EXHIBIT 99.2
I. The Parties
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Borrower: Interstate FiberNet, Inc., a Delaware corporation
(a wholly owned subsidiary of ITC/\DeltaCom, Inc.)
Joint Lead Arranger and
Joint Book-Runner: Xxxxxx Xxxxxxx Senior Funding, Inc. ("MSSF")
Joint Lead Arranger and
Joint Book-Runner: Bank of America ("BofA") or one of its affiliates.
Administrative Agent: MSSF
Syndication Agent: BofA or one of its affiliates
Documentation Agent: Xxxxxxx Xxxxx Credit Partners L.P. ("GSCP") or one
of its affiliates.
Lenders: MSSF, BofA, GSCP and a syndicate of financial
institutions and institutional lenders lead
arranged by MSSF and BofA with the consent of the
Borrower (which consent cannot be unreasonably
withheld).
Guarantors: All obligations under the Senior Bank Financing
shall be unconditionally guaranteed by the Parent
and each of the Parent's direct and indirect
wholly-owned subsidiaries (other than the Borrower
and any entity that is a controlled foreign
corporation ("CFC") under Section 957 of the
Internal Revenue Code (the Parent and all of such
subsidiaries being, collectively, the
"Guarantors")), subject to customary exceptions
and exclusions and release mechanics for
transactions of this type.
II. Description of Credit Facilities Comprising the Senior Bank Financing
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Tranche 1 Term B Facility: $100 million Tranche 1 Term B Facility.
Maturity and Amortization: The final maturity of the Tranche 1 Term B
Facility shall be the date which occurs 7 and 1/2
years after the Closing Date. The loans under the
Tranche 1 Term B Facility (the "Tranche 1 Loans")
shall amortize in quarterly amounts to be mutually
agreed upon (with the final such installment
payable on the 90/th/month anniversary of the
Closing Date); provided, however, that (i) if the
Borrower's convertible debt securities due in May
2006 are not converted or refinanced in full on
terms and conditions reasonably satisfactory to
the Lenders on or prior to April 15, 2006, the
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Tranche 1 Loans shall be due and payable in full
on April 15, 2006 and (ii) if the Borrower's
senior subordinated notes due in May 2007 are not
refinanced in full on terms and conditions
reasonably satisfactory to the Lenders on or prior
to April 15, 2007, the Tranche 1 Loans shall be
due and payable in full on April 15, 2007.
Tranche 2 Term B
Loan Facility: $60 million Tranche 2 Term B Facility.
Maturity and Amortization: The final maturity of the Tranche 2 Term B
Facility shall be the date which occurs 7 and 1/2
years after the Closing Date. The loans under
Tranche 2 Term B Facility (the "Tranche 2 Loans";
together with the Tranche 1 Loans, the "Term B
Loans") shall amortize in quarterly amounts to be
mutually agreed upon (with the final such
installment payable on the 90th month anniversary
of the Closing Date); provided, however, that (i)
if the Borrower's convertible debt securities due
in May 2006 are not converted or refinanced in
full on terms and conditions reasonably
satisfactory to the Lenders on or prior to April
15, 2006, the Tranche 1 Loans shall be due and
payable in full on April 15, 2006 and (ii) if the
Borrower's senior subordinated notes due in May
2007 are not refinanced in full on terms and
conditions reasonably satisfactory to the Lenders
on or prior to April 15, 2007, the Tranche 2 Loans
shall be due and payable in full on April 15,
2007.
Use of Proceeds: The Tranche 1 Loans shall be utilized (x) to
finance working capital, capital expenditures
(including the build-out of the collocation and
data services businesses) and other general
corporate purposes, (y) to finance, in part, the
Transaction and (z) to pay fees and expenses
incurred in connection with the Transaction. The
Tranche 2 Loans shall be utilized solely to
finance the purchase of equipment.
Availability: Term B Loans may only be borrowed on the Closing
Date. No amount of Term B Loans once repaid may be
reborrowed. The proceeds from the Tranche 2 Loans
shall be deposited into an escrow account on terms
and conditions mutually agreed by the Borrower and
the Lenders and shall be released from escrow from
time to time to finance the purchase of equipment.
