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Exhibit 10.12
LOAN AGREEMENT
dated as of
May 2, 2000
among
FORMUS COMMUNICATIONS, INC., as Borrower
THE GUARANTORS party hereto
THE LENDERS party hereto
and
DLJ BRIDGE FINANCE, INC.,
as Agent
DLJ BRIDGE FINANCE, INC. and
XXXXXXX XXXXX XXXXXX INC.,
as Joint Lead Advisors and Arrangers
and Book Running Managers
CREDIT SUISSE FIRST BOSTON,
as Co-Arranger and Co-Manager
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS................................................................... 1
1.1 Certain Defined Terms......................................................... 1
1.2 Accounting Terms.............................................................. 33
1.3 Other Definitional Provisions; Anniversaries.................................. 33
SECTION 2. AMOUNT AND TERMS OF COMMITMENT AND LOANS; NOTES............................... 33
2.1 Loans and Note................................................................ 33
2.2 Interest on the Loans......................................................... 34
2.3 Fees.......................................................................... 34
2.4 Prepayments and Payments...................................................... 37
2.5 Use of Proceeds............................................................... 40
SECTION 3. CONDITIONS.................................................................... 41
3.1 Conditions to Loans........................................................... 41
SECTION 4. REPRESENTATIONS AND WARRANTIES................................................ 48
4.1 Organization and Good Standing................................................ 48
4.2 Authorization and Power....................................................... 48
4.3 No Conflicts or Consents...................................................... 48
4.4 Enforceable Obligations....................................................... 49
4.5 Properties; Liens............................................................. 49
4.6 Financial Condition........................................................... 49
4.7 Full Disclosure............................................................... 48
4.8 No Default.................................................................... 48
4.9 Compliance with Contracts, Etc................................................ 48
4.10 No Litigation................................................................. 49
4.11 Use of Proceeds; Margin Stock, Etc............................................ 49
4.12 Taxes......................................................................... 49
4.13 ERISA......................................................................... 49
4.14 Government Regulation......................................................... 50
4.15 Capital Structure and Subsidiaries............................................ 50
4.16 Intellectual Property......................................................... 51
4.17 Environmental Matters......................................................... 51
4.18 Permits....................................................................... 58
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4.19 Insurance..................................................................... 59
4.20 Labor Matters................................................................. 59
4.21 Guarantees.................................................................... 59
4.22 Broker's or Finder's Fees..................................................... 60
4.23 Operation of Business......................................................... 60
SECTION 4A. REPRESENTATIONS AND WARRANTIES OF THE LENDERS
4A.1 Accredited Investor........................................................... 61
4A.2 Knowledge and Experience...................................................... 61
4A.3 Source of Funds............................................................... 61
SECTION 5. AFFIRMATIVE COVENANTS......................................................... 62
5.1 Financial Statements and Other Reports........................................ 62
5.2 Corporate Existence, Etc...................................................... 65
5.3 Payment of Taxes and Claims; Tax Consolidation................................ 65
5.4 Maintenance of Properties; Insurance.......................................... 66
5.5 Inspection.................................................................... 66
5.6 Equal Security for Loans and Notes............................................ 66
5.7 Compliance with Laws, Etc..................................................... 67
5.8 Maintenance of Accurate Records, Etc.......................................... 67
5.9 Permits....................................................................... 67
5.10 Permanent Financing........................................................... 67
5.11 ERISA Compliance.............................................................. 68
5.12 Additional Guarantors ....................................................... 69
5.13 Execution of Collateral Documents After the Closing Date. .................... 69
5.14 Abrared S.A. ................................................................. 69
5.15 Delivery of Local Counsel Opinions After the Closing Date. ................... 69
SECTION 6. NEGATIVE COVENANTS............................................................ 70
6.1 Indebtedness.................................................................. 70
6.2 Liens......................................................................... 73
6.3 Restricted Payments........................................................... 74
6.4 Restriction on Fundamental Changes............................................ 75
6.5 Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.. 76
6.6 Transactions with Shareholders and Affiliates................................. 76
6.7 Business Activities........................................................... 78
6.8 Amendments to Charter Documents............................................... 78
6.9 Asset Sales................................................................... 78
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SECTION 7. EVENTS OF DEFAULT............................................................. 79
7.1 Failure To Make Payments When Due............................................. 79
7.2 Default in Other Agreements................................................... 72
7.3 Breach of Certain Covenants................................................... 79
7.4 Breach of Warranty............................................................ 80
7.5 Other Defaults Under This Agreement or Loan Documents......................... 80
7.6 Involuntary Bankruptcy; Appointment of Custodian, Etc......................... 80
7.7 Voluntary Bankruptcy; Appointment of Custodian, Etc........................... 81
7.8 Judgments and Attachments..................................................... 81
7.9 Dissolution................................................................... 81
7.10 Guarantee..................................................................... 81
7.11 Default Under Engagement Letter or in Payment of Fees......................... 82
7.12 Material Contracts and Permits................................................ 82
7.13 Liens......................................................................... 82
7.14 ERISA Event................................................................... 82
7.15 Change of Control............................................................. 82
SECTION 8. THE AGENT..................................................................... 84
8.1 Appointment................................................................... 84
8.2 Delegation of Duties.......................................................... 85
8.3 Exculpatory Provisions........................................................ 85
8.4 Reliance by Agent............................................................. 85
8.5 Notice of Default............................................................. 86
8.7 Indemnification............................................................... 86
8.8 Agent in Its Individual Capacity.............................................. 87
8.9 Resignation of the Agent; Successor Agent..................................... 87
SECTION 9. GUARANTEE..................................................................... 88
9.1 Unconditional Guarantee....................................................... 88
9.2 Severability.................................................................. 89
9.3 Release of a Guarantor........................................................ 89
9.4 Limitation of Guarantor's Liability........................................... 90
9.5 Contribution.................................................................. 90
9.6 Waiver of Subrogation......................................................... 90
9.7 Waiver of Stay, Extension or Usury Laws....................................... 91
SECTION 10. MISCELLANEOUS................................................................. 91
10.1 Representation of the Lenders................................................. 91
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10.2 Participations in and Assignments of Loans and Note........................... 91
10.3 Expenses...................................................................... 94
10.4 Indemnity..................................................................... 94
10.5 Setoff........................................................................ 95
10.6 Amendments and Waivers........................................................ 96
10.7 Independence of Covenants..................................................... 97
10.8 Entirety...................................................................... 97
10.9 Notices....................................................................... 97
10.10 Survival of Warranties and Certain Agreements................................. 97
10.11 Failure or Indulgence Not Waiver; Remedies Cumulative......................... 98
10.12 Severability.................................................................. 98
10.13 Headings...................................................................... 98
10.14 Applicable Law................................................................ 98
10.15 Successors and Assigns; Subsequent Holders of Notes........................... 98
10.16 Counterparts; Effectiveness................................................... 99
10.17 Consent to Jurisdiction; Venue; Waiver of Jury Trial.......................... 99
10.18 Payments Pro Rata............................................................. 101
10.19 Taxes......................................................................... 102
10.20 Waiver of Stay, Extension or Usury Laws....................................... 103
10.21 Requirements of Law........................................................... 103
10.22 Confidentiality............................................................... 104
10.23 Register...................................................................... 104
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SCHEDULES:
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Schedule A Subsidiaries
Schedule B Existing Indebtedness
Schedule C Environmental Matters
Schedule D Existing Liens
Schedule E Litigation
Schedule F ERISA
Schedule G Existing Investments
Schedule H Intellectual Property
Schedule I Permits
Schedule J Broker's Fees
Schedule K Financial Matters
Schedule L Taxes
Schedule M Dividends
EXHIBITS:
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Exhibit I Form of Note
Exhibit II Form of Pledge Agreement
Exhibit III Form of Compliance Certificate
Exhibit IV Form of Notice of Borrowing
Exhibit V Form of Opinion of Holme Xxxxxxx & Xxxx LLP - Counsel for the
Company and the Guarantors
Exhibit VI Form of Opinion of Local Counsel for the Company and the
Guarantors
Exhibit VII Form of Joinder to Guarantee
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THIS LOAN AGREEMENT (this "Agreement") is dated as of May 2,
2000, and entered into by and among FORMUS COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), the Guarantors named on the signature pages hereto
and any Persons that become Guarantors in accordance with Section 5.12 (the
"Guarantors"), the Lenders named on the signature pages hereto and any Persons
that become Lenders in accordance with Section 10.2(a) (the "Lenders"), and DLJ
BRIDGE FINANCE, INC. ("DLJ Bridge"), as agent for the Lenders (together with its
successors in such capacity, the "Agent").
RECITALS
WHEREAS, the Company desires that the Lenders extend a senior
secured credit facility to the Company on the terms and conditions contained
herein;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereby agree
as follows:
SECTION 1. DEFINITIONS
1.1 Certain Defined Terms. The following terms used in this
Agreement shall have the following meanings:
"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries (i) existing at the time such Person becomes a Subsidiary of
the Company or (ii) assumed in connection with the acquisition of assets from
such Person and in each case not incurred by such Person in connection with, or
in anticipation or contemplation of, such Person becoming a Subsidiary of the
Company or such acquisition.
"Additional Loans" has the meaning ascribed to such term in
Section 2.2(a)(ii).
"Adjusted Net Assets" has the meaning provided in Section 9.5.
"Affiliate" means, with respect to any Person, any other
Person that, directly or indirectly, controls, is controlled by or is under
common control with,
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such Person. For purposes of this definition, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have correlative meanings.
"Affiliate Transaction" has the meaning ascribed to such term
in Section 6.6.
"Agent" has the meaning ascribed to such term in the
introduction to this Agreement.
"Agent's Office" shall mean the office of the Agent set forth
below its signature hereto and, upon the appointment of a successor Agent
pursuant to Section 8.9 such address as shall be provided by such successor
Agent, or in either case such office as the Agent from time to time may
designate.
"Agreement" means this Loan Agreement dated as of May 2, 2000,
as it may be amended, supplemented, restated or otherwise modified from time to
time in accordance with the terms hereof.
"Amount of Unfunded Benefit Liabilities" means, with respect
to any Pension Plan, (a) if set forth on the most recent actuarial valuation
report with respect to such Pension Plan, the amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA) and (b) otherwise, the
excess of (i) the greater of the current liability (as defined in Section
412(l)(7) of the Internal Revenue Code) or the actuarial present value of the
accrued benefits with respect to such Pension Plan over (ii) the market value of
the assets of such Pension Plan.
"Applicable Rate" means, for each Interest Period, (a) the
greater of: (i) the LIBOR Rate in effect on the Interest Rate Determination Date
for such Interest Period, plus 675 basis points; (ii) the U.S. Treasury Rate in
effect on the Interest Rate Determination Date for such Interest Period, plus
677 basis points; (iii) the DLJ High Yield Index Rate in effect on the Interest
Rate Determination Date for such Interest Period, plus 91 basis points; or (iv)
in the case of each Interest Period commencing subsequent to the expiration of
the Initial Interest Period, the Applicable Rate for the immediately prior
Interest Period; plus (b) in the case of the second Interest Period and each
Interest Period thereafter, an amount equal to the product of 50 basis points
times the number of Interest Periods elapsed since the expiration of the Initial
Interest Period.
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"Arrangers" means, collectively, the Co-Arranger and the
Bridge Arrangers.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Subsidiaries (including any Sale and Leaseback Transaction
and any merger or consolidation) to any Person other than the Company or a
Wholly Owned Subsidiary of (a) any Capital Stock of any Subsidiary; or (b) any
other property or assets of the Company or any Subsidiary other than in the
ordinary course of business; provided, however, that Asset Sales shall not
include (i) dispositions of used, surplus or worn out equipment in the ordinary
course of business, (ii) a transaction or series of related transactions for
which the Company or its Subsidiaries receive aggregate consideration of less
than $500,000 (or the equivalent amount in any other currency), or (iii) a
disposition consisting of a Restricted Payment permitted under Section 6.3
hereof.
"Auditors" means either (a) a "Big 5" accounting firm or (b)
an internationally recognized firm of independent public accountants selected by
the Company and reasonably satisfactory to the Required Lenders.
"Bankruptcy Law" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute
or any other United States federal, state or local law or the Law of any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors, whether in effect on the date hereof or
hereafter.
"Bankruptcy Order" means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation, winding
up, dissolution or reorganization, or appointing a custodian of a debtor or of
all or any substantial part of a debtor's property, or providing for the
staying, arrangement, adjustment or composition of indebtedness or other relief
of a debtor.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee of that Board.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have
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been duly adopted by the Board of Directors of such Person and to be in full
force and effect on the date of such certification, and delivered to the Agent.
"Bridge Arrangers" means DLJ Bridge and SSB.
"Business Day" means (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of New York or is a day on which banking
institutions therein located are authorized or required by law or other
governmental action to close, and (ii) with respect to all notices and
determinations in connection with the LIBOR Rate, any day that is a Business Day
described in clause (i) above and that is also a day on which dealings in Dollar
deposits are carried on in the London interbank market.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and including any
warrants, options or rights to acquire any of the foregoing and instruments
convertible into any of the foregoing, and (ii) with respect to any Person that
is not a corporation, any and all partnership or other equity interests of such
Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation ("S&P") or Xxxxx'x
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than 180 days from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's;
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(iv) certificates of deposit or bankers' acceptances maturing within 180 days
from the date of acquisition thereof issued by any bank organized under the laws
of the United States of America or any state thereof or the District of Columbia
or any foreign bank having at the date of acquisition thereof combined capital
and surplus of not less than $250,000,000; (v) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; (vi) investments in money market
funds which invest substantially all their assets in securities of the types
described in clauses (i) through (v) above; and (vii) in the case of any Foreign
Subsidiary, investments of the type and maturity described in clauses (i)
through (vi) above of foreign obligors, which investments or obligors (or the
direct or indirect parents of such obligors) have ratings described in such
clauses or equivalent ratings from comparable foreign rating agencies.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "Group") or to any Affiliates thereof
(whether or not otherwise in compliance with the provisions of this Agreement);
(ii) the approval by the holders of Capital Stock of the Company of any plan or
proposal for the liquidation or dissolution of the Company (whether or not
otherwise in compliance with the provisions of this Agreement); (iii) any Person
or Group (other than the Permitted Holder(s)) shall become the owner, directly
or indirectly, beneficially or of record, of shares representing more than 35%
of the aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Company; (iv) the replacement of a majority of the
directors on the Board of Directors of the Company over a two-year period from
the directors who constituted the Board of Directors of the Company at the
beginning of such period, and such replacement shall not have been approved by a
vote of at least a majority of the Board of Directors of the Company then still
in office who either were members of such Board of Directors at the beginning of
such period or whose election as a member of such Board of Directors was
previously so approved; (v) the Company shall cease to own 100% of the Capital
Stock of FII; or (vi) the Permitted Holders shall cease to beneficially own at
least 35% (on a fully diluted basis) of all outstanding Capital Stock having
ordinary voting power in the election of directors of the Company.
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"Closing Date" means the date on or before June 30, 2000 on
which the Loans are made and the conditions set forth in Section 3.1 are
satisfied or waived in accordance with Section 10.6.
"Co-Arranger" means Credit Suisse First Boston.
"Commission" means the Securities and Exchange Commission or
any successor thereof.
"Commitment" means the commitment of the Lenders to make the
Loans as set forth in Section 2.1(a).
"Commitment Letter" means the letter agreement dated April 3,
2000 among the Company and the Lenders pursuant to which the Lenders committed
to provide the Loans to the Company, subject to the terms and conditions
thereof.
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of, such Person's common stock, whether
outstanding on the Closing Date or issued after the Closing Date, and includes,
without limitation, all series and classes of such common stock.
"Company" has the meaning ascribed to such term in the
introduction to this Agreement.
"Compliance Certificate" means a certificate substantially in
the form of Exhibit III annexed hereto delivered to the Agent by the Company
pursuant to Section 5.1.
"Contested Claim" means any Tax, Indebtedness or other claim
or liability (i) the validity or amount of which is being contested in good
faith by appropriate proceedings, timely instituted and diligently pursued, (ii)
for which adequate reserve, or other appropriate provision, if any, as required
in conformity with GAAP shall have been made, and (iii) with respect to which
(x) no Lien has been imposed by any Tax authority and (y) any right to execute
upon or sell any assets of the Company or of any of its Subsidiaries has not
matured or has been and continues to be effectively enjoined, superseded or
stayed.
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"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Contractual Obligation" as applied to any Person, means any
provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Controlled Group" means (i) a controlled group of
corporations as defined in Section 1563(a) of the Internal Revenue Code or (ii)
a group of trades or businesses under common control, as defined in Section
414(c) of the Internal Revenue Code, of which the Company or any of its
Subsidiaries is a part or becomes a part.
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"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Subsidiary of the Company against fluctuations in
currency values.
"Custodian" means any receiver, interim receiver, receiver and
manager, trustee, assignee, liquidator, sequestrator or similar official charged
with maintaining possession or control over property for one or more creditors,
whether under any Bankruptcy Law or otherwise.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an Event
of Default.
"Demand Take-Out Securities" means the "Take-Out Securities"
(as defined in the Engagement Letter) of the Company issued pursuant to a
"Take-Out Securities Notice" (as defined in the Engagement Letter), the proceeds
of which shall be used to repay the Loans in whole or in part.
"Disqualified Capital Stock" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof on or prior to the first anniversary of the Maturity Date.
"DLJ Bridge" is defined in the preamble.
"DLJ High Yield Index Rate" means the rate for high yield
securities published weekly by DLJSC or one of its Affiliates.
"DLJSC" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, a Delaware corporation, and its successors.
"Dollars" or the sign "$" means the lawful money of the United
States of America.
"Eligible Assignee" means (A) (i) a commercial bank organized
under the laws of the United States of America or any state thereof having a
combined capital and surplus of not less than $250,000,000; (ii) a savings and
loan association
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or savings bank organized under the laws of the United States or any state
thereof having a combined capital and surplus of not less than $250,000,000;
(iii) a commercial bank organized under the laws of any other country or a
political subdivision thereof having a combined capital and surplus of not less
than $250,000,000; provided that (x) such bank is acting through a branch or
agency located in the United States or (y) such bank is organized under the laws
of a country that is a member of the Organization for Economic Cooperation and
Development or a political subdivision of such country; and (iv) any other
entity which is an "accredited investor" (as defined in Regulation D under the
Securities Act of 1933) which extends credit or buys loans as one of its
businesses including, but not limited to, insurance companies, mutual funds and
lease financing companies, in each case that is reasonably acceptable to the
Agent; provided, further, that with respect to this clause (iv) only, no direct
or indirect competitor of the Company or any of its Subsidiaries shall be an
Eligible Assignee; and (B) any Lender and any Affiliate of any Lender.
"Engagement Letter" means the letter agreement dated April 3,
2000 among the Company, DLJSC, Xxxxxxx Xxxxx Barney Inc. and Credit Suisse First
Boston Corporation.
"Employee Benefit Plan" means any "employee benefit plan" as
defined in Section 3(3) of ERISA (i) which is, or, at any time within the five
calendar years immediately preceding the date hereof, was at any time,
maintained or contributed to by any of the Company or its Subsidiaries or any of
their respective ERISA Affiliates or (ii) with respect to which the Company or
any of its Subsidiaries retains any liability, including any potential joint and
several liability as a result of an affiliation with an ERISA Affiliate or a
party that would be an ERISA Affiliate except for the fact the affiliation
ceased more than five calendar years prior to the date hereof.
"Environmental Claim" means any notice, claim, demand, order,
direction (conditional or otherwise) or other communication by any governmental
authority or any Person alleging liability for any response or corrective
action, any damage, including, without limitation, personal injury (including
sickness, disease or death), tangible or intangible property damage,
contribution, indemnity, indirect or consequential damages, damage to the
environment, nuisance, pollution, contamination or other adverse effects on the
environment, or for fines or penalties, in each case arising under any
Environmental Law, including without limitation, relating to, resulting from or
in connection with Hazardous Materials and relating to the Com-
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pany, any of its Subsidiaries or any of their respective properties or
predecessors in interest, or Facilities.
"Environmental Laws" means federal, state, local and foreign
laws, ordinances, orders, rules, regulations, judgments, writs, decrees or
injunctions relating to pollution or protection of human health, safety or the
environment including, without limitation, ambient air, indoor air, soil,
surface water, groundwater, wetlands and other natural resources, land or
subsurface strata, including, without limitation, those relating to the Release
or threatened Release of Hazardous Materials or otherwise relating to the
generation, manufacture, use, storage, transport, treatment, distribution, or
disposal of Hazardous Materials, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
Section 9601 et seq.) ("CERCLA"), the Hazardous Materials Transportation Act (49
U.S.C. Section 1801 et seq.), the Resource Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the
Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Section 136 et seq.), the
Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section 11001 et
seq.), each as amended or supplemented and each as in effect as of the date of
determination.
"Equipment Financing Obligations" means any Indebtedness of a
Subsidiary of FII (including any Capitalized Lease Obligations) borrowed from
commercial banks, equipment vendors or equipment suppliers for the principal
purpose of financing equipment purchases (including, without limitation, related
software and services, system design and construction) to be used in the
business of such Subsidiary of FII; provided that such Indebtedness is Incurred
within 180 days of such purchase, the principal amount of such Indebtedness does
not exceed 150% of the cost of the equipment, software and services, system
design and construction purchased, and such Indebtedness is secured by a Lien.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate", as applied to any Person, means (i) any
corporation which is, or was at any time within the five calendar years
immediately preceding the date hereof, a member of a controlled group of
corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is, or
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was at any time within the five calendar years immediately preceding the date
hereof, a member; (ii) any trade or business (whether or not incorporated) which
is, or was at any time within the five calendar years immediately preceding the
date hereof, a member of a group of trades or businesses under common control
within the meaning of Section 414(c) of the Internal Revenue Code of which that
Person is, or was at any time within the five calendar years immediately
preceding the date hereof, a member; and (iii) any member of an affiliated
service group within the meaning of Section 414(m) or (o) of the Internal
Revenue Code of which that Person, any corporation described in clause (i) above
or any trade or business described in clause (ii) above is, or was at any time
within the five calendar years immediately preceding the date hereof, a member.
"ERISA Event" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision for 30-day
notice to the PBGC has been waived by regulation); (ii) the failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section
412(d) of the Internal Revenue Code) or the failure to make by its due date a
required installment under Section 412(m) of the Internal Revenue Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (iii) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate
such plan in a distress termination described in Section 4041(c) of ERISA; (iv)
the withdrawal by any of the Company or its Subsidiaries or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability
pursuant to Sections 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or
condition which might reasonably be expected to constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on any of the Company or its
Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of
ERISA; (vii) the withdrawal by any of the Company or its Subsidiaries or any of
their respective ERISA Affiliates in a complete or partial withdrawal (within
the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if
there is any potential liability therefor, or the receipt by any of the Company
or its Subsidiaries or any of their respective ERISA Affiliates of notice from
any Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to
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terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
occurrence of an act or omission which could reasonably be expected to give rise
to the imposition on any of the Company or its Subsidiaries or any of their
respective ERISA Affiliates of fines, penalties, taxes or related charges under
Chapter 43 of the Internal Revenue Code or under Section 409 or 502(c), (i) or
(l) or 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion
of a material claim (other than routine claims for benefits) against any
Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or
against any of the Company or its Subsidiaries or any of their respective ERISA
Affiliates in connection with any such Employee Benefit Plan; (x) receipt from
the Internal Revenue Service of notice of the failure of any Pension Plan (or
any other Employee Benefit Plan intended to be qualified under Section 401(a) of
the Internal Revenue Code) to qualify under Section 401(a) of the Internal
Revenue Code, or the failure of any trust forming part of any Pension Plan to
qualify for exemption from taxation under Section 501(a) of the Internal Revenue
Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n)
of the Internal Revenue Code or pursuant to ERISA with respect to any Pension
Plan.
"euros" or "i" means the single currency of participating
member states of the European Union.
"Event of Default" means any of the events set forth in
Section 7.
"Excess" has the meaning ascribed to such term in Section
2.1(f).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute or statutes thereto.
