
of
Exhibit K; and
(ii) certificates
of insurance complying with the requirements of Section 8.03 for the business
and properties of the Borrower and its Subsidiaries, in form and substance
reasonably satisfactory to the Administrative Agent.
SECTION
6. Conditions
Precedent to All Credit Events.
The obligation of each Lender to make Loans (including Loans made on the
Initial Borrowing Date and Incremental Term Loans made on any Incremental Term
Loan Borrowing Date, but excluding conversions or continuations made in
accordance with Sections 1.06 and/or 1.09) and the obligation of an Issuing
Lender to issue any Letter of Credit is subject, at the time of each such Credit
Event (except as hereinafter indicated), to the satisfaction of the following
condi-tions:
6.01 No
Default; Representations and Warranties.
At
the
time of each such Credit Event and also after giving effect thereto (i) there
shall exist no Default or Event of Default and (ii) all representations and
warran-ties con-tained herein and in each other Credit Document shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on the date of the making of such
Credit Event (it being understood and agreed that any representa-tion or
warranty which by its terms is made as of a specified date shall be required
to
be true and correct in all material respects only as of such specified
date).
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6.02 Notice
of Borrowings; Letter of Credit Request.
(a)
Prior to
the making of each Loan (other than a Swingline Loan or a Revolving Loan made
pursuant to a Mandatory Borrowing), the Administrative Agent shall have received
a Notice of Borrowing meeting the requirements of Section 1.03(a). Prior to
the
making of each Swingline Loan, the Swingline Lender shall have received the
notice referred to in Section 1.03(b)(i).
(b) Prior
to
the issuance of each Letter of Credit, the Administrative Agent and the
respective Issuing Lender shall have received a Letter of Credit Request meeting
the requirements of Section 2.03(a).
6.03 Maximum
Cash and Cash Equivalents.
With respect to Revolving Loans and Swingline Loans only, after giving effect
to
the incurrence thereof and the application of proceeds therefrom and any cash
or
Cash Equivalents on hand of the Borrower and any of its Subsidiaries (to the
extent such proceeds and/or other cash or Cash Equivalents are actually utilized
by the Borrower and/or any of its Subsidiaries on the respective date of
incurrence of such Revolving Loan or Swingline Loan for a purpose permitted
under this Agreement other than an investment in Cash Equivalents), the Borrower
and its Subsidiaries shall not hold cash or Cash Equivalents on such date of
incurrence in an aggregate amount in excess of $50,000,000.
The
acceptance of the benefits or proceeds of each Credit Event, in each case,
shall
constitute a representation and warranty by the Borrower to the Administrative
Agent and each of the Lenders that all the conditions specified in Section
5
(with respect to Credit Events occur-ring on the Initial Borrowing Date) and
in
this Section 6 (with respect to Credit Events occurring on or after the Initial
Borrowing Date) and applicable to such Credit Event exist as of that time.
All
of the Notes, certificates, legal opinions and other documents and papers
referred to in Section 5 and in this Section 6, unless otherwise specified,
shall be delivered to the Administrative Agent at the Notice Office for the
account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance reasonably satisfactory to the Administrative Agent.
SECTION
7. Representations
and Warranties.
In order to induce the Lenders to enter into this Agreement and to make
the Loans, and issue (or participate in) the Letters of Credit as provided
herein, the Borrower makes the following representations and warranties, in
each
case after giving effect to the Transaction, all of which shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans and the issuance of the Letters of Credit, with the occurrence of each
Credit Event on or after the Initial Borrowing Date being deemed to constitute
a
representation and warranty that the matters specified in this Section 7 are
true and correct in all material respects on and as of the Initial Borrowing
Date and on the date of each such other Credit Event (it being understood and
agreed that any representation or warranty which by its terms is made as of
a
specified date shall be required to be true and correct in all material respects
only as of such specified date).
7.01 Organizational
Status.
Each of the Borrower and each of its Subsidiaries (i) is a duly organized
and validly existing corporation, partnership or limited liability company,
as
the case may be, in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate, partnership or limited liability company
power and authority, as the case may be, to own its property and assets and
to
transact the business in which it is engaged and presently pro-poses to engage
and (iii) is duly qualified and is authorized to do business and is in good
standing in each jurisdiction where the ownership, leasing or operation of
its
property or the con-duct of its business requires such qualifications except
for
failures to be so qualified which, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
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7.02 Power
and Authority.
Each Credit Party has the corporate, partnership or limited liability
company power and authority, as the case may be, to execute, deliver and perform
the terms and provisions of each of the Credit Documents to which it is party
and has taken all necessary corporate, partnership or limited liability company
action, as the case may be, to authorize the execution, delivery and performance
by it of each of such Credit Documents. Each Credit Party has duly executed
and
delivered each of the Credit Documents to which it is party, and each of such
Credit Documents constitutes its legal, valid and binding obligation enforceable
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors’ rights and by
equitable principles (regardless of whether enforcement is sought in equity
or
at law).
7.03 No
Violation.
Neither the execution, delivery or performance by any Credit Party of the
Credit Documents to which it is a party, nor compliance by it with the terms
and
provisions thereof, (i) will contravene any provision of any law, statute,
rule
or regulation or any order, writ, injunction or decree of any court or
governmental instrumentality or the terms of any FCC License or other
Governmental Authorization, (ii) will violate or result in any breach of any
of
the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to create
or impose) any Lien (except pursuant to the Security Documents and the
Second-Lien Security Documents) upon any of the property or assets of any Credit
Party or any of its Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, credit agreement or loan agreement, or any other
material agreement, contract or instrument, in each case to which any Credit
Party or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it may be subject, or (iii) will violate
any provision of the certificate or articles of incorporation, certificate
of
formation, limited liability company agreement or by-laws (or equivalent
organizational documents), as applicable, of any Credit Party or any of its
Subsidiaries.
7.04 Approvals.
Except (x) as may have been obtained or made on or prior to the Initial
Borrowing Date and which remain in full force and effect on the Initial
Borrowing Date and (y) for filings which are necessary to perfect the security
interests created under the Security Documents, which filings shall have been
made (or will be made within ten days of the Initial Borrowing Date, no order,
consent, approval, license, authorization or validation of, or filing, recording
or registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to be obtained or made by,
or
on behalf of, any Credit Party to authorize, or is required to be obtained
or
made by, or on behalf of, any Credit Party in connection with, (i) the
execution, delivery and performance of any Credit Document or (ii) the legality,
validity, binding effect or enforceability of any such Credit
Document.
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7.05 Financial
Statements; Financial Condition; Undisclosed Liabilities;
Projections.
(a)
The
consolidated balance sheet of the Borrower and its subsidiaries as at December
31, 2005 and the related consolidated statements of operations, cash flows
and
changes in stockholders’ equity of the Borrower for the fiscal year ended
December 31, 2005, and the consolidated balance sheet and the related
consolidated statements of operations and cash flows for the three-month period
ended March 31, 2006, in each case copies of which have been furnished to the
Lenders prior to the Initial Borrowing Date, present fairly in all material
respects the consolidated financial position of the Borrower at the dates of
such balance sheets and the consolidated results of the operations of the
Borrower for the periods covered thereby in accordance with GAAP consistently
applied (except, in the case of the aforementioned quarterly financial
statements, for normal year-end audit adjustments and the absence of
footnotes).
(b) On
and as
of the Initial Borrowing Date and after giving effect to the Transaction and
to
all Indebtedness being incurred or assumed and Liens created by the Credit
Parties in connection therewith, (i) the sum of the assets, at a fair valuation,
of the Borrower on a stand-alone basis and of the Borrower and its Subsidiaries
taken as a whole will exceed their respective debts, (ii) each of the Borrower
on a stand-alone basis and the Borrower and its Subsidiaries taken as a whole
have not incurred and do not intend to incur, and do not believe that they
will
incur, debts beyond their respective ability to pay such debts as such debts
mature, and (iii) the Borrower on a stand-alone basis and the Borrower and
its Subsidiaries taken as a whole will have sufficient capital with which to
conduct their respective businesses. For purposes of this Section 7.05(b),
“debt” means any liability on a claim, and “claim” means (a) right to payment,
whether or not such a right is reduced to judg-ment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured or (b) right to an equit-able remedy for breach of
perform-ance if such breach gives rise to a payment, whether or not such right
to an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, dis-puted, undisputed, secured or unsecured. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light
of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.
(c) Except
as
disclosed in the financial statements described in Section 7.05(a) there were
as
of the Initial Borrowing Date no liabilities or obligations with respect to
the
Borrower or any of its Subsidiaries of a nature required to be disclosed in
such
financial statements (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in the aggregate, could
reasonably be expected to be material to the Borrower or any of its
Subsidiaries. As of the Initial Borrowing Date, the Borrower knows of no basis
for the asser-tion against it or any of its Subsidiaries of any liability or
obligation of any nature whatsoever that is not disclosed in the financial
statements described in Section 7.05(a) which, either individually or in the
aggregate, could reasonably be expected to be material to the Borrower or any
of
its Subsidiaries.
(d) The
Projections delivered to the Administrative Agent and the Lenders on or prior
to
the Initial Borrowing Date have been prepared in good faith and are based on
reasonable assumptions, and there are no statements or conclusions in the
Projections which are based upon or include information known to the Borrower
to
be misleading in any material respect or which fail to take into account
material information known to the Borrower regarding the matters reported
therein. On the Initial Borrowing Date, the Borrower believes that the
Projections are reasonable and attainable, it being recognized by the Lenders,
how-ever, that projections as to future events are not to be viewed as facts
and
that the actual results during the period or periods covered by the Projections
may differ from the projected results and such differences may be material.
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(e) Since
December 31, 2005, there have been no changes, events and/or occurrences that
have had, or could reasonably be expected to have, either individually or in
the
aggregate, a Material Adverse Effect.
7.06 Litigation.
There are no actions, suits or proceedings pending or, to the knowledge of
the Borrower, threatened (i) with respect to the Transaction or any Document
or
(ii) that could reasonably be expected, either individually or in the aggregate,
to have a Material Adverse Effect.
7.07 True
and Complete Disclosure.
All factual information (taken as a whole) furnished by or on behalf of the
Borrower in writing to the Administrative Agent or any Lender (including,
without limitation, all information contained in the Credit Documents) for
purposes of or in connection with this Agreement, the other Credit Documents
or
any transaction contem-plated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of the
Borrower in writing to the Administrative Agent or any Lender will be, true
and
accurate in all material respects on the date as of which such information
is
dated or certified and not incomplete by omitting to state any fact necessary
to
make such information (taken as a whole) not misleading in any material respect
at such time in light of the circumstances under which such information was
provided.
7.08 Use
of
Proceeds; Margin Regulations.
(a)
All
proceeds of the Initial Term Loans will be used by the Borrower to finance
the
Transaction and to pay the fees and expenses relating to the
Transaction.
(b) All
proceeds of the Incremental Term Loans, Revolving Loans and the Swingline Loans
will be used for the working capital and general corporate purposes of the
Borrower and its Subsidiaries (including to finance Permitted Acquisitions
and
to pay fees and expenses incurred in connection therewith but excluding to
pay
Dividends permitted under Sections 9.03(iv) or (v)).
(c) No
part
of any Credit Event (or the proceeds thereof) will be used to purchase or carry
any Margin Stock or to extend credit for the purpose of purchasing or carrying
any Margin Stock. Neither the making of any Loan or the issuance of any Letter
of Credit, nor the use of the proceeds thereof nor the occurrence of any other
Credit Event will violate or be inconsistent with the provisions of Regulation
T, U or X of the Board of Governors of the Federal Reserve System.
7.09 Tax
Returns and Payments.
Each of the Borrower and each of its Subsidiaries has timely filed or
caused to be timely filed with the appropriate taxing authority all federal
income tax and other material returns, statements, forms and reports for taxes
(the “Returns”)
required to be filed by, or with respect to the income, properties or operations
of, the Borrower and/or any of its Subsidiaries. The Returns accurately reflect
in all material respects all liability for taxes of the Borrower and its
Subsidiaries for the periods covered thereby. Each of the Borrower and each
of
its Subsidiaries has paid all taxes and assessments payable by it which have
become due, other than (i) those that are immaterial and (ii) those being
contested in good faith and adequately disclosed and fully provided for on
the
financial state-ments of the Borrower and its Subsidiaries in accordance with
GAAP. Except as set forth on Schedule 7.09, there is no action, suit,
proceeding, investi-ga-tion, audit or claim now pend-ing or, to the best
knowledge of the Borrower, threatened by any authority regard-ing any taxes
relating to the Borrower or any of its Subsidiaries. Except as provided in
Schedule 7.09, as of the Initial Borrowing Date, neither the Borrower nor any
of
its Subsidiaries has entered into an agreement or waiver or been requested
to
enter into an agreement or waiver extending any statute of limitations relating
to the payment or collection of taxes of the Borrower or any of its
Subsidiaries, or is aware of any circumstances that would cause the taxable
years or other taxable periods of the Borrower or any of its Subsidiaries not
to
be subject to the normally applicable statute of limitations. Neither the
Borrower nor any of its Subsidiaries has incurred, nor will any of them incur,
any material tax liability in connection with the Transaction or any other
transactions contemplated hereby (it being understood that the representation
contained in this sentence does not cover any future tax liabilities of the
Borrower or any of its Subsidiaries arising as a result of the operation of
their businesses in the ordinary course of business).
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7.10 Compliance
with ERISA.
Schedule 7.10 sets forth, as of the Initial Borrow-ing Date, the name of
each Plan. Each Plan (and each related trust) is in substantial compliance
with
its terms and with all applicable laws, including, without limitation, ERISA
and
the Code; each Plan (and each related trust, if any) which is intended to be
qualified under Section 401(a) of the Code has received or timely applied for
a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Sections 401(a) and 501(a) of the Code covering all
tax law changes prior to the Economic Growth and Tax Relief Reconciliation
Act
of 2001 or is comprised of a master or prototype plan that has received a
favorable opinion letter from the Internal Revenue Service on which the Borrower
is entitled to rely; neither the Borrower nor any of its Subsidiaries or ERISA
Affiliates has ever maintained or contributed to, or had any obligation to
maintain or contribute to (or borne any liability with respect to) any “employee
pension benefit plan,” within the meaning of Section 3(2) of ERISA, that is a
“multiemployer plan,” within the meaning of Section 3(37) of ERISA, or that is
subject to the minimum funding standards of Section 412 of the Code or Section
302 of ERISA or subject to Title IV of ERISA; neither the Borrower nor any
of
its Subsidiaries or ERISA Affiliates has any obligation to maintain or
contribute to (or borne any liability with respect to) any Foreign Pension
Plan;
all contributions required to be made with respect to a Plan have been timely
made; neither the Borrower nor any Subsidiary of the Borrower nor any ERISA
Affiliate has incurred any material liability (including any indirect,
contingent or secondary liability) to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 515, 4204 or 4212 of ERISA or Section 4975 of
the
Code or expects to incur any such liabil-ity under any of the foregoing sections
with respect to any Plan; no condition exists which presents a material risk
to
the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate of
incur-ring a liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; no action, suit, proceeding, hearing, audit
or
investigation with respect to the administration, operation or the investment
of
assets of any Plan (other than routine claims for benefits) is pending, expected
or, to the knowledge of the Borrower, threatened; each group health plan (as
defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) which
covers or has covered employees or former employees of the Borrower, any
Subsidiary of the Borrower, or any ERISA Affiliate has at all times been
operated in compliance with the provisions of Part 6 of subtitle B of Title
I of
ERISA and Section 4980B of the Code, except to the extent that any failure
to
comply could not reasonably be expected to result in a material liability to
the
Borrower or any Subsidiary of the Borrower; each group health plan (as defined
in 45 Code of Federal Regulations Section 160.103) which covers or has covered
employees or former employees of the Borrower, any Subsidiary of the Borrower,
or any ERISA Affiliate has at all times been operated in compliance with the
provisions of the Health Insurance Portability and Accountability Act of 1996
and the regulations promulgated thereunder, except to the extent that any
failure to comply could not reasonably be expected to result in a material
liability to the Borrower or any Subsidiary of the Borrower; no lien imposed
under the Code or ERISA on the assets of the Borrower or any Subsidiary of
the
Borrower or any ERISA Affiliate exists or is likely to arise on account of
any
Plan; and the Borrower and its Subsidiaries may cease contributions to or
terminate any employee benefit plan maintained by any of them without incurring
any material liability.
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7.11 The
Security Documents.
(a)
The
provisions of the Security Agreement are effective to create in favor of the
Collateral Agent for the benefit of the Secured Creditors a legal, valid and
enforceable security interest in all right, title and interest of the Credit
Parties in the Security Agreement Collateral described therein, and the
Collateral Agent, for the benefit of the Secured Creditors, has (or will have
within ten days of the Initial Borrowing Date) a fully perfected security
interest in all right, title and interest in all of the Security Agreement
Collateral described therein to the extent a security interest therein can
be
perfected by filing or possession, subject to no other Liens other than
Permitted Liens. Following the recordation of (x) the Grant of Security Interest
in U.S. Patents, if applicable, and (y) the Grant of Security Interest in
U.S. Trademarks, if applicable, in the respective forms attached to the Security
Agreement, in each case in the United States Patent and Trademark Office,
together with filings on Form UCC-1 made pursuant to the Security Agreement,
the
Collateral Agent for the benefit of the Secured Creditors will have, as may
be
perfected by such filings and recordation, a perfected security interest in
the
United States trademarks and patents covered by the Security Agreement, and
following the recordation of the Grant of Security Interest in U.S. Copyrights,
if applicable, in the form attached to the Security Agreement with the United
States Copyright Office, together with filings on Form UCC-1 made pursuant
to
the Security Agreement, the Collateral Agent for the benefit of the Secured
Creditors will have, as may be perfected by such filings and recordation, a
perfected security interest in the United States copyrights covered by the
Security Agreement.
(b) The
security interests created under the Pledge Agreement in favor of the Collateral
Agent, as Pledgee, for the benefit of the Secured Creditors, constitute
perfected security interests in the Pledge Agreement Collateral described in
the
Pledge Agreement, subject to no security interests of any other Person. No
filings or recordings are required in order to perfect (or maintain the
perfection or priority of) the security interests created in the Pledge
Agreement Collateral under the Pledge Agreement other than with respect to
that
portion of the Pledge Agreement Collateral constituting a “general intangible”
under the UCC.
(c) After
the
execution and delivery thereof, each Mortgage creates, as security for the
obligations purported to be secured thereby, a valid and enforceable perfected
security interest in and mortgage lien on the respective Mortgaged Property
in
favor of the Collateral Agent (or such other trustee as may be required or
desired under local law) for the benefit of the Secured Creditors, superior
and
prior to the rights of all third Persons (except that the security interest
and
mortgage lien created on such Mortgaged Property may be subject to the Permitted
Encumbrances related thereto) and subject to no other Liens (other than
Permitted Liens related thereto).
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7.12 Real
Property.
All Real Property having a Fair Market Value, as reasonably estimated by
the Borrower, in excess of $5,000,000 that is owned by the Borrower or any
of
its Subsidiaries as of the Initial Borrowing Date, and the nature of the
interest therein, is correctly set forth in Schedule 7.12. Each of the
Borrower and each of its Subsidiaries has good and indefeasible title to all
material properties owned by it, including all Real Property set forth on
Schedule 7.12 and all other material property reflected in the most recent
historical balance sheets referred to in Section 7.05(a) (except as sold or
otherwise disposed of since the date of such balance sheet in the ordinary
course of business or as permitted by the terms of this Agreement), free and
clear of all Liens, other than Permitted Liens.
7.13 Capitalization.
On
the
Initial Borrowing Date, the authorized capital stock of the Borrower consists
of
100,000,000 shares of common stock, $0.01 par value, of which 36,825,956 shares
were issued and outstanding on March 31, 2006. All outstanding shares of capital
stock of the Borrower have been duly and validly issued and are fully paid
and
non-assessable.
7.14 Subsidiaries.
On and as of the Initial Borrowing Date and after giving effect to the
Transaction, the Borrower has no Subsidiaries other than those Subsidiaries
listed on Schedule 7.14. Schedule 7.14 correctly sets forth, as of the Initial
Borrowing Date and after giving effect to the Transaction, (i) the percentage
ownership (direct and indirect) of the Borrower in each class of Equity
Interests of each of its Subsidiaries and also identifies the direct owner
thereof and (ii) the jurisdiction of organization of each such Subsidiary.
All
outstanding shares of capital stock or other Equity Interests of each Subsidiary
have been duly and validly issued, are fully paid and non-assessable and have
been issued free of preemptive rights. On the Initial Borrowing Date and after
giving effect to the Transaction, except as set forth on Schedule 7.14, no
Subsidiary of the Borrower has outstanding any securities convert-ible into
or
exchangeable for its Equity Interests or outstanding any right to subscribe
for
or to purchase, or any options or warrants for the purchase of, or any
agree-ment providing for the issuance (contingent or otherwise) of or any calls,
commitments or claims of any character relating to, its Equity Interests or
any
stock appreciation or similar rights.
7.15 Compliance
with Statutes, etc.. Each
of the Borrower and each of its Subsidiaries is in compliance with all
applicable laws, statutes, regulations and orders of, and all applicable
restric-tions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business, the holding of the FCC Licenses and
the
other Governmental Authorizations and the ownership of its property (including,
without limitation, applicable statutes, regu-la-tions, orders and restrictions
relating to environmental standards and controls), except such noncompliances
as
could not, either individually or in the aggregate, reasonably be expected
to
have a Material Adverse Effect.
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7.16 Investment
Company Act.
Neither the Borrower nor any of its Subsidiaries is an “investment
company” or a company “controlled” by an “investment company,” within the
meaning of the Investment Company Act of 1940, as amended.
7.17 [Intentionally
Omitted].
7.18 Environmental
Matters.
(a)
Each of
the Borrower and each of its Subsidiaries is in compliance with all applicable
Environmental Laws and the requirements of any permits issued under such
Environmental Laws. There are no pending or, to the knowledge of the Borrower,
threatened Environmental Claims against the Borrower or any of its Subsidiaries
or any Real Property owned, leased or operated by the Borrower or any of its
Subsidiaries (including, to the Borrower’s knowledge, any such claim arising out
of the ownership, lease or operation by the Borrower or any of its Subsidiaries
of any Real Property formerly owned, leased or operated by the Borrower or
any
of its Subsidiaries but no longer owned, leased or operated by the Borrower
or
any of its Subsidiaries). There are no facts, circumstances, conditions or
occurrences with respect to the business or operations of the Borrower or any
of
its Subsidiaries, or any Real Property owned, leased or operated by the Borrower
or any of its Subsidiaries (including, to the Borrower’s knowledge, any Real
Property formerly owned, leased or operated by the Borrower or any of its
Subsidiaries but no longer owned, leased or operated by the Borrower or any
of
its Subsidiaries) or, to the knowledge of the Borrower, any property adjoining
or adjacent to any such Real Property that could be reasonably expected (i)
to
form the basis of an Environmental Claim against the Borrower or any of its
Subsidiaries or any Real Property owned, leased or operated by the Borrower
or
any of its Subsidiaries or (ii) to cause any Real Property owned, leased or
operated by the Borrower or any of its Subsidiaries to be subject to any
restric-tions on the ownership, lease, occupancy or trans-ferability of such
Real Property by the Borrower or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous
Materials have not at any time been generated, used, treated or stored on,
or
transported to or from, or Released on or from, any Real Property owned, leased
or operated by the Borrower or any of its Subsidiaries or, to the knowledge
of
the Borrower, any property adjoining or adjacent to any Real Property, where
such generation, use, treatment, storage, transportation or Release has violated
or could be reasonably expected to violate any applicable Environmental Law
or
give rise to an Environmental Claim.
(c) Notwithstanding
anything to the contrary in this Section 7.18, the represen-tations and
warranties made in this Section 7.18 shall be untrue only if the effect of
any
or all conditions, violations, claims, restrictions, failures and noncompliances
of the types described above could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
7.19 Labor
Relations.
Neither the Borrower nor any of its Subsidiaries is engaged in any unfair
labor practice that could reasonably be expected, either individually or in
the
aggre-gate, to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint pending against the Borrower or any of its Subsidiaries
or,
to the knowledge of the Borrower, threatened against any of them, before the
National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Borrower or any of its Subsidiaries or, to the knowledge of the
Borrower, threatened against any of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against the Borrower or any of its Subsidiaries
or,
to the knowledge of the Borrower, threatened against the Borrower or any of
its
Subsidiaries and (iii) no union representation question that exists with
respect to the employees of the Borrower or any of its Subsidiaries, except
(with respect to any matter specified in clause (i), (ii) or (iii) above, either
individually or in the aggregate) such as could not reasonably be expected
to
have a Material Adverse Effect.
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7.20 Intellectual
Property, etc. Each
of
the Borrower and each of its Subsidiaries owns or has the right to use all
the
patents, trademarks, permits, domain names, service marks, trade names,
copyrights, licenses, franchises, inventions, trade secrets, proprietary
information and know-how of any type, whether or not written (including, but
not
limited to, rights in computer programs and databases) and formulas, or rights
with respect to the foregoing, necessary for the conduct of its business (the
“Business
Intellectual Property”)
without any known conflict with the rights of others arising from the Borrower’s
or its Subsidiaries’ use of the Business Intellectual Property which, or the
failure to obtain which, as the case may be, could reasonably be expected,
either individually or in the aggregate, to have a Material Adverse
Effect.
7.21 Indebtedness.
Schedule 7.21 sets forth a true and complete list of all Indebtedness
(including Contingent Obligations in respect of Indebtedness) of the Borrower
and its Subsidiaries as of the Initial Borrowing Date (excluding the Loans,
the
Letters of Credit and the Indebtedness incurred pursuant to the Second-Lien
Note
Indenture) (the “Existing
Indebtedness”)
which
is to remain outstanding after giving effect to the Transaction, in each case
showing the aggregate principal amount thereof and the name of the respective
borrower and any Credit Party or any of its Subsidiaries which directly or
indirectly guarantees such Indebtedness.
7.22 Insurance.
Schedule 7.22 sets forth a true and complete listing of all insurance
maintained by the Borrower and its Subsidiaries as of the Initial Borrowing
Date, with the amounts insured (and any deductibles) set forth
therein.
7.23 FCC
Licenses and Other Governmental Authorizations.
(a)
The
Borrower and its Subsidiaries hold all FCC licenses, registrations and
authorizations as are necessary to the Borrower’s and its Subsidiaries’
businesses (collectively, the “FCC
Licenses”).
Each
of the FCC Licenses that is material to the business of the Borrower or any
of
its Subsidiaries has been validly issued and is in full force and effect. All
FCC Licenses in effect on the Initial Borrowing Date and their respective
expiration dates are listed and described on Schedule 7.23(a). The Borrower
has
no knowledge of any condition imposed by the FCC as part of any FCC License
which is neither set forth on the face thereof as issued by the FCC nor
contained in the policies, rules and regulations of the FCC applicable generally
to business of the type, nature, class or location of the Borrower and its
Subsidiaries. The Borrower and its Subsidiaries are in compliance with the
terms
and conditions of the FCC Licenses applicable to it and with applicable
policies, rules and regulations of the FCC and the Communications Act of 1934,
as amended (the “Communications
Act”)
except
to the extent that any failure to comply could not reasonably be expected to
result in a Material Adverse Effect. No proceedings are pending or are, to
the
knowledge of the Borrower, threatened which may reasonably be expected to result
in the revocation, rescission, modification, non-renewal or suspension of any
FCC License, the denial of any pending applications, the issuance of any cease
and desist order or the imposition of any fines, forfeitures or other
administrative actions by the FCC with respect to the Borrower or any of its
Subsidiaries that would, if such proceedings were decided adversely to the
Borrower or the Subsidiaries, have a Material Adverse Effect. All material
reports, applications, tariffs and other documents required to be filed by
the
Borrower or any of its Subsidiaries, as appropriate, with the FCC have in all
material respects been timely filed and all such reports, applications, tariffs
and documents are true, correct and complete in all material respects. To the
knowledge of the Borrower, there are no unsatisfied or otherwise outstanding
citations, complaint proceedings, notices of liability or notices of forfeiture
issued by the FCC and received by the Borrower or a Subsidiary thereof with
respect to the Borrower or any of its Subsidiaries or any of their respective
operations.
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(b) In
addition to the FCC Licenses issued by the FCC, the Borrower and its
Subsidiaries hold all material licenses, certificates, registrations and
authorizations issued by any other governmental entity (domestic and foreign)
necessary to operate their respective businesses for each line of business
of
the Borrower or any of its Subsidiaries requiring such authorization and in
each
jurisdiction in which Borrower or any of its Subsidiaries may be deemed to
be
conducting their respective businesses under applicable law (collectively,
the
“Governmental
Authorizations”).
Each
Governmental Author-ization has been validly issued and is in full force and
effect. The Governmental Authorizations as of the Initial Borrowing Date are
listed on Schedule 7.23(b), with any expiration date for any such authorization
identified on Schedule 7.23(b), with authorizations issued by state public
service or utility commissions (or analogous state authorities) listed in Part
A
of Schedule 7.23(b) and other Governmental Authorizations listed in Part B
of
Schedule 7.23(b). None of the Governmental Authorizations contain any conditions
or limitations outside the normal course that would materially and adversely
restrict the operations of the Borrower or any of its Subsidiaries. The Borrower
and its Subsidiaries have been and are in compliance in all respects with the
terms and conditions of the Governmental Authorizations applicable to them,
except to the extent that any failure to comply would not result in a Material
Adverse Effect. Other than the proceedings of a general nature, no proceedings
are pending or are, to the knowledge of the Borrower, threatened, and, to the
Borrower’s knowledge, no event has occurred, which may reasonably be expected to
result in the revocation, rescission, adverse modification, non-renewal or
suspension of any Governmental Authorization that is material to the business
of
the Borrower or any of its Subsidiaries, the denial of any pending applications
therefor, the issuance of any cease and desist order, or the imposition of
any
material fines, forfeitures, or other administrative actions by a governmental
entity. All material reports, applications, tariffs and other documents required
to be filed by the Borrower or any of its Subsidiaries, as appropriate, with
the
governmental entity issuing a Government Authorization have in all material
respects been timely filed, and all such reports, applications, tariffs and
documents are true, correct and complete in all material respects. To the
knowledge of the Borrower, there are no material unsatisfied or otherwise
outstanding citations issued by any governmental entity and received by the
Borrower or a Subsidiary thereof with respect to the Borrower or any of its
Subsidiaries. Part C of Schedule 7.23(b) separately lists all pending
applications for certificates or other authorizations from any state public
service or utility commission (or analogous state authority).
