Exhibit 10(a)
EXECUTION COPY
$1,500,000,000
364-DAY CREDIT AGREEMENT
Dated as of August 9, 2002
Among
SPRINT CORPORATION
and
SPRINT CAPITAL CORPORATION
as Borrowers
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
CITIBANK, N.A.
as Administrative Agent
XXXXXXX XXXXX XXXXXX INC.
and
X.X. XXXXXX SECURITIES INC.
as Joint Lead Arrangers and Book Managers
JPMORGAN CHASE BANK
as Syndication Agent
and
BANK OF AMERICA, N.A.
DEUTSCHE BANK AG NEW YORK BRANCH
and
UBS AG, STAMFORD BRANCH
as Documentation Agents
TABLE OF CONTENTS Page
Article I DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms.........................................................1
Section 1.02. Computation of Time Periods..................................................11
Section 1.03. Accounting Terms.............................................................11
Article II AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The Revolving Credit Advances................................................11
Section 2.02. Making the Revolving Credit Advances.........................................12
Section 2.03. The Competitive Bid Advances.................................................13
Section 2.04. Fees. (a) Facility Fee.....................................................15
Section 2.05. Termination or Reduction of the Commitments..................................15
Section 2.06. Repayment of Advances........................................................16
Section 2.07. Interest on Revolving Credit Advances........................................16
Section 2.08. Optional Conversion of Revolving Credit Advances.............................18
Section 2.09. Optional Prepayments of Revolving Credit Advances............................18
Section 2.10. Increased Costs..............................................................18
Section 2.11. Illegality...................................................................19
Section 2.12. Payments and Computations....................................................19
Section 2.13. Taxes........................................................................20
Section 2.14. Sharing of Payments, Etc.....................................................21
Section 2.15. Extension of Revolver Termination Date.......................................21
Section 2.16. Use of Proceeds..............................................................23
Article III CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03..............23
Section 3.02. Conditions Precedent to Each Revolving Credit Borrowing, Term Loan Conversion
Date and Extension Date......................................................25
Section 3.03. Conditions Precedent to Each Competitive Bid Borrowing.......................25
Section 3.04. Determinations Under Section 3.01............................................25
Article IV REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrowers..............................25
Article V COVENANTS OF THE BORROWERS
Section 5.01. Affirmative Covenants........................................................27
Section 5.02. Negative Covenants...........................................................29
Section 5.03. Financial Covenants..........................................................31
Article VI EVENTS OF DEFAULT
Section 6.01. Events of Default............................................................32
Article VII COMPANY GUARANTY
Section 7.01. Guaranty.....................................................................33
Section 7.02. Guaranty Absolute............................................................34
Section 7.03. Waiver.......................................................................34
Section 7.04. Continuing Guaranty; Assignments.............................................34
Section 7.05. Subrogation..................................................................34
Article VIII THE ADMINISTRATIVE AGENT
Section 8.01. Authorization and Action.....................................................35
Section 8.02. Administrative Agent's Reliance, Etc.........................................35
Section 8.03. Citibank and Affiliates......................................................36
Section 8.04. Lender Credit Decision.......................................................36
Section 8.05. Indemnification..............................................................36
Section 8.06. Successor Administrative Agent...............................................36
Section 8.07. Other Agents.................................................................36
Article IX MISCELLANEOUS
Section 9.01. Amendments, Etc..............................................................37
Section 9.02. Notices, Etc.................................................................37
Section 9.03. No Waiver; Remedies..........................................................37
Section 9.04. Costs and Expenses...........................................................37
Section 9.05. Right of Set-off.............................................................38
Section 9.06. Binding Effect...............................................................39
Section 9.07. Assignments and Participations...............................................39
Section 9.08. Confidentiality..............................................................41
Section 9.09. Governing Law................................................................41
Section 9.10. Execution in Counterparts....................................................41
Section 9.11. Jurisdiction, Etc............................................................41
Section 9.12. Waiver of Jury Trial.........................................................42
ii
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 5.02(a) - Existing Liens
Schedule 5.02(c) - Potential Asset Sales
Schedule 5.02(e) - Existing Subsidiary Debt
Exhibits
Exhibit A - Form of Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit B-3 - Form of Notice of Term Loan Election
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrowers
364-DAY CREDIT AGREEMENT
Dated as of August 9, 2002
SPRINT CORPORATION, a Kansas corporation (the "Company"), SPRINT
CAPITAL CORPORATION, a Delaware corporation ("Sprint Capital" and, together with
the Company, the "Borrowers"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the signature pages
hereof, and CITIBANK, N.A. ("Citibank"), as administrative agent (together with
any successor administrative agent appointed pursuant to Section 8.06, the
"Administrative Agent") for the Lenders (as hereinafter defined), XXXXXXX XXXXX
XXXXXX INC. and X.X. XXXXXX SECURITIES INC., as joint lead arrangers and book
managers, JPMORGAN CHASE BANK, as syndication agent, and BANK OF AMERICA, N.A.,
DEUTSCHE BANK AG NEW YORK BRANCH and UBS AG, STAMFORD BRANCH, as documentation
agents, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank
with its office at 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000,
Account No. 00000000, Attention: Bank Loan Syndications.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the
Administrative Agent as its Applicable Lending Office with respect to
such Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
========================= ====================== ====================== ====================== ======================
Public Debt Rating Applicable Margin Applicable Margin Applicable Margin Applicable Margin
S&P/Xxxxx'x for Eurodollar Rate for Eurodollar Rate for Base Rate for Base Rate
Advances Prior to Advances On and Advances Prior to Advances On and
Term Loan Conversion After Term Loan Term Loan Conversion After Term Loan
Date Conversion Date Date Conversion Date
========================= ====================== ====================== ====================== ======================
Level 1
BBB+ or Baa1 or above 0.625% 3.375% 0.000% 1.875%
------------------------- ---------------------- ---------------------- ---------------------- ----------------------
Level 2
BBB or Baa2 0.725% 3.625% 0.000% 2.125%
------------------------- ---------------------- ---------------------- ---------------------- ----------------------
Xxxxx 0
XXX- xxx Xxx0 1.175% 4.125% 0.000% 2.625%
------------------------- ---------------------- ---------------------- ---------------------- ----------------------
Xxxxx 0
BB+ and Ba1 1.625% 5.000% 0.125% 3.500%
------------------------- ---------------------- ---------------------- ---------------------- ----------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 2.000% 5.500% 0.500% 4.000%
========================= ====================== ====================== ====================== ======================
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
================================ =============================
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
================================ =============================
Level 1
BBB+ or Baa1 or above 0.125%
-------------------------------- -----------------------------
Level 2
BBB or Baa2 0.150%
-------------------------------- -----------------------------
Xxxxx 0
XXX- xxx Xxx0 0.200%
-------------------------------- -----------------------------
Xxxxx 0
BB+ and Ba1 0.375%
-------------------------------- -----------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.500%
================================ =============================
"Applicable Utilization Fee" means, as of any date prior to
the Term Loan Conversion Date on which the aggregate principal amount
of the Advances exceeds 25% of the aggregate amount of the Lenders'
Commitments, a percentage per annum determined by reference to the
Public Debt Rating in effect on such date as set forth below:
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============================= ============================ =============================
Public Debt Rating Applicable Applicable
S&P/Xxxxx'x Utilization Fee for Utilization Fee for Base
Eurodollar Rate Advances Rate Advances
============================= ============================ =============================
Level 1
BBB+ or Baa1 or above 0.125% 0.000%
----------------------------- ---------------------------- -----------------------------
Level 2
BBB or Baa2 0.250% 0.000%
----------------------------- ---------------------------- -----------------------------
Xxxxx 0
XXX- xxx Xxx0 0.250% 0.125%
----------------------------- ---------------------------- -----------------------------
Xxxxx 0
BB+ and Ba1 0.500% 0.500%
----------------------------- ---------------------------- -----------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.500% 0.500%
============================= ============================ =============================
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" means an Extension Assuming Lender.
"Assumption Agreement" means an assumption agreement entered
into between an Extension Assuming Lender and a Non-Consenting Lender
and accepted by the Administrative Agent and the Company, in such form
as is agreed among the applicable Extension Assuming Lender, the
applicable Non-Consenting Lender, the Administrative Agent and the
Company.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base
rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i)1/2of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three
New York certificate of deposit dealers of recognized standing
selected by Citibank, by (B) a percentage equal to 100% minus
the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such
3
three-week period of the annual assessment rates estimated by
Citibank for determining the then current annual assessment
payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Commitment" has the meaning specified in Section 2.01.
"Competitive Bid Advance" means an advance by a Lender to a
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information that any Borrower
furnishes to the Administrative Agent or any Lender in a writing
designated as confidential, but does not include any such information
that is or becomes generally available to the public or that is or
becomes available to the Administrative Agent or such Lender from a
source other than a Borrower.
"Consenting Lender" has the meaning specified in Section
2.16(b).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person as lessee under leases
that have been or should be, in accordance with GAAP, recorded as
capital leases and under synthetic, off-balance sheet or tax retention
leases, (e) all obligations, contingent or otherwise, of such Person in
respect of acceptances, standby letters of credit or similar extensions
of credit, (f) all net payment obligations of such Person in respect of
Hedge Agreements, (g) all obligations outstanding to Persons that are
not Affiliates of the Company in connection with a receivables
securitization program, (h) all Debt of others referred to in clauses
(a) through (e) above or clause (i) below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (1) to pay
or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or to
assure the holder of such Debt against loss, (3) to supply funds to or
in any other manner invest in the
4
debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) or (4) otherwise to assure a creditor against loss, and (i)
all Debt referred to in clauses (a) through (h) above secured by (or
for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of
such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Directories Business" means Directories America, Inc., Centel
Directories, LLC, Sprint Publishing & Advertising, Inc. and Centel
Directory Company.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance or Assumption Agreement pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrowers and the Administrative Agent.