"Facilities" means any and all real property (including,
without limitation, all buildings, fixtures or other improvements located
thereon) now, hereafter or heretofore owned, leased, operated or used by the
Company, its Subsidiaries or any of their respective predecessors in interest.
"fair market value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair market value shall be determined by the Board of Directors of
the Company acting reasonably and in good
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19
faith and shall be evidenced by a Board Resolution of the Board of Directors of
the Company delivered to the Agent.
"FCC" means the United States Federal Communications
Commission.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not published for any day
which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal Funds brokers of
recognized standing selected by the Agent.
"Fee Letter" means the letter agreement dated April 3, 2000
among the Company and the Arrangers pursuant to which the Company committed to
pay the Arrangers certain fees.
"FII" means Formus International, Inc. and its successors.
"Financial Statements" means the consolidated and
consolidating balance sheets, statements of operations, statements of cash flows
and statements of changes in shareholder's equity of the Company and its
Subsidiaries for the period specified, prepared in accordance with GAAP and
consistent with prior periods.
"Fiscal Year" means the fiscal year of the Company and each
Guarantor for accounting and tax purposes, which for all years after the Closing
Date shall end on December 31.
"Foreign Plans" mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by the Company or any one or
more of its Subsidiaries primarily for the benefit of employees of the Company
or such Subsidiaries residing outside the United States of America, which plan,
fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA, or any such
plan as to which the Company or any of its Subsidiaries may have any liability.
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"Foreign Subsidiary" means any Subsidiary of the Company which (i)
is not organized under the laws of the United States, any state thereof or the
District of Columbia and (ii) conducts substantially all of its business
operations in a country other than the United States of America.
"Funding Guarantor" has the meaning provided in Section 9.5.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States of America.
"German Operations" means the business, operations and activities
of Callino GmbH and any other Subsidiary of the Company having business,
operations or activities in Germany, taken as a whole.
"German Permits" means any and all Permits of Callino GmbH and any
other Subsidiary of the Company having business, operations or activities in
Germany applicable to or issued by any governmental authority or any government
or any instrumentality or agency thereof having jurisdiction over the conduct of
the business and the ownership of the properties of Callino GmbH and any such
other Subsidiary in Germany.
"Guarantees" means, collectively, the guarantees in favor of the
Lenders by the Guarantors set forth in Section 9.
"Guarantor" means (i) the Subsidiaries of the Company on the
Closing Date (other than (a) Foreign Subsidiaries, (b) Communications-Ecuador
Holdings, LLC, (c) Formus Communications-New Zealand, LLC, (d) Formus
Communications-China, LLC, (e) Formus Communications-Oceania, LLC and (f) Formus
Communications-Asia Pacific, LLC) and (ii) each of the Company's Subsidiaries
(other than Foreign Subsidiaries, but including Subsidiaries referenced in
clauses (b) through (f) above to the extent such Subsidiaries are required to
become Guarantors pursuant to Section 5.12 of this Agreement) that in the future
executes a Joinder to Guarantee in the form of Exhibit VII to this Agreement in
which such Subsidiary agrees to be bound by Section 9 and the other terms of the
Loan Documents as a Guarantor; provided that any Person constituting a Guarantor
as described above shall cease to constitute a Guarantor when its respective
Guarantee is released in accordance with the terms of the Loan Documents.
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21
"Hazardous Materials" shall mean any pollutant, contaminant,
toxic, hazardous or extremely hazardous substance, constituent or waste, or any
other constituent, waste, material, compound, chemical or substance including,
without limitation, petroleum (including crude oil or any fraction thereof) or
any petroleum product, subject to regulation under any Environmental Law.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred," "Incurrable" and "Incurring" shall
have meanings correlative to the foregoing); provided, however, that any
amendment, modification or waiver of any document pursuant to which Indebtedness
was previously Incurred shall only be deemed to be an Incurrence of Indebtedness
if and to the extent such amendment, modification or waiver (i) increases the
principal thereof or interest rate or premium payable thereon or (ii) changes to
an earlier date the stated maturity thereof or the date of any scheduled or
required principal payment thereon or the time or circumstances under which such
Indebtedness is required to be redeemed; provided, further, that any
Indebtedness of a Person existing at the time such Person becomes (after the
Closing Date) a Subsidiary of the Company (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at
the time it becomes a Subsidiary of the Company.
"Indebtedness" means with respect to any Person, without
duplication, (i) all indebtedness, obligations and liabilities of such Person
for borrowed money, (ii) all indebtedness, obligations and liabilities of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all Capitalized Lease Obligations of such Person, (iv) all obligations and
liabilities of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all indebtedness, obligations and
liabilities under any title retention agreement (but excluding trade accounts
payable and other accrued liabilities arising in the ordinary course of business
that are not overdue by 90 days or more or are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted), (v) all
indebtedness, obligations and liabilities for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit transaction, (vi)
all Contingent Obligations of such Person, (vii) all indebtedness, obligations
and liabilities under Currency Agreements and Interest Swap Obligations of such
Person, (viii) all Disqualified Capital Stock issued by such Person with the
amount of
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Indebtedness represented by such Disqualified Capital Stock being equal to the
greater of its voluntary or involuntary liquidation preference and its maximum
fixed repurchase price, but excluding accrued dividends, if any, and (ix) all
indebtedness, obligations and liabilities of any other Person of the type
referred to in clauses (i) through (viii) which are secured by any Lien on any
property or asset of such Person, the amount of such Indebtedness being deemed
to be the lesser of the fair market value of such property or asset or the
amount of the Indebtedness so secured.
"indemnified liabilities" has the meaning ascribed to such term in
Section 10.4.
"Indemnitees" has the meaning ascribed to such term in Section
10.4.
"Independent Financial Advisor" means a firm (i) which does not,
and whose directors, officers and employees or Affiliates do not, have a direct
or indirect material financial interest in the Company and (ii) which, in the
judgment of the Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Initial Interest Period" means the period commencing on the
Lending Date and ending on the date which is the three-month anniversary of the
Lending Date.
"Initial Lenders" means DLJ Bridge, Salomon Brothers Holding
Company Inc. and Credit Suisse First Boston.
"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes used in or necessary for the
conduct of the business of the Company as currently conducted that are material
to the condition (financial or otherwise), business or operations of the Company
and its Subsidiaries, taken as a whole.
"Interest Period" means the Initial Interest Period and,
thereafter, each subsequent period commencing on the day immediately following
the last day of the immediately preceding Interest Period and ending on the
three-month anniversary of the last day of the immediately preceding Interest
Period; provided that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest
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23
Period shall end on the next preceding Business Day and (ii) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period.
"Interest Rate Determination Date" means, with respect to any
Interest Period, two Business Days prior to the first Business Day of such
Interest Period.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time, and any successor code or statute.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any other Person. For the purposes of Section 6.3 hereof, the amount
of any Investment shall be the original cost of such Investment plus the cost of
all additional Investments by the Company or any of its Subsidiaries, without
any adjustments for increases or decreases in value, or write-ups, write-downs
or write-offs with respect to such Investment, reduced by the payment of
dividends, distributions, interest payments or repayments of loans or advances
in connection with such Investment or any other amounts received in respect of
such Investment. If the Company or any Subsidiary sells or otherwise disposes of
any Common Stock of any direct or indirect Subsidiary such that, after giving
effect to any such sale or disposition, it ceases to be a Subsidiary of the
Company, the Company shall be deemed to have made an Investment on the date of
any such sale or disposition equal to the fair market value of the Common Stock
of such Subsidiary not sold or disposed of.
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"Joint Venture" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
provided, however, that, as to any Person, such Person shall not be deemed to be
a Joint Venture with respect to any other Person if such Person is a Subsidiary
of such other Person.
"Judgment Currency" has the meaning ascribed to such term in
Section 10.17(f).
"Laws" means all applicable statutes, laws, ordinances,
regulations, rules, orders, judgments, writs, injunctions or decrees of any
state, commonwealth, nation, territory, possession, province, county, parish,
town, township, village, municipality or Tribunal, and "Law" means each of the
foregoing.
"Lenders" has the meaning ascribed to that term in the
introduction to this Agreement and shall include any assignee of any Loan, Note
or Commitment to the extent of such assignment.
"Lending Date" means the date on which the Loans are made by the
Lenders to the Company.
"Letter Agreements" means the following letter agreements relating
to the Put Shares, each as in effect on the Closing Date: (i) the letter
agreement, dated September 3, 1999, executed by the Company and addressed to Dr.
Xxxxxxx Xxxxxx, (ii) the letter agreement, dated September 3, 1999, executed by
the Company and addressed to Xx. Xxxx Xxxxxxxx, (iii) the letter agreement,
dated September 3, 1999, executed by the Company and addressed to Xxxxxxxx
Xxxxxxxx, (iv) the letter agreement, dated September 3, 1999, executed by the
Company and addressed to Xxxxxx Xxxxxxxx, (v) the letter agreement, dated
September 3, 1999, executed by the Company and addressed to Xxxxxxxxx Xxxxxxxx,
and (vi) the letter agreement, dated September 3, 1999, executed by the Company
and addressed to Xxxxxxxx Xxxxx.
"LIBOR Rate" means, with respect to each day during an Interest
Period, the rate per annum (rounded upwards, if necessary, to the nearest 1/16th
of 1%) appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in U.S. Dollars at approximately 11:00 a.m.
(London time) on the Interest Rate Determination Date for such Interest Period.
If the Interest Period is of a duration falling between the Interest Periods for
which such rates
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appear on Telerate Page 3750, the LIBOR Rate shall be the rate determined by
interpolation between the rates for the next shorter and the next longer
Interest Periods for which such rate appears on Telerate Page 3750, as
determined by DLJ Bridge, whose determination shall be conclusive in the absence
of manifest error. In the event that (i) more than one such LIBOR Rate is
provided, the average of such rates shall apply or (ii) no such LIBOR Rate is
published, then the LIBOR Rate shall be determined from such comparable
financial reporting company as DLJ Bridge, in the exercise of its reasonable
discretion, shall determine.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest).
"Litigation" means any action, suit, proceeding, claim, lawsuit,
arbitration and/or investigation conducted or threatened by or before any
Tribunal.
"Loan Documents" means this Agreement, the Notes, the Warrant
Agreement, the Guarantees and the Pledge Agreement.
"Loans" has the meaning ascribed to such term in Section 2.1(a).
"Majority Holders" means the holders of at least a majority in
interest of the "Registrable Securities" (as defined in the Fourth Amended and
Restated Investors' Rights Agreement dated as of September 3, 1999) of the
Company.
"Margin Stock" has the meaning assigned to that term in Regulation
U of the Board of Governors of the Federal Reserve System as in effect from time
to time.
"Material Adverse Effect" means (i) a material adverse effect upon
the business, operations, properties, assets, liabilities, condition (financial
or otherwise), prospects or projections of the Company and its Subsidiaries,
taken as a whole, (ii) a material adverse effect on the ability of any of the
Company or its Subsidiaries to execute, deliver and perform its obligations
under the Loan Documents or on the legality, validity or enforceability of this
Agreement or any other Loan Document or any Lien created thereunder, (iii) the
impairment of the ability of the Company and its Subsidiaries to perform, or the
impairment of the ability of the Agent or Lenders
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to enforce, the Obligations, or (iv) a material adverse effect on the issuance
of high yield or equity securities by the Company.
"Material Contract" means any Contractual Obligation to which the
Company or any Guarantor is a party (other than the Loan Documents) for which
breach, nonperformance, cancellation or failure to renew could reasonably be
expected to have a Material Adverse Effect.
"Material Subsidiary" means a "significant subsidiary" as defined
in Rule 1-02(w) of Regulation S-X promulgated under the Securities Act.
"Maturity Date" means the earlier of (i) the first anniversary of
the Lending Date or (ii) the date, if any, on which the Company repurchases any
Put Shares in connection with a notice received by the Company from any Put
Shareholder subsequent to October 15, 2000.
"Memorandum of Understanding" means the Memorandum of
Understanding dated November 19, 1999 among FII, Merlin Servicios Portadores,
S.A., Caixa de Ahoros xx Xxxxxxx, Caja de Ahorros de Xxxxxxxx Xxxxxxxxx y
Alicante, Iberdrola Diversification, S.A. and Grupo Xxxxxxx, X.X., together with
the Agreement dated November 19, 1999 between FII and Merlin Servicios
Portadores, S.A. and the Agreement dated November 19, 1999 among FII, Merlin
Servicios Portadores, S.A., Caixa de Ahoros xx Xxxxxxx, Caja de Ahorros de
Xxxxxxxx Xxxxxxxxx y Alicante, Iberdrola Diversification, S.A. and Grupo
Xxxxxxx, X.X.
"Multiemployer Plan" means a Pension Plan which is a
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents (including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Subsidiaries from such Asset
Sale net of (i) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions), (ii) taxes paid or payable after taking
into account any reduction in tax liability (or any consolidated, combined or
unitary tax liability) due to available tax credits, deductions, carry forward
items and any tax sharing arrangements, and (iii) repayment of Indebtedness that
is required to be repaid in connection with such
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Asset Sale, and, (b) with respect to any issuance of Take-Out Securities or the
sale, issuance or transfer of Capital Stock (to the extent not constituting an
Asset Sale) or the receipt by the Company of a capital contribution, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents received by the Company or any of its Subsidiaries from such
issuance of Take-Out Securities or such sale, issuance or transfer or such
capital contribution, net of reasonable out-of-pocket expenses and fees relating
to such issuance of Take-Out Securities or such sale, issuance or transfer or
such capital contribution (including, without limitation, legal, accounting and
investment banking fees).
"Notes" has the meaning ascribed to such term in Section 2.1(d).
"Notice of Borrowing" means a notice substantially in the form of
Exhibit IV annexed hereto with respect to a proposed borrowing.
"Obligations" means all obligations of every nature of the Company
from time to time owed to the Lenders and the Agent under the Loan Documents,
whether for principal, reimbursements, interest, fees, expenses, indemnities or
otherwise, and whether primary, secondary, direct, indirect, contingent, fixed
or otherwise (including obligations of performance).
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Controller, the Treasurer, the Secretary or any Assistant
Secretary of such Person.
"Officers' Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by two Officers; provided,
however, that every Officers' Certificate with respect to the compliance with a
condition precedent to the making of the Loans hereunder shall include (i) a
statement that the officer or officers making or giving such Officers'
Certificate have read such condition and any definitions or other provisions
contained in this Agreement relating thereto, (ii) a statement that, in the
opinion of the signers, they have made or have caused to be made such
examination or investigation as is necessary to enable the corporation to
express an informed opinion as to whether or not such condition has been
complied with, and (iii) a statement as to whether, in the opinion of the
signers, such condition has been complied with; provided, however, such
Officer's Certificate shall not be construed to create any contractual liability
for any Officer signing such certificate.
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"Original Notes" has the meaning ascribed to such term in Section
2.1(d).
"Other Taxes" has the meaning ascribed to such term in Section
10.19.
"PBGC" means the Pension Benefit Guaranty Corporation, and any
successor to all or any of the Pension Benefit Guaranty Corporation's functions
under ERISA.
"Pension Plan" means an employee pension benefit plan as defined
in Section 3(2) of ERISA which is subject to the provisions of Title IV of ERISA
and which is maintained for employees of the Company, any Subsidiary or any
member of the Controlled Group.
"Permanent Financing" means any issuance of Securities occurring
prior to or after the Closing Date, or for the purpose of refinancing the Loans.
"Permits" means the certificates, permits, licenses, franchises,
consents, approvals, authorizations and clearances involved in, relating to or
required in connection with the business, operations, assets, property or
prospects of the Company and its Subsidiaries.
"Permitted Holders" means (i) Chase Capital Partners, (ii)
Centennial Funds V, L.P. and (iii) Telecom Partners II, L.P., and their
respective Affiliates.
"Permitted Indebtedness" has the meaning ascribed to such term in
Section 6.1.
"Permitted Investments" means:
(i) Investments by the Company or any Subsidiary (other than
Investments made by Formus Polska and Callino GmbH, except to the extent such
Investments are funded through Investments in Formus Polska or Callino GmbH, as
the case may be, subsequent to the Closing Date) in any Person that will become
immediately after such Investment a Subsidiary of the Company or that will merge
or consolidate into the Company or a Subsidiary of the Company (so long as the
surviving entity of such merger or consolidation is the Company or a
Subsidiary);
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(ii) Investments in the Company or any of its Subsidiaries (other
than Investments in the Company or any of its Subsidiaries made by Formus Polska
and Callino GmbH, except to the extent such Investments are funded through
Investments in Formus Polska or Callino GmbH, as the case may be, subsequent to
the Closing Date);
(iii) Investments by the Company or its Subsidiaries described on
Schedule G;
(iv) Investments in cash and Cash Equivalents;
(v) loans and advances to employees and officers of the Company
and its Subsidiaries in the ordinary course of business for bona fide business
purposes not in excess of $1,000,000 (or the equivalent amount in any other
currency) at any one time outstanding;
(vi) Currency Agreements and Interest Swap Obligations entered
into in the ordinary course of the Company's or its Subsidiaries' businesses and
otherwise in compliance with this Agreement;
(vii) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers;
(viii) Investments made by the Company or its Subsidiaries as a
result of consideration received in connection with an Asset Sale made in
compliance with Section 6.9 hereof;
(ix) Investments in Joint Ventures in businesses reasonably
related or complementary to the Company and its Subsidiaries in the ordinary
course of business which, together with the other Investments permitted under
clause (xiv) below and excluding Investments in Abrared S.A., do not exceed an
aggregate amount of $2,500,000 (or the equivalent amount in any other currency)
at any time outstanding;
(x) guarantees of Indebtedness permitted to be incurred under
Section 6.1 hereof, solely to the extent the Person guaranteeing such
Indebtedness is a Subsidiary of the primary obligor of such Indebtedness or the
primary obligor of
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such Indebtedness is a Subsidiary of the guarantor of such Indebtedness and any
transaction permitted under Section 6.1(n) of this Agreement;
(xi) Investments by the Company or its Subsidiaries not in excess
of $10,000,000 (or the equivalent amount in any other currency) in any Person
with whom the Company or any of its Subsidiaries has entered into definitive
agreements to acquire such Person;
(xii) Investments by the Company or its Subsidiaries not in excess
of $2,000,000 (or the equivalent amount in any other currency) in any Person
with whom the Company or any of its Subsidiaries has entered into a letter of
intent or memorandum of understanding with respect to the proposed acquisition
of such Person;
(xiii) Investments in Abrared S.A. which do not exceed an
aggregate amount of $23,678,329 (or the equivalent amount in any other
currency), together with the guarantee of Formus Iberica described in Schedule B
annexed hereto; and
(xiv) other Investments which, together with the Investments in
Joint Ventures (other than Investments in Abrared S.A.) permitted under clause
(ix) above, do not exceed an aggregate amount of $2,500,000 (or the equivalent
amount in any other currency) at any time outstanding.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
not delinquent;
(ii) statutory Liens of landlords or of mortgagees of landlords
and Liens of carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen and other Liens imposed by Law incurred in the ordinary
course of business for sums not yet delinquent or constituting
Contested Claims;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts,
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performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(iv) judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal proceedings
which may have been duly initiated for the review of such judgment
shall not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(v) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Subsidiaries;
(vi) Liens upon specific items of inventory, equipment or other
goods and proceeds of any Person securing such Person's obligations in
respect of bankers' acceptances issued or created for the account of
such Person to facilitate the purchase, shipment or storage of such
inventory, equipment or other goods;
(vii) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds
thereof;
(viii) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty
requirements of the Company or any of its Subsidiaries, including
rights of offset and set-off;
(ix) Liens securing Interest Swap Obligations;
(x) Liens securing Indebtedness under Currency Agreements;
(xi) Liens securing Acquired Indebtedness incurred in accordance
with Section 6.1 hereof; provided that (a) such Liens secured such
Acquired Indebtedness at the time of and prior to the incurrence of
such Acquired Indebtedness by the Company or any Subsidiary and were
not granted in connection with, or in anticipation of, the incurrence
of such Acquired Indebtedness by the Company or any Subsidiary and (b)
such Liens do not extend to or cover any property or assets of the
Company or of any of its
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Subsidiaries other than the property or assets that secured the
Acquired Indebtedness prior to the time such Indebtedness became
Acquired Indebtedness of the Company or any Subsidiary and are no more
favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness by
the Company or any Subsidiary;
(xii) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its
Subsidiaries;
(xiii) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(xiv) Liens securing Equipment Financing Obligations, including,
without limitation, obligations under the WBD Line of Credit, incurred
in accordance with the provisions of this Agreement and subject to the
limitations set forth in Section 6.2(v) of this Agreement;
(xv) Liens only on assets acquired in connection with transactions
described in Section 6.1(q) of this Agreement securing deferred
purchase price obligations permitted by Section 6.1(q) of this
Agreement; and
(xv) Liens in favor of customs and revenues authorities arising as
a matter of Law to secure payment of custom duties in connection with
the importation of goods.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"PIK Amount" has the meaning ascribed to such term in Section
2.2(a)(ii).
"Pledge Agreement" means that certain Pledge Agreement among the
Pledgors and the Agent, in form and substance satisfactory in all respects to
the Lenders and substantially in the form of Exhibit II annexed hereto, pursuant
to which the Company shall create in favor of the Agent, for the benefit of the
Lenders, a valid, perfected first priority Lien on 100% of Capital Stock now or
hereafter owned
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by the Company (provided that if the issuer of any of such Capital Stock is
classified as a "controlled foreign corporation" (as such term is defined in
Section 957(a) or a successor provision of the Internal Revenue Code), the
Company shall not be required to pledge any shares of Capital Stock of such
issuer in excess of the number of shares of such issuer possessing up to but not
exceeding 65% of the voting power of all classes of Capital Stock entitled to
vote of such issuer), FII shall create in favor of the Agent, for the benefit of
the Lenders, a valid, perfected first priority Lien on 100% of Capital Stock of
Latin America Holdings LLC, and Latin America Holdings LLC shall create in favor
of the Agent, for the benefit of the Lenders, a valid, perfected first priority
Lien on all Capital Stock of VeloCom Inc. owned by it.
"Pledgors" means the Company, FII, Latin America Holdings LLC, and
each other party required to become a party to the Pledge Agreement.
"Polish Operations" means the business, operations and activities
of Formus Polska and any other Subsidiary of the Company having business,
operations or activities in the Republic of Poland, taken as a whole.
"Polish Permits" means any and all Permits of Formus Polska and
any other Subsidiary of the Company having business, operations or activities in
the Republic of Poland applicable to or issued by any governmental authority or
any government or any instrumentality or agency thereof having jurisdiction over
the conduct of the business and the ownership of the properties of Formus Polska
and any such other Subsidiary in the Republic of Poland.
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"Prepayment Premium" means, in connection with any redemption or
prepayment of the Loans, three percent (3.00%) of the outstanding principal
amount of the Loan or Loans being prepaid or redeemed, if the prepayment or
redemption is made with funds raised by any means other than:
(i) an issuance of Indebtedness in which (x) the Bridge Arrangers
(or Affiliates of the Bridge Arrangers) have acted as sole joint lead
underwriters, sole joint lead initial purchasers or sole joint lead
book managers and the Co-Arranger has acted as sole co-manager and, in
any case, the Initial Lenders have underwritten debt Securities having
a principal value upon issuance
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of at least $150,000,000 or (y) the Bridge Arrangers have acted as sole
joint lead agents and the Co-Arranger has acted as sole co-agent in the
case of loans having an aggregate principal amount of at least
$150,000,000 being borrowed in a bank facility, and, in each such case,
the fees payable in connection with such issuance are not less than
three percent (3.00%) of the principal amount of such Indebtedness;
(ii) an initial public offering prior to October 31, 2000 in which
at least two of the three Arrangers participate (in which (A) either or
both the Bridge Arrangers act as either sole or sole joint lead
underwriters and sole or sole joint book running managers and, to the
extent only one of the Bridge Arrangers participates, the Co-Arranger
acts as sole co-manager or (B) both the Bridge Arrangers act as sole
joint lead underwriters and sole joint book running managers and the
Co-Arranger acts as sole co-manager) and in which, in any case, the
Initial Lenders have underwritten equity Securities having an aggregate
offering price of at least $75,000,000 and received fees payable in
connection therewith of not less than seven percent (7.00%) of such
aggregate offering price; or
(iii) an initial public offering on or after October 31, 2000 in
which the Bridge Arrangers act as sole joint lead underwriters and sole
joint book running managers and the Co-Arranger acts as sole co-manager
and, in any case, the Initial Lenders have underwritten equity
Securities having an aggregate offering price of at least $75,000,000
and received fees payable in connection therewith of not less than
seven percent (7.00%) of such aggregate offering price;
provided, however, that if only one of the three Arrangers participates
in an initial public offering occurring prior to October 31, 2000 in the role
described for such Arranger in clause (ii) above, then the "Prepayment Premium"
means, in connection with any prepayment or redemption of the Loans made by that
Arranger, zero percent (0.00%), and the "Prepayment Premium" means, in
connection with any prepayment or redemption of the Loans made by the other
Lenders, three percent (3.00%) of the outstanding principal amount of such Loan
or Loans being prepaid or redeemed; and provided, further, that the Arrangers
shall have the right to participate in such public offerings, private placements
and other financings in at least the proportion that such Lender's Commitment as
of the date of the Commitment Letter bears to the aggregate amount of the
Commitments, with any fees paid in respect thereof being paid on a pro rata
basis.
