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EXHIBIT 10.16
CREDIT AND
GUARANTY AGREEMENT
DATED AS OF FEBRUARY 15, 2000
AMONG
ALLEGIANCE TELECOM COMPANY WORLDWIDE
AS BORROWER,
ALLEGIANCE TELECOM, INC.,
AND
SUBSIDIARIES OF ALLEGIANCE TELECOM, INC.,
AS GUARANTORS,
VARIOUS LENDERS,
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
AS SYNDICATION AGENT AND SOLE LEAD ARRANGER,
TORONTO DOMINION (TEXAS), INC.
AS ADMINISTRATIVE AGENT,
BANKBOSTON, N.A.
AND
XXXXXX XXXXXXX SENIOR FUNDING, INC.
AS CO-DOCUMENTATION AGENTS
$500,000,000 SENIOR SECURED CREDIT FACILITIES
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS AND INTERPRETATION....................................................2
1.1. Definitions..................................................................2
1.2. Accounting Terms............................................................33
1.3. Interpretation, etc.........................................................33
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.......................................33
2.1. Loans.......................................................................33
2.2. Pro Rata Shares; Availability of Funds......................................37
2.3. Use of Proceeds.............................................................38
2.4. Evidence of Debt; Register; Lenders' Books and Records; Notes...............38
2.5. Interest Payments...........................................................39
2.6. Conversion/Continuation.....................................................40
2.7. Default Interest............................................................40
2.8. Fees........................................................................41
2.9. Scheduled Payments/Reductions...............................................41
2.10. Voluntary Prepayments/Reductions............................................42
2.11. Mandatory Prepayments/Reductions............................................44
2.12. Application of Prepayments/Reductions.......................................45
2.13. Allocation of Certain Payments and Proceeds.................................46
2.14. General Provisions Regarding Payments.......................................47
2.15. Ratable Sharing.............................................................48
2.16. Making or Maintaining Eurodollar Rate Loans.................................48
2.17. Increased Costs; Capital Adequacy...........................................50
2.18. Taxes; Withholding, Etc.....................................................51
2.19. Obligation to Mitigate......................................................54
2.20. Defaulting Lenders..........................................................54
2.21. Removal or Replacement of a Lender..........................................55
SECTION 3. CONDITIONS PRECEDENT.............................................................56
3.1. Conditions to Effectiveness of the Agreement................................56
3.2. Conditions to Each Loan.....................................................60
SECTION 4. REPRESENTATIONS AND WARRANTIES.................................................61
4.1. Organization; Powers; Qualification.........................................61
4.2. Authorization of Credit Documents; No Conflict..............................61
4.3. Governmental Consents.......................................................62
4.4. Binding Obligation..........................................................62
4.5. Historical Financial Statements; Projections................................62
4.6. No Material Adverse Change; No Restricted Junior Payments...................62
4.7. Adverse Proceedings, Etc....................................................63
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4.8. Payment of Taxes............................................................63
4.9. Title to Properties.........................................................63
4.10. Collateral..................................................................64
4.11. Environmental...............................................................64
4.12. No Defaults; Material Contracts.............................................65
4.13. Governmental Regulation.....................................................65
4.14. Margin Stock................................................................65
4.15. Employee Matters............................................................65
4.16. Employee Benefit Plans......................................................65
4.17. Certain Fees................................................................66
4.18. Solvency....................................................................66
4.19. Existing Indentures.........................................................66
4.20. Year 2000 Issues............................................................66
4.21. Disclosure..................................................................66
4.22. No Burdensome Restrictions..................................................67
SECTION 5. AFFIRMATIVE COVENANTS............................................................67
5.1. Financial Statements and Other Reports......................................67
5.2. Contribution................................................................71
5.3. Existence...................................................................71
5.4. Payment of Taxes and Claims.................................................71
5.5. Maintenance of Properties...................................................71
5.6. Insurance...................................................................72
5.7. Books and Records; Inspections; Lenders Meetings............................72
5.8. Compliance with Laws; Contractual Obligations...............................72
5.9. Environmental...............................................................73
5.10. Subsidiaries................................................................74
5.11. Real Estate Assets..........................................................75
5.12. Interest Rate Protection....................................................76
5.13. Certain Post Closing Matters................................................76
SECTION 6. NEGATIVE COVENANTS...............................................................76
6.1. Indebtedness................................................................77
6.2. Liens.......................................................................78
6.3. Equitable Lien; No Further Negative Pledges.................................80
6.4. Restricted Payments; Restrictions on Subsidiary Distributions...............80
6.5. Investments.................................................................81
6.6. Stage 1 Financial Covenants.................................................82
6.7. Stage 2 Financial Covenants.................................................82
6.8. Maximum Consolidated Capital Expenditures...................................83
6.9. Fundamental Changes; Disposition of Assets; Acquisitions....................83
6.10. Disposal of Subsidiary Interests............................................83
6.11. Sales and Lease-Backs.......................................................84
6.12. Sale or Discount of Receivables.............................................84
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6.13. Transactions with Shareholders and Affiliates...............................84
6.14. Conduct of Business.........................................................84
6.15. Amendments or Waivers of Existing Indentures/Subordinated
Indebtedness................................................................85
6.16. Fiscal Year.................................................................85
6.17. Designation of Unrestricted Subsidiaries; RS Designations. .................85
SECTION 7. GUARANTY.........................................................................87
7.1. Guaranty of the Obligations.................................................87
7.2. Contribution by Guarantors..................................................87
7.3. Payment by Guarantors.......................................................88
7.4. Liability of Guarantors Absolute............................................88
7.5. Waivers by Guarantors.......................................................90
7.6. Guarantors' Rights of Subrogation, Contribution, Etc........................91
7.7. Subordination of Other Obligations..........................................91
7.8. Continuing Guaranty.........................................................92
7.9. Authority of Guarantors or Borrower.........................................92
7.10. Financial Condition of Borrower.............................................92
7.11. Bankruptcy, Etc.............................................................92
7.12. Notice of Events............................................................93
7.13. Discharge of Guaranty Upon Sale of Guarantor................................93
SECTION 8. EVENTS OF DEFAULT................................................................93
8.1. Events of Default...........................................................93
SECTION 9. AGENTS...........................................................................96
9.1. Appointment of Agents.......................................................96
9.2. Powers and Duties...........................................................96
9.3. General Immunity............................................................97
9.4. Agents Entitled to Act as Lender............................................97
9.5. Lenders' Representations, Warranties and Acknowledgment.....................98
9.6. Right to Indemnity..........................................................98
9.7. Successor Administrative Agent..............................................99
9.8. Collateral Documents and Guaranties.........................................99
SECTION 10. MISCELLANEOUS..................................................................100
10.1. Notices....................................................................100
10.2. Expenses...................................................................100
10.3. Indemnity..................................................................101
10.4. Set-Off....................................................................102
10.5. Amendments and Waivers; Requisite Lenders' Consent.........................102
10.6. Successors and Assigns; Participations.....................................104
10.7. Independence of Covenants..................................................107
10.8. Survival of Representations, Warranties and Agreements.....................107
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10.9. No Waiver; Remedies Cumulative.............................................107
10.10. Marshalling; Payments Set Aside............................................107
10.11. Severability...............................................................108
10.12. Entire Agreement...........................................................108
10.13. Obligations Several; Independent Nature of Lenders' Rights.................108
10.14. Headings...................................................................108
10.15. APPLICABLE LAW.............................................................108
10.16. CONSENT TO JURISDICTION....................................................108
10.17. WAIVER OF JURY TRIAL.......................................................109
10.18. Confidentiality............................................................109
10.19. Usury Savings Clause.......................................................110
10.20. Counterparts; Effectiveness................................................111
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APPENDICES: A Commitments
B Notice Addresses
SCHEDULES: 1.1 Specified Geographic Markets
4.1 Organization, Etc.
4.2 Authorizations
4.3 Governmental Consents
4.7 Litigation
4.9(b) Real Estate Assets
4.10(b) Certain Approvals
4.12 Material Contracts
5.13(a) Interconnection Agreement Parties
6.2 Certain Liens
6.6(a) Minimum Revenues
6.6(b) Ratio of Senior Secured Debt to Annualized Adjusted
EBITDA
6.7(a) Senior Leverage Ratio
6.7(b) Total Leverage Ratio
6.7(c) Interest Coverage Ratio
6.7(d) Pro Forma Debt Service Overage Ratio
6.8 Maximum Consolidated Capital Expenditures
EXHIBITS: A-1 Funding Notice
A-2 Conversion/Continuation Notice
B-1 Revolving Loan Note
B-2 Delayed Draw Term Loan Note
B-3 New Term Loan Note
C Compliance Certificate
D-1 Opinion of Xxxxxxxx & Xxxxx, Counsel to Credit Parties
D-2 Opinion of General Counsel of Borrower
D-3 Opinion of Xxxxxxxx Xxxxxxxx, Local Counsel to Credit Parties
D-4 Opinion of Xxxxxxx & Berlin, Special Regulatory Counsel to
Credit Parties
E Assignment Agreement
F Certificate Re Non-Bank Status
G Closing Date Certificate
H Joinder Agreement
I Pledge and Security Agreement
J Mortgage
K Acknowledgment Letter
L Counterpart Agreement
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CREDIT AND GUARANTY AGREEMENT
This CREDIT AND GUARANTY AGREEMENT, dated as of February 15, 2000 is
entered into by and among ALLEGIANCE TELECOM, INC., a Delaware corporation
("COMPANY"), ALLEGIANCE TELECOM COMPANY WORLDWIDE, a Delaware corporation
("BORROWER"), CERTAIN DOMESTIC SUBSIDIARIES OF COMPANY (other than the Borrower)
PARTY HERETO, as Guarantors, the LENDERS party hereto from time to time, XXXXXXX
XXXXX CREDIT PARTNERS L.P. ("GSCP"), as Syndication Agent (in such
capacity,"SYNDICATION AGENT"), TORONTO DOMINION (TEXAS), INC. ("TD"), as
Administrative Agent (together with its permitted successors in such
capacity,"ADMINISTRATIVE AGENT"), BANKBOSTON, N.A. ("FLEET BOSTON") and XXXXXX
XXXXXXX SENIOR FUNDING, INC. ("MSSF"), as Co-Documentation Agents (in such
capacity, "CO-DOCUMENTATION AGENTS"), GSCP, as Sole Lead Arranger (in such
capacity," SOLE LEAD ARRANGER"), and the Managing Agents listed on the signature
pages hereof.
RECITALS
WHEREAS, capitalized terms used herein have the meanings assigned to
those terms in Section 1.1;
WHEREAS, Lenders have agreed to extend certain credit facilities to
Borrower in an aggregate amount not to exceed $500,000,000, consisting of up to
$150,000,000 aggregate principal amount of Delayed Draw Term Loans and up to
$350,000,000 of Revolving Credit Commitments, the proceeds of which shall be
used for general corporate purposes including working capital financing and to
provide purchase money financing for the cost of design, development,
acquisition, construction, installation, improvement, transportation or
integration of equipment, inventory and network assets;
WHEREAS, Borrower has agreed to secure all of its obligations hereunder
by granting to Administrative Agent, for the benefit of Lenders, a First
Priority Lien on substantially all of its assets, including a pledge of all of
the Capital Stock of each of its Subsidiaries and first tier Unrestricted
Subsidiaries (65% of all of the Capital Stock of each of its first tier Foreign
Subsidiaries), but excluding assets acquired under any Permitted Equipment
Financing;
WHEREAS, Guarantors have agreed to guarantee the obligations of
Borrower hereunder and to secure Borrower's and all of the Guarantors'
respective Obligations hereunder by granting to Administrative Agent, for the
benefit of Lenders, a First Priority Lien on their assets contemplated under the
Collateral Documents, including a pledge of all of the Capital Stock of each of
their respective Subsidiaries (including Borrower) and first tier Unrestricted
Subsidiaries (65% of all of the Capital Stock of each of their respective first
tier Foreign Subsidiaries).
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NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrower, Company, Guarantors,
Lenders and Agents agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. The following terms used herein, including the
preamble, recitals, exhibits and schedules hereto, shall have the following
meanings:
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate Determination
Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (i) (a) the rate per annum (rounded upward to the
nearest 1/100th) equal to the rate determined by Administrative Agent to be the
offered rate which appears on the page of the Telerate Screen which displays an
average British Bankers Association Interest Settlement Rate (such page
currently being page number 3740 or 3750, as applicable) for deposits (for
delivery on the first day of such period) with a term equivalent to such period
in Dollars, determined as of approximately 11:00 a.m. (London, England time) on
such Interest Rate Determination Date, or (b) in the event the rate referenced
in the preceding clause (a) does not appear on such page or service or if such
page or service shall cease to be available, the rate per annum (rounded upward
to the nearest 1/100th) equal to the rate determined by Administrative Agent to
be the offered rate on such other page or other service which displays an
average British Bankers Association Interest Settlement Rate for deposits (for
delivery on the first day of such period) with a term equivalent to such period
in Dollars, determined as of approximately 11:00 a.m. (London, England time) on
such Interest Rate Determination Date, or (c) in the event the rates referenced
in the preceding clauses (a) and (b) are not available, the rate per annum equal
to the offered quotation rate (carried out to the fifth decimal place) to first
class banks in the London interbank market by Administrative Agent for deposits
(for delivery on the first day of the relevant period) in Dollars of amounts in
same day funds comparable to the principal amount of the applicable Loan for
which the Adjusted Eurodollar Rate is then being determined with maturities
comparable to such period as of approximately 11:00 a.m. (London, England time)
on such Interest Rate Determination Date, by (ii) an amount equal to (a) one
minus (b) the Applicable Reserve Requirement.
"ADMINISTRATIVE AGENT" as defined in the preamble hereto.
"ADVERSE PROCEEDING" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority,
domestic or foreign (including any Environmental Claims), whether pending or, to
the knowledge of Company or any of its Subsidiaries, threatened against or
affecting Company or any of its Subsidiaries or any property of Company or any
of its Subsidiaries.
"AFFECTED LENDER" as defined in Section 2.16(b).
"AFFECTED LOANS" as defined in Section 2.16(b).
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"AFFILIATE," as applied to any Person, means any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise. Neither any Agent nor any Lender shall be deemed
Affiliates of any Credit Party by virtue of the security interests granted by
the Pledge and Security Agreement.
"AGENT" means each of Syndication Agent, Administrative Agent and
Co-Documentation Agents.
"AGGREGATE AMOUNTS DUE" as defined in Section 2.15.
"AGGREGATE PAYMENTS" as defined in Section 7.2.
"AGREEMENT" means this Credit and Guaranty Agreement, dated as of
February 15, 2000, as it may be amended, supplemented or otherwise modified from
time to time.
"ANNUALIZED ADJUSTED EBITDA" means the aggregate Pre-Overhead EBITDA
for the most recent Fiscal Quarter multiplied by four.
"ANNUALIZED CONSOLIDATED EBITDA" means Consolidated EBITDA for the most
recently completed Fiscal Quarter multiplied by four.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means a percentage, per annum,
determined by reference to the Facilities Usage in effect from time to time as
set forth below:
Applicable Commitment Fee
Facilities Usage Percentage
---------------- --------------------------
< 1/3 1.50%
< < 2/3 1.125%
> or = 1/3
> or = 2/3 0.75%
"APPLICABLE MARGIN" means a percentage, per annum, determined by
reference to the Total Leverage Ratio in effect from time to time as set forth
below:
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Eurodollar Base Rate
Total Leverage Ratio Rate Loan Loan
-------------------- ------------- ----------
> or = 8.00:1.00 or negative 3.25% 2.25%
< 8.00:1.00 3.00% 2.00%
> or = 7.00:1.00
< 7.00:1.00 2.75% 1.75%
> or = 6.00:1.00
< 6.00:1.00 2.50% 1.50%
> or = 5.00:1.00
< 5.00:1.00 2.25% 1.25%
> or = 4.00:1.00
< 4.00:1.00 2.00% 1.00%
; provided, however, that at any time during Stage 1 the Applicable Margin shall
be 3.25% per annum with respect to Eurodollar Rate Loans and 2.25% per annum
with respect to Base Rate Loans.
No change in the Applicable Margin shall be effective until three Business Days
after the date on which Administrative Agent shall have received the applicable
financial statements and a Compliance Certificate pursuant to Section 5.1(d)
calculating the Total Leverage Ratio. At any time Borrower has not submitted to
Administrative Agent the applicable information as and when required under
Section 5.1(d), the Applicable Margin shall be determined as if the Total
Leverage Ratio were in excess of 8.00:1.00 or negative. Within one Business Day
of receipt of the applicable information as and when required under Section
5.1(d), Administrative Agent shall give each Lender telefacsimile or telephonic
notice (confirmed in writing) of the Applicable Margin in effect from such date.
The Applicable Margin with respect to any New Term Loans shall be set forth in
the applicable Joinder Agreement.
"APPLICABLE RESERVE REQUIREMENT" means, at any time, for any Eurodollar
Rate Loan the maximum rate at which reserves (including, without limitation, any
marginal, special, supplemental or emergency reserves) are required to be
maintained by such member banks with respect thereto against "Eurocurrency
liabilities" (as such term is defined in Regulation D) under regulations issued
from time to time by the Board of Governors of the Federal Reserve System or
other applicable banking regulator. Without limiting the effect of the
foregoing, the Applicable Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks with respect to (i) any category
of liabilities which includes deposits by reference to which the applicable
Adjusted Eurodollar Rate or any other interest rate of a Loan is to be
determined, or (ii) any category of extensions of credit or other assets which
include Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credit for proration, exceptions or
offsets that may be available
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from time to time to the applicable Lender. The rate of interest on Eurodollar
Rate Loans shall be adjusted automatically on and as of the effective date of
any change in the Applicable Reserve Requirement.
"ASSET SALE" means a sale, lease or sublease (as lessor or sublessor),
transfer or disposition to any Person other than Company, Borrower or any
Guarantor, in one transaction or a series of transactions, of all or any part of
Company's or any of its Subsidiaries' businesses, properties or assets, whether
now owned or hereafter acquired, including, without limitation, the equity
Securities of any of Company' Subsidiaries, other than (i) the sale of Cash
Equivalents in the ordinary course of business, (ii) inventory sold in the
ordinary course of business, (iii) disposals of obsolete, worn out or surplus
property, (iv) disposals of uneconomical, redundant or non-strategic property
acquired in Permitted Acquisitions in an amount not in excess of $30,000,000 per
fiscal year (provided that such property acquired in a Permitted Acquisition is
disposed of in each case within 270 days of the acquisition thereof by Company
or any of its Subsidiaries), (v) sales of assets the Net Asset Sale Proceeds of
which are invested in assets of the general type used in the business of the
Borrower and its Subsidiaries within 270 days of receipt of such proceeds and
(vi) sales of assets in a single transaction or series of transactions not in
excess of $45,000,000 in the aggregate during the term of this Agreement.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in the form of
Exhibit E (with such amendments or modifications as may be approved by Borrower
and Administrative Agent).