III. Terms Applicable to the Entire Senior Bank Financing
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Closing Date On or before March 31, 2000.
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Security: The Borrower and each of the Guarantors shall
grant the Administrative Agent and the Lenders a
valid and perfected first priority (subject to
certain exceptions to be set forth in the loan
documentation) lien and security interest in all
of the following:
(a) All shares of capital stock (or other
ownership interests in) and intercompany
debt held and/or owned by the Borrower
and each present and future subsidiary
of the Borrower or such Guarantor,
limited, in the case of each CFC, to 66%
of the voting stock of such entity.
(b) All present and future property and
assets, real and personal, of the
Borrower or such Guarantor, including,
but not limited to, machinery and
equipment, inventory and other goods,
accounts receivable, owned real estate,
leaseholds, fixtures, bank accounts,
general intangibles, license rights,
patents, trademarks, tradenames,
copyrights, chattel paper, insurance
proceeds, contract rights, hedge
agreements, documents, instruments,
indemnification rights, tax refunds and
cash.
(c) All proceeds and products of the
property and assets described in clauses
(a) and (b) above.
At the reasonable request of the Borrower made
prior to the Closing Date, assets will be excluded
from the collateral in circumstances where the
Joint Lead Arrangers and the Borrower determine
that the economic detriment to the Borrower of
taking security interests in such assets would be
excessive in view of the related benefits to be
received by the Lenders.
The Tranche 2 Loans shall be secured solely by the
equipment purchased with the proceeds of the
Tranche 2 Loans until such time as the relevant
restrictions contained in the public debt
indentures of the Parent or any other agreements
now or hereafter in effect are no longer
applicable and thereafter shall be secured by all
of the assets of the Borrower and the Guarantors
(provided that any indenture or other agreement
entered into after the date of the Commitment
Letter shall not be more restrictive in respect of
liens securing the Credit Facilities than the
least restrictive indenture or other agreement in
effect on the date of the Commitment Letter). The
Tranche 1 Loans shall be secured by all of the
other assets of the Borrower and the Guarantors.
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Interest Rates: At the option of the Borrower, Loans may be
maintained from time to time as (x) Base Rate
Loans which shall bear interest at the Applicable
Margin in excess of the Base Rate in effect from
time to time or (y) Eurodollar Loans which shall
bear interest at the Applicable Margin in excess
of the Eurodollar Rate (adjusted for maximum
reserves) as determined by the Administrative
Agent for the respective interest period.
"Base Rate" shall mean the higher of (x) 1/2 of 1%
in excess of the federal funds rate and (y) the
rate that the Administrative Agent announces from
time to time as its prime or base commercial
lending rate, as in effect from time to time.
The "Applicable Margin" means at any time (i) for
Eurodollar Loans, TBD% per annum and (ii) for Base
Rate Loans, TBD% per annum.
During the continuance of any default under the
loan documentation, the Applicable Margin on all
obligations owing under the loan documentation
shall increase by 2% per annum.
Interest periods of 1, 2, 3 and 6 months shall be
available in the case of Eurodollar Loans.
Interest in respect of Base Rate Loans shall be
payable quarterly in arrears on the last business
day of each quarter. Interest in respect of
Eurodollar Loans shall be payable in arrears at
the end of the applicable interest period and
every three months in the case of interest periods
in excess of three months. Interest will also be
payable at the time of repayment of any Loans, and
at maturity. All interest and commitment fee and
other fee calculations shall be based on a 360-day
year, provided that interest calculated by
reference to the Base Rate shall be based on a
365/366-day year.
Joint Lead Arrangers
and Administrative
Agent Fees: MSSF, BofA and the Administrative Agent shall
receive such fees as have been separately agreed
upon with the Borrower.
