EXECUTION COPY
$20,000,000
CREDIT AGREEMENT
Dated as of March 29, 2005
Among
ITC^DELTACOM, INC.
as Parent
INTERSTATE FIBERNET, INC.
as Borrower
THE SUBSIDIARIES NAMED HEREIN
THE LENDERS NAMED HEREIN
as Lenders
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P.
as Administrative Agent and
Collateral Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms..........................................2
Section 1.02. Computation of Time Periods; Other Definitional Provisions....24
Section 1.03. Accounting Terms..............................................24
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. Term Commitments..............................................25
Section 2.02. Intentionally omitted.........................................25
Section 2.03. Repayment of Advances.........................................25
Section 2.04. Intentionally omitted.........................................25
Section 2.05. Prepayments...................................................25
Section 2.06. Interest......................................................27
Section 2.07. Increased Costs, Etc..........................................27
Section 2.08. Payments and Computations.....................................27
Section 2.09. Taxes.........................................................29
Section 2.10. Sharing of Payments, Etc......................................31
Section 2.11. Intentionally omitted.........................................32
Section 2.12. Defaulting Lenders............................................32
Section 2.13. Evidence of Debt; Register....................................33
ARTICLE III CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to the Effective Date....................35
ARTICLE IV REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrower................39
ARTICLE V COVENANTS
Section 5.01. Affirmative Covenants.........................................47
Section 5.02. Negative Covenants............................................55
Section 5.03. Reporting Requirements........................................65
ARTICLE VI EVENTS OF DEFAULT
Section 6.01. Events of Default.............................................69
ARTICLE VII GUARANTY
Section 7.01. Parent Guaranty; Limitation of Liability......................72
Section 7.02. Guaranty Absolute.............................................72
Section 7.03. Waivers and Acknowledgments...................................74
Section 7.04. Subrogation...................................................74
Section 7.05. Intentionally omitted.........................................75
Section 7.06. Subordination.................................................75
Section 7.07. Continuing Guaranty; Assignments..............................76
Section 7.08. Release of the Parent.........................................76
ARTICLE VIII THE AGENT
Section 8.01. Authorization and Action......................................76
Section 8.02. Agents' Reliance, Etc.........................................77
Section 8.03. WCAS and Affiliates...........................................77
Section 8.04. Lender Credit Decision........................................77
Section 8.05. Indemnification...............................................78
Section 8.06. Successor Agents..............................................78
Section 8.07. Appointment of Subagents......................................79
ARTICLE IX MISCELLANEOUS
Section 9.01. Amendments, Etc...............................................79
Section 9.02. Notices, Etc..................................................80
Section 9.03. No Waiver; Remedies...........................................80
Section 9.04. Costs and Expenses............................................80
Section 9.05. Right of Set-off..............................................82
Section 9.06. Binding Effect................................................82
Section 9.07. Assignments and Participations................................82
Section 9.08. Execution in Counterparts.....................................84
Section 9.09. Confidentiality...............................................85
Section 9.10. Release of Collateral.........................................85
Section 9.11. Jurisdiction, Etc.............................................85
Section 9.12. Governing Law.................................................86
Section 9.13. Waiver of Jury Trial..........................................86
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SCHEDULES
Schedule I - Lending Offices
Schedule II - Competitors
Schedule III - Subsidiaries to be Dissolved
Schedule 4.01(a)(ii) - Good Standings
Schedule 4.01(a)(iii) - Pending Licenses, Permits and Other
Approvals
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices
and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(n) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(p) - Open Years; Unpaid Tax Liabilities; Adjusted
Tax Bases
Schedule 4.01(r) - Surviving Debt
Schedule 4.01(s) - Liens
Schedule 4.01(t) - Owned Real Property
Schedule 4.01(u) - Leased Real Property
Schedule 4.01(v) - Investments
Schedule 4.01(w) - Intellectual Property
Schedule 4.01(x) - Material Contracts
EXHIBITS
Exhibit A - Form of Term Note
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Security Agreement
Exhibit D - Form of Third Lien Intercreditor and Subordination Agreement
Exhibit E - Form of Capital Lease Assignment
Exhibit F - Form of Opinion of Counsel to the Loan Parties
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of March 29, 2005 (this "Agreement"), among
ITC^DeltaCom, Inc., a Delaware corporation (the "Parent"), Interstate FiberNet,
Inc., a Delaware corporation (the "Borrower"), the Subsidiaries listed on the
signature page hereof, the lenders listed on the signature pages hereof (the
"Lenders"), Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P., as administrative agent
(together with any successor administrative agent appointed pursuant to Article
VIII, the "Administrative Agent") for the Lenders and as collateral agent
(together with any successor collateral agent appointed pursuant to Article
VIII, the "Collateral Agent" and, together with the Administrative Agent, the
"Agents").
RECITALS:
WHEREAS, the Parent, the Borrower, the subsidiary guarantors listed on
the signature pages thereto, the Lenders and the Agents are party to the Credit
Agreement, dated as of October 6, 2003, as amended (the "Original Second Lien
Credit Agreement");
WHEREAS, pursuant to the Credit Agreement, dated as of April 5, 2000,
(the "Original ITCD Credit Agreement"), among the Borrower, the Parent, the
subsidiary guarantors listed on the signature pages thereof, and the banks,
financial institutions and other institutional lenders from time to time parties
thereto as lenders or agents, such lenders made available to the Borrower
$160,000,000, consisting of $100,000,000 under the Xxxxxxx 0 Xxxx X Facility, as
defined in the Original ITCD Agreement, and $60,000,000 under the Xxxxxxx 0 Xxxx
X Facility, as defined in the Original ITCD Agreement in order to finance (a)
working capital and certain capital expenditures (including the build-out of the
collocation and data services businesses) and other general corporate purposes
and (b) the purchase of certain equipment, respectively;
WHEREAS, (a) the Borrower, ITC^DeltaCom Communications, Inc.
("Communications" and together with the Borrower, the "Lessees") and NTFC
Capital Corporation ("NTFC") are party to that certain Master Lease Agreement,
dated December 29, 2000, and the schedules, annexes and security documents
related thereto (as amended through the date hereof, the "NTFC Capital Lease"),
and (b) Communications and General Electric Capital Corporation ("XX Xxxxxx")
are party to that certain Master Lease Agreement, dated December 31, 2001, and
the schedules, annexes and security documents related thereto (as amended
through the date hereof, the "GECC Capital Lease");
WHEREAS, the Parent, the Borrower, the subsidiary guarantors listed on
the signature pages thereof, and the banks, financial institutions and other
institutional lenders from time to time parties thereto as lenders or agents,
entered into (a) an amendment and restatement, dated as of October 29, 2002, of
the Original ITCD Credit Agreement (the "First Amended ITCD Credit Agreement")
and (b) a second amendment and restatement, dated as of October 6, 2003, of the
First Amended ITCD Credit Agreement (the "Second Amended ITCD Credit
Agreement"); and
WHEREAS, the Loan Parties (as defined below) have requested (a) that
certain First Lien Lenders (as defined below) make additional term loans
available to the Borrower under the terms and conditions described in the First
Lien Credit Agreement (as defined below), (b) that the Second Lien Lenders (as
defined below) consent to an amendment and restatement of the indebtedness owing
under the Second Lien Credit Agreement, (c) the First Lien Lenders and the
Second Lien Lenders consent to the incurrence by the Borrower of subordinated
secured indebtedness pursuant to this Agreement, (d) that the First Lien
Lenders, NTFC and the XX Xxxxxx consent to a restructuring of the indebtedness
owing under the Second Amended ITCD Credit Agreement, the NTFC Capital Lease and
the GECC Capital Lease, and (e) in connection with the foregoing, that the
Lenders agree to provide subordinated secured indebtedness pursuant to terms of
this Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties 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):
"Administrative Agent" has the meaning specified in the preamble of
this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent as the Administrative Agent shall specify in writing
to the Lenders.
"Advance" means a Term 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 Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"Agents" has the meaning specified in the preamble of this Agreement.
"Agreement" means this Credit Agreement, dated as of March 29, 2005,
among the Parent, the Borrower, the subsidiaries listed on the signature
pages
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hereto, the Lenders and the Agents, as amended, amended and restated,
supplemented or otherwise modified from time to time.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to:
(a) in the case of a Hedge Agreement documented pursuant to the Master
Agreement (Multicurrency-Cross Border) published by the International Swap
and Derivatives Association, Inc. (the "Master Agreement"), the amount, if
any, that would be payable by any Loan Party or any of its Subsidiaries to
its counterparty to such Hedge Agreement, as if (i) such Hedge Agreement
was being terminated early on such date of determination, (ii) such Loan
Party or Subsidiary was the sole "Affected Party," and (iii) the
Administrative Agent was the sole party determining such payment amount
(with the Administrative Agent making such determination pursuant to the
provisions of the form of Master Agreement); or (b) in the case of a Hedge
Agreement traded on an exchange, the xxxx-to-market value of such Hedge
Agreement, which will be the unrealized loss on such Hedge Agreement to the
Loan Party or Subsidiary of a Loan Party to such Hedge Agreement determined
by the Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination; or (c) in all other cases, the
xxxx-to-market value of such Hedge Agreement, which will be the unrealized
loss on such Hedge Agreement to the Loan Party or Subsidiary of a Loan
Party to such Hedge Agreement determined by the Administrative Agent as the
amount, if any, by which (i) the present value of the future cash flows to
be paid by such Loan Party or Subsidiary exceeds (ii) the present value of
the future cash flows to be received by such Loan Party or Subsidiary
pursuant to such Hedge Agreement; capitalized terms used and not otherwise
defined in this definition shall have the respective meanings set forth in
the above described Master Agreement.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 9.07 and in substantially
the form of Exhibit B hereto.
"Assumed BTI Debt" means (a) the Debt evidenced by the Xxxxxxx 0 Xxxx
X Advances, (as provided and defined in the First Lien Credit Agreement),
(b) the Debt under the Second Lien Loan Documents, (c) unsecured Debt in
the principal amount of $18,525,000 evidenced by the 10 1/2% Senior Notes
due 2007 of BTI and (d) unsecured Debt in the principal amount of
$7,100,000 evidenced by the note payable by BTI, Inc. to the order of P&H,
Inc.
"Bankruptcy Code" means title 11 of the United States Code, as
amended.
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"Benefit Plan Exchange Offer" means any transaction in which the
Parent acquires and/or retires Equity Plan Securities in exchange for other
Equity Plan Securities.
"Board Designees" means individuals whose nomination for election,
appointment or election as directors of the Parent is effectuated pursuant
to (a) the Governance Agreement or (b) the Series A Certificate of
Designation or the Series B Certificate of Designation.
"Borrower" has the meaning specified in the preamble of this
Agreement.
"Borrower's Account" means the account of the Borrower as the Borrower
shall specify in writing to the Administrative Agent.
"Borrowing" means a Term 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.
"BTI" means BTI Telecom Corp.
"BTI, Inc." means Business Telecom, Inc.
"Capital Lease Assignments" means those certain UCC-3 financing
statements authenticated by XX Xxxxxx and NTFC, respectively, pursuant to
which XX Xxxxxx and NTFC will assign to the First Lien Agents and the
Second Lien Agents their respective security interests in the assets
subject to the GECC Capital Lease and the NTFC Capital Lease, respectively.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether outstanding on the
date of this Agreement or issued thereafter, including, without limitation,
all Common Stock and Preferred Stock.
"Cash Equivalents" means any of the following, to the extent owned by
the Parent or any of its Subsidiaries free and clear of all Liens other
than Liens created under the Collateral Documents and having a maturity of
not greater than 360 days from the date of issuance thereof: (a) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed
by the full faith and credit of the Government of the United States; (b)
insured certificates of deposit of or time deposits with any commercial
bank that is a Lender or a member of the Federal Reserve System, issues (or
the parent of which issues) commercial paper rated as described in clause
(c) below, is organized under the
4
laws of the United States or any State thereof and has combined capital and
surplus of at least $1 billion; (c) commercial paper in an aggregate amount
of no more than $160,000,000 per issuer outstanding at any time, issued by
any corporation organized under the laws of any State of the United States
and rated at least "P-1" (or the then equivalent grade) by Xxxxx'x
Investors Service, Inc. or "A-1" (or the then equivalent grade) by Standard
& Poor's, a division of The XxXxxx-Xxxx Companies, Inc.; or (d) obligations
issued by any state of the United States of America or any municipality or
other political subdivision of any such state or any public instrumentality
thereof having, at the time of acquisition, the highest rating obtainable
from any of Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., Xxxxx'x Investors Service, Inc. or Fitch Ratings, Inc., including,
without limitation, auction rate certificates.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"Change of Control" means the occurrence on any date after the
Effective Date of any of the following: (a) a "person" or "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the
"beneficial owner" (within the meaning of Rule 13d-3 of the SEC under the
Exchange Act) of more than 35% of the total voting power of the Voting
Stock of the Parent on a Fully Diluted Basis and such ownership represents
a greater percentage of the total voting power of the Voting Stock of the
Parent, on a Fully Diluted Basis, than the percentage of the total voting
power of the Voting Stock of the Parent, on a Fully Diluted Basis,
beneficially owned (within the meaning of Rule 13d-3 of the SEC under the
Exchange Act) by the Existing Stockholders on such date; or (b) individuals
who on the Effective Date constitute the board of directors of the Parent
(together with any new directors whose appointment by the board of
directors of the Parent or whose nomination by the board of directors of
the Parent for election by the Parent's stockholders was approved by a vote
of at least a majority of the members of the board of directors then in
office who either were members of the board of directors on the Effective
Date or whose appointment or nomination for election was previously so
approved) cease for any reason to constitute a majority of the members of
the board of directors then in office; or (c) the Parent shall cease to own
100% directly of the Equity Interests of the Borrower and 100%, directly or
indirectly, of the Equity Interests of the other Loan Parties. For purposes
of clause (b) of this definition, all Board Designees shall be deemed to be
members of the board of directors of the Parent whose appointment or
nomination for election was approved in the manner specified in clause (b).
"Chief Financial Officer" means, with respect to any Loan Party, the
officer of such Loan Party designated by such Loan Party as its chief
financial
5
officer or, if there is no such officer designation, the officer of such
Loan Party designated by such Loan Party as its principal accounting
officer.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Collateral Account" has the meaning specified in the Security
Agreement.
"Collateral Agent" has the meaning specified in the preamble of this
Agreement.
"Collateral Documents" means the Security Agreement, the Third Lien
Intercreditor and Subordination Agreement, the Mortgages and any other
agreement that creates or purports to create a Lien in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Commitment" means a Term Commitment.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's equity, other than Preferred Stock
of such Person, whether outstanding on the date of this Agreement or issued
thereafter, including, without limitation, all series and classes of such
common stock.
"Communications" has the meaning specified in the recitals of the
parties to this Agreement.
"Competitor" shall mean any Person identified on Schedule III hereto
(or any Affiliate thereof) and any other Person (or any Affiliate thereof)
that engages primarily, or as one of its principal activities, in the
business of providing competitive local exchange telecommunications
services to business customers.
"Confidential Information" means information that any Loan Party
furnishes to any Agent or any Lender on a confidential basis, but does not
include any such information that is or becomes generally available to the
public or that is or becomes available to such Agent or such Lender from a
source other than the Loan Parties which such Agent or such Lender do not
have reason to believe is confidential information. Notwithstanding
anything to the contrary set forth in this definition or in this Agreement,
"Confidential Information" shall not include information relating to the
tax structure or tax treatment of any structure or transaction and all
materials of any kind (including opinions and other tax analyses) that are
provided to the party relating to such tax treatment and tax structure,
excluding information the confidentiality of which is reasonably necessary
to comply with U.S. Federal or state securities laws, it being the intent
of the foregoing to cause any structure or transaction not to be treated as
having been offered under conditions of confidentiality for purposes of
Section 1.6011-
6
4(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code, and this
definition shall be construed in a manner consistent with such purpose.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, (a)
the direct or indirect guarantee, endorsement (other than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the Obligation of a
primary obligor, (b) the Obligation to make take-or-pay or similar
payments, if required, regardless of nonperformance by any other party or
parties to an agreement or (c) any Obligation of such Person, whether or
not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation
or (B) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, assets, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the
terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder),
as determined by such Person in good faith.
"Conversion Shares" means the Common Stock or other securities issued
or issuable upon conversion of the Series A Preferred Stock.
"Debt" of any Person means, at any time 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 90 days incurred in the ordinary
course of such Person's business, unless such trade payables overdue by
more than 90 days are contested in good faith by such Person), (c) all
Obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with respect
to property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the
7
event of default are limited to repossession or sale of such property), (e)
all Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations of such Person under acceptance, letter of credit or similar
facilities, (g) all Obligations of such Person to Redeem any Equity
Interests in such Person or in any other Person, or to Redeem options,
warrants or other rights to purchase or otherwise acquire such Equity
Interests, before the date which is six months after the Termination Date
(provided that if the exercise of the right to Redeem such Equity Interests
or options, warrants or other rights is at the option of such Person under
the terms of such Equity Interests or otherwise, the date of such Person's
exercise, if any, of such right to Redeem shall be the date on which such
Person shall first be deemed to have an Obligation to Redeem such Equity
Interests or options, warrants or other rights for purposes of this
definition), valued in the case of Preferred Interests at the stated
liquidation preference of such Preferred Interests plus accrued and unpaid
dividends from time to time, (h) all Obligations of such Person in respect
of Hedge Agreements, valued at the Agreement Value thereof, (i) all
Contingent Obligations of such Person and (j) all indebtedness and other
payment Obligations referred to in clauses (a) through (i) above of another
Person 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 indebtedness or other payment Obligations. Notwithstanding
clause (g) of this definition, the Obligations referred to in such clause
(g) as constituting "Debt" shall not include Obligations of such Person to
Redeem Equity Interests in such Person (or to Redeem options, warrants or
other rights to purchase or otherwise acquire such Equity Interests) in
exchange for, or out of the proceeds of a substantially concurrent offering
of, other Equity Interests (or options, warrants or other rights to
purchase or otherwise acquire such other Equity Interests) in such Person,
provided that any Obligations of such Person to Redeem such other Equity
Interests (or to Redeem options, warrants or other rights to purchase or
acquire such other Equity Interests) shall be subject to the provisions of
such clause (g).
"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.
"Defaulted Amount" means, with respect to any Lender at any time, any
amount required to be paid by such Lender to any Agent or any other Lender
hereunder or under any other Loan Document at or prior to such time that
has not been so paid as of such time, including, without limitation, any
amount required to be paid by such Lender to (a) any other Lender pursuant
to Section 2.10 to purchase any participation in Advances owing to such
other Lender and (b) any Agent pursuant to Section 8.05 to reimburse such
Agent for such Lender's ratable share of any amount required to be paid by
the Lenders to such Agent. In the event that a portion of a Defaulted
Amount shall be deemed paid pursuant to Section 2.12(a), the remaining
portion of such Defaulted Amount shall be
8
considered a Defaulted Amount originally required to be paid hereunder or
under any other Loan Document on the same date as the Defaulted Amount so
deemed paid in part.
"Defaulting Lender" means, at any time, any Lender that, at such time,
(a) owes a Defaulted Amount or (b) shall take any action or be the subject
of any action or proceeding of a type described in Section 6.01(f).
"Disclosed Litigation" has the meaning specified in Section 3.01(c).
"Effective Date" means the first date on which the conditions set
forth in Section 3.01 shall have been satisfied.