(c) The
transactions contemplated herein, under applicable law (including the
Communications Act) and the applicable policies, rules, regulations and
practices of the FCC and other governmental entities, would not disqualify
the
Borrower or any of its Subsidiaries as an assignee or transferee of the FCC
Licenses or the Governmental Authorizations or result in the imposition of
any
materially adverse condition on or modification of the FCC Licenses or the
Governmental Authorizations.
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7.24 Intercreditor
Agreement; Status of Credit Agreement.
(a)
Assuming
that the Intercreditor Agreement has been duly authorized, executed and
delivered by the parties thereto (other than the Borrower and its Subsidiaries),
the Intercreditor Agreement is enforceable against the parties thereto (and
the
Creditors as defined therein) in accordance with its terms.
(b) This
Agreement constitutes the “First-Lien Credit Agreement” under (and as defined
in) the Intercreditor Agreement. This Agreement and the other Credit Documents
constitute the “First-Lien Credit Documents” under (and as defined in) the
Intercreditor Agreement and the Obligations hereunder and under the other Credit
Documents constitute “First-Lien Obligations” under (and as defined in) the
Intercreditor Agreement and are entitled to the benefits of such status pursuant
to the terms and conditions of the Intercreditor Agreement.
7.25 Certain
Agreements.
(a)
Neither
the Borrower nor any of its Subsidiaries is a party to any agreement or
instrument or subject to any corporate, partnership or limited liability company
restriction, as the case may be, that, either individually or in the aggregate,
has resulted or could reasonably be expected to result in a Material Adverse
Effect.
(b) Neither
the Borrower nor any of its Subsidiaries is in default in any manner under
any
provision of any indenture or other agreement or instrument evidencing
Indebtedness, or any other material agreement or instrument to which it is
a
party or by which it or any of its properties or assets are or may be bound,
if
such default, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
7.26
RCN
International.
RCN International is a Delaware corporation which has no significant
assets or material liabilities.
7.27 No
Default or Event of Default Under the Existing Credit Agreement.
Except
as
set forth on Schedule 7.27, on the Initial Borrowing Date (immediately prior
to
giving effect to the Transaction) no Default or Event of Default exists under
the Existing First-Lien Credit Agreement.
SECTION
8. Affirmative
Covenants.
The Borrower hereby covenants and agrees that on and after the Effective
Date and until the Total Commitment and all Letters of Credit have terminated
and the Loans, Notes and Unpaid Drawings (in each case together with interest
thereon), Fees and all other Obligations (other than indemnities described
in
Section 13.13 which are not then due and payable) incurred hereunder and
thereunder, are paid in full:
8.01 Information
Covenants.
The Borrower will furnish to each Lender:
(a) Quarterly
Financial Statements.
Within
45 days after the close of each of the first three quarterly accounting periods
in each fiscal year of the Borrower (i) the consolidated balance sheet of the
Borrower and
its
Subsidiaries as at the end of such quarterly accounting period and the related
consolidated statements of operations and cash flows for such quarterly
accounting period and for the elapsed portion of the fiscal year ended with
the
last day of such quarterly accounting period, in each case setting forth
comparative figures for the corresponding periods in the prior fiscal year,
all
of which shall be certified by an Authorized Representative of the Borrower
that
they fairly present in all material respects in accordance with GAAP the
financial condition of the Borrower and its Subsidiaries as of the dates
indicated and the results of their operations for the periods indicated, subject
to normal year-end audit adjustments and the absence of footnotes, and (ii)
management’s discussion and analysis of the important operational and financial
developments during such quarterly accounting period, in each case without
any
material qualifications with respect thereto. Notwithstanding the foregoing,
in
the event that the Borrower delivers to the Administrative Agent a Quarterly
Report for the Borrower on Form 10-Q for such fiscal quarter, as filed with
the
SEC, within 45 days after the end of such fiscal quarter, such Form 10-Q shall
satisfy all requirements of this clause (a). For the purposes of the immediately
preceding sentence, posting of any such Quarterly Report on the SEC’s website,
xxx.xxx.xxx, within the time period otherwise required in such sentence for
the
delivery of such Quarterly Report shall constitute delivery of same to the
Administrative Agent.
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(b) Annual
Financial Statements.
Within
90 days after the close of each fiscal year of the Borrower, (i) the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of
such fiscal year and the related consolidated statements of operations, cash
flows and changes in stockholders’ equity for such fiscal year setting forth
comparative figures for the preceding fiscal year and certified (without any
“going concern” or other qualification or exception) by an independent certified
public accountant of recognized standing, and (ii) management’s discussion and
analysis of the important operational and financial developments during such
fiscal year. Notwithstanding the foregoing, in the event that the Borrower
delivers to the Administrative Agent an Annual Report for the Borrower on Form
10-K for such fiscal year, as filed with the SEC, within 90 days after the
end
of such fiscal year, such Form 10-K shall satisfy all requirements of this
clause (b) so long as the certified public accountants’ opinion included in such
Form 10-K satisfies the requirements with respect thereto set forth in the
immediately preceding sentence. For the purposes of the immediately preceding
sentence, posting of any such Annual Report on the SEC’s website, xxx.xxx.xxx,
within the time period otherwise required in such sentence for the delivery
of
such Annual Report shall constitute delivery of same to the Administrative
Agent.
(c) Unrestricted
Subsidiaries.
If the
Borrower has designated any Unrestricted Subsidiaries hereunder, then within
15
days after the delivery of the financial statements described in Sections
8.01(a) and 8.01(b), a reasonably detailed presentation, either in the face
of
the financial statements delivered pursuant to such Sections or in footnotes
thereto and in management’s discussion and analysis of operational and financial
developments, of the financial condition and results of operations of the
Borrower and its Subsidiaries separate from the financial condition and results
of operations of the Unrestricted Subsidiaries of the Borrower.
(d)
Management
Letters.
Promptly after the Borrower’s or any of its Subsidiaries receipt thereof, a copy
of any “management letter” received from its certified public accountants and
management’s response thereto.
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(e)
Budgets;
Annual Opinions Regarding Security Interests.
(i)
Commencing with the fiscal year of the Borrower commencing January 1, 2007,
no
later than 30 days following the first day of each fiscal year of the Borrower,
a budget in form reasonably satisfactory to the Administrative Agent (including
bud-geted statements of operations, cash flows statements and balance sheets
for
the Borrower and its Subsidiaries on a consolidated basis) (A) for each of
the
four quarters of such fiscal year prepared in detail and (B) for the immediately
succeeding fiscal year prepared in summary quarterly form, in each case setting
forth, with appro-priate discussion, the principal assumptions upon which such
budget is based.
(ii)
The
Borrower shall deliver an opinion of counsel covering the security interests
granted pursuant to the Security Documents (in substantially the same form,
and
from the same counsel, required by the Second-Lien Note Indenture, but covering
the Security Documents and the security interests created pursuant thereto
rather than the security documents constituting Second-Lien Note Documents)
contemporaneously with the delivery of any similar opinion to the trustee under
the Second-Lien Note Indenture pursuant to Section 4.4 thereof so long as such
an opinion is required to be delivered pursuant to the Second-Lien Note
Indenture or any related document.
(f) Officer’s
Certificates.
At the
time of the delivery of the financial statements provided for in Sections
8.01(a) and (b), a compliance certificate from the chief financial officer
of
the Borrower in the form of Exhibit L certifying on behalf of the Borrower
that,
to such officer’s knowledge after due inquiry, no Default or Event of Default
has occurred and is continuing or, if any Default or Event of Default has
occurred and is continuing, specifying the nature and extent thereof, which
certificate shall (i) set forth in reasonable detail the calculations required
to establish whether the Borrower and its Subsidiaries were in compliance with
the provisions of Sections 4.02 (d), 4.02(e), 4.02(f), 9.01(x), 9.01(xii),
9.01(xvii), 9.02(iv), 9.02(xvi), 9.03, 9.04, 9.05(v), 9.05(xi), 9.05(xii) and
the Financial Covenants, in each case, at the end of such fiscal quarter or
year, as the case may be, (ii) if delivered with the financial statements
required by Section 8.01(b), set forth in reasonable detail (and the
calculations required to establish) the amount of Excess Cash Flow and the
Applicable ECF Percentage for the respective Excess Cash Payment Period, and
(iii) certify either that (A) there have been no changes to Annexes C through
F,
and Annexes I through K, in each case of the Security Agreement, and Annexes
A
through F of the Pledge Agreement, in each case since the Initial Borrowing
Date
or, if later, since the date of the most recent certificate delivered pursuant
to this Section 8.01(f), or (B) if there have been any such changes, a list in
reasonable detail of such changes, and whether the Borrower and the other Credit
Parties have otherwise taken all actions required to be taken by them pursuant
to such Security Documents in connection with any such changes.
(g) Notice
of Default, Litigation and Material Adverse Effect.
Promptly, and in any event within three Business Days after any officer of
the
Borrower or any of its Subsidiaries obtains knowledge thereof, notice of (i)
the
occur-rence of any event which constitutes a Default or an Event of Default,
(ii) any litigation or governmental investi-ga-tion or proceeding pend-ing
against the Borrower or any of its Subsidiaries (or any material development
in
any such litigation or investigation) (x) which, either individually or in
the
aggre-gate, could reasonably be expected to have a Material Adverse Effect
or
(y) with respect to any Document, or (iii) any other event, change or
circum-stance that has had, or could reasonably be expected to have, a Material
Adverse Effect.
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(h) Other
Reports and Filings.
Promptly after the filing or delivery thereof, copies of all financial
information, proxy materials and reports, if any, which the Borrower or any
of
its Subsidiaries shall publicly file with the Securities and Exchange Commission
or any successor thereto (the “SEC”)
or
deliver to holders (or any trustee, agent or other representative therefor)
of
its material Indebtedness (including the Second-Lien Note Indenture) pursuant
to
the terms of the documentation governing such Indebtedness.
(i) Environmental
Matters.
Promptly after any officer of the Borrower or any of its Subsidiaries obtains
knowledge thereof, notice of one or more of the following environmental matters
to the extent that such environmental matters, either individually or when
aggregated with all other such environmental matters, could reasonably be
expected to have a Material Adverse Effect:
(i) any
pending or threatened Environmental Claim against the Borrower or any of its
Subsidiaries or any Real Property owned, leased or operated by the Borrower
or
any of its Subsidiaries;
(ii) any
condition or occurrence on or arising from any Real Property owned, leased
or
operated by the Borrower or any of its Subsidiaries that (a) results in
noncompliance by the Borrower or any of its Subsidiaries with any applicable
Environmental Law or (b) could reasonably be expected to form the basis of
an
Environmental Claim against the Borrower or any of its Subsidiaries or any
such
Real Property;
(iii) any
condition or occurrence on any Real Property owned, leased or operated by the
Borrower or any of its Subsidiaries that could reasonably be expected to cause
such Real Property to be subject to any restrictions on the ownership, lease,
occupancy, use or transferability by the Borrower or any of its Subsidiaries
of
such Real Property under any Environmental Law; and
(iv) the
taking of any removal or remedial action in response to the actual or alleged
presence of any Hazardous Material on any Real Property owned, leased or
oper-ated by the Borrower or any of its Subsidiaries as required by any
Environmental Law or any governmental or other administrative agency;
provided
that in
any event the Borrower shall deliver to each Lender all notices received by
the
Borrower or any of its Subsidiaries from any government or governmental agency
under, or pursuant to, CERCLA which identify the Borrower or any of its
Subsidiaries as potentially responsible parties for remediation costs or which
otherwise notify the Borrower or any of its Subsidiaries of potential liability
under CERCLA.
All
such
notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower’s or such Subsidiary’s response thereto.
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(j) Debt
Rating.
Promptly upon, and in any event within three Business Days after, any Authorized
Officer of the Borrower obtains knowledge of any change by Xxxxx’x in the Debt
Rating, notice of such change.
(k) Other
Information.
From
time to time, such other information or documents (financial or otherwise)
with
respect to the Borrower or any of its Subsidiaries as the Administrative Agent
or any Lender (through the Administrative Agent) may reasonably
request.
8.02 Books,
Records and Inspections; Annual Meetings.
(a)
The
Borrower will, and will cause each of its Subsidiaries to, keep proper books
of
record and accounts in which full, true and correct entries in conformity with
GAAP and all require-ments of law shall be made of all dealings and transactions
in relation to its business and activities. The Borrower will, and will cause
each of its Subsidiaries to, permit officers and designated representa-tives
of
the Administrative Agent or any Lender to visit and inspect, under guidance
of
officers of the Borrower or such Subsidiary, any of the properties of the
Borrower or such Subsidiary, and to examine the books of account of the Borrower
or such Subsidiary and discuss the affairs, finances and accounts of the
Borrower or such Subsidiary with, and be advised as to the same by, its and
their officers and independent accountants, all upon reasonable prior notice
and
at such reasonable times and inter-vals and to such reasonable extent as the
Administrative Agent or any such Lender may reasonably request; provided
that
unless an Event of Default shall have occurred and be continuing, such visit
and
inspection by any Lender shall occur no more than one time per year.
(b) At
a date
to be mutually agreed upon between the Administrative Agent and the Borrower
occurring on or prior to the 120th day after the close of each fiscal year
of
the Borrower, the Borrower will, at the request of the Administrative Agent,
hold a meeting with all of the Lenders at which meeting will be reviewed the
financial results of the Borrower and its Subsidiaries for the previous fiscal
year and the budgets presented for the current fiscal year of the
Borrower.
8.03 Maintenance
of Property; Insurance.
(a)
The
Borrower will, and will cause each of its Subsidiaries to, (i) keep all property
necessary to the business of the Borrower and its Subsidi-aries in good working
order and condition, ordinary wear and tear excepted, (ii) maintain with
financially sound and reputable insurance companies insurance on all such
property and against all such risks as is consistent and in accordance with
industry practice for companies similarly situ-ated owning similar properties
and engaged in similar businesses as the Borrower and its Subsidi-aries, and
(iii) furnish to the Administrative Agent, upon its request therefor, full
information as to the insurance carried. Such insurance shall include physical
damage insurance on all real and personal property (whether now owned or
here-after acquired) on an all risk basis and business interruption insurance.
The provisions of this Sec-tion 8.03 shall be deemed supplemental to, but not
duplicative of, the provisions of any Security Documents that require the
maintenance of insurance.
(b) The
Borrower will, and will cause each of its Subsidiaries to, at all times keep
its
property insured in favor of the Collateral Agent, and all policies or
certificates (or certified copies thereof) with respect to such insurance (and
any other insurance maintained by the Borrower and/or such Subsidiaries to
the
extent reasonably requested by the Collateral Agent) (i) shall be endorsed
to
the Collateral Agent’s satisfaction for the benefit of the Collateral Agent
(including, without limitation, by naming the Collateral Agent as loss payee
and/or additional insured), (ii) shall state that such insurance policies shall
not be canceled without at least 30 days’ prior written notice thereof by the
respective insurer to the Collateral Agent, (iii) shall provide that the
respective insurers irrevocably waive any and all rights of subrogation with
respect to the Collateral Agent and the other Secured Creditors, and (iv) in
the
case of such certificates (or, if requested by the Administrative Agent, such
policies), shall be deposited with the Collateral Agent.
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(c) If
the
Borrower or any of its Subsidiaries shall fail to maintain insurance in
accordance with this Section 8.03, or if the Borrower or any of its Subsidiaries
shall fail to so endorse and deposit all policies (if so requested by the
Administrative Agent) or certificates with respect thereto, the Administrative
Agent shall have the right (but shall be under no obligation) to procure such
insurance and the Borrower agrees to reimburse the Administrative Agent for
all
reasonable costs and expenses of procuring such insurance.
8.04 Existence;
Franchises.
The Borrower will, and will cause each of its Subsidiaries to, do or cause
to be done, all things necessary to preserve and keep in full force and effect
its existence and its material rights, franchises, licenses, permits,
copyrights, trademarks and patents; provided,
however,
that
nothing in this Section 8.04 shall prevent (i) sales of assets and other
trans-actions by the Borrower or any of its Subsidiaries in accordance with
Section 9.02 or (ii) the with-drawal by the Borrower or any of its Subsidiaries
of its qualification as a foreign corporation, partner-ship or limited liability
company, as the case may be, or the termination or expiration of any franchise
or license, in any jurisdiction if such withdrawal, termination or expiration,
as the case may be, could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
8.05 Compliance
with Statutes, etc. The
Borrower will, and will cause each of its Subsidiaries to, comply with all
applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its property (including applicable
statutes, regulations, orders and restrictions relating to environmental
standards and controls), except such noncompliances as could not, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.06 Compliance
with Environmental Laws.
(a)
The
Borrower will comply, and will cause each of its Subsidiaries to comply, with
all Environmental Laws and permits applicable to, or required by, the ownership,
lease or use of its Real Property now or hereafter owned, leased or operated
by
the Borrower or any of its Subsidiaries, except such noncompliances as could
not, either individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect, and will promptly pay or cause to be paid all costs
and
expenses incurred in connection with such compliance, and will keep or cause
to
be kept all such Real Property free and clear of any Liens imposed pursuant
to
such Environmental Laws. Neither the Borrower nor any of its Subsidiaries will
generate, use, treat, store, Release or dispose of, or permit the generation,
use, treatment, storage, Release or disposal of, Hazardous Materials on any
Real
Property now or hereafter owned, leased or operated by the Borrower or any
of
its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, except for Hazardous Materials
gener-ated, used, treated, stored, Released or disposed of at any such Real
Properties in compliance in all material respects with all applicable
Environmental Laws and as required in connection with the normal operation,
use
and maintenance of the business or operations of the Borrower or any of its
Subsidiaries.
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(b) (i)
After
the receipt by the Administrative Agent or any Lender of any notice of the
type
described in Section 8.01(i), (ii) at any time that the Borrower or any of
its
Subsidiaries are not in compliance with Section 8.06(a) or (iii) in the event
that the Administrative Agent or the Lenders have exercised any of the remedies
pursuant to the last paragraph of Section 10, the Borrower will (in each case)
provide, at the sole expense of the Borrower and at the request of the
Administrative Agent, an environmental site assessment report concerning any
Real Property owned, leased or operated by the Borrower or any of its
Subsidiaries, prepared by an environmental consulting firm reasonably approved
by the Administrative Agent, indicating the presence or absence of Hazardous
Materials and the potential cost of any removal or remedial action in connection
with such Hazardous Materials on such Real Property. If the Borrower fails
to
provide the same within 30 days after such request was made, the Administrative
Agent may order the same, the cost of which shall be borne by the Borrower,
and
the Borrower shall grant, and hereby grants, to the Administrative Agent and
the
Lenders and their respective agents access to such Real Property and
specifically grants the Administrative Agent and the Lenders an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such
an
assessment at any reasonable time upon rea-son-able notice to the Borrower,
all
at the sole expense of the Borrower.
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8.07 ERISA.
As soon as possible and, in any event, within ten days after the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate knows or has reason to
know of the occurrence of any of the following, the Borrower will deliver to
each of the Lenders a certificate of an Authorized Representative of the
Borrower setting forth the full details as to such occurrence and the action,
if
any, that the Borrower, such Subsidiary or such ERISA Affiliate is required
or
proposes to take, together with any notices required or proposed to be given
or
filed by the Borrower, such Subsidiary, the Plan administrator or such ERISA
Affiliate to or with the PBGC or any other governmental agency, or a Plan
participant and any notices received by the Borrower, such Subsidiary or such
ERISA Affiliate from the PBGC or any other government agency, or a Plan
participant with respect thereto: that a Reportable Event has occurred (except
to the extent that the Borrower has previously delivered to the Lenders a
certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65 (unless notice is waived under .65), .66, .67 or .68 of PBGC Regulation
Section 4043 is reasonably expected to occur with respect to such Plan within
the following 30 days; that an accumulated funding deficiency, within the
meaning of Section 412 of the Code or Section 302 of ERISA, has been incurred
or
an application may be or has been made for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code or Section
303 or 304 of ERISA with respect to a Plan; that any contribution required
to be
made with respect to a Plan or Foreign Pension Plan has not been timely made;
that a Plan has been or may be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA; that a Plan has an Unfunded Current
Liability; that proceedings may be or have been instituted to terminate or
appoint a trustee to administer a Plan which is subject to Title IV of ERISA;
that a proceeding has been instituted pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Plan; that the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate will or may incur any liability
(includ-ing any indirect, contingent, or secondary liability) to or on account
of the termination of or with-drawal from a Plan under Section 4062, 4063,
4064,
4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section
401(a)(29), 4971, 4975 or 4980 of the Code or Section 409, 502(i) or 502(l)
of
ERISA; that the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
will or could reasonably be expected to incur any material liability with
respect to a group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) under Section 4980B of the Code; or that the Borrower
or any Subsidiary of the Borrower is reasonably expected to incur material
liability pursuant to any employee welfare benefit plan (as defined in Section
3(1) of ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any Plan or any
Foreign Pension Plan. The Borrower will deliver to each of the Lenders copies
of
any records, docu-ments or other information that must be furnished to the
PBGC
with respect to any Plan pursuant to Section 4010 of ERISA. The Borrower will
also deliver to each of the Lenders a complete copy of the annual report (on
Internal Revenue Service Form 5500-series) of each Plan (including, to the
extent required, the related financial and actuarial statements and opinions
and
other supporting statements, certifica-tions, schedules and information)
required to be filed with the Internal Revenue Service. In addi-tion to any
certificates or notices delivered to the Lenders pursuant to the first sentence
hereof, copies of annual reports and any records, docu-ments or other
information required to be furn-ished to the PBGC or any other governmental
agency, and any material notices received by the Borrower, any Subsidiary of
the
Borrower or any ERISA Affiliate with respect to any Plan or Foreign Pension
Plan
or received from any govern-mental agency or plan administrator or sponsor
or
trustee with respect to any multiemployer plan (as defined in Section 4001(a)(3)
of ERISA), shall be delivered to the Lenders no later than ten days after the
date such annual report has been filed with the Internal Revenue Service or
such
records, documents and/or information has been furnished to the PBGC or any
other governmental agency or such notice has been received by the Borrower,
the
respective Subsidiary or the ERISA Affiliate, as applicable. The Borrower will
ensure, and cause each of its applicable Subsidiaries to ensure, that all
Foreign Pension Plans administered by it or into which it makes payments obtains
or retains (as applicable) registered status under and as required by applicable
law and is adminis-tered in a timely manner in all respects in compliance with
all applicable laws except where the failure to do any of the foregoing could
not, either individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect. If, at any time after the Initial Borrowing Date,
the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate maintains,
or
contributes to (or incurs an obligation to contribute to), a pension plan as
defined in Section 3(2) of ERISA which is not set forth in Schedule 7.10, as
may
be updated from time to time, then the Borrower shall deliver to the Lenders
an
updated Schedule 7.10 as soon as possible and, in any event, within ten (10)
days after the Borrower, such Subsidiary or such ERISA Affiliate maintains,
or
contributes to (or incurs an obligation to contribute to), such pension plan.
Such updated Schedule 7.10 shall supersede and replaced the existing Schedule
7.10.
8.08 End
of
Fiscal Years; Fiscal Quarters.
The Borrower will cause (i) each of its, and each of its Subsidiaries’,
fiscal years to end on December 31 of each year and (ii) each of its, and each
of its Subsidiaries’, fiscal quarters to end on dates which are consistent with
a fiscal year end as described above.
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8.09 Performance
of Obligations.
The Borrower will, and will cause each of its Subsidiaries to, perform all
of its obligations under the terms of each mortgage, indenture, security
agreement, loan agreement or credit agreement and each other agreement, contract
or instrument by which it is bound, except such non-performances as could not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
8.10 Payment
of Taxes.
The Borrower will pay and discharge, and will cause each of its
Subsidiaries to pay and discharge, all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits
or
upon any properties belonging to it, in each case on a timely basis, and all
lawful claims which, if unpaid, would or would reasonably be expected to, become
a Lien or charge upon any properties of the Borrower or any of its Subsidiaries
not otherwise permitted under Section 9.01(i); provided
that
neither the Borrower nor any of its Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceed-ings if it has maintained adequate reserves with
respect thereto in accordance with GAAP.
8.11 Use
of
Proceeds.
The Borrower will use the proceeds of the Term Loans only as provided in
Section 7.08.
8.12 Additional
Security; Further Assurances; etc. (a)
The
Borrower will, and will cause each of the other Credit Parties to, grant to
the
Collateral Agent for the benefit of the Secured Creditors security interests
and
Mortgages in such of the Borrower’s and such other Credit Parties’ assets,
properties and owned real properties having a Fair Market Value in excess of
$5,000,000 as are not covered by the original Security Documents and as may
be
reason-ably requested from time to time by the Admin-is-trative Agent or the
Required Lenders (collectively, the “Additional
Security Documents”);
provided
that the
Credit Parties shall not be required to grant Liens on assets that are subject
to express exclusions in the Security Documents until (and then to the extent)
such exclusions are no longer applicable. All such security interests and
Mortgages shall be granted pursuant to documenta-tion reasonably satisfactory
in
form and substance to the Administrative Agent and shall constitute valid and
enforceable perfected security interests and Mortgages superior to and prior
to
the rights of all third Persons and subject to no other Liens except for
Permitted Liens. The Borrower shall cause the Additional Security Documents
or
instruments related thereto to be duly recorded or filed in such manner and
in
such places as are required by law to establish, perfect, preserve and protect
the Liens in favor of the Collateral Agent required to be granted pursuant
to
the Additional Security Documents and all taxes, fees and other charges payable
in connection therewith shall have been paid in full. The Borrower shall make
arrangements to ensure that all such recordations and filings made pursuant
to
this Section 8.12 or any of the Security Documents or Additional Security
Documents are made at least one Business Day before any equivalent recordations
or filings are made pursuant to the Second-Lien Note Documents.
(b) The
Borrower will, and will cause each of the other Credit Parties to, at the
expense of the Borrower and the Credit Parties, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time
such
vouchers, invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports, landlord waivers, bailee agreements, control
agreements and other assurances or instruments and take such further steps
relating to the Collateral covered by any of the Security Documents as the
Collateral Agent may reasonably require. Furthermore, the Borrower will, and
will cause the other Credit Parties to, deliver to the Collateral Agent such
opinions of counsel, title insurance and other related docu-ments as may be
reasonably requested by the Administrative Agent to assure itself that this
Sec-tion 8.12 has been complied with.
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(c) If
the
Administrative Agent or the Required Lenders reasonably determine that they
are
required by law or regulation to have appraisals prepared in respect of any
Real
Property of the Borrower and its Subsidiaries constituting Collateral, the
Borrower will, at its own expense, provide to the Administrative Agent
appraisals which satisfy the applicable requirements of the Real Estate
Appraisal Reform Amendments of the Financial Institution Reform, Recovery and
Enforcement Act of 1989, as amended, and which shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent.
(d) The
Borrower shall complete each action required by clauses (a) through (c) of
this
Section 8.12 as soon as possible, but in no event later than 60 days after
such
action is requested to be taken by the Administrative Agent, the Collateral
Agent or the Required Lenders; provided
that, in
no event will the Borrower or any of its Subsidiaries be required to take any
action, other than using its commercially reasonable efforts, to obtain consents
from third parties with respect to its compliance with this Section
8.12.
8.13 Ownership
of Subsidiaries; etc. The
Borrower will, and will cause each of its Subsidiaries to, own 100% of the
capital stock and other Equity Interests of each of their Subsidiaries (other
than directors’ qualifying shares to the extent required by applicable law);
provided,
however,
that
the foregoing shall not prohibit the Borrower and/or its Wholly-Owned
Subsidiaries owning Equity Interests in any Non-Wholly-Owned Subsidiary acquired
after the Initial Borrowing Date so long as all Investments therein made by
the
Borrower and its Subsidiaries are justified pursuant to clause (xii) or (xiii)
of Section 9.05.
8.14 Corporate
Separateness.
The Borrower will, and will cause each of its Subsidiaries to, (i) take
all action as is necessary to keep the operations of the Borrower and its
Subsidiaries separate and apart from those of any Unrestricted Subsidiaries
and
(ii) satisfy customary corporate formalities, including, as applicable, the
holding of regular board of directors’ and shareholders’ meetings or action by
directors or shareholders without a meeting and the maintenance of corporate
offices and records. Neither the Borrower nor any other Credit Party shall
make
any payment to a creditor of any Unrestricted Subsidiary in respect of any
liability of any Unrestricted Subsidiary, and no bank account of any
Unrestricted Subsidiary shall be commingled with any bank account of the
Borrower or any other Credit Party. Any and all financial statements distributed
to any creditors of any Unrestricted Subsidiary shall clearly establish or
indicate the corporate separateness of such Unrestricted Subsidiary from the
Borrower and its other Subsidiaries. Each Unrestricted Subsidiary shall pay
its
respective liabilities, including administrative expenses, from its own separate
assets, and the assets of the Borrower and its Subsidiaries shall at all times
be separately identified and segregated from the assets of Unrestricted
Subsidiaries. Neither the Borrower nor any of its Subsidiaries shall take any
action, or conduct its affairs in a manner, which is likely to result in the
corporate existence of the Borrower or any of its Subsidiaries being ignored,
or
in the assets and liabilities of the Borrower or any of its Subsidiaries being
substan-tively consolidated with those of any other such Person in a bankruptcy,
reorganization or other insolvency proceeding.
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8.15 Permitted
Acquisitions.