"EBITDA" means, for any period, net income (or net loss)
(before discontinued operations for such period and exclusive of,
without duplication, (w) the income or loss resulting from
extraordinary items, (x) the income or loss of any Person accounted for
by the Company on the equity method, (y) certain restructuring and
asset impairment charges in the amount of $1,814,000,000 taken in the
fourth fiscal quarter of 2001 and (z) non-cash, one-time charges) plus
the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense and (d) amortization expense, in each case in
accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender that is a bank or other financial institution; and (iii) any
other bank or financial institution approved by the Administrative
Agent and, unless an Event of Default has occurred and is continuing at
the time any assignment is effected in accordance with Section 9.07,
the Company, such approval not to be unreasonably withheld or delayed;
provided, however, that neither any Borrower nor an Affiliate of any
Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
5
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Company's controlled group, or under
common control with the Company, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of the Company or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by the Company or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for the imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance or Assumption Agreement pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time
specify to the Borrowers and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period.
The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Revolving Credit Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(ii).
6
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances or LIBO Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances or LIBO Rate Advances is determined) having a term equal
to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Assuming Lender" has the meaning specified in
Section 2.16(c).
"Extension Date" has the meaning specified in Section 2.16(b).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"FON Group" has the meaning specified in the Company's
Articles of Incorporation.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section
7.01.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreement" means interest rate swap or collar
agreements, interest rate future contracts, currency swap agreements,
currency future contracts and other similar agreements.
"Information Memorandum" means the information memorandum
dated June 5, 2002 used by the Administrative Agent in connection with
the syndication of the Commitments.
"Insignificant Subsidiary" means any Subsidiary of the Company
that (i) has assets aggregating $1,000,000 or less and (ii) does not
have any creditor that is the beneficiary of a guaranty of the Company
or any of its Subsidiaries.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurodollar Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance and ending on the last day of the
period selected by the applicable Borrower pursuant to the provisions
below and, thereafter, with respect to Eurodollar Rate Advances, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by such Borrower
7
pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months (or if available to all
Lenders, nine months), as the applicable Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(i) no Borrower may select any Interest Period that ends after
the scheduled Revolver Termination Date or, if the Revolving Credit
Advances have been converted to a term loan pursuant to Section 2.06
prior to such selection, that ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Revolving Credit Borrowing or
for LIBO Rate Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 2.16 or Section 9.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to the amount that would be the Reference
Banks' respective ratable shares of such Borrowing if such Borrowing
were to be a Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. The LIBO Rate for any Interest Period for
each LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing shall be determined by the Administrative Agent on the basis
of applicable rates furnished to and received by the Administrative
Agent from the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions of Section
2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Borrower or any Borrower
and its Subsidiaries taken as a whole.
8
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Borrower or any Borrower
and its Subsidiaries taken as a whole, (b) the rights and remedies of
the Administrative Agent or any Lender under this Agreement or any Note
or (c) the ability of any Borrower to perform its obligations under
this Agreement or any Note.
"Maturity Date" means the earlier of (a) the first anniversary
of the Revolver Termination Date and (b) the date of termination in
whole of the aggregate Commitments pursuant to Section 2.05 or 6.01.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Company or any ERISA Affiliate and at least one Person
other than the Company and the ERISA Affiliates or (b) was so
maintained and in respect of which the Company or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Debt" of any Person means at any time (i) Debt of such
Person that, in accordance with GAAP, would be classified as
indebtedness on a Consolidated balance sheet of such Person minus (ii)
the positive amount, if any, that is equal to (a) the total amount of
cash and cash equivalents reflected on such Person's balance sheet at
such time minus (b) $200,000,000.
"Non-Consenting Lender" has the meaning specified in Section
2.16(b).
"Note" means a promissory note of a Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender
resulting from the Advances made by such Lender.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PCS Group" has the meaning specified in the Company's
Articles of Incorporation.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 60
days or which are being contested in good faith by appropriate
proceedings and as to which appropriate reserves are being maintained;
(c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; (d) deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business; and (e) easements, rights of way and other encumbrances on
title to real property that do not render title to the property
encumbered thereby unmarketable or materially adversely affect the use
of such property for its present purposes.
9
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the highest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Company. For purposes of the foregoing,
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be determined by reference to the
available rating; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Percentage
and the Applicable Utilization Fee will be set in accordance with Level
5 under the definition of "Applicable Margin", "Applicable Percentage"
or "Applicable Utilization Fee", as the case may be; (c) if the ratings
established by S&P and Moody's shall fall within different levels
higher than Xxxxx 0, the Applicable Margin, the Applicable Percentage
and the Applicable Utilization Fee shall be based upon the higher
rating, provided that if the lower of such ratings is more than one
level below the higher of such ratings, then the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee shall be based
on the rating that is the level above the lower of such ratings; (d) if
any rating established by S&P or Moody's shall be changed, such change
shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (e) if
S&P or Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Moody's,
as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
"Reference Banks" means Citibank, JPMorgan Chase Bank, Bank of
America, N.A., Deutsche Bank AG New York Branch and UBS AG, Stamford
Branch.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Revolving Credit Advances owing to Lenders, or, if no such
principal amount is then outstanding, Lenders having at least a
majority in interest of the Commitments.
"Revolver Termination Date" means the earlier of (a) August 8,
2003, subject to the extension thereof pursuant to Section 2.16, or (b)
the date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01, or if such date is not a Business Day, the immediately
preceding Business Day; provided, however, that the Revolver
Termination Date of any Lender that is a Non-Consenting Lender to any
requested extension pursuant to Section 2.16 shall be the Revolver
Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
"Revolving Credit Advance" means an advance by a Lender to a
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Company or any ERISA Affiliate and no Person other
than the Company and the ERISA Affiliates or (b) was so maintained and
in respect of which the Company
10
or any ERISA Affiliate could have liability under Section 4069 of ERISA
in the event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Telephone Asset" means any asset of a Person used by such
Person to provide telephone or communication services.
"Term Loan Conversion Date" means the Revolver Termination
Date on which all Revolving Credit Advances outstanding on such date
are converted into a term loan pursuant to Section 2.06(a).
"Term Loan Election" has the meaning specified in Section
2.06(a).
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to appoint or to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
Section 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding".
Section 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(e)("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to any Borrower from time to time on any Business Day
during the period from the Effective Date until the Revolver Termination Date in
an aggregate amount not to exceed at any time outstanding the amount set forth
opposite such Lender's name on the signature pages hereof or, if such Lender has
entered into any Assignment and Acceptance or an Assumption Agreement, set forth
for such Lender in the Register maintained by the Administrative Agent pursuant
to Section 9.07(d), as such amount may be reduced pursuant to Section 2.05 (such
Lender's "Commitment"), provided that the aggregate amount of the Commitments of
the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the Competitive Bid Advances then outstanding and such
deemed use of the aggregate amount of the Commitments shall be allocated among
the Lenders ratably according to their respective Commitments (such deemed use
of the aggregate amount of the Commitments being a "Competitive Bid Reduction").
Each Revolving Credit Borrowing shall be in an aggregate amount of $25,000,000
or an integral multiple of $1,000,000 in excess thereof and shall consist of
Revolving Credit Advances of the same Type made on the same day by the Lenders
ratably according to their respective Commitments. Notwithstanding any other
provision of this Agreement, more than one Revolving Credit Borrowing may be
made on the same day by either or both Borrowers. Within the limits of each
Lender's Commitment, the Borrowers may borrow under this Section 2.01, prepay
pursuant to Section 2.10 and reborrow under this Section 2.01.
11
Section 2.02. Making the Revolving Credit Advances.(a) Each
Revolving Credit Borrowing shall be made on notice, given not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, or the date of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by a Borrower to the Administrative Agent, which shall give to
each Lender prompt notice thereof by telecopier or telex. Each such notice of a
Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be
by telephone, confirmed immediately in writing, or telecopier or telex in
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Revolving Credit Borrowing, (ii) Type of Advances comprising
such Revolving Credit Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Revolving Credit
Advance. Each Lender shall, before 12:00 noon (New York City time) on the date
of such Revolving Credit Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of such
Revolving Credit Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available on the date of such
Revolving Credit Advance to the Borrower giving such Notice of Revolving Credit
Borrowing at the Administrative Agent's address referred to in Section 9.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, no
Borrower may select Eurodollar Rate Advances for any Revolving Credit Borrowing
at any time that the obligation of the Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower giving such Notice of Revolving Credit Borrowing. In the
case of any Revolving Credit Borrowing that the related Notice of Revolving
Credit Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower giving such Notice of Revolving Credit Borrowing shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in such Notice of
Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of Applicable Margin), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund the Revolving Credit Advance to be made by such Lender as part of such
Revolving Credit Borrowing when such Revolving Credit Advance, as a result of
such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the time of any Revolving Credit Borrowing that such Lender will
not make available to the Administrative Agent such Lender's ratable portion of
such Revolving Credit Borrowing, the Administrative Agent may assume that such
Lender has made such portion available to the Administrative Agent on the date
of such Revolving Credit Borrowing in accordance with subsection (a) of this
Section 2.02 and the Administrative Agent may, in reliance upon such assumption,
make available to a Borrower giving such Notice of Revolving Credit Borrowing on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Administrative Agent,
such Lender and the applicable Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
such Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of such Borrower, the interest rate applicable at the time to
Revolving Credit Advances comprising such Revolving Credit Borrowing and (ii) in
the case of such Lender, the Federal Funds Rate. If such Lender shall repay to
the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Revolving Credit Advance as part of such Revolving
Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any Revolving Credit Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
12
Section 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that any Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Revolver
Termination Date in the manner set forth below; provided that, following the
making of each Competitive Bid Borrowing, the aggregate amount of the Advances
then outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any Competitive Bid Reduction).
(i) Any Borrower may request a Competitive Bid Borrowing
under this Section 2.03 by delivering to the Administrative Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, Interest Period, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity date
for repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than the
date occurring 7 days after the date of such Competitive Bid Borrowing or
later than the earlier of (I) 180 days after the date of such Competitive
Bid Borrowing and (II) the Revolver Termination Date), (y) interest payment
date or dates relating thereto, and (z) other terms (if any) to be
applicable to such Competitive Bid Borrowing, not later than 10:00 A.M.