"Eligible Assignee" means any commercial bank or financial institution
(including, without limitation, any fund that regularly invests in loans
similar to the Advances) as approved (so long as no Default has occurred
and is continuing at the time of the relevant assignment pursuant to
Section 9.07) by the Borrower (such approval not to be unreasonably
withheld or delayed); provided, however, that neither any Loan Party nor
any Affiliate of a Loan Party shall qualify as an Eligible Assignee under
this definition; provided, further, that no Competitor shall qualify as an
Eligible Assignee under this definition.
"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, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat 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 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, writ, judgment,
injunction, 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.
"Equity Interests" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership
9
or profit interests in) such Person or warrants, rights or options for the
purchase or other acquisition from such Person of such shares (or such
other interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination.
"Equity Plan Securities" means any Equity Interests awarded, granted,
sold or issued pursuant to any stock option, restricted stock, stock
incentive, deferred compensation, profit sharing, defined benefit, defined
contribution or other benefit plan of any Loan Party or any Subsidiary of
any Loan Party.
"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 controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply 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), excluding, however, a "standard termination" as defined in
Section 4041(a)(2) of ERISA; (d) the cessation of operations at a facility
of any Loan Party or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party 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 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, such Plan.
"Events of Default" has the meaning specified in Section 6.01.
10
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Existing Debt Refinancing" has the meaning set forth in Section
5.02(b)(vi).
"Existing Stockholders" means the WCAS Securityholders and their
Affiliates. For purposes of this definition, "Affiliate" means, as applied
to any Person, any other Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, such
Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person not in the ordinary course of business,
including, without limitation, tax refunds, pension plan reversions,
proceeds of insurance (other than proceeds of business interruption
insurance to the extent such proceeds constitute compensation for lost
earnings), condemnation awards (and payments in lieu thereof), indemnity
payments, any net proceeds of any Permitted Refinancing (in excess of the
amount necessary to pay in full the obligations in respect of the First
Lien Loan Documents and the Second Lien Loan Documents) and any purchase
price adjustment received in connection with any purchase agreement;
provided, however, that an Extraordinary Receipt shall not include cash
receipts, awards or payments received from proceeds of insurance,
condemnation awards (or payments in lieu thereof) or indemnity payments to
the extent that such proceeds, awards or payments (a) are in respect of
loss or damage to fixed assets, real property or equipment and are applied
to replace or repair such fixed assets, real property or equipment in
respect of which such proceeds, awards or payments were received in
accordance with the terms of the Loan Documents (or to reimburse such
Person for expenditures previously incurred on account of such replacement
or repair); provided that such proceeds, awards or payments (i) are
immediately deposited into an account held by the Collateral Agent on
behalf of the Lenders, and (ii) are applied within nine months after the
occurrence of such damage or loss, provided that the Borrower shall have
delivered documentation reasonably satisfactory to the Administrative Agent
evidencing the cost and proposed use of any equipment repaired or replaced
pursuant thereto, or (b) are received by any Person in respect of any third
party claim against such Person and applied to pay (or to reimburse such
Person for its prior payment of) such claim and the costs and expenses of
such Person with respect thereto, or (c) are received by any Person by way
of reimbursement or indemnification of such Person for costs and expenses
incurred by such Person.
"Facility" means the Term Facility.
11
"FCC" means the Federal Communications Commission, or any governmental
agency succeeding to the functions thereof.
"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 for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"First Amended ITCD Credit Agreement" has the meaning specified in the
recitals of the parties to this Agreement.
"First Lien Collateral Agent" means Xxxxx Fargo Bank, N.A. and any
successor collateral agent appointed pursuant to Article VIII of the First
Lien Credit Agreement.
"First Lien Credit Agreement" means the Third Amended and Restated
Credit Agreement, dated as of even date herewith, among the Parent, the
Borrower, the subsidiary guarantors listed on the signature pages thereof,
the First Lien Lenders and the other parties thereto.
"First Lien Facilities" means the "Facilities" (as provided and
defined in the First Lien Credit Agreement).
"First Lien Lenders" means the "Lenders" (as provided and defined in
the First Lien Credit Agreement).
"First Lien Loan Documents" means the "Loan Documents" (as provided
and defined in the First Lien Credit Agreement).
"First Lien Security Agreement" means the "Security Agreement" (as
provided and defined in the First Lien Credit Agreement).
"Fiscal Year" means a Fiscal Year of the Parent and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"Fully Diluted Basis" means, as of any date of determination, the sum
of (a) the number of shares of Voting Stock outstanding as of such date of
determination plus (b) the number of shares of Voting Stock issuable upon
the exercise, conversion or exchange of all then-outstanding warrants,
options, convertible Capital Stock or indebtedness, exchangeable Capital
Stock or indebtedness, or other rights exercisable for or convertible or
exchangeable into, directly or indirectly, shares of Voting Stock, whether
at the time of issue or upon
12
the passage of time or upon the occurrence of some future event, and
whether or not in the money as of such date of determination.
"GAAP" has the meaning specified in Section 1.03.
"GECC Capital Lease" has the meaning specified in the recitals of the
parties to this Agreement.
"XX Xxxxxx" has the meaning specified in the recitals of the parties
to this Agreement.
"Governance Agreement" means the Governance Agreement, dated as of
October 6, 2003, as amended, among the Parent, WCAS Capital Partners III,
L.P., Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P., WCAS Information
Partners, L.P. and certain individual investors and trusts listed on the
signature pages thereto, , as amended by the Amendment No. 1 to Governance
Agreement, dated as of March 29, 2005.
"Guaranteed Obligations" has the meaning specified in Section 7.01(a).
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products 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 Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other hedging agreements.
"Incur" means, with respect to any Debt, to incur, create, issue,
assume, guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Debt.
"Indemnified Party" has the meaning specified in Section 9.04(b).
"Information Statement" has the meaning specified in Section 4.01(cc).
"Initial Lenders" means the Lenders party hereto on the Effective
Date.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
13
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Inventory" means all Inventory referred to in Section 1(b) of the
Security Agreement.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or all
of the business of such Person, any capital contribution to such Person or
any other direct or indirect investment in such Person, including, without
limitation, any acquisition by way of a merger or consolidation and any
arrangement pursuant to which the investor Incurs Debt of the types
referred to in clause (i) or (j) of the definition of "Debt" in respect of
such Person.
"Lenders" means the lenders listed on the signature pages hereof and
each Person that shall become a Lender hereunder pursuant to Section 9.07
for so long as such Lender or Person, as the case may be, shall be a party
to this Agreement.
"Lending Office" means, with respect to any Lender, the office of such
Lender specified as its "Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it became a
Lender, as the case may be, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Lessees" has the meaning specified in the recitals of the parties to
this Agreement.
"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.
"Loan Documents" means (a) for purposes of this Agreement and the
Notes and any amendment, supplement or modification hereof or thereof, (i)
this Agreement, (ii) the Notes and (iii) the Collateral Documents and (b)
for purposes of the Collateral Documents and for all other purposes other
than for purposes of this Agreement and the Notes, (i) this Agreement, (ii)
the Notes and (iii) the Collateral Documents.
"Loan Parties" means the Borrower, the Parent and the Subsidiaries of
the Parent.
"Margin Stock" has the meaning specified in Regulation U.
14
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Parent 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 the Loan Parties and the Subsidiaries of the
Loan Parties, taken as a whole, (b) the rights and remedies of the Agents
or any Lender under any Loan Document or (c) the ability of any Loan Party
to perform its Obligations under any Loan Document to which it is or is to
be a party.
"Material Contract" means, with respect to any Person, each contract
to which such Person is a party involving aggregate consideration payable
to or by such Person of $10,000,000 or more in any year or otherwise
material to the business, condition (financial or otherwise), operations,
performance, properties or prospects of such Person. With respect to the
Loan Parties, the Merger Agreement shall be deemed to be a Material
Contract.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
July 2, 2003, as amended, among BTI, the parties identified on the
signature pages thereto as the "WCAS Securityholders", the Parent and 8DBC1
Corp.
"Merger Agreement Common Stock" means (a) the Common Stock of the
Parent issued or issuable pursuant to the Merger Agreement, (b) the Series
B Conversion Shares and (c) the Series B Warrant Shares.
"Mortgage Policies" has the meaning specified in Section
5.01(n)(i)(B).
"Mortgages" has the meaning specified in Section 5.01(n)(i).
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party 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 any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party 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 Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset by any Person (excluding Equity
Interests), or any Extraordinary Receipt received by or paid to or for the
account of any Person, the aggregate amount of cash received from time to
time (whether as initial consideration or through payment or disposition of
deferred consideration) by or on behalf of such Person in connection with
such transaction after deducting
15
therefrom only (without duplication) (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees and expenses,
finder's fees and other similar fees and commissions and out-of-pocket
costs and expenses, and (b) the amount of taxes payable in connection with
or as a result of such transaction, in each case to the extent, but only to
the extent, that the amounts so deducted are, at the time of receipt of
such cash, actually paid to a Person that is not an Affiliate of such
Person and are properly attributable to such transaction or to the asset
that is the subject thereof; provided, however, that in the case of taxes
that are deductible under clause (b) above but for the fact that, at the
time of receipt of such cash, such taxes have not been actually paid or are
not then payable, such Loan Party or such Subsidiary may deduct an amount
(the "Reserved Amount") equal to the amount reserved in accordance with
GAAP for such Loan Party's or such Subsidiary's reasonable estimate of such
taxes, other than taxes for which such Loan Party or such Subsidiary is
indemnified; provided, further, however, that, at the time such taxes are
paid, an amount equal to the amount, if any, by which the Reserved Amount
for such taxes exceeds the amount of such taxes actually paid shall
constitute "Net Cash Proceeds" of the type for which such taxes were
reserved for all purposes hereunder; provided, further, still that Net Cash
Proceeds from Extraordinary Receipts shall not include up to $500,000 of
cash proceeds in the aggregate received in connection with one or more such
receipts, to the extent such cash proceeds are applied to replace the asset
in respect of which such cash proceeds were received or are otherwise
invested in such Person's business, so long as application is made within
nine months after the occurrence of such receipt.
"New Warrants" means warrants issued pursuant to the New Warrant
Documents.
"New Warrant Documents" means (a) that certain Warrant Agreement,
dated as of March 29, 2005, between the Parent and Mellon Investor Services
LLC, as warrant agent, as amended, amended and restated, supplemented or
otherwise modified from time to time, (b) the Amendment No. 1 to Governance
Agreement, dated as of March 29, 2005, by and among the Parent, WCAS
Capital Partners III, L.P., WCAS, WCAS Information Partners, L.P. and
certain individual investors and trusts listed on the signature pages
thereto and (c) each other agreement, certificate, document or instrument
delivered in connection with clauses (a) and (b) above.
"Note" means a Term Note.
"NPL" means the National Priorities List under CERCLA.
"NTFC" has the meaning specified in the recitals of the parties to
this Agreement.
"NTFC Capital Lease" has the meaning specified in the recitals of the
parties to this Agreement.
16
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the generality
of the foregoing, the Obligations of any Loan Party under the Loan
Documents include (a) the obligation to pay principal, interest, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other
amounts payable by such Loan Party under any Loan Document, including any
Post-Petition Interest and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender, in
its sole discretion, may elect to pay or advance on behalf of such Loan
Party.
"Open Year" has the meaning specified in Section 4.01(o)(iii).
"Ordinary Course Obligations" means obligations (exclusive of
obligations for the payment of borrowed money) under letters of credit,
surety bonds, pledges, deposits or other arrangements made to secure the
performance of tenders, bids, leases, statutory or regulatory obligations,
bankers' acceptances, surety and appeal bonds, government contracts,
performance and return-of-money bonds and other obligations of a similar
nature incurred in the ordinary course of business.
"Original ITCD Credit Agreement" has the meaning specified in the
recitals of the parties to this Agreement.
"Original Second Lien Credit Agreement" has the meaning specified in
the recitals of the parties to this Agreement.
"Other Taxes" has the meaning specified in Section 2.09(b).
"Parent" has the meaning specified in the preamble of this Agreement.
"Parent Guaranty" means the guaranty of the Parent set forth in
Article VII.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Deferred Taxes" has the meaning specified in that certain
Limited Waiver to Second Amended and Restated Credit Agreement, dated as of
February 28, 2005, by and among the Xxxxx Fargo Bank, N.A., the lenders
specified on the signature pages thereto and the Loan Parties.
"Permitted Encumbrances" has the meaning specified in the Mortgages.
17
"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); (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 30 days; (c) pledges or deposits to
secure obligations under workers' compensation laws or similar legislation
or to secure public or statutory obligations; and (d) Permitted
Encumbrances.
"Permitted Parent Debt" has the meaning specified in Section
5.02(b)(iv).
"Permitted Refinancing" means a refinancing (satisfying all of the
requirements of Section 5.02(b)(vii)) by the Loan Parties of (a) first, all
(but not less or more than all) of the principal amount outstanding under
the First Lien Loan Documents and the termination of the First Lien Loan
Documents upon the consummation of such refinancing and (b) thereafter, all
(or such lesser amount as shall be acceptable to the Required Lenders under
and as defined in the Second Lien Loan Documents) of the principal amount
outstanding under the Second Lien Loan Documents and, if paid in full in
cash, the termination of all of the Second Lien Loan Documents upon the
consummation of such refinancing.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PIK Amount" has the meaning specified in Section 2.06(a).
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Plan of Reorganization" means the Plan of Reorganization of the
Parent under Chapter 11 of the Bankruptcy Code in In re ITC^DeltaCom, Inc.
(Case No. 02-11848 (MFW)).
"Pledged Debt" has the meaning specified in the Security Agreement.
"Pledged Shares" has the meaning specified in the Security Agreement.
"Post-Petition Interest" means any and all interest and expenses that
accrue after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of any one or more
of the Loan Parties (or would accrue but for the operation of applicable
bankruptcy or insolvency laws) whether or not such interest is allowed or
allowable as a claim in any such proceeding.
18
"Pre-Amendment Information" means all of the written information
provided by or on behalf of the Borrower to the Lenders prior to the
Effective Date.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference
equity, whether outstanding on the date of this Agreement or issued
thereafter, including, without limitation, all series and classes of such
preferred or preference stock.
"PUC" means any state regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction or
operation of any network facility or long distance telecommunications
systems or over Persons who own, construct or operate a network facility or
long distance telecommunications systems, in each case by reason of the
nature or type of the business subject to regulation and not pursuant to
laws and regulations of general applicability to Persons conducting
business in such state.
"Receivables Financing" means a refinancing (satisfying all of the
requirements of Section 5.02 (b)(viii)) by the Loan Parties of (a) first,
all (but not less or more than all) of the principal amount outstanding
under the First Lien Loan Documents and the termination of all of the First
lien Loan Documents upon the consummation of such refinancing and (b)
thereafter, all (or such lesser amount shall be acceptable to the Required
Lenders under and as defined in the Second Lien Loan Documents) of the
principal amount outstanding under the Second Lien Loan Documents and, if
paid in full in cash, the termination of all of the Second Lien Loan
Documents upon the consummation of such refinancing.
"Redeem" means to purchase, redeem or otherwise retire or acquire for
value, provided, however, that, notwithstanding the foregoing, "Redeem"
shall not include (a) the acquisition and/or retirement by the Parent of
Equity Interests of the Parent which are surrendered to the Parent as
indemnification payments pursuant to the Merger Agreement, (b) the
acquisition and/or retirement by the Parent of Common Stock or other Equity
Interests of the Parent tendered by the holder of an Equity Plan Security
in payment of an exercise or purchase price specified in such Equity Plan
Security or (c) a Benefit Plan Exchange Offer.
19
"Refinanced First Lien Loan Documents" means the loan documents
relating to any Permitted Refinancing, any Receivables Financing or any
Replacement Financing of the First Lien Loan Documents.
"Refinanced Second Lien Loan Documents" means the loan documents
relating to any Permitted Refinancing, any Receivables Financing or any
Replacement Financing of the Second Lien Loan Documents.
"Register" has the meaning specified in Section 2.13(b).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reorganization Common Stock" means the Common Stock of the Parent
issued or issuable under or in connection with the Plan of Reorganization,
including, without limitation, the Conversion Shares and the Warrant
Shares.
"Reorganization Securities" means (a) the Reorganization Common Stock,
(b) the Series A Preferred Stock and (c) the Warrants.
"Replaced Lender" has the meaning specified in Section 2.09(g).
"Replacement Effective Date" has the meaning specified in Section
2.09(g).
"Replacement Financing" means a refinancing (satisfying all of the
requirements of Section 5.02(b)(ix)) by the Loan Parties of (a) first, all
(but not less than all) of the principal amount outstanding under the First
Lien Loan Documents and the termination of all of the First Lien Loan
Documents upon the consummation of such refinancing and (b) thereafter, all
(or such lesser amount as shall be acceptable to the Required Lenders under
and as defined in the Second Lien Loan Documents) of the principal amount
outstanding under the Second Lien Loan Documents and if paid in full in
cash, the termination of all of the Second Lien Loan Documents upon the
consummation of such refinancing.
"Replacement Lender" has the meaning specified in Section 2.09(g).
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority of the aggregate principal amount of the Advances
outstanding at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (A) the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender)
and outstanding at such time and (B) the aggregate unused Commitments of
such Lender at such time.
"Responsible Officer" means any officer of any Loan Party or any of
its Subsidiaries.
20
"Restricted Payment" has the meaning specified in Section 5.02(g).
"SEC" means the United States Securities and Exchange Commission.
"Second Amended ITCD Credit Agreement" has the meaning specified in
the recitals of the parties to this Agreement.
"Second Lien Collateral Agent" means General Electric Capital
Corporation and any successor collateral agent appointed pursuant to
Article VIII of the Second Lien Credit Agreement.
"Second Lien Credit Agreement" means the Amended and Restated Credit
Agreement, dated as of the date hereof, among the Parent, the Borrower, the
subsidiary guarantors listed on the signature pages thereof, the Second
Lien Lenders and the other parties thereto.
"Second Lien Facility" means the "Facility" (as provided and defined
in the Second Lien Credit Agreement).
"Second Lien Lenders" means the "Lenders" (as provided and defined in
the Second Lien Credit Agreement).
"Second Lien Loan Documents" means the "Loan Documents" (as provided
and defined in the Second Lien Credit Agreement).
"Secured Obligations" has the meaning specified in the Security
Agreement.
"Secured Parties" means the Agents and the Lenders.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" has the meaning specified in Section 3.01(b)(ii).
"Series A Certificate of Designation" means the Parent's Certificate
of Designation of the Powers, Preferences and Relative, Participating,
Optional and other Special Rights of 8% Series A Convertible Redeemable
Preferred Stock and Qualifications, Limitations and Restrictions thereof,
as in effect from time to time.
"Series A PIK Dividends" means the shares of Series A Preferred Stock
paid or payable as dividends on outstanding shares of Series A Preferred
Stock.
"Series A Preferred Stock" means the shares of preferred stock of the
Parent designated as the 8% Series A Convertible Redeemable Preferred Stock
and issued pursuant to the Series A Certificate of Designation, including,
without limitation, Series A PIK Dividends.
21
"Series B Certificate of Designation" means the Parent's Certificate
of Designation of the Powers, Preferences and Relative, Participating,
Optional and other Special Rights of 8% Series B Convertible Redeemable
Preferred Stock and Qualifications, Limitations and Restrictions thereof,
as in effect from time to time.
"Series B PIK Dividends" means the shares of Series B Preferred Stock
paid or payable as dividends on outstanding shares of Series B Preferred
Stock.