(a)
Subject
to the provisions of this Section 8.15 and the requirements contained in the
definition of Permitted Acquisition, the Borrower and each Wholly-Owned Domestic
Subsidiary Guarantor may from time to time effect Permitted Acquisitions, so
long as (in each case except to the extent the Required Lenders otherwise
specifically agree in writing in the case of a specific Permitted Acquisition):
(i) no Default or Event of Default shall have occurred and be continuing at
the
time of the consummation of the proposed Permitted Acquisition or immediately
after giving effect thereto; (ii) the Borrower shall have given to the
Administrative Agent and the Lenders at least 10 Business Days’ prior written
notice of any Permitted Acquisition (or such shorter period of time as may
be
reasonably acceptable to the Administrative Agent), which notice shall describe
in reasonable detail the principal terms and conditions of such Permitted
Acquisition; (iii) calculations are made by the Borrower with respect to the
Financial Covenants for the respective Calculation Period on a Pro Forma
Basis as
if the respective Permitted Acquisition (as well as all other Permitted
Acquisitions and Material Asset Sales theretofore consummated after the first
day of such Calculation Period) had occurred on the first day of such
Calculation Period, and such calculations shall show that the Financial
Covenants would have been complied with if the Permitted Acquisition had
occurred on the first day of such Calculation Period; (iv) based on good faith
projections prepared by the Borrower for the period from the date of the
consummation of the respective Permitted Acquisition to the date which is one
year thereafter, the level of financial performance measured by the Financial
Covenants shall be better than or equal to such level as would be required
to
provide that no Default or Event of Default would exist under the Financial
Covenants as compliance with the Financial Covenants would be required through
the date which is one year from the date of the consum-ma-tion of the respective
Permitted Acquisition; (v) all representations and warranties contained herein
and in the other Credit Documents shall be true and correct in all material
respects with the same effect as though such representations and warranties
had
been made on and as of the date of such Permitted Acquisition (both before
and
after giving effect thereto), unless stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date; (vi) the Aggregate
Consid-eration for all Permitted Acquisitions consummated after the Initial
Borrowing Date shall not exceed $100,000,000; (vii) the aggregate amount of
deferred compensation or other deferred purchase price (including any earn-outs,
but excluding customary working capital, net worth or similar purchase price
adjustments) paid in any fiscal year of the Borrower in respect of all Permitted
Acquisitions (whether or not such Permitted Acquisitions were consummated during
such fiscal year) shall not exceed $1,000,000 (it being understood and agreed,
however, that any such deferred compensation or other deferred purchase price
(including any earn-outs but excluding any covenants not to compete) shall
be
structured as a multiple of the excess of the cash flow of the Acquired Entity
or Business that is the subject of the respective Permitted Acquisition for
the
most recently ended 12-month period above the cash flow for such Acquired Entity
or Business for such 12-month period selected to determine the purchase price
for such Permitted Acquisition); (viii) immediately after giving effect to
such
Permitted Acquisition, the Unrestricted cash and Cash Equivalents of the
Borrower and its Subsidiaries equal or exceed $25,000,000; (ix) the Consolidated
EBITDA of the Acquired Entity or Business for the respective Calculation Period
calculated on a Pro Forma
Basis
shall be greater than $0; and (x) the Borrower shall have delivered to the
Administrative Agent and each Lender a certif-icate exe-cuted by its chief
financial officer, certify-ing to the best of such officer’s knowledge,
compli-ance with the require-ments of preceding clauses (i) through (ix),
inclu-sive, and containing the calcula-tions (in reason-able detail) required
by
preceding clauses (iii), (iv), (vi), (vii), (viii) and (ix).
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(b) At
the
time of each Permitted Acquisition involving the creation or acquisi-tion of
a
Subsidiary, or the acquisition of other Equity Interests of any Person, the
Equity Interests thereof created or acquired in connection with such Permitted
Acquisition shall be pledged for the benefit of the Secured Creditors pursuant
to (and to the extent required by) the Pledge Agreement.
(c) The
Borrower will cause each Subsidiary which is formed to effect, or is acquired
pursuant to, a Permitted Acquisition to comply with, and to execute and deliver
all of the documentation as and to the extent required by, Sections 8.12 and
9.14, to the reasonable satisfaction of the Administrative Agent.
(d) The
consummation of each Permitted Acquisition shall be deemed to be a
representation and warranty by the Borrower that the certifications pursu-ant
to
this Section 8.15 are true and correct and that all conditions thereto have
been
satisfied and that same is permitted in accordance with the terms of this
Agreement, which representation and warranty shall be deemed to be a
repre-sentation and warranty for all purposes hereunder, includ-ing, without
limitation, Sections 7 and 10.
8.16 Ratings.
The Borrower shall at all times maintain a senior secured financing rating
(of any level) from Xxxxx’x with respect to the Loans.
8.17 Designation
of Subsidiaries.
The board of directors of the Borrower may at any time designate any
Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as
a
Restricted Subsidiary; provided
that (i)
immediately before and after such designation, no Default or Event of Default
shall have occurred and be continuing, (ii) immediately after giving effect
to
such designation, the Borrower shall be in compliance, on a Pro Forma Basis,
with the Financial Covenants (and, as a condition precedent to the effectiveness
of any such designation, the Borrower shall deliver to the Administrative Agent
a certificate setting forth in reasonable detail the calculations demonstrating
such compliance), (iii) in the case of any Unrestricted Subsidiary directly
owned by the Borrower or any Restricted Subsidiary, 100% of the Equity Interests
of such newly-designated Unrestricted Subsidiary are owned by the Borrower
or
such Restricted Subsidiary, (iv) such Subsidiary shall have entered into the
Tax
Allocation Agreement, (v) no Subsidiary may be designated as an Unrestricted
Subsidiary if it is a “Restricted Subsidiary” for the purpose of the Existing
Second-Lien Note Documents or any Permitted Subordinated Debt Documents, as
applicable, and (vi) no Subsidiary may be designated as an Unrestricted
Subsidiary if it was previously designated an Unrestricted Subsidiary. The
designation (i) of any Subsidiary as an Unrestricted Subsidiary shall constitute
an Investment by the Borrower therein at the time of such designation in an
amount equal to the net book value of the Borrower’s or its respective
Subsidiaries’ (as applicable) investment therein and (ii) of any Unrestricted
Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the
time of such designation of any Indebtedness or Liens of such Subsidiary
existing at such time, and in the case of each such designation shall only
be
permitted if the respective Investment or incurrence of Indebtedness or Liens
is
permitted under Section 9.03, 9.04 or 9.05, as the case may be.
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SECTION
9. Negative
Covenants.
The Borrower hereby covenants and agrees that on and after the Effective
Date and until the Total Commitment and all Letters of Credit have terminated
and the Loans, Notes and Unpaid Drawings (in each case, together with interest
thereon), Fees and all other Obligations (other than any indemnities described
in Section 13.13 which are not then due and payable) incurred hereunder and
thereunder, are paid in full:
9.01 Liens.
The Borrower will not, and will not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Lien upon or with respect to any
property or assets (real or personal, tangible or intangible) of the Borrower
or
any of its Subsidiaries, whether now owned or hereafter acquired, or sell any
such property or assets subject to an understanding or agreement, contingent
or
otherwise, to repurchase such property or assets (including sales of accounts
receiv-able with recourse to the Borrower or any of its Subsidiaries), or assign
any right to receive income or consent to the filing of any financing statement
under the UCC or any other similar notice of Lien under any similar recording
or
notice statute; provided
that the
provisions of this Section 9.01 shall not prevent the creation, incurrence,
assumption or existence of the following (Liens described below are herein
referred to as “Permitted
Liens”):
(i) inchoate
Liens for taxes, assessments or governmental charges or levies not yet due
or
Liens for taxes, assessments or governmental charges or levies being contested
in good faith and by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP;
(ii) Liens
in
respect of property or assets of the Borrower or any of its Subsidiaries imposed
by law, which were incurred in the ordinary course of business and do not secure
Indebtedness for borrowed money, such as carriers’, warehousemen’s,
materialmen’s and mechanics’ liens and other similar Liens arising in the
ordinary course of business, and (x) which do not in the aggregate
materially detract from the value of the Borrower’s or such Subsidiary’s
property or assets or materially impair the use thereof in the operation of
the
business of the Borrower or such Subsidiary or (y) which are being
contested in good faith by appropriate proceedings, which proceedings have
the
effect of preventing the forfeiture or sale of the property or assets subject
to
any such Lien;
(iii) Liens
in
existence on the Initial Borrowing Date which are listed, and the property
subject thereto described, in Schedule 9.01(iii), plus renewals, replacements
and extensions of such Liens, provided
that (x)
the aggregate principal amount of the Indebtedness, if any, secured by such
Liens does not increase from that amount outstand-ing at the time of any such
renewal, replacement or extension and (y) any such renewal, replacement or
extension does not encumber any additional assets or properties of the Borrower
or any of its Subsidiaries;
(iv) Liens
created by or pursuant to (x) this Agreement and the Security Documents and
(y)
the Existing Second-Lien Note Documents, so long as the Liens created pursuant
to the Existing Second-Lien Note Documents are limited to assets constituting
Collateral pursuant to the Security Documents and are at all times subordinated
to the Liens pursuant to the Security Documents on the terms provided in the
Intercreditor Agreement;
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(v) licenses,
sublicenses, leases or subleases granted to other Persons not materi-ally
interfering with the conduct of the business of the Borrower or any of its
Subsidiaries;
(vi) Liens
upon assets of the Borrower or any of its Subsidiaries subject to Capitalized
Lease Obligations permitted by Sec-tion 9.04(iii), provided
that (x)
such Liens only serve to secure the payment of Indebt-edness arising under
such
Capitalized Lease Obligation and (y) the Lien encumber-ing the asset giving
rise
to the Capitalized Lease Obligation does not encumber any other asset of the
Borrower or any Subsidiary of the Borrower;
(vii) Liens
placed upon equipment or machinery acquired after the Initial Borrow-ing Date
and used in the ordinary course of business of the Borrower or any of its
Subsidiaries and placed at the time of the acquisition thereof by the Borrower
or such Subsidiary or within 180 days thereafter to secure Indebtedness incurred
to pay all or a portion of the purchase price thereof or to secure Indebtedness
incurred solely for the purpose of financ-ing the acquisition of any such
equipment or machinery or extensions, renewals or replace-ments of any of the
foregoing for the same or a lesser amount, provided
that (x)
the Indebtedness secured by such Liens is permitted by Section 9.04(iii) and
(y)
in all events, the Lien encumbering the equipment or machinery so acquired
does
not encumber any other asset of the Borrower or such Subsidiary;
(viii) easements,
rights-of-way, restrictions, encroachments and other similar charges or
encumbrances, and minor title deficiencies, in each case not securing
Indebted-ness and not materially interfering with the conduct of the business
of
the Borrower or any of its Subsidiaries;
(ix) Liens
arising from precautionary UCC financing statement filings regarding operating
leases entered into in the ordinary course of business;
(x) Liens
arising out of the existence of judgments or awards in respect of which the
Borrower or any of its Subsidiaries shall in good faith be prosecuting an appeal
or proceed-ings for review and in respect of which there shall have been secured
a subsisting stay of execution pending such appeal or proceedings, provided
that the
aggregate amount of all cash (including the stated amount of all letters of
credit) and the Fair Market Value of all other property subject to such Liens
does not exceed $1,000,000 at any time outstanding;
(xi) statutory
and common law landlords’ liens under leases to which the Borrower or any of its
Subsidiaries is a party;
(xii) Liens
(other than Liens imposed under ERISA), including deposits,
incurred in the ordinary course of business in connection with workers
compensation claims, unemployment insur-ance and social security benefits and
Liens securing the performance of bids, tenders, leases and contracts in the
ordinary course of business, statutory obligations, surety bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course
of
business and consistent with past practice
(exclusive of obligations in respect of the pay-ment for borrowed money),
provided
that the
aggregate amount of all cash and the Fair Market Value of all other property
subject to all Liens permitted by this clause (xii) shall not at any time exceed
$5,000,000;
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(xiii) Permitted
Encumbrances;
(xiv) Liens
on
property or assets acquired pursuant to a Permitted Acquisition, or on property
or assets of a Subsidiary of the Borrower in existence at the time such
Subsidiary is acquired pursuant to a Permitted Acquisition, provided
that (x)
any Indebtedness that is secured by such Liens is permitted to exist under
Section 9.04(v), and (y) such Liens are not incurred in connection with, or
in
contemplation or anticipation of, such Permitted Acquisition and do not attach
to any other asset of the Borrower or any of its Subsidiaries;
(xv) restrictions
on the transfer or pledge of assets contained in any FCC License or imposed
by
the Communications Act, comparable state or local legislation, regulations
or
ordinances or the terms of cable TV franchises;
(xvi) Liens
consisting of customary options, calls, puts or restrictions on transfer
relating to Equity Interests of Non-Wholly Owned Subsidiaries and arising under
joint venture arrangements with other holders (other than the Borrower and
its
Affiliates) of such Equity Interests;
(xvii) sales
or
other transfers of Receivables pursuant to, and Liens existing or deemed to
exist in connection with, Permitted Receivables Securitizations permitted by
Section 9.04(ix); and
(xviii) other
Liens, so long as neither the aggregate Fair Market Value of all assets subject
thereto, nor the aggregate amount of Indebtedness or other obligations secured
thereby, exceeds $5,000,000.
In
connection with the granting of Liens of the type described in clauses (vi),
(vii), (xiv), (xvii) and (xviii) of this Section 9.01 by the Borrower of any
of
its Subsidiaries, the Administrative Agent and the Collateral Agent shall be
authorized to take any actions deemed appropriate by it in connection therewith
(includ-ing, without limitation, by executing appropriate lien releases or
lien
subordina-tion agree-ments in favor of the holder or holders of such Liens,
in
either case solely with respect to the item or items of equipment or other
assets subject to such Liens; provided the Collateral Agent may require that
appropriate similar lien releases and/or subordination agreements be executed
with respect to the Second-Lien Note Documents).
9.02 Consolidation,
Merger, Purchase or Sale of Assets, etc.
The
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any partnership, joint venture,
or transaction of merger or consolidation, or convey, sell, lease or otherwise
dispose of all or any part of its property or assets, or enter into any
sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials and equipment in the
ordinary course of business) of any Person (or agree to do any of the foregoing
at any future time), except that:
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(i) Capital
Expenditures by the Borrower and its Subsidiaries shall be permitted to the
extent not in violation of Section 9.07;
(ii) each
of
the Borrower and its Subsidiaries may make sales of inventory in the ordinary
course of business or sales of goods that have become worn-out, obsolete or
damaged and as a result are unsuitable for use in connection with the business
of the Borrower and its Subsidiaries;
(iii) Investments
may be made to the extent permitted by Section 9.05;
(iv) the
Borrower and its Subsidiaries may sell assets (other than Equity Interests
of
any Subsidiary or Unrestricted Subsidiary that is less than all of the Equity
Interests in such Subsidiary or Unrestricted Subsidiary that are owned by the
Borrower and its Subsidiaries) or make Permitted Asset Exchanges in accordance
with the definition thereof, so long as (v) no Default or Event of Default
then
exists or would result therefrom, (w) each such sale (and each such
Permitted Asset Exchange) is in an arm’s-length transaction and the Borrower or
the respective Subsidiary receives at least Fair Market Value therefor, (x)
other than in the case of a Permitted Asset Exchange, at least 75% of the
Total Consideration received by the Borrower or such Subsidiary consists of
cash and is paid at the time of the closing of such sale, (y) the Net Sale
Proceeds therefrom are applied and/or reinvested as (and to the extent) required
by Section 4.02(d) and (z) after giving effect to each such sale or
Permitted Asset Exchange (as the case may be), the sum of (I) aggregate amount
of the proceeds (or, in the case of a Permitted Asset Exchange, the Fair Market
Value of the assets sold or otherwise transferred by the Borrower or the
respective Subsidiary pursuant to such Permitted Asset Exchange) received from
each such sale or such Permitted Asset Exchange (as the case may be), (II)
the
aggregate amount of all proceeds received from all other assets previously
sold
pursuant to this clause (iv) and (III) the aggregate Fair Market Value of all
assets sold or otherwise transferred by the Borrower or the respective
Subsidiary pursuant to Permitted Asset Exchanges effected pursuant to this
clause (iv), shall not exceed 10% of Consolidated Net Tangible Assets as of
the
fiscal quarter or year (as the case may be) of the Borrower ended most recently
prior to such sale or Permitted Asset Exchange for which financial statements
shall have been delivered pursuant to Section 8.01(a) or (b), as the case may
be;
(v) each
of
the Borrower and its Subsidiaries may lease (as lessee) or license (as licensee)
real or personal property (so long as any such lease or license does not create
a Capitalized Lease Obligation except to the extent permitted by
Section 9.04(iii));
(vi) each
of
the Borrower and its Subsidiaries may sell or discount, in each case without
recourse and in the ordinary course of business, accounts receivable arising
in
the ordinary course of business, but only in connection with the compromise
or
collection thereof and not as part of any financing transaction;
(vii) each
of
the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or
subleases to other Persons not materially interfering with the conduct of the
busi-ness of the Borrower or any of its Subsidiaries, in each case so long
as no
such grant otherwise affects the Collateral Agent’s security interest in the
asset or property subject thereto;
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(viii) any
Subsidiary of the Borrower may merge with and into, or be dissolved or
liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary Guarantor
so long as (i) in the case of any such merger, dissolution or liquidation
involving the Borrower, the Borrower is the surviving corporation of such
merger, dissolution or liquidation, (ii) in all other cases, the Wholly-Owned
Domestic Subsidiary Guarantor is the surviving corporation of any such merger,
dissolution or liquidation, and (iii) in all cases, the security interests
granted to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the Security Documents in the assets of such Subsidiary shall remain
in full force and effect and perfected (to at least the same extent as in effect
immediately prior to such merger, dissolu-tion or liquidation);
(ix) Permitted
Acquisitions may be made to the extent permitted by
Section 8.15;
(x) sales,
transfers and other dispositions of Receivables and Related Assets pursuant
to
Permitted Receivables Securitizations permitted by Section
9.04(ix);
(xi) sales,
transfers and dispositions (and purchases and acquisitions) by the Borrower
or
any Wholly-Owned Domestic Subsidiary Guarantor to (or from, as the case may
be)
the Borrower or a Wholly-Owned Domestic Subsidiary Guarantor shall be
permitted;
(xii) the
sale,
transfer or other disposition (including pursuant to a Permitted Asset Exchange
made in accordance with the definition thereof) of all or substantially all
the
Los Angeles Assets in a single transaction or series of related transactions
shall be permitted, so long as (w) no Default or Event of Default then exists
or
would result therefrom, (x) each such sale is in an arm’s-length transaction and
the Borrower or the respective Subsidiary receives at least Fair Market Value
therefor, (y) other than in the case of a Permitted Asset Exchange, at least
75%
of the Total Consideration received by the Borrower and its Subsidiaries
consists of cash paid at the time of the closing of such sale or disposition
and
(z) the Net Sale Proceeds therefrom are applied to prepay Loans to the extent
required by Section 4.02(d) or reinvested in accordance with the provisions
thereof;
(xiii) the
sale,
transfer or other disposition (including pursuant to a Permitted Asset Exchange
made in accordance with the definition thereof) of all or substantially all
the
San Francisco Assets in a single transaction or series of related transactions
shall be permitted, so long as (w) no Default or Event of Default then exists
or
would result therefrom, (x) each such sale is in an arm’s-length transaction and
the Borrower or the respective Subsidiary receives at least Fair Market Value
therefor, (y) other than in the case of a Permitted Asset Exchange, at least
75%
of the Total Consideration received by the Borrower and its Subsidiaries
consists of cash paid at the time of the closing of such sale or disposition
and
(z) the Net Sale Proceeds therefrom are applied to prepay Loans to the extent
required by Section 4.02(d) or reinvested in accordance with the provisions
thereof;
(xiv) the
sale,
transfer or other disposition (including pursuant to a Permitted Asset Exchange
made in accordance with the definition thereof) of all or substantially all
the
Chicago Assets in a single transaction or series of related transactions shall
be permitted, so long as (w) no Default or Event of Default then exists or
would
result therefrom, (x) each such sale is in an arm’s-length transaction and the
Borrower or the respective Subsidiary receives at least Fair Market Value
therefor, (y) other than in the case of a Permitted Asset Exchange, at least
75%
of the Total Consideration received by the Borrower and its Subsidiaries
consists of cash paid at the time of the closing of such sale or disposition
and
(z) the Net Sale Proceeds therefrom are applied to prepay Loans to the extent
required by Section 4.02(d) or reinvested in accordance with the provisions
thereof; and
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(xv) the
Borrower and its Subsidiaries may make a sale of any fixed or capital assets
that is made for cash consideration in an amount not less than the cost of
such
fixed or capital asset and is consummated within 270 days after the Borrower
or
such Subsidiary acquires or completes the construction of such fixed or capital
asset and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose as the sold property;
provided
that the
sum of the aggregate amount of Attributable Debt in respect of all such sale
and
leaseback transactions of the Borrower and its Subsidiaries shall not exceed
$3,000,000 at any time outstanding.
To
the
extent the Required Lenders waive the provisions of this Section 9.02 with
respect to the sale of any Collateral, or any Collateral is sold as permitted
by
this Section 9.02 (other than to the Borrower or a Subsidiary thereof), such
Collateral shall be sold free and clear of the Liens created by the Security
Documents (so long as also sold free and clear of the Liens created by the
Second-Lien Security Documents), and the Administrative Agent and the Collateral
Agent shall be authorized to take any actions deemed appropriate in order to
effect the foregoing.
9.03 Dividends. The
Borrower will not, and will not permit any of its Subsidiaries to, authorize,
declare or pay any Dividends with respect to the Borrower or any of its
Subsidiaries, except that:
(i) any
Subsidiary of the Borrower may pay Dividends or return capital or make
distributions and other similar payments with regard to its Equity Interests
to
the Borrower or to a Wholly-Owned Subsidiary of the Borrower which owns equity
therein;
(ii) any
Non-Wholly-Owned Subsidiary of the Borrower may declare and pay cash Dividends
to its shareholders generally so long as the Borrower or its respective
Subsidiary which owns the Equity Interests in the Subsidiary paying such
Dividends receives at least its proportionate share thereof (based upon its
relative holding of the Equity Interests in the Subsidiary paying such Dividends
and taking into account the relative preferences, if any, of the various classes
of Equity Interests of such Subsidiary);
(iii) so
long
as no Default or Event of Default exists at the time of the respective Dividend,
redemption or repurchase or would exist immediately after giving effect thereto,
the Borrower may redeem or repurchase Equity Interests of the Borrower from
officers, employees and directors of the Borrower or its Subsidiaries (or their
estates) after the death, disability, retirement or termination of employment
or
service as a director of any such Person, or otherwise in accordance with any
stock option plan or any employee stock ownership plan that has been approved
by
the Board of Directors of the Borrower, provided
that the
aggregate amount of Dividends made by the Borrower pursuant to this clause
(iii), and the aggregate amount paid in connection therewith on or after the
Initial Borrowing Date shall not exceed $5,000,000 (calculated net of any cash
proceeds received by the Borrower from issuances of its Equity Interests in
connection with such redemption or repurchase);
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(iv) the
Borrower may pay Dividends, provided
that (i)
immediately before and after giving effect thereto, no Default or Event of
Default exists, (ii) immediately after giving effect to each such Dividend
(including the incurrence of any Indebtedness in connection therewith) (x)
the
Borrower shall be in compliance with the Financial Covenants, (y) the Total
Leverage Ratio shall be less than 2.50:1.00, and (z) the Senior Secured Leverage
Ratio shall be less than 1.25:1.00, with the compliance with the requirements
of
preceding subclauses (x) through (z), inclusive, to be calculated on a
Pro Forma
Basis,
(iii) the aggregate amount of all Dividends paid pursuant to this clause (iv)
plus
the
aggregate amount of all Investments made pursuant to Section 9.05(xi)
plus
the
aggregate principal amount of Existing Second-Lien Notes prepaid, redeemed
or
otherwise acquired by the Borrower or any of its Subsidiaries pursuant to the
proviso to Section 9.10(i) shall not at any time exceed the lesser of (A)
$100,000,000 and (B) the then applicable Permitted RP Amount and (iv) in respect
of each Dividend paid pursuant to this clause (iv), the Borrower shall have
delivered to the Administrative Agent and each Lender a certificate executed
by
its chief financial officer, certifying to the best of such officer’s knowledge,
compliance with the requirements of preceding clauses (i) through (iii),
inclusive, and containing the calculations (in reasonable detail) showing
compliance with such requirements; and
(v) the
Borrower may pay Dividends so long as (x) at the time of (and immediately after
giving effect to) each such Dividend, (I) no Default or Event of Default then
exists and (II) the Borrower is in compliance with the Financial Covenants
on a
Pro Forma
Basis
and (y) the aggregate amount of all Dividends made pursuant to this clause
(v)
does not to exceed $15,000,000.
9.04 Indebtedness.
The Borrower will not, and will not permit any of its Subsidiaries to,
contract, create, incur, assume or suffer to exist any Indebtedness,
except:
(i) Indebtedness
of the Credit Parties incurred pursuant to this Agreement and the other Credit
Documents;
(ii) Indebtedness
of the Borrower and its Subsidiaries under Interest Rate Protection Agreements
entered into with respect to other Indebtedness permitted under this Section
9.04, in each case so long as the entering into of such Interest Rate Protection
Agreements are bona fide
hedging
activities and are not for speculative purposes;
(iii) Indebtedness
of the Borrower and its Subsidiaries evidenced by Capitalized Lease Obligations
(to the extent permitted pursuant to Section 9.07) and purchase money
Indebtedness described in Section 9.01(vii), provided
that in
no event shall the sum of the aggregate principal amount of all Capitalized
Lease Obligations and purchase money Indebtedness permitted by this clause
(iii)
exceed $15,000,000 at any time outstanding;
(iv) Indebtedness
of the Borrower, and guarantees thereof by the Subsidiary Guarantors (provided
that any guarantee by RCN International shall be subordinated in right of
payment as required by the Intercreditor Agreement) under the Existing
Second-Lien Note Indenture and the other Existing Second-Lien Note Documents
in
an aggregate principal amount not to exceed $125,000,000 (less the amount of
any
repay-ments of principal thereof made after the Initial Borrowing
Date);
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(v) Indebtedness
of a Subsidiary of the Borrower acquired pursuant to a Permitted Acquisition
(or
Indebtedness secured by an asset acquired pursuant to a Permitted Acquisition),
provided
that (x)
such Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition, (y) such Indebtedness does not
constitute debt for borrowed money, it being understood and agreed that
Capitalized Lease Obligations and purchase money Indebted-ness shall not
constitute debt for borrowed money for purposes of this clause (y), and (z)
the
aggre-gate principal amount of all Indebtedness permitted by this clause (v)
shall not exceed $7,500,000 at any one time outstanding;
(vi) intercompany
Indebtedness among the Borrower and the Subsidiary Guarantors to the extent
permitted by Section 9.05(vii);
(vii) Existing
Indebtedness outstanding on the Initial Borrowing Date and listed on Schedule
7.21 (as reduced by any permanent repayments of principal thereof),without
giving effect to any subsequent extension, renewal or refinancing;
(viii) guarantees
by the Borrower of Indebtedness or operating lease payment obligations of any
Wholly-Owned Domestic Subsidiary Guarantor and by any Wholly-Owned Domestic
Subsidiary Guarantor of Indebtedness or operating lease payment obligations
of
any other Wholly-Owned Domestic Subsidiary Guarantor, in each case so long
as
the respective underlying guaranteed Indebtedness or operating lease payment
obligations are otherwise permitted in accordance with the relevant terms of
this Agreement (other than this clause (viii)); provided
that
this clause (viii) shall not permit any guarantees of Indebtedness described
in
any of clauses (iv), (v), (vii), (ix) or (x);
(ix) Permitted
Receivables Securitizations, so long as the aggregate principal amount of all
Indebtedness incurred pursuant to this clause does not at any time exceed
$50,000,000;
(x) unsecured
subordinated Indebtedness of the Borrower (and unsecured subordinated guarantees
thereof by any Subsidiary Guarantor) incurred under Permitted Subordinated
Debt
Documents so long as (A) at least 10 Business Days prior to the issuance
thereof, the Borrower shall have delivered to the Administrative Agent the
then
current drafts of such Permitted Subordinated Debt Documents and with any
changes thereto made after the initial delivery of such Permitted Subordinated
Debt Documents to be delivered to the Administrative Agent concurrently with
the
delivery thereof to the Persons to be party to such Permitted Subordinated
Debt
Documents and prior to the issuance of the related Permitted Subordinated Debt,
(B) the final maturity date thereof is no earlier than one year following the
Term Loan Maturity Date (determined without giving effect to the proviso
contained therein), (C) there are no scheduled amortization, mandatory
redemption or sinking fund provisions or similar provisions prior to the
maturity of such Permitted Subordinated Debt (other than provisions requiring
an
offer to purchase Permitted Subordinated Debt to be made upon the occurrence
of
a change in control or asset sale on terms reasonably satisfactory to the
Administrative Agent), (D) the subordination provisions applicable to the
Permitted Subordinated Debt shall be in form and substance reasonably
satisfactory to the Administrative Agent, (E) the interest rates (calculated
including any original issued discount in respect thereof) and related premiums
applicable to any issue of Permitted Subordinated Debt shall be based on market
interest rates existing at such time for transactions of a similar nature with
issuers that are similarly situated with the Borrower, (F) the respective
Permitted Subordinated Debt Documents do not contain (i) any financial
maintenance covenants (or defaults having the same effect as a financial
maintenance covenant) or (ii) any cross-default provisions (although such
Permitted Subordinated Debt Documents may include a provision for a
cross-acceleration and a cross-payment default at final maturity to other
material Indebtedness), (G) all other terms and conditions of each issue of
Permitted Subordinated Debt shall, be in form and substance reasonably
satisfactory to the Administrative Agent, (H) no Default or Event of Default
then exists or would result from the issuance thereof, (I) prior to the issuance
of any Permitted Subordinated Debt, the Borrower shall have delivered to the
Administrative Agent and each of the Lenders a certificate of the Borrower’s
chief financial officer certifying (and showing the calculations therefor in
reasonable detail) that the Borrower and its Subsidiaries shall be in compliance
with the Financial Covenants on a Pro Forma Basis on the date of the respective
issuance of the Permitted Subordinated Debt after giving effect thereto and
the
application of the proceeds thereof on such date, (J) prior to the issuance
of
any Permitted Subordinated Debt, the Borrower shall deliver evidence reasonably
satisfactory to the Administrative Agent, including a certificate of the chief
financial officer of the Borrower (accompanied by any required financial
calculations in reasonable detail) and an opinion of counsel for the Borrower,
that the issuance of such Permitted Subordinated Debt (and all related Permitted
Subordinated Debt Documents) is permitted by all other Permitted Subordinated
Debt then outstanding; and (K) the aggregate principal amount of such Permitted
Subordinated Debt does not exceed $100,000,000 at any time outstanding;
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(xi) Permitted
Refinancing Indebtedness to Refinance the Existing Second-Lien Notes;
and
(xii) other
unsecured Indebtedness of the Borrower or any Subsidiary not in excess of
$25,000,000 at any time outstanding.
In
furtherance of the foregoing and in no way in limitation thereof, the Borrower
shall not permit any Unrestricted Subsidiary to incur any Indebtedness or any
other obligation having any element of recourse to the Borrower or any of its
Subsidiaries or to any of the Borrower’s or any of its Subsidiaries’ assets or
property.
9.05 Advances,
Investments and Loans.