Voluntary Prepayment: The Borrower may, upon at least one business day's
notice in the case of Base Rate Loans and three
business days' notice in the case of Eurodollar
Loans, prepay, in full or in part, the Senior Bank
Financing without premium or penalty (except as
set forth below); provided, however, that each
partial prepayment shall be in an amount of
$5,000,000 or an integral multiple of $1,000,000
in excess thereof; provided further that any such
prepayment of
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Eurodollar Loans shall be made together with
reimbursement for any funding losses of the
Lenders resulting therefrom. Any voluntary
prepayment of the Term B Loans (u) during the
first year following the Closing Date, shall be
made at 103% of the principal amount so prepaid,
(v) during the first six months of the second year
following the Closing Date, shall be made at 102%
of the principal amount so prepaid, (w) during the
second six months of the second year following the
Closing Date, shall be made at 101.5% of the
principal amount so prepaid, (x) during the first
six months of the third year following the Closing
Date, shall be made at 101% of the principal
amount so prepaid, and (y) during the second six
months of the third year following the Closing
Date, shall be made at 100.5% of the principal
amount so prepaid and (z) thereafter shall be made
at 100% of the principal amount so prepaid.
Mandatory Prepayment
and Commitment
Reduction: All net cash proceeds (a) from sales of property
and assets of the Borrower and its subsidiaries
(excluding (i) sales of inventory in the ordinary
course of business, (ii) sales of obsolete
equipment up to an aggregate amount equal to $50
million and (iii) other exceptions to be agreed
upon and subject to a 360-day reinvestment
provision to be negotiated), and (b) of
Extraordinary Receipts * (to be defined in the
loan documentation and to exclude cash receipts in
the ordinary course of business, and subject to a
360-day reinvestment provision to be negotiated),
and, on and after a date to be mutually agreed, a
percentage to be mutually agreed of Excess Cash
Flow (to be defined in the loan documentation) of
the Borrower and its subsidiaries shall be applied
to prepay ratably the principal repayment
installments of each of the Credit Facilities on a
pro rata basis.
Documentation: The commitment of MSSF and BofA will be subject to
the negotiation, execution and delivery of
definitive financing agreements (and related
security documentation, guaranties, etc.)
consistent with the terms of this letter, in each
case prepared by counsel to MSSF.
_________________________
* This would include items such as tax refunds, indemnity payments, pension
reversions and certain insurance proceeds that are probably not covered as
"asset sale" proceeds.
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Conditions Precedent
to Initial Extension
of Credit: Those customarily found in credit agreements for
similar secured financings and others appropriate
in the reasonable judgment of MSSF and BofA for
the Transaction, including, without limitation,
the following:
(a) The final terms and conditions of the
Transaction, including, without limitation,
all legal and tax aspects thereof, shall be
(i) as described in the Commitment Letter and
otherwise consistent with the description
thereof received in writing as part of the
Pre-Commitment Information and (ii) to the
extent any material terms of the Transaction
are not so described or differ from such
description, otherwise reasonably
satisfactory to the Lenders.
(b) All documentation relating to the Senior Bank
Financing, including a credit agreement
incorporating substantially the terms and
conditions outlined herein, and the other
parts of the Transaction shall be in form and
substance reasonably satisfactory to the
Lenders.
(c) The Lenders shall be satisfied with the
corporate and legal structure and the terms
and conditions of the capitalization of the
Borrower and each of the Guarantors,
including, without limitation, the charter
and bylaws of the Borrower and each such
Guarantor and each agreement or instrument
relating thereto.
(d) All capital stock of the Borrower shall be
owned by the Parent and all capital stock of
the Borrower's subsidiaries shall be owned by
the Borrower or one or more of the Borrower's
subsidiaries, in each case free and clear of
any lien, charge or encumbrance, other than
the liens and security interests created
under the loan documentation; the Lenders
shall have a valid and perfected first
priority (subject to certain exceptions to be
set forth in the loan documentation) lien and
security interest in such capital stock and
in the other collateral referred to under the
section "Security" above; all filings,
recordations and searches necessary or
desirable in connection with such liens and
security interests shall have been duly made
(subject to certain exceptions to be set
forth in the loan documentation); and all
filing and recording fees and taxes shall
have been duly paid.