"Series B Preferred Stock" means the shares of preferred stock of the
Parent designated as the 8% Series B Convertible Redeemable Preferred Stock
and issued pursuant to the Series B Certificate of Designation, including,
without limitation, Series B PIK Dividends.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which
any Loan Party or any ERISA Affiliate could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
"Subordinated Debt" means Debt that, by the terms of any agreement or
instrument pursuant to which such Debt is Incurred, is expressly made
subordinate in right of payment and priority to the Debt under the First
Lien Loan Documents and the Second Lien Loan Documents.
"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 partnership, joint venture or limited liability company 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.
"Surviving Debt" means Debt of each Loan Party and its Subsidiaries
outstanding as of the Effective Date.
"Tax Agreement" means the Tax Indemnification Agreement, dated as of
August 26, 1997, between ITC Holding Company, Inc. and the Parent.
"Tax Certificate" has the meaning specified in Section 5.03(k).
"Taxes" has the meaning specified in Section 2.09(a).
22
"Term Advance" means the single advance made by each Term Lender,
according to such Lender's Term Commitment.
"Term Borrowing" means a borrowing consisting of simultaneous Term
Advances made by the Term Lenders.
"Term Commitment" means, with respect to any Term Lender at any time,
the amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 2.13(b) as such Lender's "Term
Commitment."
"Term Facility" means, at any time, the aggregate amount of the Term
Lenders' Term Commitments at such time.
"Term Lender" means any Lender that has a Term Commitment.
"Term Loan" has the meaning specified in Section 2.01(a).
"Term Note" means a promissory note of the Borrower payable to the
order of any Term Lender, in substantially the form of Exhibit A hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
the Term Advance made by such Lender, as amended.
"Termination Date" means the earlier of (a) the date on which the
Administrative Agent, by notice to the Borrower, declares the Notes, all
interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable pursuant to Section
6.01 and (b) the date that is the later of (i) December 31, 2009 and (ii)
91 calendar days after the maturity of the Second Lien Facility.
"Third Lien Intercreditor and Subordination Agreement" means the
Intercreditor and Subordination Agreement, dated as of the date hereof,
among each of the Agents, the Lenders, the Agents as provided and defined
in the First Lien Credit Agreement, on its behalf and on behalf of the
First Lien Lenders, the Agents, as provided and defined in the Second Lien
Credit Agreement, the Second Lien Lenders and the Loan Parties, in
substantially the form of Exhibit D hereof, as the same may be amended,
amended and restated and/or modified from time to time, including any
replacement thereof or any additional intercreditor agreement in connection
with any Permitted Financing, Receivables Financing, or Replacement
Financing.
"Transactions" means the transactions contemplated by the Loan
Documents.
"Unencumbered Parcel" means any parcel of real property owned by any
Loan Party or its Subsidiaries that was not previously pledged as
Collateral to secure the Obligations of the Loan Parties under the Loan
Documents.
23
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
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.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person. For purposes of this definition, Common Stock of the Parent shall
constitute Voting Stock of the Parent and the Series A Preferred Stock and
the Series B Preferred Stock shall not constitute Voting Stock of the
Parent.\
"Warrant Shares" means the Common Stock or other securities issued or
issuable upon the exercise of the Warrants.
"Warrants" means the Common Stock purchase warrants issued by the
Parent on the date of the initial issuance of the Series A Preferred Stock
and any warrants issued in exchange or substitution therefor or upon
exercise thereof in accordance with the warrant agreement pursuant to which
such Common Stock purchase warrants were issued.
"WCAS" means Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P.
"WCAS Securityholders" means, collectively, (a) WCAS Capital Partners
III, L.P., (b) WCAS, (c) WCAS Information Partners, L.P., (d) each of the
individual investors and trusts that executed the Governance Agreement as
"WCAS Securityholders," (e) the Affiliates of any of the Persons referred
to in clauses (a), (b), (c) and (d) above, (f) the related Persons of any
of the Persons referred to in clauses (a), (b), (c) and (d) above and (g)
the WCAS Securityholder Permitted Transferees. For purposes of this
definition, "Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"WCAS Securityholder Permitted Transferees" means the individuals who
are the heirs, executors, administrators, testamentary trustees, legatees,
beneficiaries, spouses or lineal descendants of any of the WCAS
Securityholders who are natural Persons.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could have liability.
24
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
Section 1.02. COMPUTATION OF TIME PERIODS; OTHER DEFINITIONAL
PROVISIONS. In this Agreement and the other Loan Documents 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." References in the Loan Documents to any agreement or contract "as
amended" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
Section 1.03. ACCOUNTING TERMS. All accounting terms not specifically
defined herein, unless otherwise specified herein, shall be construed in
accordance with generally accepted accounting principles in the United States of
America as in effect from time to time ("GAAP") and consistent with those
applied in the preparation of the financial statements of the Parent and its
Subsidiaries.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. Term Commitments. (a) Subject to the terms and
conditions hereof, each Term Lender, severally and not jointly, agrees to make a
term loan (a "Term Loan") to the Borrower on the Effective Date in an amount not
to exceed the amount of the Term Commitment of such Lender.
(b) The Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to 10:00
A.M., New York City time, one Business Day prior to the Effective Date)
requesting that the Term Lenders make the Term Advance on the Effective Date and
specifying the amount to be borrowed. Upon receipt of such notice the
Administrative Agent shall promptly notify each Term Lender thereof. Not later
than 12:00 Noon, New York City time, on the Effective Date, each Term Lender
shall make available to the Administrative Agent at the Administrative Agent's
Account an amount in immediately available funds equal to such Term Lenders'
ratable portion of such Term Borrowing in accordance with the respective Term
Commitments of such Term Lender and the other Term Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent shall
make such funds available to the Borrower by crediting the Borrower's Account.
Section 2.02. Intentionally omitted.
Section 2.03. REPAYMENT OF ADVANCES. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term Lenders the aggregate
outstanding principal amount of the Term Advances on the Termination Date. Each
Lender hereby acknowledges that the receipt of any such payments is subject to
the Third Lien Intercreditor and Subordination Agreement.
25
Section 2.04. Intentionally omitted.
Section 2.05. PREPAYMENTS. (a) OPTIONAL. After indefeasible payment
and satisfaction in full of the obligations under the First Lien Loan Documents
and the Second Lien Loan Documents and subject to the terms of the Third Lien
Intercreditor and Subordination Agreement, the Borrower may, upon at least one
Business Day's notice to the Administrative Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding aggregate principal amount of the
Advances in whole or ratably in part, together with accrued interest to the date
of such prepayment on the aggregate principal amount prepaid; provided, however,
that each partial prepayment shall be in an aggregate principal amount of
$500,000 or an integral multiple of $500,000 in excess thereof. Each such
prepayment of any Advances shall be applied ratably to each Lender.
(b) MANDATORY. Subject to the terms and conditions of the Third Lien
Intercreditor and Subordination Agreement:
(i) Intentionally omitted.
(ii) The Borrower shall, within two Business Days after the date
of receipt of the Net Cash Proceeds by any Loan Party from (A) the
sale, lease, transfer or other disposition of any assets of any Loan
Party or any Subsidiary of a Loan Party (other than leases in the
ordinary course of business or any sale, lease, transfer or other
disposition of assets pursuant to clause (i), (ii), (v)(B), (vi), or
(vii) of Section 5.02(e)) prepay an aggregate principal amount of the
Advances equal to such Net Cash Proceeds in excess, so long as no
Default or Event of Default has occurred and is continuing, of
$30,000,000; provided that no portion of the Net Cash Proceeds
retained by the Loan Parties pursuant to this subsection (ii) shall be
used by any Loan Party in connection with any merger with any Person
or acquisition of assets of any Person (other than assets acquired in
the ordinary course of the Loan Parties' business); and (B) any
Extraordinary Receipt received by, or paid to, or for the account of,
any Loan Party or any Subsidiary of a Loan Party and not otherwise
included in clause (A) above, prepay an aggregate principal amount of
the Advances in any amount equal to the amount of such Net Cash
Proceeds.
(iii) The Borrower shall, within two Business Days after the date
of receipt, prepay an aggregate principal amount of the Advances in an
amount equal to 100% of the proceeds received on account of (A) Debt
incurred by any Loan Party (other than Special Term B Advances (as
defined in the First Lien Loan Agreement) it being understood that the
proceeds of any Permitted Refinancing, Receivables Financing or
Replacement Financing shall be used to repay the Obligations in
respect of the First Lien Facilities and the Second Lien Facility) or
(B) any offering of any Equity Interests of the Parent or any other
Loan Party except for Equity Interests consisting of any (1) Common
Stock of the Parent, the
26
proceeds of the issuance and sale of which are applied to refinance
the Series A Preferred Stock or Series B Preferred Stock at not more
than 100% of liquidation value plus accrued dividends, (2) Equity Plan
Securities (3) New Warrants or (4) Reorganization Securities.
(iv) Intentionally omitted.
(v) Intentionally omitted.
(vi) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the
principal amount prepaid and shall be applied ratably to each Lender.
Section 2.06. INTEREST. (a) SCHEDULED INTEREST. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at a rate of 12% per annum, compounded quarterly, and shall be (i) until the
satisfaction in full of the Loan Parties' obligations under the First Lien Loan
Documents, the Second Lien Loan Documents, any Permitted Refinancing, any
Receivables Financing or any Replacement Financing, added to the principal
amount of the Term Loans (the "PIK Amount") and no such interest for such period
shall be paid in cash, and (ii) thereafter, at the option of the Borrower, (A)
payable in arrears on the last day of each March, June, September and December
or (B) added to the principal amount of the Term Loans and no such interest for
such period shall be paid in cash. The principal amount of the Term Loans shall,
without further action on the part of the Borrower or the Lenders, be deemed to
be increased by the PIK Amount so capitalized and added to the principal in
accordance with this clause (a).
(b) DEFAULT INTEREST. Upon the occurrence and during the continuance
of a Default, the Borrower shall pay interest on (i) the unpaid principal amount
of each Advance owing to each Lender, in the manner and on the dates referred to
in clause (a) above 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 such Advance pursuant
to clause (a) above and (ii) to the fullest extent permitted by law, the amount
of any interest, fee or other amount payable under the Loan Documents 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 the Advance pursuant to clause
(a) above.
Section 2.07. INCREASED COSTS, ETC. 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),
there shall be any increase in the amount of capital required or expected to be
maintained by any Lender or any corporation controlling such Lender as a result
of or based upon the existence of such Lender's commitment to lend hereunder and
other commitments of such type, then, upon demand by such Lender or such
corporation (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to the Administrative Agent for the account of such Lender,
from time to time as specified by such Lender, additional
27
amounts sufficient to compensate such Lender 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 Borrower by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
Section 2.08. PAYMENTS AND COMPUTATIONS.(a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.12), 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, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender, to such Lenders for the account of their
respective Lending Offices ratably in accordance with the amounts of such
respective Obligations then payable to such Lenders and (ii) if such payment by
the Borrower is in respect of any Obligation then payable hereunder to one
Lender, to such Lender for the account of its 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(e), from and after the effective date
of 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) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or, in the case of a
Lender, under the Note held by such Lender, to charge from time to time against
any or all of the Borrower's accounts with such Lender any amount so due.
(c) All computations of interest and fees shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may
be, for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or commissions
are payable. Each determination by the Administrative Agent of an interest rate,
fee or commission hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) 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 commitment fee, as the
case may be.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the
28
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 such Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrower shall not have so made
such payment in full to the Administrative Agent, each such 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.
(f) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances to which, or the manner in which, such
funds are to be applied, the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each Lender ratably in
accordance with such Lender's proportionate share of the principal amount of all
outstanding Advances, in repayment or prepayment of such of the outstanding
Advances or other Obligations owed to such Lender, and for application to such
principal installments, as the Administrative Agent shall direct.
Section 2.09. TAXES. (a) Any and all payments by or for the account of
any Loan Party hereunder, or in respect of the Notes or any other Loan Document,
shall be made, in accordance with Section 2.08, 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 each Agent, taxes that are imposed on its overall
net income by the United States and taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction under the laws of which such Lender or such Agent, as the case may
be, is organized or any political subdivision thereof and, in the case of each
Lender, taxes that are imposed on its overall net income (and franchise taxes
imposed in lieu thereof) by the state or foreign jurisdiction of such Lender's
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 a Loan Party shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note or other Loan
Documents to any Lender or any Agent, (i) the sum payable by such Loan Party
shall be increased as may be necessary so that after such Loan Party and the
Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.09) such Lender or
such Agent, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Loan Party shall make
all such deductions and (iii) such Loan Party shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, each Loan Party shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or other Loan Documents
or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement, the Notes or any other Loan Document
(hereinafter referred to as "Other Taxes").
29
(c) Each Loan Party shall indemnify each Lender and each Agent for and
hold them harmless against the full amount of Taxes and Other Taxes, and for the
full amount of taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 2.09, imposed on or paid by such Lender or such Agent (as the
case may be) and any liability (including penalties, additions to tax, interest
and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or such Agent (as the
case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
relevant Loan Party 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
or other Loan Documents by or on behalf of such Loan Party through an account or
branch outside the United States or by or on behalf of such Loan Party by a
payor that is not a United States person, if such Loan Party determines that no
Taxes are payable in respect thereof, such Loan Party 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 subsections (d) and (e) of this
Section 2.09, 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 shall, on or prior to the date of its execution and delivery of
this Agreement in the case of each Initial Lender, as the case may be, and on
the date of the Assignment and Acceptance 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 relevant Loan Party (but only so long thereafter as such
Lender remains lawfully able to do so), provide each of the Administrative Agent
and each Loan Party with two original Internal Revenue Service forms W-8ECI or
W-8 or W-8BEN (and, if applicable to the exemption claimed by a Lender that
delivers a form W-8 or W-8BEN, a certificate representing that such Lender is
not a "bank" for purposes of Section 881(c) of the Internal Revenue Code, is not
a 10-percent shareholder, within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code, of the Loan Party and is not a controlled foreign
corporation related to the Loan Party, within the meaning of Section 864(d)(4)
of the Internal Revenue Code), as appropriate, or any successor or other form
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 (or, in the case of a Lender
providing a form W-8 or W-8BEN, certifying that such Lender is a foreign
corporation, partnership, estate or trust). If the forms provided by a Lender at
the time such Lender first becomes a party to this Agreement indicate 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 forms; provided, however, that if, at the effective
date of the Assignment and Acceptance pursuant to which a Lender becomes a party
to this Agreement, the Lender assignor was entitled to payments under subsection
(a) of this Section 2.09 in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable
30
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
on the date hereof by Internal Revenue Service form X-0, X-0XXX xx X-0XXX (or
the related certificate described above), that the Lender reasonably considers
to be confidential, the Lender shall give notice thereof to the Loan Party 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 relevant Loan Party with the appropriate form described in
subsection (e) above (other than if such failure is due to a change in law
occurring after 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 subsection (a) or (c) of
this Section 2.09 with respect to Taxes imposed by reason of such failure;
provided, however, that should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the relevant Loan Party shall take
such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(g) The Loan Party may replace any Lender that has requested
additional amounts under this Section 2.09, by written notice to such Lender and
the Administrative Agent and identifying one or more persons each of which shall
be reasonably acceptable to the Administrative Agent (each, a "Replacement
Lender", and collectively, the "Replacement Lenders") to replace such Lender
(the "Replaced Lender"); provided that (i) the notice from such Loan Party to
the Replaced Lender and the Administrative Agent provided for herein above shall
specify an effective date for such replacement (the "Replacement Effective
Date"), which shall be at least five (5) Business Days after such notice is
given and (ii) as of the relevant Replacement Effective Date, each Replacement
Lender shall enter into an Assignment and Acceptance with the Replaced Lender
pursuant to Section 9.07(a) (but shall not be required to pay the processing fee
otherwise payable to the Administrative Agent pursuant to Section 9.07(a)),
pursuant to which such Replacement Lenders collectively shall acquire, in such
proportion among them as they may agree with such Loan Party and the
Administrative Agent, all (but not less than all) of the Commitments and
outstanding Advances of the Replaced Lender, and, in connection therewith, shall
pay to the Replaced Lender, as the purchase price in respect thereof, an amount
equal to the sum as of the Replacement Effective Date, without duplication, of
(x) the unpaid principal amount of, and all accrued but unpaid interest on, all
outstanding Advances of the Replaced Lender and (y) the Replaced Lender's
ratable share of all accrued but unpaid fees owing to the Replaced Lender
hereunder.
Section 2.10. SHARING OF PAYMENTS, ETC. If any Lender shall obtain at
any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, other than as a result of an assignment
pursuant to Section 9.07) (a) on account of Obligations due and payable to such
Lender hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations due and
payable to such Lender at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lenders hereunder and under the Notes at such
time) of payments on account of the Obligations due and payable to all Lenders
hereunder and under the Notes at such time obtained by all the Lenders at such
time or (b) on account of Obligations owing (but not due and
31
payable) to such Lender hereunder and under the Notes at such time in excess of
its ratable share (according to the proportion of (i) the amount of such
Obligations owing to such Lender at such time to (ii) the aggregate amount of
the Obligations owing (but not due and payable) to all Lenders hereunder and
under the Notes at such time) of payments on account of the Obligations owing
(but not due and payable) to all Lenders hereunder and under the Notes at such
time obtained by all of the Lenders at such time, such Lender shall forthwith
purchase from the other Lenders such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, 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 other Lender shall be rescinded and such other Lender shall repay to the
purchasing Lender the purchase price to the extent of such Lender's ratable
share (according to the proportion of (i) the purchase price paid to such Lender
to (ii) the aggregate purchase price paid to all Lenders) of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such other 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. The Borrower agrees that any Lender so purchasing an
interest or participating interest from another Lender pursuant to this Section
2.12 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such interest or
participating interest, as the case may be, as fully as if such Lender were the
direct creditor of the Borrower in the amount of such interest or participating
interest, as the case may be.
Section 2.11. Intentionally omitted.
Section 2.12. DEFAULTING LENDERS. (a) In the event that, at any one
time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Amount to any Agent or any of the other Lenders and (iii)
the Borrower shall make any payment hereunder or under any other Loan Document
to the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Agents or
such other Lenders and to the fullest extent permitted by applicable law, apply
at such time the amount so paid by the Borrower to or for the account of such
Defaulting Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. In the event that the Administrative
Agent shall so apply any such amount to the payment of any such Defaulted Amount
on any date, the amount so applied by the Administrative Agent shall constitute
for all purposes of this Agreement and the other Loan Documents payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such other
Lenders, ratably in accordance with the respective portions of such Defaulted
Amounts payable at such time to the Administrative Agent, such other Agents and
such other Lenders and, if the amount of such payment made by the Borrower shall
at such time be insufficient to pay all Defaulted Amounts owing at such time to
the Administrative Agent, such other Agents and such other Lenders, in the
following order of priority:
(i) first, to the Administrative Agent for any Defaulted Amounts
then owing to the Administrative Agent hereunder; and
32
(ii) second, to any other Lenders for any Defaulted Amounts then
owing to such other Lenders, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lenders.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (b) of this Section 2.12.