(a) The Borrower will not, and will not permit any of its Subsidiaries to,
directly or indirectly, lend money or credit or make advances to any Person,
or
purchase or acquire any stock, obligations or securities of, or any other
interest in, or make any capital contribution to, any other Person, or purchase
or own a futures contract or otherwise become liable for the purchase or sale
of
currency or other commodities at a future date in the nature of a futures
contract, or hold any cash or Cash Equivalents (each of the foregoing an
“Investment”
and,
collectively, “Investments”),
except that the following shall be permitted:
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(i) the
Borrower and its Subsidiaries may acquire and hold accounts receivables owing
to
any of them, if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms of the
Borrower or such Subsidiary;
(ii) the
Borrower and its Subsidiaries may acquire and hold cash and Cash Equivalents;
(iii) the
Borrower and its Subsidiaries may hold the Investments held by them on the
Initial Borrowing Date and described on Schedule 9.05(iii), provided
that any
additional Investments made with respect thereto shall be permitted only if
permitted under the other provisions of this Section 9.05;
(iv) the
Borrower and its Subsidiaries may acquire and own investments (includ-ing debt
obligations) received in connection with the bankruptcy or reorganization of
suppliers and customers and in good faith settlement of delinquent obligations
of, and other disputes with, customers and suppliers arising in the ordinary
course of business;
(v) the
Borrower and its Subsidiaries may make loans and advances to their officers
and
employees for moving, relocation and travel expenses and other similar
expenditures, in each case in the ordinary course of business in an aggregate
amount not to exceed $500,000 at any time (determined without regard to any
write-downs or write-offs of such loans and advances);
(vi) the
Borrower may enter into Interest Rate Protection Agreements to the extent
permitted by Section 9.04(ii);
(vii) the
Borrower and the Wholly-Owned Domestic Subsidiary Guarantors may make
intercompany loans and advances between and among one another (collectively,
“Intercompany
Loans”),
provided
that
each such Intercompany Loan shall be evidenced by an Intercompany Note (which
Intercompany Note shall include the subordination provisions attached as Annex
A
to the form of Intercompany Note) which shall be pledged to the Collateral
Agent
pursuant to, and to the extent required by, the Pledge Agreement;
(viii) Permitted
Acquisitions shall be permitted in accordance with Section 8.15;
(ix) investments
by the Borrower and its Subsidiaries in Equity Interests in, and capital
contributions by the Borrower and its Subsidiaries to, Subsidiaries that are
Wholly-Owned Domestic Subsidiary Guarantors both before and after such
investments; provided
that any
such Equity Interests held by a Credit Party shall be pledged pursuant to the
Pledge Agreement;
(x) Investments
and Guaranties arising or made under Permitted Receivables Securitizations
permitted by Section 9.04(ix);
(xi) the
Borrower shall be permitted to make Investments, provided
that (i)
immediately before and after giving effect thereto, no Default or Event of
Default exists, (ii) immediately after giving effect to each such Investment
(including the incurrence of any Indebtedness in connection therewith) (x)
the
Borrower shall be in compliance with the Financial Covenants, (y) the Total
Leverage Ratio shall be less than 2.50:1.00, and (z) the Senior Secured Leverage
Ratio shall be less than 1.25:1.00, with the compliance with the requirements
of
preceding subclauses (x) through (z), inclusive, to be calculated on a
Pro Forma
Basis,
(iii) the aggregate amount of Investments made pursuant to this clause (xi)
plus
the
aggregate amount of all Dividends paid pursuant to Section 9.03(iv) plus
the
aggregate principal amount of Existing Second-Lien Notes prepaid, redeemed
or
otherwise acquired by the Borrower or any of its Subsidiaries pursuant to the
proviso to Section 9.10(i) shall not at any time exceed the lesser of (A)
$100,000,000 and (B) the then applicable Permitted RP Amount, and (iv) in
respect of each Investment pursuant to this clause (xi), the Borrower shall
have
delivered to the Administrative Agent and each Lender a certificate executed
by
its chief financial officer, certifying to the best of such officer’s knowledge
compliance with the requirements of preceding clauses (i) through (iii),
inclusive, and containing the calculations (in reasonable detail) showing
compliance with such requirements; and
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(xii) the
Borrower and its Subsidiaries may make other Investments so long as (x) at
the
time of (and immediately after giving effect to) each such Investment, (I)
no
Default or Event of Default then exists and (II) the Borrower is in compliance
with the Financial Covenants on a Pro Forma
Basis
and (y) the aggregate amount of all Investments made pursuant to this clause
(xii) do not exceed $30,000,000 (net of any return of capital or Net Sale
Proceeds in respect of any such investment and valued at the time of the making
thereof).
9.06 Transactions
with Affiliates and Unrestricted Subsidiaries.
The Borrower will not, and will not permit any of its Subsidiaries to,
enter into any transaction or series of related transactions with any Affiliate
of the Borrower or any of its Subsidiaries or any of its Unrestricted
Subsidiaries, other than in the ordinary course of business and on terms and
condi-tions substantially as favorable to the Borrower or such Subsidiary as
would reasonably be obtained by the Borrower or such Subsidiary at that time
in
a comparable arm’s-length transaction with a Person other than an Affiliate,
except:
(i) Dividends
may be paid to the extent provided in Section 9.03;
(ii) customary
fees and indemnifications may be paid to non-officer directors of the Borrower
and its Subsidiaries;
(iii) loans
may
be made and other transactions may be entered into by the Borrower with its
Subsidiaries, or between Subsidiaries of the Borrower, to the extent permitted
by Sections 9.01, 9.02, 9.04 and 9.05;
(iv) the
Borrower and its Subsidiaries may enter into, and make payments under,
employment agreements, employee benefit plans, stock option plans,
indemnification provisions and other similar compensatory arrangements with
officers, employees and directors of the Borrower and its Subsidiaries in the
ordinary course of business;
(v) transactions
where the sum of (x) the Fair Market Value of all assets (including for this
purpose cash) transferred to or from the respective Credit Parties party
thereto, (y) the aggregate value (as determined by the Borrower in good faith)
of the services provided by the respective Credit Parties party thereto and
(z)
the aggregate amount of liabilities incurred or assumed by the respective Credit
Parties parties thereto is de minimus, provided
that the
aggregate Fair Market Value of the assets so transferred plus
the
aggregate value of the services so provided plus
the
aggregate amount of liabilities so incurred or assumed for all transactions
permitted under this clause (v) shall not exceed $1,000,000; and
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(vi) transactions
may be entered into by the Borrower with its Subsidiaries, or between
Subsidiaries of the Borrower in the ordinary course of business and consistent
with past practices for the procurement of legal, accounting, construction
management and similar services, so long as any amounts charged by any such
Person to another for such services do not exceed the cost of providing such
services.
9.07 Capital
Expenditures.
(a)
The
Borrower will not, and will not permit any of its Subsidiaries to, make any
Capital Expenditures other than Capital Expenditures not exceeding $120,000,000
in any fiscal year of the Borrower. For the avoidance of doubt, in determining
compliance with this Section 9.07(a) for the purposes of the Borrower’s fiscal
year ending December 31, 2006, all Capital Expenditures made during such fiscal
year prior to the Effective Date (as well as after the Effective Date) shall
be
counted against the aforementioned $120,000,000 limitation.
(b) Notwithstanding
the foregoing, in the event that the amount of Capital Expenditures permitted
to
be made by the Borrower and its Subsidiaries pursuant to clause (a) above in
any
fiscal year of the Borrower (before giving effect to any increase in such
permitted expenditure amount pursuant to this clause (b)) is greater than the
amount of such Capital Expenditures actually made by the Borrower and its
Subsidiaries during such fiscal year, 50% of such excess (the “Rollover
Amount”)
may be
carried forward and utilized to make Capital Expenditures in the immediately
succeed-ing fiscal year (it being understood and agreed that in such succeeding
fiscal year Capital Expenditures shall be deemed to have been made first from
the amount permitted for such year pursuant to clause (a) above and second
from
the Rollover Amount).
(c) In
addition to the foregoing, the Borrower and its Subsidiaries may make Capital
Expenditures with the amount of Net Sale Proceeds received by the Borrower
or
any of its Subsidiaries from any Asset Sale so long as such Net Sale Proceeds
are reinvested within 365 days following the date of such Asset Sale, but only
to the extent that such Net Sale Proceeds are not otherwise required to be
applied as a mandatory repayment pursuant to Section 4.02(d).
(d) In
addition to the foregoing, the Borrower or any of its Subsidiaries may make
Capital Expenditures with the amount of Net Insurance Proceeds received by
the
Borrower or any of its Subsidiaries from any Recovery Event so long as such
Net
Insurance Proceeds are used to replace or restore any properties or assets
in
respect of which such Net Insurance Proceeds were paid within 365 days following
the date of receipt of such Net Insurance Proceeds from such Recovery Event,
but
only to the extent that such Net Insurance Proceeds are not otherwise required
to be applied as a mandatory prepayment pursuant to Section
4.02(f).
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(e) In
addition to the foregoing, the Borrower and its Wholly-Owned Domestic
Subsidiaries that are Subsidiary Guarantors may consummate Permitted
Acquisitions in accordance with the requirements of Section 8.15.
9.08 Consolidated
Interest Coverage Ratio.
The Borrower will not permit the Consolidated Interest Coverage Ratio for
any Test Period ending after June 30, 2006 to be less than
2.50:1.00.
9.09 Total
Leverage Ratio.
The Borrower will not permit the Total Leverage Ratio for any Test Period
to be more than 3.50:1.00.
9.10 Limitations
on Payments of the Second-Lien Notes; Modifications of Second-Lien Note
Documents, Certificate of Incorporation, By-Laws and Certain Other Agreements,
etc. The
Borrower will not, and will not permit any of its Subsidiaries to:
(i) make
(or
give any notice in respect of) any voluntary or optional payment or prepayment
on or re-demption or acquisition for value of, or any prepayment or redemption
as a result of any asset sale, change of control or similar event of (including,
in each case with-out limitation, by way of depositing with the trustee with
respect thereto money or securi-ties before due for the purpose of paying when
due), (x) any Indebtedness pursuant to the Existing Second-Lien Note Documents
or (y) after the incurrence thereof, any Permitted Subordinated Debt;
provided
that,
(A) the nothing in this clause (i) shall prohibit the conversion of the Existing
Second-Lien Notes into Equity Interests of the Borrower in accordance with
the
terms of the Existing Second-Lien Note Documents and (B) the Borrower shall
be
permitted to voluntarily prepay, redeem or otherwise acquire Existing
Second-Lien Notes, so long as (i) immediately before and after giving effect
thereto, no Default or Event of Default exists, (ii) immediately after giving
effect to each such prepayment, redemption or acquisition, as the case may
be,
(x) the Borrower is in compliance with the Financial Covenants, (y) the Total
Leverage Ratio is less than 2.50:1.00, and (z) the Senior Secured Leverage
Ratio
is less than 1.25:1.00, with the compliance with the requirements of preceding
subclauses (x) through (z), inclusive, to be calculated on a Pro Forma
Basis,
(iii) the aggregate amount of prepayments, redemptions and acquisitions made
pursuant to this proviso plus
the
aggregate amount of all Dividends paid pursuant to Section 9.03(iv) plus
the
aggregate amount of Investments made by the Borrower or any of its Subsidiaries
pursuant to Section 9.05(xi) does not at any time exceed the lesser of (A)
$100,000,000 and (B) the then applicable Permitted RP Amount, and (iv) in
respect of each such prepayment, redemption or acquisition, the Borrower shall
have delivered to the Administrative Agent and each Lender a certificate
executed by its chief financial officer, certifying to the best of such
officer’s knowledge, compliance with the requirements of preceding clauses (i)
through (iii), inclusive, and containing the calculations (in reasonable detail)
showing compliance with such requirements;
(ii) amend
or
modify, or permit the amendment or modification of any provision of, (x) any
Second-Lien Credit Document (except pursuant to the Required Consents) or (y)
after the issuance of any Permitted Subordinated Debt, any provision of any
Permitted Subordinated Debt Document related thereto;
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(iii) amend,
modify or change its certificate or articles of incorporation (includ-ing,
without limitation, by the filing or modification of any certificate or articles
of desig-na-tion), certificate of formation, limited liability company agreement
or by-laws (or the equivalent organizational documents), as applicable, or
any
agreement entered into by it with respect to its capital stock or other Equity
Interests (including any Shareholders’ Agreement), or enter into any new
agreement with respect to its capital stock or other Equity Interests, unless
such amendment, modification, change or other action contem-plated by this
clause (iii) could not reasonably be expected to be adverse to the interests
of
the Lenders; or
(iv) amend,
modify or change any provision of (x) any Management Agreement unless such
amendment, modification or change could not reasonably be expected to be adverse
to the interests of the Lenders (although no amendment, modification or change
may be made to any monetary term thereof) or (y) any Tax Allocation Agreement
or, except as contemplated in Section 8.16, enter into any new tax sharing
agreement, tax allocation agreement or similar agreement without the prior
written consent of the Administrative Agent.
9.11 Limitation
on Certain Restrictions on Subsidiaries.
(i)
The
Borrower will not, and will not permit any of its Subsidiaries to, directly
or
indirectly, create or otherwise cause or suffer to exist or become effective
any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or partici-pation in its profits owned by the Borrower or any of its
Subsidiaries, or pay any Indebtedness owed to the Borrower or any of its
Subsidiaries, (b) make loans or advances to the Borrower or any of its
Subsidiaries or (c) transfer any of its properties or assets to the Borrower
or
any of its Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) this Agreement and the other
Credit Documents, (iii) the Second-Lien Note Documents, (iv) customary
provisions restricting subletting or assignment of any lease governing any
leasehold interest of the Borrower or any of its Subsidiaries, (v) customary
provisions restricting assignment of any licens-ing agreement (in which the
Borrower or any of its Subsidiaries is the licensee) or other contract entered
into by the Borrower or any of its Subsidiaries in the ordinary course of
business, (vi) customary restric-tions contained in any agreement relating
to the sale of any asset pending the close of the sale of such asset
provided
that the
sale of such asset is permitted hereunder, (vii) restrictions on the
transfer of any asset subject to a Lien permitted by Section 9.01(iii), (vi),
(vii) or (xiv), (viii) restrictions or conditions imposed by any agreement
relating to Permitted Receivables Securitizations permitted by this Agreement
if
such restrictions or conditions apply only to the Receivables and the Related
Assets that are the subject of the Permitted Receivables Securitization, and
(ix) restrictions or conditions imposed on any SPE Subsidiary in connection
with
any Permitted Receivables Securitization.
(ii) The
Borrower will not permit any of its Unrestricted Subsidiaries to directly or
indirectly create or otherwise cause or suffer to exist or become effective
any
restriction whatsoever on the operations of the Borrower or its
Subsidiaries.
9.12 Limitation
on Issuance of Capital Stock.
(a)
Other
than Qualified Capital Stock issued pursuant to clause (c) below, the Borrower
will not issue (i) any preferred Equity Interests or (ii) any redeemable common
Equity Interests other than common Equity Interests that are redeemable at
the
sole option of the Borrower.
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(b) The
Borrower will not permit any of its Subsidiaries to issue any Equity Interests
(including by way of sales of treasury stock) or any options or warrants to
purchase, or securities convertible into, Equity Interests, except (i) for
trans-fers and replacements of then outstanding shares Equity Interests, (ii)
for stock splits, stock dividends and issuances which do not decrease the
percentage ownership of the Borrower or any of its Subsidiaries in any class
of
Equity Interests of such Subsidiary, (iii) to qualify directors to the extent
required by applicable law or (iv) for issuances by Subsidiaries of the Borrower
which are newly created or acquired in accordance with the terms of this
Agreement.
(c) The
Borrower may issue Qualified Capital Stock so long as (x) no Default or Event
of
Default shall exist at the time of any such issuance or immediately after giving
effect thereto, and (y) with respect to each issue of Qualified Capital Stock,
the gross cash proceeds therefrom (or in the case of Qualified Capital Stock
directly issued as consideration for a Permitted Acquisition, the Fair Market
Value thereof of the assets received therefor) shall be at least equal to 100%
of the liquidation preference thereof at the time of issuance.
9.13 Business,
etc. (a)
The
Borrower will not, and will not permit any of its Subsidiaries to, engage in
any
business other than the businesses engaged in by the Borrower and its
Subsidiaries as of the Initial Borrowing Date and reasonable extensions thereof
and businesses ancillary or complementary thereto.
(b)
The
Borrower will not permit any SPE Subsidiary to engage in any business other
than
Permitted Receivables Securitizations.
(c)
Notwithstanding
the foregoing or anything else in this Agreement to the contrary, RCN
International shall not incur or suffer to exist any Indebtedness (other than
its guarantees of the Obligations hereunder pursuant to the Subsidiaries
Guaranty and its guarantee (which shall be subordinated in right of payment
as
required by the Intercreditor Agreement) of the Existing Second-Lien Note
Documents and obligations pursuant thereto) and shall not engage in any business
or own any significant assets or have any material liabilities; provided
that RCN
International may engage in those activities that are incidental to (x) the
maintenance of its existence in compliance with applicable law and (y) legal,
tax and accounting matters in connection with any of the foregoing
activities.
9.14 Limitation
on Creation of Subsidiaries and Unrestricted Subsidiaries.
The Borrower will not, and will not permit any of its Subsidiaries to,
establish, create or acquire after the Initial Borrowing Date any Subsidiary
or
Unrestricted Subsidiary; provided
that,
subject to compliance with the other applicable provisions of Section 8 and
this
Section 9, (i) the Borrower and its Wholly-Owned Domestic Subsidiaries that
are,
or are to become, Subsidiary Guarantors may create or acquire Wholly-Owned
Domestic Subsidiaries, so long as (w) all of the Equity Interests of such new
Subsidiary are pledged to the Collateral Agent pursuant to the terms and
conditions of the Pledge Agreement (provided that the foregoing requirements
shall not apply to any SPE Subsidiary until the consummation of the Permitted
Receivables Securitization to which such SPE Subsidiary relates), (x) such
new
Subsidiary other than an SPE Subsidiary enters into the Subsidiaries Guaranty
and executes and delivers to the Collateral Agent counterparts of, or a joinder
agreement to, the Security Agreement, the Pledge Agreement and the Intercreditor
Agreement, (y) such new Subsidiary other than an SPE Subsidiary enters into
such
Additional Security Documents as the Administrative Agent or the Required
Lenders may require pursuant to Section 8.12 and (z) such new Subsidiary other
than an SPE Subsidiary executes and delivers all other relevant documentation
(including opinions of counsel) of the type described in Section 5 as such
new
Subsidiary would have had to deliver if it were a Credit Party on the Initial
Borrowing Date, (ii) the Borrower and any Wholly-Owned Subsidiary of the
Borrower may create, acquire or designate an Unrestricted Subsidiary, so long
as, if such Unrestricted Subsidiary is an Unrestricted Subsidiary of a Credit
Party, all of the Equity Interests of such Unrestricted Subsidiary are pledged
to the Collateral Agent pursuant to the terms and conditions of the Pledge
Agreement and (iii) the Borrower and any Wholly-Owned Domestic Subsidiary
Guarantor may create or acquire Non-Wholly-Owned Subsidiaries, so long as (x)
all of the Equity Interests of such new Subsidiary are pledged to the Collateral
Agent pursuant to the terms and conditions of the Pledge Agreement and (y)
all
Investments in such Subsidiary at the time of and after the establishment,
creation or acquisition thereof are permitted under Section 9.05(xi) or
(xii).
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SECTION
10. Events
of Default.
Upon the occurrence of any of the following specified events (each an
“Event
of Default”):
10.01 Payments.
The Borrower shall (i) default in the payment when due of any principal of
any Loan or any Note or (ii) default, and such default shall continue unremedied
for three or more Business Days, in the payment when due of any interest on
any
Loan or Note, any Unpaid Drawing or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
10.02 Representations,
etc. Any
representation, warranty or statement made or deemed made by any Credit Party
herein or in any other Credit Document or in any certificate delivered to the
any Agent or any Lender pursuant hereto or thereto shall prove to be untrue
in
any material respect on the date as of which made or deemed made;
or
10.03 Covenants.
The Borrower or any of its Subsidiaries shall (i) default in the due
perform-ance or observance by it of any term, covenant or agreement contained
in
Section 8.01(g), 8.08, 8.11, 8.14, or 8.16 or Section 9 or (ii) default in
the
due perform-ance or xxxxx-xxxxx by it of any other term, covenant or agreement
contained in this Agreement or in any other Credit Document (other than those
set forth in Sections 10.01 and 10.02) and such default shall continue
unremedied for a period of 30 days after written notice thereof to the
default-ing party by the Administrative Agent or the Required Lenders;
or
10.04 Default
Under Other Agreements.
(i) The Borrower or any of its Subsidiaries shall (x) default in any
payment of any Indebtedness (other than the Obligations) beyond the period
of
grace, if any, provided in an instrument or agreement under which such
Indebtedness was created or (y) default in the observance or performance of
any
agreement or condition relat-ing to any Indebtedness (other than the
Obligations) or contained in any instrument or agree-ment evi-dencing, securing
or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness (or a trustee or agent on behalf
of
such holder or holders) to cause (determined without regard to whether any
notice is required but determined only after giving effect to any applicable
grace period), any such Indebtedness to become due prior to its stated maturity
(including in the case of a Permitted Receivables Securitization, any required
amortization in connection therewith), or (ii) any Indebtedness (other than
the
Obligations) of the Borrower or any of its Subsidiaries shall be declared to
be
(or shall become) due and payable, or required to be pre-paid other than by
a
regularly scheduled required prepayment, prior to the stated maturity thereof
(including in the case of a Permitted Receivables Securitization, any required
amortization in connection therewith); provided
that it
shall not be a Default or an Event of Default under this Section 10.04 unless
the aggregate principal amount of all Indebtedness as described in preceding
clauses (i) and (ii) is at least $7,500,000; or
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10.05 Bankruptcy,
etc. The
Borrower or any of its Subsidiaries shall commence a voluntary case concerning
itself under Title 11 of the United States Code entitled “Bankruptcy,” as now or
hereafter in effect, or any successor thereto (the “Bankruptcy
Code”);
or an
involuntary case is commenced against the Borrower or any of its Subsidiaries,
and the petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case; or a custo-xxxx (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially
all
of the property of the Borrower or any of its Subsidiaries, or the Borrower
or
any of its Subsidiaries com-mences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or any of its Subsidiaries, or
there is commenced against the Borrower or any of its Subsidiaries any such
proceeding which remains undismissed for a period of 60 days, or the Borrower
or
any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order
of
relief or other order approving any such case or proceeding is entered; or
the
Borrower or any of its Subsidiaries suffers any appointment of any custodian
or
the like for it or any sub-stantial part of its property to continue
undischarged or unstayed for a period of 60 days; or the Borrower or any of
its
Subsidiaries makes a general assignment for the benefit of creditors; or any
corporate, limited liability company or similar action is taken by the Borrower
or any of its Subsid-iaries for the purpose of effecting any of the foregoing;
or
10.06 ERISA.
(a)
Any Plan
shall fail to satisfy the minimum funding standard required for any plan year
or
part thereof under Section 412 of the Code or Section 302 of ERISA or a waiver
of such standard or extension of any amortization period is sought or granted
under Section 412 of the Code or Section 303 or 304 of ERISA, a Reportable
Event
shall have occurred, a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA shall be subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof) and an event described in sub-section .62, .63,
.64, .65 (unless notice is waived under .65), .66, .67 or .68 of PBGC Regulation
Section 4043 shall be reasonably expected to occur with respect to such Plan
within the following 30 days, any Plan which is subject to Title IV of ERISA
shall have had or is likely to have a trustee appointed to administer such
Plan,
any Plan which is subject to Title IV of ERISA is, shall have been or is likely
to be terminated or to be the subject of termination proceedings under ERISA,
any Plan shall have an Unfunded Current Liability, a contribution required
to be
made with respect to a Plan or a Foreign Pension Plan has not been timely made,
the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate has
incurred or is likely to incur any liability to or on account of a Plan under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of
ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a group
health plan (as defined in Section 607(1) of ERISA, Section 4980B(g)(2) of
the
Code or 45 Code of Federal Regulation 160.103) under Section 4980B of the Code
and/or the Health Insurance Portability and Accountability Act of 1996, or
the
Borrower or any Subsidiary of the Borrower has incurred or is likely to incur
liabilities pursuant to one or more employee welfare benefit plans (as defined
in Section 3(1) of ERISA) that provide bene-fits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or Plans
or
Foreign Pension Plans, a “default” within the meaning of Section 4219(c)(5) of
ERISA shall occur with respect to any Plan, any applicable law, rule or
regulation is adopted, changed or interpreted, or the interpretation or
administration thereof is changed, in each case after the date hereof, by any
governmental authority or agency or by any court (a “Change
of Law”),
or,
as a result of a Change in Law, an event occurs following a Change in Law,
with
respect to or otherwise affecting any Plan; (b) there shall result from any
such
event or events the imposition of a lien, the granting of a security interest,
or a liability or a material risk of incurring a liability; and (c) such lien,
security interest or liability, either individually and/or in the aggregate,
has
had, or could reasonably be expected to have, in the opinion of the Required
Lenders, a Material Adverse Effect; or
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10.07 Security
Documents.
Any of the Security Documents shall cease to be in full force and effect,
or shall cease to give the Collateral Agent for the benefit of the Secured
Creditors the Liens, rights, powers and privileges purported to be created
thereby (including, without limitation, a perfected security interest in, and
Lien on, all of the Collateral, in favor of the Collateral Agent, superior
to
and prior to the rights of all third Persons (except as permitted by Section
9.01), and subject to no other Liens (except as permitted by Section 9.01),
or
any Credit Party shall default in the due performance or observance of any
term,
covenant or agreement on its part to be performed or observed pursuant to any
such Security Document and such default shall continue beyond the period of
grace, if any, specifically applicable thereto pursuant to the terms of such
Security Document; or
10.08 Subsidiaries
Guaranty.
The Subsidiaries Guaranty or any provision thereof shall cease to be in
full force or effect as to any Subsidiary Guarantor, or any Subsidiary Guarantor
or any Person acting for or on behalf of such Subsidiary Guarantor shall deny
or
disaffirm such Subsidiary Guarantor’s obligations under the Subsidiaries
Guaranty or any Subsidiary Guarantor shall default in the due performance or
xxxxx-xxxxx of any term, covenant or agreement on its part to be performed
or
observed pursuant to the Subsidiaries Guaranty; or
10.09 Judgments.
One or more judgments or decrees shall be entered against the Borrower or
any Subsidiary of the Borrower involving in the aggregate for the Borrower
and
its Subsidiaries a liability (not paid or fully covered by a reputable and
solvent insurance company) and such judg-ments and decrees either shall be
final
and non-appealable or shall not be vacated, discharged or stayed or bonded
pending appeal for any period of 30 consecutive days, and the aggregate amount
of all such judgments equals or exceeds $2,500,000; or
10.10 Change
of Control.
A Change of Control shall occur; or
10.11 Intercreditor
Agreement. The
Intercreditor Agreement or any provision thereof shall cease to be in full
force
and effect, or any Lien securing or purporting to secure Indebtedness or other
obligations owing under the Second-Lien Note Documents shall, for any reason,
cease to be subordinated to the Lien created under the Security Documents
securing the First-Lien Obligations under, and as defined in, and pursuant
to,
the Intercreditor Agreement; or
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10.12 Certain
Tax Payments.
On or after the execution and delivery of the Tax Allocation Agreement,
the Borrower and its Subsidiaries shall pay (directly or by way of dividend
or
distribution) an amount with respect to taxes in excess of the amount the
Borrower and its Subsidiaries are permitted to pay pursuant to the Tax
Allocation Agreement;
then,
and
in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Administrative Agent, upon the written request of the
Required Lenders, shall by written notice to the Borrower, take any or all
of
the following actions, without prejudice to the rights of the Administrative
Agent, any Lender or the holder of any Note to enforce its claims against any
Credit Party (provided
that, if
an Event of Default specified in Section 10.05 shall occur with respect to
the
Borrower, the result which would occur upon the giving of written notice by
the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automati-cally without the giving of any such notice): (i) declare the Total
Commitment terminated, where-upon all Commitments of each Lender shall forthwith
terminate immediately and any Commitment Commission shall forthwith become
due
and payable without any other notice of any kind; (ii) declare the principal
of
and any accrued interest in respect of all Loans and the Notes and all
Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Credit Party; (iii)
terminate any Letter of Credit which may be termi-nated in accordance with
its
terms; (iv) direct the Borrower to pay (and the Borrower agrees that upon
receipt of such notice, or upon the occurrence of an Event of Default specified
in Section 10.05 with respect to the Borrower, it will pay) to the Collateral
Agent at the Payment Office such additional amount of cash or Cash Equivalents,
to be held as security by the Collateral Agent, as is equal to the aggregate
Stated Amount of all Letters of Credit issued for the account of the Borrower
and then outstanding; (v) enforce, as Collateral Agent, all of the Liens and
security interests created pursuant to the Security Documents; and (vi) apply
any cash collateral held by the Administrative Agent pursuant to Section 4.02
to
the repayment of the Obligations.
SECTION
11. Definitions
and Accounting Terms.
11.01 Defined
Terms.
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
“Acquired
Entity or Business”
shall
mean either (x) the assets constituting a business, division or product line
of
any Person not already a Subsidiary of the Borrower or (y) 100% of the
Equity Interests of any such Person, which Person shall, as a result of the
respective Permitted Acquisi-tion, become a Wholly-Owned Domestic Subsidiary
of
the Borrower (or shall be merged with and into the Borrower or a Subsidiary
Guarantor, with the Borrower or such Subsidiary Guarantor being the surviving
Person).
“Additional
Security Documents”
shall
have the meaning provided in Section 8.12.
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“Adjusted
Consolidated Net Income”
shall
mean, for any period, Consolidated Net Income for such period plus the sum
of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense)
and net non-cash losses which were included in arriving at Consolidated Net
Income for such period, less the amount of all net non-cash gains and non-cash
credits which were included in arriving at Consolidated Net Income for such
period.
“Adjusted
Consolidated Working Capital”
shall
mean, at any time, Consolidated Current Assets (but excluding therefrom all
cash
and Cash Equivalents) less Consolidated Current Liabilities at such
time.
“Administrative
Agent”
shall
mean DBTCA, in its capacity as Administrative Agent for the Lenders hereunder,
and shall include any successor to the Administrative Agent appointed pursuant
to Section 12.09.
“Affiliate”
shall
mean, with respect to any Person, any other Person directly or indirectly
controlling (including, but not limited to, all directors and officers of such
Person), controlled by, or under direct or indirect common control with, such
Person. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power (i) to vote 10% or more of the
securities having ordinary voting power for the election of directors (or
equivalent governing body) of such Person or (ii) to direct or cause the
direction of the manage-ment and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise; provided,
however,
that
neither the Administrative Agent nor any Lender (nor any Affiliate thereof)
shall be considered an Affiliate of the Borrower or any Subsidiary
thereof.