"AUTHORIZED OFFICER" means, as applied to any Person, any individual
holding the position of chairman of the board (if an officer) or president or
one of its vice presidents (or the equivalent thereof), and such Person's chief
financial officer, treasurer or controller.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute.
"BASE RATE" means, for any day, a rate per annum (carried out to the
fifth decimal place) equal to the greater of (i) the Prime Rate in effect on
such day and (ii) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. Any change in the Base Rate resulting due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective day
of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"BASE RATE LOAN" means a Loan bearing interest at a rate determined by
reference to the Base Rate.
"BENEFICIARY" means each Agent, each Lender and each Lender
Counterparty.
"BUSINESS DAY" means any day, excluding all of the following: Saturday,
Sunday and any day which is a legal holiday under the laws of the State of New
York or is a day on which banking institutions located in such state are
authorized or required by law or other governmental action to
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close, and with respect to all notices, determinations, fundings and payments in
connection with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, that
is also a day for trading by and between banks in Dollar deposits in the London
interbank market.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures of any Person during such period that, in accordance with GAAP, are
or should be included in "purchase of property and equipment" or similar items
reflected in the statement of cash flows of such Person. Notwithstanding the
foregoing, the term "Capital Expenditures" shall not include capital
expenditures in respect of the reinvestment of Net Asset Sale Proceeds or Net
Insurance/Condemnation Proceeds made in accordance with Sections 2.11(a) and
(b).
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person, including, without limitation, Dark Fiber Leases.
"CASH" means money, currency or a credit balance in any demand or
deposit account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within two years
after such date; (ii) marketable direct obligations issued by any state of the
United States or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, a rating of at least A-1
from S&P or at least P-1 from Xxxxx'x or the equivalent thereof; (iii)
commercial paper maturing not more than one year from the date of creation
thereof and having, at the time of the acquisition thereof, a rating of at least
A-1 from S&P or at least P-1 from Xxxxx'x or the equivalent thereof; (iv) time
deposits, certificates of deposit or bankers' acceptances maturing within one
year after such date and issued or accepted by any Lender or by any commercial
bank organized under the laws of the United States or any state or territory
thereof or the District of Columbia or any foreign country recognized by the
United States or United States branches of foreign banks or the parent company
of any such bank that in each case (a) is at least "adequately capitalized" (as
defined in the regulations of its primary Federal banking regulator) and (b) has
Tier 1 capital (as defined in such regulations) of not less than $100,000,000;
(v) shares of any money market mutual fund that (a) has at least 95% of its
assets invested continuously in the types of investments referred to in clauses
(i) and (ii) above, (b) has net assets of not less than $500,000,000, and (c)
has the highest rating obtainable from either S&P or Xxxxx'x or the equivalent
thereof; (vi) repurchase agreements maturing within 30 days from the date of
acquisition thereof by Borrower or any of its Subsidiaries with any Lender or
bank referred to in clause (iv) above, in each case for underlying securities of
the type referred to in clause (i) above.
"CERTIFICATE RE NON-BANK STATUS" means a certificate in the form of
Exhibit F.
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"CHANGE OF CONTROL" means, at any time, (i) Holland shall cease to
beneficially own and control at least 50% of the capital stock of Company owned
or controlled by Holland as of the Closing Date (excluding any such capital
stock transferred to a spouse as part of a divorce proceeding or any settlement
thereof); provided that the foregoing shall not constitute a "change of control"
at any time after Annualized Consolidated EBITDA of the Company has become
positive; (ii) Company shall cease to beneficially own and control all of the
issued and outstanding shares of capital stock of Borrower; (iii) any "change of
control" or similar event under the Existing Indentures and other similar
documents governing other Subordinated Indebtedness (or related documentation)
shall occur; (iv) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Exchange Act), other than Holland is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of 20% or more of the then outstanding voting capital
stock of Company other than in a transaction having the approval of the board of
directors of Company at least a majority of which members are Continuing
Directors; or (v) Continuing Directors shall cease to constitute at least a
majority of the directors constituting the board of directors of Company.
"CLASS" means (i) with respect to Lenders each of the following classes
of Lenders: (a) Lenders having Revolving Loan Exposure, (b) Lenders having
Delayed Draw Term Loan Exposure and (c) Lenders having New Term Loan Exposure,
if any, and (ii) with respect to Loans, each of the following classes of Loans:
(a) Revolving Loans, (b) Delayed Draw Term Loans and (c) New Term Loans, if any.
"CLOSING DATE" means the date on or before February 15, 2000 on which
the conditions set forth in Section 3.1 are satisfied or waived in accordance
with the terms thereof.
"CLOSING DATE CERTIFICATE" means a certificate in the form of Exhibit
G.
"COLLATERAL" means, collectively, all of the real, personal and mixed
property (including capital stock and other equity Securities) on which Liens
are purported to be granted pursuant to the Collateral Documents as security for
the Obligations.
"COLLATERAL DOCUMENTS" means the Pledge and Security Agreement, the
Mortgages, if any, and all other instruments, documents and agreements delivered
by any Credit Party pursuant to this Agreement or any of the other Credit
Documents in order to grant to Administrative Agent, on behalf of Lenders, a
Lien on any real, personal or mixed property of that Credit Party as security
for the Obligations.
"CO-LOCATION SITES" means the central office premises of a local
exchange carrier on which a Subsidiary of Borrower has located
telecommunications transmission equipment.
"COMMITMENT" means the commitments of Lenders to make Loans as set
forth in Section 2.1(a) of this Agreement. The amount of each Lender's
Commitment is set forth on Appendix A or
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in the applicable Assignment Agreement or Joinder Agreement and is subject to
any adjustment or reduction pursuant to the terms and conditions hereof.
"COMPANY" as defined in the preamble hereto.
"COMPLIANCE CERTIFICATE" means a certificate in the form of Exhibit C.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of all Capital Expenditures of Company and its Subsidiaries during
such period, determined in accordance with GAAP.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period, excluding (i) any amount not
payable in Cash and (ii) Cash interest payable from funds escrowed for such
purpose by Company prior to the Closing Date.
"CONSOLIDATED EBITDA" means, for any period, an amount determined for
any Person on a consolidated basis equal to (i) the sum of the amounts for such
period of (a) Consolidated Net Income, (b) Consolidated Interest Expense, (c)
provisions for franchise taxes and taxes based on income, (d) total depreciation
expense, (e) total amortization expense, and (f) other non-cash items reducing
Consolidated Net Income (including management ownership allocation charges and
non-cash deferred compensation), minus (ii) other non-cash items increasing
Consolidated Net Income.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount (if
positive) equal to Consolidated EBITDA minus the sum, without duplication, of
the amounts for such period of (a) voluntary and scheduled repayments of
Consolidated Total Debt (excluding repayments of Loans except to the extent the
Commitments are permanently reduced in connection with such repayments), (b)
Consolidated Capital Expenditures and, to the extent not otherwise deducted in
determining Consolidated Excess Cash Flow, Cash consideration paid for Permitted
Acquisitions and Investments permitted under this Agreement (in each case, net
of any proceeds of any related financings incurred to finance, and issuances of
equity Securities issued to finance, such expenditures, Permitted Acquisitions
or Investments) (c) Consolidated Cash Interest Expense, and (d) provisions for
current franchise taxes and taxes based on income of Company and its
Subsidiaries and payable in cash with respect to such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs under Interest Rate Agreements, but excluding, however, any (i)
amounts referred to in Section 2.8 payable on or before the Closing Date, (ii)
any fees and expenses associated with the Existing Credit Agreement and (iii)
any fees and expenses associated with issuances of Subordinated Debt.
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"CONSOLIDATED NET INCOME" means, for any period, (i) the net income (or
loss) of Company and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with GAAP, minus,
to the extent included in (i), (ii) (a) the income of any Person (other than a
Subsidiary of Company) in which any other Person (other than Company or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Company or is merged
into or consolidated with Company or any of its Subsidiaries or that Person's
assets are acquired by Company or any of its Subsidiaries, (c) the income of any
Subsidiary of Company to the extent that the declaration or payment of dividends
or similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Subsidiary, (d) any after-tax gains or losses attributable to Asset Sales
and other sales of assets not constituting Asset Sales (unless excluded from
Asset Sales under clauses (i) or (ii) of the definition thereof), or returned
surplus assets of any Pension Plan, and (e) (to the extent not included in
clauses (a) through (d) above) any net extraordinary gains (without giving
effect to any net non-cash extraordinary losses).
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP, less
any funds escrowed for the purpose of paying interest on such Indebtedness.
"CONTINUING DIRECTORS" means individuals who at the beginning of any
period of two consecutive calendar years constituted the board of directors of
Company, together with any new directors whose election by such board of
directors or whose nomination for election was approved by a vote of at least
two-thirds of the members of such board of directors then still in office who
either were members of such board of directors at the beginning of such period
or whose election or nomination for election was previously so approved.
"CONTRACTUAL OBLIGATION" means, as applied to any Person, any provision
of any Security issued by that Person or of any material 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.
"CONTRIBUTING GUARANTORS"as defined in Section 7.2.
"CONVERSION/CONTINUATION DATE" means the effective date of a
continuation or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"CONVERSION/CONTINUATION NOTICE" means a notice in the form of Exhibit
A-2.
"COUNTERPART AGREEMENT" means the agreement in the form of Exhibit L.
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"CREDIT DATE" means the date of the making of a Loan.
"CREDIT DOCUMENT" means any of this Agreement, the Notes, Joinder
Agreements, if any, the Collateral Documents, and all other documents,
instruments or agreements executed and delivered by a Credit Party for the
benefit of Agents or any Lender in connection herewith, including Hedge
Agreements with any Lender Counterparty, in each case as may be amended,
supplemented or otherwise modified from time to time.
"CREDIT PARTY" means each Person (other than any Agent or any Lender or
any other representative thereof) from time to time party to a Credit Document.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement, each of which is for the purpose of hedging the
foreign currency risk associated with Company's and its Subsidiaries'
operations.
"DARK FIBER LEASES" as defined in Section 6.1(i).
"DEFAULT" means a condition or event that, after notice or lapse of
time or both, would constitute an Event of Default.
"DELAYED DRAW TERM LOAN COMMITMENT" means the Commitment of a Lender to
make or otherwise fund a Delayed Draw Term Loan to Borrower and "DELAYED DRAW
TERM LOAN COMMITMENTS" means such commitments of all Lenders in the aggregate.
The amount of each Lender's Delayed Draw Term Loan Commitment, if any is set
forth in Appendix A or in the applicable Assignment Agreement, subject to any
adjustment or reduction pursuant to the terms and conditions hereof. The
aggregate amount of the Delayed Draw Term Loan Commitments as of the Closing
Date is $150,000,000.
"DELAYED DRAW TERM LOAN COMMITMENT PERIOD" means the time period
commencing on the Closing Date through to and including the Delayed Draw Term
Loan Commitment Termination Date.
"DELAYED DRAW TERM LOAN COMMITMENT TERMINATION DATE" means the earlier
to occur of (i) the date the Delayed Draw Term Loan Commitments are permanently
reduced to zero pursuant to Sections 2.10 or 2.11, (ii) the date of the
termination of the Commitments pursuant to Section 8.1 and (iii) the date
occurring twenty-four (24) months after the Closing Date.
"DELAYED DRAW TERM LOAN EXPOSURE" means, with respect to any Lender, as
of any date of determination, the outstanding principal amount of the Delayed
Draw Term Loans of such Lender; provided, at any time prior to the making of the
Delayed Draw Term Loans, the Delayed Draw Term Loan Exposure of any Lender shall
be equal to such Lender's Delayed Draw Term Loan Commitment.
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"DELAYED DRAW TERM LOAN INSTALLMENT" as defined in Section 2.9(b).
"DELAYED DRAW TERM LOAN MATURITY DATE" means the earlier of (i)
December 31, 2006 and (ii) the date that all Delayed Draw Term Loans shall
become due and payable in full hereunder, whether by acceleration or otherwise.
"DELAYED DRAW TERM LOAN NOTE" means a promissory note in the form of
Exhibit B-2, as it may be amended, supplemented or otherwise modified from time
to time.
"DELAYED DRAW TERM LOANS" means any Delayed Draw Term Loans made by
Lender to the Borrower pursuant to Section 2.1(a)(ii) of this Agreement and any
New Delayed Draw Term Loans made by Lender to Borrower pursuant to Section
2.1(a)(iii) of this Agreement.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DOLLARS" and the sign "$" mean the lawful money of the United States.
"DOMESTIC SUBSIDIARY" means any Subsidiary including an Unrestricted
Subsidiary organized under the laws of the United States of America, any State
thereof or the District of Columbia.
"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any Lender
and any Related Fund (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof), and (ii) any commercial bank,
insurance company, finance company, investment or mutual fund or other entity
that is an "accredited investor" (as defined in Regulation D under the
Securities Act) and which extends credit or buys loans as one of its businesses;
provided that no Affiliate of Company or Borrower shall be an Eligible Assignee
(it being understood that MSSF is not an Affiliate of Company or Borrower for
purposes of the definition of "Eligible Assignee").
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined in
Section 3(3) of ERISA which is or was maintained or contributed to by Company,
any of its Subsidiaries or any of their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Governmental Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
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"ENVIRONMENTAL LAWS" means any and all current or future foreign or
domestic, federal or state (or any subdivision of either of them), statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of Governmental
Authorities relating to (i) environmental matters, including those relating to
any Hazardous Materials Activity; (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials; or (iii) occupational safety
and health, industrial hygiene, land use or the protection of human, plant or
animal health or welfare, in any manner applicable to Company or any of its
Subsidiaries or any Facility.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any corporation
which is 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 a member;
(ii) any trade or business (whether or not incorporated) which is 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 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 a member. Any former ERISA Affiliate of Company or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Company or
such Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"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 Company, any of 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 Section
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 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 Company, any of 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 of Company, any of its
Subsidiaries or any of their respective
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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 Company, any of 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 terminate or has terminated under Section 4041A
or 4042 of ERISA; (viii) the occurrence of an act or omission which could give
rise to the imposition on Company, any of 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, Section 502(c),
(i) or (l), or Section 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 Company, any of its Subsidiaries or any of their respective
ERISA Affiliates in connection with any 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.
"EURODOLLAR RATE LOAN" means a Loan bearing interest at a rate
determined by reference to the Adjusted Eurodollar Rate.
"EVENT OF DEFAULT" means each of the events set forth in Section 8.1.
"EXCESS PROCEEDS AMOUNT" means a cumulative amount, as of any date of
determination, equal to the sum of (i) $300,000,000, (ii) the net cash proceeds
of any equity Securities issued pursuant to the "green shoe" in connection with
the Company's offering of equity Securities most recently completed prior to the
Closing Date, and (iii) the net cash proceeds of any other issuance of equity
Securities by Company after the Closing Date which have been contributed as
common equity to the Borrower, less the Excess Proceeds Usage as of such date.
"EXCESS PROCEEDS GEOGRAPHIC MARKET" means up to six (6) Geographic
Markets designated in writing by Borrower to Sole Lead Arranger and
Administrative Agent as an Excess Proceeds Geographic Market; provided that, at
the time of any such designation, the Excess Proceeds Amount is not less than
the product of (y) the number of Excess Proceeds Geographic Markets so
designated times (z) $50,000,000; provided further that Borrower may not
designate more than four (4) such Excess Proceeds Geographic Markets in any
Fiscal Year.
"EXCESS PROCEEDS USAGE" means a cumulative amount, as of any date of
determination equal to the sum of (i) the amount of Investments made pursuant to
Section 6.5(m), (ii) the net cash proceeds of any equity Securities issued
pursuant to the "green shoe" in connection with the Company's offering of equity
Securities most recently completed prior to the Closing Date, plus the net cash
proceeds of any other issuance of equity Securities by Company after the Closing
Date to
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the extent utilized to pay all or any portion of the purchase price of a
Permitted Acquisition and (iii) the product of (y) $50,000,000 times (z) each
Geographic Market designated by Borrower as an Excess Proceeds Geographic
Market.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"EXISTING CREDIT AGREEMENT" means that certain Credit and Guaranty
Agreement, dated as of April 1, 1999 by and among Company, Borrower (as
successor to Allegiance Finance Company, Inc.), Guarantors (as defined therein),
the lenders party thereto, GSCP and TDSI as Co-Lead Arrangers, MSSF, as
Documentation Agent, and the Managing Agents and Co-Agents listed on the
signature pages thereof.
"EXISTING INDENTURES" means, collectively, the Indenture dated as of
February 3, 1998 between Allegiance Telecom, Inc. and The Bank of New York,
relating to the 11-3/4% Senior Discount Notes due 2008, and the Indenture dated
as of July 7, 1998 between Allegiance Telecom, Inc. and The Bank of New York,
relating to the 12-7/8% Senior Notes due 2008; in each case as in effect as of
the Closing Date and without giving effect to any extension, restatement,
amendment, modification or supplement thereof or waiver or consent with respect
thereto dated after the date hereof.
"FACILITIES" means any real property (including all buildings, fixtures
or other improvements located thereon) now, hereafter or heretofore owned,
leased, operated or used by Company or any of its Subsidiaries or any of their
respective predecessors or Affiliates, but excluding for all purposes under this
Agreement (other than with respect to rights purported to be granted pursuant to
the Collateral Documents as security for the Obligations) all Co-Location Sites.
"FACILITIES USAGE" means a fraction, calculated as of the last day of
each Fiscal Quarter, the numerator of which is equal to the average daily Total
Utilization of Commitments during such Fiscal Quarter and the denominator of
which is equal to the average daily aggregate Revolving Loan Commitments for all
Lenders during such Fiscal Quarter plus the average daily aggregate Delayed Draw
Term Loan Commitments for such Fiscal Quarter.
"FAIR SHARE CONTRIBUTION AMOUNT" as defined in Section 7.2.
"FAIR SHARE" as defined in Section 7.2.
"FAIR SHARE SHORTFALL" as defined in Section 7.2.
"FCC" means the Federal Communications Commission.
"FEDERAL FUNDS EFFECTIVE RATE" means for any day, the rate per annum
(carried out to the fifth decimal place) equal to the weighted average of the
rates on overnight Federal funds
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transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (i) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Administrative Agent, in its capacity as a Lender, on
such day on such transactions as determined by Administrative Agent.
"FINANCIAL OFFICER CERTIFICATION" means, with respect to the financial
statements for which such certification is required, the certification of the
chief financial officer, senior vice president of finance and accounting or
treasurer of Company that such financial statements fairly present, in all
material respects, the financial condition of Company and its Subsidiaries as at
the dates indicated and the results of their operations and their cash flows for
the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.
"FINANCIAL PLAN" as defined in Section 5.1(j).
