Exhibit 10(a)
EXECUTION COPY
$1,000,000,000
364-DAY CREDIT AGREEMENT
Dated as of June 24, 2003
Among
SPRINT CORPORATION
and
SPRINT CAPITAL CORPORATION
as Borrowers
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
CITIBANK, N.A.
as Administrative Agent
CITIGROUP GLOBAL MARKETS INC.
and
▇.▇. ▇▇▇▇▇▇ 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, CAYMAN ISLANDS 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.........................................................................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. Interest Rate Determination..................................................16
Section 2.09. Optional Conversion of Revolving Credit Advances.............................17
Section 2.10. Optional Prepayments of Revolving Credit Advances............................18
Section 2.11. Increased Costs..............................................................18
Section 2.12. Illegality...................................................................18
Section 2.13. Payments and Computations....................................................19
Section 2.14. Taxes........................................................................19
Section 2.15. Sharing of Payments, Etc.....................................................21
Section 2.16. Extension of Revolver Termination Date.......................................21
Section 2.17. 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......................................................24
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........................................................26
Section 5.02. Negative Covenants...........................................................29
Section 5.03. Financial Covenants..........................................................31
Article VI EVENTS OF DEFAULT
Section 6.01. Events of Default............................................................31
Article VII COMPANY GUARANTY
Section 7.01. Guaranty.....................................................................33
Section 7.02. Guaranty Absolute............................................................33
Section 7.03. Waiver.......................................................................34
Section 7.04. Continuing Guaranty; Assignments.............................................34
Section 7.05. Subrogation..................................................................34
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Article VIII THE ADMINISTRATIVE AGENT
Section 8.01. Authorization and Action.....................................................34
Section 8.02. Administrative Agent's Reliance, Etc.........................................35
Section 8.03. Citibank and Affiliates......................................................35
Section 8.04. Lender Credit Decision.......................................................35
Section 8.05. Indemnification..............................................................35
Section 8.06. Successor Administrative Agent...............................................36
Section 8.07. Other Agents.................................................................36
Article IX MISCELLANEOUS
Section 9.01. Amendments, Etc..............................................................36
Section 9.02. Notices, Etc.................................................................36
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...............................................................38
Section 9.07. Assignments and Participations...............................................38
Section 9.08. Confidentiality..............................................................40
Section 9.09. Governing Law................................................................40
Section 9.10. Execution in Counterparts....................................................40
Section 9.11. Jurisdiction, Etc............................................................40
Section 9.12. Waiver of Jury Trial.........................................................42
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
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364-DAY CREDIT AGREEMENT
Dated as of June 24, 2003
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), CITIGROUP
GLOBAL MARKETS INC. and ▇.▇. ▇▇▇▇▇▇ 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, CAYMAN ISLANDS 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 ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Account No. ▇▇▇▇▇▇▇▇, 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/▇▇▇▇▇'▇ 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%
------------------------- ---------------------- ---------------------- ---------------------- ----------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 1.175% 4.125% 0.000% 2.625%
------------------------- ---------------------- ---------------------- ---------------------- ----------------------
▇▇▇▇▇ ▇
BB+ and Ba1 1.625% 5.000% 0.125% 3.500%
------------------------- ---------------------- ---------------------- ---------------------- ----------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 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/▇▇▇▇▇'▇ Percentage
================================ =============================
Level 1
BBB+ or Baa1 or above 0.125%
-------------------------------- -----------------------------
Level 2
BBB or Baa2 0.150%
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.200%
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
BB+ and Ba1 0.375%
-------------------------------- -----------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 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/▇▇▇▇▇'▇ 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%
----------------------------- ---------------------------- -----------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.250% 0.000%
----------------------------- ---------------------------- -----------------------------
▇▇▇▇▇ ▇
BB+ and Ba1 0.500% 0.500%
----------------------------- ---------------------------- -----------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 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) 1/2 of 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
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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 (excluding, however, operating
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
4
loss, (3) to supply funds to or in any other manner invest in the 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.
"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, (x) the income or loss resulting from extraordinary items, (y)
the income or loss of any Person accounted for by the Company on the equity
method 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.
"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.
5
"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 rate per annum (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such rate is not such a multiple) appearing on
Moneyline Telerate Markets Page 3750 (or any successor page) as the London
interbank offered rate for deposits in U.S. dollars at 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period for
a term equal to such Interest Period or, if for any reason such rate is not
available, 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. If the Moneyline Telerate Markets Page 3750 (or any
successor page) is unavailable, 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).