(New York City time) (A) at least one Business Day prior to the date of the
proposed Competitive Bid Borrowing, if the applicable Borrower shall
specify in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per annum (the
Advances comprising any such Competitive Bid Borrowing being referred to
herein as "Fixed Rate Advances") and (B) at least four Business Days prior
to the date of the proposed Competitive Bid Borrowing, if the applicable
Borrower shall instead specify in the Notice of Competitive Bid Borrowing
that the rates of interest to be offered by the Lenders are to be based on
the LIBO Rate (the Advances comprising such Competitive Bid Borrowing being
referred to herein as "LIBO Rate Advances"). The Administrative Agent shall
in turn promptly notify each Lender of each request for a Competitive Bid
Borrowing received by it from a Borrower by sending such Lender a copy of
the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects
to do so, irrevocably offer to make one or more Competitive Bid Advances to
the applicable Borrower as part of such proposed Competitive Bid Borrowing
at a rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Administrative Agent (which shall give prompt
notice thereof to such Borrower), before 9:30 A.M. (New York City time) on
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and before
10:00 A.M. (New York City time) three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, of the minimum amount and
maximum amount of each Competitive Bid Advance which such Lender would be
willing to make as part of such proposed Competitive Bid Borrowing (which
amounts may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment, if any), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with respect
to such Competitive Bid Advance; provided that if the Administrative Agent
in its capacity as a Lender shall, in its sole discretion, elect to make
any such offer, it shall notify the applicable Borrower of such offer at
least 30 minutes before the time and on the date on which notice of such
election is to be given to the Administrative Agent by the other Lenders.
If any Lender shall elect not to make such an offer, such Lender shall so
notify the Administrative Agent, before 10:00 A.M. (New York City time) on
the date on which notice of such election is to be given to the
Administrative Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Advance as part of
such Competitive Bid Borrowing; provided that the failure by any Lender to
give such notice shall not cause such Lender to be obligated to make any
Competitive Bid Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower giving the Notice of Competitive Bid
Borrowing shall, in turn, before 10:30 A.M. (New York City time) on the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and before
11:00 A.M. (New York City
13
time) three Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO
Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the
Administrative Agentnotice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Administrative Agent of the
amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or less
than the maximum amount, notified to the applicable Borrower by
the Administrative Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be
made by each Lender as part of such Competitive Bid Borrowing,
and reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Administrative Agent notice to
that effect. The Borrower giving the Notice of Competitive Bid
Borrowing shall accept the offers made by any Lender or Lenders
to make Competitive Bid Advances in order of the lowest to the
highest rates of interest offered by such Lenders. If two or more
Lenders have offered the same interest rate, the amount to be
borrowed at such interest rate will be allocated among such
Lenders in proportion to the maximum amount that each such Lender
offered at such interest rate.
(iv) If the applicable Borrower notifies the Administrative
Agent that such Competitive Bid Borrowing is canceled pursuant to paragraph
(iii)(x) above, the Administrative Agent shall give prompt notice thereof
to the Lenders and such Competitive Bid Borrowing shall not be made.
(v) If the applicable Borrower accepts one or more of the
offers made by any Lender or Lenders pursuant to paragraph (iii)(y) above,
the Administrative Agent shall in turn promptly notify (A) each Lender that
has made an offer as described in paragraph (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or not any
offer or offers made by such Lender pursuant to paragraph (ii) above have
been accepted by the applicable Borrower, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of the
amount of each Competitive Bid Advance to be made by such Lender as part of
such Competitive Bid Borrowing, and (C) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Administrative Agent has received forms of documents
appearing to fulfill the applicable conditions set forth in Article III.
Each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing shall, before 12:00 noon (New York City time) on
the date of such Competitive Bid Borrowing specified in the notice received
from the Administrative Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice from
the Administrative Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article III and after
receipt by the Administrative Agent of such funds, the Administrative Agent
will promptly make such funds available to the applicable Borrower at the
Administrative Agent's address referred to in Section 9.02. Promptly after
each Competitive Bid Borrowing the Administrative Agent will notify each
Lender of the amount of the Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such Competitive Bid
Reduction commenced and will terminate.
(vi) If the applicable Borrower notifies the Administrative
Agent that it accepts one or more of the offers made by any Lender or
Lenders pursuant to paragraph (iii)(y) above, such notice of acceptance
shall be irrevocable and binding on such Borrower. The Borrower giving the
Notice of Competitive Bid Borrowing shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the applicable
conditions set forth in Article III, including, without limitation, any
loss, cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Competitive
Bid Advance to be made by such
14
Lender as part of such Competitive Bid Borrowing when such Competitive Bid
Advance, as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$25,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrowers shall be
in compliance with the limitation set forth in the proviso to the first sentence
of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, the Borrowers may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.03.
(d) The applicable Borrower shall repay to the Administrative Agent for
the account of each Lender that has made a Competitive Bid Advance, on the
maturity date of each Competitive Bid Advance (such maturity date being that
specified by such Borrower for repayment of such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above), the then unpaid principal amount of such Competitive Bid Advance.
No Borrower shall have any right to prepay any principal amount of any
Competitive Bid Advance unless, and then only on the terms, specified by the
applicable Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above.
(e) The applicable Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by such Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above. Upon the occurrence and during the
continuance of an Event of Default, such Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance owing
to a Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance.
Section 2.04. Fees. (a) Facility Fee. The Borrowers agree to pay
to the Administrative Agent for the account of each Lender a facility fee on the
aggregate amount of such Lender's Commitment from the date hereof in the case of
each Initial Lender and from the effective date specified in the Assignment and
Acceptance or Assumption Agreement pursuant to which it became a Lender in the
case of each other Lender until the Revolver Termination Date (or, if
applicable, until such Lender's Commitment has been assigned to another Lender)
at a rate per annum equal to the Applicable Percentage in effect from time to
time, payable in arrears quarterly on the last day of each March, June,
September and December, commencing September 30, 2002, and on the Revolver
Termination Date.
(b) Administrative Agent's Fees. The Borrowers shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed among the Borrowers and the Administrative Agent.
Section 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Company shall have the right, upon at least three Business Days'
notice to the Administrative Agent, to terminate in whole or permanently reduce
ratably in part the aggregate unused Commitments of the Lenders; provided that
(i) each partial reduction shall be in an aggregate amount of $25,000,000 or an
integral multiple of $1,000,000 in excess thereof or, if less, the aggregate
amount of all Commitments at such time and (ii) upon the sale, transfer or other
disposition of all or any part of the Directories Business, the Company may
elect in accordance with Section 2.06 to reduce ratably in part the aggregate
Commitments of the Lenders by an aggregate amount equal to $500,000,000.
(b) Mandatory. On the Revolver Termination Date, if the Company has
made the Term Loan Election in accordance with Section 2.06(a) prior to such
date, and from time to time thereafter upon each prepayment of the Revolving
Credit Advances, the Commitments of the Lenders shall be automatically and
15
permanently reduced on a pro rata basis by an amount equal to the amount by
which (i) the aggregate Commitments immediately prior to such reduction exceeds
(ii) the aggregate unpaid principal amount of all Revolving Credit Advances
outstanding immediately after such prepayment.
Section 2.06. Repayment of Advances. (a) Revolving Credit
Advances. Each Borrower shall, subject to the next succeeding sentence, repay to
the Administrative Agent for the ratable account of the Lenders on the Revolver
Termination Date the aggregate principal amount of the Revolving Credit Advances
then outstanding. The Company may, by delivery of a notice in the form of
Exhibit B-3 to the Administrative Agent not less than 10 days' notice prior to
the Revolver Termination Date, elect (the "Term Loan Election") to convert all
of the Revolving Credit Advances outstanding on the Revolver Termination Date in
effect at such time into a term loan which the applicable Borrower shall repay
in full ratably to the Lenders on the Maturity Date; provided that the Term Loan
Election may not be exercised if the applicable conditions set forth in Article
III have not been satisfied and provided, further, that if (x) the Company has
sold all or any part of the Directories Business prior to the Revolver
Termination Date, the Company shall, on or prior to the Revolver Termination
Date, reduce the aggregate Commitments of the Lenders in accordance with Section
2.05(a) by $500,000,000 and (y) the Company has not sold any part of the
Directories Business prior to the Revolver Termination Date, the Company may on
or prior to the Revolver Termination Date, (A) reduce the aggregate Commitments
of the Lenders in accordance with Section 2.05(a) by $500,000,000 or (B) cause
Directories America, Inc. and Centel Directories, LLC to grant to the
Administrative Agent, for its benefit and the ratable benefit of the Lenders, a
perfected Lien on the capital stock of Sprint Publishing & Advertising, Inc. and
Centel Directory Company to secure $500,000,000 of the obligations of the
Borrowers under this Agreement and shall deliver to the Administrative Agent
such documents, certificates and opinions of counsel as the Administrative Agent
may reasonably request in connection therewith. All Revolving Credit Advances
converted into a term loan pursuant to this Section 2.06(a) shall continue to
constitute Revolving Credit Advances except that the Borrowers may not reborrow
pursuant to Section 2.01 after all or any portion of such Revolving Credit
Advances have been prepaid pursuant to Section 2.10.
(b) Competitive Bid Advances. Each Borrower shall repay to the
Administrative Agent, for the account of each Lender that has made a Competitive
Bid Advance, the aggregate outstanding principal amount of each Competitive Bid
Advance made to such Borrower and owing to such Lender on the earlier of (i) the
maturity date therefor, specified in the related Notice of Competitive Bid
Borrowing delivered pursuant to Section 2.03(a)(i) and (ii) the Revolver
Termination Date.
Section 2.07. Interest on Revolving Credit Advances (a)
Scheduled Interest. Each Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance made to it owing to each Lender from the
date of such Revolving Credit Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all times
to the sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee, payable in arrears quarterly on the last day of each
March, June, September and December during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (x) the Eurodollar Rate for such Interest Period for
such Revolving Credit Advance plus (y) the Applicable Margin in effect from
time to time plus (z) the Applicable Utilization Fee, payable in arrears on
the last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be Converted or
paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a) or Section 6.01(e),
each Borrower shall pay interest on (i) the unpaid principal amount of each
Revolving Credit Advance made to it and owing to each Lender, payable in arrears
on the dates referred to in
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clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on such Revolving Credit
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
Section 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Eurodollar Rate and each LIBO Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Administrative Agent
shall give prompt notice to the Borrowers and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes of Section
2.07(a)(i) or (ii) , and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the Borrowers and the Lenders, whereupon (i) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance, and (ii) the obligation of the
Lenders to make, or to Convert Revolving Credit Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist.