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"Process Agent" has the meaning ascribed to such term in Section
10.17(d).
"Put Shareholders" means (i) Dr. Xxxxxxx Xxxxxx, (ii) Xx. Xxxx
Xxxxxxxx, (iii) Xxxxxxxx Xxxxxxxx, (iv) Xxxxxx Xxxxxxxx, (v) Xxxxxxxxx Xxxxxxxx,
and (vi) Xxxxxxxx Xxxxx.
"Put Shares" means the 3,646,286 aggregate shares of Series E
Preferred Stock of the Company acquired by the Put Shareholders and described in
the Letter Agreements.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock or that is not Indebtedness that is convertible or
exchangeable into Capital Stock.
"Reference Date" has the meaning ascribed to such term in Section
6.3.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing of Equipment
Financing Obligations or Acquired Indebtedness that does not (1) result in an
increase in the aggregate principal amount of Indebtedness of such Person as of
the date of such proposed Refinancing (plus the amount of any premium required
to be paid under the terms of the instrument governing such Indebtedness and
plus the amount of reasonable expenses incurred by the Company in connection
with such Refinancing) or (2) create Indebtedness with (A) a Weighted Average
Life to Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or (B) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; provided that (x) such
Refinancing Indebtedness shall not constitute Indebtedness of any Person that
was not a primary obligor or guarantor of the Indebtedness being Refinanced and
(y) if such Indebtedness being Refinanced is subordinate or junior to the Notes,
then such Refinancing Indebtedness shall be subordinate to the Notes at least to
the same extent and in the same manner as the Indebtedness being Refinanced.
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"Register" has the meaning ascribed to such term in Section 10.23.
"Release" means any spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, emitting,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), or into or out of any Facility, including without limitation the
movement of any Hazardous Material through the air, soil, surface water,
groundwater or property.
"Replacement Assets" has the meaning ascribed to such term in
Section 6.9(b).
"Reportable Event" has the meaning set forth in Section 4043 of
ERISA, but excluding any event for which the 30-day notice requirement has been
waived by applicable regulations of the PBGC.
"Required Amount" means forty percent (40%) of the Excess.
"Required Lenders" means Lenders holding in the aggregate more
than 50% of the sum of (i) the outstanding principal amount of Loans and (ii)
prior to the termination of the Commitments, any unutilized Commitments.
"Restricted Payment" has the meaning ascribed to such term in
Section 6.3.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any property, whether owned by
the Company or any Subsidiary at the Closing Date or later acquired, which has
been or is to be sold or transferred by the Company or such Subsidiary to such
Person or to any other Person from whom funds have been or are to be advanced by
such Person on the security of such Property.
"Securities" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit sharing agreement or arrangement, bonds, debentures, options, warrants,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of
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interest, shares or participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended, and
any successor statute or statutes thereto.
"Senior Officers" means each of the Chief Executive Officer,
President and Chief Financial Officer of the Company.
"SSB" means Xxxxxxx Xxxxx Xxxxxx Inc. and its successors.
"Subordinated Indebtedness" means Indebtedness of the Company or
any Guarantor which is expressly subordinated in right of payment to the Loans
or the Guarantee of such Guarantor, as the case may be.
"Subsequent Note" has the meaning ascribed to such term in Section
2.1(d).
"Subsidiary," means, with respect to any Person, (i) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such
Person, (ii) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time, directly or indirectly,
owned by such Person, and (iii) any other Person of which a majority in equity
interests (in terms of economic ownership) are owned, directly or indirectly, by
such Person. Unless otherwise specified, all references to a "Subsidiary" shall
mean a Subsidiary of the Company.
"Take-Out Securities" means any Securities of the Company and/or
its Subsidiaries issued on or after the Closing Date, including, without
limitation, the Demand Take-Out Securities, but excluding (i) Securities of the
Company issued in a private placement to "accredited investors" (as defined in
Regulation D under the Securities Act of 1933) resulting in gross proceeds
(together with the gross proceeds of all such private placements on or
subsequent to April 25, 2000) not in excess of $200,000,000, (ii) Securities
issued to the Company or any Subsidiary, and (iii) Securities of Subsidiaries to
the extent issued, sold, transferred or conveyed in a transaction constituting
an Asset Sale.
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"Taxes" means all taxes, assessments, fees, levies, imposts,
duties, penalties, deductions, liabilities, withholdings or other charges of any
nature whatsoever, including interest penalties and additions to tax.
"Tribunal" means any government, any arbitration panel, any court
or any governmental department, commission, board, bureau, agency, authority or
instrumentality of the United States or any state, province, commonwealth,
nation, territory, possession, county, parish, town, township, village or
municipality, whether now or hereafter constituted and/or existing.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"U.S. Treasury Rate" means, as of any date, the yield to maturity
as of such date of United States Treasury securities having a maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15 (519) that has become publicly available at least two Business Days prior
to such date (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to (but not
less than) the seventh (7th) anniversary of the Closing Date.
"Voting Stock" means, with respect to any Person, securities of
any class or classes of Capital Stock in such Person entitling the holders
thereof (whether at all times or only so long as no senior class of stock has
voting power by reason of any contingency) to vote in the election of members of
the board of directors or other governing body of such Person.
"Warrant Agreement" means the Warrant Agreement dated as of the
Closing Date delivered to the Lenders by the Company, in form and substance
satisfactory in all respects to the Lenders.
"WBD Line of Credit" means that line of credit of up to
i120,000,000 granted to Formus Polska pursuant to the Multi-Tranche Secured
Senior Facility Agreement dated September 15, 1999 among Formus Polska, as
borrower, Westdeutsche Landesbank (France) S.A., as facility agent, Westdeutsche
Landesbank Polska S.A., as security trustee, and each financial institution
party thereto.
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"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of
such Person of which all the outstanding voting securities (other than, in the
case of a Foreign Subsidiary, directors' qualifying shares or an immaterial
amount of shares required to be owned by other Persons pursuant to applicable
Law) are owned by such Person or any Wholly Owned Subsidiary of such Person.
Unless otherwise specified, all references to a "Wholly Owned Subsidiary" shall
mean a Wholly Owned Subsidiary of the Company.
1.2 Accounting Terms. For the purposes of this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP.
1.3 Other Definitional Provisions; Anniversaries. Any of the terms
defined in Section 1.1 may, unless the context otherwise requires, be used in
the singular or the plural depending on the reference. For purposes of this
Agreement, a monthly anniversary of the Lending Date and the last day of any
Interest Period shall occur on the same day of the applicable month as the day
of the month on which the Lending Date occurred or the last day of such Interest
Period occurred; provided, however, that if the applicable month has no such day
(i.e., 29, 30 or 31), the monthly anniversary shall be deemed to occur on the
last day of the applicable month. Except as otherwise provided herein, where any
provision in this Agreement refers to a specific agreement, contract or
document, such provision shall be construed to refer to such agreement, contract
or document as it may be amended, restated, supplemented or otherwise modified
from time to time. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
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within the broadest possible scope of such general statements, term or matter.
Except as otherwise specified, all references herein to Sections, Exhibits and
Schedules shall refer to Sections, Exhibits and Schedules of this Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENT AND LOANS; NOTES
2.1 Loans and Notes.
(1) Commitment. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the Company
herein set forth, the Lenders hereby agree to lend to the Company on the Lending
Date an aggregate amount of up to $75,000,000 (the "Loans"), each such Lender
committing to lend the amount set forth next to such Lender's name on the
signature pages hereto; provided that the Lending Date must occur no later than
June 30, 2000, and the Loans shall be in an aggregate amount of not less than
the lesser of (i) $37,500,000 or (ii) the amount of available Commitments (as
defined below) on the Lending Date. The Lenders' commitments to make the Loans
to the Company pursuant to this Section 2.1(a) are herein called individually,
the "Commitment" and collectively, the "Commitments."
(2) Notice of Borrowing. When the Company desires to borrow under
this Section 2.1, it shall deliver to the Agent a Notice of Borrowing no later
than 11:00 A.M. (New York time), at least five (5) Business Days in advance of
the date of the proposed Lending Date or such later date as shall be agreed to
by the Agent. The Notice of Borrowing shall specify the proposed Lending Date
(which shall be a Business Day). Upon receipt of such Notice of Borrowing, the
Agent shall promptly notify each Lender of its share of the Loan and the other
matters covered by the Notice of Borrowing. Such Lender's share of the Loan
shall be determined by reference to the quotient of such Lender's unfunded
Commitment, divided by the aggregate amount of all unfunded Commitments. All
Loans shall be funded on a pro rata basis by the Lenders as aforesaid.
(3) Disbursement of Funds. No later than 12:00 Noon (New York
time) on the Lending Date, each Lender will make available its pro rata share of
the Loan requested to be made on such date in the manner provided below. All
amounts shall be made available to the Agent in U.S. dollars and immediately
available funds at the Agent's Office and the Agent promptly will deliver by
wire transfer, to the account designated by the Company, the aggregate of the
amounts so made available in the type of funds received. Unless the Agent shall
have been notified by any Lender prior to the Lending Date that such Lender does
not intend to make available to the Agent its portion of the Loan to be made on
such date, the Agent may assume
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that such Lender has made such amount available to the Agent on such date, and
the Agent, in reliance upon such assumption, may (in its sole discretion and
without any obligation to do so) make available to the Company a corresponding
amount. If such corresponding amount is not in fact made available to the Agent
by such Lender and the Agent has made available same to the Company, the Agent
shall be entitled to recover such corresponding amount from such Lender. If such
Lender does not pay such corresponding amount forthwith upon the Agent's demand
therefor, the Agent shall promptly notify the Company, and the Company shall
immediately pay such corresponding amount to the Agent; provided, that the
notice to the Company shall have been received not more than ten (10) Business
Days after the applicable Lending Date. The Agent shall also be entitled to
recover from the Lender or the Company, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Agent to the Company to the date such
corresponding amount is recovered by the Agent, at a rate per annum equal to (x)
if paid by such Lender, the overnight Federal Funds Rate or (y) if paid by the
Company, the then applicable rate of interest on the Loans.
Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment hereunder or to prejudice any rights which
the Company may have against any Lender as a result of any default by such
Lender hereunder.
(4) Notes. The Company shall execute and deliver to each Lender on
the Closing Date a Note dated the Closing Date and having a principal amount
equal to such Lender's Commitment, substantially in the form of Exhibit I
annexed hereto (the "Original Notes"). On each interest payment date on which
the Company elects to pay a PIK Amount pursuant to Section 2.2(b), the Company
shall execute and deliver to each Lender on such interest payment date a Note
dated such interest payment date substantially in the form of Exhibit I annexed
hereto in a principal amount equal to such Lender's pro rata portion of such PIK
Amount and with other appropriate insertions (each, a "Subsequent Note" and,
together with the Original Bridge Notes, the "Notes"). A Subsequent Note shall
bear interest from the date of its issuance at the same rate borne by all Notes.
(5) Scheduled Payment of Loan. The Company shall pay in full the
outstanding amount of the Loans and all other Obligations owing hereunder,
including, without limitation, the Prepayment Premium, if any, no later than the
Maturity Date.
(6) Termination of Commitment. The Commitment hereunder shall
terminate on the earlier of (i) the commencement by the Company or any of its
Subsidiaries of the marketing of, or the issuance by the Company or any of its
Subsidiaries of, any Securities or the arrangement of any other financing for
the
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Company or any of its Subsidiaries of which each of the Bridge Arrangers (or one
of their Affiliates) is not the sole joint lead underwriter, sole joint lead
initial purchaser or sole joint book running manager and, in the case of the
Co-Arranger, a co-manager, or, in the case of any bank financing, in which each
of the Bridge Arrangers is not sole joint syndication agent or arranger, and, in
the case of the Co-Arranger, sole co-arranger, as the case may be, (ii) upon the
Company or any of its Subsidiaries issuing Securities for gross proceeds of at
least $75,000,000, or (iii) June 30, 2000, if the Loans are not made on or
before such date (except for, in each case (A) any Incurrence of Equipment
Financing Obligations permitted under this Agreement, (B) Permitted Investments
and Asset Sales permitted under this Agreement, (C) as required pursuant to
shareholders agreements and joint venture agreements relating to Subsidiaries of
the Company entered into in the ordinary course of the business of the Company
and its Subsidiaries, and (D) any issuance of Securities of the Company in a
private placement to "accredited investors" (as defined in Regulation D under
the Securities Act of 1933) resulting in gross proceeds (together with the gross
proceeds of all such private placements on or subsequent to April 25, 2000) not
in excess of $200,000,000; provided that with respect to this clause (D), any
gross proceeds of all such private placements on or subsequent to April 25, 2000
in excess of $100,000,000 in the aggregate (the "Excess") shall be subject to
the mandatory reduction in Commitment and prepayment requirements set forth in
Section 2.4(d). The Company shall have the right, without premium or penalty, to
reduce or terminate the Commitment of the Lenders hereunder at any time upon at
least three (3) Business Days' notice to the Lenders. All Commitments not
utilized on the Lending Date shall immediately terminate.
(7) Pro Rata Borrowings. The Loans made under this Agreement shall
be made by the Lenders pro rata on the basis of their respective Commitments. It
is understood that no Lender shall be responsible for any default by any other
Lender of its obligation to make its portion of the Loans hereunder and that
each Lender shall be obligated to make its portion of the Loans hereunder,
regardless of the failure of any other Lender to fulfill its commitments
hereunder.
2.2 Interest on the Loans.
(1) Rate of Interest. The Loans shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by prepayment,
acceleration or otherwise) at a rate determined as set forth below.
(1) Loans. The Loans shall bear interest for each Interest
Period at a rate per annum equal to the Applicable Rate for each relevant
Interest Period; provided that if Additional Loans are advanced, all Loans shall
at all times bear interest at the same rate as the Loans issued on the Lending
Date.
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(2) Additional Loans. Notwithstanding the foregoing or any
other provision herein, in no event will the combined sum of interest (cash or
otherwise) on the Loans exceed seventeen percent (17.00%) per annum or be less
than thirteen percent (13.00%) per annum (in each case exclusive of the default
rate of interest payable pursuant to Section 2.2(c)). In addition, if and to the
extent that the amount of interest (exclusive of the default rate of interest
payable pursuant to Section 2.2(c)) payable on any Interest Payment Date is
greater than the amount of interest on the Loans which would have been payable
on such Interest Payment Date if the interest rate in effect at all times during
the three-month period then ended had been 15.00% per annum (the amount of such
excess being hereinafter referred to as the "PIK Amount" for such period), then
the Company may, at its option, in lieu of payment of the PIK Amount of interest
in cash, pay such PIK Amount by increasing the principal of the applicable Loans
by an amount equal to the PIK Amount (the "Additional Loans") and by issuance of
Subsequent Notes in an aggregate principal amount equal to the PIK Amount.
Notwithstanding anything to the contrary expressed or implied herein, such
Additional Loans made on any Interest Payment Date shall, subject to the
remaining provisions of this paragraph, bear interest at the same interest rate
as the Loans in respect of which such Additional Loans are being issued, shall
mature on the Maturity Date and be subject to prepayment and acceleration of
maturity in the same manner as the Loans, shall otherwise be identical to the
outstanding Loans and shall be deemed made by the applicable Lenders in
proportions such that each Lender shall receive the same ratio of cash interest
to Additional Loans on such Interest Payment Date.
(2) Interest Payments. Interest shall be payable in arrears on the
last day of each Interest Period and upon any prepayment of the Loans (to the
extent accrued on the amount being prepaid) and at maturity of the Loans in
respect of any amounts paid on such date.
(3) Default Rate. At any time that a Default or Event of Default
has occurred and is continuing, all Loans and other Obligations shall bear
interest payable upon demand at a rate which is 2.00% per annum in excess of the
rate of interest otherwise payable under this Agreement for the Loans.
(4) Computation of Interest. Interest on the Loans shall be
computed on the basis of a 360-day year and the actual number of days elapsed in
the period during which it accrues. In computing interest on the Loans, the date
of the making of the Loans shall be included and the date of payment shall be
excluded; provided, however, that if a Loan is repaid on the same day on which
it is made, one day's interest shall be paid on that Loan.
2.3 Fees. The Company agrees to pay to the Lenders all fees and
other obligations in accordance with, and at the times specified by, the Fee
Letter.
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2.4 Prepayments and Reductions in the Commitment.
(1) Voluntary Prepayments. The Company at its option may, upon at
least ten (10) days' written notice to the Lenders, prepay all or any part of
the principal amount of outstanding Loans at a redemption price equal to 100% of
the principal amount of the Loans so prepaid plus the Prepayment Premium, if
applicable, together with accrued interest through the date of prepayment. Loans
so prepaid may not be reborrowed.
(2) Mandatory Prepayments.
(1) Prepayments from Asset Sales. Except with respect to any
Asset Sale the Net Cash Proceeds of which are permitted to be reinvested in
Replacement Assets pursuant to Section 6.9(b) and which, at the time of such
Asset Sale, the Company intends to reinvest in Replacement Assets within ninety
(90) days as set forth in Section 6.9(b), the Company shall prepay Loans having
an aggregate principal amount equal to the Net Cash Proceeds of any Asset Sale
occurring after the Closing Date on a date not later than the fifth (5th)
Business Day next succeeding the date of consummation of such Asset Sale or, in
the case of that portion of the purchase price which is deferred, the date of
receipt of such Net Cash Proceeds, whichever is later. The Company shall also be
required to prepay Loans in the manner set forth above with any Net Cash
Proceeds of any Asset Sale which, at the time of the Asset Sale, the Company
intended to reinvest in Replacement Assets as permitted under Section 6.9(b) but
which were not reinvested in Replacement Assets as permitted under Section
6.9(b), and any such prepayment shall be made on or before the 90th day after
the applicable Asset Sale. At any time prior to the Lending Date, such Net Cash
Proceeds shall be applied to permanently reduce each Lender's Commitment on a
pro rata basis. Concurrently with the consummation of an Asset Sale, the Company
shall deliver to the Agent an Officer's Certificate demonstrating the derivation
of Net Cash Proceeds from the gross sales price of such Asset Sale.
(2) Prepayments from Issuances of Take-Out Securities.
Concurrently with the receipt by the Company or any Subsidiary of proceeds from
the issuance of Take-Out Securities or the sale, issuance or transfer of Capital
Stock (to the extent not constituting an Asset Sale) or the receipt by the
Company of proceeds from a capital contribution, the Company shall prepay the
Loans in a principal amount equal to the Net Cash Proceeds thereof. At any time
prior to the Lending Date, such Net Cash Proceeds shall be applied to
permanently reduce each Lender's Commitment on a pro rata basis.
(3) Prepayments from Incurrence of Indebtedness. Concurrently
with the Incurrence by the Company or any of its Subsidiaries of any
Indebtedness not permitted under Section 6.1, the Company shall prepay the Loans
in a principal amount equal to the principal amount of such Indebtedness so
Incurred.
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At any time prior to the Lending Date, such Indebtedness Incurred shall be
applied to permanently reduce each Lender's Commitment on a pro rata basis.
(4) Notice. The Company shall notify the Agent of any
prepayment to be made pursuant to Section 2.4(b) at least two Business Days
prior to such prepayment date (unless shorter notice is satisfactory to the
Required Lenders).
(3) Company's Mandatory Prepayment Obligation; Application of
Prepayments. All prepayments shall include: (i) payment of accrued interest on
the principal amount so prepaid (which shall be applied to payment of interest
before application to principal) and (ii) the Prepayment Premium, if applicable.
Loans so prepaid may not be reborrowed.
(4) Mandatory Reduction in Commitments. In the event that
issuances of Securities of the Company in one or more private placements to
"accredited investors" (as defined in Regulation D under the Securities Act of
1933) on or subsequent to April 25, 2000 result in gross proceeds which exceed
$100,000,000 in the aggregate, concurrently with receipt by the Company or any
of its Subsidiaries of the Excess, the Required Amount shall be applied (i) at
any time prior to the Lending Date, first to permanently reduce the Commitments
in an amount equal to the Required Amount to the full extent thereof, and second
to prepay the Loans in a principal amount equal to any remaining portion of the
Required Amount, and (ii) on or after the Lending Date, to prepay the Loans in a
principal amount equal to the Required Amount.
All prepayments of Loans shall include payment of accrued interest
on the principal amount so prepaid (which shall be applied to payment of
interest before application to principal) and the Prepayment Premium, if
applicable. Loans so prepaid may not be reborrowed. Notwithstanding anything to
the contrary contained herein, the Company shall not be required to pay any
Prepayment Premium in connection with any reduction in Commitments under this
Section 2.4(d). Loans prepaid hereunder may not be reborrowed. All reductions in
the Commitments shall apply to each Lender's Commitment on a pro rata basis.
(5) Manner and Time of Payment. All payments of principal and
interest hereunder and under the Notes by the Company shall be made without
defense, set-off or counterclaim and in same-day funds and delivered to the
Agent, unless otherwise specified, not later than 12:00 Noon (New York time) on
the date due at the Agent's Office to such account as the Agent shall have
notified the Company for the account of the Lenders; funds received by the Agent
after that time shall be deemed to have been paid by the Company on the next
succeeding Business Day. Other than with respect to PIK Amounts, all payments of
any Obligations to be made hereunder or under the Notes by the Company or any
other obligor with respect thereto shall be made solely in U.S. Legal Tender or
such other currency as is
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then legal tender for public and private debts in the United States of America.
The Company hereby authorizes the Agent to charge its account with the Agent in
order to cause timely payment to be made of all principal, interest and fees due
hereunder (subject to sufficient funds being available in its account for that
purpose).
(6) Payments on Non-Business Days. Whenever any payment to be made
hereunder or under the Notes shall be stated to be due on a day which is not a
Business Day, the payment shall be made on the next succeeding Business Day and
such extension of time shall be included in the computation of the payment of
interest hereunder or under the Notes or of the commitment and other fees
hereunder, as the case may be. (1)
(7) Notation of Payment. Each Lender agrees that before disposing
of any Note held by it, or any part thereof (other than by granting
participations therein), such Lender will make a notation thereon of all
principal payments previously made thereon and of the date to which interest
thereon has been paid and will notify the Company of the name and address of the
transferee of that Note; provided, however, that the failure to make (or any
error in the making of) such a notation or to notify the Company of the name and
address of such transferee shall not limit or otherwise affect the obligation of
the Company hereunder or under such Notes with respect to the Loans and payments
of principal or interest on any such Note.
2.5 Use of Proceeds.
(1) Loans. The proceeds of the Loans shall be used by the Company
for business development purposes, including the acquisition of wireless
spectrum licenses, as well as for general corporate purposes.
(2) Margin Regulations. No portion of the proceeds of any
borrowing under this Agreement shall be used by the Company in any manner which
might cause the borrowing or the application of such proceeds to violate the
applicable requirements of Regulation T, Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System or any other regulation of the
Board of Governors or to violate the Exchange Act, in each case as in effect on
the date or dates of such borrowing and such use of proceeds.