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that such Lien is
the only Lien to which such Collateral is subject, other than and subject to
Permitted Liens.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its Subsidiaries
ending on December 31 of each calendar year.
"FLEET BOSTON" means BankBoston, N.A..
"FLOOD HAZARD PROPERTY" means a Real Estate Asset located in an area
designated by the Federal Emergency Management Agency as having special flood or
mud slide hazards.
"FOREIGN SUBSIDIARY" means any Subsidiary (including an Unrestricted
Subsidiary) that is not a Domestic Subsidiary.
"FUNDING GUARANTORS" as defined in Section 7.2.
"FUNDING NOTICE" means a notice in the form of Exhibit A-1.
"GAAP" means United States generally accepted accounting principles in
effect as of the date of determination thereof.
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"GEOGRAPHIC MARKET" means each particular geographic market or one or
more related geographic markets in the United States which is (i) identified on
Schedule 1.1 of this Agreement, (ii) designated to constitute a Geographic
Market by Borrower in accordance with paragraph (vi) of the definition of
"Permitted Acquisition" or (iii) constitutes an Excess Proceeds Geographic
Market, in which, in each case, one or more Subsidiaries of the Company conducts
business operations.
"GOVERNMENTAL ACTS" means any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority.
"GOVERNMENTAL AUTHORITY" means any federal, state, municipal, national
or other governmental department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity or officer
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a foreign
entity or government.
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any Governmental
Authority.
"GSCP" means Xxxxxxx Xxxxx Credit Partners L.P.
"GUARANTEED OBLIGATIONS" as defined in Section 7.1.
"GUARANTOR" means each of Company and each direct and indirect
Subsidiary of Company (other than Borrower) party hereto.
"GUARANTY" means the guaranty of each Guarantor set forth in Section 7.
"HAZARDOUS MATERIALS" means any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Governmental
Authority or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency
Agreement entered into in the ordinary course of Company's or any of its
Subsidiaries' businesses and not for speculative purposes.
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"HIGHEST LAWFUL RATE" means the maximum lawful interest rate, if any,
that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to any Lender which are presently in effect
or, to the extent allowed by law, under such applicable laws which may hereafter
be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"HISTORICAL FINANCIAL STATEMENTS" means the audited financial
statements of Company and its Subsidiaries for Fiscal Years 1997 and 1998,
consisting of balance sheets and the related consolidated statements of income,
stockholders' equity and cash flows for such periods, certified by the chief
financial officer of Company that they fairly present, in all material respects,
the financial condition of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end
adjustments.
"HOLLAND" means, collectively, Xx. Xxxxx Xxxxxxx, his direct
descendants, any entity controlled by any of the foregoing or any trust for the
benefit of any of the foregoing.
"INCREASED AMOUNT DATE" as defined in Section 2.1(a)(iii).
"INCREASED-COST LENDERS" as defined in Section 2.21.
"INDEBTEDNESS", as applied to any Person, means, without duplication,
(i) all indebtedness for borrowed money; (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred
under ERISA and ordinary course trade payables and accrued expenses), which
purchase price is (a) due more than six months from the date of incurrence of
the obligation in respect thereof or (b) evidenced by a note or similar written
instrument; (v) all indebtedness secured by any Lien on any property or asset
owned or held by that Person regardless of whether the indebtedness secured
thereby shall have been assumed by that Person or is nonrecourse to the credit
of that Person; (vi) the face amount of any letter of credit issued for the
account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings; (vii) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of the
Indebtedness of another; (viii) any obligation of such Person the primary
purpose or intent of which is to provide assurance to an obligee that the
Indebtedness of the obligor thereof will be paid or discharged, or any agreement
relating thereto will be complied with, or the holders thereof will be protected
(in whole or in part) against loss in respect thereof; and (ix) any liability of
such Person for the Indebtedness of another through any agreement (contingent or
otherwise) (a) to purchase, repurchase or otherwise acquire such Indebtedness or
any security therefor, or to provide funds for the payment or discharge of such
Indebtedness (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (b) to maintain the
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solvency or any balance sheet item, level of income or financial condition of
another if, in the case of any agreement described under subclauses (a) or (b)
of this clause (ix), the primary purpose or intent thereof is as described in
clause (viii) above; and (x) obligations under Hedge Agreements; provided in no
event shall an obligation under Hedge Agreements be deemed "Indebtedness" for
any purpose under Sections 6.6, 6.7 and 6.8.
"INDEMNIFIED LIABILITIES" means, collectively, any and all liabilities,
obligations, losses, damages (including natural resource damages), penalties,
actions, judgments, suits, claims (including Environmental Claims), costs
(including the costs of any investigation, study, sampling, testing, abatement,
cleanup, removal, remediation or other response action necessary to remove,
remediate, clean up or xxxxx any Hazardous Materials Activity), expenses and
disbursements of any kind or nature whatsoever (including the reasonable fees
and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations
(including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or
the other Credit Documents or the transactions contemplated hereby or thereby
(including Lenders' agreement to make Loans or the use or intended use of the
proceeds thereof or the use or intended use of any thereof, or any enforcement
of any of the Credit Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Guaranty));
(ii) the statements contained in the commitment letter executed and delivered by
any Lender to Company with respect thereto; or (iii) any Environmental Claim or
any Hazardous Materials Activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership, or practice
of Company or any of its Subsidiaries.
"INDEMNITEE" as defined in Section 10.3.
"INITIAL FUNDING DATE" means the date on which the first Loan is made
hereunder.
"INSTALLMENT DATE" as defined in Section 2.9.
"INTELLECTUAL PROPERTY COLLATERAL" means all of the Intellectual
Property subject to the Lien of the Pledge and Security Agreement.
"INTEREST COVERAGE RATIO" means the ratio as of the last day of any
Fiscal Quarter of (i) Annualized Consolidated EBITDA to (ii) Consolidated Cash
Interest Expense for the four-Fiscal Quarter period then ended, in each case as
set forth in the most recent Compliance Certificate delivered by Borrower to
Administrative Agent pursuant to Section 5.1(d).
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"INTEREST PAYMENT DATE" means with respect to (i) any Base Rate Loan,
each March 31, June 30, September 30 and December 31 of each year, commencing on
the first such date to occur after the Closing Date; and (ii) any Eurodollar
Rate Loan, the last day of each Interest Period applicable to such Loan;
provided that in the case of each Interest Period of longer than three months
"Interest Payment Date" shall also include each date that is three months, or an
integral multiple thereof, after the commencement of such Interest Period.
"INTEREST PERIOD" means, in connection with a Eurodollar Rate Loan, an
interest period of one, two, three or six-months, as selected by Borrower in the
applicable Notice, (i) initially, commencing on the Credit Date or
Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter,
commencing on the day on which the immediately preceding Interest Period
expires; provided that (a) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day unless no further Business Day occurs in such month, in
which case such Interest Period shall expire on the immediately preceding
Business Day; (b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall, subject to
clauses (c) through (f) of this definition, end on the last Business Day of a
calendar month; (c) no Interest Period with respect to any portion of any New
Term Loans, if any, shall extend beyond the New Term Loan Maturity Date; (d) no
Interest Period with respect to any portion of the Revolving Loans shall extend
beyond the Revolving Loan Commitment Termination Date; (e) no Interest Period
with respect to any portion of Revolving Loans shall extend beyond a date on
which Borrower is required to make a scheduled reduction of Revolving Loan
Commitments, unless the sum of (1) the aggregate principal amount of Revolving
Loans that are Base Rate Loans, and (2) the aggregate principal amount of
Revolving Loans that are Eurodollar Rate Loans with Interest Periods expiring on
or before such date of reduction equals or exceeds the amount required to be
paid with respect to the Revolving Loan Commitments on such date; and (f) no
Interest Period with respect to any portion of New Term Loans, if any, shall
extend beyond a date on which Borrower is required to make a scheduled payment
of principal of such New Term Loans, unless the sum of (1) the aggregate
principal amount of such New Term Loans that are Base Rate Loans and, (2) the
aggregate principal amount of such New Term Loans that are Eurodollar Rate Loans
with Interest Periods expiring on or before such date equals or exceeds the
principal amount required to be paid on such New Term Loans on such date.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement, each of which is for the purpose of hedging the
interest rate exposure associated with Company's and its Subsidiaries'
operations.
"INTEREST RATE DETERMINATION DATE" means, with respect to any Interest
Period, the date that is two Business Days prior to the first day of such
Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
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"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any of the Securities of any other Person (other than a Guarantor);
(ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Company from any Person (other than
Company or any Guarantor), of any equity Securities of such Subsidiary; and
(iii) any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
Company or any of its Subsidiaries to any other Person (other than Company),
including all indebtedness and accounts receivable from that other Person that
are not current assets or did not arise from sales to that other Person in the
ordinary course of business. The amount of any Investment shall be the original
cost of such Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended.
"INVESTMENT PROPERTY" as defined in the Pledge and Security Agreement.
"JOINDER AGREEMENT" means a joinder agreement substantially in the form
of Exhibit H, or as may be amended, supplemented or otherwise modified from time
to time.
"JOINT VENTURE" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided
that in no event shall any corporate Subsidiary of any Person be considered to
be a Joint Venture to which such Person is a party.
"LEASEHOLD PROPERTY" means any leasehold interest of any Credit Party
as lessee under any lease of real property, other than any such leasehold
interest designated from time to time by Administrative Agent in its sole
discretion as not being required to be included in the Collateral.
"LENDER" means any person who becomes a Lender under this Agreement as
of the Closing Date or pursuant to Section 2.1(a)(iii) and their respective
permitted successors and assigns.
"LENDER COUNTERPARTY" means each Lender or Affiliate thereof
counterparty to a Hedge Agreement.
"LIEN" means any lien, mortgage, pledge, assignment, 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) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means any Loan made by a Lender to Borrower pursuant
to Section 2.1(a)(i), 2.1(a)(ii) or 2.1(a)(iii) of this Agreement.
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"MANAGING AGENTS" means each of the Managing Agents listed on the
signature pages of this Agreement.
"MARGIN STOCK" as defined in Regulation U of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of Company and its Subsidiaries on a consolidated basis or (ii) the
ability of any Agent or any Lender to enforce any of their rights or to collect
any of the Obligations then due and payable.
"MATERIAL CONTRACT" means any contract or other arrangement to which
Company or any of its Subsidiaries is a party (other than the Credit Documents)
for which breach, nonperformance, cancellation or failure to renew could
reasonably be expected to have a Material Adverse Effect.
"MATERIAL REAL ESTATE ASSET" means (i) all fee-owned Real Estate Assets
having a fair market value in excess of $2,000,000 as of the date of the
acquisition thereof and (ii) all Leasehold Properties other than those (a) with
respect to which the aggregate payments under the term of the lease are less
than $2,000,000 per annum, or (b) that relate to a site the loss of which would
not otherwise have a Material Adverse Effect.
"MOODY'S" means Xxxxx'x Investor Services, Inc.
"MORTGAGE" means a mortgage, deed of trust or similar instrument in the
form of Exhibit J, as it may be amended, supplemented or otherwise modified from
time to time.
"MORTGAGED PROPERTY" as defined in Section 5.10.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means The National Association of Insurance Commissioners, and
any successor thereto.
"NARRATIVE REPORT" means, with respect to the financial statements for
which such narrative report is required, a narrative report describing the
operations of Company and its Subsidiaries in the form prepared for presentation
to senior management thereof for the applicable month, Fiscal Quarter or Fiscal
Year and for the period from the beginning of the then current Fiscal Year to
the end of such period to which such financial statements relate.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale, an
amount equal to: (i) Cash payments (including any Cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received from
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such Asset Sale, minus (ii) any bona fide direct costs incurred in connection
with such Asset Sale, including (a) income or gains taxes reasonably estimated
to be actually payable as a result of any gain recognized in connection with
such Asset Sale, (b) payment of the outstanding principal amount of, premium or
penalty, if any, and interest on any Indebtedness (other than the Loans) that is
secured by a Lien on the stock or assets in question and that is required to be
repaid under the terms thereof as a result of such Asset Sale, (c) attorney's
fees, accountants fees, investment banking fees and other customary costs, fees,
expenses and commissions actually incurred in connection therewith, and (d) the
amount of any reasonable reserve established in accordance with GAAP against any
liabilities associated with the assets sold or disposed of; provided that the
amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of such liability) shall be deemed to be Net Asset
Sale Proceeds occurring on the date of such reduction.
"NET INSURANCE/CONDEMNATION PROCEEDS" means an amount equal to: (i) any
Cash payments or proceeds received by Company or any of its Subsidiaries (a)
under any casualty insurance policy in respect of a covered loss thereunder or
(b) as a result of the taking of any assets of Company or any of its
Subsidiaries by any Person pursuant to the power of eminent domain, condemnation
or otherwise, or pursuant to a sale of any such assets to a purchaser with such
power under threat of such a taking, minus (ii) (a) any actual and reasonable
documented costs incurred by Company or any of its Subsidiaries in connection
with the adjustment or settlement of any claims of Company or such Subsidiary in
respect thereof, and (b) any bona fide direct costs incurred in connection with
any sale of such assets as referred to in clause (i)(b) of this definition,
including income taxes reasonably estimated to be actually payable as a result
of any gain recognized in connection therewith.
"NEW DELAYED DRAW TERM LOANS" as defined in Section 2.1(a)(iii).
"NEW DELAYED DRAW TERM LOAN COMMITMENTS" as defined in Section
2.1(a)(iii).
"NEW REVOLVING LOAN" as defined in Section 2.1(a)(iii).
"NEW REVOLVING LOAN COMMITMENTS" as defined in Section 2.1(a)(iii).
"NEW REVOLVING LOAN LENDER" as defined in Section 2.1(a)(iii).
"NEW TERM LOAN" as defined in Section 2.1(a)(iii).
"NEW TERM LOAN COMMITMENTS" as defined in Section 2.1(a)(iii).
"NEW TERM LOAN EXPOSURE" means, with respect to any Lender as of any
date of determination (i) prior to the funding of the New Term Loans that
Lender's New Term Loan Commitment, if any, and (ii) after the funding of the New
Term Loans, the outstanding principal amount of the New Term Loan of that
Lender.
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"NEW TERM LOAN LENDER" as defined in Section 2.1(a)(iii).
"NEW TERM LOAN MATURITY DATE" means the date that New Term Loans of a
Series shall become due and payable in full hereunder, as specified in the
applicable Joinder Agreement.
"NEW TERM LOAN NOTE" means a promissory note in the form of Exhibit
B-3, as it may be amended, supplemented or otherwise modified from time to time.
"NON-US LENDER" as defined in Section 2.18(c).
"NOTE" means a Revolving Loan Note, Delayed Draw Term Loan Note or a
New Term Loan Note.
"NOTICE" means a Funding Notice or a Conversion/Continuation Notice.
"OBLIGATIONS" means, with respect to any Credit Party, obligations of
such Credit Party, whether now existing or hereafter made, incurred or created,
whether absolute or contingent, liquidated or unliquidated, whether due or not
due, and however arising under or in connection herewith and any other Credit
Document and any Hedge Agreement with a Lender Counterparty (including, without
limitation, with respect to a Hedge Agreement, obligations owed thereunder to
any person who was a Lender or an Affiliate of a Lender at the time such Hedge
Agreement was entered into), including those arising under successive borrowing
transactions hereunder which shall either continue the Obligations of such
Credit Party from time to time or renew them after they have been satisfied and
including interest which, but for the filing of a petition in bankruptcy with
respect to such Credit Party, would have accrued on any Obligation, whether or
not a claim is allowed against such Credit Party for such interest in the
related bankruptcy proceeding.
"OBLIGEE GUARANTOR" as defined in Section 7.7.
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any corporation,
its certificate or articles of incorporation, as amended, and its by-laws, as
amended, (ii) with respect to any limited partnership, its certificate of
limited partnership, as amended, and its partnership agreement, as amended,
(iii) with respect to any general partnership, its partnership agreement, as
amended, and (iv) with respect to any limited liability company, its certificate
of formation or articles of organization, as amended, and its operating
agreement, as amended. In the event any term or condition of this Agreement or
any other Credit Document requires any Organizational Document to be certified
by a secretary of state or similar governmental official, the reference to any
such "Organizational Document" shall only be to a document of a type customarily
certified by such governmental official.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
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"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ACQUISITION" means any acquisition, whether by purchase,
merger or otherwise, of all or substantially all of the assets of, all of the
equity Securities of, or a business line or a division of, any Person; provided
that:
(1) immediately prior to, and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing or
would result therefrom;
(2) all transactions in connection therewith shall be consummated
in accordance with all applicable laws and in conformity with all
applicable Governmental Authorizations;
(3) all of the equity Securities (except for any such Securities
in the nature of directors qualifying shares required pursuant to
applicable law) acquired or otherwise issued by such Person (or any
newly formed Subsidiary of Company in connection with such acquisition)
shall be owned 100% by Borrower or a Subsidiary, and Company and
Borrower shall have taken, or caused to be taken, as of the date such
Person becomes a Subsidiary of Borrower, each of the actions set forth
in Section 5.10;
(4) (A) the cash consideration paid by Company or any of its
Subsidiaries for such acquisition shall be less than $1,000,000, or (B)
the aggregate amount of all acquisitions occurring after the Closing
Date, the individual Cash component of the purchase price of which is
greater than $1,000,000 in each case, which are financed in whole or in
part with Indebtedness (including all Indebtedness incurred, repaid or
assumed in connection with all such acquisitions) and/or Cash on hand,
shall not exceed (excluding the amount of equity Securities used in
connection with or used to finance such acquisitions) an amount equal
to $300,000,000;
(5) all Persons, assets or divisions acquired shall be in the
same business or lines of business engaged in by Borrower and/or its
Subsidiaries on the Closing Date and similar or related businesses, or
such other lines of business as may be consented to by Requisite
Lenders;
(6) the principal operations of all Persons, assets or divisions
acquired shall be located only in those twenty seven (27) Geographic
Markets specified in Schedule 1.1 (or substitution Geographic Markets
reasonably acceptable to the Sole Lead Arranger and the Administrative
Agent) plus up to an additional nine (9) Geographic Markets that
Borrower designates in writing to the Sole Lead Arranger and the
Administrative Agent as a Geographic Market that it anticipates
operating in; provided that Permitted Acquisitions outside such thirty
six (36) Geographic Markets shall be permitted if such principal
operations, assets or divisions acquired are related to Company's core
CLEC switched access business as conducted as of the Closing Date or
similar or related businesses, including,
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without limitation, data communications, Internet access, Internet
portal, web hosting, application hosting, and communication equipment
collocation businesses; and
(7) Company and its Subsidiaries shall be in compliance with,
immediately before and after giving pro forma effect to any
acquisition, Sections 6.6 or 6.7, as applicable, and Company shall have
delivered to Administrative Agent a certificate in the form of a
Compliance Certificate evidencing such compliance with such Sections.