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(e) There shall have occurred no material adverse
change in the business, condition (financial
or otherwise), operations, performance,
properties or prospects of the Parent and its
subsidiaries, taken as a whole.
(f) There shall exist no action, suit,
investigation, litigation or proceeding
pending or threatened in any court or before
any arbitrator or governmental or regulatory
agency or authority that (i) could reasonably
be expected to (A) have a material adverse
effect on the business, condition (financial
or otherwise), operations, performance,
properties or prospects of the Borrower and
its subsidiaries, taken as a whole, (B)
materially adversely affect the ability of
the Borrower or any Guarantor to perform its
obligations under the loan documentation or
(C) materially adversely affect the rights
and remedies of the Administrative Agent and
the Lenders under the loan documentation or
(ii) could reasonably be expected to have a
material adverse effect on the Transaction or
the Senior Bank Financing (collectively, a
"Material Adverse Effect").
(g) All governmental and third party consents and
approvals necessary in connection with the
Transaction and the Senior Bank Financing
shall have been obtained (without the
imposition of any conditions that are not
reasonably acceptable to the Lenders) and
shall remain in effect (other than any
consents and approvals the absence of which,
either individually or in the aggregate,
would not have a Material Adverse Effect);
all applicable waiting periods shall have
expired without any material adverse action
being taken by any competent authority; and
no law or regulation shall be applicable in
the reasonable judgment of the Lenders that
restrains, prevents or imposes materially
adverse conditions upon the Transaction or
the Senior Bank Financing.
(h) All Pre-Commitment Information shall be true
and correct in all material aspects; and no
additional information shall have come to the
attention of the Administrative Agent or the
Lenders that could reasonably be expected to
have a Material Adverse Effect.
(i) All loans made by the Lenders to the Borrower
or any of its affiliates shall be in full
compliance with the Federal Reserve's Margin
Regulations.
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(j) The Borrower and each Guarantor shall have delivered
certificates, in form and substance reasonably
satisfactory to the Lenders, attesting to the Solvency
(as hereinafter defined) of the Borrower and such
Guarantor, as the case may be, in each case
individually and together with its subsidiaries, taken
as a whole, immediately before and immediately after
giving effect to the Transaction, from their respective
chief financial officers. As used herein, the term
"Solvency" of any person means (i) the fair value of
the property of such person exceeds its total
liabilities (including, without limitation, contingent
liabilities), (ii) the present fair saleable value of
the assets of such person is not less than the amount
that will be required to pay its probable liability on
its debts as they become absolute and matured, (iii)
such person does not intend to, and does not believe
that it will, incur debts or liabilities beyond its
ability to pay as such debts and liabilities mature and
(iv) such person is not engaged, and is not about to
engage, in business or a transaction for which its
property would constitute an unreasonably small
capital.
(k) The Lenders shall be reasonably satisfied with the
nature and amount of any existing and potential
environmental concerns associated with the facilities
of the Borrower and its subsidiaries and with the
Borrower's plans with respect thereto.
(l) The Lenders shall be satisfied that (i) the Borrower
and its subsidiaries will be able to meet their
respective obligations under all employee and retiree
welfare plans, (ii) the employee benefit plans of the
Borrower and its ERISA affiliates are, in all material
respects, funded in accordance with the minimum
statutory requirements, (iii) no "reportable event" (as
defined in ERISA, but excluding events for which
reporting has been waived) has occurred as to any such
employee benefit plan and (iv) no termination of, or
withdrawal from, any such employee benefit plan has
occurred or is contemplated that could reasonably be
expected to result in a material liability.
(m) The Lenders shall be satisfied with the amount, types
and terms and conditions of all insurance maintained by
the Borrower and its subsidiaries, and the Lenders
shall have received endorsements naming the
Administrative Agent, on behalf of the Lenders, as an
additional insured under all insurance policies to be
maintained with respect to the
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properties of the Borrower and its subsidiaries forming
part of the Lenders' collateral described under the
section "Security" above.