SECTION 3. CONDITIONS
3.1 Conditions to Loans. The obligation of the Lenders to make the
Loans is subject to the prior or concurrent satisfaction of each of the
following conditions:
(1) On or before the Closing Date, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by the Lenders shall be reasonably satisfactory in form and substance
to the Lenders, and the Agent or its counsel shall have received on behalf of
the Lenders the following
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items, each of which shall be in form and substance satisfactory to the Lenders
and, unless otherwise noted, dated the Closing Date:
(1) a certified copy of the Company's, each Guarantor's,
Formus Polska's and Callino GmbH's charter, together with a certificate of
status, compliance, good standing or like certificate with respect to the
Company, each Guarantor and each other Subsidiary issued by the appropriate
government officials of the jurisdiction of its incorporation and of each
jurisdiction in which it owns any material assets or carries on any material
business, each to be dated a recent date prior to the Closing Date;
(2) a copy of the Company's, each Guarantor's, Formus
Polska's and Callino GmbH's by-laws, certified as of the Closing Date by its
Secretary or one of its Assistant Secretaries;
(3) resolutions of the Company's and each Guarantor's Board
of Directors approving and authorizing the execution, delivery and performance
of this Agreement, each of the other Loan Documents and any other documents,
instruments and certificates required to be executed by the Company or such
Guarantor in connection herewith and therewith and approving and authorizing the
execution, delivery and payment of the Notes, each certified as of the Closing
Date by one of its Officers as being in full force and effect without
modification or amendment;
(4) signature and incumbency certificates of the Company's
and each Guarantor's officers executing this Agreement, the Notes and the other
Loan Documents;
(5) executed copies of this Agreement and the Notes
substantially in the form of Exhibit I annexed hereto executed in accordance
with Section 2.1(d) drawn to the order of the Lenders and with appropriate
insertions;
(6) an originally executed Notice of Borrowing substantially
in the form of Exhibit IV annexed hereto, signed by the President or a Vice
President of the Company on behalf of the Company and delivered to the Agent;
(7) originally executed copies of one or more favorable
written opinions of (I) Holme Xxxxxxx & Xxxx LLP, counsel for the Company and
the Guarantors, substantially in the form of Exhibit V annexed hereto (or
otherwise in form and substance satisfactory to the Lenders) and addressed to
the Lenders, (II) local counsel for the Company and the Guarantors in Germany,
Poland and Spain, each substantially in the form of Exhibit VI annexed hereto
(or otherwise in form and substance satisfactory to the Lenders) and addressed
to the Lenders, addressing such items as the Lenders may request, including the
validity of the licenses used by the Company and its Subsidiaries in such
jurisdiction, and (III) such other opinions of
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counsel and such certificates or opinions of accountants, appraisers or other
professionals as the Arrangers shall have reasonably requested;
(8) a certificate of the chief financial officer of the
Company addressed to the Agent and the Lenders and in form and substance
satisfactory to the Agent and the Lenders, attesting that, on a pro forma basis,
the Company and its Subsidiaries shall not be insolvent or rendered insolvent,
be left with an unreasonably small capital with which to engage in their
business or have incurred debts beyond their ability to pay as such debts
mature;
(9) originally executed copies of the Pledge Agreement,
executed and delivered by the Pledgors, dated as of the Closing Date,
substantially in the form of Exhibit II annexed hereto;
(10) certificates representing the Capital Stock of FII,
VeloCom Inc. and each other entity pledged pursuant to the Pledge Agreement
(which certificates shall be accompanied by irrevocable, undated stock powers,
duly endorsed in blank and otherwise satisfactory in all respects to the
Arrangers);
(11) originally executed copies of the Warrant Agreement and
the warrants issued thereunder, each in form and substance satisfactory in all
respects to the Lenders, each executed and delivered by the Company and each
dated as of the Closing Date;
(12) a true, correct and complete copy of each Permit which
is either a license to provide telecommunications services or use frequencies;
(13) executed copies of a waiver, in form and substance
satisfactory in all respects to the Lenders, executed by the Majority Holders,
pursuant to which such Majority Holders waive all rights with respect to the
issuance of common stock purchase warrants to the Lenders under the Warrant
Agreement (and the issuance of common stock of the Company upon the exercise
thereof); and
(14) all such counterpart originals or certified copies of
such other documents, instruments, certificates and opinions as the Arrangers
may reasonably request.
(2) The Engagement Letter shall be in full force and effect, and
the Company shall be in compliance with all terms and provisions of the
Engagement Letter and the Fee Letter.
(3) The Company shall be in compliance with all terms and
provisions of the Warrant Agreement, all representations and warranties made by
the Company under the Warrant Agreement shall be true and correct in all
respects (with respect to representations and warranties qualified by
materiality or Material Adverse Effect) and in all material respects (with
respect to all other representations and warranties), and all conditions
precedent set forth in the Warrant Agreement shall have been satisfied to the
satisfaction of the Arrangers.
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(4) The Arrangers shall have completed, and be satisfied with the
results of, accounting, tax, legal and environmental due diligence
investigations of the Company and its Subsidiaries.
(5) The corporate, tax, capital and ownership
structure (including articles of incorporation and by-laws), shareholders
agreements and management of the Company and its Subsidiaries, shall be
satisfactory to the Arrangers in all material respects.
(6) The Agent, for the benefit of the Lenders, shall have been
granted first priority perfected liens and guarantees to the extent required and
described in this Agreement and shall have received such other reports,
documents and agreements as are customarily delivered in connection with similar
secured transactions or as the Agent shall have deemed appropriate.
(7) The Company shall have received all governmental (including
FCC and foreign approvals as necessary), shareholder and third party consents
and approvals necessary or desirable in connection with the financings and other
transactions contemplated hereby and expiration of all applicable waiting
periods without any action being taken by any competent authority that could
restrain, prevent or impose any materially adverse conditions on the financings
and other transactions contemplated hereby, and no such Law or regulation shall
be applicable which in the reasonable judgment of any Arranger could have any
such effect.
(8) The Agent shall have received (i) consolidated and
consolidating pro forma balance sheet of the Company and its Subsidiaries as of
December 31, 1999, (ii) consolidated and consolidating income statements of the
Company and its Subsidiaries as of December 31, 1999, and (iii) projected
financial statements (including balance sheets and statements of operations,
stockholders' equity and cash flows of the Company and its Subsidiaries) for the
five-year period after the Closing Date, and such balance sheets, income
statements and projections shall be satisfactory in all respects to the
Arrangers.
(9) The Agent shall have received consolidated financial
statements of the Company, including (i) balance sheets and income and cash flow
statements as of the end of and for each of the last two fiscal years audited by
the Auditors and prepared in conformity with GAAP, together with the Auditor's
report thereon satisfactory in all respects to the Arrangers and without a
"going concern" or like qualification or exception and without any qualification
or exception as to the scope of such audit; and (ii) unaudited selected
financial information of the Company meeting the requirements of Item 301(a) of
Regulation S-K for the three fiscal years immediately preceding the last two
fiscal years or since inception, whichever is less, and all such financial
statements shall be satisfactory in all respects to the Arrangers.
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(10) No event or occurrence shall have occurred which has resulted
or could reasonably be expected to result in a Material Adverse Effect since the
end of the most recently ended fiscal year for which audited financial
statements of the Company have been provided to the Arrangers or in the facts
and information as represented to date.
(11) There shall be no action, suit, investigation, litigation or
proceeding pending or threatened in any court or before any arbitrator or
governmental instrumentality that purports to affect the Loans or the Notes or
the other Loan Documents or the issuance of high yield or equity Securities by
the Company or that has had or could reasonably be expected to have or result in
a Material Adverse Effect.
(12) There shall be no disruption or adverse change in the
financial or capital markets generally, or in the market for new issuances of
high yield or equity Securities as a whole, or in the broadband communications
sector in particular, which could, in the judgment of any of the Arrangers, be
expected to materially impair the satisfactory syndication of the Loans (or the
refinancing thereof), or the placement of high yield or equity Securities issued
by the Company.
(13) The Agent shall have received reports and other information
in form, scope and substance satisfactory to the Agent concerning environmental
liabilities of the Company and its Subsidiaries.
(14) As of the Closing Date, the Company and its Subsidiaries
shall have no outstanding Indebtedness (except for Indebtedness of the Company
and its Subsidiaries for borrowed money in an aggregate amount not to exceed
$20,000,000, plus the Contingent Obligations of the Company and its Subsidiaries
described on Schedule B annexed hereto). Any and all security interests in the
assets of the Company and its Subsidiaries granted in favor of holders of
Indebtedness (other than Permitted Liens) shall have been terminated.
(15) On or before the Lending Date, the Company shall have paid to
the Lenders (i) all fees payable under the Fee Letter and (ii) the fees and
expenses incurred by the Lenders in connection with the negotiation,
preparation, execution and delivery of the Loan Documents and the transactions
related thereto (including the reasonable legal fees and out-of-pocket expenses
of counsel to the Lenders (including internal legal expenses)).
(16) On or before the Closing Date, the Company shall have
performed in all material respects all agreements which this Agreement provides
shall be performed on or before the Closing Date.
(17) Simultaneously with the making of the Loans by the Lenders,
the Company shall have delivered to the Agent an Officers' Certificate from the
Company in form and substance satisfactory to the Agent, certifying as to the
matters
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specified in Sections 3.1(p), 3.1(r) and 3.1(t) and that the other conditions
set forth in this Section 3.1 are satisfied on and as of the Closing Date.
(18) The representations and warranties in Section 4 are true,
correct and complete in all respects (with respect to representations and
warranties qualified by materiality or Material Adverse Effect) and in all
material respects (with respect to all other representations and warranties) on
and as of the Closing Date to the same extent as though made on and as of that
date.
(19) Neither the Company nor any of its Subsidiaries shall have
sustained any loss or interference with respect to its businesses or properties
from fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental proceeding,
which loss or interference, in the sole judgment of the Arrangers, has had or
could reasonably be expected to have a Material Adverse Effect.
(20) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by the Notice of
Borrowing which would constitute a Default or Event of Default.
(21) The making of the Loans in the manner contemplated in this
Agreement shall not violate the applicable provisions of Regulation T, U or X of
the Board of Governors of the Federal Reserve Board or any other regulation of
the Board.
(22) The Agent shall have received evidence reasonably
satisfactory to the Agent that Formus Polska and each other Subsidiary of the
Company having business, operations or activities in the Republic of Poland have
received all Permits necessary to operate each base station located in the
Republic of Poland and operated by Formus Polska or such other Subsidiary.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement
and to make the Loans, the Company represents and warrants to the Lenders that,
at the time of execution hereof and on the Lending Date, the following
statements are true, correct and complete:
4.1 Organization and Good Standing. Each of the Company and its
Subsidiaries is duly organized and existing and in good standing under the Laws
of its jurisdiction of organization. Each of the Company and its Subsidiaries
has the requisite power and authority to own and operate its properties and to
carry on its business as now conducted and as proposed to be conducted and is
duly qualified as a foreign organization and in good standing in all
jurisdictions in which it is doing business, except where failure to be so
qualified or in good standing, singly or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
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4.2 Authorization and Power. Each of the Company and its
Subsidiaries, to the extent a party thereto, has the requisite power and
authority, and has taken all action necessary, to execute, deliver and perform
its obligations under the Loan Documents and to issue the Notes.
4.3 No Conflicts or Consents.
(1) The execution and delivery of the Loan Documents, the
consummation of each of the transactions herein contemplated, the compliance
with each of the terms and provisions hereof or thereof, and the issuance,
delivery and performance of the Notes, do not and will not (i) violate any
material provision of any Law or any governmental rule or regulation applicable
to any of the Company and its Subsidiaries, the Certificate or Articles of
Incorporation or By-laws or other organizational documents of any of them or any
order, judgment or decree of any court or other agency of government binding on
any of them, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Permit or any Contractual
Obligation of any of the Company or its Subsidiaries, except for those
conflicts, breaches or defaults which would not result in a Material Adverse
Effect, (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of any of the Company or its Subsidiaries except
for Liens created pursuant to this Agreement, (iv) require any approval of
stockholders or any approval or consent of any Person under any Permit or any
Contractual Obligation of any of the Company or its Subsidiaries except for such
approvals or consents which will be obtained on or before the Closing Date and
disclosed in writing to Lenders.
(2) No consent, approval, authorization or order of any
Tribunal or other Person is required in connection with the execution and
delivery by the Company or any of its Subsidiaries, to the extent a party
thereto, of the Loan Documents or the consummation of the transactions
contemplated hereby or thereby, other than any such consent, approval,
authorization or order which has been obtained and remains in full force and
effect.
4.4 Enforceable Obligations. Each of the Loan Documents and
each other document or instrument to be delivered in connection therewith has
been duly authorized; each of the Loan Documents and each other document or
instrument to be delivered in connection therewith to be executed and delivered
on or prior to the Closing Date has been duly executed and delivered by the
Company and each of its Subsidiaries that are a party thereto; and each of the
Loan Documents and each other document or instrument to be delivered in
connection therewith to be executed and delivered on or prior to the Closing
Date is, and each of the Loan Documents to be executed and delivered after the
Closing Date will be, upon such execution and delivery, the legal, valid and
binding obligations of the Company and each such
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Subsidiary (to the extent a party thereto), enforceable in accordance with their
respective terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization or similar Laws
affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
4.5 Properties; Liens. Each of the Company and its
Subsidiaries has good, sufficient and legal title to all their respective
properties and assets, and all properties held under lease by any of them are
held under valid, subsisting and enforceable leases, and none of the Company or
its Subsidiaries is in default under any lease, except in each case for such
defects or defaults that, singly or in the aggregate, would not have a Material
Adverse Effect. Except for Permitted Liens, as reflected on Schedule D annexed
hereto, or as permitted by this Agreement, all such properties and assets owned
or leased are so owned or leased free and clear of Liens.
4.6 Financial Condition.
(1) The audited Financial Statements of the Company and its
Subsidiaries for the two-year period ended December 31, 1999, certified by the
Company's Auditors, copies of which have been delivered to the Agent, have been
prepared from, and are consistent with, the books and records of the Company and
its Subsidiaries and fairly present the consolidated financial position of the
Company and its Subsidiaries as at the respective dates thereof and the
consolidated results of operations and cash flows of the Company and its
Subsidiaries for the periods then ended, except as otherwise disclosed on
Schedule K. Except as disclosed on Schedule K, neither the Company nor any of
its Subsidiaries had at December 31, 1999, any material contingent liabilities,
liabilities for Taxes or long-term leases, unusual forward or long-term
commitments or unrealized or unanticipated losses from any unfavorable
commitments which are not reflected or reserved against in the foregoing
Financial Statements or in the notes thereto. No events or developments which
have had or could reasonably be expected to have a Material Adverse Effect have
occurred since December 31, 1999.
(2) The unaudited selected financial information of the
Company and its Subsidiaries meeting the requirements of Item 301(a) of
Regulation S-K for the three fiscal years immediately preceding the two fiscal
year period ended December 31, 1999 or since inception, whichever is less, a
copy of which has been delivered to the Agent, have been prepared from, and are
consistent with, the books and records of the Company and its Subsidiaries and
fairly present the consolidated financial position of the Company and its
Subsidiaries as of such date and the consolidated results of operations and cash
flows of the Company and its Subsidiaries for the period covered thereby,
subject to normal year-end audit adjustments, consistent with past practices.
Except as disclosed on Schedule K, neither the
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Company nor any of its Subsidiaries had on such date any material contingent
liabilities, liabilities for Taxes or long-term leases, unusual forward or
long-term commitment or unrealized or unanticipated losses from any unfavorable
commitment which are not reflected or reserved against in the foregoing
statements or in the notes thereto.
(3) The pro forma balance sheet of the Company and its
Subsidiaries as of December 31, 1999, a copy of which has heretofore been
furnished to the Agent, fairly presents the estimated consolidated opening
balance sheet of the Company and its Subsidiaries assuming the Loans had been
made as of December 31, 1999, and the financial condition of the Company on the
Closing Date does not differ in any material respect from the information
therein set forth.
(4) Upon giving effect to the Loans:
(1) The fair saleable value of the assets of the Company and
each of its Subsidiaries, on a stand-alone basis, exceeds the amount that will
be required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of such Person as they mature.
(2) The assets of each of the Company and its Subsidiaries,
on a stand-alone basis, do not constitute unreasonably small capital for any
such Person to carry out its business as now conducted and as proposed to be
conducted including the capital needs of any such Person, taking into account
the particular capital requirements of the business conducted by such Person,
and projected capital requirements and capital availability thereof in
accordance with the business plan of the Company and its Subsidiaries.
(3) The Company does not intend to, and does not intend to
permit any of its Subsidiaries to, incur debts beyond its ability to pay such
debts as they mature (taking into account the timing and amounts of cash to be
payable on or in respect of Indebtedness of each such Person). The cash flow of
the Company and each of its Subsidiaries, after taking into account all
anticipated uses of the cash of each such Person, will at all times be
sufficient to pay all amounts on or in respect of debt of each such company when
such amounts are required to be paid.
(4) The Company does not intend, and does not believe, that
final judgments against any of the Company or its Subsidiaries in actions for
money damages will be rendered at a time when, or in an amount such that, any
such Person will be unable to satisfy any such judgments promptly in accordance
with their terms (taking into account the maximum reasonable amount of such
judgments in any such actions and the earliest reasonable time at which such
judgments might be rendered). The cash flow of the Company and each of its
Subsidiaries, on a stand-alone basis, after taking into account all other
anticipated uses of the cash of each such Person (including the payments on or
in respect of Indebtedness referred to in
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paragraph (iii) of this Section 4.6(d)), will at all times be sufficient to pay
all such judgments promptly in accordance with their terms.
4.7 Full Disclosure. The financial projections (including,
without limitation, the pro forma financial statements included therewith)
heretofore furnished to the Agent by the Company are complete, were prepared by
or under the direction of an officer of the Company and were prepared in good
faith on the basis of information and assumptions that the Company believed to
be fair, complete and reasonable as of the date of such information, and which
assumptions are believed to be fair, complete and reasonable as of the date
hereof. All other factual information heretofore or contemporaneously furnished
in writing by or on behalf of the Company or any of its Subsidiaries to the
Agent or Lenders for purposes of or in connection with this Agreement does not
contain any untrue statement of a material fact or omit to state any material
fact necessary to keep the statements contained herein or therein, in light of
circumstances under which they were made, from being misleading. No fact is
known, no condition exists nor has any event occurred which has not been
disclosed herein or in any other document, certificate or statement furnished to
the Agent or the Lenders for use in the transactions contemplated hereby which,
singly or in the aggregate, has had or could reasonably be expected to have a
Material Adverse Effect.
4.8 No Default. No event has occurred and is continuing which
constitutes a Default or an Event of Default.
4.9 Compliance with Contracts, Etc. None of the Company or any
of its Subsidiaries is in violation of (i) its certificate of incorporation,
by-laws or other organizational documents or (ii) any material provision of any
applicable Law, ordinance, administrative or governmental rule or regulation, or
(iii) any order, decree or judgment of any Tribunal having jurisdiction over any
of them; no event of default or event that but for the giving of notice or the
lapse of time, or both, would constitute an event of default exists under any
material Contractual Obligation of the Company or any of its Subsidiaries,
except for those which would not result in a Material Adverse Effect.
4.10 No Litigation. Except as described in Schedule E attached
hereto, there is no Litigation pending or, to the best knowledge of the Company
after due investigation, threatened, by, against, or which may relate to or
affect (a) any benefit plan of the Company or any of its Subsidiaries or any
fiduciary or administrator thereof, or (b) the Company or any of its
Subsidiaries which, singly or in the aggregate, would reasonably be expected to
have a Material Adverse Effect. There are no outstanding injunctions or
restraining orders prohibiting consummation of any of the transactions
contemplated by the Loan Documents. There are no unsatisfied judgments against
the Company or any of its Subsidiaries or any of their respective
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businesses or activities in excess of $100,000. Except as specifically noted on
Schedule E, neither the Company nor any of its Subsidiaries has been advised
that there is a reasonable likelihood of an adverse determination of any
Litigation which adverse determination, should it occur, would have a Material
Adverse Effect.
4.11 Use of Proceeds; Margin Stock, Etc. The proceeds of the
Loans will be used solely for the purposes specified herein. None of such
proceeds will be used for the purpose of purchasing or carrying any Margin Stock
within the meaning of the applicable provisions of Regulation T, U or X, or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry a Margin Stock or for any other purpose which
might constitute this transaction a "purpose credit" within the meaning of the
applicable provisions of Regulation T, U or X. Neither the Company nor any of
its Subsidiaries has taken or will take any action which might cause any of the
Loan Documents to violate the applicable provisions of Regulation T, U or X, or
any other regulation of the Board of Governors of the Federal Reserve System.
4.12 Taxes. Except as set forth on Schedule L hereto, all Tax
returns required to be filed by the Company and each of its Subsidiaries have
been filed and all such re- turns are true, complete, and correct in all
material respects. All Taxes that are due or claimed to be due from the Company
and each of its Subsidiaries have been paid other than those (i) currently
payable without penalty or interest or (ii) being contested in good faith and by
appropriate proceedings and for which, in the case of both clauses (i) and (ii),
adequate reserves have been established on the books and records of the Company
and its Subsidiaries in accordance with GAAP. There are no proposed Tax
assessments against the Company or any of its Subsidiaries. To the best
knowledge and belief of the Company, the accruals and reserves on the books and
records of the Company and its Subsidiaries in respect of any Tax liability for
any Taxable period not finally determined are adequate to meet any assessments
of Tax for any such period.
4.13 ERISA.
(1) The Company, each Subsidiary and each of their respective
ERISA Affiliates are in compliance in all material respects with all applicable
provisions and requirements of the Internal Revenue Code and ERISA and the
regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan.
(2) No ERISA Events have occurred or are reasonably expected
to occur which individually or in the aggregate resulted in or might reasonably
be expected to result in a liability of the Company or any Subsidiary of the
Company or
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any of their respective ERISA Affiliates in excess of $500,000 during the term
of this Agreement.
(3) Except as disclosed on Schedule F annexed hereto and
except to the extent required under Section 4980B of the Internal Revenue Code,
no Employee Benefit Plan provides health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employees of the
Company or any Subsidiary or any of their respective ERISA Affiliates.
(4) In accordance with the most recent actuarial valuations,
the Amount of Unfunded Benefit Liabilities individually or in the aggregate for
all Pension Plans (excluding for purposes of such computation any Pension Plans
which have a negative Amount of Unfunded Benefit Liabilities), does not exceed
$500,000.
(5) The Company and each of its Subsidiaries and each of the
Foreign Plans are in compliance in all material respects with all applicable
Laws and regulations with respect to the Foreign Plans and the terms of the
Foreign Plans, and all required contributions have been made to the Foreign
Plans.
4.14 Government Regulation. Neither the Company nor any of its
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Investment Company Act of 1940 (as any
of the preceding acts have been amended) or other Law which regulates the
Incurrence by the Company or any of its Subsidiaries of Indebtedness, including,
but not limited to, Laws relating to common carriers or the sale of electricity,
gas, steam, water or other public utility services.
4.15 Capital Structure and Subsidiaries. The Company has no
interest in any Person other than the Subsidiaries of the Company set forth on
Schedule A and other Investments of the Company as set forth on Schedule G
attached hereto (as such schedules may be updated from time to time to give
effect to transactions permitted under the Loan Documents), and the Company will
own, free and clear of all Liens, claims or restrictions on voting or transfer
(other than Permitted Liens, interests described on Schedule D attached hereto
or as otherwise permitted by this Agreement), 100% of all classes of outstanding
Capital Stock of each of the entities set forth on such Schedule A, except as
specified on Schedule A. All of the issued and outstanding shares of Capital
Stock of the Company and of each of its Subsidiaries is duly authorized, validly
issued, fully paid and nonassessable and none of such Capital Stock constitutes
Margin Stock. Except as set forth on Schedule A, neither the Company nor any of
its Subsidiaries has granted or issued, or has agreed to grant or issue, any
puts, calls or other similar rights to any Person obligating the Company or any
of its Subsidiaries to purchase or redeem any Capital Stock or any options,
warrants or similar rights to any Person to acquire any shares of, or other
Securities convertible into, the Company's or any of its Subsidiaries' Capital
Stock
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other than stock options or phantom equity rights granted to directors, officers
and employees in the ordinary course of business.