"PERMITTED EQUIPMENT FINANCING" means one or more purchase money,
vendor or similar equipment financing facilities (i) in an aggregate principal
amount not in excess of $50,000,000 outstanding at any time, (ii) pursuant to
which Borrower or any of its Subsidiaries may be advanced funds principally to
purchase or lease network equipment or services from the provider of such
financing or its affiliates, (iii) which may be secured only by the assets being
financed thereby and (iv) the form and substance of which are reasonably
satisfactory to the Sole Lead Arranger and Requisite Lenders.
"PERMITTED LIENS" means each of the Liens permitted pursuant to Section
6.2.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"PLAN OF CORRECTION" as defined in Section 4.20.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security Agreement
in the form of Exhibit I, as it may be amended, supplemented or otherwise
modified from time to time.
"PRE-OVERHEAD EBITDA" means, for any Fiscal Quarter, an amount
determined for the operations of a Subsidiary of the Company in a Geographic
Market, to the extent positive, equal to (i) the sum of the amounts for such
period of (a) the net income of such market on a consolidated basis determined
in accordance with GAAP, (b) total interest expense (including that portion
attributable to Capital Leases in accordance with GAAP and capitalized interest)
with respect to all outstanding Indebtedness of such market, including all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs under Interest Rate
Agreements, (c) provisions for franchise taxes and taxes of such market based on
income for such market, (d) total depreciation expense of such market, (e) total
amortization expense of such market, and (f) other non-cash items reducing the
net income of such market (including management ownership allocation charge and
non-cash deferred compensation), minus the sum of (ii) (a) any net extraordinary
gains or net non-cash extraordinary losses of such Person for such market and
(b) all other non-cash items increasing the net income of such market; all of
the
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foregoing as calculated quarterly, on a basis which excludes all amounts
attributable to corporate overhead expense of Company or any of its Subsidiaries
(other than the Subsidiary which operates in the subject Geographic Market to
the extent such overhead is allocable to such Geographic Market), and in a
manner consistent with the calculations made and delivered pursuant to Section
3.1(f) on the Closing Date (it being understood that all corporate overhead
expense is allocated as of the Closing Date by Company to Allegiance Service
Corporation, and such practice will continue in the same manner after the
Closing Date). It is expressly understood that, with respect to each Geographic
Market (i) only those operations of a particular Subsidiary that have positive
Pre-Overhead EBITDA shall be included in the calculation of Pre-Overhead EBITDA
(ii) any negative Pre-Overhead EBITDA of a Subsidiary in another Geographic
Market shall not be included in such calculation and (iii) any negative
Pre-Overhead EBITDA of another Subsidiary operating in such Geographic Market
shall not be included in such calculation.
"PRIME RATE" means the rate that The Toronto-Dominion Bank, New York
branch, announces from time to time as its prime lending rate, as in effect from
time to time. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. TD or any
other Lender may make commercial loans or other loans at rates of interest at,
above or below the Prime Rate.
"PRINCIPAL OFFICE" means the Administrative Agent's "Principal Office"
as set forth on Appendix B, or such other office as such Person may from time to
time designate in writing to Borrower, Administrative Agent and each Lender.
"PROJECTIONS" as defined in Section 4.5.
"PRO FORMA ADJUSTMENT" means for purposes of determining compliance
with the financial covenants set forth in Section 6.6(a), the minimum Revenues
specified in such Section shall be increased for any Fiscal Quarter in which a
Permitted Acquisition has occurred and each succeeding Fiscal Quarter thereafter
by 100% of the average quarterly Revenues of the entity or assets being acquired
calculated for the immediately preceding four quarter period using the
historical financial statements of such entity or assets; and all such Pro Forma
Adjustments shall be accompanied by a Financial Officer Certification.
"PRO FORMA CONSOLIDATED DEBT SERVICE" means, as of any date of
determination, the sum, without duplication, of (i) Consolidated Cash Interest
Expense and (ii) all scheduled amortization (including any payment or prepayment
of principal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including in-substance or legal defeasance), sinking
fund or similar payment) in respect of Indebtedness, in each case payable by
Company and its Subsidiaries during the immediately succeeding four Fiscal
Quarters assuming, for purposes of calculating Consolidated Cash Interest
Expense for any such succeeding four Fiscal Quarter period, Indebtedness
outstanding as of the date of such calculation shall remain outstanding during
such four Fiscal Quarter period (except to the extent of any scheduled
amortization, redemption, retirement or similar payment scheduled during such
four Fiscal Quarter period) and that the average interest rate applicable to
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outstanding Indebtedness of the Credit Parties as of the date of such
calculation applies with respect to Indebtedness outstanding during such four
Fiscal Quarter period.
"PRO FORMA DEBT SERVICE COVERAGE RATIO" means the ratio as of the last
day of any Fiscal Quarter of (i) Annualized Consolidated EBITDA for any period
then ended to (ii) Pro Forma Consolidated Debt Service, in each case as set
forth in the most recent Compliance Certificate delivered by Borrower to
Administrative Agent pursuant to Section 5.1(d).
"PRO RATA SHARE" means (i) with respect to all payments, computations
and other matters relating to the Revolving Loan Commitment or the Revolving
Loans of any Lender, the percentage obtained by dividing (x) the Revolving Loan
Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all
Lenders, (ii) with respect to all payments, computations and other matters
relating to the Delayed Draw Term Loan Commitment or the Delayed Draw Term
Loans, the percentage obtained by dividing (x) the Delayed Draw Term Loan
Exposure of that Lender by the aggregate Delayed Draw Term Loan Exposure of all
Lenders, (iii) with respect to all payments, computations and other matters
relating to the New Term Loan Commitments, if any, or the New Term Loan, if any,
of any Lender, the percentage obtained by dividing (x) the New Term Loan
Exposure of that Lender for a Series by (y) the sum of the aggregate New Term
Loan Exposure of all Lenders for such Series, and (iv) for all other purposes
with respect to each Lender, the percentage obtained by dividing (x) the sum of
the New Term Loan Exposure of that Lender for a Series plus the Revolving Loan
Exposure of that Lender plus the Delayed Draw Loan Exposure of that Lender by
(y) the sum of the aggregate New Term Loan Exposure of all Lenders for such
Series plus the aggregate Revolving Loan Exposure of all Lenders plus the sum of
the aggregate Delayed Draw Term Loan Exposure of all Lenders, in any such case
as the applicable percentage may be adjusted by assignments permitted pursuant
to Section 10.6. The Pro Rata Share of each Lender as of the Closing Date for
purposes of each of clauses (i), (ii), (iii) and (iv) of the preceding sentence
is set forth opposite the name of that Lender in Appendix A.
"REAL ESTATE ASSET" means, at any time of determination, any interest
then owned by any Credit Party in any real property (whether fee or leasehold).
"RECORD DOCUMENT" means, with respect to any Leasehold Property, (i)
the lease evidencing such Leasehold Property or a memorandum thereof, executed
and acknowledged by the owner of the affected real property, as lessor, or (ii)
if such Leasehold Property was acquired or subleased from the holder of a
Recorded Leasehold Interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form sufficient to
give such constructive notice upon recordation and otherwise in form reasonably
satisfactory to Administrative Agent.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with respect
to which a Record Document has been recorded in all places necessary or
desirable, in Administrative Agent's reasonable judgment, to give constructive
notice of such Leasehold Property to third-party purchasers and encumbrancers of
the affected real property.
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"REGISTER" as defined in Section 2.4(b).
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"RELATED FUND" means, with respect to any Lender that is an investment
fund, any other investment fund that invests in commercial loans and that is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Material), including the
movement of any Hazardous Material through the air, soil, surface water or
groundwater.
"REPLACEMENT LENDER" as defined in Section 2.21.
"REQUISITE CLASS LENDERS" means, at any time of determination (i) for
the Class of Lenders having Revolving Loan Exposure, Lenders having or holding
at least a majority of the sum of the aggregate Revolving Loan Exposure of all
Lenders, (ii) for the Class of Lenders having Delayed Draw Term Loan Exposure,
Lenders having or holding at least a majority of the sum of the aggregate
Delayed Draw Term Loan Exposure of all Lenders and (iii) for each Class of
Lenders having New Term Loan Exposure, if any, Lenders having or holding at
least a majority of the sum of the aggregate New Term Loan Exposure of such
Lenders.
"REQUISITE LENDERS" means one or more Lenders having or holding
Revolving Loan Exposure, Delayed Draw Term Loan Exposure and/or New Term Loan
Exposure for a Series representing more than 50% of the sum of (i)the aggregate
Revolving Loan Exposure of all Lenders (ii) the aggregate Delayed Draw Term Loan
Exposure of all Lenders and (iii) the aggregate New Term Loan Exposure of all
Lenders for each Series.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company or Borrower now or hereafter outstanding, except a dividend payable
solely in shares of that class of stock to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock
of Company or Borrower now or hereafter outstanding, (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock of Company or Borrower now
or hereafter outstanding, and (iv) any payment or prepayment of principal of,
premium, if any, or interest on, or redemption, purchase, retirement, defeasance
(including in-substance or legal defeasance), sinking fund or similar payment
with respect to any Subordinated Indebtedness or Indebtedness outstanding under
the Existing Indentures; provided that the foregoing will not prohibit
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payments in respect of repurchases of stock from former directors, officers,
employees, or from consultants, of Company in an aggregate amount not to exceed
$2,500,000.
"REVENUES" means, for any Fiscal Quarter, the gross revenues of Company
and its Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP.
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender to make
Revolving Loans to Borrower pursuant to subsection 2.1(a)(i) or New Revolving
Loans pursuant to subsection 2.1(a)(iii), and "REVOLVING LOAN COMMITMENTS" means
such commitments of all Lenders in the aggregate. The amount of each Lender's
Revolving Loan Commitment, if any, is set forth in Appendix A or in the
applicable Assignment Agreement, subject to any adjustment or reduction pursuant
to the terms and conditions hereof. The aggregate amount of the Revolving Loan
Commitments as of the Closing Date is $350,000,000.
"REVOLVING LOAN COMMITMENT PERIOD" means the period commencing on the
Closing Date to but excluding the Revolving Loan Commitment Termination Date.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means the earliest to
occur of (i) the Revolving Loan Maturity Date, (ii) the date the Revolving Loan
Commitments are permanently reduced to zero pursuant to Sections 2.10 or 2.11,
and (iii) the date of the termination of the Commitments pursuant to Section
8.1.
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender as of any
date of determination, (i) prior to the termination of the Revolving Loan
Commitments, such Lender's Revolving Loan Commitment; and (ii) after the
termination of the Revolving Loan Commitments, the aggregate outstanding
principal amount of the Revolving Loans of such Lender.
"REVOLVING LOAN INSTALLMENT" as defined in Section 2.9(a).
"REVOLVING LOAN MATURITY DATE" means the earlier of (i) December 31,
2006 and (ii) the date that all Revolving Loans shall become due and payable in
full hereunder, whether by acceleration or otherwise.
"REVOLVING LOAN NOTE" means a promissory note in the form of Exhibit
B-1, as it may be amended, supplemented or otherwise modified from time to time.
"REVOLVING LOANS" means any Revolving Loans made by Lenders to Borrower
pursuant to Section 2.1(a)(i) of this Agreement and any New Revolving Loans made
by Lenders to Borrower pursuant to Section 2.1(a)(iii) of this Agreement.
"RS DESIGNATION" as defined in Section 6.17.
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"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies.
"SECURITIES" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
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 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 from time
to time, and any successor statute.
"SENIOR LEVERAGE RATIO" means the ratio, as of the last day of any
Fiscal Quarter, of (a) Senior Secured Debt outstanding as of such day to (b)
Annualized Consolidated EBITDA; in each case as set forth in the most recent
Compliance Certificate delivered by Borrower to Administrative Agent pursuant to
Section 5.1(d).
"SENIOR SECURED DEBT" means an amount equal to the sum of Total
Utilization of Commitments and the outstanding principal amount of all Permitted
Equipment Financings, all secured trade payables and all Capital Leases of, in
each case, Company and its Subsidiaries; provided Capital Lease obligations with
respect to Dark Fiber Leases shall be excluded from Senior Secured Debt for
purposes of calculations made under Section 6.6(b), but shall be included for
all other purposes under this Agreement.
"SERIES" as defined in Section 2.1(a)(iii).
"SOLE LEAD ARRANGER" as defined in the preamble hereto.
"SOLVENT" means, with respect to any Person, that as of the date of
determination both (i) (a) the then fair saleable value of the property of such
Person is (1) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (2) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
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"STAGE 1" shall mean the period from the Closing Date to December 31,
2002.
"STAGE 2" shall mean the period from January 1, 2003 to the later of
(i) the Revolving Loan Maturity Date and (ii) any New Term Loan Maturity Date.
"SUBORDINATED INDEBTEDNESS" means Indebtedness outstanding under (A)
the Existing Indentures and (B) Indebtedness incurred by Company (i) which is
unsecured, (ii) which is structurally subordinated to the payment in full in
cash of all Obligations, (iii) which shall not mature or amortize until at least
six months beyond the Revolving Loan Maturity Date, or if later any New Term
Loan Maturity Date, if any and (iv) the provisions of the definitive
documentation of which (A) shall not contain covenants more restrictive than
those contained herein, (B) shall not provide for any mandatory prepayments or
redemptions at any time when similar payments are not required hereunder and (C)
shall otherwise be reasonably satisfactory to Administrative Agent.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, and which is also a "Restricted Subsidiary" as defined in the Existing
Indentures; provided that in determining the percentage of ownership interests
of any Person controlled by another Person, no ownership interest in the nature
of a "qualifying share" of the former Person shall be deemed to be outstanding.
Unless otherwise expressly provided, an "Unrestricted Subsidiary" shall not be
considered a Subsidiary for the purposes of this Agreement.
"SUPPLEMENTAL COLLATERAL AGENT" as defined in Section 9.8(c).
"SYNDICATION AGENT" as defined in the preamble hereto.
"SYSTEMS" means any of the hardware, firmware or software systems
associated with information processing and delivery, operations or services
(e.g., security and alarms, elevators, communications, and HVAC) operated by,
provided to or otherwise reasonably necessary to the business or operations of
Company and its Subsidiaries.
"TAX" means any present or future tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature and whatever called, by whomsoever, on
whomsoever and wherever imposed, levied, collected, withheld or assessed;
provided that "Tax on the overall net income" of a Person shall be construed as
a reference to a tax imposed by the jurisdiction in which that Person is
organized or in which that Person's principal office (and/or, in the case of a
Lender, its lending office) is located or in which that Person (and/or, in the
case of a Lender, its lending office) is
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deemed to be doing business on all or part of the net income, profits or gains
(whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise)
of that Person (and/or, in the case of a Lender, its lending office).
"TD" means Toronto Dominion (Texas), Inc.
"TDSI" means TD Securities (USA) Inc.
"TERM LOANS" means Delayed Draw Term Loans and New Term Loans.
"TERMINATED LENDER" as defined in Section 2.21.
"TOTAL CAPITALIZATION" means the sum of (a) Consolidated Total Debt and
(b) paid-in-equity capital (including preferred stock but excluding additional
equity issued as pay-in-kind dividends on issued and outstanding equity
securities) and excluding any accumulated deficits resulting from operations,
less the amount of Investments made pursuant to Section 6.5(m).
"TOTAL LEVERAGE RATIO" means the ratio as of the last day of any Fiscal
Quarter of (a) Consolidated Total Debt to (b) Annualized Consolidated EBITDA; in
each case as set forth in the most recent Compliance Certificate delivered by
Company to Administrative Agent pursuant to Section 5.1(d).
"TOTAL UTILIZATION OF COMMITMENTS" means, as at any date of
determination, the sum of the aggregate principal amount of all outstanding
Loans.
"TOTAL UTILIZATION OF DELAYED DRAW TERM LOAN COMMITMENTS" means, as of
any date of determination, the sum of the aggregate outstanding principal amount
of all Delayed Draw Term Loans.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as of any date
of determination, the sum of the aggregate outstanding principal amount of all
Revolving Loans.
"TRANSACTION COSTS" means the fees, costs and expenses payable by
Borrower on or before the Closing Date in connection with the transactions
contemplated by the Credit Documents.
"TYPE OF LOAN" means a Base Rate Loan or a Eurodollar Rate Loan.
"UNRESTRICTED SUBSIDIARY" means (i) each Subsidiary (with such term
defined for purposes of this definition without giving effect to the last
sentence in the definition of such term) of Company that shall be designated an
"Unrestricted Subsidiary" pursuant to and in compliance with Section 6.17, (ii)
each Foreign Subsidiary and (iii) each Subsidiary of an Unrestricted Subsidiary.
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"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"YEAR 2000 ISSUES" means limitations in the capacity or readiness to
handle date information for the Year 1999 or years beginning January 1, 2000 of
any of the Systems.
1.2. Accounting Terms. Except as otherwise expressly provided herein,
all accounting terms not otherwise defined herein shall have the meanings
assigned to them in conformity with GAAP. Financial statements and other
information required to be delivered by Borrower to Lenders pursuant to Sections
5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect
at the time of such preparation (and delivered together with the reconciliation
statements provided for in Section 5.1(e), if applicable). Subject to the
foregoing, calculations in connection with the definitions, covenants and other
provisions hereof shall utilize accounting principles and policies in conformity
with those used to prepare the Historical Financial Statements.
1.3. Interpretation, etc. Any of the terms defined herein may, unless
the context otherwise requires, be used in the singular or the plural, depending
on the reference. References herein to any Section, Appendix, Schedule or
Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the
case may be, hereof unless otherwise specifically provided. The use herein 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 within the broadest possible scope of such general statement,
term or matter.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1. Loans
(1) Loans.
(1) Revolving Loans. During the Revolving Loan Commitment Period,
subject to the terms and conditions hereof, each Lender severally
agrees to make Revolving Loans to Borrower in the aggregate amount up
to but not exceeding such Lender's Revolving Loan Commitment as of the
Closing Date; provided that after giving effect to the making of any
Revolving Loans in no event shall the Total Utilization of Revolving
Loan Commitments exceed the Revolving Loan Commitments then in effect.
Amounts borrowed pursuant to this Section 2.1(a)(i) may be repaid and
reborrowed during the Revolving Loan Commitment Period. Each Lender's
Revolving Loan Commitment shall expire on the Revolving Loan Commitment
Termination Date and all Revolving Loans and all other amounts owed
hereunder with respect to the Revolving Loans and the Revolving Loan
Commitments shall be paid in full no later than such date.