(c) If any Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify such Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $25,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a) or Section 6.01(e), (i) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
(f) If fewer than two Reference Banks furnish timely information to the
Administrative Agent for determining the Eurodollar Rate or LIBO Rate for any
Eurodollar Rate Advances or LIBO Rate Advances, as the case may be,
(i) the Administrative Agent shall forthwith notify the
Borrowers and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances or LIBO Rate Advances, as the case
may be,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurodollar Rate Advances shall be suspended until the
17
Administrative Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist.
Section 2.09. Optional Conversion of Revolving Credit Advances.
Each Borrower may on any Business Day, upon notice given to the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Conversion and subject to the provisions of
Sections 2.08 and 2.12, Convert all Revolving Credit Advances made to it of one
Type comprising the same Borrowing into Revolving Credit Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances, and any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.01. Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Revolving Credit Advances to be Converted, and (iii) if such Conversion is into
Eurodollar Rate Advances, the duration of the initial Interest Period for each
such Advance. Each notice of Conversion shall be irrevocable and binding on the
Borrower giving such notice.
Section 2.10. Prepayments of Revolving Credit Advances. (a)
Optional. Each Borrower may, upon notice by 11:00 A.M. (New York City time) at
least two Business Days' prior to the date of the proposed prepayment (in the
case of Eurodollar Rate Advances) and notice by 11:00 A.M. (New York City time)
on the date of the proposed prepayment (in the case of Base Rate Advances) to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given such Borrower shall,
prepay the outstanding principal amount of the Revolving Credit Advances made to
it comprising part of the same Revolving Credit Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
(b) Mandatory. The Borrowers shall repay to the Administrative Agent an
aggregate principal amount of the Advances comprising part of the same Borrowing
equal to the amount by which the aggregate principal amount of the Advances then
outstanding exceeds the aggregate of the Commitments, together with accrued
interest to the date of such prepayment on the principal amount prepaid.
Section 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
after the date hereof, in the case of Eurodollar Rate Advances, or after the
date of any Lender's offer to make a Competitive Bid Advance pursuant to Section
2.03(a)(ii), in the case of LIBO Rate Advances, there shall be any increase in
the cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances or LIBO Rate Advances (excluding for purposes of this
Section 2.11 any such increased costs resulting from (i) Taxes or Other Taxes
(as to which Section 2.14 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrowers shall from time to time, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate as
to the amount of such increased cost, submitted to the Borrowers and the
Administrative Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation
or any guideline or request from any central bank or other governmental
authority (whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), the Borrowers shall
pay to the Administrative Agent for the account of such Lender, from time to
time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in
18
capital to be allocable to the existence of such Lender's commitment to lend
hereunder. A certificate as to such amounts submitted to the Borrowers and the
Administrative Agent by such Lender shall be conclusive and binding for all
purposes, absent manifest error.
Section 2.12. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
LIBO Rate Advances or to fund or maintain Eurodollar Rate Advances or LIBO Rate
Advances hereunder, (i) each LIBO Rate Advance of such Lender and each
Eurodollar Rate Advance will automatically, upon such demand, Convert into a
Base Rate Advance or an Advance that bears interest at the rate set forth in
Section 2.07(a)(i), as the case may be, and (ii) the obligation of such Lender
to make LIBO Rate Advances and the obligation of the Lenders to make Eurodollar
Rate Advances or to Convert Revolving Credit Advances into Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist.
Section 2.13. Payments and Computations. (a) Each Borrower shall
make each payment hereunder and under the Notes not later than 11:00 A.M. (New
York City time) on the day when due in U.S. dollars to the Administrative Agent
at the Administrative Agent's Account in same day funds without set-off,
counterclaim or deduction. The Administrative Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable pursuant to
Section 2.03, 2.11, 2.14 or 9.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made by
the Administrative Agent on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the Eurodollar Rate or the
Federal Funds Rate and of facility fees and utilization fees shall be made by
the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable. Each
determination by the Administrative Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
provided, however, that, if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances or LIBO Rate Advances to be made in the
next following calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Administrative Agent shall have received notice from the
applicable Borrower prior to the date on which any payment is due to the Lenders
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the applicable Borrower shall not have so made such payment in full to
the Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
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Section 2.14. Taxes. (a) Any and all payments by each Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If any
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Administrative Agent
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Borrower shall make such deductions
and (iii) such Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, each Borrower shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) Each Borrower shall indemnify each Lender and the Administrative
Agent for and hold it harmless against the full amount of Taxes or Other Taxes
imposed on or paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, interest and expenses, but excluding
items specifically excluded from the definition of "Taxes" in subsection (a)
above) arising therefrom or with respect thereto. This indemnification shall be
made within 30 days from the date such Lender or the Administrative Agent (as
the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each Borrower
shall furnish to the Administrative Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing such payment. In
the case of any payment hereunder or under the Notes by or on behalf of any
Borrower through an account or branch outside the United States or by or on
behalf of such Borrower by a payor that is not a United States person, if such
Borrower determines that no Taxes are payable in respect thereof, such Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance or the Assumption Agreement pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as requested
in writing by the Borrowers (but only so long as such Lender remains lawfully
able to do so), shall provide each of the Administrative Agent and the Borrowers
with two (or such other number as may be prescribed by applicable laws or
regulations) original, duly completed Internal Revenue Service form W-8BEN,
W-8ECI, or W-8IMY, as appropriate, or any successor or other forms prescribed by
the Internal Revenue Service, certifying that such Lender is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the Notes. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance or the Assumption Agreement pursuant to which a
Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include United
20
States withholding tax at a rate equal to the lesser of (i) the rate of United
States withholding tax, if any, included in Taxes in respect of the Lender
assignor on such date or (ii) the rate of United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required by Internal Revenue Service form W-8BEN, W-8ECI, or W-8IMY,
or any successor or other forms prescribed by the Internal Revenue Service, that
the Lender reasonably considers to be confidential, the Lender shall give notice
thereof to the Borrowers and shall not be obligated to include in such form or
document such confidential information.
(f) For any period with respect to which a Lender has failed to provide
the Borrowers with the appropriate form described in Section 2.14(e) (other than
if such failure is due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if such form otherwise
is not required under subsection (e) above), such Lender shall not be entitled
to indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrowers shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(h) If any Lender receives a refund or credit of any Taxes or Other
Taxes paid or reimbursed by the Borrowers pursuant to subsection (a) or (c)
above in respect of payments under this Agreement or the Notes, such Lender
shall pay to the Borrowers, with reasonable promptness following the date on
which it actually realizes such refund or credit, an amount equal to the amount
of such refund or credit, net of all out-of-pocket expenses in securing such
refund or credit.
Section 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of
its ratable share of payments on account of the Revolving Credit Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
Each Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of such Borrower in the amount of such participation.
Section 2.16. Extension of Revolver Termination Date. (a) At
least 45 days but not more than 60 days prior to the scheduled Revolver
Termination Date then in effect, the Borrowers, by written notice to the
Administrative Agent, may request an extension of such Revolver Termination Date
for a period of 364 days from its then scheduled expiration; provided, however,
that the Company shall not have made the Term Loan Election for Revolving Credit
Advances outstanding on such Revolver Termination Date prior to such time. The
Administrative Agent shall promptly notify each Lender of such request, and each
Lender shall in turn, in its sole discretion, not earlier than 30 days but at
least 20 days prior to the scheduled Revolver Termination Date then in effect,
notify the Administrative Agent in writing as to whether such Lender will
consent to such extension. If any Lender shall fail to notify the Administrative
Agent in writing of its consent to, or refusal of, any such request for
extension of the Revolver Termination Date at least 20 days prior to the
scheduled Revolver Termination Date then in effect, such
21
Lender shall be deemed to be a Non-Consenting Lender with respect to such
request. The Administrative Agent shall notify the Borrowers in writing not
later than 15 days prior to the scheduled Revolver Termination Date then in
effect of the decision of the Lenders regarding the Borrowers' request for an
extension of such Revolver Termination Date. It is understood and agreed that no
Lender shall have any obligation whatsoever to agree to any request made by the
Borrowers for an extension of the Revolver Termination Date.
(b) If all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.16, upon fulfillment of the
applicable conditions set forth in Article III, the Revolver Termination Date in
effect at such time shall, effective as at such Revolver Termination Date (the
"Extension Date"), be extended for a period of 364 days from such Extension
Date. If Lenders holding at least a majority in interest of the aggregate
Commitments at such time (after giving effect to any assumptions of the
Commitments of Non-Consenting Lenders in accordance with subsection (c) of this
Section 2.16) consent in writing to any such request in accordance with
subsection (a) of this Section 2.16, the Revolver Termination Date in effect at
such time shall, upon fulfillment of the applicable conditions set forth in
Article III, effective as at the applicable Extension Date, be extended as to
those Lenders that so consented (each a "Consenting Lender") but shall not be
extended as to any other Lender (each a "Non-Consenting Lender"). To the extent
that the Revolver Termination Date is not extended as to any Lender pursuant to
this Section 2.16 and the Commitment of such Lender is not assumed in accordance
with subsection (c) of this Section 2.16 on or prior to the applicable Extension
Date, the Commitment of such Non-Consenting Lender shall automatically terminate
in whole on such unextended Revolver Termination Date without any further notice
or other action by the Borrowers, such Lender or any other Person; provided that
such Non-Consenting Lender's rights under Sections 2.11, 2.14 and 9.04, and its
obligations under Section 8.05, shall survive the Revolver Termination Date for
such Lender as to matters occurring prior to such Extension Date.
(c) If less than all of the Lenders consent to any such request pursuant
to subsection (a) of this Section 2.16, the Administrative Agent shall promptly
so notify the Consenting Lenders, and each Consenting Lender may, in its sole
discretion, give written notice to the Administrative Agent not later than 10
days prior to the Revolver Termination Date of the amount of the Non-Consenting
Lenders' Commitments for which it is willing to accept an assignment. If the
Consenting Lenders notify the Administrative Agent that they are willing to
accept assignments of Commitments in an aggregate amount that exceeds the amount
of the Commitments of the Non-Consenting Lenders, such Commitments shall be
allocated among the Consenting Lenders willing to accept such assignments in
such amounts as are agreed between the Borrowers and the Administrative Agent.