(b) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Amount
and (iii) the Borrower, any Agent or any other Lender shall be required to pay
or distribute any amount hereunder or under any other Loan Document to or for
the account of such Defaulting Lender, then the Borrower or such Agent or such
other Lender shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds held
by the Administrative Agent in escrow under this subsection (b) shall be
deposited by the Administrative Agent in a segregated account, in the name and
under the control of the Administrative Agent, but subject to the provisions of
this subsection (b). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to
time, shall be customary terms applicable to escrow accounts maintained with
financial institutions. Any interest credited to such account from time to time
shall be held by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the provisions of,
this subsection (b). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to time
to the extent necessary to make any Advances required to be made by such
Defaulting Lender and to pay any amount payable by such Defaulting Lender
hereunder and under the other Loan Documents to the Administrative Agent or any
other Lender, as and when such Advances or amounts are required to be made or
paid and, if the amount so held in escrow shall at any time be insufficient to
make and pay all such Advances and amounts required to be made or paid at such
time, in the following order of priority:
(i) first, to the Administrative Agent for any amounts then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) second, to any other Lenders for any amount then due and
payable by such Defaulting Lender to such other Lenders hereunder,
ratably in accordance with such respective amounts then due and
payable to such other Lenders; and
(iii) third, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
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In the event that any Lender that is a Defaulting Lender shall, at any time,
cease to be a Defaulting Lender, any funds held by the Administrative Agent in
escrow at such time with respect to such Lender shall be distributed by the
Administrative Agent to such Lender and applied by such Lender to the
Obligations owing to such Lender at such time under this Agreement and the other
Loan Documents ratably in accordance with the respective amounts of such
Obligations outstanding at such time.
(c) The rights and remedies against a Defaulting Lender under this
Section 2.12 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender and that any Agent or any Lender may have
against such Defaulting Lender with respect to any Defaulted Amount.
Section 2.13. EVIDENCE OF DEBT; REGISTER. (a) Each Lender shall
maintain, in accordance with its usual practice, an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each
Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder. The Borrower agrees that upon notice by any Lender to the Borrower
(with a copy of such notice to the Administrative Agent) to the effect that a
promissory note or other evidence of indebtedness is required or appropriate in
order for such Lender to evidence (whether for purposes of pledge, enforcement
or otherwise) the Advances owing to, or to be made by, such Lender, the Borrower
shall promptly execute and deliver to such Lender, with a copy to the
Administrative Agent, a Term Note, in substantially the form of Exhibit A,
payable to the order of such Lender in a principal amount equal to the Term
Advance of such Lender. The Lenders hereby agree that any promissory notes
evidencing the Advances issued by the Borrower to any Lender prior to the date
hereof shall be deemed null and void and of no further force or effect for any
and all purposes, and each Lender that is a holder of any such note agrees to
surrender such note to the Borrower. All references to Notes in the Loan
Documents shall mean Notes, if any, to the extent issued hereunder.
(b) The Administrative Agent shall maintain at its address referred to
in Section 9.02 a register for the recordation of the names and addresses of the
Lenders and the Commitment under each Facility of each Lender from time to time
(the "Register"). The Register maintained by the Administrative Agent pursuant
to this Section shall also include a control account, and a subsidiary account
for each Lender, in which accounts (taken together) shall be recorded (i) the
date and amount of each Borrowing made hereunder, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, and (iv) the amount of any sum received by
the Administrative Agent from the Borrower hereunder and each Lender's share
thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Administrative Agent or such
Lender to make an entry, or any finding that an entry is incorrect, in the
Register or such account or
34
accounts shall not limit or otherwise affect the obligations of the Borrower
under this Agreement.
(d) The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower, the Agents 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 the Borrower or any Agent or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE. The
occurrence of the Effective Date is subject to the satisfaction of the following
conditions precedent:
(a) The Effective Date shall occur on or before March 29, 2005.
(b) The Administrative Agent shall have received the following, each
dated the Effective Date (unless otherwise specified), in form and substance
satisfactory to the Administrative Agent (unless otherwise specified) and
(except for the Notes) in sufficient copies for each Lender:
(i) The Notes payable to the order of the Lenders, to the extent
requested by any Lender pursuant to Section 2.13(a).
(ii) A security agreement in substantially the form of Exhibit C
hereto (together with each other security agreement and security
agreement supplement delivered pursuant to Section 5.01(j), in each
case as amended, the "Security Agreement"), duly executed by each Loan
Party, together with:
(A) written confirmation of receipt by the First Lien
Collateral Agent of certificates representing the Pledged Shares
referred to under the First Lien Security Agreement, the Second
Lien Security Agreement and the Security Agreement accompanied by
undated stock powers executed in blank and instruments evidencing
the Pledged Debt indorsed in blank, to be held by the First Lien
Collateral Agent pursuant to the terms of the First Lien Security
Agreement and otherwise in accordance with the Third Lien
Intercreditor and Subordination Agreement.
(B) acknowledgment copies or stamped receipt copies of
proper financing statements, duly filed on or before the
Effective Date under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may reasonably deem
necessary or desirable in order to perfect and protect the
priority liens
35
and security interests created under the Security Agreement,
covering the Collateral described in the Security Agreement,
subject only to the prior Lien of the First Lien Collateral Agent
and the Second Lien Collateral Agent and Permitted Liens and
otherwise in accordance with the Third Lien Intercreditor and
Subordination Agreement,
(C) completed requests for information, dated on or before
the Effective Date, listing the financing statements referred to
in clause (B) above and all other effective financing statements
filed in the jurisdictions referred to in clause (B) above that
name any Loan Party as debtor, together with copies of such other
financing statements,
(D) evidence of the completion of all other recordings and
filings of or with respect to the Security Agreement that the
Administrative Agent may reasonably deem necessary or desirable
in order to perfect and protect the Liens created thereby,
(E) written confirmation of receipt by the First Lien
Collateral Agent of copies of the Assigned Agreements referred to
in the Security Agreement, to be held by the First Lien
Collateral Agent pursuant to the terms of the First Lien Security
Agreement and otherwise in accordance with the Third Lien
Intercreditor and Subordination Agreement, and
(F) evidence that all other action that the Administrative
Agent may deem reasonably necessary or desirable in order to
perfect and protect the liens and security interests created
under the Security Agreement has been taken (including, without
limitation, receipt of duly executed payoff letters, UCC-3
termination statements, landlords' and bailees' waiver and
consent agreements and account control and cash management
agreements in form and substance satisfactory to the
Administrative Agent) subject only to the prior Lien of the First
Lien Collateral Agent and the Second Lien Collateral Agent and
Permitted Liens and otherwise in accordance with the Third Lien
Intercreditor and Subordination Agreement.
(iii) Written confirmation of receipt by the First Lien Collateral
Agent of copies of the Capital Lease Assignments substantially in the form
of Exhibit E hereto.
(iv) The Third Lien Intercreditor and Subordination Agreement in
substantially the form of Exhibit D hereto, duly executed by each of the
parties thereto.
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(v) Certified copies of the resolutions of the Board of Directors of
each Loan Party approving the Transactions and each Loan Document to which
it is or is to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party approvals and
consents, if any, with respect to the Transactions and each Loan Document
to which it is or is to be a party.
(vi) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation of each Loan Party, dated reasonably near the
date of the Effective Date, certifying (A) as to a true and correct copy of
the charter of such Loan Party and each amendment thereto on file in such
Secretary's office and (B) that (1) such amendments are the only amendments
to such Loan Party's charter on file in such Secretary's office, (2) to the
extent that the Secretary of State of the applicable jurisdiction of
incorporation provides such a certification, such Loan Party has paid all
franchise taxes to the date of such certificate and (C) such Loan Party is
duly incorporated and in good standing or presently subsisting under the
laws of the State of the jurisdiction of its incorporation.
(vii) A copy of a certificate of the Secretary of State in each
jurisdiction in which each Loan Party is qualified to do business, dated
reasonably near the date of the Effective Date, stating that such Loan
Party is duly qualified and in good standing as a foreign corporation in
such State and has filed all annual reports required to be filed to the
date of such certificate.
(viii) A certificate of each Loan Party, signed on behalf of such Loan
Party by its President or a Vice President and its Secretary or any
Assistant Secretary, dated the Effective Date (the statements made in which
certificate shall be true on and as of the Effective Date), certifying as
to (A) the absence of any amendments to the charter of such Loan Party
since the date of the Secretary of State's certificate referred to in
Section 3.01(b)(vi), (B) a true and correct copy of the bylaws of such Loan
Party as in effect on the date on which the resolutions referred to in
Section 3.01(b)(v) were adopted and on the Effective Date, (C) the due
incorporation and good standing or valid existence of such Loan Party as a
corporation organized under the laws of the jurisdiction of its
incorporation, and the absence of any proceeding for the dissolution or
liquidation of such Loan Party, (D) the truth of the representations and
warranties contained in the Loan Documents as though made on and as of the
Effective Date and (E) the absence of any event occurring and continuing,
or resulting from entering into this Agreement, that constitutes a Default.
(ix) A certificate of the Secretary or an Assistant Secretary of each
Loan Party certifying the names and true signatures of the officers of such
Loan Party authorized to sign each Loan Document to which it is
37
or is to be a party and the other documents to be delivered hereunder and
thereunder.
(x) Evidence of insurance naming the Collateral Agent as additional
insured and loss payee with such responsible and reputable insurance
companies or associations, and in such amounts and covering such risks, as
is reasonably satisfactory to the Lenders.
(xi) Favorable opinions of counsel for the Loan Parties, in
substantially the form of Exhibit F hereto and as to such other matters as
any Lender through the Administrative Agent may reasonably request.
(c) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that could
reasonably be expected to have a Material Adverse Effect other than the matters
described on Schedule 4.01(f) hereto (the "Disclosed Litigation").
(d) All governmental and third party consents and approvals necessary
in connection with the Transactions shall have been obtained (without the
imposition of any conditions that are not reasonably acceptable to the Lenders)
and shall remain in effect (other than any consents and approvals the absence of
which, either individually or in the aggregate, would not have a Material
Adverse Effect); all applicable waiting periods in connection with the
Transactions shall have expired without any action being taken by any competent
authority (other than any action which either individually or in the aggregate
with all such actions would not reasonably be expected to have a Material
Adverse Effect), and no law or regulation shall be applicable in the reasonable
judgment of the Lenders, in each case that restrains, prevents or imposes
materially adverse conditions upon the Transactions or the rights of the Loan
Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any of
them.
(e) All Pre-Amendment Information shall be true, correct and complete
in all material aspects as of the dates specified therein, and no additional
information shall have come to the attention of the Loan Parties that could
reasonably be expected to have a Material Adverse Effect.
(f) The Borrower shall have paid (or made provision therefor in a
manner reasonably satisfactory to the Agents) (i) all accrued and unpaid
interest, expenses and fees outstanding with respect to the First Amended ITCD
Credit Agreement, (ii) all reasonable and documented costs and expenses of the
Administrative Agent (including the reasonable fees and expenses of legal
counsel and financial advisors to the Administrative Agent) and the Lenders, and
(iii) the fees set forth in Section 2.07.
(g) The Lenders shall be reasonably satisfied that (i) the Parent and
its Subsidiaries will be able to meet their respective obligations under all
employee and retiree welfare plans, (ii) the employee benefit plans of the
Parent and its ERISA Affiliates are, in all material respects, funded in
accordance with the minimum statutory requirements, (iii) no "reportable event"
(as defined in ERISA, but excluding events for which reporting has been
38
waived) has occurred as to any such employee benefit plan and (iv) no
termination of, or withdrawal from, any such employee benefit plan has occurred
or is contemplated that could reasonably be expected to result in a material
liability.
(h) The parties shall have executed and delivered (i) the First Lien
Loan Documents and (ii) the Second Lien Loan Documents, each of which shall be
in form and substance reasonable acceptable to the Lenders.
(i) The Lessees shall have paid all accrued and outstanding interest
under the NTFC Capital Lease and GECC Capital Lease on or before the Effective
Date.
(j) A copy of the New Warrant Documents and duly executed warrants in
definitive form and registered in such names as shall be satisfactory to the
Lenders.
(k) The Administrative Agent shall have received drafts of the audited
Consolidated balance sheet of the Loan Parties as at December 31, 2004, and
drafts of the audited, related Consolidated statement of income and Consolidated
statement of cash flows of the Loan Parties for the Fiscal Year then ended.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Loan
Parties represent and warrant, jointly and severally, as follows as of the date
hereof and the Effective Date:
(a) Each Loan Party and each of its respective Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, (ii) is duly qualified and
in good standing as a foreign corporation (except as set forth in Schedule
4.01(a)(ii) hereto) in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so qualify
or be licensed except where the failure to so qualify or be licensed would
not be reasonably likely to have a Material Adverse Effect and (iii) has
all requisite corporate power and authority (including, without limitation,
all governmental licenses, permits and other approvals (except as set forth
on Schedule 4.01(a)(iii) hereto)) to own or lease and operate its
properties and to carry on its business as now conducted and as currently
proposed to be conducted, except where the failure to have such power or
authority would not be reasonably likely to have a Material Adverse Effect.
All of the outstanding Equity Interests in the Borrower have been validly
issued, are fully paid and non-assessable and are owned by the Parent free
and clear of all Liens, except those created under the Loan Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party as of the Effective Date
showing as of the date hereof (as to each such Subsidiary) the jurisdiction
of its incorporation, the
39
number of shares of each class of its Equity Interests authorized, and the
number outstanding, on the date hereof and the percentage of each such
class of its Equity Interests owned (directly or indirectly) by such Loan
Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof. All of the outstanding Equity Interests in each Loan Party's
Subsidiaries have been validly issued, are fully paid and non-assessable
and are owned by such Loan Party or one or more of its Subsidiaries free
and clear of all Liens, except those created under the Loan Documents.
(c) The execution, delivery and performance by each Loan Party of each
Loan Document to which it is or is to be a party, and the consummation of
the Transactions, are within such Loan Party's corporate powers, have been
duly authorized by all necessary corporate action, and do not (i)
contravene such Loan Party's charter or bylaws, (ii) violate any law, rule,
regulation (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or result
in the breach of, or constitute a default under, any loan agreement,
indenture, mortgage, deed of trust, or material contract, lease or other
instrument binding on or affecting any Loan Party, any of its Subsidiaries
or any of their properties or (iv) except for the Liens created under the
Loan Documents, the First Lien Loan Documents and the Second Lien Loan
Documents, result in or require the creation or imposition of any Lien upon
or with respect to any of the properties of any Loan Party or any of its
Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of
any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which could be reasonably likely to have a Material
Adverse Effect.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body (including,
without limitation, the FCC or any applicable PUC) or any other third party
is required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of any Loan Document to which it is or is to
be a party, or for the consummation of the Transactions, (ii) the grant or
affirmation by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (iii) the perfection or maintenance of the Liens
created under the Collateral Documents (including the third priority nature
thereof), or (iv) the exercise by any Agent or any Lender of its rights
under the Loan Documents or the remedies in respect of the Collateral
pursuant to the Collateral Documents, except for the authorizations,
approvals, actions, notices and filings listed on Schedule 4.01(d) hereto,
all of which have been duly obtained, taken, given or made and are in full
force and effect except (A) as set forth in the Loan Documents or (B) for
such authorizations, approvals, actions, notices and filings which would
not have a Material Adverse Effect if not so made or obtained. All
applicable waiting periods in connection with the Transactions have expired
without any action
40
having been taken by any competent authority restraining, preventing or
imposing materially adverse conditions upon the Transactions or the rights
of the Loan Parties or their Subsidiaries freely to transfer or otherwise
dispose of, or to create any Lien on, any properties now owned or hereafter
acquired by any of them.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party thereto. This Agreement is, and each other Loan Document when
delivered hereunder will be, the legal, valid and binding obligation of
each Loan Party thereto, enforceable against such Loan Party in accordance
with its terms.
(f) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or, to any Loan Party's knowledge, threatened
before any court, governmental agency or arbitrator that (i) would, alone
or when considered in conjunction with any other actions, suits,
investigation, litigation or proceeding affecting any Loan Party, be
reasonably likely to have a Material Adverse Effect other than the
Disclosed Litigation or (ii) purports to affect the legality, validity or
enforceability of any Loan Document or the consummation of Transactions,
and there has been no material adverse change in the status, or financial
effect on any Loan Party or any of its Subsidiaries, of or as a result of
the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) The (i) unaudited Consolidated balance sheet of the Loan Parties
as at the nine (9) months ended September 30, 2004 and (ii) the unaudited
related Consolidated statement of income and Consolidated statement of cash
flows of the Loan Parties for the nine (9) months then ended, duly
certified by the Chief Financial Officer of the Parent, copies of which
have been furnished to the Agents and each Lender, fairly present the
Consolidated financial condition of the Loan Parties, as the case may be,
as at such date and the Consolidated results of operations of the Parent
and its Subsidiaries for the period ended on such date, all in accordance
with GAAP applied on a consistent basis, and since December 31, 2004 there
has been no Material Adverse Change.
(h) Intentionally omitted.
(i) The Consolidated balance sheets, income statements and cash flows
statements of the Loan Parties delivered to the Lenders pursuant to Section
5.03(e) were or will be, and the unaudited pro forma financial information
about the Loan Parties delivered to the Lenders in the ITC^DeltaCom
2005-2006 Business Plan, dated March 9, 2005, was, prepared in good faith
on the basis of the assumptions stated therein, which assumptions were or
will be fair in light of the conditions existing at the time of delivery of
such information, and represented or will represent, at the time of
delivery, the Loan Parties' best estimate of the future financial
performance of the Loan Parties.
41
(j) No information, exhibit or report furnished by or on behalf of any
Loan Party to any Agent or any Lender in connection with the negotiation of
the Loan Documents or pursuant to the terms of the Loan Documents contained
any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading.
(k) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, 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.
(l) Neither any Loan Party nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the application of the proceeds or repayment
thereof by the Borrower, nor the consummation of the other Transactions,
will violate any provision of such Act or any rule, regulation or order of
the SEC thereunder.
(m) The Collateral Documents create a valid security interest in the
Collateral, securing the payment of the Secured Obligations, and at such
time as all filings delivered to the Collateral Agent on or before the
Effective Date have been duly filed in accordance with the provisions of
the Security Agreement, such security interest will be perfected. The Loan
Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the Liens and security interests created or
permitted under the Loan Documents.
(n) (i)Set forth on Schedule 4.01(n) hereto is a complete and accurate
list of all Plans, Multiemployer Plans and Welfare Plans.
(ii) No ERISA Event (i) has occurred and is outstanding or (ii)
to the Loan Parties' knowledge, is reasonably expected to occur, in
each case with respect to any Plan.
(iii) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the
Lenders, is complete and accurate and fairly presents the funding
status of such Plan, and since the date of such Schedule B there has
been no material adverse change in such funding status.
(iv) Neither any Loan Party nor any ERISA Affiliate has incurred
or, to the Loan Parties' knowledge, is reasonably expected to incur
any Withdrawal Liability exceeding $1,000,000 to any Multiemployer
Plan.
(v) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such
42
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan, to
the Borrower's knowledge, is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(o) (i) The operations and properties of each Loan Party and each of
its Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with
such Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that could (A)
form the basis of an Environmental Action against any Loan Party or any of
its Subsidiaries or any of their properties that could have a Material
Adverse Effect or (B) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(ii) None of the properties currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or, to the best of its knowledge, is
adjacent to any such property; there are no and or, to the best of its
knowledge, never have been any underground or aboveground storage
tanks or any surface impoundments, septic tanks, pits, sumps or
lagoons in which Hazardous Materials are being or have been treated,
stored or disposed on any property currently owned or, to the best of
its knowledge, operated by any Loan Party or any of its Subsidiaries
or, to the best of its knowledge, on any property formerly owned or
operated by any Loan Party or any of its Subsidiaries; there is no
asbestos or asbestos-containing material on any property currently
owned or, to the best of its knowledge, operated by any Loan Party or
any of its Subsidiaries; and Hazardous Materials have not been
released, discharged or disposed of on any property currently or
formerly owned or operated by any Loan Party or any of its
Subsidiaries except as specifically permitted under Environmental
Laws.