4.16 Intellectual Property.
(1) Schedule H annexed hereto sets forth a complete and
correct list, as of the Closing Date, of: (i) all patented or registered
Intellectual Property and pending patent applications or applications for
registration of Intellectual Property owned or filed by or on behalf of the
Company or any of its Subsidiaries; (ii) all trade names and unregistered
trademarks or service marks owned by or used by the Company or any of its
Subsidiaries; and (iii) all licenses of Intellectual Property to which the
Company or any of its Subsidiaries is a party, either as licensee or licensor
other than "off the shelf" licenses. Except as set forth on Schedule H, the
Company and its Subsidiaries own or are licensed to use all Intellectual
Property necessary to permit the operation of their businesses as currently
conducted.
(2) Except as disclosed in Schedule H, no claim has been
asserted by any Person with respect to the use of any such Intellectual
Property, or challenging or questioning the validity or effectiveness of any
such Intellectual Property. Except as disclosed in Schedule H, to the knowledge
of the Company, the use of such Intellectual Property by the Company or any of
its Subsidiaries does not infringe on the rights of any Person, subject to
such claims and infringements as do not, in the aggregate, give rise to any
liabilities on the part of the Company or any of its Subsidiaries that would
have a Material Adverse Effect.
4.17 Environmental Matters. Except as set forth in Schedule C
annexed hereto:
(1) the operations of each of the Company and its Subsidiaries
(including, without limitation, all operations and conditions at or in the
Facilities) comply with all Environmental Laws except for any such noncompliance
which would not reasonably be expected to have a Material Adverse Effect;
(2) to the Company's knowledge, there are no Environmental
Laws, including such Laws which have been formally proposed for public comment,
which would reasonably be expected to result in material expenditures by the
Company or any of its Subsidiaries, and no such Environmental Laws would
reasonably be expected to interfere in any way with current or projected
operations of the Company or any of its Subsidiaries, in each case except for
such of the foregoing which would not reasonably be expected to have a Material
Adverse Effect;
(3) each of the Company and its Subsidiaries has obtained all
Permits under Environmental Laws necessary to their respective operations, and
all such Permits are in full force and effect, and each of the Company and its
Subsidiaries is in compliance with the terms and conditions of such Permits
except for any
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such failure to obtain, maintain or comply which would not reasonably be
expected to have a Material Adverse Effect;
(4) none of the Company or its Subsidiaries has received (a) a
written Environmental Claim except for an Environmental Claim which would not
reasonably be expected to have a Material Adverse Effect or (b) any request for
information under Section 104 of CERCLA or comparable foreign or state laws
regarding any matter which could reasonably be expected to result in a Material
Adverse Effect;
(5) none of the Company or its Subsidiaries is involved in any
investigation, response or corrective action relating to or in connection with
any Hazardous Materials at any Facility or at any other location except for such
of the foregoing which would not reasonably be expected to have a Material
Adverse Effect;
(6) none of the Company or its Subsidiaries or any Facilities
are subject to any judicial or administrative proceeding alleging the violation
of or liability under any Environmental Laws which if adversely determined could
reasonably be expected to have a Material Adverse Effect;
(7) none of the Company or its Subsidiaries or any of their
respective operations or any Facilities are subject to any outstanding written
order, decree or agreement with any governmental authority or private party
relating to (a) any actual or potential violation of or liability under
Environmental Laws or (b) any Environmental Claims except for such of the
foregoing which would not reasonably be expected to have a Material Adverse
Effect;
(8) none of the Company or its Subsidiaries has assumed by
contract, law or otherwise any obligation or liability under any Environmental
Law except for such of the foregoing which would not reasonably be expected to
have a Material Adverse Effect;
(9) none of the Company or its Subsidiaries or, to the best of
the Company's knowledge, any predecessor of any of the Company or its
Subsidiaries has filed any notice under any Environmental Law indicating past or
present treatment, storage or disposal of hazardous waste, as defined under 40
C.F.R. Parts 260-270 or any state equivalent except for such notices which would
not reasonably be expected to have a Material Adverse Effect;
(10) no Facilities are listed or proposed for listing on the
National Priorities List under CERCLA or listed on the Comprehensive
Environmental Response, Compensation and Liability Information System List
promulgated pursuant to CERCLA, or included on any similar list maintained by
any governmental authority except in each case for such of the foregoing which
would not reasonably be expected to have a Material Adverse Effect;
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(11) no Hazardous Materials exist on, under or about any
Facility in a manner that would reasonably be expected to give rise to an
Environmental Claim having a Material Adverse Effect, and none of the Company or
its Subsidiaries has filed any notice or report of a Release of any Hazardous
Materials that would reasonably be expected to give rise to an Environmental
Claim having a Material Adverse Effect;
(12) none of the Company or its Subsidiaries or, to the best
of the Company's knowledge, any of their respective predecessors has disposed
of, or arranged for the disposal or treatment of, any Hazardous Materials in a
manner or at any Facility or other location that would reasonably be expected to
give rise to an Environmental Claim having a Material Adverse Effect;
(13) no underground storage tanks, landfills or surface
impoundments are on, at or under any Facility except in each case for such of
the foregoing which would not reasonably be expected to have a Material Adverse
Effect; and
(14) no Lien in favor of any Person relating to or in
connection with any Environmental Claim has been filed or has been attached to
any Facility or other assets of the Company or any of its Subsidiaries except
for any such Lien which would not reasonably be expected to have a Material
Adverse Effect.
Notwithstanding anything in this Section 4.17 to the contrary,
there are no past or present events, conditions, circumstances or activities,
including, without limitation, any matter disclosed on Schedule C annexed
hereto, which may interfere with compliance by the Company or its Subsidiaries
with any Environmental Law, or which may give rise to any liability under any
Environmental Law which, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect.
4.18 Permits. Except as disclosed on Schedule I, the Company
and its Subsidiaries have, and immediately after the Loans will have all Permits
that are material to the condition (financial or otherwise), business,
operations, assets, property or prospects of the Company and its Subsidiaries,
taken as a whole. Except as disclosed on Schedule I, the Company and its
Subsidiaries have, and immediately after the Loans will have all German Permits
and all Polish Permits that are material to the German Operations or the Polish
Operations, as the case may be. The Company and its Subsidiaries are (and will
be immediately after the Loans) in compliance with all applicable Laws of all
Tribunals having jurisdiction over the conduct of their businesses, except (a)
other than with respect to the German Operations and the Polish Operations,
where failure to so comply would not adversely effect the conduct of business of
the Company and its Subsidiaries in the manner presently conducted and as
contemplated to be conducted, and (b) with respect to the German Operations and
the Polish Operations, where failure to do so would have an immaterial effect on
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the German Operations and the Polish Operations, as the case may be. All Permits
(other than the German Permits and the Polish Permits) are valid and in full
force and effect and will be valid and in full force and effect following the
making of the Loans, except to the extent lack thereof would not adversely
effect in any material respect the conduct of the business of the Company and
its Subsidiaries in the manner presently conducted and as contemplated to be
conducted. All German Permits and all Polish Permits are valid and in full force
and effect and will be valid and in full force and effect following the making
of the Loans, except to the extent lack thereof would have an immaterial effect
on the German Operations or the Polish Operations, as the case may be. Schedule
I annexed hereto sets forth a complete and correct list, as of the Closing Date,
of each Permit which is either a license to provide telecommunications services
or use frequencies and which is held by or granted to the Company and its
Subsidiaries, together with the expiration date thereof. The Company and its
Subsidiaries are, and immediately after the Loans will be, in compliance with
their respective obligations under the Permits, and no event has occurred that
allows, or after notice or lapse of time would allow, cancellation, revocation
or termination of such Permits, except for any such cancellation, revocation or
termination as would not (x) except with respect to the German Permits and the
Polish Permits, adversely effect in any material respect the business of the
Company and its Subsidiaries in the manner as presently conducted and as
contemplated to be conducted or (y) with respect to the German Permits and the
Polish Permits, have a material effect on the German Operations or the Polish
Operations, as the case may be. Except as otherwise set forth therein, all
Permits listed on Schedule I are final, and all appeal periods with respect
thereto have expired or terminated. The information set forth in each
application and any amendment or supplement thereto submitted in connection with
each Permit was accurate and complete in all material respects at the time of
submission. All amendments and supplements required to be filed by applicable
Law or by the terms of any Permit obtained by or on behalf of the Company or any
of its Subsidiaries have been filed by the time required. Except as described on
Schedule I hereto, to the best of the Company's and each of its Subsidiary's
knowledge, none of the Company or any of its Subsidiaries is party to any
investigation, notice of violation, order or complaint before any court or
regulatory body or of any other proceedings which could in any manner threaten
or adversely affect the validity or continued effectiveness of the Permits
listed on Schedule I. Except as described on Schedule I hereto, neither Company
nor any of its Subsidiaries has any reason to believe (other than in connection
with there being no legal assurance thereof) that the Permits listed on Schedule
I will not be renewed in the ordinary course.
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4.19 Insurance. The Company and its Subsidiaries carry or are
entitled to the benefits of insurance (including self-insurance) in such amounts
and covering such risks as is generally maintained by companies of established
repute engaged in the same or similar businesses, and all such insurance is (and
will be immediately after the Loans) in full force and effect.
4.20 Labor Matters. No labor disturbance by the employees of
the Company and its Subsidiaries exists or, to the best knowledge of the
Company, is threatened, and the Company is not aware of any existing or imminent
labor disturbance by the employees of the Company's or its Subsidiaries'
principal suppliers, manufacturers or customers that could, singly or in the
aggregate, have a Material Adverse Effect.
4.21 Guarantees. Each Guarantor has the full corporate or
other power, authority and capacity to execute and deliver its Guarantee and to
perform all of its obligations to be performed thereunder; all corporate and
other acts, conditions and things required to be done and performed or to have
occurred prior to such execution and delivery to constitute such Guarantee as a
valid and legally binding obligation of such Guarantor enforceable in accordance
with its terms shall have been done and performed and shall have occurred in due
compliance with all applicable Laws; the execution, delivery and performance of
such Guarantee by such Guarantor will not (i) violate any material provision of
Law or any provision of the charter or by-laws or other organizational documents
of such Guarantor, or (ii) result in a breach of, a default under (including,
without limitation, any event which with notice or lapse of time, or both, would
constitute a breach of or a default under), or the creation of any Lien on the
properties or assets of such Guarantor, the Company or any other Subsidiary of
the Company under any Contract or agreement to which such Guarantor or the
Company or such other Subsidiary is a party or by which the properties or assets
of such Guarantor, the Company or such other Subsidiary may be bound or
affected, except for those which would not have a Material Adverse Effect; each
Guarantee executed and delivered by a Guarantor shall constitute the legal,
valid, binding and unconditional obligations of such Guarantor executing and
delivering it to the Lenders hereunder, enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization or similar Laws affecting the
enforcement of creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law); and the foregoing representations and warranties of the Company
shall be deemed for all purposes to have been made on each date when a Guarantee
is delivered hereunder with respect solely to that Guarantee and the Guarantor
so issuing such Guarantee.
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4.22 Broker's or Finder's Fees. Except as disclosed on
Schedule J, no broker's or finder's fees or commissions will be payable by the
Company or any of its Subsidiaries with respect to any transaction contemplated
hereby and no similar fees or commissions will be payable by the Company or any
of its Subsidiaries for any other services rendered to the Company or any of its
Subsidiaries in connection with the transactions contemplated hereby and
thereby. The Company represents, warrants, covenants and agrees that the Company
will indemnify the Lenders and the Agent against, and hold each of them
completely harmless from and against, any and all claims, demands or liabilities
for broker's or finder's fees or similar fees or commissions asserted to have
been incurred in connection with any of the transactions contemplated hereby.
4.23 Operation of Business. From the end of the most recently
ended fiscal year for which audited financial statements of the Company have
been provided to the Arrangers, each of the Company and its Subsidiaries shall
have operated its business in the ordinary course.
SECTION 4A. REPRESENTATIONS AND WARRANTIES OF THE LENDERS
Each of the Lenders represents and warrants to the Company
that, at the time of execution hereof and on the Closing Date, the following
statements are true, correct and complete:
4A.1 Accredited Investor. Such Lender is an institutional
Accredited investor@ within the meaning of Regulation D of the Securities Act
and the Notes to be acquired by it pursuant to this Agreement are being acquired
for its own account and without a view to, or for resale in connection with, any
distribution thereof or any interest therein; provided that the provisions of
this Section shall not prejudice such Lender=s right at all times to sell or
otherwise dispose of all or any part of the Notes so acquired pursuant to the
terms of this Agreement, a registration under the Securities Act or an exemption
from such registration available under the Securities Act.
4A.2 Knowledge and Experience. Such Lender has such knowledge
and experience in financial and business matters so as to be capable of
evaluating the merits and risks of its investment in the Notes, such Lender is
capable of bearing the economic risks of such investment and such Lender has had
the opportunity to conduct its own due diligence investigation in relation to
its making of the Loans and the acquisition of the Notes hereunder.
4A.3 Source of Funds. No part of the funds used by such Lender
to make the Loans hereunder constitutes assets of any Aplan@ (as defined in
Section 4975 of the Internal Revenue Code).
SECTION 5. AFFIRMATIVE COVENANTS
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The Company covenants and agrees that, until the Loans and the
Notes and all other amounts due under this Agreement have been indefeasibly paid
in full in cash and all Commitments have terminated, it shall fully and timely
perform all covenants in this Section 5 required to be performed by it.
5.1 Financial Statements and Other Reports. The Company will
maintain, and cause each of its Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of consolidated financial statements in conformity with GAAP.
The Company shall timely deliver to the Agent the information listed below in
paragraphs (a) through (d) and shall timely give the Agent the notices listed
below in paragraphs (e) through (i):
(1) Annual Financial Statements. As soon as available, but not
later than 90 days after each Fiscal Year end: (i) the annual audited Financial
Statements of the Company and its Subsidiaries; (ii) a comparison in reasonable
detail to the prior year audited Financial Statements; (iii) the Auditors'
unqualified opinion and "Management Letter" subject to customary restrictions;
(iv) a narrative discussion of the consolidated financial condition and results
of operations and the consolidated liquidity and capital resources of the
Company and its Subsidiaries for such Fiscal Year, prepared by the chief
financial officer of the Company; and (v) a Compliance Certificate signed by the
chief financial officer and another Officer of the Company. All such Financial
Statements shall be prepared from and on a basis consistent with the books and
records of the Company and its Subsidiaries. All such Financial Statements shall
fairly represent the consolidated position of the Company and its Subsidiaries
as at the respective dates thereof and the consolidated results of operations
and cash flows of the Company and its Subsidiaries for the periods then ended.
(2) Quarterly Financial Statements. As soon as available, but
not later than 45 days after the end of each of the first three fiscal quarters:
(i) Financial Statements of the Company and its Subsidiaries as of the fiscal
quarter then ended, and for the Fiscal Year to date; (ii) a comparison in
reasonable detail to the Financial Statements for the corresponding periods of
the prior Fiscal Year; (iii) the certification of the chief executive officer or
chief financial officer of the Company that such Financial Statements have been
prepared in accordance with GAAP (subject to year-end audit adjustments); (iv) a
narrative discussion of the consolidated financial condition and results of
operations and the consolidated liquidity and capital resources of the Company
and its Subsidiaries for such fiscal quarter and Fiscal Year to date, prepared
by the chief financial officer of the Company; and (v) a Compliance Certificate
signed by the chief financial officer and another Officer of the Company. All
such Financial Statements shall fairly represent the consolidated position of
the
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Company and its Subsidiaries as at the respective dates thereof and the
consolidated results of operations and cash flows of the Company and its
Subsidiaries for the periods then ended (subject to year-end adjustments).
(3) Monthly Financial Statements. As soon as available, but
not later than 45 days after the end of each month: (i) a consolidated and
consolidating balance sheet for the Company and its Subsidiaries as at the end
of such month and for the Fiscal Year to date and consolidated and consolidating
statements of operations and cash flows for such month and for the Fiscal Year
to date; (ii) a comparison to the balance sheet, statement of operations and
statement of cash flows for the same year to date period in the prior year; and
(iii) a certification by the chief financial officer of the Company that such
balance sheet, statement of operations and statement of cash flows fairly
represent the consolidated position of the Company and its Subsidiaries as at
the respective dates thereof and the consolidated results of operations and cash
flows of the Company and its Subsidiaries for the periods then ended (subject to
year-end adjustments). All Financial Statements shall be in the form in which
they are prepared internally by the Company and its Subsidiaries.
(4) Further Assurances. When reasonably requested by the Agent
or any Lender, any further information regarding the business affairs and
financial condition of the Company or any of its Subsidiaries.
(5) Notice of Defaults. Promptly, and in any event within two
(2) Business Days after becoming aware of the occurrence of a Default or Event
of Default, a certificate of the chief executive officer or chief financial
officer of the Company specifying the nature thereof and the Company's proposed
response thereto, each in reasonable detail.
(6) Proceedings or Adverse Changes. Promptly, and in any event
within five (5) Business Days after the Company becomes aware of (i) any
proceeding being instituted by or against the Company or any Subsidiary in any
federal, state, local or foreign court or before any commission or other
regulatory body (federal, state, local or foreign) seeking an injunction or any
such proceeding being instituted or threatened which, if adversely determined,
could have a Material Adverse Effect, (ii) any order, judgment or decree in
excess of $1,000,000 being entered against the Company or any Subsidiary or any
of their respective properties or assets or (iii) any actual or prospective
change, development or event which has had or could reasonably be expected to
have a Material Adverse Effect, a written statement describing such proceeding,
order, judgment, decree, change, development or event and any action being taken
with respect thereto by the Company or any Subsidiary.
(7) ERISA Notices. (i) Promptly, and in any event within ten
(10) Business Days after the Company, any of its Subsidiaries or any ERISA
Affiliate
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knows that an ERISA Event has occurred, a written statement of the chief
financial officer of the Company describing such ERISA Event and any action that
is being taken with respect thereto by the Company, any such Subsidiary or ERISA
Affiliate, and any action taken or threatened by the Internal Revenue Service,
Department of Labor or the PBGC. The Company, such Subsidiary and the ERISA
Affiliate shall be deemed to know all facts known by the administrator of any
Employee Benefit Plan of which it is the plan sponsor; (ii) promptly, and in any
event within three (3) Business Days after the filing thereof with the Internal
Revenue Service, a copy of each funding waiver request filed with respect to any
Employee Benefit Plan and all communications received by the Company, any of its
Subsidiaries or any ERISA Affiliate with respect to such request; and (iii)
promptly, and in any event within three (3) Business Days after receipt by the
Company, any of its Subsidiaries or any ERISA Affiliate, of the PBGC's intention
to terminate an Employee Benefit Plan or to have a trustee appointed to
administer an Employee Benefit Plan, copies of each such notice.
(8) Environmental and Health and Safety Notices. Promptly, and
in any event within ten (10) Business Days after receipt by the Company or any
Guarantor of any notice, complaint or order alleging actual or prospective
violation in any material respect of any Environmental Law or health or safety
Law or alleging responsibility for costs of a cleanup, together with a copy of
such notice, complaint, or order and a written statement describing any action
being taken with respect thereto by the Company or any Subsidiary.
(9) Material Contracts and Permits. Promptly, and in any event
within ten (10) Business Days after any Material Contract or Permit is
terminated or amended or any new Material Contract or new Permit is entered into
or issued by or to the Company or any of its Subsidiaries, a written statement
describing such event, with copies of amendments or new contracts or Permits,
and an explanation of any actions being taken with respect thereto.
5.2 Corporate Existence, Etc. The Company will at all times
preserve and keep in full force and effect and cause each of its Subsidiaries to
preserve and keep in full force and effect its corporate (or other) existence
and rights and franchises to its business, except where the failure to so
preserve or keep such rights and franchises will not, singly or in the
aggregate, have a Material Adverse Effect.
5.3 Payment of Taxes and Claims; Tax Consolidation.
(1) The Company will, and will cause each of its Subsidiaries
to, pay all Taxes, assessments and other governmental charges imposed upon it or
any of its properties or assets or in respect of any of its franchises,
business, income or property before any penalty accrues thereon, and all claims
(including, without
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limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by Law have or may become a Lien upon any
of its properties or assets prior to the time when any material penalty or fine
shall be incurred with respect thereto; provided, however, that no such charge
or claim need be paid if it is a Contested Claim.
(2) The Company will not, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any consolidated, combined or
unitary income or franchise tax return with any Person (other than with the
Company or any of its Subsidiaries so long as the filing of such tax return is
permitted by applicable Law).
5.4 Maintenance of Properties; Insurance. The Company will
maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all properties used or useful in the business
of the Company and its Subsidiaries and from time to time promptly will make or
cause to be made all necessary repairs, renewals and replacements thereof;
provided, however, that nothing in this Section 5.4 shall prevent the Company or
any of its Subsidiaries from discontinuing the use, operation or maintenance of
any such properties, or disposing of any of them, if such action is in the
ordinary course of business or, in the reasonable good faith judgment of the
Company, necessary or desirable in the conduct of its business or otherwise
permitted by this Agreement. The Company will maintain or cause to be
maintained, with financially sound and reputable insurers or with self insurance
programs, in each case to the extent consistent with prudent business practices
and customary in its industries, insurance with respect to its properties and
business and the properties and businesses of its Subsidiaries against loss or
damage of the kinds (including, in any event, business interruption insurance)
and in the amounts customarily carried or maintained under similar circumstances
by corporations of established reputation engaged in similar businesses and
owning similar properties in the same general respective areas in which the
Company and its Subsidiaries operate.
5.5 Inspection. The Company shall permit any authorized
representatives designated by the Lenders to visit and inspect any of the
properties of the Company or its Subsidiaries, including, without limitation,
its and their financial and accounting records, and to make copies and take
extracts therefrom, and to discuss its and their affairs, finances and accounts
with its and their officers and independent public accountants, all upon
reasonable notice and at such reasonable times during normal business hours and
as often as may be reasonably requested.
5.6 Equal Security for Loans and Notes. If the Company or any
of its Subsidiaries shall create, assume or suffer to exist any Lien upon any of
their respective property or assets, whether now owned or hereafter acquired,
other than Liens permitted by the provisions of Section 6.2, the Company shall,
concurrently
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with the effectiveness of such Lien, make or cause to be made effective
provision whereby the Obligations under this Agreement will be secured by such
Lien equally and ratably with any and all other Indebtedness thereby secured as
long as any such Indebtedness shall be secured; provided, however, that this
covenant shall not be construed as or deemed to be a consent by the Lenders to
any violation of the provisions of Section 6.2.
5.7 Compliance with Laws, Etc. The Company shall and shall
cause each of its Subsidiaries to comply in all material respects with the
requirements of all applicable Laws of any Tribunal.
5.8 Maintenance of Accurate Records, Etc. The Company shall
keep, and will cause each of its Subsidiaries to keep, true books and records
and accounts in which full and correct entries will be made of all its
respective business transactions, and will reflect, and cause each of its
Subsidiaries to reflect, in its respective financial statements adequate
accruals and appropriations to reserves all in accordance with GAAP and
consistent with prior business practices.
5.9 Permits. The Company shall, and shall cause each of its
Subsidiaries to, at all times promptly obtain as required, preserve, maintain,
protect, keep in full force and effect and comply with all terms, conditions and
requirements of its respective Permits and other licenses, authorizations,
approvals and consents necessary or material in the conduct of its operations
and all rights and interests therein or thereunder, except (i) other than with
respect to the German Permits and the Polish Permits, where the failure do so
would not have a Material Adverse Effect, and (ii) with respect to the German
Permits and the Polish Permits, where the failure do so would have an immaterial
effect on the German Operations or the Polish Operations, as the case may be.