If after giving effect to the assignments described above there remains any
Commitments of Non-Consenting Lenders, the Borrowers may arrange for one or more
Consenting Lenders or other Eligible Assignees to assume, effective as of the
Extension Date, any Non-Consenting Lender's Commitment and all of the rights and
obligations of such Non-Consenting Lender under this Agreement thereafter
arising (each Eligible Assignee assuming the Commitment of one or more
Non-Consenting Lenders pursuant to this Section 2.16 being an "Extension
Assuming Lender"), without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the Commitment of any such
Extension Assuming Lender shall in no event be less than $10,000,000 unless the
Commitment of such Non-Consenting Lender hereunder at such time is less than
$10,000,000, in which case such Extension Assuming Lender shall assume all of
such lesser amount; and provided further that:
(i) the Consenting Lenders and Extension Assuming Lenders shall
collectively have paid to the Non-Consenting Lenders the aggregate
principal amount of, and any interest accrued and unpaid to the effective
date of such assumption on, the outstanding Advances, if any, of such
Non-Consenting Lenders;
(ii) any accrued and unpaid Facility Fees and Utilization Fees
owing to such Non-Consenting Lenders as of the effective date of such
assumption, and all additional cost and expense reimbursements and
indemnification payments payable to such Non-Consenting Lenders, and all
other accrued and unpaid amounts owing to such Non-Consenting Lenders under
this Agreement and the Notes, as of the effective date of such assumption,
shall have been paid to such Non-Consenting Lenders by the Borrowers or
such Consenting Lenders and Extension Assuming Lenders; and
(iii) with respect to any such Extension Assuming Lender, the
applicable processing and recordation fee required under Section 9.07(a)
shall have been paid; and
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provided further that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 9.04, and its obligations under Section 8.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to each Extension Date, (A) each such Extension
Assuming Lender, if any, shall have delivered to the Borrowers and the
Administrative Agent an Assumption Agreement, duly executed by such Extension
Assuming Lender, such Non-Consenting Lender, the Borrowers and the
Administrative Agent, (B) each such Consenting Lender, if any, shall have
delivered written confirmation satisfactory to the Borrowers and the
Administrative Agent as to any increase in the amount of its Commitment
resulting from its assumption of one or more Commitments of the Non-Consenting
Lenders and (C) each Non-Consenting Lender being replaced pursuant to this
Section 2.16(c) shall have delivered to the Administrative Agent, to be held in
escrow on behalf of such Non-Consenting Lender until the payment in full of all
amounts owing to such Non-Consenting Lender under clauses (i) through (iii) of
this Section 2.16(c), any Note or Notes held by such Non-Consenting Lender. Upon
the payment or prepayment of all amounts referred to in clauses (i), (ii) and
(iii) of this Section 2.16(c), each such Consenting Lender or Extension Assuming
Lender, as of the Extension Date, will be substituted for the applicable
Non-Consenting Lender(s) under this Agreement and shall be a Lender for all
purposes of this Agreement, without any further acknowledgment by or the consent
of any of the other Lenders, and the obligations of each such Non-Consenting
Lender hereunder shall, by the provisions hereof, be released and discharged.
(d) If Lenders holding at least a majority in interest of the aggregate
Commitments at such time (after giving effect to any assumptions pursuant to
subsection (c) of this Section 2.16) consent in writing to a requested extension
(whether by execution and delivery of an Assumption Agreement or otherwise) not
later than one Business Day prior to an Extension Date, the Administrative Agent
shall so notify the Borrowers, and, upon fulfillment of the applicable
conditions set forth in Article III and subsection (c) above, the Revolver
Termination Date then in effect shall be extended for the 364-day period
described in subsection (a) of this Section 2.16, and all references in this
Agreement and in the Notes to the "Revolver Termination Date" shall, with
respect to each Consenting Lender and each Extension Assuming Lender for such
Extension Date, refer to the Revolver Termination Date as so extended. Promptly
following each Extension Date, the Administrative Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) of the extension of the
scheduled Revolver Termination Date in effect immediately prior thereto and
shall thereupon record in the Register the relevant information with respect to
each such Consenting Lender and each such Extension Assuming Lender.
Section 2.17. Use of Proceeds. The proceeds of the Advances
shall be available (and each Borrower agrees that it shall use such proceeds)
solely for general corporate purposes of the Company and its Subsidiaries,
including commercial paper backstop.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective
on and as of the first date (the "Effective Date") on which the following
conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2001.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect or (ii) purports to affect
the legality, validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders during the
course of their due diligence investigation to lead them to believe that the
Information Memorandum was or has become misleading, incorrect or incomplete in
any material respect; without limiting the generality of the foregoing, the
Lenders shall have been given such access to the management, records, books of
account, contracts and properties of the Company and its Subsidiaries as they
shall have reasonably requested.
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(d) All governmental and third party consents and approvals necessary in
connection with the transactions contemplated hereby shall have been obtained
(without the imposition of any conditions that are not acceptable to the
Lenders) and shall remain in effect, and no law or regulation shall be
applicable in the reasonable judgment of the Lenders that restrains, prevents or
imposes materially adverse conditions upon the transactions contemplated hereby.
(e) The Company shall have notified each Lender and the Administrative
Agent in writing as to the proposed Effective Date.
(f) The Company shall have paid all accrued fees and expenses of the
Administrative Agent and the Lenders in connection with this Agreement and the
transactions contemplated hereby (including the accrued fees and expenses of
counsel to the Administrative Agent).
(g) On the Effective Date, the following statements shall be true and
the Administrative Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Company, dated the
Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(h) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such day, in form and substance
satisfactory to the Administrative Agent and (except for the Notes) in
sufficient copies for each Lender:
(i) The Notes payable to the order of the Lenders,
respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of each Borrower authorizing this Agreement and the Notes to
be executed by it, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary
of each Borrower certifying the names and true signatures of the
officers of such Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered hereunder.
(iv) A favorable opinion of Xxxxxxx X. Xxxx, Assistant
Secretary of each of the Borrowers, counsel for the Borrowers,
substantially in the form of Exhibit D hereto and as to such other
matters as any Lender through the Administrative Agent may reasonably
request.
(v) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
(i) The Borrowers shall have terminated the commitments, and paid in
full all Debt, interest, fees and other amounts outstanding, under (i) the
$3,000,000,000 364-Day Credit Agreement dated as of August 3, 2001 among the
Company and Sprint Capital, as borrowers, the lenders parties thereto, Citibank
N.A., as administrative agent, Xxxxxxx Xxxxx Xxxxxx Inc. and X.X. Xxxxxx
Securities Inc., as joint lead arrangers and book managers, The Chase Manhattan
Bank, as syndication agent, and Bank of America, N.A., Deutsche Bank AG New York
Branch and First Union National Bank, as documentation agents and (b) the Five
Year Credit Agreement dated as of August 7, 1998 among the Company, Sprint
Capital, the lenders parties thereto, Citibank, as administrative agent, Xxxxxx
Guaranty Trust Company of New York, as syndication agent, and Bank of America
N.A. (formerly known as Bank of America, National Trust and Savings Association)
and The Chase Manhattan Bank, as documentation agents. Each of the Lenders that
is a party to either of the above described credit agreements, by execution
hereof, hereby waives the requirement of three business days' notice to the
termination of the commitments thereunder.
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Section 3.02. Conditions Precedent to Each Revolving Credit
Borrowing, Term Loan Conversion Date and Extension Date. The obligation of each
Lender to make a Revolving Credit Advance on the occasion of each Revolving
Credit Borrowing, the Term Loan Election and each extension of Commitments
pursuant to Section 2.16 shall be subject to the conditions precedent that the
Effective Date shall have occurred and on the date of such Revolving Credit
Borrowing, the Term Loan Election and the applicable Extension Date (a) the
following statements shall be true (and each of the giving of the applicable
Notice of Revolving Credit Borrowing, the Term Loan Election, request for
Commitment extension and the acceptance by the applicable Borrower of the
proceeds of such Revolving Credit Borrowing shall constitute a representation
and warranty by such Borrower that on the date of such Borrowing, the Term Loan
Election and such Extension Date such statements are true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than clause
(ii) thereof)) are correct in all material respects on and as of the date
of such Revolving Credit Borrowing, the Term Loan Election or such
Extension Date, before and after giving effect to such Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date, and
(ii) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing, the Term Loan Election or such
Commitment extension, or from the application of the proceeds therefrom,
that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
Section 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (a) the Administrative Agent shall have received the
written notice of the acceptance of offers made by Lenders for Competitive Bid
Advances with respect thereto in accordance with Section 2.03(a)(iii)(y) and (b)
on the date of such Competitive Bid Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Competitive Bid
Borrowing and the acceptance by the applicable Borrower of the proceeds of such
Competitive Bid Borrowing shall constitute a representation and warranty by such
Borrower that on the date of such Competitive Bid Borrowing such statements are
true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than clause
(ii) thereof)) are correct in all material respects on and as of the date
of such Competitive Bid Borrowing, before and after giving effect to such
Competitive Bid Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Section 3.04. Determinations Under Section 3.01 For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Borrowers, by notice to the Lenders, designate as the proposed
Effective Date, specifying its objection thereto. The Administrative Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as follows:
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(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Kansas. Sprint Capital is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
(b) The execution, delivery and performance by each Borrower of this
Agreement and the Notes to be executed by it, and the consummation of the
transactions contemplated hereby, are within such Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) such Borrower's charter or bylaws or (ii) any law or any
contractual restriction binding on or affecting such Borrower.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery and performance by such
Borrower of this Agreement or the Notes to be executed by it.
(d) This Agreement has been duly executed and delivered by each
Borrower. This Agreement is the legal, valid and binding obligation of each
Borrower enforceable against such Borrower in accordance with its terms. Each of
the Notes to be executed by a Borrower when delivered hereunder will have been
duly executed and delivered by such Borrower and will be the legal, valid and
binding obligation of such Borrower, enforceable against such Borrower in
accordance with its terms.