(iii) Neither any Loan Party nor any of its Subsidiaries is
undertaking, or has completed, either individually or together with
other potentially responsible parties, any investigation or assessment
or remedial or response action relating to any actual or threatened
release, discharge or disposal of Hazardous Materials at any site,
location or operation, either voluntarily or pursuant to the order of
any governmental or regulatory authority or the requirements of any
Environmental Law; and all Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of
its Subsidiaries have been disposed of in a manner not reasonably
expected to result in material liability to any Loan Party or any of
its Subsidiaries.
43
(p) (i)Except as set forth in Schedule 4.01(p) hereto, neither any
Loan Party nor any of its Subsidiaries is party to any tax sharing
agreement.
(ii) (x) all tax returns and all material statements, reports and
forms (including estimated tax or information returns) (collectively,
the "Tax Returns") required to be filed with any taxing authority by,
or with respect to, each Loan Party and its Subsidiaries have been
timely filed in accordance with all applicable laws and, as of time of
filing, each Tax Return was accurate and complete and correctly
reflected the facts regarding income, business, assets, operations and
the status of each Loan Party and its Subsidiaries; (y) each Loan
Party and its Subsidiaries has timely paid or made adequate provision
for payment of all taxes (other than the Permitted Deferred Taxes)
that are shown as due and payable on Tax Returns that have been so
filed or that are otherwise required to be paid, including without
limitation, assessments, interest and penalties (other than taxes
which are being contested in good faith and for which adequate
reserves are reflected on the financial statements delivered
hereunder); and (z) each Loan Party and its Subsidiaries have made
adequate provision for all taxes payable by such Loan Party and its
Subsidiaries for which no Tax Return has yet been filed or which are
otherwise due.
(iii) Set forth on Part I of Schedule 4.01(p) hereto is a
complete and accurate list, as of the date hereof, of each taxable
year of each Loan Party and each of its Subsidiaries and Affiliates
for which Federal income tax returns have been filed and for which the
expiration of the applicable statute of limitations for assessment or
collection has not occurred by reason of extension or otherwise (an
"Open Year").
(iv) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and
each of its Subsidiaries and Affiliates proposed by the Internal
Revenue Service with respect to Open Years does not exceed $35,000.
Set forth on Part II of Schedule 4.01(p) hereto is a complete and
accurate description, as of the date hereof, of each such item that
separately, for all such Open Years, together with applicable interest
and penalties, exceeds $100,000. To the Borrower's knowledge, no
issues have been raised by the Internal Revenue Service in respect of
Open Years that, in the aggregate, could be reasonably likely to have
a Material Adverse Effect.
(v) Except as set forth in Schedule 4.01(p) hereto, the aggregate
unpaid amount, as of the date hereof, of adjustments to the state,
local and foreign tax liability of each Loan Party and its
Subsidiaries and Affiliates proposed by all state, local and foreign
taxing authorities (other than amounts arising from adjustments to
Federal income tax returns) does not exceed $35,000. No issues have
been raised by such taxing authorities
44
that, in the aggregate, could be reasonably likely to have a Material
Adverse Effect.
(q) Neither the business nor the properties of any Loan Party or any
of its Subsidiaries have been affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or
not covered by insurance) that could be reasonably likely to have a
Material Adverse Effect.
(r) Set forth on Schedule 4.01(r) hereto is a complete and accurate
list of all Surviving Debt, showing as of the date hereof the obligor and
the principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule therefor.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate
list of all Liens on the property or assets of any Loan Party or any of its
Subsidiaries, showing as of the date hereof the lienholder thereof, the
principal amount of the obligations secured thereby and the property or
assets of such Loan Party or such Subsidiary subject thereto.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate
list of all real property owned by any Loan Party or any of its
Subsidiaries, showing as of the date hereof the street address, county or
other relevant jurisdiction, state, record owner and gross book and fair
value thereof. Each Loan Party or such Subsidiary has good, marketable and
insurable fee simple title to such real property, free and clear of all
Liens, other than Liens created or permitted by the Loan Documents.
(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate
list of all leases of real property under which any Loan Party or any of
its Subsidiaries is the lessee, showing as of the date hereof the street
address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. Each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list of all Investments held by any Loan Party or any of its Subsidiaries
on the date hereof, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
(w) Set forth on Schedule 4.01(w) hereto is a complete and accurate
list of all patents, trademarks, trade names, service marks and copyrights,
and all applications therefor and licenses thereof, of each Loan Party or
any of its Subsidiaries, showing as of the date hereof the jurisdiction in
which registered, the registration number, the date of registration and the
expiration date.
(x) Set forth on Schedule 4.01(x) hereto is a complete and accurate
list of all Material Contracts of each Loan Party and its Subsidiaries
involving
45
aggregate consideration payable to or by such Loan Party or its
Subsidiaries of $20,000,000 or more in any year. Each such Material
Contract, together with each other Material Contract shows as of the date
hereof the parties, subject matter and term thereof. Each such Material
Contract has been duly authorized, executed and delivered by all parties
thereto, has not been amended or otherwise modified, is in full force and
effect and is binding upon and enforceable against all parties thereto in
accordance with its terms, and except as set forth on Schedule 4.01(x)
hereto, there exists no default under any Material Contract by any party
thereto.
(y) The New Warrants have been duly authorized by the Parent and, when
issued and delivered in accordance with the terms of this Agreement and the
New Warrant Documents, will be validly issued and outstanding, fully paid
and nonassessable, and free and clear of any Liens, other than Liens
arising under the Governance Agreement. The shares of Common Stock issuable
upon exercise or conversion of the New Warrants will, when issued, be
validly issued and outstanding, fully paid and nonassessable, and free and
clear of any Liens, other than Liens arising under the Governance
Agreement. The issuance of the New Warrants and the New Warrant Shares will
not be subject to preemptive or other similar rights.
(z) The New Warrant Documents and the New Warrants constitute valid
and binding agreements of the Parent, in each case enforceable against the
Parent in accordance with their respective terms, except as such
enforcement is limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally and for
limitations imposed by general principles of equity.
(aa) Neither the Parent nor any Person acting on its behalf has taken
or will take any action (including, without limitation, any offering of any
securities of the Parent under circumstances which would require, under the
Securities Act (the integration of such offering with the offering and sale
of the New Warrants) which might subject the offering, issuance or sale of
the New Warrants to the registration requirements of Section 5 of the
Securities Act.
(bb) The authorized capital stock of the Parent consists of
350,000,000 shares of Common Stock, par value $0.01 per share, and
10,000,000 shares of preferred stock, par value $0.01 per share. As of
March 17, 2005, there were outstanding 55,084,955 shares of Common Stock of
the Parent, 179,311 shares of Series A Preferred Stock and 539,078 shares
of Series B Preferred Stock. As of March 17, 2005, there were outstanding
under the ITC^DeltaCom, Inc. Stock Incentive Plan (i) stock options to
purchase an aggregate of 2,694,886 shares of Common Stock of the Parent, of
which stock options to purchase an aggregate of 1,927,635 shares of Common
Stock of the Parent were exercisable, and (ii) restricted stock units for
1,653,000 shares of Common Stock of the Parent, of which restricted stock
units for 791,165 shares of Common Stock were vested. As of March 17, 2005,
there were outstanding, currently exercisable warrants to
46
purchase an aggregate of 4,020,000 shares of Common Stock of the Parent.
All outstanding shares of capital stock of the Parent have been, and all
shares of Common Stock of the Parent that may be issued pursuant to the
ITC^DeltaCom, Inc. Stock Incentive Plan will be, when issued in accordance
with the terms of such plan, duly authorized and validly issued and fully
paid and nonassessable. No Subsidiary of the Parent owns any shares of
capital stock of the Parent.
(cc) The information statement (the "Information Statement") of the
Parent required to be filed with the SEC pursuant to Regulation 14C under
the Exchange Act, in connection with the issuance of the New Warrants and
New Warrant Shares, and any amendments or supplements thereto, will, when
filed, comply as to form in all material respects with the applicable
requirements of the Exchange Act. At the time the Information Statement or
any amendment or supplement thereto is first mailed to stockholders of the
Parent, the Information Statement, as supplemented or amended, if
applicable, will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties contained in this
4.01(cc) will not apply to statements or omissions included in the
Information Statement based upon information furnished to the Parent in
writing by the Initial Lenders specifically for use therein.
ARTICLE V
COVENANTS
Section 5.01. AFFIRMATIVE COVENANTS. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid
or any Lender shall have any Commitment hereunder, each Loan Party shall:
(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, such compliance to include, without
limitation, compliance with ERISA, the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970, the rules
and regulations of the FCC and each applicable PUC.
(b) PAYMENT OF TAXES, ETC. Subject to Section 5.01(n)(ii), 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 Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge, levy or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are
47
being maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable.
(c) COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause each of
its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, to the extent required by and in accordance with all
Environmental Laws; provided, however, that neither the Borrower nor any of
its Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
(d) 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 the Parent or such
Subsidiary operates.
(e) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its existence,
legal structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges and franchises; provided, however, that the
Parent and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(d) and provided further that neither the
Parent nor any of its Subsidiaries shall be required to preserve any right,
permit, license, approval, privilege or franchise if the Board of Directors
of the Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Parent
or such Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Parent, such Subsidiary or
the Lenders.
(f) VISITATION RIGHTS. At any reasonable time upon prior reasonable
notice and from time to time, permit any of the Agents 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, the Parent and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Parent and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(g) 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
48
be made of all financial transactions and the assets and business of the
Parent and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(h) 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.
(i) TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Parent or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
(j) COVENANT TO GUARANTEE OBLIGATIONS AND GIVE SECURITY. Upon (x) the
request of the Collateral Agent (y) the formation or acquisition of any new
direct or indirect Subsidiaries by any Loan Party or (z) the acquisition of
any property acquired for a purchase price in excess of $1,000,000 in any
Fiscal Year and $5,000,000 in the aggregate over the term of this Agreement
by any Loan Party, and such property, in the judgment of the Collateral
Agent, shall not already be subject to a perfected third priority security
interest in favor of the Collateral Agent for the benefit of the Secured
Parties, then the Loan Parties shall, in each case at the Loan Parties'
expense:
(i) Intentionally omitted.
(ii) within 30 days after such request, formation or acquisition
(or such longer period as the Administrative Agent may permit),
furnish to the Collateral Agent a description of the real and personal
properties of the Loan Parties and their respective Subsidiaries in
detail satisfactory to the Collateral Agent,
(iii) within 45 days after such request, formation or acquisition
(or such longer period as the Administrative Agent may permit), duly
execute and deliver, and cause each such Subsidiary and each direct
and indirect parent of such Subsidiary (if it has not already done so)
to duly execute and deliver, to the Collateral Agent mortgages,
pledges, assignments, security agreement supplements and other
security agreements, as specified by and in form and substance
satisfactory to the Collateral Agent, securing payment of all the
Obligations of the applicable Loan Party, such Subsidiary or such
parent, as the case may be, under the Loan Documents and constituting
Liens on all such properties,
(iv) within 60 days after such request, formation or acquisition
(or such longer period as the Administrative Agent may permit), take,
and cause such Subsidiary or such parent to take, whatever
49
action (including, without limitation, the recording of mortgages, the
filing of Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Collateral Agent to vest
in the Collateral Agent (or in any representative of the Collateral
Agent designated by it) valid and subsisting Liens on the properties
purported to be subject to the mortgages, pledges, assignments,
security agreement supplements and security agreements delivered
pursuant to this Section 5.01(j), enforceable against all third
parties in accordance with their terms,
(v) within 60 days after such request, formation or acquisition
(or such longer period as the Administrative Agent may permit),
deliver to the Collateral Agent, upon the request of the Collateral
Agent in its sole discretion, a signed copy of a favorable opinion,
addressed to the Collateral Agent and the other Secured Parties, of
counsel for the Loan Parties reasonably acceptable to the Collateral
Agent as to the matters contained in clauses (i), (iii) and (iv)
above, as to such guaranties, guaranty supplements, mortgages,
pledges, assignments, security agreement supplements and security
agreements being legal, valid and binding obligations of each Loan
Party thereto enforceable in accordance with their terms, as to the
matters contained in clause (iv) above, as to such recordings,
filings, notices, endorsements and other actions being sufficient to
create valid perfected Liens on such properties, and as to such other
matters as the Collateral Agent may reasonably request,
(vi) within 60 days after such request, formation or acquisition
(or such longer period as the Administrative Agent may permit),
deliver, upon the request of the Collateral Agent in its sole
discretion, to the Collateral Agent with respect to each parcel of
real property owned by the entity that is the subject of such request,
formation or acquisition such title reports, surveys and engineering,
soils and other reports, and environmental assessment reports, as may
be prepared in the ordinary course of business by such entity;
provided, however, that to the extent that any Loan Party or any of
its Subsidiaries shall have otherwise received any of the foregoing
items with respect to such real property, such items shall, promptly
after the receipt thereof, be delivered to the Collateral Agent,
(vii) upon the occurrence and during the continuance of a
Default, promptly cause to be deposited any and all cash dividends
paid or payable to it or any of its Subsidiaries from any of its
Subsidiaries from time to time into the Collateral Account, and with
respect to all other dividends paid or payable to it or any of its
Subsidiaries from time to time, promptly execute and deliver, or cause
such Subsidiary to promptly execute and deliver, as the case may be,
any and all further instruments and take or cause such Subsidiary to
take, as the case may be, all such other action as the Collateral
Agent may deem necessary or desirable in
50
order to obtain and maintain from and after the time such dividend is
paid or payable a perfected, third priority lien on and security
interest in such dividends, and
(viii) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Collateral Agent may deem reasonably
necessary or desirable in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guaranties, mortgages,
pledges, assignments, security agreement supplements and security
agreements.
(k) FURTHER ASSURANCES. (i) Promptly upon request by any Agent, or any
Lender through the Administrative Agent, correct, and cause each of its
Subsidiaries promptly to correct, any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing
or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender through
the Administrative Agent, do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such
further acts, deeds, conveyances, pledge agreements, mortgages, deeds
of trust, trust deeds, assignments, financing statements and
continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as any
Agent, or any Lender through the Administrative Agent, may reasonably
require from time to time in order to (A) carry out more effectively
the purposes of the Loan Documents, (B) to the fullest extent
permitted by applicable law, subject any Loan Party's or any of its
Subsidiaries' properties, assets, rights or interests to the Liens now
or hereafter intended to be covered by any of the Collateral
Documents, (C) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and any of the Liens
intended to be created thereunder and (D) assure, convey, grant,
assign, transfer, preserve, protect and confirm more effectively unto
the Secured Parties the rights granted or now or hereafter intended to
be granted to the Secured Parties under any Loan Document or under any
other instrument executed in connection with any Loan Document to
which any Loan Party or any of its Subsidiaries is or is to be a
party, and cause each of its Subsidiaries to do so. Notwithstanding
the foregoing, no Loan Party shall be required, solely pursuant to the
provisions of this Section 5.01(k), to encumber any assets which were
not otherwise required to be encumbered on the Effective Date or
pursuant to Section 5.01(j).
(l) COMPLIANCE WITH TERMS OF LEASEHOLDS. Make all payments and
otherwise perform all obligations in respect of all leases of real property
to which the Borrower or any of its Subsidiaries is a party, keep such
leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or cancelled,
notify the Administrative Agent of
51
any default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause
each of its Subsidiaries to do so, except in each of the foregoing cases
where the failure to do so would not have a Material Adverse Effect.
(m) PERFORMANCE OF MATERIAL CONTRACTS. Perform and observe,
and cause each of its Subsidiaries to perform and observe, all the
terms and provisions of each Material Contract to be performed or
observed by it, maintain each such Material Contract in full force and
effect until the cancellation or termination thereof in accordance
with its terms, enforce each such Material Contract in accordance with
its terms, take all such action to such end as may be from time to
time reasonably requested by the Administrative Agent (or by the
Administrative Agent at the request of the Required Lenders) and, upon
request of the Administrative Agent, make to each other party to each
such Material Contract such demands and requests for information and
reports or for action as any Loan Party or any of its Subsidiaries is
entitled to make under such Material Contract, and cause each of its
Subsidiaries to do so, except in each of the foregoing cases where the
failure to do so would not have a Material Adverse Effect.
(n) CONDITIONS SUBSEQUENT. (i) With respect to (A) any newly-acquired
Unencumbered Parcel with a gross book value in excess of $1,000,000, (B)
real property that is subject to a mortgage for the benefit of the First
Lien Collateral Agent as of the Effective Date, or (C) any Unencumbered
Parcel owned by any Loan Party as of the Effective Date in which any such
Loan Party has invested such that the gross book value of the land and any
buildings thereon after the investment is completed is greater than
$1,000,000, the Loan Parties shall deliver to the Administrative Agent,
within 60 days after the closing of any such acquisition in clause (A)
above or of any such investment in clause (C) above and within 30 days of
the Effective Date in the case of clause (B) (or such longer period as the
Administrative Agent may agree) with respect to such property, the
following, each dated such day (unless otherwise specified) in form and
substance substantially similar to the correlative First Lien Loan
Documents or the Second Lien Loan Documents but reflecting the third
priority nature of the Lien: deeds of trust, trust deeds, mortgages,
leasehold mortgages and leasehold deeds of trust in form reasonably
satisfactory to the Administrative Agent (together with the Assignments of
Leases and Rents referred to therein and each other mortgage delivered
pursuant to Section 5.01(j), in each case as amended, the "Mortgages"),
duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been
duly recorded in all filing or recording offices that the
Administrative Agent may reasonably deem necessary or desirable
in order to create a valid third priority and subsisting Lien on
the property described therein in favor of the Collateral Agent
for the benefit of the Secured Parties and that all filing and
recording taxes and fees have been paid,
52
(B) fully paid American Land Title Association Lender's
Extended Coverage title insurance policies (the "Mortgage
Policies") in form and substance, with endorsements and in amount
reasonably acceptable to the Administrative Agent, issued,
coinsured and reinsured by title insurers acceptable to the
Administrative Agent, insuring the Mortgages to be valid third
priority and subsisting Liens on the property described therein,
free and clear of all defects (including, but not limited to,
mechanics' and materialmen's Liens) and encumbrances, excepting
only Permitted Encumbrances, Liens securing the First Lien
Facilities and Liens securing the Second Lien Facility, and
providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents and for
mechanics' and materialmen's Liens) and such coinsurance and
direct access reinsurance as the Administrative Agent may
reasonably deem necessary or desirable,
(C) American Land Title Association form surveys, certified
to the Administrative Agent and the issuer of the Mortgage
Policies in a manner reasonably satisfactory to the
Administrative Agent by a land surveyor duly registered and
licensed in the States in which the property described in such
surveys is located and acceptable to the Administrative Agent,
showing all buildings and other improvements, any off-site
improvements, the location of any easements, parking spaces,
rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such
improvements or on to such property, and other defects, other
than encroachments and other defects reasonably acceptable to the
Administrative Agent,
(D) the Assignments of Leases and Rents referred to in the
Mortgages, duly executed by the appropriate Loan Party,
(E) such consents and agreements of lessors and other third
parties, and such estoppel letters and other confirmations, as
the Administrative Agent may reasonably deem necessary or
desirable,
(F) evidence of the insurance required by the terms of the
Mortgages, and
(G) evidence that all other action that the Administrative
Agent may deem reasonably necessary or desirable in order to
create valid third priority and subsisting Liens on the property
described in the Mortgages (subject to Liens securing the First
Lien Facilities and Liens securing the Second Lien Facility) has
been taken.
53
(ii) Within thirty (30) days of the Effective Date, the Borrower
shall pay, or cause to be paid, the Permitted Deferred Taxes in full
(iii) Within thirty (30) days of the Effective Date, the
Borrower shall dissolve each of the Subsidiaries listed on Schedule IV
hereto or shall comply the provisions of Section 5.01(j) as if such
Subsidiary were a newly formed Subsidiary.