“Agents”
shall
mean, except as otherwise provided in Section 12, any or all of the Syndication
Agent, the Administrative Agent, the Collateral Agent, the Documentation Agent,
the Joint Book Runner and the Lead Arranger.
“Aggregate
Consideration”
shall
mean, with respect to any Permitted Acquisition, the aggregate consideration
paid and reasonably expected to be paid in connection therewith as determined
at
the time of the consummation thereof, including, without limitation (without
duplication), (i) the aggregate amount of all cash and Cash Equivalents paid
or
payable in connection therewith, (ii) the aggregate principal amount of all
Indebtedness assumed, refinanced, incurred or issued in connection therewith,
(iii) the aggregate amount paid and reasonably expected to be paid (based on
the
Borrower’s good faith estimates of such payments) pursuant to any earn-out,
non-compete agreement, consulting arrangement, purchase price adjustments,
deferred purchase price and/or similar arrangements, and (iv) the aggregate
Fair
Market Value of any other consideration; provided that the Aggregate
Consideration for any Permitted Acquisition shall exclude all consideration
in
the form of the Borrower’s common stock or Qualified Capital Stock, as well as
all cash proceeds contributed to the Borrower or the respective Subsidiary
from
a substantially contemporaneous issuance by the Borrower of its common stock
or
Qualified Capital Stock.
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“Agreement”
shall
mean this Credit Agreement, as modified, supplemented, amended, restated
(including any amendment and restatement hereof), extended or renewed from
time
to time.
“Applicable
ECF Percentage”
shall
mean 50%; provided
that if
on the last day of the respective Excess Cash Payment Period, the Total Leverage
Ratio was less than 2.75:1.00, then the Applicable ECF Percentage shall instead
be 0%.
“Applicable
Margin”
shall
mean (I) in the case of Term Loans, a percentage per annum equal to, in the
case
of Term Loans maintained as (x) Base Rate Loans, 0.75% and (y) Eurodollar Loans,
1.75% and (II) in the case of Revolving Loans, a percentage per annum set forth
below under the column for the respective Type of Revolving Loans and opposite
the respective Level (i.e., Level I or Level II, as the case may be) that is
currently in effect based on Debt Rating:
|
Xxxxx’x
Rating
|
Revolving
Loans Maintained as Eurodollar Loans
|
Revolving
Loans Maintained as Base Rate Loans and Swingline Loans
|
||||
|
Level
I
|
Ba3
or higher
|
1.75%
|
0.75%
|
|||
|
Level
II
|
B1
or lower
|
2.00%
|
1.00%
|
;
provided
that (i)
except in the case provided in the second succeeding sentence, the Applicable
Margin for Revolving Loans shall be at Level II at all times when (x) either
Xxxxx’x shall not have in effect a Debt Rating or (y) any Default or Event of
Default is in existence. Any change in the Applicable Margin for Revolving
Loans
due to a change in the Debt Rating shall be effective on the effective date
of
such change in the Debt Rating. If the rating system for Xxxxx’x shall change,
or if Xxxxx’x shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to
enter
into an amendment to this Agreement to reflect such changed rating system or
the
unavailability of ratings from Xxxxx’x and, pending the effectiveness of any
such amendment, the Applicable Margin for Revolving Loans shall be determined
by
reference to the rating most recently in effect prior to such change or
cessation. Notwithstanding the foregoing, if the Applicable Margins for
Incremental Term Loans incurred or to be incurred pursuant to an Incremental
Term Loan Commitment Agreement exceeds the Applicable Margin then in effect
for
Term Loans then outstanding under this Agreement, then the Applicable Margin
for
all Term Loans shall be such higher Applicable Margin as is set forth in such
Incremental Term Loan Commitment Agreement.
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“Applicable
RL Percentage”
shall
mean on any given date (i) if on such date the Total Unutilized Revolving Loan
Commitment is greater than or equal to 50% of the Total Revolving Loan
Commitment, 0.50% and (ii) if on such date the Total Unutilized Revolving Loan
Commitment is less than 50% of the Total Revolving Loan Commitment, 0.375%.
“Asset
Sale”
shall
mean any sale, transfer or other disposition by the Borrower or any of its
Subsidiaries to any Person (including by way of redemption by such Person)
other
than to the Borrower or a Wholly-Owned Subsidiary of the Borrower of any asset
(including, without limitation, any Equity Interests, or other securities of,
another Person) other than sales of assets pursuant to Sections 9.02(ii), (vi),
(vii), (x) and (xv).
“Assignment
and Assumption Agreement”
shall
mean an Assignment and Assumption Agreement substantially in the form of Exhibit
N (appropriately completed).
“Attributable
Debt”
means,
on any date, in respect of any lease of the Borrower or any Subsidiary entered
into as part of a sale and leaseback transaction subject to Section 9.02, (i)
if
such lease is a Capitalized Lease Obligation, the capitalized amount thereof
that would appear on a balance sheet of such Person prepared as of such date
in
accordance with GAAP, and (ii) if such lease is not a Capitalized Lease
Obligation, the capitalized amount of the remaining lease payments under such
lease that would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP if such lease were accounted for as a Capitalized
Lease Obligation.
“Authorized
Representative”
shall
mean, with respect to (i) delivering Notices of Borrowing, Notices of
Conversion/Continuation, Letter of Credit Requests and similar notices, the
Controller, Treasurer and Assistant Controller and any other person or persons
that has or have been authorized by the board of directors of the Borrower
to
deliver such notices pursuant to this Agreement and that has or have appropriate
signature cards or incumbency certificates on file with the Administrative
Agent
and each Issuing Lender; (ii) delivering financial information and officer’s
certificates pursuant to this Agreement, the chief financial officer, any
treasurer or other financial officer of the Borrower and (iii) any other matter
in connection with this Agreement or any other Credit Document, any officer
(or
a person or persons so designated by any two officers) of the
Borrower.
“Bankruptcy
Code”
shall
have the meaning provided in Section 10.05.
“Base
Rate”
shall
mean the higher of (x) the rate that the Administrative Agent announces from
time to time as its prime lending rate, as in effect from time to time, and
(y)
½ of 1% in excess of the overnight Federal Funds Rate at such time.
“Base
Rate Loan”
shall
mean each Term Loan or Revolving Loan designated or deemed designated as such
by
the Borrower at the time of the incurrence thereof or conversion thereto and
each Swingline Loan.
“Borrower”
shall
have the meaning set forth in the first paragraph of this Agreement.
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“Borrowing”
shall
mean the borrowing of one Type of Loan of a single Tranche from all the Lenders
having Commitments of the respective Tranche (or from the Swingline Lender
in
the case of Swingline Loans) on a given date (or resulting from a conversion
or
conver-sions on such date) having in the case of Eurodollar Loans the same
Interest Period, provided
that
Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part
of
the related Borrowing of Eurodollar Loans.
“Business
Day”
shall
mean (i) for all purposes other than as covered by clause (ii) below, any day
except Saturday, Sunday and any day which shall be in New York,
New York, a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (ii)
with
respect to all notices and determinations in connection with, and payments
of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in U.S. dollar deposits in the interbank Eurodollar market.
“Business
Intellectual Property”
shall
have the meaning provided in Section 7.20.
“Calculation
Period”
shall
mean, with respect to any Permitted Acquisition, any Asset Sale, any Permitted
Asset Exchange, any incurrence of Indebtedness or any other event expressly
required to be calculated on a Pro Forma
Basis
pursuant to the terms of this Agreement, the Test Period most recently ended
prior to the date of such Permitted Acquisition, Asset Sale, Permitted Asset
Exchange, incurrence of Indebtedness or other event for which financial
statements are available.
“Capital
Expenditures”
shall
mean, with respect to any Person, all expenditures by such Person which should
be capitalized in accordance with GAAP and, without duplication, the amount
of
Capitalized Lease Obligations incurred by such Person.
“Capitalized
Lease Obligations”
shall
mean, with respect to any Person, all rental obligations of such Person which,
under GAAP, are or will be required to be capitalized on the books of such
Person, in each case taken at the amount thereof accounted for as indebtedness
in accordance with GAAP.
“Cash
Equivalents”
shall
mean, as to any Person, (i) securities issued or directly and fully guaranteed
or insured by the United States or any agency or instrumentality thereof
(provided
that the
full faith and credit of the United States is pledged in support thereof) having
approximate maturities of not more than one year from the date of acquisition,
(ii) marketable direct obliga-tions issued by any state of the United States
or
any political subdivision of any such state or any public instrumentality
thereof maturing within approximately one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Xxxxx’x, (iii) Dollar denom-inated time
deposits, certificates of deposit and bankers acceptances of any Lender or
any
commercial bank hav-ing, or which is the principal banking subsidiary of a
bank
holding company having, a long-term unsecured debt rating of at least “A” or the
equivalent thereof from S&P or “A2” or the equivalent thereof from Xxxxx’x
with approximate maturities of not more than one year from the date of
acquisition by such Person, (iv) repur-chase obligations with a term of not
more
than seven days for underlying securities of the types described in clause
(i)
above entered into with any bank meeting the qualifications specified in clause
(iii) above, (v) commer-cial paper issued by any Person incorporated in the
United States rated at least A-2 or the equivalent thereof by S&P or at
least P-2 or the equivalent thereof by Xxxxx’x and in each case maturing not
more than one year after the date of acquisition by such Person, and (vi)
investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (v) above.
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“CERCLA”
shall
mean the Comprehensive Environmental Response, Compensation, and Liability
Act
of 1980, as the same has been amended and may hereafter be amended from time
to
time, 42 U.S.C. § 9601 et seq.
“CGMI”
Citigroup Capital Markets Group Inc.
“Change
of Control”
shall
mean, at any time and for any reason whatsoever, (a) any “person” or “group” (as
such terms are used in Section 13(d) and 14(d) of the Securities Exchange Act)
shall be the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act) of Equity Interests having more than 30% of the total
voting power of all outstanding Equity Interests of the Borrower in the election
of directors, (b) the Board of Directors of the Borrower shall cease to consist
of a majority of Continuing Directors or (c) a “change of control” or similar
event shall occur as provided in the Existing Second-Lien Note Documents, any
Permitted Subordinated Debt Documents or any other credit agreement, indenture
or similar agreement in connection with indebtedness in an aggregate principal
amount in excess of $1,000,000.
“Change
of Law”
shall
have the meaning provided in Section 10.06.
“Chicago
Assets”
means
the Telecommunications Assets owned by the Borrower and its Subsidiaries that
are, on the Initial Borrowing Date, physically located in the Chicago, Illinois
metropolitan area and utilized to provide telecommunications services to
customers of the Borrower or its Subsidiaries in the Chicago, Illinois
metropolitan area plus (i) such additional Telecommunications Assets as are,
after the Initial Borrowing Date, purchased for such cable systems and located
in the Chicago, Illinois metropolitan area pursuant to Capital Expenditures
made
in accordance with Section 9.07, (ii) related net working capital and (iii)
Equity Interests in Persons that own no assets other than such
assets.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder. Section references to
the
Code are to the Code as in effect at the date of this Agreement and any
subsequent provisions of the Code amendatory thereof, supplemental thereto
or
substituted therefor.
“Collateral”
shall
mean all property (whether real or personal) with respect to which any security
interests have been granted (or purported to be granted) pursuant to any
Security Document, including, without limitation, all Pledge Agreement
Collateral, all Security Agreement Collateral, all Mortgaged Properties and
all
cash and Cash Equivalents delivered as collateral pursuant to Section 4.02
or
10.
“Collateral
Agent”
shall
mean the Administrative Agent acting as collateral agent for the Secured
Creditors pursuant to the Security Documents.
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“Commitment”
shall
mean any of the commitments of any Lender, i.e.,
an
Initial Term Loan Commitment, an Incremental Term Loan Commitment or a Revolving
Loan Commitment.
“Commitment
Commission”
shall
have the meaning provided in Section 3.01(a).
“Communications
Act”
shall
have the meaning provided in Section 7.23.
“Consolidated
Current Assets”
shall
mean, at any time, the consolidated current assets of the Borrower and its
Subsidiaries at such time.
“Consolidated
Current Liabilities”
shall
mean, at any time, the consolidated current liabilities of the Borrower and
its
Subsidiaries at such time, but excluding the current portion of any Indebtedness
under this Agreement and the current portion of any other long-term Indebtedness
which would otherwise be included therein.
“Consolidated
EBITDA”
shall
mean, for any period, Consolidated Net Income for such period, without giving
effect (x) to any extraordinary gains or any extraordinary non-cash losses
(except to the extent that any such extraordinary non-cash losses will require
a
cash payment in a future period) and (y) to any gains or losses from sales
of
assets other than from sales of inventory in the ordinary course of business,
adjusted by (1) adding thereto:
(i) the
Consolidated Interest Expense of the Borrower and its Subsidiaries for such
period (to the extent that such Consolidated Interest Expense was deducted
in
arriving at Consolidated Net Income for such period (and including, to the
extent not otherwise included in consolidated interest expense for such period,
commissions, discounts, yield and other fees and charges incurred during such
period in connection with Permitted Receivables Securitizations that are payable
to any Person other than a Credit Party, and any other amounts for such period
comparable to or in the nature of interest under any Permitted Receivables
Securitization, including losses on the sale of assets relating to any
receivables securitization transaction accounted for as a “true
sale”));
(ii)
provisions
for taxes based on income that were deducted in arriving at Consolidated Net
Income for such period;
(iii) the
amount of all amortization of intangibles and deprecia-tion that were deducted
in arriving at Consolidated Net Income for such period;
(iv)
the
amount of all expenses incurred in connection with the Transaction for such
period to the extent that
same
were deducted in arriving at Consolidated Net Income for such
period;
(v)
the
amount of all non-cash deferred compensation expense for such period to the
extent that same was deducted in arriving at the Consolidated Net Income for
such period;
(vi)
the
amount of debt extinguishment costs (including prepayment premiums) in
connection with the repayment of Indebtedness permitted to be incurred and
repaid pursuant to this Agreement;
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(vii)
(A)
any
non-cash, non-recurring charges and any non-cash charges associated with stock
based compensation and (B) any non-cash impairment, non-cash exit costs (i.e.,
costs for exiting a facility) and non-cash restructuring charges; provided
that
if any cash amounts are paid in any subsequent period with respect to amounts
described above in this clause (vii), the amounts so paid in any subsequent
period shall be subtracted in determining Consolidated EBITDA for such
subsequent period as provided in clause 2(i) below;
and
(2)
deducting therefrom:
(i) the
amount of all cash payments during such period that are associated with any
non-cash loss, charge, impairment, cost (including, without limitation, as
described in preceding clause (1)(vii)) or expense that was added back to
Consolidated Net Income in a previous period; and
(ii)
the
amount of all consolidated interest income of the Borrower and its Subsidiaries
to the extent same increased Consolidated Net Income for such period;
it
being
understood that in determining the Total Leverage Ratio and the Senior Secured
Leverage Ratio, Consolidated EBITDA for any period shall be calculated on a
Pro Forma
Basis to
give effect to any Acquired Entity or Business acquired during such period
pursuant to a Permitted Acquisition, and to any Material Asset Sale effected
during such period.
“Consolidated
Indebtedness”
shall
mean, at any time, the sum of (without duplication) (i) all Indebtedness of
the Borrower and its Subsidiaries (on a consolidated basis) as would be required
to be reflected as debt or Capital Lease Obligations on the liability side
of a
consolidated balance sheet of the Borrower and its Subsidiaries in accordance
with GAAP, (ii) all Indebtedness of the Borrower and its Subsidiaries of
the type described in clauses (ii) and (viii) of the definition of Indebtedness
and (iii) all Contingent Obligations of the Borrower and its Subsidiaries
in respect of Indebtedness of any third Person of the type referred to in
preceding clauses (i) and (ii); provided
that the
sum of the aggregate amount available to be drawn (i.e.,
unfunded amounts) under all letters of credit, bankers’ acceptances, bank
guaranties, surety bonds and similar obligations issued for the account of
the
Borrower or any of its Subsidiaries (but excluding, for avoidance of doubt,
all
unpaid drawings or other matured monetary obligations owing in respect of such
letters of credit, bankers’ acceptances, bank guaranties, surety bonds and
similar obligations) shall not be included in any determination of “Consolidated
Indebtedness.”
“Consolidated
Interest Coverage Ratio”
shall
mean, for any period, the ratio of Consolidated EBITDA to Consolidated Interest
Expense for such period.
“Consolidated
Interest Expense”
shall
mean, for any period, the sum of the total consolidated interest expense of
the
Borrower and its Subsidiaries for such period (calculated without regard to
any
limitations on the payment thereof) plus, without duplication, that portion
of
Capitalized Lease Obligations of the Borrower and its Subsidiaries representing
the interest factor for such period, including, to
the
extent not otherwise included in consolidated interest expense for such period,
commissions, discounts, yield and other fees, charges and amounts incurred
in
connection with Permitted Receivables Securitizations during such period that
are payable to any Person other than a Credit Party and that are comparable
to
or in the nature of interest under any Permitted Receivables Securitization,
including losses on the sale of assets relating to any receiv-xxxxx
securitization transaction accounted for as a “true sale” (other than any
one-time financ-ing fees paid upon entering into any Permitted Receivables
Securitization);
provided
that the
amortization of deferred financing, legal and accounting costs with respect
to
this Agreement and the Existing Second-Lien Note Indenture and any other
Indebtedness permitted to be incurred pursuant to this Agreement, in each case
shall be excluded from Consolidated Interest Expense to the extent same would
otherwise have been included therein.
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“Consolidated
Net Income”
shall
mean, for any period, the net income (or loss) of the Borrower and its
Subsidiaries for such period, determined on a consolidated basis (after any
deduc-tion for minority interests), provided
that (i)
in determining Consolidated Net Income, the net income of any other Person
which
is not a Subsidiary of the Borrower or is accounted for by the Borrower by
the
equity method of accounting shall be included only to the extent of the payment
of cash dividends or cash distri-bu-tions by such other Person to the Borrower
or a Subsidiary thereof during such period, (ii) the net income of any
Subsidiary of the Borrower (other than the Borrower) shall be excluded to the
extent that the declaration or payment of cash dividends or similar cash
distributions by that Subsidiary of that net income is not at the date of
determination permitted by operation of its charter or any agreement, instrument
or law applicable to such Subsidiary and (iii) except in the case of
calculations made on a Pro Forma
Basis,
the net income (or loss) of any other Person acquired by the Borrower or a
Subsidiary of the Borrower in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded.
“Consolidated
Net Tangible Assets”
shall
mean, at any time, the assets of the Borrower and its Subsidiaries determined
on
a consolidated basis at such time less the amount of all intangible assets
of
the Borrower and its Subsidiaries at such time, including, without limitation,
all goodwill, customer lists, franchises, licenses, computer software, patents,
trademarks, trade names, copyrights, service marks, brand names, unamortized
deferred charges, unamortized debt discount and capitalized research and
development costs.
“Consolidated
Senior Secured Indebtedness”
shall
mean, at any time, Consolidated Indebtedness at such time less
the sum
of (i) the aggregate principal amount of all Second-Lien Notes outstanding
at
such time plus
(ii) the
aggregate principal amount of all Permitted Subordinated Debt outstanding at
such time.
“Contingent
Obligation”
shall
mean, as to any Person, any obligation of such Person as a result of such Person
being a general partner of any other Person, unless the under-lying obligation
is expressly made non-recourse as to such general partner, and any obligation
of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obli-gations (“primary
obligations”)
of any
other Person (the “primary
obligor”)
in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any such
primary obligation or any property consti-tut-ing direct or indirect security
therefor, (ii) to advance or supply funds (x) for the purchase or pay-ment
of
any such primary obligation or (y) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency of
the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obli-gation
or
(iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof; provided,
however,
that
the term Contingent Obligation shall not include endorsements of instruments
for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good
faith.
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“Continuing
Directors”
shall
mean the directors of the Borrower on the Effective Date, after giving effect
to
the Transaction, and each other director if, in each case, such other director’s
nomination for election to the board of directors of the Borrower is recommended
by at least a majority of the then Continuing Directors in his or her election
by the shareholders of the Borrower.
“Credit
Documents”
shall
mean this Agreement, the Intercreditor Agreement and, after the execution and
delivery thereof pursuant to the terms of this Agreement, each Note, the
Subsidiaries Guaranty and each Security Document.
“Credit
Event”
shall
mean the making of any Loan or the issuance of any Letter of
Credit.
“Credit
Party”
shall
mean the Borrower and each Subsidiary Guarantor.
“DBAG”
shall
mean Deutsche Bank AG Cayman Island Branch.
“DBSI”
shall
mean Deutsche Bank Securities Inc., in its individual capacity.
“DBTCA”
shall
mean Deutsche Bank Trust Company Americas, in its individual capacity, and
any
successor corporation thereto by merger, consolidation or
otherwise.
“Debt
Rating”
shall
mean, as of any date, the rating that has been most recently announced by
Xxxxx’x for the senior secured long term debt issued of the
Borrower.
“Default”
shall
mean any event, act or condition which with notice or lapse of time, or both,
would constitute an Event of Default.
“Defaulting
Lender”
shall
mean any Lender with respect to which a Lender Default is in
effect.
“Dividend”
shall
mean, with respect to any Person, that such Person has declared or paid a
dividend, distribution or returned any equity capital to its stockholders,
partners or members or authorized or made any other distribution, payment or
delivery of property (other than Qualified Capital Stock of the same type as
that in respect of which such dividend or distribution is being made of such
Person or rights to acquire Qualified Capital Stock of the same type as that
in
respect of which such dividend or distribution is being made of such Person)
or
cash to its stockholders, partners or members as such, or redeemed, retired,
purchased or otherwise acquired, directly or indirectly, for a consideration
any
Equity Interests outstanding on or after the Initial Borrowing Date (or any
options or warrants issued by such Person with respect to its Equity Interests),
or set aside any funds for any of the foregoing purposes, or shall have
permitted any of its Subsidiaries to purchase or otherwise acquire for a
consideration any Equity Interests of such Person outstanding on or after the
Initial Borrowing Date (or any options or warrants issued by such Person with
respect to its Equity Interests). Without limiting the foregoing, “Dividends”
with respect to any Person shall also include all payments made or required
to
be made by such Person with respect to any stock appreciation rights, plans,
equity incentive or achievement plans or any similar plans or setting aside
of
any funds for the foregoing purposes.
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“Documentation
Agent”
shall
mean SocGen, in its capacity as such hereunder.
“Documents”
shall
mean the Credit Documents and the Second-Lien Note Documents.
“Dollars”
and
the
sign “$”
shall
each mean freely transferable lawful money of the United States.
“Drawing”
shall
have the meaning provided in Section 2.05(b).
“Effective
Date”
shall
have the meaning provided in Section 13.10.
“Eligible
Transferee”
shall
mean a commercial bank, an insurance company, a finance company, a financial
institution, any fund that invests in Term Loans or any other “accredited
investor” (as defined in Regulation D of the Securities Act), but in any event
excluding the Borrower and its Subsidiaries.
“Environmental
Claims”
shall
mean any and all administrative, regulatory or judicial actions, suits, demands,
demand letters, directives, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating in any way to any
Environmental Law or any permit issued, or any approval given, under any such
Environmental Law (hereafter, “Claims”),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial
or
other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment
due
to the presence of Hazardous Materials.
“Environmental
Law”
shall
mean any Federal, state, foreign or local statute, law, rule, regulation,
ordinance, code, guideline, policy and rule of common law now or hereafter
in
effect and in each case as amended, and any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent
decree or judgment, relating to the environment, employee health and safety
or
Hazardous Materials, including, without limitation, CERCLA; the Resource
Conservation and Recovery Act, 42 U.S.C § 6901 et seq.;
the
Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.;
the
Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.;
the
Clean Air Act, 42 U.S.C. § 7401 et seq.;
the
Safe Drinking Water Act, 42 U.S.C. § 3803 et seq.;
the Oil
Pollution Act of 1990, 33 U.S.C. § 2701 et seq.;
the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C.
§ 11001 et seq.;
the
Hazardous Material Transportation Act, 49 U.S.C. § 1801 et seq.;
the
Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.;
and any
state and local or foreign counterparts or equivalents, in each case as amended
from time to time.
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“Equity
Interests”
of
any
Person shall mean any and all shares, interests, rights to purchase, warrants,
options, participation or other equivalents of or interest in (however
desig-nated) equity of such Person, including any preferred stock, any limited
or general partner-ship interest and any limited liability company membership
interest.
“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder. Sec-tion
references to ERISA are to ERISA, as in effect at the date of this Agreement
and
any sub-sequent provisions of ERISA, amendatory thereof, supplemental thereto
or
substituted therefor.
“ERISA
Affiliate”
shall
mean each person (as defined in Section 3(9) of ERISA) which together with
the
Borrower or a Subsidiary of the Borrower would be deemed to be a “single
employer” (i) within the meaning of Section 414(b), (c), (m) or (o) of the Code
or (ii) as a result of the Borrower or a Subsidiary of the Borrower being or
having been a general partner of such person.
“Eurodollar
Loan”
shall
mean each Loan desig-nated as such by the Borrower at the time of the incurrence
thereof or conversion thereto.
“Eurodollar
Rate”
shall
mean (a) the offered quotation to first-class banks in the New York interbank
Eurodollar market by the Administrative Agent for Dollar deposits of amounts
in
immediately available funds comparable to the outstanding principal amount
of
the Eurodollar Loan of the Administrative Agent (in its capacity as a Lender)
with maturities comparable to the Interest Period applicable to such Eurodollar
Loan commencing two Business Days thereafter as of 10:00 A.M. (New York time)
on
the applicable Interest Determination Date, divided (and rounded upward to
the
nearest 1/16 of 1%) by (b) a percentage equal to 100% minus the then stated
maximum rate of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves required by
applicable law) applicable to any member bank of the Federal Reserve System
in
respect of Eurocurrency funding or liabilities as defined in Regulation D (or
any successor category of liabilities under Regulation D).
“Event
of Default”
shall
have the meaning provided in Section 10.
“Excess
Cash Flow”
shall
mean, for any period, the remainder of (a) the sum of, without duplication,
(i)
Adjusted Consolidated Net Income for such period and (ii) the decrease, if
any,
in Adjusted Consolidated Working Capital from the first day to the last day
of
such period, minus (b) the sum of, without duplication, (i) the aggregate amount
of all Capital Expenditures made by the Borrower and its Subsidiaries during
such period (other than Capital Expenditures to the extent financed with equity
proceeds, Asset Sale proceeds, insurance proceeds or Indebtedness), (ii) the
aggregate amount of all payments made in respect of all Permitted Acquisitions
consummated by the Borrower and its Subsidiaries during such period (other
than
any such payments to the extent financed with equity proceeds, Asset Sale
proceeds, insur-ance proceeds or Indebtedness), (iii) the aggregate amount
of
permanent principal payments of Indebtedness for borrowed money of the Borrower
and its Subsidiaries during such period (other than (A) repayments pursuant
to
the Refinancing, (B) repayments to the extent made with Asset Sale proceeds,
equity proceeds, insurance pro-ceeds or Indebtedness and (C) repay-ments of
Loans, provided
that
repayments of Loans shall be deducted in determining Excess Cash Flow to the
extent such repayments were (x) required as a result of a Scheduled Repayment
under Section 4.02(b) or (y) made as a voluntary prepayment with intern-ally
generated funds (but in the case of a voluntary prepayment of Revolving Loans
or
Swingline Loans, only to the extent accompanied by a voluntary reduction to
the
Total Revolving Loan Commitment in an amount equal to such prepayment)), and
(iv) the increase, if any, in Adjusted Consolidated Working Capital from the
first day to the last day of such period.
-88-
“Excess
Cash Payment Date”
shall
mean April 15 of each year (commencing on April 15, 2006).
“Excess
Cash Payment Period”
shall
mean, with respect to the repayment required on each Excess Cash Payment Date,
the immediately preceding fiscal year of the Borrower.
“Existing
Credit Agreements”
shall
mean each of the Existing First-Lien Credit Agreement and the Existing
Third-Lien Credit Agreement.
“Existing
First-Lien Credit Agreement”
shall
mean the First-Lien Credit Agreement, dated as of December 21, 2004, among
the
Borrower, the Lenders party thereto from time to time and Deutsche Bank Cayman
Islands Branch, as Administrative Agent (as in effect on the Initial Borrowing
Date immediately prior to giving effect to the Transaction).
“Existing
Indebtedness”
shall
have the meaning provided in Section 7.21.
“Existing
Second-Lien Administrative Agent”
shall
mean the “Trustee” (including in its capacity as collateral agent under the
Existing Second-Lien Note Documents) under and as defined in the Existing
Second-Lien Note Indenture.
“Existing
Second-Lien Collateral Agent”
shall
mean the “Trustee” under and as defined in the Existing Second-Lien Note
Documents.
“Existing
Second-Lien Note Documents”
shall
mean the Existing Second-Lien Note Indenture, and the related guarantees, pledge
agreements, security agreements, mortgages, notes and other agreements and
instruments entered into in connection with the Existing Second-Lien Note
Indenture, in each case as the same may be amended, modified and/or supplemented
from time to time in accordance with the terms hereof and thereof.
“Existing
Second-Lien Note Indenture”
shall
mean that certain Indenture, dated as of December 21, 2004, among the Borrower,
as Issuer, and the Existing Second-Lien Administrative Agent, as Trustee, as
the
same may be amended, modified and/or supplemented from time to time in
accordance with the terms hereof and thereof.
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“Existing
Second-Lien Notes”
shall
mean the 7-3/8% Convertible Second-Lien Notes due 2012 issued by the Borrower
on
December 21, 2004 pursuant to the Existing Second-Lien Note
Indenture.
“Existing
Second-Lien Security Documents”
shall
mean the “Security Documents” under, and as defined in, the Existing Second-Lien
Note Indenture.
“Existing
Standby Letter of Credit”
shall
have the meaning provided in Section 2.01(b).
“Existing
Third-Lien Credit Agreement”
shall
mean the Credit Agreement, dated as of December 21, 2004, among the Borrower,
the lenders party thereto, and HSBC Bank USA, National Association, as agent,
as
the same may be amended, modified, and/or supplemented from time to time in
accordance with the terms hereof and thereof.
“Existing
Third-Lien Credit Documents”
shall
mean the Third-Lien Credit Agreement, and the related guarantees, pledge
agreements, security agreements, mortgages, notes and other agreements and
instruments entered into in connection with the Third-Lien Credit Agreement,
in
each case as the same may be amended, modified and/or supplemented from time
to
time in accordance with the terms hereof and thereof.
“Facing
Fee”
shall
have the meaning provided in Section 3.01(d).