(e) The Consolidated balance sheet of the Company and its Subsidiaries
as at December 31, 2001, and the related Consolidated statements of income and
cash flows of the Company and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Ernst & Young LLP, independent public accountants,
and the Consolidated balance sheet of the Company and its Subsidiaries as at
March 31, 2002, and the related Consolidated statements of income and cash flows
of the Company and its Subsidiaries for the three months then ended, duly
certified by the chief financial officer, chief accounting officer or treasurer
of the Company, copies of which have been furnished to each Lender, fairly
present, subject, in the case of said balance sheet as at March 31, 2002, and
said statements of income and cash flows for the three months then ended, to
year-end audit adjustments, the Consolidated financial condition of the Company
and its Subsidiaries as at such dates and the Consolidated results of the
operations of the Company and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting principles
consistently applied. Since December 31, 2001, there has been no Material
Adverse Change.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Company or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby.
(g) No Borrower is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U issued by the Board of Governors of the Federal Reserve System), and no
proceeds of any Advance will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock.
(h) The Company and each of its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted except for
those the failure to own or license which could not reasonably be expected to
have a Material Adverse Effect (the "Intellectual Property"). No claim has been
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does such Borrower know of any valid basis for any
such claim, except, in either case, for such claims that in the aggregate could
not reasonably be expected to have a Material Adverse Effect. The use of such
Intellectual Property by the Company and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
26
(i) No Borrower is an "investment company", or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as amended. No Borrower is subject to regulation under any Federal or
State statute or regulation which limits its ability to incur Debt.
(j) The Company owns all of the shares of the issued and outstanding
capital stock of Sprint Capital.
ARTICLE V
COVENANTS OF THE BORROWERS
Section 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, each
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders (including, without limitation, compliance with
ERISA and Environmental Laws).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that neither the Company nor
any of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which such Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Continue to engage in
business of the same general type as now conducted by it and preserve and
maintain, and cause each of its Subsidiaries (other than Insignificant
Subsidiaries) to preserve and maintain, its existence, rights (charter and
statutory) and franchises; provided, however, that the Company and its
Subsidiaries may consummate any merger or consolidation permitted under Section
5.02(b) and any disposition permitted under Section 5.02(c) and provided further
that neither the Company nor any of its Subsidiaries shall be required to
preserve any right or franchise if the Company or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company or such Subsidiary, as the case may be, and that the
loss thereof is not disadvantageous in any material respect to the Company, such
Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time upon
notice, permit the Administrative Agent or any of the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, such Borrower and
any of its Subsidiaries, and to discuss the affairs, finances and accounts of
such Borrower and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account in which full and correct entries shall be
made of all financial transactions and the assets and business of such Borrower
and each such Subsidiary in accordance with generally accepted accounting
principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties that
are used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
27
(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates (other than the Company and its
Subsidiaries) on terms that are fair and reasonable and no less favorable to
such Borrower or such Subsidiary than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate.
(i) Reporting Requirements. Furnish to the Administrative Agent for
the account of each of the Lenders:
(i) as soon as available and in any event within 45 days
electronically after the end of each of the first three quarters of
each fiscal year of the Company, Consolidated balance sheets of (A)
the Company and its Subsidiaries, (B) the PCS Group and (C) the FON
Group as of the end of such quarter and Consolidated statements of
income and cash flows of (A) the Company and its Subsidiaries, (B) the
PCS Group and (C) the FON Group for the period commencing at the end
of the previous fiscal year and ending with the end of such quarter,
duly certified (subject to year-end audit adjustments) by the chief
financial officer, the chief accounting officer or the treasurer of
the Company as having been prepared in accordance with generally
accepted accounting principles and as soon as available and in any
event within 55 days in paper format a certificate of the chief
financial officer, the chief accounting officer or the treasurer of
the Company as to compliance with the terms of this Agreement and
setting forth in reasonable detail the calculations necessary to
demonstrate compliance with Section 5.03, provided that in the event
of any change in GAAP used in the preparation of such financial
statements, the Company shall also provide in paper format, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to
GAAP; provided further, that financial statements for the PCS Group
and the FON Group shall be required only for periods during which the
Company has PCS tracking stock outstanding;
(ii) as soon as available and in any event within 90 days
electronically after the end of each fiscal year of the Company, a
copy of the annual audit report for such year for the Company and its
Subsidiaries, containing Consolidated balance sheets of (A) the
Company and its Subsidiaries, (B) the PCS Group and (C) the FON Group
as of the end of such fiscal year and Consolidated statements of
income and cash flows of (A) the Company and its Subsidiaries, (B) the
PCS Group and (C) the FON Group for such fiscal year, in each case
accompanied by an opinion acceptable to the Required Lenders by Ernst
& Young LLP or other independent public accountants acceptable to the
Required Lenders and as soon as available and in any event within 100
days in paper format a certificate of the chief financial officer, the
chief accounting officer or the treasurer of the Company as to
compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate compliance
with Section 5.03, provided that in the event of any change in GAAP
used in the preparation of such financial statements, the Company
shall also provide within 100 days in paper format, if necessary for
the determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP; provided
further, that financial statements for the PCS Group and the FON Group
shall be required only for periods during which the Company has PCS
tracking stock outstanding;
(iii) as soon as possible and in any event within five days
after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer, the chief
accounting officer, the treasurer or assistant treasurer of the
Company setting forth details of such Default and the action that the
Company has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of
all reports that the Company sends to any of its securityholders, and
copies of all reports and proxy solicitations that the Company files
with the Securities and Exchange Commission;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Company or any of its Subsidiaries of the
type described in Section 4.01(f); and
28
(vi) such other information respecting the Company or any of
its Subsidiaries as any Lender through the Administrative Agent may
from time to time reasonably request.
Reports and financial statements required to be delivered by the
Company pursuant to clauses (i), (ii) and (iv) of this subsection (i)
shall be deemed to have been delivered on the date on which the
Company posts such reports, or reports containing such financial
statements, on its website on the Internet at xxx.xxxxxx.xxx, at
xxx.xxx.xxx or at such other website identified by the Company in a
notice to the Administrative Agent and the Lenders and that is
accessible by the Lenders without charge; provided that the Company
shall deliver paper copies of such information to any Lender promptly
upon request of such Lender through the Administrative Agent and
provided further that the Lenders shall be deemed to have received the
information specified in clauses (i) through (v) of this subsection
(i) on the date (x) the information regarding the website where
reports and financial information can be found is posted at the
website of the Administrative Agent identified from time to time by
the Administrative Agent to the Lenders and the Company and (y) such
posting is notified to the Lenders (it being understood that the
Company shall have satisfied the timing obligations imposed by those
clauses as of the date such information is delivered to the
Administrative Agent).
Section 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to any of
its properties, whether now owned or hereafter acquired, or assign for security
purposes, or permit any of its Subsidiaries to assign for security purposes, any
right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Company or any Subsidiary in the ordinary
course of business to secure the purchase price of such property or
equipment or to secure Debt incurred solely for the purpose of financing
the acquisition of such property or equipment, or Liens existing on such
property or equipment at the time of its acquisition (other than any such
Liens created in contemplation of such acquisition that were not incurred
to finance the acquisition of such property) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,
provided, however, that no such Lien shall extend to or cover any
properties of any character other than the real property or equipment being
acquired, and no such extension, renewal or replacement shall extend to or
cover any properties not theretofore subject to the Lien being extended,
renewed or replaced,
(iii) the Liens existing on the Effective Date and described on
Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any Subsidiary of
the Company or becomes a Subsidiary of the Company; provided that such
Liens were not created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those of the Person
so merged into or consolidated with the Company or such Subsidiary or
acquired by the Company or such Subsidiary,
(v) Liens arising in connection with capital leases,
(vi) Liens arising in connection with the monetization of
preferred and common shares of Earthlink Inc. owned by the Company and its
Subsidiaries,
(vii) Liens arising in connection with the sale of accounts
receivable permitted by Section 5.02(c)(vii),
29
(viii) other Liens securing Debt in an aggregate principal
amount not to exceed $100,000,000 at any time outstanding so long as the
Liens described in clause (ix) below remain outstanding, and thereafter
$200,000,000 at any time outstanding,
(ix) Liens granted by Directories America, Inc., Centel
Directories, LLC, Sprint Publishing & Advertising, Inc. and Centel
Directory Company in favor of Deutsche Bank AG New York Branch, as
collateral agent, securing Debt in an aggregate amount not to exceed
$700,000,000, and the replacement, extension or renewal thereof upon or in
the same property theretofore subject thereto or the replacement, extension
or renewal (without increase in the amount above $700,000,000 or change in
any direct or contingent obligor) of the Debt secured thereby, provided
that such Lien shall be terminated on or before March 31, 2003 or shall
have been assigned to the Administrative Agent for the benefit of the
Lenders in accordance with Section 2.06(a), and
(x) the replacement, extension or renewal of any Lien
described on Schedule 5.02(a) or any Lien permitted by clause (iv) above
upon or in the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into any Person, or
permit any of its Subsidiaries to do so, except that (i) any Subsidiary of the
Company may merge or consolidate with or into any other Subsidiary of the
Company, (ii) any Subsidiary of the Company may merge into the Company and (iii)
the Company and any of its Subsidiaries may merge with any other Person so long
as the Company or any of its Subsidiaries is the surviving corporation,
provided, in each case, that no Default shall have occurred and be continuing at
the time of such proposed transaction or would result therefrom.
(c) Sales, Etc., of Assets. Convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) any of
its assets (whether now owned or hereafter acquired) to any Person, or permit
any of its Subsidiaries to do so, except that (i) except as limited by clause
(iv) below, any Subsidiary of the Company may dispose of assets to any other
Subsidiary of the Company or to the Company; (ii) the Company or any of its
Subsidiaries may convey, transfer, lease or otherwise dispose of inventory or
other assets in the ordinary course of business; (iii) the Company or any of its
Subsidiaries may exchange Telephone Assets for Telephone Assets of any other
Person, for the purpose of consolidating the Telephone Assets of the Company or
such Subsidiary, to the extent of the greater of the book value and the fair
market value (as determined in good faith by the Board of Directors of the
Company or such Subsidiary) of the Telephone Assets obtained by the Company or
such Subsidiary as a result of such exchange; (iv) unless a Lien has been
granted to the Lenders in accordance with Section 2.06(a)(y)(B), the Company or
any of its Subsidiaries may sell all or any part of the Directories Business;
(v) the Company or any of its Subsidiaries may sell any and all assets set forth
on Schedule 5.02(c); (vi) the Company and its Subsidiaries may sell other assets
for fair market value having an aggregate book value of all such assets so sold
by the Company and its Subsidiaries of not more than $500,000,000 from the date
hereof; and (vii) the Company or any of its Subsidiaries may sell accounts
receivable with or without recourse; provided that, in each case (except clauses
(i), (ii) and (vii) above), no Default shall have occurred and be
continuing at the time of such proposed transaction or would result therefrom.