"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
6
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 May
28, 2003 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 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
7
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 rate per
annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such rate is not such a multiple) appearing on Moneyline Telerate
Markets Page 3750 (or any successor page) as the London interbank offered
rate for deposits in U.S. dollars at 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period for a term equal to
such Interest Period or, if for any reason such rate is not available, 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. If the Moneyline Telerate
Markets Page 3750 (or any successor page) is unavailable, 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.
8
"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.
"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 ▇▇▇▇▇'▇ 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
9
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.
"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 ▇▇▇▇▇ ▇, 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, Cayman Islands
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) June 22, 2004,
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
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
10
"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 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 (i) 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") and (ii) the aggregate Advances of all the Lenders outstanding at
any time shall not exceed the aggregate Commitments. 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
11
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.
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
12
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.
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.
13
(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 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 Agent notice 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
14
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 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 June 30, 2003, 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 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.
(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
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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. 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 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) If Moneyline Telerate
Markets Page 3750 (or any successor page) is unavailable, 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
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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 Moneyline Telerate Markets Page 3750 (or any successor page) is
unavailable and 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 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
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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. Optional Prepayments of Revolving Credit Advances. 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).
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 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.
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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 clause (a) of the definition of
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 and computations in respect of Competitive Bid Advances shall
be made by the Agent as specified in the applicable Notice of Competitive Bid
Borrowing, 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.
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
19
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 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
20
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 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
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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
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-
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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,
2002.
(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.
(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).
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(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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, 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 LLP, 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 the $1,500,000,000
364-Day Credit Agreement dated as of August 9, 2002 among the Company and Sprint
Capital, as borrowers, the lenders parties thereto, Citibank N.A., as
administrative agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and ▇.▇. ▇▇▇▇▇▇ 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. Each of the Lenders that is a party to
the above described credit agreement, by execution hereof, hereby waives the
requirement of three business days' notice to the termination of the commitments
thereunder.
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
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(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:
(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.
25
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, 2002, 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, 2003, 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, 2003, 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, 2002, 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.
(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:
26
(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.
(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
27
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
(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 ▇▇▇.▇▇▇▇▇▇.▇▇▇, at ▇▇▇.▇▇▇.▇▇▇ 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
28
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 common shares of
Earthlink Inc. owned by the Company and its Subsidiaries,
(vii) Liens arising in connection with the sale or financing of accounts
receivable permitted by Section 5.02(c)(vi),
(viii) other Liens securing Debt in an aggregate principal amount not to
exceed $200,000,000 at any time outstanding, and
(ix) 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.
29
(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) 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)
the Company or any of its Subsidiaries may sell any and all assets set forth on
Schedule 5.02(c); (v) 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 (vi) the Company or any of its Subsidiaries may sell or encumber
accounts receivable with or without recourse; provided that, in each case
(except clauses (i), (ii) and (vi) 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, 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
30
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 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 (iii) 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, 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
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,
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
31
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 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 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 (other than members of the Board of
Directors of the Company acting in their capacity as members of the Board of
Directors or any committee thereof) 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
32
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 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.
33
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 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
34
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.
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.
35
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.
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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Treasurer (Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇); if to Sprint Capital, at
its address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Treasurer (Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇); 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 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇ (Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇);
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
36
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 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
37
"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 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 accrued or
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
38
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 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
39
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 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. Notwithstanding anything herein to
the contrary, the Administrative Agent and the Lenders may disclose to any and
all Persons, without limitation of any kind, the U.S. tax treatment and tax
structure of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the
Administrative Agent or any Lender relating to such U.S. tax treatment and tax
structure.
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
40
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance
and Assistant Treasurer
SPRINT CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
CITIBANK, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director and Vice President
42
Joint Lead Arrangers
$115,000,000 CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director and Vice President
$115,000,000 JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Documentation Agents
$100,000,000 BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
$90,000,000 DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
$90,000,000 UBS AG, CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
Title: Associate Director, Banking Products
Services, US
By: /s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Director
Senior Managing Agents
$70,000,000 ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇▇ O'▇. ▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Group Vice President
43
$70,000,000 BANK ONE, NA
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
$70,000,000 ▇▇▇▇▇▇ BROTHERS BANK, FSB
By: /s/ ▇.▇. ▇▇▇▇▇▇
Title: Vice President
$70,000,000 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By: /s/ Jaap L. Tonckens
Title: Vice President
$70,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Title: Director
Lenders
$50,000,000 FIFTH THIRD BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
$50,000,000 ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
$25,000,000 THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
44
$10,000,000 UMB BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
$5,000,000 COMMERCE BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
$1,000,000,000 Total of the Commitments
45
The Exhibits and Schedules referenced in the table of contents have been
omitted for purposes of this filing, but will be furnished supplementally to
the Securities and Exchange Commission upon request.