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(2) Delayed Draw Term Loans. During the Delayed Draw Term Loan
Commitment Period, subject to the terms and conditions hereof, each
Lender severally agrees to make Delayed Draw Term Loans to Borrower in
the aggregate amount up to but not exceeding such Lender's Delayed Draw
Term Loan Commitment. Borrower may make one or more drawings on the
Delayed Draw Term Loan Commitments during the Delayed Draw Term Loan
Commitment Period. Any amounts borrowed under this Section 2.1(a)(ii)
and subsequently repaid or prepaid may not be reborrowed. Subject to
Sections 2.10 and 2.11, all amounts owed hereunder with respect to the
Delayed Draw Term Loans shall be paid in full no later than the Delayed
Draw Term Loan Maturity Date. Each Lender's Delayed Draw Term Loan
Commitment shall terminate immediately and without further action upon
the full funding of such Lender's Delayed Draw Term Loan Commitment.
(3) Incremental Facilities. Borrower may by written notice to
Sole Lead Arranger elect to request (A) an increase to the existing
Revolving Loan Commitments (any such increase, the "NEW REVOLVING LOAN
COMMITMENTS"), (B) an increase to the existing Delayed Draw Term Loan
Commitments ("NEW DELAYED DRAW TERM LOAN COMMITMENTS") and/or (C) the
establishment of one or more new term loan commitments (the "NEW TERM
LOAN COMMITMENTS"), by an amount not in excess of $200,000,000 in the
aggregate and not less than $25,000,000 individually (or such lesser
amount which shall be approved by Administrative Agent and Syndication
Agent or such lesser amount that shall constitute the difference
between $200,000,000 and all such New Revolving Loan Commitments, New
Delayed Draw Term Loan Commitments and New Term Loan Commitments), and
integral multiples of $5,000,000 in excess of that amount, provided,
however, that on and after January 1, 2004, Borrower may only elect the
establishment of one or more New Term Loan Commitments. Each such
notice shall specify (A) the date (each, an "INCREASED AMOUNT DATE") on
which Borrower proposes that the New Revolving Loan Commitments, New
Delayed Draw Term Loan Commitments or the New Term Loan Commitments, as
applicable, shall be effective and that Loans be made pursuant to the
New Term Loan Commitments ("NEW TERM LOANS"), which shall be a date not
less than 10 Business Days after the date on which such notice is
delivered to Administrative Agent and (B) the identity of each Lender
or other Person (each, a "NEW REVOLVING LOAN LENDER", "NEW DELAYED DRAW
TERM LOAN LENDER" or a "NEW TERM LOAN LENDER", as applicable) to whom
Borrower proposes any portion of such New Revolving Loan Commitments,
New Delayed Draw Term Loan Commitments or New Term Loan Commitments, as
applicable, be allocated and the amounts of such allocations; provided
that any Lender approached to provide all or a portion of the New
Revolving Loan Commitments, New Delayed Draw Term Loan Commitments or
New Term Loan Commitments may elect or decline, in its sole discretion,
to provide a New Revolving Loan Commitment, New Delayed Draw Term Loan
Commitment or a New Term Loan Commitment. Such New Revolving Loan
Commitments, New Delayed Draw Term Loan Commitments or New Term Loan
Commitments shall become effective and any such Series of New Term
Loans shall be made, as applicable, as of such Increased Amount Date;
provided that (1) no Default or Event of Default shall exist on such
Increased Amount Date before or after giving effect to such New
Revolving Loan
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Commitments, New Delayed Draw Term Loan Commitments or New Term Loan
Commitments, as applicable; (2) both before and after giving effect to
the making of any Series of New Term Loans each of the conditions set
forth in Section 3.2 shall be satisfied; (3) each increase in the
Revolving Loan Commitments, Delayed Draw Term Loan Commitments or New
Term Loan Commitments, as applicable, shall be effected pursuant to one
or more Joinder Agreements executed and delivered to Administrative
Agent, and each shall be recorded in the Register, each of which shall
be subject to the requirements set forth in Section 2.18(c); (4)
Borrower shall make any payments required pursuant to Section 2.16(c)
in connection with the New Revolving Loan Commitments or New Delayed
Draw Term Loan Commitments, as applicable, and (5) Borrower shall
deliver or cause to be delivered any legal opinions or other documents
reasonably requested by Administrative Agent in connection with any
such transaction. Any New Term Loans made may be, at the Borrower's
option, a separate series ("SERIES") of New Term Loans for all purposes
of this Agreement.
On any Increased Amount Date on which New Revolving Loan
Commitments are effected, subject to the satisfaction of the foregoing
terms and conditions, (a) each of the Revolving Lenders shall assign to
each of the New Revolving Loan Lenders, and each of the New Revolving
Loan Lenders shall purchase from each of the Revolving Loan Lenders, at
the principal amount thereof (together with accrued interest), such
interests in the Revolving Loans outstanding on such Increased Amount
Date as shall be necessary in order that, after giving effect to all
such assignments and purchases, such Revolving Loans will be held by
existing Revolving Loan Lenders and New Revolving Loan Lenders ratably
in accordance with their Revolving Loan Commitments after giving effect
to the addition of such New Revolving Loan Commitments to the Revolving
Loan Commitments, (b) each New Revolving Loan Commitment shall be
deemed for all purposes a Revolving Loan Commitment and each Loan made
thereunder (a "NEW REVOLVING LOAN") shall be deemed, for all purposes,
a Revolving Loan and (c) each New Revolving Loan Lender shall become a
Lender with respect to the New Revolving Loan Commitment and all
matters relating thereto.
On any Increased Amount Date on which New Delayed Draw Term
Loan Commitments are effected, subject to the satisfaction of the
foregoing terms and conditions, (a) each of the Delayed Draw Term Loan
Lenders shall assign to each of the New Delayed Draw Term Loan Lenders,
and each of the New Delayed Draw Term Loan Lenders shall purchase from
each of the Delayed Draw Term Loan Lenders, at the principal amount
thereof (together with accrued interest), such interests in the Delayed
Draw Term Loan outstanding on such Increased Amount Date as shall be
necessary in order that, after giving effect to all such assignments
and purchases, such Delayed Draw Term Loan will be held by existing
Delayed Draw Term Loan Lenders and New Delayed Draw Term Loan Lenders
ratably in accordance with their Delayed Draw Term Loan Commitments
after giving effect to the addition of such New Delayed Draw Term Loan
Commitments to the Delayed Draw Term Loan Commitments, (b) each New
Delayed Draw Term Loan Commitment shall be deemed
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for all purposes a Delayed Draw Term Loan Commitment and each Loan made
thereunder (a "NEW DELAYED DRAW TERM LOAN") shall be deemed, for all
purposes, a Delayed Draw Term Loan and (c) each New Delayed Draw Term
Loan Lender shall become a Lender with respect to the New Delayed Draw
Term Loan Commitment and all matters relating thereto.
On any Increased Amount Date on which any New Term Loan
Commitments of any Series are effective, subject to the satisfaction of
the foregoing terms and conditions, (i) each New Term Loan Lender of
any Series shall make a New Term Loan to Borrower in an amount equal to
its New Term Loan Commitment of such Series, and (ii) each New Term
Loan Lender of any Series shall become a Lender hereunder with respect
to the New Term Loan Commitment of such Series and the New Term Loans
of such Series made pursuant thereto.
The Administrative Agent shall notify the Lenders promptly
upon receipt of Borrower's notice of each Increased Amount Date and in
respect thereof the New Revolving Loan Commitments and the New
Revolving Loan Lenders, the New Delayed Draw Term Loan Commitments and
the New Delayed Draw Term Loan Lenders or the Series of New Term Loan
Commitments and the New Term Loan Lenders of such Series, as
applicable, and, in the case of each notice to any Revolving Loan
Lender, the respective interests in such Revolving Loan Lender's
Revolving Loans subject to the assignments contemplated by this
section.
The terms and provisions of the New Term Loans of any Series
and New Term Loan Commitments of any Series shall be, except as
otherwise set forth herein or in the Joinder Agreement, identical to
the Revolving Loans in the case of New Revolving Loans, and identical
to Delayed Draw Term Loans in the case of Term Loans and in any event
(i) the weighted average life to maturity of all New Term Loans of any
Series, shall be no shorter than the weighted average life to maturity
of the Revolving Loans or the Term Loans (ii) the final maturity of all
New Term Loans of any Series shall be no longer than six months prior
to the maturity of any Subordinated Indebtedness and (iii) the rate of
interest applicable to New Term Loans of any Series shall be determined
by Borrower and applicable new Lenders and shall be set forth in each
applicable Joinder Agreement; provided however that in the case of New
Term Loans the Applicable Margin shall not be greater than the
Applicable Margin to the Delayed Draw Term Loans. Each Joinder
Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be
necessary or appropriate, in the opinion of the Syndication Agent and
the Administrative Agent, to effect the provision of this Section
2.1(a)(iii).
(2) Borrowing Mechanics for Loans.
(1) Loans (other than New Term Loans) shall be made in a minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess
thereof.
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(2) Whenever Borrower desires that Lenders make Loans, Borrower
shall deliver to Administrative Agent telephonic notice, followed by a
fully executed and delivered Funding Notice no later than 10:00 a.m.
(New York City time) at least three Business Days in advance of the
proposed Credit Date in the case of a Eurodollar Rate Loan, and at
least one Business Day in advance of the proposed Credit Date in the
case of a Loan that is a Base Rate Loan. Except as otherwise provided
herein, a Funding Notice for a Loan that is a Eurodollar Rate Loan
shall be irrevocable on and after the related Interest Rate
Determination Date, and Borrower shall be bound to make a borrowing in
accordance therewith.
(3) Notice of receipt of each Funding Notice in respect of Loans,
together with the amount of each Lender's Pro Rata Share thereof, if
any, together with the applicable interest rate, shall be provided by
Administrative Agent to each applicable Lender by telefacsimile with
reasonable promptness, but not later than 2:00 p.m. (New York City
time) on the same day as Administrative Agent's receipt of such Notice
from Borrower.
(4) Each Lender shall make the amount of its Loan available to
Administrative Agent not later than 12:00 Noon (New York City time) on
the applicable Credit Date by wire transfer of same day funds in
Dollars, at the Administrative Agent's Principal Office. Except as
provided herein, upon satisfaction or waiver of the conditions
precedent specified herein, Administrative Agent shall make the
proceeds of such Loans available to Borrower on the applicable Credit
Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Loans received by Administrative Agent from
Lenders to be credited to the account of Borrower at the Administrative
Agent's Principal Office or such other account as may be designated in
writing to Administrative Agent by Borrower.
2.2. Pro Rata Shares; Availability of Funds. (a) All Loans shall be
made by Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that no Lender shall be responsible for any default
by any other Lender in such other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender be increased or decreased as a
result of a default by any other Lender in such other Lender's obligation to
make a Loan requested hereunder.
(1) Unless Administrative Agent shall have been notified by any Lender
prior to the applicable Credit Date that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Credit Date, Administrative Agent may assume that such Lender has made such
amount available to Administrative Agent on such Credit Date and Administrative
Agent may, in its sole discretion, but shall not be obligated to, make available
to Borrower corresponding amount on such Credit Date. If such corresponding
amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest thereon, for each day from such
Credit Date until the date such amount is paid to Administrative Agent, at the
customary rate set by Administrative Agent for the correction of errors among
banks for three Business Days and thereafter at the Base Rate. If such Lender
does not pay such corresponding
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amount forthwith upon Administrative Agent's demand therefor, Administrative
Agent shall promptly notify Borrower and Borrower shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon, for
each day from such Credit Date until the date such amount is paid to
Administrative Agent, at the rate payable hereunder for Base Rate Loans for such
Type of Loans. Nothing in this Section 2.2(b) shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights that Borrower may have against any Lender as a result of any default
by such Lender hereunder.
2.3. Use of Proceeds. The proceeds of the Loans shall be used by
Borrower and its Subsidiaries to provide (y) general corporate purposes
including working capital financing in an amount outstanding hereunder not to
exceed $100,000,000 and (z) purchase money financing for the cost of design,
development, acquisition, construction, installation, improvement,
transportation or integration of equipment, inventory, and network assets. No
portion of the proceeds of any Loan shall be used by Borrower or any of its
Subsidiaries in any manner that might cause such Loan or the application of such
proceeds to violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation thereof or to
violate the Exchange Act, in each case as in effect on the date or dates of such
Loan and such use of proceeds.
2.4. Evidence of Debt; Register; Lenders' Books and Records; Notes. (a)
Each Lender shall maintain on its internal records an account or accounts with
respect to the Loans to Borrower by such Lender, including the amounts of the
Loans made by it and each repayment and prepayment in respect thereof. Any such
recordation shall be conclusive and binding on Borrower, absent manifest error;
provided that failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or Borrower's Obligations
in respect of any applicable Loans; and provided further that in the event of
any inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern.
(1) Administrative Agent shall maintain at its Principal Office a
register for the recordation of the names and addresses of Lenders and the
Commitments and Loans of each Lender from time to time (the "REGISTER"). The
Register shall be available for inspection by Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
Administrative Agent shall record in the Register the Commitments and the Loans,
and each repayment or prepayment in respect of the principal amount of the
Loans, and any such recordation shall be conclusive and binding on Borrower and
each Lender, absent manifest error; provided that failure to make any such
recordation, or any error in such recordation, shall not affect any Lender's
Commitments or Borrower's Obligations in respect of any Loan. Borrower hereby
designates TD to serve as Borrower's agent solely for purposes of maintaining
the Register as provided in this Section 2.4, and Borrower hereby agrees that,
to the extent TD serves in such capacity, TD and its officers, directors,
employees, agents and affiliates shall constitute "INDEMNITEES".
(b) If so requested by any Lender by written notice to Borrower (with a
copy to Administrative Agent) at least two Business Days prior to the Closing
Date, or at any time thereafter, Borrower shall execute and deliver to such
Lender (and/or, if applicable and if so specified in such
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notice, to any Person who is an assignee of such Lender pursuant to Section
10.6) on the Closing Date (or, if such notice is delivered after the Closing
Date, promptly after Borrower's receipt of such notice) a Note or Notes to
evidence such Lender's Loans.
2.5. Interest Payments. (a) Except as otherwise set forth herein, each
Loan shall bear interest on the unpaid principal amount thereof from the date
made through repayment (whether by acceleration or otherwise) as follows:
(1) if a Base Rate Loan, at the Base Rate plus the Applicable
Margin; or
(2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate
plus the Applicable Margin.
(2) The basis for determining the rate of interest with respect to any
Loan and the Interest Period with respect to any Eurodollar Rate Loan, shall be
selected by Borrower and notified to Administrative Agent and Lenders pursuant
to the applicable Funding Notice or Conversion/Continuation Notice, as the case
may be. If on any day a Loan is outstanding with respect to which a Funding
Notice or Conversion/Continuation Notice has not been delivered to
Administrative Agent in accordance with the terms hereof specifying the
applicable basis for determining the rate of interest, then for that day such
Loan shall be a Base Rate Loan.
(3) In connection with Eurodollar Rate Loans there shall be no more
than twelve (12) Interest Periods outstanding at any time; provided that such
number may be increased to fifteen (15) at the request of Borrower in connection
with New Term Loans. In the event Borrower fails to specify an Interest Period
for any Eurodollar Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, Borrower shall be deemed to have selected an
Interest Period of one month. A soon as practicable after 10:00 A.M. (New York
City time) on each Interest Rate Determination Date, Administrative Agent shall
determine (which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) the interest rate that shall apply to
the Eurodollar Rate Loans for which an interest rate is then being determined
for the applicable Interest Period and shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to Borrower and each Lender.
(4) Interest payable pursuant to Section 2.5(a) shall be computed (i)
in the case of Base Rate Loans on the basis of a 365-day or 366-day year, as the
case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of a
360-day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate
Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate
Loan, as the case may be, shall be included, and the date of payment of such
Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the
date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the
case may be, shall be excluded; provided
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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.
(5) Except as otherwise set forth herein, interest on each Loan shall
be payable in arrears on and to (i) each Interest Payment Date applicable to
that Loan; (ii) any prepayment of that Loan, whether voluntary or mandatory, to
the extent accrued on the amount being prepaid; and (iii) at maturity, including
final maturity.
2.6. Conversion/Continuation. (a) So long as no Default or Event of
Default shall have occurred and then be continuing, Borrower shall have the
option:
(1) to convert at any time all or any part of any Loan equal to
$5,000,000 and integral multiples of $1,000,000 in excess of that
amount from one Type of Loan to another Type of Loan; provided that a
Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
expiration of the Interest Period applicable to such Eurodollar Rate
Loan unless Borrower shall pay all amounts due under Section 2.16 in
connection with any such conversion; or
(2) upon the expiration of any Interest Period applicable to any
Eurodollar Rate Loan, to continue all or any portion of such Loan equal
to $5,000,000 and integral multiples of $1,000,000 in excess of that
amount as a Eurodollar Rate Loan.
(2) The Borrower shall deliver a Conversion/Continuation Notice to
Administrative Agent no later than 10:00 A.M. (New York City time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein, a
Conversion/Continuation Notice for conversion to, or continuation of, any
Eurodollar Rate Loans (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Borrower shall be bound to effect a conversion or continuation in accordance
therewith.
2.7. Default Interest. Upon the occurrence and during the continuance
of an Event of Default of the type specified in Section 8.1(a), the principal
amount of all Loans, and, to the extent permitted by applicable law, any
interest payments on the Loans or any fees or other amounts owed hereunder not
paid when due, in each case whether at stated maturity, by notice of prepayment,
by acceleration or otherwise, shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate that is 2% per annum in
excess of the interest rate otherwise payable hereunder with respect to the
applicable Loans (or, in the case of any such fees and other amounts, at a rate
which is 2% per annum in excess of the interest rate otherwise payable hereunder
for Base Rate Loans); provided that in the case of Eurodollar Rate Loans, upon
the expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Loans shall thereupon become
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Base Rate Loans and shall thereafter bear interest payable upon demand at a rate
which is 2% per annum in excess of the interest rate otherwise payable hereunder
for Base Rate Loans. Payment or acceptance of the increased rates of interest
provided for in this Section 2.7 is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default or otherwise
prejudice or limit any rights or remedies of Administrative Agent or any Lender.
2.8. Fees. (a) Borrower agrees to pay to Lenders having Revolving Loan
Exposure and/or Delayed Draw Term Loan Exposure through Administrative Agent a
commitment fee equal to the average daily unused Commitments of such Lender
during the preceding quarter multiplied by the Applicable Commitment Fee
Percentage. All fees referred to in this Section 2.8(a) shall be paid to
Administrative Agent at its Principal Office and upon receipt, Administrative
Agent shall promptly distribute to each Lender its Pro Rata Share thereof.
(1) All fees referred to in Section 2.8(a) shall be calculated on the
basis of a 360-day year and the actual number of days elapsed and shall be
payable (i) quarterly in arrears on March 31, June 30, September 30 and December
31 of each year commencing on the first such date to occur after the Closing
Date, (ii) on the Delayed Draw Term Loan Commitment Termination Date and (iii)
on the Revolving Loan Commitment Termination Date.