“Fair
Market Value”
shall
mean, with respect to any asset, the price at which a willing buyer, not an
Affiliate of the seller, and a willing seller who does not have to sell, would
agree to purchase and sell such asset (as determined in good faith by the board
of directors or other governing body or, pursuant to a specific delegation
of
authority by such board of directors or governing body, a designated senior
executive officer, of the Borrower, or the Subsidiary of the Borrower selling
such asset). For the avoidance of doubt, the determination of “price” for the
purposes of calculations of the Fair Market Value of assets transferred pursuant
to a Permitted Asset Exchange shall be made in accordance with the provisions
of
the parenthetical statement contained in the immediately preceding sentence.
“FCC”
shall
mean the U.S. Federal Communications Commission, or any successor
thereto.
“FCC
Licenses”
shall
have the meaning provided in Section 7.23(a).
“FDIC”
shall
mean the Federal Deposit Insurance Corporation or any successor
thereto.
“Federal
Funds Rate”
shall
mean, for any period, a fluctuating interest rate equal for each day during
such
period to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal
Funds brokers, as published for such day (or, if such day is not a Business
Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized standing
selected by the Administrative Agent.
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“Fees”
shall
mean all amounts payable pursuant to or referred to in Section
3.01.
“FEMA”
shall
mean the Federal Emergency Management Agency or any successor
thereto.
“Financial
Covenants”
shall
mean each of the financial covenants contained in Sections 9.08 and
9.09.
“Foreign
Pension Plan”
shall
mean each employee benefit plan, employment, bonus, incentive, stock purchase
and stock option plan, program, agreement or arrangement; and each severance,
termination pay, salary continuation, retention, accrued leave, vacation, sick
pay, sick leave, medical, life insurance, disability, accident, profit-sharing,
fringe benefit, pension, deferred compensation or other retirement or
superannuation plan, fund, program, agreement, commitment or arrangement
sponsored, established, maintained or contributed to, or required to be
contributed to, or with respect to which any liability is borne, outside the
fifty states of the United States of America, by the Borrower or any of its
Subsidiaries, including, without limitation, any such plan, fund, program,
agreement or arrangement sponsored by a government or governmental
entity.
“Foreign
Person”
means
any Person that is not a “United States person” as defined in Section 7701(a)(3)
of the Code.
“GAAP”
shall
mean generally accepted accounting principles in the United States of America
as
in effect from time-to-time; provided that determinations in accordance with
GAAP for purposes of Sections 4.02, 8.15 and 9, including defined terms as
used therein, are subject (to the extent provided therein) to
Section 13.07(a).
“Governmental
Authorizations”
shall
have the meaning provided in Section 7.23(b).
“Hazardous
Materials”
shall
mean (a) any petroleum or petroleum products, radioactive materials,
asbestos in any form that is or could become friable, urea formaldehyde foam
insulation, dielectric fluid containing levels of polychlorinated biphenyls,
and
radon gas; (b) any chemicals, materials or substances defined as or
included in the definition of “hazardous substances,” “hazardous waste,”
“hazardous materials,” “extremely hazardous substances,” “restricted hazardous
waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,”
or words of similar import, under any applicable Environmental Law; and
(c) any other chemical, material or substance, the exposure to, or Release
of which is prohibited, limited or regulated by any governmental
authority.
“Incremental
Term Loan”
shall
have the meaning provided in Section 1.01(e).
“Incremental
Term Loan Borrowing Date”
shall
mean each date on which Incremental Term Loans are incurred pursuant to Section
1.01(e).
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“Incremental
Term Loan Commitment”
shall
mean, for each Incremental Term Loan Lender, the commitment of such Incremental
Term Loan Lender to make Incremental Term Loans pursuant to Section 1.01(e)
on a
given Incremental Term Loan Borrowing Date, as such commitment is set forth
in
the respective Incremental Term Loan Commitment Agreement.
“Incremental
Term Loan Commitment Agreement”
shall
mean an Incremental Term Loan Commitment Agreement substantially in the form
of
Exhibit C (appropriately completed as contemplated by this Agreement and with
such modifications as may be acceptable to the Administrative Agent and the
Borrower).
“Incremental
Term Loan Lender”
shall
mean at any time each Lender with an Incremental Term Loan Commitment or with
outstanding Incremental Term Loans.
“Incremental
Term Note”
has
the
meaning provided in Section 1.05(a).
“Indebtedness”
shall
mean, as to any Person, without duplication, (i) all indebted-ness (including
principal, interest, fees and charges) of such Person for borrowed money or
for
the deferred purchase price of property or services, (ii) the maximum amount
available to be drawn under all letters of credit, bankers’ acceptances and
similar obligations issued for the account of such Person and all unpaid
drawings in respect of such letters of credit, bankers’ acceptances and similar
obligations, (iii) all Indebtedness of the types described in clause (i), (ii),
(iv), (v), (vi), (vii), (viii) or (ix) of this definition secured by any Lien
on
any property owned by such Person, whether or not such Indebtedness has been
assumed by such Person (provided
that, if
the Person has not assumed or otherwise become liable in respect of such
Indebtedness, such Indebtedness shall be deemed to be in an amount equal to
the
Fair Market Value of the property to which such Lien relates as deter-mined
in
good faith by such Person), (iv) the aggregate amount of all Capitalized Lease
Obligations of such Person, (v) all obligations of such Person to pay a
specified purchase price for goods or services, whether or not delivered or
accepted, i.e.,
take-or-pay and similar obligations, (vi) all Contingent Obligations of such
Person, (vii) all obligations under any Interest Rate Protection Agreement,
any
Other Hedging Agreement or under any similar type of agreement, (viii) the
amount of any Permitted Receivables Securitizations of such Person and (ix)
all
Off-Balance Sheet Liabilities of such Person. Notwithstanding the foregoing,
Indebtedness shall not include trade payables and accrued expenses incurred
by
any Person in accordance with customary practices and in the ordinary course
of
business of such Person. It is understood and agreed that surety bonds obtained
in the ordinary course of business (and the related reimbursement obligations
to
the respective surety or sureties) for the benefit of (and which support only
obligations otherwise permitted hereunder of) the Borrower and the Subsidiary
Guarantors (other than RCN International) shall not be considered Indebtedness
for purposes of this definition, so long as such surety bonds do not otherwise
support any obligation that would constitute Indebtedness.
“Initial
Borrowing Date”
shall
mean the date occurring on or after the Effective Date on which the initial
Borrowing of Loans occurs.
“Initial
Term Loan Commitment”
shall
mean, for each Lender, the amount set forth opposite such Lender’s name in
Schedule 1.01 directly below the column entitled “Initial Term Loan
Commitment,” as the same may be terminated pursuant to Sections 3.03 and/or
10.
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“Initial
Term Loans”
shall
have the meaning provided in Section 1.01(a).
“Intercompany
Loan”
shall
have the meaning provided in Section 9.05(vii).
“Intercompany
Note”
shall
mean a promissory note, in the form of Exhibit M, evidencing Intercompany
Loans.
“Intercreditor
Agreement”
shall
mean that certain Intercreditor Agreement, dated as of December 21, 2004, and
entered into by and among the Borrower, each other Grantor from time to time
party thereto, the Administrative Agent, as successor to Deutsche Bank AG Cayman
Islands Branch, in its capacities as administrative agent and collateral agent
under the Credit Documents, the Existing Second Lien Collateral Agent and HSBC
Bank USA, National Association, in its capacities as administrative agent and
collateral agent under the Existing Third-Lien Credit Documents (together with
its successors and assigns from time to time).
“Interest
Determination Date”
shall
mean, with respect to any Eurodollar Loan, the second Business Day prior to
the
commencement of any Interest Period relating to such Eurodollar
Loan.
“Interest
Period”
shall
have the meaning provided in Section 1.09.
“Interest
Rate Protection Agreement”
shall
mean any interest rate swap agreement, interest rate cap agreement, interest
collar agreement, interest rate hedging agreement or other similar agreement
or
arrangement.
“Investments”
shall
have the meaning provided in Section 9.05.
“Issuing
Lender”
shall
mean (i) except as otherwise provided in Section 12.09, DBTCA (which for
purposes of this definition shall also include any banking affiliate of DBTCA
(including Deutsche Bank AG New York Branch) which may agree to issue Letters
of
Credit under this Agreement), (ii) with respect to the Existing Standby Letters
of Credit only, DBAG and (iii) any other Lender reasonably acceptable to the
Administrative Agent which agrees to issue Letters of Credit hereunder. Any
Issuing Lender may, in its discretion, arrange for one or more Letters of Credit
to be issued by one or more Affiliates of such Issuing Lender. The only Issuing
Lenders on the Initial Borrowing Date are the Administrative Agent and, with
respect to Existing Standby Letters of Credit only, DBAG.
“Joint
Book Runners”
shall
mean each of DBSI and CGMI, in each of their capacities as such
hereunder.
“L/C
Supportable Obligations”
shall
mean (i) obligations of the Borrower or any of its Subsidiaries with respect
to
workers compensation, surety bonds and other similar statutory obligations
and
(ii) such other obligations of the Borrower or any of its Subsidiaries as are
reason-ably acceptable to the respective Issuing Lender and otherwise permitted
to exist pursuant to the terms of this Agreement.
“Lead
Arranger”
shall
mean DBSI, in its capacity as such hereunder.
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“Leaseholds”
of
any
Person shall mean all the right, title and interest of such Person as lessee
or
licensee in, to and under leases or licenses of land, improvements and/or
fixtures.
“Lender”
shall
mean each financial institution listed on Schedule 1.01, as well as any Person
that becomes a “Lender” hereunder pursuant to Section 1.13, 1.14 or
13.04(b).
“Lender
Default”
shall
mean (i) the refusal (which has not been retracted) or the failure of a Lender
to make available its portion of any Borrowing (including any Mandatory
Borrowing) or to fund its portion of any unreimbursed payment under Section
2.04(c) or (ii) a Lender having notified in writing the Borrower and/or the
Administrative Agent that such Lender does not intend to comply with its
obligations under Section 1.01 or 2.
“Letter
of Credit”
shall
have the meaning provided in Section 2.01(a).
“Letter
of Credit Fee”
shall
have the meaning provided in Section 3.01(c).
“Letter
of Credit Outstandings”
shall
mean, at any time, the sum of (i) the Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of
all
Letters of Credit.
“Letter
of Credit Request”
shall
have the meaning provided in Section 2.03(a).
“Lien”
shall
mean any mortgage, pledge, hypothecation, assignment, deposit arrange-ment,
encumbrance, lien (statutory or other), preference, priority or other security
agree-ment of any kind or nature whatsoever (including, without limitation,
any
conditional sale or other title retention agreement, any financing or similar
statement or notice filed under the UCC or any other similar recording or notice
statute, and any lease having substantially the same effect as any of the
foregoing).
“Loan”
shall
mean each Term Loan (including each Incremental Term Loan), each Revolving
Loan
and each Swingline Loan.
“Los
Angeles Assets”
means
the Telecommunications Assets owned by the Borrower and its Subsidiaries that
are, on the Initial Borrowing Date, physically located in the Los Angeles,
California metropolitan area and utilized to provide telecommunications services
to customers of the Borrower or its Subsidiaries in the Los Angeles, California
metropolitan area plus (i) such additional Telecommunications Assets as are,
after the Initial Borrowing Date, acquired for such cable systems and located
in
the Los Angeles, California metropolitan area pursuant to Capital Expenditures
made in accordance with Section 9.07, (ii) related net working capital and
(iii)
Equity Interests in Persons that own no assets other than such
assets.
“Majority
Lenders”
of
any
Tranche shall mean those Non-Defaulting Lenders which would constitute the
Required Lenders under, and as defined in, this Agreement if all outstanding
Obligations under the other Tranche were repaid in full and all commitments
with
respect thereto were terminated.
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“Management
Agreements”
shall
mean all material agreements entered into by the Borrower or any of its
Subsidiaries with respect to the management of the Borrower or any of its
Subsidiaries after giving effect to the Transaction (including consulting
agreements and other management advisory agreements but excluding employment
agreements).
“Mandatory
Borrowing”
shall
have the meaning provided in Section 1.01(d).
“Margin
Stock”
shall
have the meaning provided in Regulation U.
“Material
Adverse Effect”
shall
mean (i) a material adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole since December 31, 2005 or
(ii) a material adverse effect (x) on the rights or remedies of the Lenders
or
the Administrative Agent hereunder or under any other Credit Document or (y)
on
the ability of any Credit Party to perform its obligations to the Lenders or
Administrative Agent hereunder or under any other Credit Document.
“Material
Asset Sale”
shall
mean any Asset Sale where the gross proceeds received by the Borrower and its
Subsidiaries (taking the amount of cash and Cash Equivalents received, the
principal amount of Indebtedness assumed and the Fair Market Value of all other
consideration) is in excess of $5,000,000.
“Maturity
Date”
shall
mean, with respect to the relevant Tranche of Loans, the Term Loan Maturity
Date, the Revolving Loan Maturity Date or the Swingline Expiry Date, as the
case
may be.
“Maximum
Swingline Amount”
shall
mean $5,000,000.
“Minimum
Borrowing Amount”
shall
mean (i) for Term Loans, $5,000,000, (ii) for Revolving Loans, $500,000,
and (iii) for Swingline Loans, $100,000.
“Moody’s”
shall
mean Xxxxx’x Investors Service, Inc.
“Mortgage”
shall
mean a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust,
deed to secure debt, leasehold deed to secure debt or similar security
instrument.
“Mortgage
Policy”
shall
mean a mortgage title insurance policy or a binding commitment with respect
thereto.
“Mortgaged
Property”
shall
mean any Real Property owned or leased by the Borrower or any of its
Subsidiaries which is encumbered (or required to be encumbered) by a
Mortgage.
“NAIC”
shall
mean the National Association of Insurance Commissioners.
“Net
Debt Proceeds”
shall
mean, with respect to any incurrence of Indebtedness for borrowed money, the
cash proceeds (net of underwriting discounts and commissions and other
reasonable costs and expenses associated therewith) received by the respective
Person from the respective incurrence of such Indebtedness for borrowed
money.
-95-
“Net
Insurance Proceeds”
shall
mean, with respect to any Recovery Event, the cash proceeds (net of the (x)
marginal increase in taxes reasonably expected to be payable with respect to
the
fiscal year in which such event occurred as a result thereof and reasonable
costs and expenses incurred in connection with such Recovery Event and (y)
all
cash amounts required to be applied as the result of such event to repay
Indebtedness (other than Indebtedness hereunder or under the Second-Lien Credit
Documents) of the Borrower or the respective Subsidiary secured by such asset)
received by the respective Person in connection with such Recovery
Event.
“Net
Sale Proceeds”
shall
mean, for any Asset Sale, the gross cash proceeds (includ-ing any cash received
by way of deferred payment pursuant to a promissory note, receiv-able or
otherwise, but only as and when received) received from such sale of assets,
net
of the reasonable costs and expenses of such sale (including fees and
commissions, payments of unassumed liabilities relating to the assets sold
and
required payments of any Indebtedness (other than Indebtedness secured pursuant
to the Security Documents) which is secured by the respective assets which
were
sold), and the marginal increase in taxes reasonably expected to be payable
with
respect to the fiscal year in which such Asset Sale occurred as a result thereof
and the amount of any reserves established by the Borrower and the Subsidiaries
to fund contingent liabilities reasonably estimated to be payable within one
year of the date of such Assets Sale, and that are directly attributable to
such
Asset Sale (as determined reasonably and in good faith by the chief financial
officer of the Borrower); provided
that (x)
the unused portion of any such reserves shall constitute Net Sale Proceeds
and
be required to be used to prepay Loans in accordance with Section 4.02(d) on
the
date occurring one year from the respective Asset Sale or (y) if any such
reserves are otherwise reversed or released, an amount equal to the amount
of
such reversal or release shall be deemed to constitute Net Sale Proceeds
received at the time of such reversal or release and shall be used to prepay
Loans in accordance with Section 4.02(d).
“Non-Defaulting
Lender”
and
“Non-Defaulting
RL Lender”
shall
mean and include each Lender or RL Lender, as the case may be, other than a
Defaulting Lender.
“Non-Wholly-Owned
Subsidiary”
shall
mean any Subsidiary of the Borrower that is not a Wholly-Owned Subsidiary of
the
Borrower.
“Note”
shall
mean each Term Note, each Incremental Term Note, each Revolving Note and the
Swingline Note.
“Notice
of Borrowing”
shall
have the meaning provided in Section 1.03(a).
“Notice
of Conversion/Continuation”
shall
have the meaning provided in Section 1.06.
“Notice
Office”
shall
mean (i) for credit notices, the office of the Administrative Agent located
at
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxx, Telephone
No.:
(000) 000-0000, and Telecopier No.: (000) 000-0000 and (ii) for operational
notices, the office of the Administrative Agent located at 00 Xxxxxx Xxxxxx,
0xx
Xxxxx,
Xxxxxx City, New Jersey 07302, Attention: Xxxx Xxxxx, Telephone No.: (000)
000-0000 and Telecopier No.: (000) 000-0000, or such other office or person
as
the Administrative Agent may hereafter designate in writing as such to the
other
parties hereto.
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“Obligations”
shall
mean all amounts owing to the Administrative Agent, the Collateral Agent, any
other Agent, any Issuing Lender, or any Lender pursuant to the terms of this
Agreement or any other Credit Document.
“Off-Balance
Sheet Liabilities”
of
any
Person shall mean (i) any repurchase obligation or liability of such Person
with
respect to accounts or notes receivable sold by such Person, (ii) any liability
of such Person under any sale and leaseback transactions that do not create
a
liability on the balance sheet of such Person, (iii) any obligation under a
Synthetic Lease or (iv) any obligation arising with respect to any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the balance sheet of
such
Person.
“Other
Hedging Agreements”
shall
mean any foreign exchange contracts, currency swap agreements, commodity
agreements or other similar arrangements, or arrangements designed to protect
against fluctuations in currency values or commodity prices.
“Participant”
shall
have the meaning provided in Section 2.04(a).
“Payment
Office”
shall
mean the office of the Administrative Agent located at 00 Xxxxxx Xxxxxx,
0xx
Xxxxx,
Xxxxxx Xxxx, Xxx Xxxxxx or such other office as the Administrative Agent may
hereafter designate in writing as such to the other parties hereto.
“PBGC”
shall
mean the Pension Benefit Guaranty Corporation established pursuant to Section
4002 of ERISA, or any successor thereto.
“Permitted
Acquisition”
shall
mean the acquisition by the Borrower or a Wholly-Owned Domestic Subsidiary
Guarantor of an Acquired Entity or Business (including by way of merger of
such
Acquired Entity or Business with and into the Borrower (so long as the Borrower
is the surviving corporation) or a Wholly-Owned Domestic Subsidiary Guarantor
(so long as the Wholly-Owned Domestic Subsidiary Guarantor is the surviving
corporation)), provided
that (in
each case) (A) the consideration paid or to be paid by the Borrower or such
Wholly-Owned Domestic Subsidiary Guarantor consists solely of cash, the issuance
or incurrence of Indebtedness otherwise permitted by Section 9.04, the
assumption/acquisi-tion of any Indebtedness (calculated at face value) which
is
permitted to remain outstanding in accor-dance with the require-ments of Section
9.04 and the issuance of Equity Interests of the Borrower, (B) in the case
of
the acquisition of 100% of the capital stock or other Equity Interests of any
Person (including way of merger), such Person shall own no Equity Interests
of
any other Person (excluding de minimis
amounts)
unless such Person owns 100% of the Equity Interests of such other Person,
(C)
all of the business, division or product line acquired pursuant to the
respective Permitted Acquisition, or the business of the Person acquired
pursuant to the respective Permitted Acquisition and its Subsidiaries taken
as a
whole, is in the United States, (D) the Acquired Entity or Business acquired
pursuant to the respective Permitted Acquisition is in a business permitted
by
Section 9.13 and (E) all appli-cable requirements of Sections 8.15, 9.02 and
9.14 applicable to Permitted Acquisitions are satis-fied. Notwithstanding
anything to the contrary contained in the immediately preceding sen-tence,
an
acquisition which does not otherwise meet the requirements set forth above
in
the defini-tion of “Permitted Acquisition” shall constitute a Permitted
Acquisition if, and to the extent, the Required Lenders agree in writing, prior
to the consumma-tion thereof, that such acqui-si-tion shall constitute a
Permitted Acquisition for purposes of this Agreement.
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“Permitted
Asset Exchange”
shall
mean the exchange by the Borrower or its Subsidiaries of any of their assets
or
property (other than Equity Interests of a Subsidiary or an Unrestricted
Subsidiary) for property and assets of another Person (other than the Equity
Interests of any Person) pursuant to an arm’s-length transaction, provided
that (v)
calculations are made by the Borrower with respect to the Financial Covenants
for the respective Calculation Period on a Pro Forma
Basis as
if the respective Permitted Asset Exchange (as well as all other Permitted
Asset
Exchanges theretofore consummated after the first day of such Calculation
Period) had occurred on the first day of such Calculation Period, and such
calculations shall show that the Financial Covenants would have been complied
with if the Permitted Asset Exchange had occurred on the first day of such
Calculation Period, (w) the Borrower or the respective Subsidiary consummating
such Permitted Asset Exchange receives assets (whether cash or otherwise) having
a Fair Market Value that is approximately equal to the Fair Market Value of
the
assets disposed of by the Borrower or such respective Subsidiary in connection
with such Permitted Asset Exchange, (x) no consideration other than the assets
which are the subject of the respective Permitted Asset Exchange is paid by
the
Borrower or any of its Subsidiaries in connection with such Permitted Asset
Exchange unless such payment is permitted under Section 9.05(xi) or (xii),
(y)
any Lien on any asset acquired by the Borrower or any of its Subsidiaries
pursuant to any such Permitted Asset Exchange is permitted under Section
9.01(xviii), and (z) the Collateral Agent for the benefit of the Secured
Creditors shall have a perfected security interest in all assets obtained by
the
Borrower and each Subsidiary Guarantor pursuant to each such Permitted Asset
Exchange pursuant to, and to the extent provided in, the Security
Documents.
“Permitted
Encumbrance”
shall
mean, with respect to any Mortgaged Property, such exceptions to title as are
set forth in the Mortgage Policy delivered with respect thereto, all of which
exceptions must be acceptable to the Administrative Agent in its reasonable
discretion.
“Permitted
Liens”
shall
have the meaning provided in Section 9.01.
“Permitted
RP Amount”
shall
initially mean $0, provided
that on
each date (but not more than once during any fiscal year of the Borrower) when
the Borrower delivers the financial statements and related officer’s certificate
required to be delivered pursuant to Sections 8.01(b) and (e) (commencing with
the Borrower’s fiscal year ending December 31, 2006), the Permitted RP Amount
shall be increased by an amount equal to 50% of the Excess Cash Flow for the
respective fiscal year for which such financial statements and related officer’s
certificate have been delivered;
provided,
however,
(i) no
increases to the Permitted RP Amount shall occur by operation of the preceding
proviso if (x) Excess Cash Flow for the respective fiscal year is a negative
number or (y) the Borrower shall not have timely complied with its obligations
under Section 4.02(e) in respect of such fiscal year and (ii) on the date any
Dividend, Investment or prepayment, redemption or acquisition of Existing
Second-Lien Notes is made pursuant to Sections 9.03(iv), 9.05(xi) or clause
(B)
of the proviso to Section 9.10(i), respectively, the Permitted RP Amount shall
be reduced by the aggregate amount of each such Dividend, Investment, or
prepayment, redemption or acquisition, as the case may be, so made.
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“Permitted
Receivables Securitization”
shall
mean any transaction or series of transactions that may be entered into by
the
Borrower or any Subsidiary of the Borrower pursuant to which it may sell,
convey, contribute to capital or otherwise transfer (which sale, conveyance,
contribution to capital or transfer may include or be supported by the grant
of
a security interest) Receivables or interests therein and all collateral
securing such Receivables, all contracts and contract rights, purchase orders,
security interests, financing statements or other documentation in respect
of
such Receivables, any guarantees, indemnities, warranties or other obligations
in respect of such Receivables, any other assets that are customarily
transferred or in respect of which security interests are customarily granted
in
connection with asset securitization transactions involving receivables similar
to such Receivables and any collections or proceeds of any of the foregoing
(collectively, the “Related
Assets”)
(i) to
a trust, partnership, corporation or other Person (other than the Borrower
or
any Subsidiary of the Borrower, except an SPE Subsidiary), which transfer is
funded in whole or in part, directly or indirectly, by the incurrence or
issuance by the transferee or any successor transferee of Indebtedness,
fractional undivided interests or other securities that are to receive payments
from, or that represent interests in, the cash flow derived from such
Receivables and Related Assets or interests in such Receivables and Related
Assets, or (ii) directly to one or more investors or other purchasers (other
than the Borrower or any Subsidiary of the Borrower), it being understood that
a
Permitted Receivables Securitization may involve (A) one or more sequential
transfers or pledges of the same Receivables and Related Assets, or interests
therein (such as a sale, convey-ance or other transfer to an SPE Subsidiary
followed by a pledge of the transferred Receivables and Related Assets to secure
Indebtedness incurred by the SPE Subsidiary), and all such transfers, pledges
and Indebtedness incurrences shall be part of and constitute a single Permitted
Receivables Securitization, and (B) periodic transfers or pledges of Receivables
and Related Assets and/or revolving transactions in which new Receivables and
Related Assets, or interests therein, are transferred or pledged upon collection
of previously transferred or pledged Receivables and Related Assets, or
interests therein, provided
that any
such transactions shall provide for recourse to such Subsidiary of the Borrower
(other than any SPE Subsidiary) or the Borrower (as applicable) only in respect
of the cash flows in respect of such Receivables and Related Assets and to
the
extent of other customary securitization under-tak-ings in the jurisdiction
relevant to such transactions. The “amount”
or
“principal
amount”
of
any
Permitted Receivables Securitization shall be deemed at any time to be (1)
the
aggregate principal, or stated amount, of the Indebtedness, fractional undivided
interests (which stated amount may be described as a “net investment” or similar
term reflecting the amount invested in such undivided interest) or other
securities incurred or issued pursuant to such Permitted Receivables
Securitization, in each case outstanding at such time, or (2) in the case of
any
Permitted Receivables Securitization in respect of which no such Indebted-ness,
fractional undivided interests or securities are incurred or issued, the cash
purchase price paid by the buyer in connection with its purchase of Receivables
less the amount of collections received by the Borrower or any Subsidiary of
the
Borrower in respect of such Receivables and paid to such buyer, excluding any
amounts applied to purchase fees or discount or in the nature of interest.
Each
Lender authorizes each of the Administrative Agent and Collateral Agent to
enter
into an intercreditor agreement in respect of each Permitted Receivables
Securitization from time to time in effect and to take all actions it deems
appropriate or necessary in connection with any such intercreditor
agreement.
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“Permitted
Refinancing Indebtedness”
shall
mean any Indebtedness issued in exchange for, or the net proceeds of which
are
used to extend, refinance, renew, replace, defease or refund (collectively,
to
“Refinance”),
the
Indebtedness being Refinanced (or previous refinanc-ing thereof constituting
Permitted Refinancing Indebtedness); provided
that (a)
the princi-pal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness is sufficient to repay all of the Indebtedness being
Refinanced but does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest
and
premium thereon) or, in the case of a revolving credit facility, the maximum
amount of Indebtedness permitted to be incurred thereunder, (b) the final stated
maturity of such Permitted Refinancing Indebtedness is no earlier than the
one
year anniversary of the Term Loan Maturity Date (determined without giving
effect to the proviso contained in the definition thereof), (c) if the
Indebtedness being Refinanced is subordinated in right of payment to the
Obligations under the Credit Documents, such Permitted Refinancing Indebtedness
shall be subordinated in right of payment to such Obligations on terms at least
as favorable to the Lenders as those contained in the documentation governing
the Indebtedness being Refinanced, (d) no Permitted Refinancing Indebtedness
shall have different obligors, or greater guarantees or security, than the
Indebtedness being Refinanced and (e) if the Indebtedness being Refinanced
is
secured by any Collateral (whether equally and ratably with, or junior to,
the
Secured Parties or otherwise), such Permitted Refinancing Indebtedness may
be
secured by such collateral on terms no less favorable to the Secured Parties
than those contained in the documentation governing the Indebtedness being
Refinanced.
“Permitted
Subordinated Debt Documents”
shall
mean all documentation (includ-ing, without limitation, any indenture or
purchase agreement) entered into in connection with any issuance of Permitted
Subordinated Debt.
“Permitted
Subordinated Debt”
shall
mean unsecured subordinated debt securities of, or loans made to, the Borrower
(which may be guaranteed on an unsecured subordinated basis by Subsidiary
Guarantors) the terms of which (and conditions surrounding the issuance of
which) satisfy the relevant requirements of Section 9.04(x).
“Person”
shall
mean any individual, partnership, joint venture, firm, corporation, association,
limited liability company, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality
thereof.
“Plan”
shall
mean any pension plan as defined in Section 3(2) of ERISA, which is main-tained
or contributed to by (or to which there is an obligation to contribute of)
the
Borrower or a Subsidiary of the Borrower or an ERISA Affiliate, and each such
plan for the five year period immedi-ately following the latest date on which
the Borrower, a Subsidiary of the Borrower or an ERISA Affiliate main-tained,
contributed to or had an obligation to contribute to such plan.
“Pledge
Agreement”
shall
have the meaning provided in Section 5(l).
-100-
“Pledge
Agreement Collateral”
shall
mean all “Collateral” as defined in the Pledge Agreement.
“Pledgee”
shall
have the meaning provided in the Pledge Agreement.