The Company shall, and shall cause each of its Subsidiaries to, at all times, as
promptly as practicable, obtain as required all Permits necessary to operate
each base station operated by the Company or such Subsidiary.
5.10 Permanent Financing.
(1) The Company shall, and shall cause each of its
Subsidiaries to, take all actions reasonably necessary or advisable to cause the
Take-Out Securities to be issued as promptly as practicable following the
Closing Date, the proceeds of which shall be used to repay the Loans in whole on
or before the Maturity Date.
(2) The Company agrees to provide to the Arrangers as soon as
reasonably practicable, but in no event later than sixty (60) days after the
Closing Date a complete draft of a registration statement or a Rule 144A
offering memorandum or other private placement memorandum relating to the
Permanent Financing, which contains all financial statements and other data to
be included therein (including all audited financial statements, all unaudited
financial statements (which shall have been reviewed by the independent
accountants for the Company as provided in
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Statement on Auditing Standards No. 71) and all appropriate pro forma financial
statements) prepared in accordance with, or reconciled to, GAAP and prepared in
accordance with Regulation S-X under the Securities Act.
(3) The Company further agrees to provide to DLJSC as soon as
reasonably practicable a complete printed preliminary prospectus or preliminary
offering memorandum or preliminary private placement memorandum suitable for use
in a customary road show relating to the issuance of debt or equity Securities
(including all audited financial statements, all unaudited financial statements
(which shall have been reviewed by the independent accountants for the Company
as provided in Statement on Auditing Standards No. 71) and all appropriate pro
forma financial statements) prepared in accordance with, or reconciled to, GAAP
and prepared in accordance with Regulation S-X under the Securities Act. The
Company shall, as soon as reasonably practicable, commence the preparation of
materials for a presentation to Standard & Poor's Rating Group and Xxxxx'x
Investors Service, Inc. for a rating on the new Securities, to the extent
constituting debt Securities.
(4) The Company covenants that it will, and will cause each of
its Wholly Owned Subsidiaries and each of its other Subsidiaries that is not a
Wholly Owned Subsidiary (other than Foreign Subsidiaries that are not Wholly
Owned Subsidiaries) to, enter into such agreements as in the reasonable judgment
of DLJSC are customary in connection with the Permanent Financing, make such
filings under the Securities Act, the Exchange Act, the Trust Indenture Act of
1939, as amended, and State or foreign securities laws as in the reasonable
judgment of DLJSC shall be required to permit consummation of the Permanent
Financing, and take such steps as in the reasonable judgment of DLJSC are
necessary to cause such filings to become effective or in the reasonable
judgment of DLJSC are otherwise required to consummate the Permanent Financing.
5.11 ERISA Compliance. Each of the Company and its
Subsidiaries will (a) make prompt payment of all contributions which it is
obligated to make under all Pension Plans and which are required to meet the
minimum funding standard set forth in ERISA with respect to each of the Pension
Plans, (b) within 30 days after the filing thereof, furnish to the Lenders each
Schedule B to the annual return/report (Form 5500 Series), required to be filed
with the Department of Labor and/or the Internal Revenue Service pursuant to
ERISA, with respect to each of the Pension Plans that is not a Multiemployer
Plan for each Plan year, and (c) notify the Lenders promptly upon becoming aware
of any fact, including but not limited to, any Reportable Event arising in
connection with any of the Pension Plans that is not a Multiemployer Plan, which
could be reasonably expected to constitute grounds for termination thereof by
the PBGC or for the appointment by the appropriate United
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Xxxxxx Xxxxxxxx Xxxxx of a trustee to administer such Pension Plan, together
with a statement as to the action, if any, proposed to be taken with respect
thereto.
5.12 Additional Guarantors. The Company will cause any Person
which becomes a Subsidiary of the Company, other than a Foreign Subsidiary,
(whether by creation, acquisition or otherwise) having total assets with a book
value in excess of $500,000 or earns, in any fiscal year, revenues in excess of
$500,000, and in the case of any such Subsidiary which does not have a book
value in excess of $500,000 or does not earn, in any fiscal year, revenues in
excess of $500,000, when such Subsidiary obtains assets with a book value in
excess of $500,000 or earns, in any fiscal year, revenues in excess of $500,000,
to execute and deliver a Joinder to Guarantee, in the form of Exhibit VII
annexed hereto, and otherwise in form and substance satisfactory to the Agent
(and with such documentation relating thereto as the Agent shall require,
including, without limitation, a supplement or amendment to this Agreement and
opinions of counsel as to the enforceability of such guarantee (subject to
customary exceptions)) pursuant to which such Subsidiary shall become a
Guarantor of the Loans and this Agreement in accordance with Section 9 with the
same effect and to the same extent as if such Person had been named herein as a
Guarantor.
5.13 Execution of Collateral Documents After the Closing Date.
In the event that the Company acquires Capital Stock of any Person after the
Closing Date, the Company will promptly notify the Agent of that fact and
execute and deliver to the Agent a counterpart of the Pledge Agreement, in all
respects satisfactory to the Lenders, and take all such further actions and
execute all such further documents and instruments (including, without
limitation, actions, documents and instruments comparable to those described in
Section 3.1(a)(x)) as may be necessary or, in the opinion of the Lenders,
desirable to create in favor of the Agent, for the benefit of the Lenders, a
valid and perfected first priority Lien on 100% of such Capital Stock owned by
the Company (except with respect to Capital Stock in a Person which (i) is not
organized under the laws of the United States, any state thereof or the District
of Columbia and (ii) conducts substantially all of its business operations in a
country other than the United States of America, in which case the Company shall
be required to pledge, in accordance with the foregoing provisions, the lesser
of (A) 65% of the outstanding Capital Stock of such Person or (B) 100% of the
Capital Stock of such Person owned by the Company).
5.14 Abrared S.A.
(1) The Company shall, and shall cause its Subsidiaries to,
cause the organizational and other agreements adopted and executed pursuant to
the Memorandum of Understanding to (i) provide FII with the voting rights as
substantially set forth in the Memorandum of Understanding and (ii) effectuate
the
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supermajority provisions as substantially set forth in the Memorandum of
Understanding.
(2) The Company shall, and shall cause its Subsidiaries to,
cause FII at all times to exercise its voting and other rights under the
agreements referred to in clause (a) above to prevent any action of Abrared S.A.
which would result in a default in the performance of or compliance with any
covenant, term or condition contained in this Agreement or the other Loan
Documents assuming, for the purposes of application of this clause (b) only,
that each reference to "Subsidiary" of the Company in this Agreement and the
other Loan Documents included Abrared S.A., except where compliance with this
clause (b) would cause FII or any of its Subsidiaries or any directors of
Abrared S.A. nominated or appointed by FII or any of its Subsidiaries to breach
its fiduciary duty to Abrared S.A. or to the other shareholders of Abrared S.A.
5.15 Delivery of Local Counsel Opinions After the Closing
Date. No later than ten (10) Business Days after the finalization and issuance
of Auctioned License Number 10 in Switzerland, the Company shall deliver to the
Agent originally executed copies of a favorable written opinion of local counsel
for the Company and the Guarantors in Switzerland, substantially in the form of
Exhibit VI annexed hereto (or otherwise in form and substance reasonably
satisfactory to the Lenders), addressed to the Lenders, addressing such items as
the Lenders may request, including the validity of the licenses used by the
Company and its Subsidiaries in Switzerland.
SECTION 6. NEGATIVE COVENANTS
The Company covenants and agrees that, until the Loans and the
Notes and all other amounts due under this Agreement have been indefeasibly paid
in full in cash and all Commitments have terminated, it shall fully and timely
perform all covenants in this Section 6.
6.1 Indebtedness. The Company shall not, nor shall it cause or
permit any of its Subsidiaries, directly or indirectly, to Incur any
Indebtedness, except for the following ("Permitted Indebtedness"):
(1) Obligations under the Loan Documents, including the Notes
and the Take-Out Securities;
(2) Indebtedness of the Company and its Subsidiaries
outstanding on the Closing Date and described on Schedule B reduced by the
amount of any scheduled amortization payments or mandatory prepayments when
actually paid or permanent reductions thereon;
(3) Interest Swap Obligations of the Company or any of its
Subsidiaries covering Indebtedness of the Company or any of its Subsidiaries and
Interest Swap Obligations of any Subsidiary of the Company covering Indebtedness
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of such Subsidiary; provided, however, that such Interest Swap Obligations are
entered into to protect the Company and its Subsidiaries from fluctuations in
interest rates on Indebtedness incurred in accordance with this Agreement to the
extent the notional principal amount of such Interest Swap Obligation does not
exceed the principal amount of the Indebtedness to which such Interest Swap
Obligation relates;
(4) Indebtedness under Currency Agreements; provided that in
the case of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the Company and its Subsidiaries
outstanding other than as a result of fluctuations in foreign currency exchange
rates or by reason of fees, indemnities and compensation payable thereunder;
(5) Indebtedness of a Subsidiary to the Company or to another
Subsidiary (other than Indebtedness owing to Formus Polska and Callino GmbH,
except to the extent such Indebtedness is funded through Investments in Formus
Polska or Callino GmbH, as the case may be, subsequent to the Closing Date) for
so long as such Indebtedness is held by the Company or a Subsidiary in each case
subject to no Lien held by a Person other than the Company or a Subsidiary
(except as set forth in Schedule D attached hereto); provided that if as of any
date any Person other than the Company or a Subsidiary owns or holds any such
Indebtedness or holds a Lien in respect of such Indebtedness, such date shall be
deemed the Incurrence of Indebtedness not constituting Permitted Indebtedness by
the issuer of such Indebtedness;
(6) Indebtedness of the Company to a Subsidiary for so long as
such Indebtedness is held by a Subsidiary, in each case subject to no Lien;
provided that (i) any Indebtedness of the Company to any Subsidiary is unsecured
and subordinated in right of payment, pursuant to a written agreement
satisfactory to the Required Lenders, to the Company's Obligations under the
Loan Documents and (ii) if as of any date any Person other than a Subsidiary
owns or holds any such Indebtedness or any Person holds a Lien in respect of
such Indebtedness, such date shall be deemed the Incurrence of Indebtedness not
constituting Permitted Indebtedness by the Company;
(7) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn against insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within five (5) Business Days of
Incurrence;
(8) Indebtedness of the Company or any of its Subsidiaries in
order to finance insurance premiums and other Indebtedness represented by
letters of credit for the account of the Company or such Subsidiary, as the case
may be, in order to provide security for workers' compensation claims, payment
obligations in
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connection with self-insurance or similar requirements, all in the ordinary
course of business;
(9) obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Subsidiary in the ordinary
course of business in accordance with customary industry practice, in amounts
and for purposes customary in the Company's industry;
(10) Indebtedness arising from agreements of the Company or a
Subsidiary providing for adjustment of purchase price, earn out or other similar
obligations, in each case, Incurred in connection with the disposition of any
business, assets, or a Subsidiary of the Company or any of its Subsidiaries,
other than guarantees of Indebtedness Incurred by any Person acquiring all or
any portion of such business, assets or Subsidiary for the purpose of financing
such acquisition, provided that the maximum assumable liability in respect of
all such Indebtedness shall at no time exceed the gross proceeds actually
received by the Company and its Subsidiaries in connection with such
disposition;
(11) Equipment Financing Obligations;
(12) Refinancing Indebtedness;
(13) Contingent Obligations of the Company, FII and Formus
International- Poland, Inc. under the WBD Line of Credit in an aggregate amount
not to exceed i50,000,000;
(14) Contingent Obligations of the Company or any of its
Subsidiaries to or supporting guarantees or deposits for the benefit of
governmental and regulatory agencies arising in connection with applications or
auctions for and issuances of and requirements under Permits in an aggregate
amount not to exceed $50,000,000 (or the equivalent amount in any other
currency); provided that the aggregate outstanding amount of such Contingent
Obligations not arising in connection with auctions for Permits shall not at any
time exceed $25,000,000 (or the equivalent amount in any other currency);
(15) Indebtedness of any Subsidiary of the Company
constituting loans made by the shareholders of such Subsidiary in connection
with shareholders and joint venture agreements;
(16) Acquired Indebtedness;
(17) Indebtedness in an aggregate amount not to exceed
$10,000,000 (or the equivalent amount in any other currency) in respect of
deferred purchase price with respect to acquisitions of Persons that will become
immediately after such transaction a Subsidiary of the Company or that will
merge or consolidate into the Company or a Subsidiary of the Company (so long as
the surviving entity of such merger or consolidation is the Company or a
Subsidiary);
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(18) pledges of equity interests of the borrower under
Equipment Financing Obligations and/or the immediate parent of such borrower in
connection with Equipment Financing Obligations;
(19) commitments to contribute capital (whether debt or
equity) to Subsidiaries in connection with Equipment Financing Obligations in an
aggregate amount not to exceed $50,000,000 (or the equivalent amount in any
other currency); and
(20) commitments to make Investments in Abrared S.A. which are
described in clause (xiii) of the definition in this Agreement of "Permitted
Investments".
6.2 Liens. The Company will not, and will not cause or permit
any of its Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Subsidiaries whether owned on the Closing
Date or acquired after the Closing Date, or any proceeds therefrom, or assign or
otherwise convey any right to receive income or profits therefrom, except for:
(i) Liens existing as of the Closing Date and described on
Schedule D to the extent and in the manner such Liens are in effect on the
Closing Date and described on Schedule D;
(ii) Liens securing the Notes and the Guarantees;
(iii) Liens of the Company or a Wholly Owned Subsidiary on
assets of any Subsidiary of the Company;
(iv) Liens securing Refinancing Indebtedness which is Incurred
to Refinance any Indebtedness which has been secured by a Lien permitted under
this Agreement and which has been Incurred in accordance with the provisions of
this Agreement; provided, however, that such Liens (y) are no less favorable to
the Lenders and are not more favorable to the lienholders with respect to such
Liens than the Liens in respect of the Indebtedness being Refinanced and (z) do
not extend to or cover any property or assets of the Company or any of its
Subsidiaries not securing the Indebtedness so Refinanced;
(v) Liens securing Equipment Financing Obligations Incurred in
accordance with the provisions of this Agreement; provided, however, that (a)
the Lien relates to assets of the Person Incurring such Indebtedness,
Subsidiaries of such Person and that such Person is a Subsidiary of and (b) the
Lien securing such Equipment Financing Obligations shall be created within 180
days of the acquisition of equipment financed with the proceeds of such
Equipment Financing Obligations;
(vi) Liens on cash accounts securing Indebtedness permitted
under Section 6.1(n) in an aggregate amount not to exceed $50,000,000 (or the
equivalent amount in any other currency) outstanding at any time; provided that
the aggregate
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outstanding amount of such Liens securing Indebtedness permitted under Section
6.1(n) not arising in connection with auctions for Permits shall not at any time
exceed $25,000,000 (or the equivalent amount in any other currency)
(vii) Liens securing Indebtedness permitted under Section
6.1(o); and
(viii) Permitted Liens.
6.3 Restricted Payments.
(1) The Company will not and will not cause or permit any of
its Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or
make any distribution (other than dividends or distributions payable in
Qualified Capital Stock of the Company) on or in respect of shares of the
Company's or its Subsidiary's Capital Stock to holders of such Capital Stock,
(ii) purchase, redeem or otherwise acquire or retire for value any Capital Stock
of the Company or any warrants, rights or options to purchase or acquire shares
of any class of such Capital Stock, (iii) make any principal payment on,
purchase, defease, redeem, prepay or otherwise acquire or retire for value,
prior to any scheduled final maturity, scheduled repayment or scheduled sinking
fund payment, any Subordinated Indebtedness or (iv) make any Investment (other
than Permitted Investments) (each of the foregoing actions set forth in clauses
(i), (ii), (iii) and (iv) being referred to as a "Restricted Payment").
(2) Notwithstanding the foregoing, the provisions set forth in
the immediately preceding paragraph do not prohibit: (i) dividends or
distributions payable to the Company or its Wholly Owned Subsidiaries; (ii)
dividends or distributions payable to the holders of minority interests of
Subsidiaries, to the extent pro rata dividends or distributions are concurrently
made to the Company and its Wholly Owned Subsidiaries; (iii) if no Default or
Event of Default shall have occurred and be continuing, the acquisition of any
shares of Capital Stock of the Company solely in exchange for shares of
Qualified Capital Stock of the Company but not the proceeds thereof; (iv) if no
Default or Event of Default shall have occurred and be continuing, the
acquisition of any Subordinated Indebtedness, either (1) solely in exchange for
shares of Qualified Capital Stock of the Company or (2) through the application
of net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of (A) shares of Qualified Capital Stock of the
Company; or (B) Refinancing Indebtedness; (v) so long as no Default or Event of
Default shall have occurred and be continuing, repurchases by the Company of
Common Stock of the Company from employees of the Company or any of its
Subsidiaries or their authorized representatives upon the death, disability or
termination of employment of such employees, in an amount not to exceed $500,000
in any calendar year and $1,000,000 in the aggregate, plus the aggregate cash
proceeds from any reissuance during such calendar year of Common Stock by the
Company to employ-
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ees, officers or directors of the Company and its Subsidiaries plus the
aggregate cash proceeds from any payments on life insurance policies in which
the Company or any of its Subsidiaries is the beneficiary with respect to any
employees, officers or directors of the Company and its Subsidiaries which
proceeds are used to purchase the Common Stock of the Company held by any such
employees, officers or directors; (vi) repurchases of Capital Stock deemed to
occur upon the exercise of stock options if such Capital Stock represents a
portion of the exercise price thereof; and (vii) repurchases of any Put Shares
in connection with notices received by the Company during the period of
September 30, 2000 through October 15, 2000 from Put Shareholders in accordance
with the terms of the Letter Agreements, for an aggregate purchase price equal
to the lesser of (a) sixty percent (60%) of the Excess and (b) $36,500,000.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Agent an Officers' Certificate stating that such
Restricted Payment complies with this Agreement and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal quarterly
financial statements.
6.4 Restriction on Fundamental Changes. Except as otherwise
permitted in this Agreement, the Company will not and will not cause or permit
any of its Subsidiaries to, directly or indirectly, in a single transaction or
series of related transactions, consolidate or merge with or into any Person, or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets, whether as an entirety or substantially as an
entirety to any Person.
For purposes of the foregoing, the transfer (by lease,
assignment, sale, merger, consolidation or otherwise, in a single transaction or
series of transactions) of all or substantially all of the properties or assets
of one or more Subsidiaries of the Company, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the Company
or such Subsidiary, as the case may be, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company or such
Subsidiary, as the case may be.
6.5 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries . Except as set forth in Schedule M, the Company will
not, and will not cause or permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or permit to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary of the Company to
(a) pay dividends or make any other distributions on or in respect of its
Capital Stock owned by the Company or any of its Subsidiaries; (b) make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Subsidiary of the Company; or
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(c) transfer any of its property or assets to the Company or any other
Subsidiary, except, with respect to (a), (b) and (c) above, for such
encumbrances or restrictions existing under or by reason of: (i) applicable Law;
(ii) the Loan Documents or the Take-Out Securities to the extent Incurred in
accordance with this Agreement; (iii) customary non-assignment provisions of any
contract or any lease governing a leasehold interest of any Subsidiary; (iv) any
instrument governing Acquired Indebtedness, which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person or the properties or assets of the Person so acquired; (v)
agreements existing on the Closing Date to the extent and in the manner such
agreements are in effect on the Closing Date; (vi) any restriction or
encumbrance contained in contracts for sale of assets permitted by this
Agreement in respect of the assets being sold pursuant to such contracts pending
the close of such sale, which encumbrance or restriction is not applicable to
any asset other than the asset being sold pursuant to such contract; (vii)
Equipment Financing Obligations; (viii) an agreement governing Indebtedness
Incurred to Refinance the Indebtedness Incurred pursuant to an agreement
referred to in clause (iv) or (v) above; provided, however, that the provisions
relating to such encumbrance or restriction contained in any such Indebtedness
are no less favorable to the Company in any material respect as determined by
the Board of Directors of the Company in their reasonable and good faith
judgment than the provisions relating to such encumbrance or restriction
contained in agreements governing the Indebtedness being Refinanced; (ix)
customary restrictions in joint venture arrangements or shareholder agreements;
or (x) Permits that impose restrictions of the nature described in clause (c)
above.
6.6 Transactions with Shareholders and Affiliates.
(1) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each an "Affiliate
Transaction"), other than (x) Affiliate Transactions permitted under paragraph
(b) below and (y) Affiliate Transactions on terms that are no less favorable to
the Company or the applicable Subsidiary than those that might reasonably have
been obtained in a comparable transaction at such time on an arm's-length basis
from a Person that is not an Affiliate of the Company or such Subsidiary. All
Affiliate Transactions (and each series of related Affiliate Transactions which
are similar or part of a common plan) involving aggregate payments or other
property with a fair market value in excess of $5,000,000 (or the equivalent
amount in any other currency) shall be approved by the Board of Directors of the
Company or such Subsidiary, as the case may be, such approval to be
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evidenced by a Board Resolution stating that such Board of Directors has
determined that such transaction complies with the foregoing provisions. If the
Company or any Subsidiary enters into an Affiliate Transaction (or a series of
related Affiliate Transactions related to a common plan) that involves an
aggregate fair market value of more than $10,000,000 (or the equivalent amount
in any other currency), the Company or such Subsidiary, as the case may be,
shall, prior to the consummation thereof, obtain a favorable opinion as to the
fairness of such transaction or series of related transactions to the Company or
the relevant Subsidiary, as the case may be, from a financial point of view,
from an Independent Financial Advisor and provide the same to the Agent;
provided, however, that a fairness opinion shall not be required with respect to
an Affiliate Transaction unless an executive officer, director or shareholder of
the Company (or an Affiliate of any of them) has an equity or debt interest in
the Affiliate party to the Affiliate Transaction (other than an indirect
interest held by virtue of an ownership interest in the Company).
(2) The restrictions set forth in clause (a) shall not apply
to (i) reasonable fees and compensation paid to and indemnity provided on behalf
of, officers, directors and employees of the Company or any of its Subsidiaries
as determined in good faith by the Company's Board of Directors or Senior
Officers in connection with compensation and retention of such Persons; (ii)
transactions exclusively between or among the Company and any of its
Subsidiaries or exclusively between or among any of the Subsidiaries of the
Company; provided such transactions are not otherwise prohibited by this
Agreement; (iii) Restricted Payments permitted by this Agreement; (iv) any
issuance of Securities or other payments, awards or grants in cash, Securities
or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans of the Company entered into in the ordinary
course of business in connection with director, officer and employee
compensation and approved by the Board of Directors; and (v) loans and advances
to employees and officers of the Company and its Subsidiaries in the ordinary
course of business for bona fide business purposes not in excess of $2,000,000
(or the equivalent amount in any other currency) at any time outstanding.
6.7 Business Activities. The Company shall not, nor shall the
Company cause or permit any of its Subsidiaries to, directly or indirectly,
materially alter the nature of the consolidated business of the Company and its
Subsidiaries from that in existence as of the Closing Date or similar or related
businesses.
6.8 Amendments to Charter Documents. The Company shall not,
nor shall it cause or permit any of its Subsidiaries to, amend its certificate
of incorporation or by-laws or any other organizational document in any respect
which could be materially adverse to the interests of the Lenders.
6.9 Asset Sales.
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(1) The Company shall not, nor shall it cause or permit any of
its Subsidiaries to, directly or indirectly, consummate any Asset Sale unless
(i) the aggregate of all Asset Sales does not exceed $5,000,000 (or the
equivalent amount in any other currency), (ii) the Company or such Subsidiary,
as the case may be, receives consideration therefor at the time thereof at least
equal to the fair market value at the time of such Asset Sale of the property,
assets or stock that is the subject of such Asset Sale, (iii) at least 85% of
the consideration received therefor by the Company or such Subsidiary is in the
form of cash or Cash Equivalents, and (iv) all of the Net Cash Proceeds in
respect thereof are applied by the Company or a Subsidiary in accordance with
Section 2.4(b)(i).