(iv) Within thirty (30) days of the Effective Date, the
Loan Parties shall have entered into new or amended account control
agreements, in form and substance reasonably satisfactory to the First
Lien Collateral Agent, the Second Lien Collateral Agent and the
Collateral Agent, as the Collateral Agent may deem necessary or
desirable in order to ensure the priority and perfection of the
Collateral Agent's security interests in the deposit, securities and
other bank accounts of the Loan Parties.
(v) BTI and BTI, Inc. shall use commercially reasonable efforts
to enter into an amendment to the promissory note referred to in
clause (d) of the definition of "Assumed BTI Debt", which amendment
shall extend the maturity date of such note from April 30, 2006 to a
date which occurs on or after October 31, 2006.
(vi) Within (A) ten (10) days of the Effective Date, the Loan
Parties shall deliver to the Administrative Agent a certificate of the
Secretary of State in each of the jurisdictions and with respect to
each Loan Party described on Schedule 4.01(a)(ii) stating that each
Loan Party is duly qualified and in good standing as a foreign
corporation in the jurisdictions applicable to each Loan Party and (B)
twenty (20) days of the Effective Date, each Loan Party shall have
obtained all governmental licenses, permits and other approvals
described as pending on Schedule 4.01(a)(iii).
(vii) Within ten (10) days of the Effective Date, the Loan
Parties shall deliver to the Administrative Agent favorable opinions,
in form and substance satisfactory to the Administrative Agent, of
counsel to those Subsidiaries of the Parent organized in Alabama,
North Carolina and Virginia.
(viii) Within three (3) Business Days of the Effective Date, the
Borrower shall deliver to the Administrative Agent copies of the
audited financial statements of the Loan Parties without any
"going-concern" or like qualification to the opinion set forth
therein.
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(ix) (i) As promptly as reasonably practicable after the date
hereof, the Parent will prepare and file with the SEC, will use its
best efforts to have cleared by the SEC and will thereafter mail to
its stockholders as promptly as reasonably practicable the Information
Statement and all other related materials, if any, (ii) WCAS and the
Parent will cooperate with each other (A) in connection with the
preparation of the Information Statement, (B) in determining whether
any action by or in respect of, or filing with, any governmental body,
agency, official, or authority is required, or any actions, consents,
approvals or waivers are required to be obtained from parties to any
material contracts, in connection with the consummation of the
transactions contemplated by this Agreement or the New Warrant
Documents and (iii) in taking such actions or making any such filings,
furnishing information required in connection therewith or with the
Information Statement and seeking timely to obtain any such actions,
consents, approvals or waivers. WCAS and its counsel shall be given a
reasonable opportunity to review and comment on the Information
Statement each time before such document (or any amendment thereto) is
filed with the SEC, and reasonable and good faith consideration shall
be given to any comments made by WCAS and its counsel. The Parent
shall provide WCAS and its counsel with any comments or other
communications, whether written or oral, that the Parent or its
counsel may receive from time to time from the SEC or its staff with
respect to the Information Statement, promptly after receipt of those
comments or other communications and a reasonable opportunity to
participate in the response to those comments and to provide comments
on that response (to which reasonable and good faith consideration
shall be given), including by participating in any discussions or
meetings with the staff of the SEC.
(x) The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common
Stock and/or its authorized and issued Common Stock held in its
treasury, for the purpose of enabling it to satisfy any obligation to
issue Warrant Shares upon exercise or conversion of Warrants, the
maximum number of shares of Common Stock which may then be deliverable
upon the exercise or conversion of all outstanding Warrants. All such
shares, when issued upon such exercise or conversion, shall be validly
issued, fully paid and non-assessable, free of all Liens and not
subject to preemptive rights.;
55
(xi) As promptly as reasonably practicable after the Effective
Date, the Parent shall use its best efforts to cause the New Warrant
Shares to be approved for quotation on the Nasdaq National Market,
subject to official notice of issuance.
Section 5.02. NEGATIVE COVENANTS. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid or any
Lender shall have any Commitment hereunder, no Loan Party shall, at any time:
(a) LIENS, ETC. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign, file or authorize the filing or suffer to exist, or
permit any of its Subsidiaries to sign, file, or authorize the filing or
suffer to exist, under the Uniform Commercial Code of any jurisdiction, a
financing statement that names the Parent or any of its Subsidiaries as
debtor, or sign or suffer to exist, or permit any of its Subsidiaries to
sign or suffer to exist, any security agreement authorizing any secured
party thereunder to file such financing statement, or assign, or permit any
of its Subsidiaries to assign, any accounts or other right to receive
income, except:
(i) Liens created under the Loan Documents, the First Lien Loan
Documents and the Second Lien Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on Schedule
4.01(r) hereto;
(iv) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(ii); provided that no such Lien shall
extend to or cover any Collateral or assets other than the assets
subject to such Capitalized Leases;
(v) Liens securing Permitted Refinancings, Receivables
Financings, Replacement Financings and Existing Debt Refinancings to
the extent permitted under Section 5.02(b), provided that if the Debt
referred to in clauses (c) and (d) of the definition of "Assumed BTI
Debt" is the subject of an Existing Debt Refinancing, such Debt shall
not be secured by any Lien;
(vi) (A) deposits of cash, checks or Cash Equivalents to secure
Ordinary Course Obligations, (B) letters of credit issued to secure
Ordinary Course Obligations or (C) surety, appeal, performance and
return-of-money bonds and bonds of a similar nature issued to secure
or in respect of Ordinary Course Obligations, in an aggregate amount
not to exceed the amount set forth in Section 5.02(b)(xii);
56
(vii) Liens securing Subordinated Debt permitted under Section
5.02(b)(xi) which are subordinated and junior in priority to the Liens
securing the First Lien Loan Documents and the Second Lien Loan
Documents on terms and conditions acceptable to the First Lien Agents,
the Required Lenders under the First Lien Credit Agreement, the Second
Lien Agents nad the Required Lenders under the Second Lien Credit
Agreement and substantially similar to those set forth in the Third
Lien Intercreditor and Subordination Agreement;
(b) DEBT. Incur or permit any of its Subsidiaries to Incur any Debt
other than:
(i) Debt under the Loan Documents, the First Lien Loan Documents
and the Second Lien Loan Documents;
(ii) Capitalized Leases (other than Surviving Debt) not to exceed
in the aggregate $7,500,000;
(iii) the Surviving Debt;
(iv) unsecured Debt of the Parent ("Permitted Parent Debt") that
(A) is not subject to any guarantee by any Subsidiary of the Parent,
(B) will not mature prior to the date that is ninety-one (91) days
after the Termination Date, (C) has no scheduled amortization or
payments of principal, (D) does not permit any payments in cash of
interest or other amounts in respect of the principal thereof for at
least five (5) years from the date of the issuance or incurrence
thereof, and (E) has mandatory prepayment, repurchase or redemption,
covenant, default and remedy provisions customary for senior discount
notes of an issuer that is the parent of a borrower under senior
secured credit facilities, taken as a whole; provided, any such Debt
shall constitute Permitted Parent Debt only if both before and after
giving effect to the issuance or incurrence thereof, no Default or
Event of Default shall have occurred and be continuing, it being
understood that any capitalized or paid-in-kind interest or accreted
principal on such Debt shall not constitute an issuance or incurrence
of Debt for purposes of this proviso;
(v) Debt of the Borrower under Hedge Agreements; provided that
such agreements (A) are designed solely to protect the Loan Parties
against fluctuations in foreign currency exchange rates or interest
rates and (B) do not increase the Debt of the obligor thereunder
outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or interest rates or by reason of
fees, indemnities and compensation payable thereunder;
(vi) Debt Incurred in connection with the refinancing of any Debt
permitted under Section 5.02(b)(i) or (ii) or clauses (c) or (d) of
the
57
definition of Assumed BTI Debt (other than the Debt under the Loan
Documents, Permitted Refinancings, Replacement Refinancings or
Receivables Refinancings), provided that the Debt Incurred in
connection with such refinancing (A) has a scheduled maturity date
that is on or after the scheduled maturity date of the Debt being
refinanced, (B) has a weighted average life to maturity that is equal
to or longer than the remaining weighted average life to maturity of
the Debt being refinanced, determined immediately prior to giving
effect to such refinancing, (C) does not include any provisions that
may require mandatory prepayment of such Debt prior to its scheduled
maturity, other than scheduled prepayments taken into consideration in
determining compliance with clause (B) above and other provisions that
are not materially more burdensome to the obligor thereunder than any
such provisions included in the Debt being refinanced, (D) is Incurred
by the same Person that Incurred the Debt being refinanced and is not
Guaranteed or secured by any Lien unless the Debt being refinanced was
Guaranteed or secured by a Lien (in which case such Debt shall not be
Guaranteed by any Person that did not Guarantee the Debt being
refinanced and shall not be secured by a Lien on any asset that did
not secure the Debt being refinanced), (E) if the refinanced Debt was
subordinated to the Debt under the Loan Documents, such Debt is
subordinated to the Debt under the Loan Documents on terms no less
favorable to the Lenders than the terms on which the Debt being
refinanced was so subordinated, and (F) has an aggregate principal
amount which is equal to the Debt being refinanced, provided that the
Debt Incurred in connection with such refinancing may have an
aggregate principal amount which is less than the Debt being
refinanced in the case of a refinancing of less than all of the Debt
referred to in clauses (c) and (d) of the definition of "Assumed BTI
Debt" (each refinancing undertaken in accordance with this Section
5.02(b)(vi) shall be referred to herein as an "Existing Debt
Refinancing");
(vii) Permitted Refinancing; it being understood that the Loan
Parties shall have the right to cause such Permitted Refinancing to be
secured and guaranteed in a manner and on terms that are identical in
all material respects to the manner in which and the terms on which
the Debt under the First Lien Loan Documents (and/or the Second Lien
Loan Documents, as applicable) is secured and guaranteed immediately
prior to the consummation of such Permitted Refinancing. Effective as
of the consummation of such Permitted Refinancing, the Permitted
Refinancing lenders shall replace the lenders under the First Lien
Loan Documents (and/or the Second Lien Loan Documents, as applicable)
as parties to the Third Lien Intercreditor and Subordination
Agreement, provided, that (A) there shall be no changes to the
provisions of the Third Lien Intercreditor and Subordination Agreement
that would adversely affect the rights and obligations thereunder of
the Lenders and (B) the Permitted Refinancing documents shall not
modify, or prohibit the Borrower from complying
58
with, the provisions of their Agreement with respect to the final
maturity date of this Facility.
(viii) Receivables Financing; it being understood that (A) the
Loan Parties shall have the right to cause such Receivable Financing
to be secured by all Receivables of all of the Loan Parties, (B)
effective as of the consummation of such Receivables Financing, the
Lenders shall release all Liens in their favor on all Receivables of
all of the Loan Parties, it being understood that the Receivables
Financing shall be secured by a Lien on all such Receivables that is
senior in priority to all other Liens thereon (subject to Permitted
Liens), and that the Lenders shall not be entitled to any Lien on the
Receivables, (C) effective as of the consummation of such Receivables
Financing, the Receivables Financing lenders, the Lenders and the
Second Lien Lenders shall replace the Third Lien Intercreditor and
Subordination Agreement with a mutually acceptable Intercreditor
agreement pursuant to which such lenders, the Lenders and the Second
Lien Lenders, among other things, acknowledge that the Liens on the
Receivables securing the Receivables Financing shall be senior in
priority to all other Liens thereon (subject to Permitted Liens) and
that the Liens on all other collateral of the Loan Parties shall be
senior in priority to all other Liens thereon (subject to Permitted
Liens or as otherwise expressly permitted by the Loan Documents);
provided, that the documents evidencing the Receivables Refinancing
shall not modify, or prohibit the Borrower from complying with, the
provisions of this Agreement with respect to the final maturity date
of this Facility or otherwise adversely affect the rights and
obligations of the Lenders under the Third Lien Intercreditor and
Subordination Agreement;
(ix) Replacement Financing; it being understood that effective as
of the consummation of such Replacement Financing, the Replacement
Financing lenders, the Second Lien Lenders, if not paid in full, the
Lenders shall replace the Third Lien Intercreditor and Subordination
Agreement with mutually acceptable intercreditor agreements pursuant
to which such lenders, the Lenders and the Second Lien Lenders, among
other things, acknowledge that the Liens securing such Replacement
Financing, the Second Lien Facility, and this Facility shall secure
the Debt under such facilities and, if relevant, the Second Lien
Facility, shall be senior to the obligations under the Loan Documents
on substantially similar terms as set forth in the Third Lien
Intercreditor Agreement and that such Liens shall be senior in
priority to all other Liens, subject to Permitted Liens;
(x) Debt of the type described in clause (j) of the definition of
"Debt" which is secured by a Permitted Lien, to the extent that such
Debt is Incurred in the ordinary course of business and is not the
subject of an enforcement, collection, execution, levy or foreclosure
proceeding and is not duplicative of Debt Incurred pursuant to Section
5.02(b)(xii);
59
(xi) Subordinated Debt of the Loan Parties outstanding at any
time in an aggregate principal amount not to exceed $30,000,000, on
terms and conditions no less favorable to the First Lien Lenders and
the Second Lien Lenders than under the Loan Documents, provided that
(A) the maturity of such Subordinated Debt is at least 91 days
following the final maturity date of the Second Lien Facility, (B) the
Administrative Agent (as defined in the Second Lien Credit Agreement)
and the Required Lenders under the Second Lien Credit Agreement are
reasonably satisfied that the Parent and its Subsidiaries shall be in
compliance with the provisions of the Second Lien Loan Documents for
the period from the Incurrence of such Subordinated Debt through the
final maturity date of the First Lien Facility, and (C) the Required
Lenders under the Second Lien Credit Agreement have approved the terms
of the subordination relating to such Subordinated Debt; and
(xii) Debt in respect of Ordinary Course Obligations in an
aggregate amount not to exceed $8,000,000 at any time outstanding.
Notwithstanding any other provision under this Section 5.02(b), (A)
the maximum amount of Debt that the Parent or a Subsidiary may Incur
pursuant to this Section 5.02(b) shall not be deemed to be exceeded with
respect to any outstanding Debt, solely as a result of fluctuations in the
exchange rates of currencies and (B) any Loan Party may Incur Debt owed to
any other Loan Party.
(c) CHANGE IN NATURE OF BUSINESS. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof; provided that the Parent or any of its
Subsidiaries may engage in activities that are ancillary or related to its
business.
(d) MERGERS, ETC. Merge into or consolidate with any Person or permit
any Person to merge into it, or permit any of its Subsidiaries to do so,
except that:
(i) any Subsidiary of the Borrower may merge into or consolidate
with the Borrower or any other Subsidiary of the Borrower, provided
that, in the case of any such merger or consolidation (x) of the
Borrower, the Borrower shall be the surviving Person and (y) in the
case of a merger among Subsidiaries of the Borrower, the Person formed
by such merger or consolidation shall be a Subsidiary of the Borrower;
and
(ii) in connection with any sale or other disposition permitted
under Section 5.02(e) (other than clause (ii) thereof), any Subsidiary
of the Borrower may permit any other Person to merge into or
consolidate with it;
provided that in each case, immediately after giving effect thereto,
no event shall occur and be continuing that constitutes a Default.
60
(e) SALES, ETC., of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, or grant any option or other right to purchase,
lease or otherwise acquire any assets, other than Inventory to be sold in
the ordinary course of its business, except:
(i) sales and leases of assets, including, without limitation,
fiber sales in the ordinary course of its business consistent with
prudent business practice for companies engaged in similar businesses
for cash and fair value;
(ii) in a transaction authorized by Section 5.02(d) (other than
clause (ii) thereof);
(iii) sales for cash and for fair value of assets related to the
e^deltacom and OSDA businesses;
(iv) sales of assets as consented to by the Required Lenders for
cash and for fair value;
(v) sales of obsolete equipment for cash and for fair value in an
aggregate amount not to exceed (A) $2,000,000 and (B) $10,000,000 to
the extent the proceeds thereof are used by any Loan Party to purchase
replacement equipment that is substantially similar in type and
function to the equipment sold;
(vi) any sale, lease, transfer or other disposition by the Parent
or any Subsidiary of the Parent to the Borrower and its Subsidiaries
that are Loan Parties; and
(vii) assignments, sales or other dispositions at fair market
value for cash of accounts receivable representing amounts owed to any
Loan Party by any Person that is subject to a proceeding under the
Bankruptcy Code;
provided that in the case of sales of assets pursuant to clauses (iii), (iv) and
(v)(x) above which (A) occur prior to the date on which all Obligations under
first, the First Lien Loan Documents or the Refinanced First Lien Loan Documents
have been paid in full, the Borrower shall, on the date of receipt by any Loan
Party or any of its Subsidiaries of the Net Cash Proceeds from such sale, prepay
the obligations under the First Lien Loan Documents or the Refinanced First Lien
Loan Documents pursuant to, and in the amount and order of priority set forth
therein, second, the Second Lien Loan Documents or the Refinanced Second Lien
Loan Documents have been paid in full, the Borrower shall, on the date of
receipt by any Loan Party or any of its Subsidiaries of the Net Cash Proceeds
from such sale, prepay the obligations under the Second Lien Loan Documents or
the Refinanced Second Lien Loan Documents pursuant to, and thereafter in the
amount and order of priority set forth thereinand to the extent all such
obligations have been satisfied, prepay the Advances pursuant to, and in the
amount and order of priority set forth in, Section 2.04(b)(ii), as specified
therein, and (B) occur after the date on
61
which all Obligations under the First Lien Loan Documents or the Refinanced
First Lien Loan Documents and the Second Lien Loan Documents or the Refinanced
Second Lien Loan Documents, have been paid in full, the Borrower shall, on the
date of receipt by any Loan Party or any of its Subsidiaries of the Net Cash
Proceeds from such sale, prepay the Advances pursuant to, and in the amount and
order of priority set forth in, Section 2.04(b)(ii), as specified therein.
Nothing in this Section 5.02(e) shall restrict the Parent from issuing, selling,
transferring or otherwise disposing of, for or without consideration and by
dividend or otherwise, any Equity Interests in the Parent, or any option,
warrant or other right to purchase or otherwise acquire any Equity Interests in
the Parent.
(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person, except:
(i) equity Investments by the Parent and its Subsidiaries in
their Subsidiaries outstanding on the date hereof and other
Investments in Loan Parties, including Persons who become Loan Parties
in a transaction permitted by Section 5.02(d);
(ii) loans and advances to employees in the ordinary course of
the business of the Parent and its Subsidiaries in an aggregate
principal amount not to exceed $1,000,000 at any time outstanding;
(iii) Investments in Cash Equivalents;
(iv) Investments existing on the date hereof and described on
Schedule 4.01(u) hereto;
(v) extension of trade credit in the ordinary course of business;
and
(vi) Investments permitted pursuant to Section 5.02(d).