“Pro
Forma Basis”
shall
mean, in connection with any calculation of compliance with any Financial
Covenant or financial term, the calculation thereof after giving effect on
a
pro forma
basis to
(x) the incurrence of any Indebtedness (other than revolving Indebtedness,
except to the extent same is incurred to refinance other outstanding
Indebtedness or to finance a Permitted Acquisition) after the first day of
the
relevant Calculation Period as if such Indebtedness had been incurred (and
the
proceeds thereof applied) on the first day of the relevant Calculation Period,
(y) the permanent repayment of any Indebtedness (other than revolv-ing
Indebtedness except to the extent accompanied by a corresponding permanent
commitment reduction) after the first day of the relevant Calculation Period
as
if such Indebtedness had been retired or redeemed on the first day of the
relevant Calculation Period and/or (z) the Permitted Acquisition, if any, then
being consummated as well as any other Permitted Acquisition or Material Asset
Sale consum-mated after the first day of the relevant Calculation Period and
on
or prior to the date of the respective Permitted Acquisition then being
effected, as the case may be, with the following rules to apply in connec-tion
therewith:
(i)
all
Indebtedness (x) (other than revolving Indebtedness, except to the extent same
is incurred to refinance other outstanding Indebtedness or to finance a
Permitted Acquisition) incurred or issued after the first day of the relevant
Calculation Period (whether incurred to finance a Permitted Acquisition or
another Investment, to refinance Indebtedness or otherwise) shall be deemed
to
have been incurred or issued (and the pro-ceeds thereof applied) on the first
day of the respective Calculation Period and remain out-standing through the
date of determina-tion and (y) (other than revolving Indebtedness except to
the
extent accompanied by a corresponding permanent commitment reduction)
permanently retired or redeemed after the first day of the relevant Calculation
Period shall be deemed to have been retired or redeemed on the first day of
the
respective Calculation Period and remain retired through the date of
determination;
(ii)
all
Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall
be
deemed to have borne interest at (x) the rate applicable thereto, in the case
of
fixed rate indebtedness, or (y) at the rate which would have been appli-cable
thereto on the last day of the respec-tive Calculation Period, in the case
of
floating rate Indebtedness (although interest expense with respect to any
Indebtedness for periods while same was actually outstanding during the
respective period shall be calculated using the actual rates appli-cable thereto
while same was actually outstanding); and
(iii)
in
making
any determination of Consolidated EBITDA, pro forma
effect
shall be given to any Permitted Acquisition or Material Asset Sale consummated
during the periods described above, with such Consolidated EBITDA to be
determined as if such Permitted Acquisition or Material Asset Sale was
consummated on the first day of the relevant Calculation Period, taking into
account, for any portion of the relevant period being tested occurring prior
to
the consummation of any Permitted Acquisition or Material Asset Sale,
demonstrable cost savings and other synergies actually achieved simultaneously
with, or to be achieved within a 1-year period following, the closing of the
respective Permitted Acquisition or Material Asset Sale, which cost savings
and
other synergies would be permitted to be recognized in pro forma
financial statements prepared in accordance with Regulation S-X under the
Securities Act, as if such cost-savings and other synergies were realized on
the
first day of the relevant period.
-101-
“Projections”
shall
mean the projections that are contained in the Confidential Information
Memorandum dated April 2006 and that were prepared by or on behalf of the
Borrower in connection with the Transaction and delivered to the Administrative
Agent and the Lenders prior to the Initial Borrowing Date.
“Qualified
Capital Stock”
shall
mean any Equity Interests of the Borrower, the express terms of which shall
provide that dividends thereon shall not be required to be paid at any time
(and
to the extent) that such payment would be prohibited by the terms of this
Agreement or any other agreement of the Borrower or any of its Subsidiaries
relating to outstanding indebtedness and which, by its terms (or by the terms
of
any security into which it is convertible or for which it is exchangeable),
or
upon the happening of any event (including any change of control event), cannot
mature (excluding any maturity as the result of an optional redemption by the
issuer thereof) and is not mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, and is not redeemable, or required to be repurchased,
at the sole option of the holder thereof (including, without limitation, upon
the occurrence of a change of control event), in whole or in part, on or prior
to one year following the Term Loan Maturity Date.
“Quarterly
Payment Date”
shall
mean the last Business Day of each September, December, March and June occurring
after the Initial Borrowing Date, commencing on September 30, 2006.
“RCN
International”
shall
mean RCN International Holdings, Inc., a Delaware corporation.
“Real
Property”
of
any
Person shall mean all the right, title and interest of such Person in and to
land, improvements and fixtures, including Leaseholds.
“Receivables”
shall
mean accounts receivable (including all rights to payment created by or arising
from the sales of goods, leases of goods or the rendition of services, no matter
how evidenced (including in the form of chattel paper) and whether or not earned
by performance).
“Recovery
Event”
shall
mean the receipt by the Borrower or any of its Subsidiaries of any cash
insurance proceeds or condem-nation awards payable (i) by reason of theft,
loss,
physical destruction, damage, taking or any other similar event with respect
to
any property or assets of the Borrower or any of its Subsid-iaries and (ii)
under any policy of insurance (other than liability insurance policies) required
to be maintained under Section 8.03.
“Refinance”
shall
have the meaning provided in the definition of the term “Permitted Refinancing
Indebtedness”, and “Refinanced” shall have a meaning correlative
thereto.
“Refinancing”
shall
mean the transactions referred to in Section 5(j).
-102-
“Register”
shall
have the meaning provided in Section 13.15.
“Regulation
D”
shall
mean Regulation D of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.
“Regulation
T”
shall
mean Regulation T of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion
thereof.
“Regulation
U”
shall
mean Regulation U of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion
thereof.
“Regulation
X”
shall
mean Regulation X of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion
thereof.
“Related
Assets”
shall
have the meaning provided in the definition of Permitted Receivables
Securitization.
“Release”
shall
mean actively or passively disposing, discharging, injecting, spill-ing,
pumping, leak-ing, leaching, dumping, emitting, escaping, emptying, pouring,
seeping, migrat-ing or the like, into or upon any land or water or air, or
otherwise entering into the environment.
“Replaced
Lender”
shall
have the meaning provided in Section 1.13.
“Replacement
Lender”
shall
have the meaning provided in Section 1.13.
“Reportable
Event”
shall
mean an event described in Section 4043(c) of ERISA with respect to a Plan
that
is subject to Title IV of ERISA other than those events as to which the 30-day
notice period is waived under subsection .22, .23, .25, .27 or .28 of PBGC
Regulation Section 4043.
“Required
Consents”
shall
have the meaning provided in Section 5(d).
“Required
Lenders”
shall
mean, at any time, Non-Defaulting Lenders the sum of whose outstand-ing Term
Loans, Incremental Term Loan Commitments and Revolving Loan Commitments at
such
time (or, after the termination thereof, outstand-ing Revolving Loans and RL
Percentages of (x) outstanding Swingline Loans at such time and (y) Letter
of
Credit Outstandings at such time) represents at least a majority of the sum
of
(i) all outstanding Term Loans of Non-Defaulting Lenders, (ii) the aggregate
amount of all Incremental Term Loan Commitments of all Non-Defaulting Lenders
at
such time and (iii) the Total Revolving Loan Commitment in effect at such time
less
the
Revolving Loan Commitments of all Defaulting Lenders at such time (or, after
the
termination thereof, the sum of then total outstanding Revolving Loans of
Non-Defaulting Lenders and the aggregate RL Percentages of all Non-Defaulting
Lenders of the total outstanding Swingline Loans and Letter of Credit
Outstandings at such time).
-103-
“Restricted”
shall
mean, when referring to cash or Cash Equivalents of the Borrower or any of
its
Subsidiaries, that such cash or Cash Equivalents (i) appears (or would be
required to appear) as “restricted” on a consolidated balance sheet of the
Borrower or of any such Subsidiary, (ii) are subject to any Lien in favor of
any
Person other than the Collateral Agent for the benefit of the Secured Creditors
or (iii) are not otherwise generally available for use by the Borrower or any
of
its Subsidiaries.
“Restricted
Subsidiary”
shall
mean each Subsidiary of the Borrower other than any Unrestricted Subsidiary.
“Returns”
shall
have the meaning provided in Section 7.09.
“Revolving
Loan”
shall
have the meaning provided in Section 1.01(b).
“Revolving
Loan Commitment”
shall
mean, for each Lender, the amount set forth opposite such Lender’s name in
Schedule 1.01 directly below the column entitled “Revolving Loan Commitment,” as
same may be (x) reduced from time to time or terminated pursuant to Sections
3.02, 3.03 and/or 10, as applicable, or (y) adjusted from time to time as a
result of assignments to or from such Lender pursuant to Section 1.13 or
13.04(b).
“Revolving
Loan Maturity Date”
shall
mean May 30, 2011.
“Revolving
Note”
shall
have the meaning provided in Section 1.05(a).
“RL
Lender”
shall
mean each Lender with a Revolving Loan Commitment or with outstanding Revolving
Loans.
“RL
Percentage”
of
any
RL Lender at any time shall mean a fraction (expressed as a percentage) the
numerator of which is the Revolving Loan Commitment of such RL Lender at such
time and the denominator of which is the Total Revolving Loan Commitment at
such
time, provided
that if
the RL Percentage of any RL Lender is to be determined after the Total Revolving
Loan Commitment has been terminated, then the RL Percentages of such RL Lender
shall be determined immediately prior (and without giving effect) to such
termination.
“Rollover
Amount”
shall
have the meaning provided in Section 9.07(b).
“S&P”
shall
mean Standard & Poor’s Rating Services, a division of XxXxxx-Xxxx, Inc., or
any successor thereto.
“San
Francisco Assets”
means
the Telecommunications Assets owned by the Borrower and its Subsidiaries that
are, on the Initial Borrowing Date, physically located in the San Francisco,
California metropolitan area and utilized to provide telecommunications services
to customers of the Borrower or its Subsidiaries in the San Francisco,
California metropolitan area plus (i) such additional Telecommunications Assets
as are, after the Initial Borrowing Date, acquired for such cable systems and
located in the San Francisco, California metropolitan area pursuant to Capital
Expenditures made in accordance with Section 9.07, (ii) related net working
capital and (iii) Equity Interests in Persons that own no assets other than
such
assets.
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“Schedule”
shall
mean the schedules attached hereto.
“Scheduled
Repayment”
shall
have the meaning provided in Section 4.02(b).
“Scheduled
Repayment Date”
shall
have the meaning provided in Section 4.02(b).
“SEC”
shall
have the meaning provided in Section 8.01(h).
“Section
4.04(b)(ii) Certificate”
shall
have the meaning provided in Section 4.04(b)(ii).
“Secured
Creditors”
shall
have the meaning assigned that term in the respective Security
Documents.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Security
Agreement”
shall
have the meaning provided in Section 5.01(m).
“Security
Agreement Collateral”
shall
mean all “Collateral” as defined in the Security Agreement.
“Security
Document”
shall
mean and include each of the Security Agreement, the Pledge Agreement, each
Mortgage and, after the execution and delivery thereof, each Additional Security
Document.
“Securities
Exchange Act”
shall
mean the Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder, as amended from time to time.
“Senior
Secured Leverage Ratio”
shall
mean, on any date of determination, the ratio of (i) Consolidated Senior Secured
Indebtedness on such date to (ii) Consolidated EBITDA for the Test Period most
recently ended on or prior to such date.
“Shareholders’
Agreements”
shall
mean all agreements (including, without limitation, shareholders’ agreements,
subscription agreements and registration rights agreements) entered into by
the
Borrower or any of its Subsidiaries governing the terms and relative rights
of
the capital stock of the entity that is a party to such agreement and any
agreements entered into by shareholders relating to any such entity with respect
to its capital stock to which such entity is also a party.
“SocGen”
shall
mean Societe Generale in its individual capacity.
“Specified
Asset Sales”
shall
mean any Asset Sale effected pursuant to any of Section 9.02(xii), (xiii) or
(xiv).
“SPE
Subsidiary”
shall
mean any Wholly-Owned Subsidiary formed solely for the purpose of, and that
engages only in, one or more Permitted Receivables Securitizations.
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“Stated
Amount”
of
each
Letter of Credit shall mean, at any time, the maximum amount available to be
drawn thereunder (in each case determined without regard to whether any
conditions to drawing could then be met).
“Subsidiaries
Guaranty”
shall
have the meaning provided in Section 5.01(k).
“Subsidiary”
shall
mean, as to any Person, (i) any corporation more than 50% of whose stock of
any
class or classes having by the terms thereof ordinary voting power to elect
a
majority of the directors of such corporation (irrespective of whether or not
at
the time stock of any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the
time
owned by such Person and/or one or more Subsidi-aries of such Person and (ii)
any partnership, limited liability company, association, joint venture or other
entity in which such Person and/or one or more Subsidiaries of such Person
has
more than a 50% equity interest at the time. Notwithstanding the foregoing
(except for purposes of Sections 7.01, 7.06, 7.09, 7.10, 7.15, 7.18,
8.01(g)(ii), 8.01(g)(iii), 8.01(i), 8.02(a), 8.05, 8.06, 8.07, 8.10, 8.14,
8.17,
10.05, 10.06 and 10.09, and the definition of Unrestricted Subsidiary contained
herein), an Unrestricted Subsidiary shall not be deemed to be a Subsidiary
of
the Borrower or of any of its other Subsidiaries for purposes of this
Agreement.
“Subsidiary
Guarantor”
shall
mean each Subsidiary of the Borrower which has executed and delivered the
Subsidiaries Guaranty, with (x) each Wholly-Owned Domestic Subsidiary of the
Borrower on the Initial Borrowing Date and (y) each subsequently acquired
Wholly-Owned Domestic Subsidiary being required to be a Subsidiary
Guarantor.
“Supermajority
Lenders”
shall
mean, with respect to any Tranche, those Non-Defaulting Lenders which would
constitute the Required Lenders under, and as defined in, this Agreement if
(x)
all outstanding Obligations of the other Tranches under this Agreement were
repaid in full and all Commitments with respect thereto were terminated and
(y)
the reference to “a majority” contained therein was changed to “at least
66-2/3%.”
“Swingline
Expiry Date”
shall
mean that date which is five Business Days prior to the Revolving Loan Maturity
Date.
“Swingline
Lender”
shall
mean the Administrative Agent, in its capacity as Swingline Lender
hereunder.
“Swingline
Loan”
shall
have the meaning provided in Section 1.01(c).
“Swingline
Note”
shall
have the meaning provided in Section 1.05(a).
“Syndication
Agent”
shall
mean Citicorp USA, Inc., in its capacity as such hereunder.
“Syndication
Date”
shall
mean that date upon which the Administrative Agent determines in its sole
discretion (and notifies the Borrower) that the primary syndication (and
resultant addition of Persons as Lenders pursuant to Section 13.04(b)) has
been
completed.
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“Synthetic
Lease”
means
a
lease transaction under which the parties intend that (i) the lease will be
treated as an “operating lease” by the lessee and (ii) the lessee will be
entitled to various tax and other benefits ordinarily available to owners (as
opposed to lessees) of like property.
“Tax
Allocation Agreement”
shall
mean a Tax Allocation Agreement in form and substance reasonably satisfactory
to
the Administrative Agent to be entered into by the Borrower and its Subsidiaries
at the time of the first designation of an Unrestricted Subsidiary, as the
same
may be, amended, modified and/or supplemented from time to time in accordance
with the terms hereof and thereof.
“Tax
Benefit”
shall
have the meaning provided in Section 4.04(d).
“Taxes”
shall
have the meaning provided in Section 4.04(a).
“Telecommunications
Assets”
means
properties or assets utilized directly or indirectly for the design,
development, construction, installation, operation, integration, management
or
provision of any telecommunications business, including voice, video and data
transmission products, services and systems and any business reasonably related
to the foregoing.
“Term
Loan”
shall
have the meaning provided in Section 1.01(e).
“Term
Loan Maturity Date”
shall
mean
May 30,
2013, provided,
however,
that if
any Existing Second-Lien Notes or any other obligations owing under the Existing
Second-Lien Documents remain outstanding on January 21, 2012, then the “Term
Loan Maturity Date” shall instead mean January 21, 2012.
“Term
Note”
shall
have the meaning provided in Section 1.05(a).
“Test
Period”
shall
mean each period of four consecutive fiscal quarters of the Borrower then last
ended (in each case taken as one accounting period); provided that for the
purposes of calculations of the Consolidated Interest Coverage Ratio for any
Test Period which includes any fiscal quarter ending on or prior to March 31,
2007, the Test Period shall mean, in the case of the Borrower’s fiscal quarter
ending on (i) September 30, 2006, the period from July 1, 2006 though September
30, 2006, (ii) December 31, 2006, the period from July 1, 2006 through December
31, 2006 and (iii) March 31, 2007, the period from July 1, 2006 through March
31, 2007.
“Total
Commitment”
shall
mean, at any time, the sum of the Commitments of each of the Lenders at such
time.
“Total
Consideration”
shall
mean, with respect to any sale or disposition, the aggregate amount of cash
and
Cash Equivalents, plus the greater of the face amount (if relevant) and the
Fair
Market Value of all other consideration, in each case received by the Borrower
and its Subsidiaries from the respective sale or disposition.
-107-
“Total
Incremental Term Loan Commitment”
shall
mean, at any time, the sum of the Incremental Term Loan Commitments of each
of
the Incremental Term Loan Lenders at such time.
“Total
Initial Term Loan Commitment”
shall
mean, at any time, the sum of the Initial Term Loan Commitments of each of
the
Lenders at such time.
“Total
Leverage Ratio”
shall
mean, at any time, the ratio of Consolidated Indebtedness at such time to
Consolidated EBITDA for the Test Period then most recently ended.
“Total
Revolving Loan Commitment”
shall
mean, at any time, the sum of the Revolving Loan Commitments of each of the
Lenders at such time.
“Total
Unutilized Revolving Loan Commitment”
shall
mean, at any time, (i) the Total Revolving Loan Commitment at such time less
(ii) the sum of (x) the aggregate principal amount of all Revolving Loans and
Swingline Loans at such time plus (y) the Letter of Credit Outstandings at
such
time.
“Tranche”
shall
mean the respective facility and commitments utilized in making Loans hereunder,
with there being three separate Tranches, i.e.,
Term
Loans, Revolving Loans and Swingline Loans; provided
that for
purposes of Sections 1.13, 13.04(b), 13.12(a) and (b) and the definition of
“Majority Lenders,” Revolving Loans and Swingline Loans shall be deemed to
constitute part of a single “Tranche.”
“Transaction”
shall
mean, collectively, (i) the consummation of the Refinancing, (ii) the entering
into of the Credit Documents and the occur-rence of the Credit Events hereunder
on the Initial Borrowing Date and (iii) the payment of all fees and expenses
in
connection with the foregoing.
“Treasury
Rate”
shall
mean the yield to maturity at the Dial-Up Disposition Date of United States
Treasury securities with a constant maturity (as compiled and published in
the
most recent Federal Reserve Statistical Release H.15 (519) which has become
publicly available at least two Business Days prior to the Dial-Up Disposition
Date (or, if such Statistical Release is no longer published, any publicly
available source or similar market data)) most nearly equal to the period from
the Dial-Up Disposition Date to December 31, 2009; provided,
however,
that if
the period from the Dial-Up Disposition Date to December 31, 2009 is not equal
to the constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from the Dial-Up Disposition Date to December
31, 2009 is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
“Type”
shall
mean the type of Loan determined with regard to the interest option applicable
thereto, i.e.,
whether
a Base Rate Loan or a Eurodollar Loan.
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“UCC”
shall
mean the Uniform Commercial Code as from time to time in effect in the relevant
jurisdiction.
“Unfunded
Current Liability”
of
any
Plan shall mean the amount, if any, by which the value of the accumulated plan
benefits under the Plan determined on a plan termination basis in accordance
with actuarial assumptions at such time consistent with those prescribed by
the
PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value of
all
plan assets allocable to such liabilities under Title IV of ERISA (excluding
any
accrued but unpaid contribution).
“United
States”
and
“U.S.”
shall
each mean the United States of America.
“Unpaid
Drawing”
shall
have the meaning provided in Section 2.05(a).
“Unrestricted”
shall
mean, when referring to cash or Cash Equivalents of the Borrower or any of
its
Subsidiaries, that such cash or Cash Equivalents are not
Restricted.
“Unrestricted
Subsidiary”
means
(i) each Subsidiary of the Borrower designated by the board of directors of
the
Borrower as an Unrestricted Subsidiary pursuant to Section 8.17 subsequent
to
the date hereof.
“Unutilized
Revolving Loan Commitment”
for
any
RL Lender at any time shall mean the excess of (i) the Revolving Loan Commitment
of such Lender over (ii) the sum of (x) the aggregate out-stand-ing principal
amount of Revolving Loans made by such Lender plus (y) an amount equal to such
Lender’s RL Percentage of the Letter of Credit Outstandings at such time;
provided that the Unutilized Revolving Loan Commitment of the Swingline Lender
shall at any time be reduced (but not below zero) by the aggregate amount of
Swingline Loans made by it which are then outstanding.
“Wholly-Owned
Domestic Subsidiary”
shall
mean, as to any Person, any Wholly-Owned Subsidiary of such Person which is
incorporated or organized in the United States or any State
thereof.
“Wholly-Owned
Domestic Subsidiary Guarantor”
shall
mean any Wholly-Owned Domestic Subsidiary of the Borrower which is also a
Subsidiary Guarantor.
“Wholly-Owned
Subsidiary”
shall
mean, as to any Person, (i) any corporation 100% of whose capital stock is
at
the time owned by such Person and/or one or more Wholly-Owned Subsidiaries
of
such Person and (ii) any partnership, association, joint venture or other entity
in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person
has a 100% equity interest at such time. Except as provided in the last sentence
of the definition of Subsidiary, no Unrestricted Subsidiary shall be considered
a Wholly-Owned Subsidiary.
SECTION
12. The
Administrative Agent.
12.01 Appointment.
The Lenders hereby irrevocably designate and appoint DBTCA as
Administrative Agent (for purposes of this Section 12 and Section 13.01, the
term “Administrative Agent” also shall include DBTCA in its capacity as
Collateral Agent pursuant to the Security Documents) to act as specified herein
and in the other Credit Documents. Each Lender hereby irrevocably authorizes,
and each holder of any Note by the acceptance of such Note shall be deemed
irrevocably to authorize, the Administrative Agent to take such action on its
behalf under the provisions of this Agreement, the other Credit Documents and
any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and there-under as
are
specifically delegated to or required of the Administrative Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
The Administrative Agent may perform any of its respective duties hereunder
by
or through its officers, directors, agents, employees or affiliates.
-109-
12.02 Nature
of Duties.
The Administrative Agent shall not have any duties or responsibilities
except those expressly set forth in this Agreement and in the other Credit
Documents. Neither the Administrative Agent nor any of its officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by it or them hereunder or under any other Credit Document or in connection
herewith or therewith, unless caused by its or their gross negli-gence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision). The duties of the Administrative Agent
shall
be mechanical and adminis-tra-tive in nature; the Administrative Agent shall
not
have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Lender or the holder of any Note; and nothing
in
this Agreement or in any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative Agent
any obligations in respect of this Agreement or any other Credit Document except
as expressly set forth herein or therein.
12.03 Lack
of Reliance on the Administrative Agent.
Independently and without reliance upon the Administrative Agent, each
Lender and the holder of each Note, to the extent it deems appropriate, has
made
and shall continue to make (i) its own independent investigation of the
financial condition and affairs of the Borrower and its Subsidiaries in
connection with the extensions of credit hereunder and the taking or not taking
of any action in connection here-with and (ii) its own appraisal of the
creditworthiness of the Borrower and its Subsidiaries and, except as expressly
provided in this Agreement, the Administrative Agent shall not have any duty
or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans
or at
any time or times thereafter. The Administrative Agent shall not be responsible
to any Lender or the holder of any Note for any recitals, state-ments,
informa-tion, representations or warranties herein or in any document,
certificate or other writing deliv-ered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforce-ability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower or any of its Subsidiaries
or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or condi-tions of this Agreement
or
any other Credit Document, or the financial condi-tion of the Borrower or any
of
its Subsidiaries or the existence or possible existence of any Default or Event
of Default.
12.04 Certain
Rights of the Administrative Agent.
If the Administrative Agent requests instructions from the Required
Lenders with respect to any act or action (including failure to act) in
connection with this Agreement or any other Credit Document, the Administrative
Agent shall be entitled to refrain from such act or taking such action unless
and until the Administrative Agent shall have received instructions from the
Required Lenders; and the Administrative Agent shall not incur liability to
any
Lender by reason of so refraining. Without limiting the foregoing, neither
any
Lender nor the holder of any Note shall have any right of action whatsoever
against the Administrative Agent as a result of the Administrative Agent acting
or refraining from acting hereunder or under any other Credit Document in
accordance with the instruc-tions of the Required Lenders.
-110-
12.05 Reliance.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by any Person that
the Administrative Agent believed to be the proper Person, and, with respect
to
all legal matters pertaining to this Agreement and any other Credit Document
and
its duties hereunder and thereunder, upon advice of counsel selected by the
Administrative Agent.
12.06 Indemnification.
To the extent the Administrative Agent (or any affiliate thereof) is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Administrative Agent (and any affiliate thereof) in proportion
to
their respective “percentage” as used in determining the Required Lenders
(determined as if there were no Defaulting Lenders) for and against any and
all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent
(or
any affiliate thereof) in performing its duties hereunder or under any other
Credit Document or in any way relating to or arising out of this Agreement
or
any other Credit Document; provided
that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administra-tive Agent’s (or such affiliate’s)
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
12.07 The
Administrative Agent in its Individual Capacity.
With respect to its obligation to make Loans, or issue or participate in
Letters of Credit, under this Agreement, the Administrative Agent shall have
the
rights and powers specified herein for a “Lender” and may exercise the same
rights and powers as though it were not performing the duties specified herein;
and the term “Lender,” “Required Lenders,” “Supermajority Lenders,” “holders of
Notes” or any similar terms shall, unless the context clearly indicates
otherwise, include the Administrative Agent in its respective individual
capacities. The Administrative Agent and its affiliates may accept deposits
from, lend money to, and generally engage in any kind of banking, investment
bank-ing, trust or other business with, or provide debt financing, equity
capital or other services (includ-ing financial advisory services) to any Credit
Party or any Affiliate of any Credit Party (or any Person engaged in a similar
business with any Credit Party or any Affiliate thereof) as if they were not
performing the duties specified herein, and may accept fees and other
consideration from any Credit Party or any Affiliate of any Credit Party for
services in connection with this Agreement and otherwise without having to
account for the same to the Lenders.
12.08 Holders.
The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of
the
assign-ment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Adminis-tra-tive Agent. Any request, authority or consent
of
any Person who, at the time of mak-ing such request or giving such authority
or
consent, is the holder of any Note shall be conclusive and bind-ing on any
subsequent holder, transferee, assignee or endorsee, as the case may be, of
such
Note or of any Note or Notes issued in exchange therefor.
-111-
12.09 Resignation
by the Administrative Agent.
(a)
The
Administrative Agent may resign from the performance of all its respective
functions and duties hereunder and/or under the other Credit Documents at any
time by giving 15 Business Days’ prior written notice to the Lenders and, unless
a Default or an Event of Default under Section 10.05 then exists, the Borrower.
Any such resignation by an Administrative Agent hereunder shall also constitute
its resignation as an Issuing Lender, the Swingline Lender and Collateral Agent,
in which case upon the effectiveness of such resignation in accordance with
this
Section 12.09 the Administrative Agent (x) shall not be required to issue any
further Letters of Credit hereunder, make any additional Swingline Loans
hereunder or discharge any of the duties of the “Collateral Agent” under the
Security Documents and (y) shall maintain all of its rights as Issuing Lender,
the Swingline Lender and the Collateral Agent, as the case may be, with respect
to any Letters of Credit issued by it, Swingline Loans made by it, or actions
taken (or omitted to be taken) by it under the Security Documents, in each
case
prior to the effective date of such resignation. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon
any
such notice of resignation by the Administrative Agent, the Required Lenders
shall appoint a successor Administrative Agent hereunder or thereunder (who
must
also agree, unless the resigning Administrative Agent otherwise consents (or
another Person is appointed as Collateral Agent in a manner consistent with
the
requirements of this clause (b)), to also act as Collateral Agent) who shall
be
a commercial bank or trust company reasonably acceptable to the Borrower, which
acceptance shall not be unreasonably withheld or delayed (provided that the
Borrower’s approval shall not be required if an Event of Default then
exists).
(c) If
a
successor Administrative Agent shall not have been so appointed within such
15
Business Day period, the Administrative Agent, with the consent of the Borrower
(which consent shall not be unreasonably withheld or delayed, provided that
the
Borrower’s con-sent shall not be required if an Event of Default then exists),
shall then appoint a successor Adminis-trative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided
above.
(d) If
no
successor Administrative Agent has been appointed pursuant to clause (b) or
(c)
above by the 20th Business Day after the date such notice of resignation was
given by the Administrative Agent, the Administrative Agent’s resignation shall
become effective and the Required Lenders shall thereafter perform all the
duties of the Administrative Agent here-under and/or under any other Credit
Document until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above.
-112-
(e) Notwithstanding
anything to the contrary contained in this Section 12.09, the Administrative
Agent’s resignation as Collateral Agent as contemplated in clause (a) above
shall not become effective until a successor Administrative Agent appointed
in
accordance with the provisions of clause (b) or (c) above has also agreed to
act
as “Collateral Agent” under the Credit Documents or another Person has been
appointed as Collateral Agent in accordance with the provisions of clause (b)
or
(c) above.
(f) Upon
a
resignation of the Administrative Agent pursuant to this Section 12.09, the
Administrative Agent shall remain indemnified to the extent provided in this
Agreement and the other Credit Documents and the provisions of this Section
12
shall continue in effect for the benefit of the Administrative Agent for all
of
its actions and inactions while serving as the Administrative
Agent.
12.10
No
Duties.
Notwithstanding
anything to the contrary in this Agreement, none of DBSI, as the sole lead
arranger, DBSI and Citigroup Global Markets Inc., as joint book running
managers, Citicorp USA, Inc., as Syndication Agent, or SocGen, as the
Documentation Agent, shall have any obligations, duties or responsibilities
under this Agreement or any other Credit Document, and shall have no liability
to any Lender or Credit Party or any of their respective Affiliates or any
other
Person in connection therewith or as a result thereof.