(2) The restrictions set forth in clauses (a)(i), (iii) and
(iv) above shall not apply to any Capital Stock owned by FII or any Subsidiary
of FII or any Capital Stock issued by any Subsidiary of FII, so long as, (i) to
the extent such transfer is for cash consideration, the proceeds of such
transfer are used, within ninety (90) days following such transfer or issuance
by FII or Subsidiaries of FII or its Subsidiaries own equity, for the purpose of
developing the broadband telecommunications business of FII and its Subsidiaries
and (ii) to the extent such transfer is not for cash consideration, it consists
of assets that are acquired within ninety (90) days of such equity issuance or
transfer and are appropriate, in the judgment of the Board of Directors of the
Company, for the purpose of developing the broadband telecommunication business
of FII and its Subsidiaries ("Replacement Assets"); provided that (1) the
aggregate amount of cash consideration and the aggregate fair market value of
Replacement Assets received in connection with all such transactions (a) shall
not exceed $20,000,000 (or the equivalent amount in any other currency), except
as permitted pursuant to clause (2) below and (b) not invested in the broadband
telecommunications business of Formus Polska and Callino GmbH shall not exceed
$10,000,000 (or the equivalent amount in any other currency), (2) Capital Stock
of Formus Polska and Callino GmbH may be so transferred or issued so long as,
after giving effect to such transfer or issuance, the Company will continue to,
directly or through Wholly Owned Subsidiaries, beneficially own and control an
amount of common equity of such Subsidiary and an amount of votes ordinarily
entitled, in the absence of contingencies, to vote in the election of directors
of such Subsidiary and on the approval of other matters subject to stockholder
vote equal, in each case, to 51% of the amount of such equity and votes held by
the Company and its Subsidiaries as of the Closing Date hereof, and (3) the cash
or other proceeds of any transfer or issuance of Capital Stock in Formus Polska
and Callino GmbH shall be required to be invested in the broadband
telecommunications business of Formus Polska and Callino GmbH.
SECTION 7. EVENTS OF DEFAULT
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If any of the following conditions or events ("Events of
Default") shall occur and be continuing:
7.1 Failure To Make Payments When Due. Failure to pay any
installment of principal of the Loans when due, whether at stated maturity, by
acceleration, by notice of prepayment or otherwise; or failure to pay any
Prepayment Premium or any interest on the Loans or any other amount due under
this Agreement within five (5) days or more after the date due; or
7.2 Default in Other Agreements. Failure of the Company or any
of its Subsidiaries to pay any principal or other amounts due on one or more
issues of Indebtedness of the Company or of any of its Subsidiaries (other than
Indebtedness referred to in Section 7.1) having an outstanding principal amount
of $5,000,000 or greater or breach or default by the Company or any of its
Subsidiaries with respect to any other term of any one or more issues of
Indebtedness of the Company or of any of its Subsidiaries having an outstanding
principal amount of $5,000,000 or greater or any agreement or instrument
evidencing or securing such Indebtedness and such default or breach results or,
with notice or the passage of time, would result in the acceleration of that
Indebtedness prior to its stated maturity (or permit the holders of such
Indebtedness to accelerate such maturity); or
7.3 Breach of Certain Covenants. Failure of the Company to
perform or comply with any covenant, term or condition contained in Section
2.4(b), Section 5.1(e), Section 5.2 or Section 6; or
7.4 Breach of Warranty. Any representation, warranty or
certification made or delivered by the Company or any of its Subsidiaries in any
Loan Document or in any statement or certificate at any time given by the
Company or any of its Subsidiaries in writing pursuant hereto or thereto or in
connection herewith or therewith shall be false or incorrect in any respect in
all respects (with respect to representations, warranties and certifications
qualified by materiality or Material Adverse Effect) and in all material
respects (with respect to all other representations, warranties and
certifications) on the date as of which made or deemed made; or
7.5 Other Defaults Under This Agreement or Loan Documents. The
Company or any of its Subsidiaries shall default in the performance of or
compliance with any covenant, term or condition contained in this Agreement or
the other Loan Documents (other than those covered by Sections 7.1, 7.3, 7.4, or
7.10) and such default shall not have been remedied or waived in accordance with
this Agreement within thirty (30) days after the date of written notice of such
default from the holder or holders of not less than 25% in aggregate principal
amount of the Loans then outstanding of such default; or
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7.6 Involuntary Bankruptcy; Appointment of Custodian, Etc. A
court of competent jurisdiction enters a Bankruptcy Order under any Bankruptcy
Law that:
(1) is for relief against the Company or any Subsidiary in an
involuntary case or proceeding, or
(2) appoints a Custodian of the Company or any Subsidiary for
all or substantially all of its properties, or
(3) orders the liquidation of the Company or any Subsidiary;
and in each case the order or decree remains unstayed and in effect for sixty
(60) days; or
7.7 Voluntary Bankruptcy; Appointment of Custodian, Etc. The
Company or any Subsidiary pursuant to or within the meaning of any Bankruptcy
Law:
(1) commences a voluntary case or proceeding, or
(2) consents to the entry of a Bankruptcy Order for relief
against it in an involuntary case or proceeding, or
(3) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(4) makes a general assignment for the benefit of its
creditors or files a proposal or scheme of arrangement involving the
rescheduling or composition of its indebtedness, or
(5) consents to the filing of a petition in bankruptcy against
it, or
(6) shall generally not pay its debts when such debts become
due or shall admit in writing its inability to pay its debts generally; or
7.8 Judgments and Attachments. Any money judgment, writ of
attachment or warrant of attachment, or similar process involving in any
individual case or in the aggregate at any time an amount in excess of
$5,000,000 (to the extent not covered by third-party insurance as to which the
insurance company has acknowledged coverage) shall be entered or filed against
the Company or any of its Subsidiaries or any of their respective properties or
assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of thirty (30) days or in any event later than five days prior to the
date of any proposed sale thereunder; or
7.9 Dissolution. Any order, judgment or decree shall be
entered against the Company or any Material Subsidiary decreeing the dissolution
or split-up of the Company or that Subsidiary and such order shall remain
undischarged or unstayed for a period in excess of 30 days; or
7.10 Guarantee. (a) Any Guarantee or any provision thereof
shall cease to be in full force or effect (other than in accordance with its
express terms), or (b) any Guarantor or any Person acting by or on behalf of
such Guarantor shall deny
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or disaffirm such Guarantor's obligations under its Guarantee, or (c) any
Guarantor shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed, after giving
effect to any applicable grace periods, pursuant to its Guarantee; or
7.11 Default Under Engagement Letter or in Payment of Fees.
The Company shall default in the performance of or compliance with any covenant,
term or condition contained in the Engagement Letter or the Fee Letter or
default in payment of fees to the Lenders or the Arrangers; or
7.12 Material Contracts and Permits. (a) The Company shall
breach or default under any Material Contract and such default or breach, if
capable of remedy, is not remedied in any applicable grace period, (b)(i) any
Permit shall expire, and on or prior to such expiration, the same shall not have
been renewed or replaced by another Permit authorizing substantially the same
operations, (ii) any Permit shall be cancelled, revoked, terminated, suspended
or modified or shall no longer be in full force and effect and shall not have
been renewed or replaced by another Permit authorizing substantially the same
operations, or (iii) the grant or the effectiveness of any such Permit shall
have been stayed, vacated, reversed or set aside, and, in each case, such action
shall no longer be subject to further administrative or judicial review, in each
case unless (x) except with respect to the German Permits and the Polish
Permits, it would not materially adversely effect the conduct of the business of
the Company and its Subsidiaries in the manner presently conducted and as
contemplated to be conducted, and (y) with respect to the German Permits and the
Polish Permits, it would have an immaterial effect on the German Operations or
the Polish Operations, as the case may be; or
7.13 Liens. Any of the Loan Documents to which the Company or
any Guarantor is a party shall for any reason fail to result in the Agent, for
the benefit of the Lenders, having a valid, first priority perfected Lien on the
collateral pledged under the Pledge Agreement; or
7.14 ERISA Event. An ERISA Event shall have occurred that, in
the opinion of the Required Lenders, when taken together with all other ERISA
Events that have occurred, has had or could reasonably be expected to result in
a Material Adverse Effect; or
7.15 Change of Control. A Change of Control shall occur; THEN
(i) upon the occurrence of any Event of Default described in the foregoing
Sections 7.6 or 7.7, all of the unpaid principal amount of and accrued interest
on the Loans and an amount as liquidated damages for the loss of the bargain
evidenced hereby (and not as a penalty) equal to the amount that would be
payable as a Prepayment Premium by the Company determined as of the date of the
occurrence of any Event of Default, and all other outstanding Obligations shall
automatically become
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immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by the
Company, and the Commitments of the Lenders hereunder shall thereupon terminate,
and (ii) upon the occurrence of any other Event of Default, the Agent shall,
upon written notice by Lenders holding in the aggregate more than 25% of the
outstanding principal amount of Loans, by written notice to the Company, declare
all of the unpaid principal amount of and accrued interest on the Loans and an
amount as liquidated damages for the loss of the bargain evidenced hereby (and
not as a penalty) equal to the amount that would be payable as a Prepayment
Premium by the Company determined as of the date of the occurrence of any Event
of Default, and all other outstanding Obligations to be, and the same shall
forthwith become, due and payable, and the Commitments of the Lenders hereunder
shall thereupon terminate. The provisions of clause (ii) above are subject to
the condition that if the principal of and accrued interest on all or any
outstanding Loans and the Prepayment Premiums and all other outstanding
Obligations have been declared immediately due and payable by reason of the
occurrence of any Event of Default other than an Event of Default described in
Sections 7.6 or 7.7, the Lenders holding in the aggregate more than 50% of the
outstanding principal amount of Loans may, by written instrument filed with the
Company, rescind and annul such declaration and the consequences thereof,
provided that at the time such declaration is annulled and rescinded:
(i) no judgment or decree has been entered for the payment of
any monies due pursuant to the Loans or this Agreement;
(ii) all arrears of interest upon all the Loans and all other
sums payable under the Loans and under this Agreement (except any
principal, interest or Prepayment Premium on the Loans which has become
due and payable solely by reason of such declaration under clause (ii)
above) shall have been duly paid; and
(iii) each and every other Default and Event of Default shall
have been made good, cured or waived pursuant to the terms of this
Agreement;
and provided further, that no such rescission and annulment shall extend to or
affect any subsequent Default or Event of Default or impair any right consequent
thereto. If an Event of Default shall occur and for as long as such Event of
Default shall be continuing, DLJ Bridge shall have the right (in consultation
with the other Arrangers) to designate one (1) representative to serve on the
Company's Board of Directors; provided, however, that such right shall terminate
if the Arrangers no longer retain at least 50% of the aggregate principal amount
of outstanding Loans. If DLJ Bridge (in consultation with the other Arrangers)
elects to make such designation, DLJ Bridge shall provide written notice to the
Company of the designated representative. No later than five (5) Business Days
after DLJ Bridge provides such notice to
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the Company, the Company shall provide written confirmation to DLJ Bridge that
such designated representative is a member of the Company's Board of Directors
and shall thereafter receive all notices and other benefits and rights of a
member of the Company's Board of Directors. The designated representative may be
replaced at any time at the sole election of DLJ Bridge by another
representative designated by DLJ Bridge.
SECTION 8. THE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and
appoints DLJ Bridge as Agent of such Lender to act as specified herein and in
the other Loan Documents, and each Lender hereby irrevocably authorizes DLJ
Bridge as the Agent to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. The Agent agrees to act as such upon the express
conditions contained in this Section 8. Notwithstanding any provision to the
contrary elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein or in the other Loan Documents, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Agent. The provisions of this Section 8 are solely for the benefit
of the Agent and the Lenders, and neither the Company nor any of its
Subsidiaries shall have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this Agreement,
the Agent shall act solely as agent of the Lenders and the Agent does not assume
and shall not be deemed to have assumed any obligation or relationship of agent
or trust with or for the Company or any of its Subsidiaries.
8.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties (including counsel to the Company). The Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by Section 8.3.
8.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or the other Loan Documents
(except for its or such Person's own gross negligence or willful misconduct as
finally and unappealably
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determined by a court of competent jurisdiction) or (b) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by the Company or any of its Subsidiaries or any of their
respective officers contained in this Agreement, any other Loan Documents, or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or any
other Loan Document or for any failure of the Company or any of its Subsidiaries
or any of their respective officers to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or the other Loan
Documents, or to inspect the properties, books or records of the Company or any
of its Subsidiaries. The Agent shall not be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectability or
sufficiency of this Agreement or any other Loan Document or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents in connection herewith
or therewith furnished or made by the Agent to the Lenders or by or on behalf of
the Company or any of its Subsidiaries to the Agent or any Lender or be required
to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
8.4 Reliance by Agent. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, facsimile,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company or any of its
Subsidiaries), independent accountants and other experts selected by the Agent.
The Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless it shall first receive
such advice or concurrence of the Required Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. As between the Agent and the Lenders, the
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders.
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8.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has actually received notice from a Lender or the
Company referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default." In the event that the
Agent receives such a notice, the Agent shall give prompt notice thereof to the
Lenders. The Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders; provided,
that, as between the Agent and the Lenders unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
8.6 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by the Agent
hereinafter taken, including any review of the affairs of the Company or any of
its Subsidiaries shall be deemed to constitute any representation or warranty by
the Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations, property,
financial and other condition, prospects and creditworthiness of the Company or
its Subsidiaries and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will, independently and
without reliance upon the 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 analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, assets, operations, property, financial and
other condition, prospects and creditworthiness of the Company and its
Subsidiaries. The Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
assets, liabilities, property, financial and other condition or creditworthiness
of the Company or any of its Subsidiaries which may come into the possession of
the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Agent
in its capacity as such ratably according to their respective "percentages" as
used in determining the Required Lenders at such time, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, ex-
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penses or disbursements of any kind whatsoever which may at any time (including,
without limitation, at any time following the payment of the Obligations) be
imposed on, incurred by or asserted against the Agent in its capacity as such in
any way relating to or arising out of this Agreement or any other Loan Document,
or any documents contemplated by or referred to herein or the transactions
contemplated hereby of any action taken or omitted to be taken by the Agent
under or in connection with any of the foregoing, but only to the extent that
any of the foregoing is not paid by the Company or any of its Subsidiaries;
provided, that no Lender shall be liable to the Agent for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
gross negligence or willful misconduct of the Agent as finally and unappealably
determined by a court of competent jurisdiction. If any indemnity furnished to
the Agent for any purpose shall, in the opinion of the Agent be insufficient or
become impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section 8.7 shall survive the payment of all
Obligations.
8.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Company and its Subsidiaries as though the Agent were
not the Agent hereunder. With respect to the Loans made by it and all
Obligations owing to it, the Agent shall have the same rights and powers under
this Agreement as any Lender and may exercise the same as though it were not the
Agent and the terms "Lender" and "Lenders" shall include the Agent in its
individual capacity.
8.9 Resignation of the Agent; Successor Agent. The Agent may
resign as the Agent upon ten (10) days' notice to the Lenders and the Company.
Upon the resignation of the Agent, the Required Lenders shall appoint from among
the Lenders a successor Agent for the Lenders, whereupon such successor agent
shall succeed to the rights, powers and duties of the Agent, and the term
"Agent" shall include such successor Agent effective upon its appointment, and
the resigning Agent's rights, powers and duties as the Agent shall be
terminated, without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent or delegate its duties to the Lenders, whereupon such successor
agent or the Lenders, as the case may be, shall succeed to the rights, powers
and duties of the Agent, and the term "Agent" shall include such successor Agent
or the Lenders, as the case may be, effective upon its or their appointment, and
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the resigning Agent's rights, powers and duties as the Agent shall be
terminated, without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement. After the resignation of the
Agent hereunder, the provisions of this Section 8 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 9. GUARANTEE
9.1 Unconditional Guarantee. Each Guarantor hereby
unconditionally, jointly and severally, guarantees (such guarantee to be
referred to herein as the "Guarantee") to each of the Lenders and to the Agent
and their respective successors and assigns, that the principal of and interest
and Prepayment Premium on the Loans will be promptly paid in full when due,
whether at maturity, by acceleration or otherwise and interest on the overdue
principal, if any, and interest on any interest, to the extent lawful, of the
Loans and all other obligations of the Company to the Lenders or the Agent
hereunder or thereunder (including the Obligations) will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; subject,
however, to the limitations set forth in Section 9.4. Each Guarantor hereby
agrees that its obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Loans or this Agreement or any
other Loan Document, the absence of any action to enforce the same, any waiver
or consent by any of the Lenders with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations (including, without limitation, payment of all
Obligations) contained in the Loans, this Agreement, the other Loan Documents
and in this Guarantee. If any Lender or the Agent is required by any court or
otherwise to return to the Company, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Guarantor, any amount paid by the Company or any Guarantor to the Agent or such
Lender, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Lenders and the Agent, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 7 for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such
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obligations as provided in Section 7, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Guarantor for the
purpose of this Guarantee.
9.2 Severability. In case any provision of this Guarantee
shall be invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
9.3 Release of a Guarantor. Upon the sale or disposition
(whether by merger, stock purchase, asset sale or otherwise) of a Guarantor (or
all or substantially all its assets) to an entity which is not a Subsidiary of
the Company and which sale or disposition is otherwise in compliance with the
terms of this Agreement, such Guarantor shall be deemed released from all
obligations under this Section 9 without any further action required on the part
of the Agent or any Lender.
The Agent shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Company accompanied by an
Officers' Certificate certifying as to the compliance with this Section 9.3. Any
Guarantor not so released remains liable in all respects with respect to its
Guarantee as provided in this Section 9.
9.4 Limitation of Guarantor's Liability. Each Guarantor and,
by its acceptance hereof each of the Lenders, hereby confirms that it is the
intention of all such parties that the guarantee by such Guarantor pursuant to
its Guarantee not constitute a fraudulent transfer or conveyance for purposes of
any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar Federal or state Law. To effect the
foregoing intention, the Lenders and such Guarantor hereby irrevocably agree
that the obligations of such Guarantor under the Guarantee shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to Section
9.5, result in the obligations of such Guarantor under the Guarantee not
constituting such fraudulent transfer or conveyance.
9.5 Contribution. In order to provide for just and equitable
contribution among the Guarantors, the Guarantors agree, inter se, that in the
event any payment or distribution is made by any Guarantor (a "Funding
Guarantor") under its Guarantee, such Funding Guarantor shall be entitled to a
contribution from all other Guarantors in a pro rata amount based on the
Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all
payments, damages and expenses incurred by that Funding Guarantor in discharging
the Company's obligations with respect to the Obligations. "Adjusted Net Assets"
of such Guarantor at any date shall mean the lesser of (x) the amount by which
the fair value of the property of
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such Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities Incurred on such date (other than liabilities of such
Guarantor under Subordinated Indebtedness)), but excluding liabilities under the
Guarantee, of such Guarantor at such date and (y) the amount by which the
present fair salable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liabilities of such
Guarantor on its debts, excluding debt in respect of the Guarantee of such
Guarantor, as they become absolute and matured.
9.6 Waiver of Subrogation. Until such time as all Obligations
on the Loans are paid in full, each Guarantor hereby irrevocably waives any
claim or other rights which it may now or hereafter acquire against the Company
that arise from the existence, payment, performance or enforcement of such
Guarantor's obligations under its Guarantee and this Agreement, including,
without limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Lender against the Company, 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 Company, 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 or other rights. If any amount shall be paid to any
Guarantor in violation of the preceding sentence and the Loans shall not have
been paid in full, such amount shall be deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Lenders,
and shall forthwith be paid to the Agent for the benefit of such Lenders to be
credited and applied upon the Loans, whether matured or unmatured, in accordance
with the terms of this Agreement. Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Agreement and that the waiver set forth in this Section 9.6
is knowingly made in contemplation of such benefits.
9.7 Waiver of Stay, Extension or Usury Laws. Each Guarantor
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other Law that
would prohibit or forgive such Guarantor from performing its Guarantee as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Agreement; and (to the
extent that it may lawfully do so) each Guarantor hereby expressly waives all
benefit or advantage of any such Law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Agent, but will
suffer and permit the execution of every such power as though no such Law had
been enacted.
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SECTION 10. MISCELLANEOUS
10.1 Representation of the Lenders. Each Lender hereby
represents that it is a commercial lender which makes loans in the ordinary
course of its business and that it will make the Loans hereunder for its own
account or the account of its affiliates in the ordinary course of such
business.
10.2 Participations in and Assignments of Loans and Notes.
(1) Each Lender shall have the right at any time to sell,
assign, transfer or negotiate all or any portion of its Loans or Commitment in
an aggregate amount of not less than $2,500,000 to any Eligible Assignee. In the
case of any sale, transfer or negotiation of all or part of the Loans or any
Commitment authorized under this Section 10.2(a), the assignee, transferee or
recipient shall become a party to this Agreement as a Lender by execution of an
assignment and assumption agreement; provided that (i) at such time Section
2.1(a) shall be deemed modified to reflect the Commitment of such new Lender and
of the existing Lenders, (ii) upon surrender of the Notes, new Notes will be
issued, at the Company's expense, to such new Lender and to the assigning
Lender, such new Notes to be in conformity with the requirements of Section
2.1(d) (with appropriate modifications) to the extent needed to reflect the
revised Commitment, and (iii) the Agent shall receive at the time of each such
assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $3,500; and provided, further, that such
transfer or assignment will not be effective until recorded by the Agent on the
Register pursuant to Section 10.23. To the extent of any assignment pursuant to
this Section 10.2(a), the assigning Lender shall be relieved of its obligations
hereunder with respect to its assigned Commitment, and the assignee, transferee
or recipient shall have, to the extent of such sale, assignment, transfer or
negotiation, the same rights, benefits and obligations as it would if it were a
Lender with respect to such Loans or Commitment, including, without limitation,
the right to approve or disapprove actions which, in accordance with the terms
hereof, require the approval of a Lender. At the time of each assignment
pursuant to this Section 10.2(a) to an Eligible Assignee which is not already a
Lender hereunder and which is not a United States Person (as such term is
defined in Section 7701(a)(30) of the Internal Revenue Code) for Federal income
tax purposes, the respective Eligible Assignee shall provide to the Company and
the Agent the appropriate Internal Revenue Service Forms (and, if applicable, a
Section 10.2(e)(ii) Certificate) described in Section 10.2(e).
(2) Each Lender may grant participations in all or any part of
its Loans or its Commitment to any Person (a "participant"); provided, however,
that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Company, the Agent and the
other Lenders shall
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continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Agreement and such Lender shall retain
the sole right to enforce the obligations of the Company relating to the Loans
and to approve any amendment, modification or waiver of any provision of this
Agreement (other than amendments, modifications or waivers with respect to any
fees payable hereunder or the amount of principal of or the rate at which
interest is payable on the Loans, or the dates fixed for payments of fees or
principal of or interest on the Loans or termination of the Commitment). The
Company agrees that each participant shall be entitled to the benefits of
Section 10.19 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 10.2(a); provided, however, that a
participant shall not be entitled to receive any greater payment under Section
10.19 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such participant, unless the sale of the
participation to such participant is made with the Company's prior written
consent. To the extent permitted by law, each participant also shall be entitled
to the benefits of Section 10.5 as though it were a Lender, provided such
participant agrees to be subject to Section 10.18(b) as though it were a Lender.
(3) The Company shall, at its own cost and expense, provide
such certificates, acknowledgments and further assurances in respect of this
Agreement and the Loans as any Lender may reasonably require in connection with
any participation, transfer or assignment pursuant to this Section 10.2.
(4) Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its Loan and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve Bank.
(5) Each Lender that is an assignee or transferee of an
interest under this Agreement pursuant to Section 10.2(a) (unless the respective
Lender was already a Lender hereunder immediately prior to such assignment or
transfer) and that is not a United States Person (as such term is defined in
Section 7701(a)(30) of the Internal Revenue Code) agrees to deliver to the
Company and the Agent, on the date of such assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 (or W-8ECI) or 1001 (or W-8BEN) (or successor forms)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code and cannot deliver either
Internal Revenue Service Form 1001 (or W-8BEN) or 4224 (or W-8ECI) pursuant to
clause (i) above, two accurate and complete original signed copies of Internal
Revenue Service Form W-8 (or successor form) certifying to such Lender's
entitlement to a complete exemption from United States withholding tax
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with respect to payments of interest to be made under this Agreement and under
any Note. In addition, each Lender agrees that, when a lapse in time or change
in circumstances renders the previous certification obsolete or inaccurate in
any material respect, it will deliver to the Company and the Agent two new
accurate and complete original signed copies of Internal Revenue Service Form
4224 (or W-8ECI) or 1001 (or W-8BEN), or Form W-8, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Lender to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any Note, or
it shall notify the Company and the Agent of its inability to deliver any such
Form or Certificate.