(d) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or reporting
practices, except as required or permitted by generally accepted accounting
principles.
(e) Subsidiary Debt. Permit any of its Subsidiaries (other than
Sprint Capital) to create or suffer to exist, any Debt other than:
(i) Debt owed to the Company or to a wholly owned Subsidiary of
the Company,
(ii) Debt existing on the Effective Date and described on
Schedule 5.02(e) hereto (the "Existing Debt"), and any Debt extending
the maturity of, or refunding or refinancing, in whole or in part,
30
the Existing Debt, provided that the principal amount of such Existing
Debt shall not be increased above the principal amount thereof
outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor shall not
be changed, as a result of or in connection with such extension,
refunding or refinancing,
(iii) Debt secured by Liens permitted by Section 5.02(a),
(iv) Debt of a Person existing at the time such Person is
merged into or consolidated with any Subsidiary of the Company or
becomes a Subsidiary of the Company; provided that such Debt is not
created in contemplation of such merger, consolidation or acquisition;
and any Debt extending the maturity of, or refunding or refinancing,
in whole or in part, such Debt, provided that the principal amount of
such Debt shall not increase above the principal amount thereof
outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor shall not
be changed, as a result of or in connection with such extension,
refunding or refinancing.
(v) obligations in respect of acceptances, letters of credit
and similar extensions of credit in an aggregate amount not to exceed
$50,000,000 at any time outstanding,
(vi) other Debt in an aggregate amount not to exceed
$200,000,000 at any one time outstanding, and
(vii) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
(f) Payment Restrictions Affecting Subsidiaries. Directly or indirectly,
enter into or suffer to exist, or permit any of its Restricted Subsidiaries (as
hereinafter defined) to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Restricted Subsidiaries to (i)
declare or pay dividends or other distributions in respect of its equity
interests or (ii) repay or prepay any Debt owed to, make loans or advances to,
provide guaranties in respect of, or otherwise transfer assets to or invest in,
the Company or any other Subsidiary of the Company (whether through a covenant
restricting dividends, loans, asset transfers or investments, a financial
covenant or otherwise), except (i) any agreement in effect on the date hereof,
(ii) any agreement contemplated by Section 5.02(a)(ix) and containing dividend
restrictions and restrictions on loans and advances no more restrictive than are
in the documentation related thereto in effect on the Effective Date, (iii) any
agreement evidencing a Lien permitted by Section 5.02(a) to the extent that such
limitation relates solely to the assets encumbered by such Lien and (iv) any
agreement in effect at the time such Restricted Subsidiary becomes a Restricted
Subsidiary of the Company, so long as such agreement was not entered into solely
in contemplation of such Person becoming a Restricted Subsidiary of the Company.
"Restricted Subsidiary" means any Subsidiary of the Company that owns 1% or more
of the Consolidated assets of the Company and its Subsidiaries taken as a whole
or as to which is attributed 1% or more of the Consolidated revenues of the
Company and its Subsidiaries taken as a whole, in each case as determined by
reference to the most recent financial statements of the Company.
Section 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Company will:
(a) Leverage Ratio. Maintain, as of the end of any fiscal quarter ending
on or after September 30, 2002, for the four consecutive fiscal quarters then
most recently ended, a ratio of Consolidated Net Debt of the Company and its
Subsidiaries to Consolidated EBITDA of the Company and its Subsidiaries for such
four fiscal quarter period of not greater than the ratios set forth below:
---------------------------------------------------------- ------------------
Periods Ending Ratio
---------------------------------------------------------- ------------------
---------------------------------------------------------- ------------------
September 30, 2002 4.00:1.0
---------------------------------------------------------- ------------------
---------------------------------------------------------- ------------------
December 31, 2002 and March 31, 2003 3.75:1.0
---------------------------------------------------------- ------------------
---------------------------------------------------------- ------------------
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June 30, 2003 and September 30, 2003 3.50:1.0
---------------------------------------------------------- ------------------
---------------------------------------------------------- ------------------
December 31, 2003 and thereafter 3.00:1.0
---------------------------------------------------------- ------------------
(b) Interest Coverage Ratio. Maintain, as of the end of any fiscal
quarter ending on or after September 30, 2002, for the four consecutive fiscal
quarters then most recently ended, a ratio of Consolidated EBITDA of the Company
and its Subsidiaries for such four fiscal quarter period to interest expense on,
including amortization of debt discount in respect of, Consolidated Debt of the
Company and its Subsidiaries during such four fiscal quarter period of not less
than 4.0:1.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Advance when the
same becomes due and payable; or any Borrower shall fail to pay any interest on
any Advance or make any other payment of fees or other amounts payable under
this Agreement or any Note within three Business Days after the same becomes due
and payable; or
(b) Any representation or warranty made by any Borrower herein or by
such Borrower in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
(c) (i) Any Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 5.01(d), (e) or (i), 5.02 or 5.03, or (ii) any
Borrower shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed if such
failure shall remain unremedied for 30 days after written notice thereof shall
have been given to the Borrowers by the Administrative Agent or any Lender; or
(d) The Company or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal amount of at least $100,000,000 in the aggregate (but excluding Debt
outstanding hereunder) of the Company or such Subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case prior to the stated
maturity thereof; or
(e) The Company or any of its Subsidiaries (other than any Insignificant
Subsidiary) shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Company or any of its Subsidiaries (other than any
Insignificant Subsidiary) seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or unstayed
for a period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or for any substantial part of its property) shall occur; or
32
the Company or any of its Subsidiaries (other than any Insignificant Subsidiary)
shall take any corporate action to authorize any of the actions set forth above
in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$20,000,000 shall be rendered against the Company or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any creditor or
upon such judgment or order or (ii) there shall be any period of 60 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) (i) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Company (or other securities
convertible into such Voting Stock) representing 33 1/3% or more of the combined
voting power of all Voting Stock of the Company, or shall obtain the power
(whether or not exercised) to elect a majority of the Company's directors; or
(ii) any Person or two or more Persons acting in concert shall succeed in having
sufficient of its nominees elected to the Board of Directors of the Company such
that such nominees, when added to any existing director remaining on the Board
of Directors of the Company after such election who is a related person of such
Person, shall constitute a majority of the Board of Directors of the Company;
(iii) any Person or two or more Persons acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or arrangement (and
five Business Days shall have elapsed since the date of entering into such
contract or arrangement) that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a controlling
influence over the management or policies of the Company; or (iv) the Company
shall cease to maintain beneficial ownership of 100% of the Voting Stock of
Sprint Capital; or
(h) The Company or any of its ERISA Affiliates shall incur, or shall be
reasonably likely to incur, liability in excess of $75,000,000 in the aggregate
as a result of one or more of the following: (i) the occurrence of any ERISA
Event; (ii) the partial or complete withdrawal of the Company or any of its
ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; or
(i) The Company Guaranty contained in Article VII of this Agreement
shall cease for any reason to be valid and binding on or enforceable against the
Company or the Company shall so state in writing;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the Advances, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrowers; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to any
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Borrower.
ARTICLE VII
COMPANY GUARANTY
Section 7.01. Guaranty. The Company hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of Sprint Capital now
or hereafter existing under this Agreement or any Note, whether for principal,
interest, fees, expenses or otherwise (such obligations, to the extent not paid
by Sprint Capital or specifically waived in accordance with Section 9.01, being
the "Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Administrative Agent or
the Lenders in enforcing any rights under this Article VII ("this Guaranty").
Without limiting the generality of the foregoing, the Company's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by Sprint Capital to the
33
Administrative Agent or any Lender under this Agreement or any Note but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving Sprint Capital.
Section 7.02. Guaranty Absolute. The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or the Lenders with respect thereto. The
obligations of the Company under this Guaranty are independent of the Guaranteed
Obligations, and a separate action or actions may be brought and prosecuted
against the Company to enforce this Guaranty, irrespective of whether any action
is brought against Sprint Capital or whether Sprint Capital is joined in any
such action or actions. The liability of the Company under this Guaranty shall
be irrevocable, absolute and unconditional irrespective of, and, to the maximum
extent permitted by law, the Company hereby irrevocably waives any defenses it
may now or hereafter have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or any
agreement or instrument relating hereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations, or any other amendment
or waiver of or any consent to departure from this Agreement or any Note,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to Sprint Capital or
otherwise;
(c) any taking, exchange, release or non-perfection of any collateral,
or any taking, release or amendment or waiver of or consent to departure from
any other guaranty, for all or any of the Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate structure
or existence of Sprint Capital; or
(e) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by the
Administrative Agent or any Lender that might otherwise constitute a defense
available to, or a discharge of, the Company, Sprint Capital or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy or reorganization of Sprint Capital or otherwise, all as
though such payment had not been made.
Section 7.03. Waiver. The Company hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any Lender exhaust any right or take any action against
Sprint Capital or any other Person or any collateral. The Company acknowledges
that it will receive direct and indirect benefits from the financing
arrangements contemplated herein and that the waiver set forth in this Section
7.03 is knowingly made in contemplation of such benefits. The Company hereby
waives any right to revoke this Guaranty, and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
Section 7.04. Continuing Guaranty; Assignments. This Guaranty is
a continuing guaranty and shall (a) remain in full force and effect until the
later of the cash payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the Revolver Termination Date, (b) be
binding upon the Company, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Lenders, the Administrative Agent and their
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c), any Lender may assign or otherwise transfer all or any
portion of its rights and obligations hereunder (including, without limitation,
all or any portion of its Commitment, the Advances owing to it and the Note or
Notes held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such Lender
herein or otherwise, in each case as provided in Section 9.07.