(n) The Lenders shall have completed a due diligence
investigation of the Borrower and its subsidiaries in
scope, and with results, satisfactory to the Lenders
and shall have been given such access to the
management, records, books of account, contracts and
properties of the Borrower and its subsidiaries and
shall have received such financial, business and other
information regarding each of the foregoing persons as
they shall have requested, including, without
limitation, information as to possible contingent
liabilities, tax matters, collective bargaining
agreements and other arrangements with employees,
annual financial statements dated December 31, 1998,
interim financial statements dated the end of the most
recent fiscal quarter for which financial statements
are available (or, in the event the Lenders' due
diligence review reveals material changes since such
financial statements, as of a later date within 45 days
of the Closing Date), pro forma consolidated financial
statements as to the Borrower and its subsidiaries, and
forecasts prepared by management of the Borrower, in a
form satisfactory to the Lenders, of balance sheets,
income statements and cash flow statements on a monthly
basis for the first year following the Closing Date and
on an annual basis for each year thereafter during the
term of the Senior Bank Financing.
(o) The Lenders shall have received (i) satisfactory
opinions of counsel for the Borrower and the Guarantors
and of local counsel for the Lenders as to the
transactions contemplated hereby (including, without
limitation, compliance with all applicable securities
laws) and (ii) such corporate resolutions, certificates
and other documents as the Lenders shall reasonably
request.
(p) There shall exist no default under any of the loan
documentation, and the representations and warranties
of the Borrower, each of the Guarantors and each of
their respective subsidiaries therein shall be true and
correct immediately prior to, and after giving effect
to, the initial extension of credit under the loan
documentation.
(q) All accrued fees and expenses of the Administrative
Agent, the Joint Lead Arrangers and the Lenders
(including the
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fees and expenses of counsel for the Joint Lead
Arrangers and local counsel for the Lenders) shall
have been paid.
(r) The Joint Lead Arrangers and the Administrative
Agent shall be satisfied that all appropriate
offering documentation shall have been delivered
to the Lenders on terms and conditions
satisfactory to the Joint Lead Arrangers, the
Administrative Agent and the Lenders.
Representations and
Warranties: Those customarily found in credit agreements for
similar secured financings and others appropriate in
the reasonable judgment of MSSF and BofA for the
Transaction, including, without limitation, absence of
any material adverse change in the business, condition
(financial or otherwise), operations, performance,
properties or prospects of the Borrower and its
subsidiaries, taken as a whole.
Covenants: Those affirmative, negative and financial covenants
(applicable to the Parent and its subsidiaries)
customarily found in credit agreements for similar
secured financings and others appropriate in the
reasonable judgment of MSSF and BofA for the
Transaction, including, without limitation, the
following:
(a) Affirmative Covenants - (i) Compliance with laws
---------------------
and regulations (including, without limitation,
ERISA and environmental laws); (ii) payment of
taxes and other obligations; (iii) maintenance of
appropriate and adequate insurance; (iv)
preservation of corporate existence, rights
(charter and statutory), franchises, permits,
licenses and approvals; (v) preparation of
environmental reports; (vi) visitation and
inspection rights; (vii) keeping of proper books
in accordance with generally accepted accounting
principles; (viii) maintenance of properties; (ix)
performance of leases, related documents and other
material agreements; (x) conducting transactions
with affiliates on terms equivalent to those
obtainable on an arm's-length basis; (xi) further
assurances as to perfection and priority of
security interests (subject to the exceptions set
forth above under "Security"); (xii) grant of
security on additional property and assets upon
the occurrence of an Event of Default; and (xiii)
customary financial and other reporting
requirements (including, without limitation,
audited annual financial statements and monthly
and quarterly unaudited financial statements, in
each case prepared on a consolidated and a
consolidating basis, notices of defaults,
compliance certificates, annual business
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plans and forecasts, reports to shareholders and
other creditors and other business and financial
information as any Lender shall reasonably
request); in each of the foregoing cases, with
such exceptions as may be agreed upon in the loan
documentation.