(6) In order to facilitate the sale or syndication of the
Loans, any of the Lenders may restructure the Loans made by such Lender into
different tranches, with different interest rates, rights to warrants and other
terms and conditions (which may include issuances of one or more tranches of
Notes or preferred equity securities) so long as the overall interest cost and
dilutive effect in respect of the Loans is not thereby increased.
10.3 Expenses. Whether or not the transactions contemplated
hereby shall be consummated, the Company agrees to promptly pay (a) all the
costs and expenses incurred by the Lenders in connection with the transactions
contemplated by the Loan Documents, including, without limitation, the
reasonable fees, expenses and disbursements of counsel to the Lenders (including
allocated costs of internal counsel) in connection with the negotiation,
preparation, execution and administration of the Loan Documents and the Loans
hereunder, and any amendments, modifications and waivers hereto or thereto and
consents to departures from the terms hereof and thereof; and (b) after the
occurrence of an Event of Default, all costs and expenses (including attorneys'
fees and costs of settlement) incurred by the Lenders or the Agent in enforcing
any Obligations of or in collecting any payments due from the Company or any
Guarantor hereunder or under the Notes or any other Loan Document by reason of
such Event of Default or in connection with any refinancing or restructuring of
the credit arrangements provided under this Agreement in the nature of a
"work-out" or in connection with any insolvency or bankruptcy proceedings.
10.4 Indemnity. In addition to the payment of expenses
pursuant to Section 10.3, whether or not the transactions contemplated hereby
shall be consummated, the Company agrees to indemnify, pay and hold each of the
Lenders, the Agent and any holder of any of the Notes, and each of their
respective officers, directors, employees, agents, representatives and
affiliates (collectively called the "Indemnitees"), harmless from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disburse-
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ments of any kind or nature whatsoever (including, without limitation, the
reasonable fees and disbursements of counsel for such Indemnitees in connection
with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Indemnitee shall be designated as a party
thereto), which may be suffered by, imposed on, incurred by, or asserted against
that Indemnitee, in any manner resulting from, connected with, in respect of,
relating to or arising out of this Agreement, the other Loan Documents, the
Commitment Letter, the Lenders' agreements to make the Loans or the use or
intended use of any of the proceeds of the Loans hereunder or the issuance of
the Take-Out Securities (the "indemnified liabilities"); provided, however, that
the Company shall have no obligation to an Indemnitee hereunder with respect to
indemnified liabilities (a) to the extent such liabilities are finally and
unappealably judicially determined by a court of competent jurisdiction to have
resulted solely from the gross negligence or willful misconduct of that
Indemnitee or (b) in connection with the obligations of any Indemnitee under any
Loan Document or for any transfer fees. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Company
shall contribute the maximum portion which it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by the Indemnitees or any of them.
10.5 Setoff. In addition to any rights now or hereafter
granted under applicable Law and not by way of limitation of any such rights,
upon the occurrence and during the continuance of any Default or Event of
Default, each Lender, the Agent and each subsequent holder of any Note and any
Affiliate thereof is hereby authorized by the Company and the Guarantors at any
time or from time to time, without notice to the Company or any Guarantor, any
such notice being hereby expressly waived, to set off and to appropriate and to
apply any and all deposits (general or special, including, but not limited to,
Indebtedness evidenced by certificates of deposit, whether matured or unmatured)
and any other Indebtedness or obligations at any time held or owing by the
Agent, such Lender, such subsequent holder or such Affiliate to or for the
credit or the account of the Company or such Guarantor against and on account of
the obligations and liabilities of the Company or such Guarantor to the Lenders
under this Agreement, the Notes and the other Loan Documents, including, but not
limited to, all claims of any nature or description arising out of or connected
with this Agreement, the Notes, the Guarantees or the other Loan Documents,
irrespective of whether or not (a) the Agent, such Lender, such subsequent
holder or such Affiliate shall have made any demand hereunder or (b) the Agent,
such Lender, such subsequent holder or such Affiliate shall have declared the
principal of or the interest on its portion of the Loans and its Notes and
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other amounts due hereunder to be due and payable as permitted by Section 7 and
although said obligations and liabilities, or any of them, may be contingent or
unmatured.
10.6 Amendments and Waivers. No amendment, modification,
termination or waiver of any term or provision of this Agreement, of the Notes,
any Guarantee or the Pledge Agreement or consent to any departure by the Company
or any Guarantor therefrom, shall in any event be effective without the prior
written concurrence of the Company or such Guarantor, as the case may be, and
the Required Lenders, and, upon the request of any Lender, the receipt of a
written opinion of counsel of the Company addressed to the Lenders to the effect
that such amendment, modification, termination, waiver or consent does not
violate or conflict with any of the terms and provisions of any Contractual
Obligation of the Company; provided, however, that without the prior written
consent of each Lender affected, an amendment, modification, termination or
waiver of this Agreement, any Notes, any Guarantee, the Pledge Agreement or
consent to departure from a term or provision hereof or thereof may not: (a)
reduce the principal amount of Notes whose holders must consent to any such
amendment, modification, termination, waiver or consent; (b) reduce the rate of
or extend the time for payment of principal or interest on any Note; (c) reduce
the principal amount of any Note; (d) make any Note payable in money other than
that stated in the Note; (e) make any change in the definition of Change of
Control, in the last paragraph of Section 7 or in this Section 10.6; (f) reduce
the rate or extend the time of payment of fees or other compensation payable to
the Lenders hereunder (including the Prepayment Premium); (g) increase the
amount of the Commitment; (h) release all or substantially all or a material
portion of the collateral purported to be subject to the Liens of the Pledge
Agreement (other than releases necessary to effectuate transactions otherwise
permitted under this Agreement); or (i) change the definition of "Required
Lenders"; and provided, further, that without the consent of the Agent, no such
amendment, modification, termination or waiver may amend, modify, terminate or
waive any provision of Section 8 as the same applies to the Agent or any other
provision of this Agreement or any other Loan Document as it relates to the
rights or obligations of the Agent. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on the Company in any case shall entitle the
Company to any further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this Section 10.6 shall be binding upon each Lender, and, if signed by the
Company or a Guarantor, on the Company and such Guarantor.
10.7 Independence of Covenants. All covenants hereunder shall
be given independent effect so that if a particular action or condition is not
permitted by
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any of such covenants, the fact that it would be permitted by an exception to,
or be otherwise within the limitation of, another covenant shall not avoid the
occurrence of a Default or Event of Default if such action is taken or condition
exists. For the purpose of determining compliance with any covenant contained
herein, if an item meets the criteria of more than one type of exception
described in such covenants or the definitions used therein, the Company or the
Subsidiary in question shall have the right to determine in its sole discretion
the category to which such item applies and shall not be required to include the
amount and type of such item in more than one of such categories and may elect
to apportion such item between or among two or more of such categories otherwise
applicable.
10.8 Entirety. The Loan Documents and the Fee Letter embody
the entire agreement of the parties and supersede all prior agreements and
understandings, if any, relating to the subject matter hereof and thereof.
10.9 Notices. Unless otherwise provided herein, any notice or
other communications herein required or permitted to be given shall be in
writing and may be personally served or delivered, telecopied, or sent by mail
and shall be deemed to have been given when delivered in person, upon receipt of
telecopy against receipt of answer back or four Business Days after depositing
it in the mail, registered or certified, with postage prepaid and properly
addressed; provided, however, that notices to the Agent and the Lenders shall
not be effective until received. For the purposes hereof, the addresses of the
parties hereto (until notice of a change thereof is delivered as provided in
this Section 10.9) shall be set forth under each party's name on the signature
pages hereto.
10.10 Survival of Warranties and Certain Agreements.
(1) All agreements, representations and warranties made herein
shall survive the execution and delivery of this Agreement, the making of the
Loans hereunder and the execution and delivery of the Notes and, notwithstanding
the making of the Loans, the execution and delivery of the Notes or any
investigation made by or on behalf of any party, shall continue in full force
and effect. The closing of the transactions herein contemplated shall not
prejudice any right of one party against any other party in respect of anything
done or omitted hereunder or in respect of any right to damages or other
remedies.
(2) Notwithstanding anything in this Agreement or implied by
Law to the contrary, the agreements of the Company set forth in Sections 10.3,
10.4, 10.14, 10.15, 10.17 and 10.19 shall survive the payment of the Loans and
the Notes and the termination of this Agreement.
10.11 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of the Agent or any Lender or any holder of any
Note in the exercise of any power, right or privilege hereunder, under a
Guarantee, under the
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Pledge Agreement or under the Notes shall impair such power, right or privilege
or be construed to be a waiver of any default or acquiescence therein, nor shall
any single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under this Agreement, under a Guarantee, the Pledge
Agreement or the Notes are cumulative to and not exclusive of any rights or
remedies otherwise available.
10.12 Severability. In case any provision in or obligation
under this Agreement, under a Guarantee, the Pledge Agreement or the Notes shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.13 Headings. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or given any
substantive effect.
10.14 Applicable Law. THIS AGREEMENT, EACH GUARANTEE, THE
PLEDGE AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
10.15 Successors and Assigns; Subsequent Holders of Notes.
This Agreement shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the permitted successors and assigns of the Lenders. The terms and provisions of
this Agreement, each Guarantee and the Pledge Agreement shall inure to the
benefit of any assignee or transferee of the Loans pursuant to Section 10.2(a),
and in the event of such transfer or assignment, the rights and privileges
herein conferred upon the Lenders shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof. In
determining whether the holders of a sufficient aggregate principal amount of
the Loans shall have consented to any action under this Agreement, any amount of
the Loans owned or held by the Company, any Guarantor or any of their respective
Affiliates shall be disregarded. The Company's rights or any interest therein
hereunder may not be assigned without the prior express written consent of each
of the Lenders.
10.16 Counterparts; Effectiveness. This Agreement and any
amendments, waivers, consents or supplements may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counter-
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parts together shall constitute but one and the same instrument. This Agreement
shall become effective upon the execution of a counterpart hereof by each of the
parties hereto, and delivery thereof to the Agent or, in the case of the
Lenders, written facsimile notice or telephonic notification (confirmed in
writing) of such execution and delivery. The Agent will give the Company and
each Lender prompt notice of the effectiveness of this Agreement.
10.17 Consent to Jurisdiction; Venue; Waiver of Jury Trial;
Currency.
(1) Any legal action or proceeding with respect to this
Agreement, any Note, any Guarantee or the Pledge Agreement may be brought in the
courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, each of
the parties to this Agreement hereby irrevocably accepts for itself and in
respect of its respective property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each of the parties to this Agreement
hereby further irrevocably waives any claim that any such courts lack
jurisdiction over itself, and agrees not to plead or claim, in any legal action
or proceeding with respect to this Agreement, the Notes, the Guarantees or the
Pledge Agreement brought in any of the aforesaid courts, that any such court
lacks jurisdiction over such party. Each of the parties to this Agreement
irrevocably consents to the service of process in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to such party, at its respective address for notices pursuant to
Section 10.9 or to the Process Agent in accordance with Section 10.17(d), such
service to become effective 30 days after such mailing. To the extent permitted
by Law, each of the parties to this Agreement hereby irrevocably waives any
objection to such service of process and further irrevocably waives and agrees
not to plead or claim in any action or proceeding commenced hereunder or under
any Note, any Guarantee or the Pledge Agreement that service of process was in
any way invalid or ineffective. Nothing herein shall affect the right of any
party to this Agreement to serve process in any other manner permitted by Law or
to commence legal proceedings or otherwise proceed against any party in any
other jurisdiction.
(2) Each of the parties to this Agreement hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Agreement, the Notes, the Guarantees or the Pledge Agreement brought
in the courts referred to in clause (a) above and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such action
or proceeding brought in any such court has been brought in an inconvenient
forum.
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(3) Each of the parties to this Agreement hereby irrevocably
waives all right to a trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement, the Notes, the Guarantees or the
Pledge Agreement or the transactions contemplated hereby or thereby.
(4) Each of the Company and the Guarantors hereby agrees that
service of all writs, process and summonses in any proceeding brought against it
in the State of New York may be made upon CT Corporation System, presently
located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process Agent"),
and each of the Company and the Guarantors hereby has irrevocably appointed the
Process Agent as its agent and true and lawful attorney-in-fact in its name,
place and stead to accept such service of any and all such writs, process and
summonses, and agrees that the failure of the Process Agent to give any notice
to it of any such service of process shall not impair or affect the validity of
such service or of any judgment based thereon. Each of the Company and the
Guarantors agrees to maintain at all times an agent with an office in New York
to act as Process Agent as aforesaid. Nothing herein shall in any way be deemed
to limit the ability to serve any such writs, process and summonses in any other
manner permitted by applicable law.
(5) If for the purpose of obtaining judgment in any court it
is necessary to convert a sum due hereunder or under a Loan from one currency
into another currency, the Company and each Lender agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that at
which, in accordance with normal banking procedures, such Lender could purchase
the first currency with such other currency on the day two (2) Business Days
preceding the day on which final judgment is given.
(6) To the extent permitted by applicable law, the obligations
of the Company in respect of any sum payable by it to a Lender shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
Dollars, be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment
Currency, such Lender may, in accordance with normal banking procedures,
purchase Dollars with the Judgment Currency; if the amount of Dollars so
purchased is less than the sum originally due to the Lender in Dollars
(determined in the manner set forth in Section 10.17(e) above), the Company
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Lender against such loss, and if the amount of Dollars so
purchased exceeds the sum originally due to the Lender, such Lender agrees to
remit to the Company such excess; provided that the Lender shall have no
obligation to remit any such excess as long as the Company shall have failed to
pay such Lender any obligations due and payable under this Agreement, the other
Loan Documents or the Engagement Letter, in which case such excess may be
applied to
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such obligations of the Company, in accordance with the terms of this Agreement,
the other Loan Documents and the Engagement Letter.
10.18 Payments Pro Rata.
(1) The Agent agrees that promptly after its receipt of each
payment of any interest or premium on or principal of the Loans from or on
behalf of the Company or any Guarantor, it shall, except as otherwise provided
in this Agreement, distribute such payment to the Lenders (other than any Lender
that has consented in writing to waive its pro rata share of such payment) pro
rata based upon their respective pro rata shares, if any, of such payment.
(2) Each of the Lenders agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Loan Documents, or otherwise)
which is applicable to the payment of the principal of, or interest on, the
Loans of a sum which with respect to the related sum or sums received by other
Lenders is in a greater proportion than the total of such Obligations then owed
and due to such Lender bears to the total of such Obligations then owed and due
to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the Company to
such Lenders in such amount as shall result in a proportional participation by
all of the Lenders in such amount; provided that, if all or any portion of such
excess amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
10.19 Taxes.
(1) Any and all payments by the Company hereunder or under any
of the other Loan Documents shall be made free and clear of and without
deduction or withholding for or on account of any and all present or future
Taxes, unless such deduction or withholding is required by Law or the
administration thereof and excluding in the case of each Lender and the Agent,
Taxes imposed on such Lender's or the Agent's net income and franchise taxes
imposed on such Lender or the Agent by the jurisdiction under the Laws of which
such Person is organized or any political subdivision thereof (all such
nonexcluded Taxes hereinafter referred to as "Covered Taxes"). If the Company
shall be required by Law or the administration thereof to deduct or withhold any
Covered Taxes from or in respect of any sum payable hereunder or under any other
Loan Document, (1) the sum payable shall be increased as may be necessary so
that after making all required deductions or withholdings (including deductions
or withholdings applicable to additional amounts paid under this paragraph), the
Lender receives an amount equal to the sum it would have
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received if no such deduction or withholding had been made; (2) the Company
shall make such deductions or withholdings; and (3) the Company forthwith shall
pay the full amount deducted or withheld to the relevant authority in accordance
with applicable Law.
(2) The Company agrees to pay forthwith any present or future
stamp, duty or documentary taxes or any other excise or property taxes, charges
or similar levies (all such taxes, charges and levies hereinafter referred to as
"Other Taxes") imposed by any jurisdiction (or any political subdivision or
taxing authority thereof or therein) which arise from any payment made by the
Company hereunder or under any other Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Document.
(3) The Company agrees to indemnify the Agent and each of the
Lenders for the full amount of Covered Taxes or Other Taxes not deducted or
withheld and paid by the Company in accordance with Section 10.19(a) and (b) to
the relevant authority and any Taxes other than Covered Taxes or Other Taxes
imposed by any jurisdiction on amounts payable by the Company under this Section
10.19 paid by the Lender or the Agent and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not any such Taxes or Other Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30 days from
the date the Agent or such Lender makes written demand therefor. A certificate
as to the amount of such Taxes or Other Taxes and evidence of payment thereof
submitted to the Company shall be prima facie evidence, absent manifest error,
of the amount due from the Company to the Agent or such Lender.
(4) The Company shall promptly furnish to the Agent and each
of the Lenders the original or a certified copy of a receipt evidencing any
payment of Taxes or Other Taxes made by the Company.
(5) The provisions of this Section 10.19 shall survive the
termination of the Agreement and repayment of all Obligations.
10.20 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other Law that
would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Loans as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the
performance of this Agreement; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such Law,
and covenants that it will not hinder, delay or
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impede the execution of any power herein granted to the Agent, but will suffer
and permit the execution of every such power as though no such Law had been
enacted.
10.21 Requirements of Law. In the event that any change in Law
occurring after the date that any lender becomes a Lender party to this
Agreement with respect to such Lender shall, in the opinion of such Lender,
require that any Commitment of such Lender be treated as an asset or otherwise
be included for purposes of calculating the appropriate amount of capital to be
maintained by such Lender or any corporation controlling such Lender, and such
change in Law shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital, as the case may be, as a consequence of
such Lender's obligations hereunder to a level below that which such Lender or
such corporation, as the case may be, could have achieved but for such change in
Law (taking into account such Lender's or such corporation's policies, as the
case may be, with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time following notice by such Lender to
the Company of such change in Law as provided in paragraph (b) of this Section
10.21, within fifteen (15) days after demand by such Lender, the Company shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such corporation, as the case may be, for such reduction.
10.22 Confidentiality. Each Lender shall hold all non-public
information obtained pursuant to the requirements of or in connection with this
Agreement which has been identified as confidential by the Company in accordance
with such Lender's customary procedures for handling confidential information of
this nature and in accordance with safe and sound banking practices, it being
understood and agreed by the Company that (a) in any event a Lender may make
disclosures reasonably required by any Eligible Assignee, transferee or
participant in connection with the contemplated assignment or transfer by such
Lender of any Loans or any participation therein or as required or requested by
any governmental agency or representative thereof or pursuant to legal process;
provided that unless specifically prohibited by applicable Law or court order,
each Lender shall notify the Company of any request by any governmental agency
or representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information, (b) a Lender may share with any of its Affiliates, and such
Affiliates may share with any Lender, any information related to the Company or
the Company's or their respective Affiliates (including information relating to
creditworthiness) and (c) a Lender may make disclosures in connection with the
enforcement hereof or any litigation relating hereto or to any other Loan
Document; and provided, further, that in no event shall any Lender be
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obligated or required to return any materials furnished by the Company or any of
its Subsidiaries. Notwithstanding the foregoing, each of the Lenders and the
Agent agree to keep all information relating to the WBD Line of Credit
(including the whole or any part of the WBD Line of Credit facility agreement or
any of the facility documents, whether in draft or final form) made available to
it (either before or after the date of the WBD Line of Credit facility agreement
or any of the facility documents) confidential and not to communicate or allow
communications of that information to any third party or use it for any purpose
except in connection with the transactions contemplated in the WBD Line of
Credit facility documents without the prior written consent of Westdeutsche
Landesbank (France) S.A., unless the exceptions and conditions outlined in
clause 34.1 of the WBD Line of Credit facility agreement and clause 14.1 of the
WBD Line of Credit security trust deed have been satisfied.
10.23 Register. The Company hereby designates the Agent to
serve as the Company's agent, solely for purposes of this Section 10.23, to
maintain a register (the "Register") on which it will record the Loans made by
each of the Lenders and each repayment in respect of the principal amount of the
Loans of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Company's obligations in respect of such Loans.
With respect to any Lender, the transfer of the Commitments of such Lender and
the rights to the principal of, and interest on, any Loan made pursuant to such
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Agent with respect to ownership of such Commitments
and Loans and prior to such recordation all amounts owing to the transferor with
respect to such Commitments and Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitments and
Loans shall be recorded by the Agent on the Register only upon the receipt by
the Agent of a properly executed and delivered assignment and assumption
agreement pursuant to Section 10.2(a). Coincident with the delivery of such an
assignment and assumption agreement to the Agent for acceptance and registration
of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes of the same type and
in the same aggregate principal amount shall be issued to the assigning or
transferor Lender and/or the new Lender.
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WITNESS the due execution hereof by the respective duly
authorized officers of the undersigned as of the date first written above.
COMPANY:
FORMUS COMMUNICATIONS, INC.
By:_____________________________
Xxxxxxx X. Xxxxxx
Senior Vice President
By:_____________________________
Xxxx X. Xxxxxxxx
Assistant Secretary
GUARANTORS:
FORMUS INTERNATIONAL, INC.
By:_____________________________
Xxxxxxx X. Xxxxxx
Senior Vice President
By:_____________________________
Xxxx X. Xxxxxxxx
Secretary
Formus Loan Agreement
105
FORMUS COMMUNICATIONS - LATIN AMERICA
HOLDINGS, LLC
By: Formus International, Inc.
Its Sole Manager
By:_____________________________
Xxxxxxx X. Xxxxxx
Senior Vice President
By:_____________________________
Xxxx X. Xxxxxxxx
Secretary
FORMUS INTERNATIONAL-POLAND, INC.
By:_____________________________
Xxxxxxx X. Xxxxxx
Senior Vice President
By:_____________________________
Xxxx X. Xxxxxxxx
Secretary
Formus Loan Agreement
106
FORMUS COMMUNICATIONS-CZECH REPUBLIC,
LLC
By: Formus International, Inc.
Its Sole Manager
By:_____________________________
Xxxxxxx X. Xxxxxx
Senior Vice President
By:_____________________________
Xxxx X. Xxxxxxxx
Secretary
FORMUS COMMUNICATIONS-ROMANIA, LLC
By: Formus International, Inc.
Its Sole Manager
By:_____________________________
Xxxxxxx X. Xxxxxx
Senior Vice President
By:_____________________________
Xxxx X. Xxxxxxxx
Secretary
Formus Loan Agreement
107
FORMUS COMMUNICATIONS-GERMANY, LLC
By: Formus International, Inc.
Its Sole Manager
By:_____________________________
Xxxxxxx X. Xxxxxx
Senior Vice President
By:_____________________________
Xxxx X. Xxxxxxxx
Secretary
Notice Address for the Company and each Guarantor:
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000 Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: W. Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Formus Loan Agreement
108
AGENT:
DLJ BRIDGE FINANCE, INC., as agent
By:_____________________________
Name:
Title:
Notice Address:
2121 Avenue of the Stars
Xxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn:
Formus Loan Agreement
109
LENDERS:
Commitment: $27,000,000 DLJ BRIDGE FINANCE, INC.
By:_____________________________ Name: Title:
Notice Address:
2121 Avenue of the Stars
Xxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn:
Formus Loan Agreement
110
Commitment: $27,000,000 SALOMON BROTHERS HOLDING
COMPANY INC.
By:_____________________________ Name: Title:
Notice Address:
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxx Xxxxxx
Formus Loan Agreement
111
Commitment: $21,000,000 CREDIT SUISSE FIRST BOSTON
By:_____________________________
Xxxxx X. Xxxxxx
Vice President
By:_____________________________
Name:
Title:
Notice Address:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxxx
Formus Loan Agreement