SECTION
13. Miscellaneous.
13.01 Payment
of Expenses, etc. The
Borrower hereby agrees to: (i) whether or not the transactions herein
contemplated are consummated, pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent (including, without limitation, the
reasonable fees and disbursements of White & Case LLP and the Administrative
Agent’s other counsel and consult-ants) in connection with the preparation,
execution and delivery of this Agreement and the other Credit Documents and
the
documents and instruments referred to herein and therein and any amend-ment,
waiver or consent relating hereto or thereto, of the Administrative Agent in
connec-tion with its syndication efforts with respect to this Agreement and
of
the Administrative Agent and, after the occurrence of an Event of Default,
each
of the Issuing Lenders and Lenders in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instru-ments
referred to herein and therein or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings
(including, in each case without limitation, the reason-able fees and
disbursements of counsel and consultants for the Administrative Agent and,
after
the occurrence of an Event of Default, counsel for each of the Issuing Lenders
and Lenders); (ii) pay and hold the Administrative Agent, each of the Issuing
Lenders and each of the Lenders harmless from and against any and all present
and future stamp, excise and other similar documentary taxes with respect to
the
fore-going matters and save the Administrative Agent, each of the Issuing
Lenders and each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other
than
to the extent attributable to the Administrative Agent, such Issuing Lender
or
such Lender) to pay such taxes; and (iii) indem-nify the Administrative Agent,
each Issuing Lender and each Lender, and each of their respective officers,
directors, employees, representatives, agents, affiliates, trustees and
investment advisors from and hold each of them harmless against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys’ and consultants’ fees and
disbursements) incurred by, imposed on or assessed against any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a)
any
investigation, litigation or other proceeding (whether or not the Administrative
Agent, any Issuing Lender or any Lender is a party thereto and whether or not
such investiga-tion, litigation or other proceeding is brought by or on behalf
of any Credit Party) related to the entering into and/or performance of this
Agreement or any other Credit Document or the use of any Letter of Credit or
the
proceeds of any Loans hereunder or the consummation of the Transaction or any
other transactions contemplated herein or in any other Credit Document or the
exercise of any of their rights or remedies provided herein or in the other
Credit Documents, or (b) the actual or alleged presence of Hazardous Materials
in the air, surface water or groundwater or on the surface or subsurface of
any
Real Property at any time owned, leased or operated by the Borrower or any
of
its Subsidiaries, the generation, storage, transportation, handling or disposal
of Hazardous Materials by the Borrower or any of its Subsidiaries at any
location, whether or not owned, leased or operated by the Borrower or any of
its
Subsidiaries, the non-compliance by the Borrower or any of its Subsidiaries
with
any Environmental Law (including applicable permits thereunder) applicable
to
any Real Property, or any Environmental Claim asserted against the Borrower,
any
of its Subsidiaries or any Real Property at any time owned, leased or operated
by the Borrower or any of its Subsidiaries, includ-ing, in each case, without
limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investi-ga-tion, litigation
or
other proceed-ing (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified (as deter-mined by a court of
competent jurisdiction in a final and non-appealable decision)). To the extent
that the undertaking to indemnify, pay or hold harmless the Administrative
Agent, any Issuing Lender or any Lender set forth in the preceding sentence
may
be unenforceable because it is violative of any law or public policy, the
Borrower shall make the maximum contri-bu-tion to the payment and satisfac-tion
of each of the indemnified liabilities which is permissible under applicable
law. To the extent permitted by applicable law, the Borrower shall not assert,
and hereby waives, any claim against the Administrative Agent, any Lender or
any
Issuing Lender, 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 Transaction, any Loan or Letter of Credit
or
the use of the proceeds thereof.
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13.02 Right
of Setoff.
(a) In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuance of an Event of Default, the Administrative
Agent, each Issuing Lender and each Lender is hereby authorized at any time
or
from time to time, without presentment, demand, protest or other notice of
any
kind to any Credit Party or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by
the
Administrative Agent, such Issuing Lender or such Lender (including, without
limitation, by branches, agencies and Affiliates of the Administrative Agent,
such Issuing Lender or such Lender wherever located) to or for the credit or
the
account of the Borrower or any of its Subsidiaries against and on account of
the
Obligations and liabilities of the Credit Parties to the Administrative Agent,
such Issuing Lender or such Lender under this Agreement or under any of the
other Credit Documents, including, without limitation, all interests in
Obligations purchased by such Lender pursuant to Section 13.06(b), and all
other
claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not the
Administrative Agent, such Issuing Lender or such Lender shall have made any
demand hereunder and although said Obligations, liabilities or claims, or any
of
them, shall be contingent or unmatured.
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(b) NOTWITHSTANDING
THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE LOANS OR ANY OTHER OBLIGATION
SHALL BE SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER OR THE
ADMINISTRATIVE AGENT SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM
OR
TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE
ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT
OF THE REQUIRED LENDERS OR, TO THE EXTENT REQUIRED BY SECTION 13.12 OF THIS
AGREEMENT, ALL OF THE LENDERS, OR APPROVED IN WRITING BY THE ADMINISTRATIVE
AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO
CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL
CODE,
IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY, OR
ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE
SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS
HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OR THE ADMINISTRATIVE AGENT
OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED LENDERS OR
THE
ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS SUBSECTION (b) SHALL BE SOLELY
FOR THE BENEFIT OF EACH OF THE LENDERS AND THE ADMINISTRATIVE AGENT
HEREUNDER.
13.03 Notices.
Except as otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered: if to any Credit Party, RCN
Corporation, 000 Xxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxx X’Xxxx,
Telephone No.: (000) 000-0000, Telecopier No.: (000) 000-0000, with a copy
to
Xxxxxxxx X. Xxxxxxx, Telephone No.: (000) 000-0000, Telecopier No. (000)
000-0000; if to any Lender, at its address specified on Schedule 13.03; and
if
to the Administrative Agent, at the Notice Office; or, as to any Credit Party
or
the Administrative Agent, at such other address as shall be designated by such
party in a written notice to the other parties hereto and, as to each Lender,
at
such other address as shall be designated by such Lender in a written notice
to
the Borrower and the Administrative Agent. Any party hereto may change its
address or telecopy number for notices and other communications hereunder by
written notice to the other parties hereto. All such notices and
com-muni-cations shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by over-night courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as
the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent and the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.
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13.04 Benefit
of Agreement; Assignments; Participations.
(a)
This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto; provided,
however,
the
Borrower may not assign or transfer any of its rights, obligations or interest
hereunder without the prior written consent of the Lenders and, provided further,
that,
although any Lender may transfer, assign or grant participations in its rights
hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and
may not transfer or assign all or any portion of its Commitments hereunder
except as provided in Sections 1.13 and 13.04(b)) and the transferee, assignee
or participant, as the case may be, shall not constitute a “Lender” hereunder
and, provided further,
that no
Lender shall trans-fer or grant any participation under which the participant
shall have rights to approve any amend-ment to or waiver of this Agreement
or
any other Credit Document except to the extent such amendment or waiver would
(i) extend the final scheduled maturity of any Loan, Note or Letter of Credit
(unless such Letter of Credit is not extended beyond the Revolving Loan Maturity
Date) in which such participant is participating, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with
a
waiver of applicability of any post-default increase in interest rates) or
reduce the principal amount thereof (it being understood that any amendment
or
modifi-ca-tion to the financial definitions in this Agreement or to Section
13.07(a) shall not constitute a reduc-tion in the rate of interest or Fees
payable hereunder), or increase the amount of the participant’s participation
over the amount thereof then in effect (it being understood that a waiver of
any
Default or Event of Default or of a mandatory reduction in the Total Commitment
shall not constitute a change in the amount of such participation, and that
an
increase in any Commitment (or the available portion thereof) or Loan shall
be
permitted without the consent of any participant if the participant’s
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the Collateral
under all of the Security Documents (except as expressly provided in the Credit
Documents) supporting the Loans or Letters of Credit here-under in which such
participant is participating. In the case of any such participation, the
partici-pant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant’s rights against such Lender in respect of
such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable
by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation.
(b) Notwithstanding
the foregoing, any Lender (or any Lender together with one or more other
Lenders) may (x) assign all or a portion of its Commitments and related
out-standing Obligations (or, if the Commitments have termi-nated, the related
outstanding Obligations) hereunder to (i)(A) its parent company and/or any
affiliate of such Lender which is at least 50% owned by such Lender or its
parent company or (B) to one or more other Lenders or any affiliate of any
such
other Lender which is at least 50% owned by such other Lender or its parent
company (provided
that any
fund that invests in Loans and is managed or advised by the same investment
advisor of another fund which is a Lender (or by an Affiliate of such investment
advisor) shall be treated as an affiliate of such other Lender for the purposes
of this sub-clause (x)(i)(B)), or (ii) in the case of any Lender that is a
fund
that invests in Loans, any other fund that invests in Loans and is managed
or
advised by the same investment advisor of any Lender or by an Affiliate of
such
investment advisor or (y) assign all, or if less than all, a portion equal
to at
least $1,000,000 in the aggregate for the assigning Lender or assigning Lenders,
of such Commitments and related outstanding Obligations (or, if the Commitments
have terminated, the related outstanding Obligations) hereunder to one or more
Eligible Transferees (treating any fund that invests in Loans and any other
fund
that invests in loans and is managed or advised by the same investment advisor
of such fund or by an Affiliate of such invest-ment advisor as a single Eligible
Transferee), each of which assignees shall become a party to this Agreement
as a
Lender by execution of an Assignment and Assumption Agreement, provided
that (i)
at such time, Schedule 1.01 shall be deemed modified to reflect the Commitments
and/or out-stand-ing Loans, as the case may be, of such new Lender and of the
existing Lenders, (ii) upon the surrender of the relevant Notes by the assigning
Lender (or, upon such assigning Lender’s indem-nifying the Borrower for any lost
Note pursuant to a customary indemnification agree-ment) new Notes will be
issued, at the Borrower’s expense, to such new Lender and to the assigning
Lender upon the request of such new Lender or assigning Lender, such new Notes
to be in conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments and/or
outstanding Loans, as the case may be, (iii) the consent of the Administrative
Agent and, at all times following the Syndication Date (unless a Default under
Section 10.01 or 10.05 or an Event of Default has occurred and is continuing),
the Borrower shall be required in connection with any such assignment pursuant
to clause (y) above (which consent shall not be unreasonably withheld or
delayed), (iv) the consent of each Issuing Lender shall be required for any
assignment of any Revolving Loan Commitment or participation in any Letter
of
Credit Outstandings, (v) the Administrative Agent shall receive at the time
of
each such assignment, from the assigning or assignee Lender, the payment of
a
non-refundable assignment fee of $3,500 and (vi) no such transfer or assignment
will be effective until recorded by the Administrative Agent on the Register
pursuant to Section 13.15. To the extent of any assignment pursuant to this
Section 13.04(b), the assigning Lender shall be relieved of its obligations
hereunder with respect to its assigned Commitments. At the time of each
assignment pursuant to this Section 13.04(b) to a Person which is not already
a
Lender hereunder, the respective assignee Lender shall, to the extent legally
entitled to do so, provide to the Borrower the appropriate Internal Revenue
Service Forms and necessary attachments (and, if applicable, a Section
4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an
assignment of all or any portion of a Lender’s Commitments and related
outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would,
at the time of such assignment, result in greater amounts under Section 1.10,
2.06 or 4.04 from the amounts the Borrower is required to pay with respect
to
the respective assigning Lender prior to such assignment, then the Borrower
shall not be obligated to pay such increased amounts (although the Borrower,
in
accordance with and pursuant to the other provisions of this Agreement, shall
be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective assignment).
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(c) Nothing
in this Agreement shall prevent or prohibit any Lender from pledging its Loans
and Notes hereunder to a Federal Reserve Bank in support of borrowings made
by
such Lender from such Federal Reserve Bank and, with prior notification to
the
Administrative Agent (but without the consent of the Administrative Agent or
the
Borrower), any Lender which is a fund may pledge all or any portion of its
Loans
and Notes to its trustee or to a collateral agent providing credit or credit
support to such Lender in support of its obligations to such trustee, such
collateral agent or a holder of such obligations, as the case may be. No pledge
pursuant to this clause (c) shall release the transferor Lender from any of
its
obligations hereunder.
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13.05 No
Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent, the
Collateral Agent, any Issuing Lender or any Lender in exercising any right,
power or privilege hereunder or under any other Credit Document and no course
of
dealing between the Borrower or any other Credit Party and the Administrative
Agent, the Collateral Agent, any Issuing Lender or any Lender shall operate
as a
waiver thereof; nor shall any single or partial exercise of any right, power
or
privilege hereunder or under any other Credit Document pre-clude any other
or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Administrative Agent, the Collateral Agent,
any Issuing Lender or any Lender would otherwise have. No notice to or demand
on
any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent, the Collateral Agent, any
Issuing Lender or any Lender to any other or further action in any circumstances
without notice or demand.
13.06 Payments
Pro Rata.
(a)
Except
as otherwise provided in this Agreement, the Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of the Borrower
in
respect of any Obligations hereunder, the Administrative Agent shall distribute
such payment to the Lenders entitled thereto (other than any Lender that has
consented in writing to waive its pro rata
share of
any such payment) pro rata
based
upon their respective shares, if any, of the Obligations with respect to which
such payment was received.
(b) Each
of
the Lenders agrees that, if it should receive any amount hereunder (whether
by
voluntary payment, by realization upon security, by the exercise of the right
of
setoff or banker’s lien, by counterclaim or cross action, by the enforcement of
any right under the Credit Documents, or otherwise), which is applicable to
the
payment of the principal of, or interest on, the Loans, Unpaid Drawings,
Commitment Commission or Letter of Credit Fees, of a sum which with respect
to
the related sum or sums received by other Lenders is in a greater proportion
than the total of such Obligation then owed and due to such Lender bears to
the
total of such Obligation then owed and due to all of the Lenders immediately
prior to such receipt, then such Lender receiving such excess payment shall
purchase for cash without recourse or warranty from the other Lenders an
interest in the Obligations of the respective Credit Party to such Lenders
in
such amount as shall result in a proportional participation by all the Lenders
in such amount; provided
that if
all or any portion of such excess amount is thereafter recovered from such
Lenders, such purchase shall be rescinded and the purchase price restored to
the
extent of such recovery, but without interest.
(c) Notwithstanding
anything to the contrary contained herein, the provisions of the preceding
Sections 13.06(a) and (b) shall be subject to the express provisions of this
Agreement which require, or permit, differing payments to be made to
Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations;
Computations.
(a)
The
financial state-ments to be furnished to the Lenders pursuant hereto shall
be
made and prepared in accordance with GAAP consistently applied throughout the
periods involved (except as set forth in the notes thereto or as otherwise
disclosed in writing by the Borrower to the Lenders); provided,
however,
that,
(i) except as otherwise specifically provided herein, all computations of Excess
Cash Flow, and all computations and all definitions (including accounting terms)
used in determining compliance with Sections 8.15 and 9 shall utilize GAAP
and
policies in conformity with those used to prepare the financial statements
of
the Borrower referred to in Section 8.01(b) for the fiscal year ended
December 31, 2005 delivered to the Deutsche Bank AG Cayman Islands Branch,
as
Administrative Agent under (and as defined in) the Existing First-Lien Credit
Agreement, pursuant Section 8.01(b) thereto, (ii) to the extent expressly
provided herein, certain calculations shall be made on a Pro Forma
Basis
and (iii) for purposes of calculating the Applicable Margins, the Financial
Covenants, financial ratios, financial terms, all covenants and related
definitions, all such calculations based on the operations of the Borrower
and
its Subsidiaries on a consolidated basis shall be made without giving effect
to
the operations of any Unrestricted Subsidiaries.
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(b) All
computations of interest, Commitment Commission and other Fees hereunder shall
be made on the basis of a year of 360 days (or 365/6 days in the case of
interest on Base Rate Loans based on the Prime Lending Rate) for the actual
number of days (includ-ing the first day but excluding the last day; except
that
in the case of Letter of Credit Fees and Facing Fees, the last day shall be
included) occurring in the period for which such interest, Commitment Commission
or Fees are payable.
13.08 GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
(a)
THIS
AGREEMENT AND THE OTHER CREDIT DOCU-MENTS AND THE RIGHTS AND OBLIGATIONS OF
THE
PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN THE
MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE
STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH
CASE
WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, THE BORROWER HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITION-ALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER HEREBY
FURTHER IRREVO-CABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURIS-DIC-TION OVER THE BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY
LEGAL
ACTION PROCEED-ING WITH RESPECT TO THIS AGREE-MENT OR ANY OTHER CREDIT DOCUMENTS
BROUGHT IN ANY OF THE AFORE-MENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL
JURISDIC-TION OVER THE BORROWER. THE BORROWER FURTHER IRREVOCABLY CONSENTS
TO
THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PRO-CEED-ING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTI-FIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH
IN
SECTION 13.03 HEREOF, SUCH SERVICE TO BECOME EFFEC-TIVE 30 DAYS AFTER SUCH
MAILING. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJEC-TION TO SUCH SERVICE
OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM
IN
ANY ACTION OR PROCEEDING COM-MENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT
THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE ADMINIS-TRATIVE AGENT, ANY LENDER OR THE HOLDER
OF
ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHER-WISE PROCEED AGAINST THE BORROWER IN ANY OTHER
JURISDICTION.
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(b) THE
BORROWER HEREBY IRREVO-CABLY WAIVES ANY OBJEC-TION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY
SUCH ACTION OR PROCEED-ING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(c) EACH
OF
THE PARTIES TO THIS AGREEMENT HEREBY IRREVO-C-ABLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
13.09 Counterparts.
This Agreement may be executed in any number of counter-parts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Borrower and the Administrative
Agent.
13.10 Effectiveness.
This Agreement shall become effective on the date (the “Effective
Date”)
on
which the Borrower, the Administrative Agent and each of the Lenders shall
have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered the same to the Administrative Agent at the Notice Office
or, in the case of the Lenders, shall have given to the Administrative Agent
telephonic (confirmed in writing), written or telex notice (actually received)
at such office that the same has been signed and mailed to it. The
Administrative Agent will give the Borrower and each Lender prompt written
notice of the occurrence of the Effective Date.
13.11 Headings
Descriptive.
The headings of the several sections and subsections of this Agreement are
inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
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13.12 Amendment
or Waiver; etc.
(a)
Neither
this Agreement nor any other Credit Document nor any terms hereof or thereof
may
be changed, waived, discharged or termi-nated unless such change, waiver,
discharge or termination is in writing signed by the respec-tive Credit Parties
party hereto or thereto and the Required Lenders (although additional parties
may be added to (and annexes may be modified to reflect such additions), and
Subsidiaries of the Borrower may be released from the Subsidiaries Guaranty
and
the Security Documents in accordance with the provisions hereof and thereof
without the consent of the other Credit Parties party thereto or the Required
Lenders), provided
that no
such change, waiver, dis-charge or termination shall, without the consent of
each Lender (other than a Defaulting Lender) (with Obligations being directly
affected in the case of following clause (i)),
(i)
extend the final scheduled maturity of any Loan or Note or extend the stated
expiration date of any Letter of Credit beyond the Revolving Loan Maturity
Date,
or reduce the rate or extend the time of pay-ment of interest or Fees thereon
(except in connection with the waiver of applicability of any post-default
increase in interest rates), or reduce the principal amount thereof (it being
understood that any amendment or modification to the financial defini-tions
in
this Agreement or to Section 13.07(a) shall not constitute a reduction in the
rate of interest or Fees for the purposes of this clause (i)), (ii) release
all
or substantially all of the Collateral (except as expressly provided in the
Credit Documents) under all the Security Documents, (iii) release all or
substantially all of the Subsidiary Guarantors from the Subsidiaries Guaranties
(except as expressly provided in the Subsidiaries Guaranty in connection with
permitted sales or dispositions of Equity Interests in the respective Subsidiary
Guarantor or Subsidiary Guarantors being released), (iv) amend, modify or waive
any provision of this Section 13.12 (except for technical amendments with
respect to additional extensions of credit pursuant to this Agreement which
afford the protections to such additional extensions of credit of the type
provided to the Loans and the Commitments on the Effective Date), (v) reduce
the
percentage specified in the definition of Required Lenders (it being understood
that, with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Lenders on sub-stantially the same basis as the extensions of Loans and
Revolving Loan Commitments are included on the Effective Date) or (vi) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement; provided further,
that no
such change, waiver, dis-charge or termination shall (1) increase the
Commitments of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the Total Commitment shall not constitute an increase of the
Commitment of any Lender, and that an increase in the available portion of
any
Commitment of any Lender shall not constitute an increase of the Commitment
of
such Lender), (2) without the consent of each Issuing Lender, amend, modify
or
waive any provision of Section 2 or alter its rights or obli-ga-tions with
respect to Letters of Credit, (3) without the consent of the Administrative
Agent, amend, modify or waive any provision of Section 12 or any other provision
as same relates to the rights or obligations of the Administrative Agent, (4)
with-out the consent of the Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent, or
(5)
reduce the amount of, or extend the date of, any Scheduled Repayment with-out
the consent of the Supermajority Lenders holding Term Loans, or amend the
definition of Supermajority Lenders without the consent of the Supermajority
Lenders holding Term Loans (it being under-stood that, with the consent of
the
Required Lenders, additional extensions of credit pursuant to this Agreement
may
be included in the determination of the Supermajority Lenders on substan-tially
the same basis as the extensions of Loans and Commitments are included on the
Effective Date).
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(b) If,
in
connection with any proposed change, waiver, discharge or termina-tion of any
of
the provisions of this Agreement as contemplated by clauses (i) through (vi),
inclu-sive, of the first proviso to Section 13.12(a), the consent of the
Required Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then the Borrower shall
have
the right, so long as all non-consenting Lenders whose individual con-sent
is
required are treated as described in either clauses (A) or (B) below, to either
(A) replace each such non-consenting Lender or Lenders (or, at the option of
the
Borrower if the respective Lender’s consent is required with respect to less
than all Tranches (or related Commitments), to replace only the respective
Tranche or Tranches of Commitments and/or related outstandings of the respective
non-consenting Lender which gave rise to the need to obtain such Lender’s
individual consent) with one or more Replacement Lenders pursuant to Sec-tion
1.13 so long as at the time of such replacement, each such Replacement Lender
consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Lender’s Commitments and repay the outstanding
Loans of such Lender and cash collateralize such Lender’s RL Percentage of all
outstanding Letters of Credit (or, if such Lender is being replaced as to a
single Tranche only, take such actions with respect to the Tranche for which
it
is being terminated), all in accor-dance with Sections 3.02(b) and/or 4.01(b),
provided
that,
unless the Commitments that are terminated, and Loans repaid, pursuant to
preceding clause (B) are immediately replaced in full at such time through
the
addition of new Lenders or the increase of the Commitments and/or outstand-ing
Loans of existing Lenders (who in each case must specifi-cally consent thereto),
then in the case of any action pursuant to preceding clause (B) the Required
Lenders (determined after giving effect to the proposed action) shall
specifically consent thereto, provided further,
that in
any event the Borrower shall not have the right to replace a Lender, terminate
its Commitments or repay its Loans solely as a result of the exercise of such
Lender’s rights (and the withholding of any required consent by such Lender)
pursuant to the second proviso to Section 13.12(a).
13.13 Survival.
All
indemnities set forth herein including, without limitation, in Sections 1.10,
1.11, 2.06, 4.04, 12.06 and 13.01 shall survive the execution, delivery and
termi-nation of this Agreement and the Notes and the making and repayment of
the
Obligations.
13.14 Domicile
of Term Loans.
Each Lender may transfer and carry its Loans at, to or for the account of
any office, Subsidiary or Affiliate of such Lender. Notwithstanding anything
to
the contrary contained herein, to the extent that a transfer of Loans pursuant
to this Section 13.14 would, at the time of such transfer, result in
increased costs under Section 1.10, 1.11, 2.06 or 4.04 from those being
charged by the respective Lender prior to such transfer, then the Borrower
shall
not be obligated to pay such increased costs (although the Borrower shall be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective transfer).
13.15 Register.
The Borrower hereby designates the Administrative Agent to serve as its
agent, solely for purposes of this Section 13.15, to maintain a register (the
“Register”)
on
which it will record the Commitments from time to time of each of the Lenders,
the Loans made by each of the Lenders and each repayment in respect of the
principal amount of the Loans of each Lender. Failure to make any such
recordation, or any error in such recordation, shall not affect the Borrower’s
obligations in respect of such Loans. With respect to any Lender, the transfer
of the Commitments of such Lender and the rights to the principal of, and
interest on, any Loan made pursuant to such Commitments shall not be effective
until such transfer is recorded on the Register maintained by the Administrative
Agent with respect to ownership of such Commitments and Loans and prior to
such
recordation all amounts owing to the transferor with respect to such Commitments
and Loans shall remain owing to the transferor. The registra-tion of assignment
or transfer of all or part of any Commitments and Loans shall be recorded by
the
Administrative Agent on the Register only upon the acceptance by the
Adminis-trative Agent of a properly executed and delivered Assignment and
Assumption Agreement pur-suant to Section 13.04(b). Coincident with the
delivery of such an Assignment and Assumption Agreement to the Administrative
Agent for acceptance and registration of assignment or transfer of all or part
of a Loan, or as soon thereafter as practicable, the assigning or transferor
Lender shall surrender the Note (if any) evidencing such Loan, and thereupon
one
or more new Notes in the same aggregate principal amount shall be issued to
the
assigning or transferor Lender and/or the new Lender at the request of any
such
Lender. The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of what-so-ever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.15 (but
excluding any losses, claims, damages and liabilities to the extent incurred
by
reason of the gross negligence or willful misconduct of the Administrative
Agent
(as determined by a court of competent jurisdiction in a final and
non-appealable decision)).
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13.16 Confidentiality.
(a)
Subject
to the provisions of clause (b) of this Section 13.16, each of the
Administrative Agent and the Lenders agree that it will use its reasonable
efforts not to disclose without the prior consent of the Borrower (other than
to
its employees, auditors, advisors or counsel or to another Lender if such Lender
or such Lender’s holding or parent company in its sole discretion deter-mines
that any such party should have access to such information, provided such
Persons shall be subject to the provisions of this Section 13.16 to the same
extent as such Lender) any infor-ma-tion with respect to the Borrower or any
of
its Subsidiaries which is now or in the future furnished pur-suant to this
Agreement or any other Credit Document, provided
that any
Lender may disclose any such informa-tion (i) as has become generally available
to the public other than by virtue of a breach of this Section 13.16(a) by
the
respective Lender, (ii) as may be required or appro-priate in any report,
statement or testimony submitted to any municipal, state or Federal regula-tory
body hav-ing or claiming to have jurisdiction over such Lender or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or else-where) or their successors,
(iii) as may be required or appropriate in respect to any summons or subpoena
or
in connection with any litigation, (iv) in order to comply with any law, order,
regulation or ruling applicable to such Lender, (v) to the Administrative Agent
or the Collateral Agent, (vi) to any direct or indirect contractual counterparty
in any swap, hedge or similar agreement (or to any such contractual
counterparty’s professional advisor), so long as such contractual counterparty
(or such professional advisor) agrees to be bound by the provisions of this
Section 13.16, and (vii) to any prospective or actual transferee or participant
in connec-tion with any contemplated transfer or participation of any of the
Notes or Commitments or any interest therein by such Lender, provided
that
such prospective transferee agrees to be bound by the confiden-tial-ity
provisions contained in this Section 13.16.
(b) The
Borrower hereby acknowledges and agrees that each Lender may share with any
of
its affiliates, and such affiliates may share with such Lender, any information
related to the Borrower or any of its Subsidiaries (including, without
limitation, any non-public customer information regarding the creditworthiness
of the Borrower and its Subsidiaries), provided such Persons shall be subject
to
the provisions of this Section 13.16 to the same extent as such
Lender.
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13.17 Limitation
on Additional Amounts.
Notwithstanding anything to the contrary contained in Section 1.10, 1.11
or 2.06, unless a Lender gives notice to the Borrower that it is obligated
to
pay an amount under any such Section within 270 days after the later of (x)
the
date the Lender incurs the respective increased costs, Taxes, loss, expense
or
liability, reduction in amounts received or receivable or reduction in return
on
capital or (y) the date such Lender has actual knowledge of its incurrence
of
the respective increased costs, Taxes, loss, expense or liability, reductions
in
amounts received or receivable or reduction in return on capital, then such
Lender shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 1.10, 1.11 or 2.06, as the case may be, to the extent
the costs, Taxes, loss, expense or liability, reduction in amounts received
or
receivable or reduction in return on capital are incurred or suffered on or
after the date which occurs 270 days prior to such Lender giving notice to
the
Borrower that it is obligated to pay the respective amounts pursuant to said
Section 1.10, 1.11 or 2.06. This Section 13.17 shall have no applicability
to
any Section of this Agreement other than said Sections 1.10, 1.11 or
2.06.
13.18 The
Patriot Act.
Each Lender subject to the USA PATRIOT ACT (Title 111 of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”)
hereby
notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower
and the other Credit Parties and other information that will allow such Lender
to identify the Borrower and the other Credit Parties in accordance with the
Act.
13.19 OTHER
LIENS ON COLLATERAL; TERMS OF INTERCREDITOR AGREEMENT; ETC.
(a)
EACH
LENDER PARTY HERETO UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT LIENS SHALL BE
CREATED ON THE COLLATERAL PURSUANT TO THE SECOND-LIEN NOTE DOCUMENTS, WHICH
LIENS SHALL BE REQUIRED TO BE SUBORDINATED AND JUNIOR TO THE LIENS CREATED
PURSUANT TO THE CREDIT DOCUMENTS IN ACCORDANCE WITH THE TERMS OF THE
INTERCREDITOR AGREEMENT. PURSUANT TO THE EXPRESS TERMS OF SECTION 8.1 OF THE
INTERCREDITOR AGREEMENT, IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF
THE
INTERCREDITOR AGREEMENT AND ANY OF THE CREDIT DOCUMENTS, THE PROVISIONS OF
THE
INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.
(b)
EACH
LENDER AUTHORIZES AND INSTRUCTS THE COLLATERAL AGENT AND THE ADMINISTRATIVE
AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT ON BEHALF OF THE LENDERS, AND
TO
TAKE ALL ACTIONS (AND EXECUTE ALL DOCUMENTS) REQUIRED (OR DEEMED ADVISABLE)
BY
IT IN ACCORDANCE WITH THE TERMS OF THE INTERCREDITOR AGREEMENT.
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(c)
THE
PROVISIONS OF THIS SECTION 13.20 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT
PROVISIONS OF THE INTERCREDITOR AGREEMENT. REFERENCE MUST BE MADE TO THE
INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF.
EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE
INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NO AGENT
OR
ANY OF AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY
OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR
AGREEMENT.
*
*
*
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IN
WITNESS WHEREOF, the parties hereto have caused their duly authorized officers
to execute and deliver this Agreement as of the date first above
written.
|
RCN
CORPORATION
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxx
|
||
|
Title: EVP
& Chief Financial Officer
|
||
|
DEUTSCHE
BANK TRUST COMPANY
|
||
|
AMERICAS,
as Lender and as Administrative Agent
|
||
|
By:
|
/s/ Xxxx Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
|
||
|
Title: Director
|
||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title: Director
|
||
|
CITICORP
USA, INC., as Lender and as Syndication Agent
|
||
|
By:
|
/s/ Xxxx Xxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxx
|
||
|
Title: Director
|
||
|
SOCIETE
GENERALE, as Lender and as Documentation Agent
|
||
|
By:
|
/s/
Xxxx Xxxxx
|
|
|
Name:
Xxxx Xxxxx
|
||
|
Title:
Managing Director
|
||
|
XXXXX
FARGO FOOTHILL, INC., as Lender
|
||
|
By:
|
/s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
||
|
Title: Vice
President
|
||
|
FOOTHILL
INCOME TRUST II, L.P., as
Lender
|
|||
|
By:
FIT II GP, LLC, its General Partner
|
|||
|
By:
|
/s/
Xxxxxxx X. Xxxxxx
|
||
|
Name:
Xxxxxxx X. Xxxxxx
|
|||
|
Title:
Managing Member of the Managing General
Partner
|
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