(2) In addition to the foregoing fees, Borrower agrees to pay to Agents
such other fees in the amounts and at the times separately agreed upon by
Borrower and such Agents thereby.
(3) In addition, Borrower agrees to pay such commitment and other fees
as may be payable in connection with New Term Loans as set forth in the
applicable Joinder Agreement or otherwise agreed to in writing by Borrower.
2.9. Scheduled Payments/Reductions.
(1) The total Revolving Loan Commitments hereunder shall be permanently
reduced in the aggregate annual percentages set forth below in consecutive
quarterly installments (each, a "REDUCTION") on March 31, June 30, September 30
and December 31 of each year (each, a "REDUCTION DATE") occurring in each of the
Fiscal Years set forth below, commencing March 31, 2004, with 25% of each annual
amount being applied in reducing the Revolving Loan Commitments in consecutive
quarterly installments (each, a "REVOLVING LOAN INSTALLMENT") on the last day of
each Fiscal Quarter (each, an "INSTALLMENT DATE"):
REVOLVING LOAN
FISCAL YEAR COMMITMENT REDUCTIONS
2004 20%
2005 30%
2006 50%
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Notwithstanding the foregoing, such Reductions shall be reduced in connection
with any voluntary or mandatory reductions of the Revolving Loan Commitments in
accordance with Sections 2.10, 2.11 and 2.12.
(2) The principal amounts of the Delayed Draw Term Loans (other than
New Term Loans) shall be repaid in the aggregate annual percentages set forth
below in consecutive quarterly installments (each, a "DELAYED DRAW TERM LOAN
INSTALLMENT") on each Installment Date occurring in each of the Fiscal Years set
forth below, commencing March 31, 2004, with 25% of each annual amount being
paid on each Installment Date:
DELAYED DRAW TERM LOAN
FISCAL YEAR INSTALLMENTS
2004 20%
2005 30%
2006 50%
Notwithstanding anything to the contrary set forth above the scheduled repayment
and reduction provisions with respect to New Term Loans shall be set forth in
each applicable Joinder Agreement.
Further notwithstanding the foregoing, (i) such Delayed Draw Term Loan
Installments shall be reduced in connection with any voluntary or mandatory
reduction or prepayments of the Delayed Draw Term Loan Commitments and/or the
Delayed Draw Term Loans in accordance with Section 2.10, 2.11 and 2.12 and (ii)
the Delayed Draw Term Loans, together with all other amounts owed hereunder with
respect thereto, shall be paid in full no later than the Delayed Draw Term Loan
Maturity Date.
(3) Provisions with respect to scheduled repayments of New Term Loans
shall be as set forth in each applicable Joinder Agreement.
2.10. Voluntary Prepayments/Reductions.
(1) Prepayments.
(1) Any time and from time to time Borrower may prepay any Loans
on any Business Day in whole or in part without premium (but subject to
Section 2.16) in any
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aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of that amount.
(2) All such prepayments shall be made:
(1) upon not less than one Business Day's prior written
or telephonic notice, in the case of Base Rate Loans
and
(2) upon not less than three Business Days' prior written
or telephonic notice, in the case of Eurodollar Rate
Loans;
in each case given to Administrative Agent by 12:00 noon (New York City
time) on the date required and, if given by telephone, promptly
confirmed in writing to Administrative Agent (and Administrative Agent
will promptly transmit such telephonic or original notice by
telefacsimile or telephone to each Lender). Upon the giving of any such
notice, the principal amount of the Loans specified in such notice
shall become due and payable on the prepayment date specified therein.
Any such prepayment made pursuant to this Section 2.10(a) shall not
reduce the Revolving Loan Commitments unless Borrower has so requested
in accordance with Section 2.10(b).
(2) Reductions.
(1) Borrower may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to Administrative
Agent (which original written or telephonic notice Administrative Agent
will promptly transmit by telefacsimile or telephone to each applicable
Lender), at any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the Revolving
Loan Commitments in an amount up to the amount by which the Revolving
Loan Commitments exceed the Total Utilization of Revolving Loan
Commitments at the time of such proposed termination or reduction plus
the amount that the Revolving Loans are prepaid pursuant to clause (a)
above; provided that any such partial reduction of the Revolving Loan
Commitments shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount; provided
further that in the event that Borrower fails to specify otherwise any
such termination or permanent reduction shall be applied against the
scheduled Reductions set forth in Section 2.9 on a pro rata basis (in
accordance with the outstanding Revolving Loan Commitments at such
time).
(2) Borrower may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to Administrative
Agent (which original written or telephonic notice Administrative Agent
will promptly transmit by telefacsimile or telephone to each applicable
Lender), at any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the Delayed
Draw Term Loan Commitments in an amount up to the amount by which the
Delayed Draw Term Loan
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Commitments exceed the Total Utilization of Delayed Draw Term Loan
Commitments at the time of such proposed termination or reduction;
provided, any such partial reduction of the Delayed Draw Term Loan
Commitments shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount.
(3) Borrower's notice to Administrative Agent shall designate the
date (which shall be a Business Day) of such termination or reduction
and the amount of any partial reduction, and such termination or
reduction of the Revolving Loan Commitments and/or Delayed Draw Term
Loan Commitments, as applicable, shall be effective on the date
specified in Borrower's notice and shall reduce the Revolving Loan
Commitment and/or Delayed Draw Term Loan Commitment, as applicable of
each Lender proportionately to its Pro Rata Share thereof.
2.11. Mandatory Prepayments/Reductions. (a) Asset Sales. If, within the
period of two hundred seventy (270) days after the receipt by Borrower or any of
its Subsidiaries of Net Asset Sales Proceeds, Company has not invested such Net
Asset Sale Proceeds in the business of Borrower and its Subsidiaries, as
certified to Administrative Agent by Company, then, to the extent Borrower has
not previously done so, Company shall prepay Loans and the Commitments shall be
permanently reduced as set forth in Section 2.12, in either case in an amount
equal to the excess of such Net Asset Sale Proceeds over amounts invested as
aforesaid. Pending a determination whether any Net Asset Sale Proceeds will be
applied to prepay Loans and/or reduce Commitments pursuant to the preceding
sentence, such Net Asset Sale Proceeds shall be applied to prepay outstanding
Revolving Loans (without a reduction in the Revolving Loan Commitments).
(1) Insurance/Condemnation Proceeds. No later than the third Business
Day following the date of receipt by Company or any of its Subsidiaries, or
Administrative Agent as loss payee, of any Net Insurance/Condemnation Proceeds,
Borrower shall prepay the Loans and the Commitments shall be permanently reduced
as set forth in Section 2.12 in an aggregate amount equal to such Net
Insurance/Condemnation Proceeds; provided that so long as no Default or Event of
Default shall have occurred and be continuing, Company shall have the option,
through one or more of its Subsidiaries, to invest such Net
Insurance/Condemnation Proceeds within two hundred seventy (270) days of receipt
thereof in long term productive assets of the general type used in the business
of Borrower and its Subsidiaries, which investment may include the repair,
restoration or replacement of the applicable assets of Company or its
Subsidiaries; provided further that pending any such investment all such Net
Insurance/Condemnation Proceeds, as the case may be, shall be applied to prepay
outstanding Revolving Loans (without a reduction in Revolving Loan Commitments).
(2) Consolidated Excess Cash Flow. In the event that there shall be
Consolidated Excess Cash Flow for any Fiscal Year (commencing with Fiscal Year
2004), Borrower shall, no later than ninety (90) days after the end of such
Fiscal Year, prepay the Loans and the Commitments shall be permanently reduced
as set forth in Section 2.12 in an aggregate amount equal to 50% of such
Consolidated Excess Cash Flow.
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(3) Commitment Amounts. Borrower shall from time to time prepay the
Revolving Loans to the extent necessary so that the Total Utilization of
Revolving Loan Commitments shall not at any time exceed the Revolving Loan
Commitments then in effect. Borrower shall also from time to time prepay the
Delayed Draw Term Loans to the extent necessary so that the Total Utilization of
Delayed Draw Term Loan Commitments shall not at any time exceed the Delayed Draw
Term Loan Commitments then in effect.
(4) Certain Additional Payments. Concurrently with any prepayment of
the Loans and/or reduction of the Commitments pursuant to Sections 2.11(a), 2.11
(b) and 2.11(c), Borrower shall deliver to Administrative Agent a certificate of
an Authorized Officer demonstrating the calculation of the amount of the
applicable net proceeds or Consolidated Excess Cash Flow, as the case may be. In
the event that Borrower shall subsequently determine that the actual amount
received exceeded the amount set forth in such certificate, Borrower shall
promptly make an additional prepayment of the Loans and the Commitments shall be
permanently reduced in an amount equal to such excess, and Borrower shall
concurrently therewith deliver to Administrative Agent a certificate of an
Authorized Officer demonstrating the derivation of such excess.
2.12. Application of Prepayments/Reductions.
(1) Application of Voluntary Prepayments by Type of Loans. Any
prepayment of any Loan pursuant to Section 2.10(a) shall be applied as specified
by Borrower in the applicable notice of prepayment; provided that in the event
Borrower fails to specify the Loans to which any such prepayment shall be
applied, such prepayment shall be applied as follows:
first, to repay outstanding Revolving Loans to the full extent
thereof;
second, to repay outstanding Delayed Draw Term Loans on a pro
rata basis to the full extent thereof and shall be further applied to
each scheduled Delayed Draw Term Loan Installment of principal of
Delayed Draw Term Loans on a pro rata basis; and
third, to prepay the New Term Loans if any, on a pro rata
basis to each scheduled installment of principal of the New Term Loans
(pro rata in the case of New Term Loans among each outstanding Series).
(2) Application of Mandatory Prepayments by Type of Loans. Any amount
required to be paid pursuant to Sections 2.11(a), (b) and (c) shall be applied
on a pro rata basis against Revolving Loans, Delayed Draw Term Loans and New
Term Loans (pro rata in the case of New Term Loans among each outstanding
Series), if any, and shall be further applied to reduce the Revolving Loan
Commitments by the amount allocable to Revolving Loans and to reduce the Delayed
Draw Term Loan Commitments by an amount, if any, equal to the excess of the
amount allocable to the Delayed Draw Term Loans over the amount of the Delayed
Draw Term Loans outstanding immediately prior to the making of any such
mandatory prepayment; provided that any such reduction of Revolving Loan
Commitments shall be applied against the scheduled Reductions
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set forth in Section 2.9 on a pro rata basis (in accordance with the outstanding
Revolving Loan Commitments of such time); provided that with respect to New Term
Loans, a lesser amount may be required to be prepaid or waived if set forth in
the applicable Joinder Agreement; provided that, any such amounts waived or not
used to prepay New Term Loans shall be used to further prepay, on a pro rata
basis, Revolving Loans and Delayed Draw Term Loans.
(3) Application of Prepayments of Loans to Base Rate Loans and
Eurodollar Rate Loans. Considering each Class of Loans being prepaid separately,
any prepayment thereof shall be applied first to Base Rate Loans to the full
extent thereof before application to Eurodollar Rate Loans, in each case in a
manner which minimizes the amount of any payments required to be made by
Borrower pursuant to Section 2.16(c).
2.13. Allocation of Certain Payments and Proceeds. If an Event of
Default shall have occurred and not otherwise be waived, and the maturity of the
Obligations shall have been accelerated pursuant to Section 8.1, all payments or
proceeds received by Agents hereunder in respect of any of the Obligations,
shall be applied by Agents in the following order:
first, amounts due to the Agents pursuant to Section 10.2;
second, amounts due to Lenders, if any, pursuant to Sections
2.16, 2.17 or 2.18, to be applied for the ratable benefit of Lenders
without distinction or preference as among them;
third, amounts due to Lenders pursuant to Sections 2.8 and 10.2,
to be applied for the ratable benefit of Lenders without distinction or
preference as among them;
fourth, amounts due to Agents pursuant to Section 2.8, to be
applied in accordance therewith;
fifth, payments of interest on Loans, without distinction or
preference as among them;
sixth, payments of principal on Loans, and all Obligations then
payable to any Lender Counterparty pursuant to a Hedge Agreement
permitted hereby, to be applied for the ratable benefit of Lenders and
such Lender Counterparties, without distinction or preference as among
them;
seventh, amounts due to Indemnitees pursuant to Section 10.3, to
be applied for the ratable benefit thereof;
eighth, payments of all other Obligations due under any of the
Credit Documents, if any, to be applied for the ratable benefit of
Lenders and Agents; and
ninth, any surplus remaining after application as provided for
herein, to Borrower or as otherwise may be required by applicable law.
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2.14. General Provisions Regarding Payments. (a) All payments by
Borrower of principal, interest, fees and other Obligations shall be made in
Dollars in same day funds, without defense, setoff or counterclaim, free of any
restriction or condition, and delivered to Administrative Agent not later than
12:00 Noon (New York City time) on the date due at the Administrative Agent's
Principal Office for the account of Lenders; funds received by Administrative
Agent after that time on such due date shall be deemed to have been paid by
Borrower on the next succeeding Business Day.
(1) All payments in respect of the principal amount of any Loan shall
include payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments (and, in any event, any payments in respect of
any Loan on a date when interest is due and payable with respect to such Loan)
shall be applied to the payment of interest before application to principal.
(2) Administrative Agent shall promptly distribute to each Lender at
such address as such Lender shall indicate in writing, such Lender's applicable
Pro Rata Share, giving effect to any adjustments in Pro Rata Shares on and after
the Closing Date, of all payments and prepayments of principal and interest due
hereunder, together with all other amounts due thereto, including, without
limitation, all fees payable with respect thereto, to the extent received by
Administrative Agent.
(3) Notwithstanding the foregoing provisions hereof, if any
Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.
(4) Subject to the provisos set forth in the definition of "INTEREST
PERIOD", whenever any payment to be made hereunder shall be stated to be due on
a day that is not a Business Day, such 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 of the Commitment fees
hereunder, as the case may be.
(5) Borrower hereby authorizes Administrative Agent to charge
Borrower's or Company's accounts with Administrative Agent in order to cause
timely payment to be made to Administrative Agent of all principal, interest,
fees and expenses due hereunder (subject to sufficient funds being available in
its accounts for that purpose).
(6) Administrative Agent shall deem any payment by or on behalf of
Borrower hereunder that is not made in same day funds prior to 12:00 noon (New
York City time) on or before the due date to be a non-conforming payment. Any
such payment shall not be deemed to have been received by Administrative Agent
until the later of (i) the time such funds become available funds, and (ii) the
applicable next Business Day. Administrative Agent shall give prompt telephonic
notice to Borrower and each applicable Lender (confirmed in writing) if any
payment is non-conforming. Any non-conforming payment may constitute or become a
Default or Event of Default in accordance with
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the terms of Section 8.1(a). Interest shall continue to accrue on any principal
as to which a non-conforming payment is made until such funds become available
funds (but in no event less than the period from the date of such payment to the
next succeeding applicable Business Day) at the rate determined pursuant to
Section 2.7 from the date such amount was due and payable until the date such
amount is paid in full.
2.15. Ratable Sharing. Lenders hereby agree among themselves that if
any of them shall, whether by voluntary payment (other than a voluntary
prepayment of Loans made and applied in accordance with the terms hereof), by
realization upon security, through the exercise of any right of set-off or
banker's lien, by counterclaim or cross action or by the enforcement of any
right under the Credit Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment or
reduction of a proportion of the aggregate amount of principal, interest, fees
and other amounts then due and owing to such Lender hereunder or under the other
Credit Documents (collectively, the "AGGREGATE AMOUNTS DUE" to such Lender)
which is greater than the proportion received by any other Lender in respect of
the Aggregate Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (a) notify Administrative Agent and each
other Lender of the receipt of such payment and (b) apply a portion of such
payment to purchase participations (which it shall be deemed to have purchased
from each seller of a participation simultaneously upon the receipt by such
seller of its portion of such payment) in the Aggregate Amounts Due to the other
Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by
all Lenders in proportion to the Aggregate Amounts Due to them; provided that,
if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy
or reorganization of Borrower or otherwise, those purchases shall be rescinded
and the purchase prices paid for such participations shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without interest.
Borrower expressly consents to the foregoing arrangement and agrees that any
holder of a participation so purchased may exercise any and all rights of
banker's lien, set-off or counterclaim with respect to any and all monies owing
by Borrower to that holder with respect thereto as fully as if that holder were
owed the amount of the participation held by that holder.
2.16. Making or Maintaining Eurodollar Rate Loans. (a) In the event
that Administrative Agent shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by telefacsimile or by telephone confirmed
in writing) to Borrower and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, Eurodollar Rate Loans until such time as
Administrative Agent notifies Borrower and Lenders that the circumstances giving
rise to such notice no longer exist, and (ii) any Funding Notice or
Conversion/Continuation Notice given by Borrower with respect to the Loans in
respect of which such determination was made shall be deemed to be rescinded by
Borrower.
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(1) In the event that on any date any Lender shall have determined
(which determination shall be final and conclusive and binding upon all parties
hereto but shall be made only after consultation with Borrower and
Administrative Agent) that the making, maintaining or continuation of its
Eurodollar Rate Loans (i) has become unlawful as a result of compliance by such
Lender in good faith with any law, treaty, governmental rule, regulation,
guideline or order (or would conflict with any such treaty, governmental rule,
regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) has become
impracticable, as a result of contingencies occurring after the date hereof
which materially and adversely affect the London interbank market or the
position of such Lender in that market, then, and in any such event, such Lender
shall be an "AFFECTED LENDER" and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to Borrower and
Administrative Agent of such determination (which notice Administrative Agent
shall promptly transmit to each other Lender). Thereafter (1) the obligation of
the Affected Lender to make or to continue Loans as, or to convert Loans to,
Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by
the Affected Lender, (2) to the extent such determination by the Affected Lender
relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a
Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall
make such Loan as (or convert such Loan to, as the case may be) a Base Rate
Loan, (3) the Affected Lender's obligation to maintain its outstanding
Eurodollar Rate Loans (the "AFFECTED LOANS") shall be terminated at the earlier
to occur of the expiration of the Interest Period then in effect with respect to
the Affected Loans or when required by law, and the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurodollar Rate Loan then being requested
by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice,
Borrower shall have the option, subject to the provisions of Section 2.17(c), to
rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders
by giving notice (by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected Lender
gives notice of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this Section 2.16(b)
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms hereof.