(b) Negative Covenants - Restrictions on (i) liens
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(other than (x) liens securing the Senior Bank
Financing and (y) liens securing up to $200
million of debt under an additional facility (the
"Additional Facility") to the extent that (1) such
debt is permitted pursuant to clause (ii)(v)
below, (2) no Default has occurred and is
continuing or would result from the issuance of
such debt, (3) such debt matures at least three
months after the Credit Facilities, (4) the
average life of the Additional Facility is longer
that the average life of the Credit Facilities and
(5) the interest rate in respect of the Additional
Facility is no greater than 0.50% per annum above
the interest rate applicable to the Credit
Facilities); (ii) debt, guaranties or other
contingent obligations (including, without
limitation, the subordination of all intercompany
indebtedness on terms satisfactory to the Lenders)
(other than (v) debt permitted pursuant to the
incurrence test referred to under Financial
Covenants below, (w) capitalized leases in an
amount not to exceed $50 million, (x) other junior
debt in an amount not to exceed $50 million so
long as the maturity of such debt is at least
three months following the final maturity of the
Credit Facilities and the other terms and
conditions of such debt is reasonably satisfactory
to the Required Lenders, (y) other debt of the
Parent so long as (1) a sufficient amount of cash
to pay interest on the Credit Facilities for the
next succeeding 24 months (in the reasonable
judgment of the Administrative Agent) is deposited
into escrow on terms and conditions that are
mutually acceptable to the Administrative Agent
and the Borrower, (2) the maturity of such debt is
at least three months after the maturity of the
Credit Facilities, (3) the Administrative Agent
and the Required Lenders are reasonably satisfied
that the Parent and its subsidiaries shall be in
compliance with the provisions of the loan
documentation for the period from the end of the
escrow arrangements through the final maturity of
the Credit Facilities and (4) the unsecured debt
rating of the Parent shall not be downgraded by
any rating agency by more than one level as a
result of the issuance of such debt and (z) other
exceptions to be agreed upon); (iii) mergers and
consolidations; (iv) sales, transfers and other
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dispositions of assets (other than sales of
inventory in the ordinary course of business); (v)
loans, acquisitions, joint ventures and other
investments (other than (x) stock for stock
transactions and (y) other acquisitions, joint
ventures and investments in an aggregate amount
not to exceed $150 million plus 50% of the net
cash proceed from any issuance of equity after the
date of the Commitment Letter); (vi) dividends and
other distributions to stockholders; (vii)
creating new subsidiaries; (viii) becoming a
general partner in any partnership; (ix)
repurchasing shares of capital stock; (x)
prepaying, redeeming or repurchasing debt; (xi)
granting negative pledges other than to the
Administrative Agent and the Lenders; (xii)
changing the nature of its business; (xiii)
amending organizational documents in any manner
that could reasonably be expected to have a
Material Adverse Effect, or amending or otherwise
modifying any debt for borrowed money, any related
document or any other material agreement in any
manner that could reasonably be expected to have a
Material Adverse Effect; and (xiv) changing
accounting policies or reporting practices; in
each of the foregoing cases, with such exceptions
as may be agreed upon in the loan documentation.
(c) Financial Covenants - There will be a incurrence
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test based on a minimum interest coverage of at
least 1.25:1. The incurrence test will be
calculated on a consolidated basis and EBITDA
shall be calculated as the product of two times
EBITDA for the two most recently ended fiscal
quarters.
The affirmative and negative covenants summarized above
shall be modified to be more similar to those contained
in an indenture relating to high yield securities
issued by a corporation similar to the Borrower.