(g) RESTRICTED PAYMENTS. Declare or pay, any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as
such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent
Persons thereof) as such (each, a "Restricted Payment") or permit any of
its Subsidiaries to make a Restricted Payment except (i) Restricted
Payments by a Subsidiary of the Borrower or BTI to the Borrower or BTI,
respectively, and to other Subsidiaries of the Borrower and BTI that are
its parent (ii) if no Event of Default has occurred and is continuing, the
Borrower may declare and pay dividends in cash or otherwise make
distributions in cash to the Parent, to pay (A) scheduled interest and
principal of Surviving Debt and (B) cash in lieu of issuing fractional
shares of its Capital Stock in an aggregate amount not to exceed $250,000,
(iii) the declaration or payment of dividends or distributions solely in
Equity Interests of the Parent (including Series A PIK Dividends and Series
B PIK Dividends) or (iv) the purchase, redemption,
62
retirement, defeasance or other acquisition for value of any of the Equity
Interests of the Parent (A) in exchange for other Equity Interests of the
Parent (including in connection with a Benefit Plan Exchange Offer), (B)
upon the conversion of Preferred Interests of the Parent or the exercise,
exchange or conversion of stock options, warrants or similar rights to
acquire Equity Interests of the Parent, (C) in connection with any
purchase, redemption, retirement, defeasance or other acquisition for value
of Equity Interests of the Parent tendered by the holder of such Equity
Interests in payment of withholding or other taxes relating to the
exercise, exchange or conversion of stock options, warrants or other
similar rights to acquire Equity Interests of the Parent or (D) tendered in
settlement of indemnification or similar claims by the Parent against a
holder of Equity Interests of the Parent.
(h) AMENDMENTS OF CONSTITUTIVE DOCUMENTS. Amend, or permit any of its
Subsidiaries to amend, its certificate of incorporation or bylaws or other
constitutive documents except for any amendment that could not reasonably
be expected to have a Material Adverse Effect.
(i) ACCOUNTING CHANGES. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required by generally accepted accounting
principles, or (ii) Fiscal Year.
(j) PREPAYMENTS, ETC., OF DEBT. (i) Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled amortization or maturity
thereof in any manner, or make any payment in violation of any
subordination terms of, any Debt or permit any of its Subsidiaries to do so
except (A) the payment or prepayment of any or all of the Obligations under
the First Lien Loan Documents or, Refinanced First Lien Loan Documents, the
Second Lien Loan Document or the Refinanced Second Lien Loan Documents in
accordance with the terms thereof, (B) subject to the Third Lien
Intercreditor and Subordination Agreement, the payment or prepayment of any
or all of the Obligations under the Loan Documents, (C) regularly scheduled
or required repayments or redemptions of Surviving Debt and (D) the
prepayment of Debt of any Loan Party by the Parent or any Subsidiary of the
Parent or (ii) amend, modify or change in any manner any term or condition
of any Surviving Debt or permit any of its Subsidiaries to do so, except
for any amendment, modification or change of Surviving Debt that (A) could
not reasonably be expected to have a Material Adverse Effect, (B) would not
accelerate the scheduled amortization or final maturity date of such
Surviving Debt (C) would not increase the applicable interest rate of such
Surviving Debt, or permit any of its Subsidiaries to do any of the
foregoing and (D) will not contain mandatory redemption prepayment covenant
or event of default provisions materially more restrictive than the terms
of such Surviving Debt prior to the date of such amendment, modification or
change; provided that, notwithstanding the foregoing, the Parent and its
Subsidiaries may consummate any Permitted Refinancing, Receivables
Financing, Replacement Financing or Existing Debt Refinancing (and
thereafter make any regularly scheduled or
63
required repayments or redemptions of Debt incurred in connection with any
such Permitted Refinancing, Receivables Financing, Replacement Financing or
Existing Debt Refinancing).
(k) NEGATIVE PLEDGE. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any
of its property or assets except (i) in favor of (A) the Lenders under this
Agreement, (B) the First Lien Lenders as provided and defined in the First
Lien Loan Documents or (C) the Second Lien Lenders under the Second Lien
Loan Documents or (ii) in connection with (A) any Surviving Debt (as such
restriction exists on the date hereof) or (B) any Capitalized Lease
permitted under Section 5.02(b)(ii) solely to the extent that such
Capitalized Lease prohibits a Lien on the property subject thereto.
(l) PARTNERSHIPS, ETC. Become a general partner in any general or
limited partnership or joint venture, or permit any of its Subsidiaries to
do so.
(m) SPECULATIVE TRANSACTIONS. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any similar speculative transactions.
(n) FORMATION OF SUBSIDIARIES. Organize, or permit any Subsidiary to
organize, any new Subsidiary except so long as (i) there exists no Default
or Event of Default both before and after giving effect to the creation of
any new wholly owned Subsidiary and the transfer of any assets to such
wholly owned Subsidiary, and (ii) the applicable Loan Party, owning any
portions of the stock of any such new wholly owned Subsidiary immediately
delivers all shares of stock of the new wholly owned Subsidiary to the
First Lien Collateral Agent or the Second Lien Collateral Agent, as
applicable, subject to the provisions of the Third Lien Intercreditor and
Subordination Agreement, for the benefit of the Lenders, the Lenders under
the First Lien Loan Documents and the Lenders under the Second Lien Loan
Documents, together with stock powers executed in blank and executes and
delivers to the Collateral Agent pledge agreements pledging all such stock
to secure the Obligations and the Obligations under the First Lien Loan
Documents and the Second Lien Loan Documents, in form substantially similar
to the applicable Loan Document.
(o) PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or arrangement
limiting the ability of any of its Subsidiaries to declare or pay dividends
or other distributions in respect of its Equity Interests or repay or
prepay any Debt owed to, make loans or advances to, or otherwise transfer
assets to or invest in, any Loan Party or any Subsidiary of a Loan Party
(whether through a covenant restricting dividends, loans, asset transfers
or investments, a financial covenant or otherwise), except (i) the Loan
Documents, (ii) the First Lien Loan Documents, (iii) the Second Lien Loan
64
Documents, and (iv) any agreement or instrument evidencing Surviving Debt
(as such restriction exists on the date hereof).
(p) AMENDMENT, ETC., OF MATERIAL CONTRACTS. Cancel or terminate
(except in accordance with the terms thereof) any Material Contract, or
consent to or accept any cancellation or termination thereof (except in
accordance with the terms thereof), amend or otherwise modify any such
Material Contract or give any consent, waiver or approval thereunder, waive
any default under or breach of any such Material Contract, agree in any
manner to any other amendment, modification or change of any term or
condition of any such Material Contract or take any other action in
connection with any such Material Contract that would impair the value of
the interest or rights of any Loan Party thereunder or that would impair
the interest or rights of any Agent or any Lender, or permit any of its
Subsidiaries to do any of the foregoing, except, in each of the foregoing
cases, where to do so would not be reasonably likely to have a Material
Adverse Effect.
(q) Intentionally omitted.
Section 5.03. REPORTING REQUIREMENTS. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
the Loan Parties shall furnish to the Agents and the Lenders:
(a) DEFAULT NOTICE. As soon as possible and in any event within two
days after the occurrence of each Default, Event of Default, or any event,
development or occurrence reasonably likely to have a Material Adverse
Effect continuing on the date of such statement, a statement of the Chief
Financial Officer of the Borrower setting forth details of such Default,
Event of Default, or any such event, development or occurrence and the
action that the Borrower has taken and proposes to take with respect
thereto.
(b) ANNUAL FINANCIALS. As soon as available and in any event within 90
days after the end of each Fiscal Year, a copy of an annual report on Form
10-K for such year for the Parent and its Subsidiaries, including therein a
Consolidated balance sheet of the Parent and its Subsidiaries as of the end
of such Fiscal Year and Consolidated statement of income and a Consolidated
statement of cash flows of the Parent and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion acceptable to the Required
Lenders of BDO Xxxxxxx, LLP or other independent public accountants of
recognized standing acceptable to the Required Lenders.
(c) QUARTERLY FINANCIALS. As soon as available and in any event within
45 days after the end of each of the first three quarters of each Fiscal
Year, (i) Consolidated balance sheet of the Parent and its Subsidiaries as
of the end of such quarter and Consolidated statement of income and a
Consolidated statement of cash flows of the Parent and its Subsidiaries for
the period commencing at the end
65
of the previous fiscal quarter and ending with the end of such fiscal
quarter and Consolidated statement of income and a Consolidated statement
of cash flows of the Parent and its Subsidiaries for the period commencing
at the end of the previous Fiscal Year and ending with the end of such
quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding date or period of the preceding Fiscal Year.
(d) MONTHLY FINANCIALS. As soon as available and in any
event within 30 days after the end of each month, (i) a Consolidated
balance sheet of the Parent and its Subsidiaries as of the end of such
month, a Consolidated statement of income and a Consolidated statement
of cash flows of the Parent and its Subsidiaries for the period
commencing at the end of the previous month and ending with the end of
such month, and a Consolidated statement of income and a Consolidated
statement of cash flows of the Parent and its Subsidiaries for the
period commencing at the end of the previous Fiscal Year and ending
with the end of such month, setting forth in each case in comparative
form the corresponding figures for the preceding month, all in
reasonable detail and duly certified by the Chief Financial Officer of
the Parent and (ii) a condensed receivables aging report, prepared in
accordance with the Borrower's customary practice from time to time,
for the Loan Parties for such month with respect to their major lines
of business and any significant specific accounts review necessary to
support bad debt allowances, certified by the Chief Financial Officer
of the Parent as fairly and accurately reporting the information
described therein.
(e) FORECASTS AND BUDGETS. As soon as available and in any event no
later than 45 days after the end of each Fiscal Year, the following
prepared by management of the Borrower, in form satisfactory to the
Administrative Agent (i) balance sheets, income statements and cash flow
statements on a monthly and annual basis for the current Fiscal Year; (ii)
balance sheets, income statements and cash flow statements on an annual
basis for each Fiscal Year thereafter until the Termination Date; and (iii)
a selling, general and administrative expense budget and a capital
expenditure budget for the Loan Parties for each Fiscal Year in form and
substance reasonably satisfactory to the Administrative Agent.
(f) LITIGATION. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of
its Subsidiaries of the type described in Section 4.01(f), and promptly
after the occurrence thereof, notice of any adverse change in the status or
the financial effect on any Loan Party or any of its Subsidiaries of the
Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) SECURITIES REPORTS. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any
Loan
66
Party or any of its Subsidiaries sends to its stockholders, and copies of
all regular, periodic and special reports, and all registration statements,
that any Loan Party or any of its Subsidiaries files with the SEC or any
governmental authority that may be substituted therefor, or with any
national securities exchange.
(h) CREDITOR REPORTS. Promptly after the furnishing thereof, copies of
any statement or report furnished to any holder of Debt securities of any
Loan Party or of any of its Subsidiaries pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lenders pursuant to any other clause of this Section
5.03.
(i) AGREEMENT NOTICES. Promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan Party or any of
its Subsidiaries under or pursuant to any Material Contract or material
instrument, indenture, loan or credit or similar agreement and, from time
to time upon request by the Administrative Agent, such information and
reports regarding the related documents, the Material Contracts and such
instruments, indentures and loan and credit and similar agreements as the
Administrative Agent or any Lender may reasonably request.
(j) REVENUE AGENT REPORTS. Within 10 days after receipt, copies of all
Revenue Agent Reports (Internal Revenue Service Form 886), or other written
proposals of the Internal Revenue Service, that propose, determine or
otherwise set forth positive adjustments to the Federal income tax
liability of the affiliated group (within the meaning of Section 1504(a)(1)
of the Internal Revenue Code) of which the Borrower is a member aggregating
$2,000,000 or more.
(k) TAX CERTIFICATES. (x) Promptly, and in any event within 15
Business Days after the due date (with extensions) for filing the final
Federal income tax return in respect of each taxable year, a certificate (a
"Tax Certificate"), signed by the President or the Chief Financial Officer
of the Borrower, stating that the Loan Parties have paid to the Internal
Revenue Service or other taxing authority, the full amount that the Loan
Parties are required to pay in respect of Federal income tax for such year
and that the Loan Parties have received any amounts payable to them, and
have not paid amounts in respect of taxes (Federal, state, local or
foreign) in excess of the amount they are required to pay, under the Tax
Agreement in respect of such taxable year, and (y) all correspondence
between any Loan Party and the Internal Revenue Service or other taxing
authority relating to any request for, grant of and compliance with any
extensions granted with respect to the filing of any income tax returns.
(l) ERISA. (i) ERISA EVENTS AND ERISA REPORTS. (A) Promptly and in any
event within 10 days after any Loan Party or any ERISA Affiliate knows or
has reason to know that any ERISA Event has occurred, a statement of the
Chief Financial Officer of the Borrower describing such ERISA Event and the
action, if any, that such Loan Party or such ERISA Affiliate has taken and
proposes to take with respect thereto and (B) on the date any records,
documents or other
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information must be furnished to the PBGC with respect to any Plan pursuant
to Section 4010 of ERISA, a copy of such records, documents and
information.
(ii) PLAN TERMINATIONS. Promptly and in any event within two
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer any
Plan.
(iii) PLAN ANNUAL REPORTS. Promptly and in any event within 30
days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each Plan.
(iv) MULTIEMPLOYER PLAN NOTICES. Promptly and in any event within
five Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (C) the amount of liability incurred, or that is reasonably
expected to be incurred, by such Loan Party or any ERISA Affiliate in
connection with any event described in clause (A) or (B).
(m) ENVIRONMENTAL CONDITIONS. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(n) REAL PROPERTY. (i) As soon as available and in any event within 30
days after the end of each Fiscal Year, a report supplementing Schedules
4.01(s) and 4.01(t) hereto, including an identification of all owned and
leased real property disposed of by any Loan Party or any of its
Subsidiaries during such Fiscal Year, a list and description (including the
street address, county or other relevant jurisdiction, state, record owner,
book value thereof and, in the case of leases of property, lessor, lessee,
expiration date and annual rental cost thereof) of all real property
acquired or leased during such Fiscal Year and a description of such other
changes in the information included in such Schedules as may be necessary
for such Schedules to be accurate and complete and (ii) promptly inform the
Administrative Agent of any investments in any of the real property listed
on Schedule 4.01(s) hereto proposed to be made by any Loan Party or Loan
Parties such that thereafter, the value thereof shall exceed $1,000,000
individually.
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(o) INSURANCE. As soon as available and in any event within 30 days
after the end of each Fiscal Year, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan
Party and its Subsidiaries and containing such additional information as
any Agent, or any Lender through the Administrative Agent, may reasonably
specify.
(p) NEW ACCOUNTS. Promptly after opening an account with a bank or
other financial institution not subject to an account control agreement,
notification thereof.
(q) OTHER INFORMATION. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries as any Agent, or any
Lender through the Administrative Agent, may from time to time reasonably
request.
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) (i) the Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) the Borrower shall fail
to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause
(ii) within three Business Days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to
have been incorrect in any material respect when made; or
(c) any Loan Party shall fail to perform or observe any term, covenant
or agreement contained in Xxxxxxx 0.00(x), 0.00, 0.00(x), (x), (x), (x),
(x) or (n), 5.02 or 5.03; provided that failure to comply with the covenant
set forth in Section 2.05(b) shall not constitute an Event of Default
unless and until such failure shall remain unremedied for three Business
Days; or
(d) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after the earlier of the date on which (i) a Responsible Officer becomes
aware of such failure or (ii) written notice thereof shall have been given
to the Borrower by any Agent or any Lender; or
69
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Debt that is outstanding in a principal amount (or, in the case of
any Hedge Agreement, an Agreement Value) of at least $2,000,000 either
individually or in the aggregate (but excluding Debt outstanding hereunder)
of such Loan Party 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); or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Debt, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to
mature; 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
(f) any Loan Party or any of its Subsidiaries 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
any Loan Party or any of its Subsidiaries 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, 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) that is being
diligently contested by it in good faith, 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 any substantial part of its
property) shall occur; or any Loan Party or any of its Subsidiaries shall
take any corporate action to authorize any of the actions set forth above
in this subsection (f); or
(g) any judgments or orders for the payment of money (individually or
in the aggregate) in excess of $5,000,000 shall be rendered against any
Loan Party or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgments
or orders or (ii) there shall be any period of 10 consecutive days during
which a stay of enforcement of any such judgments or orders, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could be reasonably likely to
have a Material Adverse Effect, and there shall be any period of 10
consecutive days
70
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
(i) any provision of any Loan Document after delivery thereof pursuant
to Section 3.01 or 5.01(j) shall for any reason cease to be valid and
binding on or enforceable against any Loan Party to it, or any such Loan
Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to Section
3.01 or 5.01(j) shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected third priority lien on and
security interest in the Collateral purported to be covered thereby
(subject to Liens securing the First Lien Facilities and Liens securing the
Second Lien Facility); or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or
the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) exceeds $2,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $2,000,000 or requires
payments exceeding $1,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $1,000,000; or
(o) an "Event of Default" (as defined in any Mortgage) shall have
occurred and be continuing;
(p) an "Event of Default" shall have occurred and be continuing under
the First Lien Credit Agreement or the Second Lien Credit Agreement;
71
then, and in any such event, the Administrative Agent shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Notes, 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 Borrower;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Bankruptcy Code, the Notes,
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 the Borrower.
ARTICLE VII
GUARANTY
Section 7.01. PARENT GUARANTY; LIMITATION OF LIABILITY. (a) The Parent
hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity or on any date of a required
prepayment or by acceleration, demand or otherwise, of all Obligations of each
other Loan Party now or hereafter existing under or in respect of the Loan
Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such obligations being the "Guaranteed
Obligations"), and agrees to pay any and all reasonable expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any other Secured Party in enforcing any rights under
this Agreement or any other Loan Document. Without limiting the generality of
the foregoing, the Parent's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
(b) The Parent, and by its acceptance of this Agreement, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Agreement and the Obligations of the
Parent hereunder not constitute a fraudulent transfer or conveyance for purposes
of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Parent Guaranty and the Obligations of the Parent
hereunder. To effectuate the foregoing intention, the Administrative Agent, the
other Lenders and the Parent hereby irrevocably agrees that the obligations of
the Parent under this Parent Guaranty at any time shall be limited to the
maximum amount as will result in the Obligations of the Parent under this
Agreement not constituting a fraudulent transfer or conveyance.
(c) The Parent hereby unconditionally and irrevocably agrees that in
the event any payment shall be required to be made to any Secured Party under
this Agreement or any
72
other guaranty, the Parent will contribute, to the maximum extent permitted by
law, such amounts to each other guarantor so as to maximize the aggregate amount
paid to the Secured Parties under or in respect of the Loan Documents.
Section 7.02. GUARANTY ABSOLUTE. The Parent guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender with respect thereto. The obligations of the Parent under or in respect
of this Agreement are independent of the Guaranteed Obligations or any other
obligations of any other Loan Party under or in respect of the Loan Documents,
and a separate action or actions may be brought and prosecuted against the
Parent to enforce this Agreement, irrespective of whether any action is brought
against the Borrower or any other Loan Party or whether the Borrower or any
other Loan Party is joined in any such action or actions. The liability of the
Parent under this Agreement shall be irrevocable, absolute and unconditional
irrespective of, and the Parent hereby irrevocably waives any defenses it may
now have or hereafter acquire in any way relating to, any or all of the
following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(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
obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to
any Loan Party or any of its Subsidiaries 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 manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any Loan Party under the
Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party
now or hereafter known to such Secured Parties (the Parent waiving any duty
on the part of the Secured Parties to disclose such information);
73
(g) the failure of any other Person to execute or deliver this
Agreement or any other guaranty or agreement or the release or reduction of
liability of the Parent or other guarantor or surety with respect to the
Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
any Secured Party that might otherwise constitute a defense available to,
or a discharge of, any Loan Party or any other guarantor or surety.
This Agreement 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 Secured Party
or any other Person upon the insolvency, bankruptcy or reorganization of the
Borrower or any other Loan Party or otherwise, all as though such payment had
not been made.
Section 7.03. WAIVERS AND ACKNOWLEDGMENTS. (a) The Parent hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Agreement and any requirement that
any Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any Collateral.
(b) The Parent hereby unconditionally and irrevocably waives any right
to revoke this Agreement and acknowledges that this Agreement is continuing in
nature and applies to all Guaranteed Obligations, whether existing now or in the
future.