(2) Borrower shall compensate each Lender, upon written request by such
Lender (which request shall set forth the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including any interest paid
by such Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans and any loss, expense or liability sustained by such
Lender in connection with the liquidation or re-employment of such funds but
excluding loss of anticipated profits) which such Lender may sustain: (i) if for
any reason (other than a default by such Lender) a borrowing of any Eurodollar
Rate Loan does not occur on a date specified therefor in a Funding Notice or a
telephonic request for borrowing, or a conversion to or continuation of any
Eurodollar Rate Loan does not occur on a date specified therefor in a
Conversion/Continuation Notice or a telephonic request for conversion or
continuation; (ii) if any prepayment or other principal payment
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or any conversion of any of its Eurodollar Rate Loans occurs on a date prior to
the last day of an Interest Period applicable to that Loan; (iii) if any
prepayment of any of its Eurodollar Rate Loans is not made on any date specified
in a notice of prepayment given by Borrower; or as a consequence of any other
default by Borrower in the repayment of its Eurodollar Rate Loans when required
by the terms hereof.
(3) Any Lender may make, carry or transfer Eurodollar Rate Loans at,
to, or for the account of any of its branch offices or the office of an
Affiliate of such Lender.
(4) Calculation of all amounts payable to a Lender under this Section
2.16 and under Section 2.17 shall be made as though such Lender had actually
funded each of its relevant Eurodollar Rate Loans through the purchase of a
Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i)
of the definition of Adjusted Eurodollar Rate in an amount equal to the amount
of such Eurodollar Rate Loan and having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar deposit from an
offshore office of such Lender to a domestic office of such Lender in the United
States; provided that each Lender may fund each of its Eurodollar Rate Loans in
any manner it sees fit and the foregoing assumptions shall be utilized only for
the purposes of calculating amounts payable under this Section 2.16 and under
Section 2.17.
2.17. Increased Costs; Capital Adequacy.
(1) Subject to the provisions of Section 2.18 (which shall be
controlling with respect to the matters covered thereby), in the event that any
Lender shall determine (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) that any law, treaty
or governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or Governmental Authority, in each case that
becomes effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law): (i) subjects such Lender (or its applicable
lending office) to any additional Tax (other than any Tax on the overall net
income of such Lender) with respect to this Agreement or any of its obligations
hereunder or any payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder; (ii) imposes,
modifies or holds applicable any reserve (including any marginal, emergency,
supplemental, special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other
liabilities in or for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with respect to Eurodollar
Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a Tax matter) on
or affecting such Lender (or its applicable lending office) or its obligations
hereunder or the London interbank market; and the result of any of the foregoing
is to increase the cost to such Lender of agreeing to make, making or
maintaining Loans hereunder or to reduce any amount received or receivable by
such Lender (or
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its applicable lending office) with respect thereto; then, in any such case,
Borrower shall pay to such Lender within 10 days upon receipt of the statement
referred to in the next sentence, such additional amount or amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its sole discretion shall determine) as may be
necessary to compensate such Lender for any such increased cost or reduction in
amounts received or receivable hereunder; provided that Borrower shall not be
obligated to reimburse any Lender for such increase or reduction for any period
180 days prior to such Lender providing notice if such Lender was aware of the
circumstances that existed which would cause such increase or reduction during
such 180 day period. Such Lender shall deliver to Borrower (with a copy to
Administrative Agent) a written statement, setting forth in reasonable detail
the basis for calculating the additional amounts owed to such Lender under this
Section 2.17(a), which statement shall be conclusive and binding upon all
parties hereto absent manifest error.
(2) In the event that any Lender shall have determined that the
adoption, effectiveness, phase-in or applicability after the date hereof of any
law, rule or regulation (or any provision thereof) regarding capital adequacy,
or any change therein or in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or other obligations hereunder with respect
to the Loans to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within 10 days after receipt by Borrower from such
Lender of the statement referred to in the next sentence, Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender or
such controlling corporation on an after-tax basis for such reduction; provided
that Borrower shall not be obligated to reimburse any Lender for such increase
or reduction for any period 180 days prior to such Lender providing notice if
such Lender was aware of the circumstances that existed which would cause such
increase or reduction during such 180 day period. Such Lender shall deliver to
Borrower (with a copy to Administrative Agent) a written statement, setting
forth in reasonable detail the basis of the calculation of such additional
amounts, which statement shall be conclusive and binding upon all parties hereto
absent manifest error.
2.18. Taxes; Withholding, Etc. (a) All sums payable by any Credit Party
hereunder and the other Credit Documents shall (except to the extent required by
law) be paid free and clear of, and without any deduction or withholding on
account of, any Tax (other than a Tax on the overall net income of any Lender)
imposed, levied, collected, withheld or assessed by or within the United States
or any political subdivision in or of the United States or any other
jurisdiction from or to which a payment is made by or on behalf of any Credit
Party or by any federation or organization of which the United States or any
such jurisdiction is a member at the time of payment.
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(1) If any Credit Party or any other Person is required by law to make
any deduction or withholding on account of any such Tax from any sum paid or
payable by any Credit Party to Administrative Agent or any Lender under any of
the Credit Documents: (i) Borrower shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Borrower becomes
aware of it; (ii) Borrower shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to pay is
imposed on any Credit Party) for its own account or (if that liability is
imposed on Administrative Agent or such Lender, as the case may be) on behalf of
and in the name of Administrative Agent or such Lender; (iii) the sum payable by
such Credit Party in respect of which the relevant deduction, withholding or
payment is required shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment, Administrative Agent
or such Lender, as the case may be, receives on the due date a net sum equal to
what it would have received had no such deduction, withholding or payment been
required or made; and (iv) within thirty (30) days after paying any sum from
which it is required by law to make any deduction or withholding, and within
thirty (30) days after the due date of payment of any Tax which it is required
by clause (ii) above to pay, Borrower shall deliver to Administrative Agent
evidence satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the relevant taxing or
other authority; provided that no such additional amount shall be required to be
paid to any Lender under clause (iii) above except to the extent that any change
after the date hereof (in the case of each Lender listed on the signature pages
hereof on the Closing Date) or after the effective date of the Assignment
Agreement or Joinder Agreement pursuant to which such Lender became a Lender (in
the case of each other Lender) in any such requirement for a deduction,
withholding or payment as is mentioned therein shall result in an increase in
the rate of such deduction, withholding or payment from that in effect at the
date hereof or at the date of such Assignment Agreement, as the case may be, in
respect of payments to such Lender.
(2) Each Lender that is organized under the laws of any jurisdiction
other than the United States or any state or other political subdivision thereof
(a "NON-US LENDER") shall deliver to Administrative Agent for transmission to
Borrower, on or prior to the Closing Date (in the case of each Lender listed on
the signature pages hereof on the Closing Date) or on or prior to the date of
the Assignment Agreement or Joinder Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), and at such other times as may be
necessary in the determination of Borrower or Administrative Agent (each in the
reasonable exercise of its discretion), (i) two original copies of Internal
Revenue Service Form 1001 or 4224 (or any successor forms, including Form W-8BEN
or W-8ECI), properly completed and duly executed by such Lender, together with
any other certificate or statement of exemption required under the Internal
Revenue Code or the regulations issued thereunder to establish that such Lender
is not subject to deduction or withholding of United States federal income tax
with respect to any payments to such Lender of principal, interest, fees or
other amounts payable under any of the Credit Documents, or (ii) if such Lender
is not a "bank" or other Person described in Section 881(c)(3) of the Internal
Revenue Code and cannot deliver either Internal Revenue Service Form 1001 or
4224 pursuant to clause (i) above, a Certificate re Non-Bank Status together
with two original copies of Internal Revenue Service Form W-8 (or any successor
form), properly completed and duly executed by such Lender, together with any
other certificate or
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statement of exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to any
payments to such Lender of interest payable under any of the Credit Documents.
Each Lender required to deliver any forms, certificates or other evidence with
respect to United States federal income tax withholding matters pursuant to this
Section 2.18(c) hereby agrees, from time to time after the initial delivery by
such Lender of such forms, certificates or other evidence, whenever a lapse in
time or change in circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, that such Lender shall
promptly deliver to Administrative Agent for transmission to Borrower two new
original copies of Internal Revenue Service Form 1001 or 4224, or a Certificate
re Non-Bank Status and two original copies of Internal Revenue Service Form W-8,
as the case may be, properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption required in order
to confirm or establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to payments to such
Lender under the Credit Documents, or notify Administrative Agent and Borrower
of its inability to deliver any such forms, certificates or other evidence.
Borrower shall not be required to pay any additional amount under Section
2.18(b)(iii) if such Lender shall have failed to deliver the forms, certificates
or other evidence referred to in the second sentence of this Section 2.18(c), or
to notify Administrative Agent and Borrower of its inability to deliver any such
forms, certificates or other evidence, as the case may be; provided that if such
Lender shall have satisfied the requirements of the first sentence of this
Section 2.18(c) on the Closing Date or on the date of the Assignment Agreement
or Joinder Agreement pursuant to which it became a Lender, as applicable,
nothing in this last sentence of Section 2.18(c) shall relieve Borrower of its
obligation to pay any additional amounts pursuant to Section 2.18(a) in the
event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding as
described herein.
(3) If any Tax is refunded to Administrative Agent, it will pay such
refund to Borrower to the extent Administrative Agent determines in its sole
discretion that such refund is attributable to any Tax paid by Borrower and to
the extent Borrower has previously indemnified the Administrative Agent therefor
pursuant to this Section 2.18, net of expenses and without interest except any
interest (net of taxes) included in such refund. Borrower shall return such
refund (together with any taxes, penalties or other charges) in the event any
Agent or any Lender is required to repay such refund. Notwithstanding the
foregoing, nothing in this Section 2.18 shall be construed to (i) entitle
Borrower or any other Persons to (A) any information determined by any Agent or
Lender, in each case, in its sole discretion, to be confidential or proprietary
information of such Agent or Lender, (B) any tax or financial information of
such Agent or Lender, or (C) inspect or review any books and records of any
Agent or Lender, or (ii) interfere with the rights of any Agent or Lender to
conduct its fiscal or tax affairs in such matter as it deems fit. A certificate
as to the amount of such payment or liability delivered to Borrower by
Administrative Agent on its own behalf or on behalf of any Lender or Agent shall
be conclusive absent manifest error.
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2.19. Obligation to Mitigate. Each Lender agrees that, as promptly as
practicable after the officer of such Lender responsible for administering its
Loans becomes aware of the occurrence of an event or the existence of a
condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender to receive payments under Sections 2.16, 2.17 or 2.18,
it will, to the extent not inconsistent with the internal policies of such
Lender and any applicable legal or regulatory restrictions, (i) use reasonable
efforts to make, issue, fund or maintain its applicable Commitment or Loans,
including any Affected Loans, through another office of such Lender, or (ii)
take such other measures as such Lender may deem reasonable, if as a result
thereof the circumstances which would cause such Lender to be an Affected Lender
would cease to exist or the additional amounts which would otherwise be required
to be paid to such Lender pursuant to Sections 2.16, 2.17 or 2.18 would be
materially reduced and if, as determined by such Lender in its sole discretion,
the making, issuing, funding or maintaining of such Commitments or Loans through
such other office or in accordance with such other measures, as the case may be,
would not otherwise adversely affect such Commitments or Loans or the interests
of such Lender; provided that such Lender will not be obligated to utilize such
other office pursuant to this Section 2.19 unless Borrower agrees to pay all
incremental expenses incurred by such Lender as a result of utilizing such other
office as described in clause (i) above. A certificate as to the amount of any
such expenses payable by Borrower pursuant to this Section 2.19 (setting forth
in reasonable detail the basis for requesting such amount) submitted by such
Lender to Borrower (with a copy to Administrative Agent) shall be conclusive
absent manifest error.
2.20. Defaulting Lenders. Anything contained herein to the contrary
notwithstanding, in the event that any Lender defaults (a "DEFAULTING LENDER")
in its obligation to fund (a "FUNDING DEFAULT") any Loan (a "DEFAULTED LOAN"),
then (a) during such period when such default is continuing with respect to such
Defaulting Lender (the "DEFAULT PERIOD"), such Defaulting Lender shall be deemed
not to be a "Lender" for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Credit
Documents; (b) to the extent permitted by applicable law, until such time as
such unfunded amount with respect to such Defaulting Lender shall have been
reduced to zero, (i) any voluntary prepayment of the Loans shall, if Borrower so
directs at the time of making such voluntary prepayment, be applied to the Loans
of other Lenders as if such Defaulting Lender had no Loans outstanding and the
Revolving Loan Exposure and Delayed Draw Term Loan Exposure of such Defaulting
Lender were zero, and (ii) any mandatory prepayment of the Loans shall, if
Borrower so directs at the time of making such mandatory prepayment, be applied
to the Loans of other Lenders (but not to the Revolving Loans of such Defaulting
Lender) as if such Defaulting Lender had funded all Defaulted Loans of such
Defaulting Lender, it being understood and agreed that Borrower shall be
entitled to retain any portion of any mandatory prepayment of the Loans that is
not paid to such Defaulting Lender solely as a result of the operation of the
provisions of this clause (b); (c) such Defaulting Lender's Revolving Loan
Commitment and Delayed Draw Term Loan Commitment shall be excluded for purposes
of calculating the commitment fee payable to Lenders in respect of any day
during any Default Period with respect to such Defaulting Lender, and such
Defaulting Lender shall not be entitled to receive any commitment fee pursuant
to Section 2.8 with respect to such Defaulting Lender's Revolving
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Commitment and Delayed Draw Term Loan Commitment in respect of any Default
Period with respect to such Defaulting Lender; and (d) the Total Utilization of
Commitments as at any date of determination shall be calculated as if such
Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender. No
Commitment of any Lender shall be increased or otherwise affected, and, except
as otherwise expressly provided in this Section 2.20, performance by Borrower of
its obligations hereunder and the other Credit Documents shall not be excused or
otherwise modified as a result of any Funding Default or the operation of this
Section 2.20. The rights and remedies against a Defaulting Lender under this
Section 2.20 are in addition to other rights and remedies which Borrower may
have against such Defaulting Lender with respect to any Funding Default and
which Administrative Agent or any Lender may have against such Defaulting Lender
with respect to any Funding Default.
2.21. Removal or Replacement of a Lender. Anything contained herein to
the contrary notwithstanding, in the event that: (a) any Lender (an
"INCREASED-COST LENDER") shall give notice to Borrower that such Lender is an
Affected Lender or that such Lender is entitled to receive payments under
Sections 2.16, 2.17 or 2.18, the circumstances which have caused such Lender to
be an Affected Lender or which entitle such Lender to receive such payments
shall remain in effect, and such Lender shall fail to withdraw such notice
within five Business Days after Borrower's request for such withdrawal; or (b)
any Lender shall become a Defaulting Lender, the Default Period for such
Defaulting Lender shall remain in effect, and such Defaulting Lender shall fail
to cure the default as a result of which it has become a Defaulting Lender
within five Business Days after Borrower's request that it cure such default; or
(c) in connection with any proposed amendment, modification, termination, waiver
or consent with respect to any of the provisions hereof as contemplated by
Section 10.5(b), the consent of Requisite Lenders shall have been obtained but
the consent of one or more of such other Lenders (each a "NON-CONSENTING
LENDER") whose consent is required shall not have been obtained, and the failure
to obtain Non-Consenting Lenders' consents does not result solely from the
exercise of Non-Consenting Lenders' rights (and the withholding of any required
consents by Non-Consenting Lenders) pursuant to the proviso to Section
10.5(c)(i); then, with respect to each such Increased-Cost Lender, Defaulting
Lender or Non-Consenting Lender (the "TERMINATED LENDER"), Borrower may, by
giving written notice to Administrative Agent and any Terminated Lender of its
election to do so, elect to:
(A) cause such Terminated Lender (and such Terminated Lender
hereby irrevocably agrees) to assign its outstanding Loans and its
Commitments, if any, in full to one or more Eligible Assignees (each a
"REPLACEMENT LENDER") in accordance with the provisions of Section 10.6
and Terminated Lender shall pay any fees payable thereunder in
connection with such assignment; provided that (1) on the date of such
assignment, Borrower shall pay any amounts payable to such Terminated
Lender pursuant to Sections 2.16(c), 2.17 or 2.18 or otherwise as if it
were a prepayment, and shall pay the assignment fee specified in
Section 10.6(d) and (2) in the event such Terminated Lender is a
Non-Consenting Lender, each Replacement Lender shall consent, at the
time of such assignment, to each matter in respect of which such
Terminated Lender was a Non-Consenting Lender; provided that Borrower
may not make such election with respect to any Non-Consenting Lender
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Borrower also makes such election with respect to each other Terminated
Lender which is a Non-Consenting Lender; and upon the prepayment of all
amounts due and owing to any Terminated Lender pursuant to Sections
2.16(c), 2.17 and 2.18 and the assignment of such Terminated Lender's
Commitments, if any, and such Terminated Lender shall no longer
constitute a "Lender" for purposes hereof; provided that any rights of
such Terminated Lender to indemnification hereunder shall survive as to
such Terminated Lender; or
(B)(1) terminate the Commitment of such Terminated Lender upon
receipt by such Terminated Lender of such notice and (2) prepay on the
date of such termination any outstanding Loans, if any, made by such
Terminated Lender, together with accrued and unpaid interest thereon
and any other amounts payable to such Terminated Lender hereunder
pursuant to Sections 2.16(c), 2.17 and 2.18 or otherwise; provided
that, in the event such Terminated Lender has any Loans outstanding at
the time of such termination, the written consent of Administrative
Agent and all Lenders (which consent shall not be unreasonably withheld
or delayed) shall be required in order for Borrower to make such
election; and provided further that Borrower may not make such election
with respect to any Non-Consenting Lender unless Borrower also makes
such election with respect to each other Terminated Lender which is a
Non-Consenting Lender.
SECTION 3. CONDITIONS PRECEDENT
The obligation of Lenders to make Loans hereunder is subject to the
satisfaction of the following conditions:
3.1. Conditions to Effectiveness of the Agreement. Each of the
following conditions must be satisfied or waived in accordance with Section 10.5
on or before the Closing Date:
(1) CREDIT DOCUMENTS. Administrative Agent shall have received
sufficient copies of each Credit Document originally executed and delivered by
each applicable Credit Party for each Lender.
(2) ORGANIZATIONAL DOCUMENTS; INCUMBENCY. Administrative Agent shall
have received sufficient copies of each Organizational Document originally
executed and delivered by each Credit Party, as applicable, and, to the extent
applicable, certified as of a recent date by the appropriate governmental
official, for each Lender and its counsel, each dated the Closing Date or a
recent date prior thereto, together (i) with signature and incumbency
certificates of the officers of such Person executing the Credit Documents to
which it is a party (ii) resolutions of the Board of Directors or similar
governing body of each Credit Party approving and authorizing the execution,
delivery and performance of this Agreement and the other Credit Documents to
which it is a party or by which it or its assets may be bound as of the Closing
Date, certified as of the Closing Date by its secretary or an assistant
secretary as being in full force and effect without modification or amendment;
(iii) a good standing certificate from the applicable Governmental Authority of
each Credit Party's jurisdiction of incorporation, organization or formation and
in each jurisdiction in
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which it is qualified as a foreign corporation or other entity to do business,
each dated a recent date prior to the Effective Date; and (iv) such other
documents as Administrative Agent may reasonably request.