Events of Default: Those customarily found in credit agreements for
similar secured financings and others appropriate in
the reasonable judgment of MSSF and BofA for the
Transaction, including, without limitation, (a) failure
to pay principal when due, or to pay interest or other
amounts within three business days after the same
becomes due, under the loan documentation; (b) any
representation or warranty proving to have been
materially incorrect when made or confirmed; (c)
failure to perform or observe covenants set forth in
the loan documentation within a specified period of
time, where customary and appropriate, after notice or
knowledge of such
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failure; (d) cross-defaults to other indebtedness in an
amount to be agreed in the loan documentation; (e)
bankruptcy and insolvency defaults (with grace period
for involuntary proceedings); (f) monetary judgment
defaults in an amount to be agreed in the loan
documentation and nonmonetary judgment defaults that
could reasonably be expected to have a Material Adverse
Effect; (g) impairment of loan documentation or
security; (h) change of ownership or operating control;
and (i) standard ERISA defaults.
Expenses: The Borrower shall pay all of the Administrative
Agent's, the Joint Lead Arrangers' due diligence,
syndication (including printing, distribution and bank
meetings), transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing
and recording fees and all other out-of-pocket expenses
reasonably incurred by the Administrative Agent or the
Joint Lead Arrangers (including the reasonable fees and
expenses of counsel for the Joint Lead Arrangers),
whether or not any of the transactions contemplated
hereby are consummated, as well as all expenses of the
Administrative Agent in connection with the
administration of the loan documentation. The Borrower
shall also pay the reasonable expenses of the
Administrative Agent, the Joint Lead Arrangers and the
Lenders in connection with the enforcement of any of
the loan documentation.
Indemnity: The Borrower will indemnify and hold harmless the
Administrative Agent, the Joint Lead Arrangers, each
Lender and each of their affiliates and their officers,
directors, employees, agents and advisors from claims
and losses relating to the Transaction or the Senior
Bank Financing.
Required Lenders: Lenders holding loans and commitments representing more
than 50% of the aggregate amount of loans and
commitments under the Senior Bank Financing.
Waivers &
Amendments: Amendments and waivers of the provisions of the loan
agreement and other definitive credit documentation
will require the approval of the Required Lenders,
except that the consent of all affected Lenders be
required with respect to (i) increases in commitment
amounts, (ii) reductions of principal, interest, or
fees, (iii) extensions of scheduled maturities or times
for payment, and (iv) releases of all or substantially
all of the collateral or any material guarantee.
Assignments and
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Participations: Assignments may be non-pro rata and must be to Eligible
Assignees (as defined in the definitive loan
documentation) and, in each case other than an
assignment to a Lender or an assignment of the entirety
of a Lender's interest in the Senior Bank Financing, in
a minimum amount to be agreed (such amount to be
reduced proportionately with reductions in the Senior
Bank Financing). Each assignment shall be made with the
consent of the Borrower (which consent cannot be
unreasonably withheld) so long as no Event of Default
has occurred and is continuing. Each Lender will also
have the right, without consent of the Borrower or the
Administrative Agent, to assign (i) as security all or
part of its rights under the loan documentation to any
Federal Reserve Bank and (ii) all or part of its rights
or obligations under the loan documentation to any of
its affiliates. No participation shall include voting
rights, other than for reductions or postponements of
amounts payable or releases of all or substantially all
of the collateral.
Taxes: All payments to be free and clear of any present or
future taxes, withholdings or other deductions
whatsoever (other than income taxes in the jurisdiction
of the Lender's applicable lending office). The Lenders
will use reasonable efforts (consistent with their
respective internal policies and legal and regulatory
restrictions and so long as such efforts would not
otherwise be disadvantageous to such Lenders) to
minimize to the extent possible any applicable taxes
and the Borrower will indemnify the Lenders and the
Administrative Agent for such taxes paid by the Lenders
or the Administrative Agent. If a Lender makes a
request under this provision for indemnification, the
Borrower shall have the right to replace such Lender
under terms and conditions to be set forth in the loan
documentation.
Miscellaneous: Standard yield protection (including compliance with
risk-based capital guidelines, increased costs,
payments free and clear of withholding taxes and
interest period breakage indemnities), eurodollar
illegality and similar provisions, defaulting lender
provisions, waiver of jury trial, submission to
jurisdiction and Year 2000 compliance provisions.
Governing Law: New York.
Counsel for MSSF: Xxxxxxxx & Xxxxxxxx.
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