(c) The Parent hereby unconditionally and irrevocably waives (i) any
defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of the Parent or other rights of the
Parent to proceed against any of the other Loan Parties, any other guarantor or
any other Person or any collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the Obligations of the Parent
hereunder. (d) The Parent hereby unconditionally and irrevocably waives any duty
on the part of any Secured Party to disclose to the Parent any matter, fact or
thing relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party or any of its
Subsidiaries now or hereafter known by such Secured Party.
(e) The Parent acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the waivers set forth in Section 7.02 and this Section 7.03
are knowingly made in contemplation of such benefits.
Section 7.04. SUBROGATION. The Parent hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower or any other Loan Party or any other inside
guarantor that arise from the existence,
74
payment, performance or enforcement of the Parent's Obligations under or in
respect of this Agreement or any other Loan Document, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of any
Secured Party against the Borrower, any other Loan Party 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 the Borrower, any other Loan Party
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 on account of
such claim, remedy or right, unless and until all of the Guaranteed Obligations
and all other amounts payable under this Agreement shall have been paid in full
in cash. If any amount shall be paid to the Parent in violation of the
immediately preceding sentence at any time prior to the latest of the payment in
full in cash of the Guaranteed Obligations and all other amounts payable under
this Agreement, and (b) the Termination Date, such amount shall be received and
held in trust for the benefit of the Secured Parties, shall be segregated from
other property and funds of the Parent and shall forthwith be paid or delivered
to the Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Agreement, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as collateral for any Guaranteed Obligations or other amounts payable under this
Agreement thereafter arising. If (i) the Parent shall make payment to any
Secured Party of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all other amounts payable under this Agreement shall
have been paid in full in cash, and (iii) the Termination Date shall have
occurred, the Secured Parties will, at the Parent 's request and expense,
execute and deliver to the Parent appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by
subrogation to the Parent of an interest in the Guaranteed Obligations resulting
from such payment made by the Parent pursuant to this Agreement.
Section 7.05. Intentionally omitted.
Section 7.06. SUBORDINATION. The Parent hereby subordinates any and
all debts, liabilities and other Obligations owed to Parent by each other Loan
Party (the "Subordinated Obligations") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 7.06:
(a) PROHIBITED PAYMENTS, ETC. Except during the continuance of a
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), the Parent may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
bankruptcy law relating to any other Loan Party), however, unless the Required
Lenders otherwise agree, the Parent shall not demand, accept or take any action
to collect any payment on account of the Subordinated Obligations.
(b) PRIOR PAYMENT OF GUARANTEED OBLIGATIONS. In any proceeding under
the Bankruptcy Code (or similar law) relating to any other Loan Party, the
Parent agrees that the Secured Parties shall be entitled to receive payment in
full in cash of all Guaranteed Obligations
75
(including Pose-Petition Interest) before the Parent receives payment of any
Subordinated Obligations.
(c) TURN-OVER. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), the Parent shall, if the
Administrative Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Secured Parties and
deliver such payments to the Administrative Agent on account of the Guaranteed
Obligations (including all Post-Petition Interest), together with any necessary
endorsements or other instruments of transfer, but without reducing or affecting
in any manner the liability of the Parent under the other provisions of this
Agreement.
(d) ADMINISTRATIVE AGENT AUTHORIZATION. After the occurrence and
during the continuance of any Default (including the commencement and
continuation of any proceeding under the Bankruptcy Code relating to any other
Loan Party), the Administrative Agent is authorized and empowered (but without
any obligation to so do), in its discretion, (i) in the name of the Parent, to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post-Petition Interest), and (ii) to require
the Parent (A) to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and (B) to pay any amounts received on such obligations
to the Administrative Agent for application to the Guaranteed Obligations
(including any and all Post-Petition Interest).
Section 7.07. CONTINUING GUARANTY; ASSIGNMENTS. This Agreement is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Agreement and (ii) the Termination Date, (b) be
binding upon the Parent, its successors and assigns and (c) inure to the benefit
of and be enforceable by the Secured Parties and their successors, transferees
and assigns. Without limiting the generality of clause (c) of the immediately
preceding sentence, subject to Section 9.07, any Secured Party may assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of its Commitments,
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 Secured Party herein or otherwise, in each case
as and to the extent provided in Section 9.07. The Parent shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Secured Parties.
Section 7.08. RELEASE OF THE PARENT. In the event that all of the
capital stock of the Parent is sold or otherwise disposed of (except to the
Borrower, BTI or any Subsidiary of the Borrower or BTI) or liquidated in
compliance with the requirements of this Agreement (or such sale or other
disposition or liquidation has been approved in writing by the Required Lenders)
and the proceeds of such sale, disposition or liquidation are applied in
accordance with the provisions of this Agreement, to the extent applicable, the
Parent shall be released from this Agreement and this Agreement shall, as to the
Parent, terminate, and have no further force or effect (it being understood and
agreed that the sale of one or more persons that own, directly or indirectly,
all of the capital stock or partnership interests of the Parent shall be deemed
to be a sale of the Parent for the purposes of this Section 7.08).
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ARTICLE VIII
THE AGENT
Section 8.01. AUTHORIZATION AND ACTION. Each Lender hereby appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement and the other Loan
Documents as are delegated to such Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes), no Agent shall 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 no Agent shall be required to take any action that
exposes such Agent to personal liability or that is contrary to this Agreement
or applicable law. Each Agent agrees to give to each Lender prompt notice of
each notice given to it by the Borrower pursuant to the terms of this Agreement.
Section 8.02. AGENTS' RELIANCE, ETC. Neither any Agent nor any of
their respective 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 the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, 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, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any Loan Party), 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; (c) 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 the Loan Documents; (d)
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 any Loan Document on
the part of any Loan Party or to inspect the property (including the books and
records) of any Loan Party; (e) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
Section 8.03. WCAS AND AFFILIATES. With respect to any Commitments,
any Advances made by it and any Notes issued to it, WCAS shall have the same
rights and powers under the Loan Documents as any other Lender and may exercise
the same as though it were not
77
an Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include WCAS in its individual capacity. WCAS 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, any Loan Party, any of its Subsidiaries and any Person that may do
business with or own securities of any Loan Party or any such Subsidiary, all as
if WCAS was not an 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 any 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 any 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. (a) Each Lender severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender's ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Agent
in any way relating to or arising out of the Loan Documents or any action taken
or omitted by such Agent under the Loan Documents; provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent's gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender agrees to reimburse each Agent promptly
upon demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section
9.04 (other than under Section 9.04(c)), to the extent that such Agent is not
promptly reimbursed for such costs and expenses by the Borrower.
(b) For purposes of this Section 8.05, the Lenders' respective ratable
shares of any amount shall be determined, at any time, according to the sum of
(i) the aggregate principal amount of the Advances outstanding at such time and
owing to the respective Lenders and (ii) the Commitments of the respective
Lenders at such time. The failure of any Lender to reimburse any Agent promptly
upon demand for its ratable share of any amount required to be paid by the
Lenders to such Agent as provided herein shall not relieve any other Lender of
its obligation hereunder to reimburse such Agent for its ratable share of such
amount, but no Lender shall be responsible for the failure of any other Lender
to reimburse such Agent for such other Lender's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 8.05 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Loan Documents.
Section 8.06. SUCCESSOR AGENTS. Any Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time
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with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States or of any State thereof and having a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent and, in the case of a successor Collateral
Agent, upon the execution and filing or recording of such financing statements,
or amendments thereto, and such amendments or supplements to the Mortgages, and
such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under the Loan Documents. If
within 45 days after written notice is given of the retiring Agent's resignation
or removal under this Section 8.06 no successor Agent shall have been appointed
and shall have accepted such appointment, then on such 45th day (i) the retiring
Agent's resignation or removal shall become effective, (ii) the retiring Agent
shall thereupon be discharged from its duties and obligations under the Loan
Documents and (iii) the Required Lenders shall thereafter perform all duties of
the retiring Agent under the Loan Documents until such time, if any, as the
Required Lenders appoint a successor Agent as provided above. After any retiring
Agent's resignation or removal hereunder as Agent shall have become effective,
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 Agent under this Agreement. It
is understood and agreed that no Competitor shall qualify or be appointed as a
successor Agent under this Section 8.06.
Section 8.07. APPOINTMENT OF SUBAGENTS. Anything herein to the
contrary notwithstanding, the Collateral Agent may from time to time, when the
Collateral Agent deems it to be necessary, appoint one or more subagents or
collateral co-agents (each, a "Subagent") with respect to all or any part of the
Collateral. In the event that the Collateral Agent so appoints any Subagent with
respect to any Collateral, (i) the Liens on such Collateral granted pursuant to
the applicable Collateral Documents shall be deemed for purposes of this
Agreement and the other Loan Documents to have been granted to such Subagent, in
addition to the Collateral Agent, for the benefit of the Secured Parties, (ii)
such Subagent shall be automatically vested, in addition to the Collateral
Agent, with all rights, powers, privileges, interests and remedies of the
Collateral Agent under the Loan Documents with respect to such Collateral, (iii)
the provisions of this Article VIII and of Section 9.04 that refer to each Agent
shall be deemed to be references to each Agent and/or each Subagent, as the
context may require, and (iv) the term "Collateral Agent", when used herein or
in any of the applicable Collateral Documents in relation to any rights, powers,
privileges, interests and remedies of the Collateral Agent with respect to such
Collateral shall include such Subagent; provided, however, that no such Subagent
shall be authorized to take any action with respect to any such Collateral
unless and except to the extent expressly authorized in writing by the
Collateral Agent.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) 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 (a) no amendment, waiver or
consent shall, unless in writing and signed by all of the Lenders (other than
any Lender that is, at such time, a Defaulting Lender), do any of the following
at any time: (i) waive any of the conditions specified in Section 3.01, (ii)
change the number of Lenders or the percentage of (x) the Commitments or (y) the
aggregate unpaid principal amount of the Advances that, in each case, shall be
required for the Lenders or any of them to take any action hereunder, (iii)
reduce or limit the obligations of the Parent under Section 7.01 or release the
Parent or otherwise limit the Parent 's liability with respect to the
Obligations owing to the Agents and the Lenders, (iv) release all or
substantially all of the Collateral in any transaction or series of related
transactions or permit the creation, incurrence, assumption or existence of any
Lien on all or substantially all of the Collateral in any transaction or series
of related transactions to secure any Obligations other than Obligations owing
to the Lenders under the Loan Documents, or (v) amend Section 2.10 or this
Section 9.01, and (b) no amendment, waiver or consent shall, unless in writing
and signed by the Required Lenders and each Lender (other than any Lender that
is, at such time, a Defaulting Lender) that has a Commitment under any of the
Facility if such Lender is directly affected by such amendment, waiver or
consent, (i) increase the Commitments of such Lender or subject such Lender to
any additional obligations, (ii) reduce the principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender or (iii) postpone any date fixed for any payment of principal of, or
interest on, the Notes held by such Lender or any fees or other amounts payable
hereunder to such Lender; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by an Agent in addition to the
Lenders required above to take such action, affect the rights or duties of such
Agent under this Agreement or the other Loan Documents.
Section 9.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the Borrower, at its address at 0000 XX Xxxxxxx Xxxxx, Xxxx Xxxxx, XX
00000, Attention: Chief Financial Officer; if to any Amendment Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto or as
otherwise specified in the Assignment and Acceptance pursuant to which it became
a Lender; if to the Agent, at its address at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, XX 00000, or, as to any party, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively, except that notices and communications to any Agent pursuant to
Article II, III or VIII shall not be effective until received by such Agent.
Manual delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to
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be executed and delivered hereunder shall be effective as delivery of an
original executed counterpart thereof.
Section 9.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender or any 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 Borrower agrees to pay on
demand (i) all costs and expenses of each Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses and (B) the reasonable and documented fees and expenses of counsel and
financial advisors for each Agent with respect thereto, with respect to advising
such Agent as to its rights and responsibilities, or the perfection, protection
or preservation of rights or interests, under the Loan Documents, with respect
to negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of each Agent and
each Lender in connection with the enforcement of the Loan Documents, including,
without limitation, the negotiation of this Agreement, whether in any action,
suit or litigation, or any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally (including, without limitation, the
reasonable and documented fees and expenses of counsel for the Administrative
Agent and each Lender with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless each Agent,
each Lender and each of their Affiliates and their respective 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 and documented 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) any claims by
third parties involving (i) the Facility, the actual or proposed use of the
proceeds of the Advances, the Loan Documents or any of the transactions
contemplated thereby, or (ii) the actual or alleged presence of Hazardous
Materials on any property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense results 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 Loan Party, its directors, shareholders or creditors or an Indemnified
Party or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated by the Loan Documents are consummated. Each of the
parties hereto also agrees not to assert any claim against any other party
hereto or any of their respective
81
Affiliates, or any of their respective officers, directors, employees, attorneys
and agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Facility, the
actual or proposed use of the proceeds of the Advances, the Loan Documents or
any of the transactions contemplated by the Loan Documents.
(c) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender, in
its sole discretion.
(d) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.07 and 2.09 and this Section
9.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
Section 9.05. RIGHT OF SET-OFF. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) 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 Agent and each Lender and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise 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 Agent, such Lender or such
Affiliate to or for the credit or the account of any Loan Party against any and
all of the Obligations of the Borrower now or hereafter existing under the Loan
Documents, irrespective of whether such Agent or such Lender shall have made any
demand under this Agreement or such Note or Notes and although such obligations
may be unmatured. Each Agent and each Lender agrees promptly to notify the
Borrower after any such set-off and application; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Agent and each Lender and their respective
Affiliates under this Section 9.05 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Agent, such
Lender and their respective Affiliates may have.
Section 9.06. BINDING EFFECT. This Agreement shall become effective
when it has been executed by the Borrower and each Agent, and the Administrative
Agent has been notified by the Required Lenders that each such Required Lender
has executed it, and thereafter this Agreement shall be binding upon and inure
to the benefit of the Borrower, each Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not 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
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of
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any Lender or an Approved Fund of any Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the aggregate amount of
the Commitments being assigned to such Eligible Assignee pursuant to such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 (or such
lesser amount as shall be approved by the Administrative Agent and, so long as
no Event of Default shall have occurred and be continuing at the time of
effectiveness of such assignment, the Borrower, such approval, in the case of
the Borrower, not to be unreasonably withheld), (ii) each such assignment shall
be to an Eligible Assignee, and (iii) 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
or Notes subject to such assignment. No processing and recordation fee shall be
due.
(b) Upon such execution, delivery, consent, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) 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 (ii) 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 (other than its rights under Sections 2.09,
2.10 and 9.04 to the extent any claim thereunder relates to an event arising
prior to such assignment) and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender assignor thereunder and each assignee thereunder confirm to and agree
with each other and the other parties thereto and 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 any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
(ii) such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto;
(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 any 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 each Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to such
Agent by the terms hereof and thereof, together with such powers and discretion
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance
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with their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to
in Section 9.02 a copy of each Assignment and Acceptance delivered to and
accepted by it.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together 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 B
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note to the order of such Eligible Assignee
in an amount equal to the Commitment assumed by it under each Facility pursuant
to such Assignment and Acceptance and, if any assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of such
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto.
(f) Each Lender may sell participations to one or more Persons (other
than any Loan Party or any of its Affiliates or a Competitor) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitments) 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 Borrower, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any departure by
any Loan Party 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, 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, or release all or
substantially all of the Collateral.
(g) 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 Loan Parties furnished to such Lender by or on
behalf of the Loan Parties; provided, however, 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
received by it from such Lender.
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(h) 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. 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. Manual delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
Section 9.09. CONFIDENTIALITY. Neither any Agent nor any Lender shall
disclose any Confidential Information to any Person without the consent of the
Borrower, other than (a) to such Agent's or such Lender's Affiliates and their
officers, directors, employees, agents and advisors and to actual or prospective
Eligible Assignees and participants, and then only on a confidential basis, (b)
as required by any law, rule or regulation or judicial process, (c) as requested
or required by any state, Federal or foreign authority or examiner regulating
such Lender, (d) to any rating agency when required by it, provided that, prior
to any such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Loan Parties
received by it from such Lender and (e) to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty's professional
advisor, provided, that prior to such disclosure, such contractual counterparty
or professional advisor to such contractual counterparty shall undertake to
preserve the confidentiality of any Confidential Information relating to the
Loan Parties received by it from such Agent or Lender.
Section 9.10. RELEASE OF COLLATERAL. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrower's
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Documents
in accordance with the terms of the Loan Documents.
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 County, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in 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
85
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 any of the other Loan Documents in the
courts of any jurisdiction. Notwithstanding the foregoing, no party that is a
sovereign entity shall be deemed to have waived any immunity against
pre-judgment attachment of any of its assets or properties.
(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 any of the other Loan
Documents to which it is a party in any New York State or Federal court. 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.
Section 9.12. 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 9.13. WAIVER OF JURY TRIAL. Each of the Loan Parties, the
Borrower, the Agents and the Lenders 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 any of the Loan Documents, the
Advances or the actions of any Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
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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.
PARENT: ITC^DELTACOM, INC.
By: ____________________________________
Name: Xxxxxxx X. Xxxx
Title: Chief Administrative Officer
BORROWER: INTERSTATE FIBERNET, INC.
By: ____________________________________
Name: Xxxxxxx X. Xxxx
Title: Chief Administrative Officer
SUBSIDIARIES: ITC^DELTACOM COMMUNICATIONS, INC
By: ____________________________________
Name: Xxxxxxx X. Xxxx
Title: Chief Administrative Officer
DELTACOM INFORMATION SYSTEMS, INC.
By: ____________________________________
Name: Xxxxxxx X. Xxxx
Title: Chief Administrative Officer
BUSINESS TELECOM, INC.
By: ____________________________________
Name: Xxxxxxx X. Xxxx
Title: Chief Administrative Officer
BTI TELECOM CORP.
By: ____________________________________
Name: Xxxxxxx X. Xxxx
Title: Chief Administrative Officer
BUSINESS TELECOM OF VIRGINIA, INC.
By: ____________________________________
Name: Xxxxxxx X. Xxxx
Title: Chief Administrative Officer
ADMINISTRATIVE AGENT
AND COLLATERAL AGENT:
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P.
By: ____________________________________
Name: Xxxxxxxx X. Rather
Title: Managing Member
LENDERS:
WCAS CAPITAL PARTNERS III, L.P.
By: WCAS CP III Associates LLC,
General Partner
By: ____________________________________
Name: Xxxxxxxx X. Rather
Title: Managing Member
Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P.
By: WCAS VIII Associates LLC,
General Partner
By: ____________________________________
Name: Xxxxxxxx X. Rather
Title: Managing Member
Certain individual investors and trusts
By: _______________________________________
Xxxxxxxx X. Rather, as Attorney-in-fact
for the individual investors listed
below:
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. XxXxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. de Xxxxxx
X. Xxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxx XxxXxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxx X. Xxx
XXX f/b/o Xxxxxxxx X. Rather
Other trusts:
Xxxx X. Xxxxxxxx TTEE of The Xxxxx X.
Xxxxxxxx 2004 Trust
The Xxxxx X. Xxxxxxxx 2004 Irrevocable Trust
By: _______________________________________
Name:_______________________________________
Title:______________________________________
Xxxxx Xxxxx TTEE of the Xxxxxxx Xxxxx
2004 Irrevocable Trust
By: _______________________________________
Name:_______________________________________
Title:______________________________________
SCHEDULE I
LENDING OFFICES
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Amount of
Advances on
Name of Lender Lending Office Wiring Instructions Closing Date
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