Section 7.05. Subrogation. The Company will not exercise any
rights that it may now or hereafter acquire against Sprint Capital or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of the Company's obligations under this Guaranty, including, without
limitation, any
34
right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the
Administrative Agent or any Lender against Sprint Capital or any other insider
guarantor or any collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from Sprint Capital or any other
insider guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security solely on account of such
claim, remedy or right, unless and until all of the Guaranteed Obligations and
all other amounts payable under this Guaranty shall have been paid in full in
cash and the Revolver Termination Date shall have occurred. If any amount shall
be paid to the Company in violation of the preceding sentence at any time prior
to the later of the payment in full in cash of the Guaranteed Obligations and
all other amounts payable under this Guaranty and the Revolver Termination Date,
such amount shall be held in trust for the benefit of the Administrative Agent
and the Lenders and shall forthwith be paid to the Administrative Agent to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms
of this Guaranty, or to be held as collateral for any Guaranteed Obligations or
other amounts payable under this Guaranty thereafter arising. If (i) the Company
shall make payment to the Administrative Agent or any Lender of all or any part
of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall be paid in full in cash and
(iii) the Revolver Termination Date shall have occurred, the Administrative
Agent and the Lenders will, at the Company's request and expense, execute and
deliver to the Company appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
the Company of an interest in the Guaranteed Obligations resulting from such
payment by the Company.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Administrative Agent shall
not be required to take any action that exposes the Administrative Agent to
personal liability or that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender prompt notice of each notice
given to it by any Borrower pursuant to the terms of this Agreement.
Section 8.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(ii) may consult with legal counsel (including counsel for the Borrowers),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrowers or
to inspect the property (including the books and records) of the Borrowers; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) reasonably believed by it to be genuine and signed or sent by
the proper party or parties.
35
Section 8.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Company, any of its Subsidiaries and any Person who may do business
with or own securities of the Company or any such Subsidiary, all as if Citibank
were not the Administrative Agent and without any duty to account therefor to
the Lenders.
Section 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
Section 8.05. Indemnification. The Lenders agree to indemnify
the Administrative Agent (to the extent not reimbursed by the Borrowers),
ratably according to the respective principal amounts of the Revolving Credit
Advances then owed to each of them (or if no such Advances are outstanding at
the time, ratably according to the respective amounts of their Commitments),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, reasonable costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Administrative Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the
Administrative Agent under this Agreement (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its ratable share of
any reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Administrative Agent is not reimbursed for such expenses by the
Borrowers. In the case of any investigation, litigation or proceeding giving
rise to any Indemnified Costs, this Section 8.05 applies whether any such
investigation, litigation or proceeding is brought by the Administrative Agent,
any Lender or a third party.
Section 8.06. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders and
the Borrowers. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
Section 8.07. Other Agents. Each Lender and each Borrower hereby
acknowledges that none of the arranger, syndication agent, the documentation
agents or any other Lender designated as any "Agent" (other than the
Administrative Agent) on the signature pages hereof has any liability hereunder
other than in its capacity as a Lender.
36
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by any
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder, (f) reduce
or limit the obligations of the Company under Section 7.01 or release or
otherwise limit liability of the Company with respect to the Guaranteed
Obligations or (g) amend this Section 9.01; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note.
Section 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Company, at its address at 0000 Xxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxx
00000, Attention: Treasurer (Telecopier No.: (000) 000-0000); if to Sprint
Capital, at its address at 0000 Xxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000,
Attention: Treasurer (Telecopier No.: (000) 000-0000); if to any Initial Lender,
at its Domestic Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance or the Assumption Agreement pursuant to which it
became a Lender; and if to the Administrative Agent, at its address at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx (Telecopier
No.: (000) 000-0000); or, as to any Borrower or the Administrative Agent, at
such other address as shall be designated by such party in a written notice to
the other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrowers and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed or telexed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VII shall not be effective until received by the
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit (other than the Notes) hereto to be executed and delivered hereunder
shall be effective as delivery of a manually executed counterpart thereof.
Section 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 9.04. Costs and Expenses. (a) The Borrowers agree to pay
on demand all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of outside counsel for the
Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities under this Agreement.
The Borrowers further agree to pay on demand all costs and expenses of the
Administrative Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered
37
hereunder, including, without limitation, reasonable fees and expenses of
counsel for the Administrative Agent and each Lender in connection with the
enforcement of rights under this Section 9.04(a).
(b) The Borrowers agree to indemnify and hold harmless the
Administrative Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) the Notes,
this Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances, except to the extent such claim,
damage, loss, liability or expense is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 9.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. Each Borrower also agrees not to assert any
claim against the Administrative Agent, any Lender, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance or LIBO Rate Advance is made by any Borrower to or for the account
of a Lender other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10
or 2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or by an Eligible Assignee to a Lender other than on the
last day of the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Borrowers pursuant to Section 9.07(a), such Borrower shall, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (including loss of Applicable Margin),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Advance.
(d) The Borrowers acknowledge that the distribution of material through
an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution. All notices,
financial statements, financial and other reports, certificates, requests and
other information materials (the "Communications") and the website of the
Administrative Agent (the "Platform") are provided "as is" and "as available".
The Administrative Agent does not warrant the accuracy, adequacy or completeness
of the Communications or the Platform and expressly disclaims liability for
errors or omissions in the Communications or the Platform. No warranty of any
kind, express, implied or statutory, including, without limitation, any warranty
of merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the
Administrative Agent in connection with the Communications or the Platform.
(e) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
Section 9.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of any Borrower against any and all of the
obligations of such Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, whether or not such Lender shall have made any
demand under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the applicable Borrower after
any such
38
set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender may
have.
Section 9.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by each Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial Lender that
such Initial Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrowers, the Administrative Agent and each Lender
and their respective successors and assigns, except that no Borrower shall have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
Section 9.07. Assignments and Participations.(a) Each Lender may
and, if demanded by the Borrowers (following a demand by such Lender pursuant to
Section 2.11 or 2.14) upon at least 5 Business Days' notice to such Lender and
the Administrative Agent, will assign to one or more banks or other financial
institutions all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Revolving Credit Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement (other
than any right to make Competitive Bid Advances and Competitive Bid Advances
owing to it), (ii) except in the case of an assignment to a bank or other
financial institution that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, (iii) each
such assignment shall be to an Eligible Assignee, (iv) each such assignment made
as a result of a demand by the Borrowers pursuant to this Section 9.07(a) shall
be arranged by the Borrowers after consultation with the Administrative Agent
and shall be either an assignment of all of the rights and obligations of the
assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrowers pursuant to this
Section 9.07(a) unless and until such Lender shall have received one or more
payments from either a Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
subject to such assignment and a processing and recordation fee of $3,500. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents
39
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its behalf
and to exercise such powers and discretion under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together (if the entire interest is being assigned) with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrowers. Within five Business Days after its receipt of such notice, each
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent a new Note to the order of such Eligible Assignee. Such new Note shall be
dated the effective date of such Assignment and Acceptance and shall otherwise
be in substantially the form of Exhibit A hereto.
(d) The Administrative Agent shall maintain at its address referred to
in Section 9.02 a copy of each Assignment and Acceptance and each Assumption
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrowers, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by any Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
financial institutions (other than the Company or any of its Affiliates) in or
to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment to the Borrowers hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by any Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 9.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrowers furnished to such Lender by or on behalf
of the Borrowers; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrowers
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances
40
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
Section 9.08. Confidentiality. Neither the Administrative Agent
nor any Lender shall disclose any Confidential Information to any other Person
without the consent of the Company, other than (a) to the Administrative Agent's
or such Lender's Affiliates (that are not competitors of the Company and its
Subsidiaries) and their officers, directors, employees, agents and advisors and,
as contemplated by Section 9.07(f), to actual or prospective assignees and
participants, and then only on a confidential and a need-to-know basis, (b) as
required by any law, rule or regulation or judicial process and (c) as requested
or required by any state, federal or foreign authority or examiner regulating
banks or banking or any self-regulatory body having authority to regulate or
oversee any aspect of such Lender's business.
Section 9.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
Section 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment
arising out of or relating to this Agreement or the Notes, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State court or federal court sitting in New York City. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
41
Section 9.12. Waiver of Jury Trial. Each of the Borrowers, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement hereof or thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
SPRINT CORPORATION
By /s/ Xxxxxx X. Xxxxx
Title: Vice President
SPRINT CAPITAL CORPORATION
By /s/ Xxxxxx X. Xxxxx
Title: Vice President
CITIBANK, N.A.,
as Administrative Agent
By /s/ Xxxxxxx X. Xxx
Title: Vice President
42
Joint Lead Arrangers
$235,000,000 CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxx
Title: Vice President
$235,000,000 JPMORGAN CHASE BANK
By /s/ Xxxxxxxxx X. Xxxxxxx
Title: Vice President
Documentation Agents
$200,000,000 BANK OF AMERICA, N.A.
By /s/ Xxxxxxx X. Xxxx
Title: Vice President
$150,000,000 DEUTSCHE BANK AG, NEW YORK BRANCH
By /s/ Xxxxxxxx Xxxxxxxxx
Title: Director
By /s/ Xxxxx Xxxxxxxx
Title: Vice President
$150,000,000 UBS AG, STAMFORD BRANCH
By /s/ Xxxxxxx X. Saint
Title: Associate Director
Banking Products Services, US
By /s/ Xxxxxxx X. Xxxxxx
Title: Associate Director
Banking Products Services, US
Lenders
$100,000,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director
Credit Department
By /s/ Xxxxx X. Xxxxxx
Title: Associate Director
43
$100,000,000 XXXXXX COMMERCIAL PAPER INC.
By /s/ Xxxxxxx Xxxxxxx
Title: Authorized Signatory
$85,000,000 ABN AMRO BANK N.V.
By /s/ Xxxxx Xxxxxxxxxx
Title: Group Vice President
By /s/ Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
$75,000,000 BANK ONE, NA
By /s/ Xxxxxxxx X. Xxxxx
Title: Associate Director
$75,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Brand Xxxxxxx
Title: Vice President
$50,000,000 FIFTH THIRD BANK
By /s/ Xxxxx Xxxxxx
Title: Assistant Vice President
$30,000,000 THE NORTHERN TRUST COMPANY
By /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
$10,000,000 UMB BANK, N.A.
By /s/ Xxxxx X. Xxxxxxxx
Title: Senior Vice President
$5,000,000 COMMERCE BANK, N.A.
By /s/ Xxxxxx Xxxxx
Title: Senior Vice President
44
$1,500,000,000 Total of the Commitments
45