(3) ORGANIZATIONAL AND CAPITAL STRUCTURE. The organizational structure
and the capital structure of Company and its Subsidiaries shall be as set forth
on Schedule 4.1.
(4) GOVERNMENTAL AUTHORIZATIONS AND CONSENTS. Except as set forth on
Schedules 4.2 and 4.10(b), each Credit Party shall have obtained all
Governmental Authorizations and all consents of other Persons, in each case that
are necessary or advisable in connection with the transactions contemplated by
the Credit Documents and each of the foregoing shall be in full force and
effect. No action, request for stay, petition for review or rehearing,
reconsideration, or appeal with respect to any of the foregoing shall be
pending, and the time for any applicable agency to take action to set aside its
consent on its own motion shall have expired.
(5) PERSONAL AND MIXED PROPERTY COLLATERAL. In order to create in favor
of Administrative Agent, for the benefit of Lenders, a valid and, subject to any
filing and/or recording referred to herein, perfected First Priority security
interest in the Collateral, Administrative Agent shall have received:
(1) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Administrative Agent)
representing all capital stock pledged pursuant to the Pledge and
Security Agreement;
(2) (1) the results of a recent search, by a Person satisfactory
to Syndication Agent and Administrative Agent, of UCC financing
statements in all jurisdictions where each Credit Party is located,
together with copies of all such filings disclosed by such search, and
(2) UCC termination statements duly executed by all applicable Persons
for filing in all applicable jurisdictions as may be necessary to
terminate any effective UCC financing statements or fixture filings
disclosed in such search (other than any such financing statements or
fixture filings in respect of Permitted Liens);
(3) UCC financing statements, duly executed by each applicable
Credit Party with respect to all personal and mixed property Collateral
of such Credit Party, for filing in all jurisdictions as may be
necessary or, in the opinion of Syndication Agent and Administrative
Agent, desirable to perfect the security interests created in such
Collateral pursuant to the Collateral Documents under the UCC;
(4) an opinion of counsel (which counsel shall be reasonably
satisfactory to Syndication Agent and Administrative Agent) with
respect to the creation and perfection of the security interests in
favor of Administrative Agent in such Collateral and such other matters
governed by the laws of each jurisdiction in which any Credit Party or
any personal
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or mixed property Collateral is located as Syndication Agent and
Administrative Agent may reasonably request, in each case in form and
substance reasonably satisfactory to Syndication Agent and
Administrative Agent; and
(5) evidence that each Credit Party shall have taken or caused to
be taken any other action, executed and delivered or caused to be
executed and delivered any other agreement, document and instrument,
and made or caused to be made any other filing and recording (other
than as set forth herein) reasonably required by Syndication Agent and
Administrative Agent.
(6) FINANCIAL STATEMENTS; PROJECTIONS. Lenders shall have received from
Company (i) the Historical Financial Statements, (ii) copies of all management
reports and management letters prepared for Company and its Subsidiaries by
Xxxxxx Xxxxxxxx LLP or other independent certified public accountants of
recognized national standing, (iii) a pro forma balance sheet as at December 31,
1999 and an income and cash flow statement for the twelve-month period ending
December 31, 1999, in each case for Company and its Subsidiaries, prepared in
accordance with GAAP on a consolidated basis and reflecting the transactions
contemplated hereby, and (iv) a financial forecast dated January 2000 for
Company and its Subsidiaries for the period from Fiscal Year 2000 through and
including Fiscal Year 2007 (with Fiscal Years 2000, 2001 and 2002 detailed by
Fiscal Quarter together with (x) with respect to the Fiscal Year 2000, a
quarterly Annualized Adjusted EBITDA analysis and (y) with respect to the Fiscal
Years 2001 and 2002, an Annualized Adjusted EBITDA analysis, in each case with
respect to each of Company's and its subsidiaries principal markets, on a
Geographic Market-by-Geographic Market basis); and all of the foregoing
financial statements and other information will not be inconsistent, in any
material respect, with any information previously provided to Lenders.
(7) EVIDENCE OF INSURANCE. Syndication Agent and Administrative Agent
shall have received a certificate from Company's insurance broker or other
evidence satisfactory to it that all insurance required to be maintained
pursuant to Section 5.6 is in full force and effect and that Administrative
Agent on behalf of Lenders has been named as additional insured and/or loss
payee thereunder to the extent required under Section 5.6.
(8) OPINIONS OF COUNSEL TO CREDIT PARTIES. Lenders and their respective
counsel shall have received originally executed copies of the favorable written
opinions of (i) Xxxxxxxx & Xxxxx and the General Counsel of Company, counsel for
Credit Parties, (ii) Xxxxxxxx Xxxxxxxx & Xxxxxxx, Texas local counsel to Company
and (iii) Xxxxxxx, Berlin Shereff Xxxxxxxx, LLP special regulatory counsel to
the Company, in the forms of Xxxxxxxx X-0, X-0, X-0 and D-4, respectively, and
as to such other matters as Administrative Agent or Syndication Agent may
reasonably request, and otherwise in forms and substance reasonably satisfactory
to Administrative Agent and Syndication Agent and its counsel, dated the Closing
Date.
(9) OPINIONS OF COUNSEL TO SYNDICATION AGENT AND ADMINISTRATIVE AGENT.
Lenders shall have received originally executed copies of one or more favorable
written opinions of Skadden,
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Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to Syndication Agent and Administrative
Agent, dated the Closing Date, in form and substance reasonably satisfactory to
Syndication Agent and Administrative Agent.
(10) FEES. Borrower shall have paid to Syndication Agent,
Administrative Agent and Co-Documentation Agents, for distribution (as
appropriate) to Syndication Agent, Administrative Agent, Co-Documentation Agents
and Lenders, the fees payable on the Closing Date referred to in Section 2.8.
(11) SOLVENCY CERTIFICATE. On the Closing Date, Syndication Agent,
Administrative Agent and Lenders shall have received a solvency certificate from
the chief financial officer of Company dated the Closing Date and addressed to
Syndication Agent, Administrative Agent and Lenders, in form and substance
satisfactory to Syndication Agent and Administrative Agent and with appropriate
attachments.
(12) COMPLETION OF PROCEEDINGS. 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
Administrative Agent, acting on behalf of Lenders, or Syndication Agent and its
counsel shall be satisfactory in form and substance to Administrative Agent and
Syndication Agent and such counsel, and Administrative Agent, Syndication Agent
and such counsel shall have received all such counterpart originals or certified
copies of such documents as Administrative Agent or Syndication Agent may
reasonably request.
(13) EXISTING CREDIT AGREEMENT. All Loans and Obligations under the
Existing Credit Agreement shall have been repaid and the commitments thereunder
shall have been permanently terminated.
(14) LUCENT CONSENT. Company shall have used reasonable best efforts to
obtain from Lucent Technologies, Inc. ("LUCENT") a consent to the collateral
assignment to Administrative Agent and Lenders of rights existing under the
General Agreement between Company and Lucent dated as of October 16, 1997, as
amended, modified or otherwise supplemented from time to time, such consent in
form and substance reasonably satisfactory to Administrative Agent.
(15) CLOSING DATE CERTIFICATE. Borrower shall have delivered to
Syndication Agent and Administrative Agent an originally executed Closing Date
Certificate, together with all attachments thereto.
Each Lender, by delivering its signature page to this Agreement on the
Closing Date, shall be deemed to have acknowledged receipt of, and consented to
and approved, each Credit Document and each other document required to be
approved by any Agent, Requisite Lenders or Lenders, as applicable, on or prior
to the Closing Date.
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3.2. Conditions to Each Loan. (a) The obligation of each Lender to make
any Loan on any Credit Date, including the Initial Funding Date, is subject to
the satisfaction, or waiver in accordance with Section 10.5, of the following
conditions precedent:
(1) Administrative Agent shall have received a fully executed and
delivered Funding Notice;
(2) after making any Revolving Loans requested on such Credit
Date, the Total Utilization of Revolving Loan Commitments shall not
exceed the Revolving Loan Commitments then in effect;
(3) after making any Delayed Draw Term Loans requested on such
Credit Date, the Total Utilization of Delayed Draw Term Loan
Commitments shall not exceed the Delayed Draw Term Loan Commitments
then in effect;
(4) no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other restraining order
to be issued shall be pending or noticed with respect to any action,
suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result
of, the transactions contemplated hereby or the making of any Loan;
(5) as of such Credit Date, the representations and warranties
contained herein and in the other Credit Documents shall be true,
correct and complete in all material respects on and as of that Credit
Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate
to an earlier date, in which case such representations and warranties
shall have been true, correct and complete in all material respects on
and as of such earlier date;
(6) as of the first Credit Date, Lenders and their respective
counsel shall have received originally executed copies of the favorable
written opinion of Xxxxxxxx & Xxxxx, counsel for Credit Parties, in
form and substance satisfactory to Administrative Agent and its
counsel, to the effect that no Credit Party is required to be
registered as an "investment company" within the meaning of the
Investment Company Act; and
(7) as of such Credit Date, no event shall have occurred and be
continuing or would result from the consummation of the applicable Loan
that would constitute an Event of Default or a Default (it being
understood that, with respect to a breach of Section 5.13(b), 6.6 or
6.7 of this Agreement prior to the Initial Funding Date, such breach
shall not prohibit the making of Loans on the Initial Funding Date so
long as, as of the Initial Funding Date Credit Parties are in
compliance with Section 5.13(b) and, as of the Fiscal Quarter most
recently ended prior to the Initial Funding Date, Credit Parties were
in compliance with the provisions of Section 6.6 or 6.7, as
applicable).
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(2) Any Notice shall be executed by the chief executive officer, the
chief financial officer or the treasurer of Borrower or by the executive officer
thereof designated by the chief executive officer, the chief financial officer
or the treasurer of Borrower in a writing delivered to Administrative Agent. In
lieu of delivering a Notice, Borrower may give Administrative Agent telephonic
notice by the required time of any proposed borrowing or
conversion/continuation, as the case may be; provided that each such notice
shall be promptly confirmed in writing by delivery of the applicable Notice to
Administrative Agent on or before the applicable date of borrowing or,
continuation/conversion. Neither Administrative Agent nor any Lender shall incur
any liability to Borrower in acting upon any telephonic notice referred to above
that Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized on behalf of Borrower or for
otherwise acting in good faith.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
each Loan to be made thereby, each Credit Party represents and warrants to each
Lender on the Closing Date and on each Credit Date, that the following
statements are true, correct and complete:
4.1. Organization; Powers; Qualification. Each of Company and its
Subsidiaries including, on the Closing Date, Unrestricted Subsidiaries, if any
(a) is duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization as identified in Schedule 4.1, (b) has all
requisite power and authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to enter into the
Credit Documents to which it is a party and to carry out the transactions
contemplated thereby, and (c) is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to
carry out its business and operations, except in jurisdictions where the failure
to be so qualified or in good standing has not had, and could not be reasonably
expected to have, a Material Adverse Effect. Schedule 4.1, as may be amended
pursuant to Sections 5.1(b) or (c), correctly sets forth the ownership interest
of Company and each of its Subsidiaries in their respective Subsidiaries.
4.2. Authorization of Credit Documents; No Conflict. The execution,
delivery and performance of the Credit Documents have been duly authorized by
all necessary action on the part of each Credit Party that is a party thereto.
Except as set forth on Schedule 4.2, the execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not and
will not (a) violate any provision of any law or any governmental rule or
regulation applicable to Company or any of its Subsidiaries, any of the
Organizational Documents of Company or any of its Subsidiaries, or any order,
judgment or decree of any court or other agency of government binding on Company
or any of its Subsidiaries; (b) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries; (c) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of its Subsidiaries (other than any Liens created under
any of the Credit Documents in favor of Administrative Agent on behalf of
Lenders); or (d) require any
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approval of stockholders or any approval or consent of any Person under any
Contractual Obligation of Company or any of its Subsidiaries.
4.3. Governmental Consents. The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by, any Governmental Authority except as otherwise set
forth on Schedule 4.3, and except for filings and recordings with respect to the
Collateral to be made, or otherwise delivered to Administrative Agent, as of the
Closing Date.
4.4. Binding Obligation. Each Credit Document has been duly executed
and delivered by each Credit Party that is a party thereto and is the legally
valid and binding obligation of such Credit Party, enforceable against such
Credit Party in accordance with its respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles relating
to enforceability.
4.5. Historical Financial Statements; Projections. The Historical
Financial Statements were prepared in conformity with GAAP and fairly present,
in all material respects, the financial position, on a consolidated basis, of
the Persons described in such financial statements as at the respective dates
thereof and the results of operations and cash flows, on a consolidated basis,
of the entities described therein for each of the periods then ended, subject,
in the case of any such unaudited financial statements, to changes resulting
from audit and normal year-end adjustments. On the Closing Date, neither Company
nor any of its Subsidiaries has any contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that is not reflected
in the Historical Financial Statements or the notes thereto and which in
accordance with GAAP would be required to be shown thereon and which in any such
case is material in relation to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Company and any of its
Subsidiaries taken as a whole. On and as of the Closing Date, the financial
forecast of Company and its Subsidiaries delivered pursuant to Section 3.1(f)
(the "PROJECTIONS") are based on good faith estimates and assumptions made by
the management of Company; provided that the Projections are not to be viewed as
facts and that actual results during the period or periods covered by the
Projections may differ from such Projections and that the differences may be
material; provided further that as of the Closing Date, management of Company
believed that the Projections were reasonable and attainable.
4.6. No Material Adverse Change; No Restricted Junior Payments. Since
December 31, 1998, no event or change has occurred that has caused or evidences,
either in any case or in the aggregate, a Material Adverse Effect, and since
such date neither Company nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for, any
Restricted Junior Payment or agreed to do so except as permitted pursuant to
Section 6.4.
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4.7. Adverse Proceedings, Etc. Except as set forth on Schedule 4.7,
there are no Adverse Proceedings, individually or in the aggregate, that could
reasonably be expected to have a Material Adverse Effect. Neither Company nor
any of its Subsidiaries (a) is in violation of any applicable laws (including
Environmental Laws) that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, or (b) is subject to or in default
with respect to any final judgments, writs, injunctions, decrees, rules or
regulations of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
4.8. Payment of Taxes. Except as otherwise permitted under Section 5.3,
all tax returns and reports of Company and its Subsidiaries required to be filed
by any of them have been timely filed, and all taxes shown on such tax returns
to be due and payable and all assessments, fees and other governmental charges
upon Company and its Subsidiaries and upon their respective properties, assets,
income, businesses and franchises which are due and payable have been paid when
due and payable, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect. Company knows of no proposed tax
assessment against Company or any of its Subsidiaries which is not being
actively contested by Company or such Subsidiary in good faith and by
appropriate proceedings; provided that such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have been
made or provided therefor.
4.9. Title to Properties. (a) Company and its Subsidiaries have (i)
good, sufficient and legal title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of leasehold interests
in real or personal property), or (iii) good title to (in the case of all other
personal property), all of their respective properties and assets reflected in
the Historical Financial Statements referred to in Section 4.5 and in the most
recent financial statements delivered pursuant to Section 5.1, in each case
except for (1) assets disposed of since the date of such financial statements in
the ordinary course of business or as otherwise permitted under Section 6.8 and
(2) minor defects in title that do not interfere with the ability of Company or
any of its Subsidiaries to conduct their business as currently conducted or to
utilize such properties for their intended purposes. Except as permitted by this
Agreement, all such properties and assets are free and clear of Liens.
(1) As of the Closing Date, Schedule 4.9(b) contains a true, accurate
and complete list of (i) all Real Estate Assets, and (ii) all leases, subleases
or assignments of leases (together with all amendments, modifications,
supplements, renewals or extensions of any thereof) affecting each Real Estate
Asset of any Credit Party, regardless of whether such Credit Party is the
landlord or tenant (whether directly or as an assignee or successor in interest)
under such lease, sublease or assignment. Except as specified in Schedule
4.9(b), each agreement listed in clause (ii) of the immediately preceding
sentence is in full force and effect and Company does not have knowledge of any
default that has occurred and is continuing thereunder, and each such agreement
constitutes the legally valid and binding obligation of each applicable Credit
Party, enforceable against such Credit Party in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
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reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles.
4.10. Collateral. (a) The execution and delivery of the Collateral
Documents by the Credit Parties, together with the actions taken on or prior to
the date hereof pursuant to Section 3.1(e) hereof, are effective to create in
favor of Administrative Agent for the benefit of Lenders, as security for their
respective Obligations, a valid and perfected First Priority Lien on all of the
Collateral, and all filings and other actions necessary or desirable to perfect
and maintain the perfection and First Priority status of such Liens have been
duly made or taken and remain in full force and effect, other than the filing of
any UCC financing statements delivered to Administrative Agent for filing (but
not yet filed) and the periodic filing of UCC continuation statements in respect
of UCC financing statements filed by or on behalf of Administrative Agent.
(1) Except as set forth on Schedule 4.10(b), no authorization, approval
or other action by, and no notice to or filing with, any Governmental Authority
or regulatory body is required for either (i) the pledge or grant by any Credit
Party of the Liens purported to be created in favor of Administrative Agent
pursuant to any of the Collateral Documents or (ii) the exercise by
Administrative Agent of any rights or remedies in respect of any Collateral
(whether specifically granted or created pursuant to any of the Collateral
Documents or created or provided for by applicable law), except for filings or
recordings contemplated by Section 3.1(e) and except as may be required, in
connection with the disposition of any Investment Property, by laws generally
affecting the offering and sale of securities.
(2) Except with respect to any Permitted Lien and as may have been
filed in favor of Administrative Agent as contemplated by Section 3.1(e), no
effective UCC financing statement, fixture filing or other instrument similar in
effect covering all or any part of the Collateral is on file in any filing or
recording office.
(3) All information supplied to Administrative Agent by or on behalf of
any Credit Party with respect to any of the Collateral (in each case taken as a
whole with respect to any particular Collateral) is accurate and complete in all
material respects.
4.11. Environmental. No Credit Party nor any of its Subsidiaries nor
any of their respective Facilities or operations are subject to any outstanding
written order, consent decree or settlement agreement with any Person relating
to any Environmental Law, any Environmental Claim, or any Hazardous Materials
Activity that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect. No Credit Party nor any of its Subsidiaries has
received any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C.
ss. 9604) or any comparable state law. There are and, to each Credit Party's
knowledge, have been no conditions, occurrences, or Hazardous Materials
Activities which could reasonably be expected to form the basis of an
Environmental Claim against Company or any of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither Company nor any of its Subsidiaries nor, to any
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Credit Party's knowledge, any predecessor of Company or any of its Subsidiaries
has filed any notice under any Environmental Law indicating past or present
treatment of Hazardous Materials at any Facility, and none of Company's or any
of its Subsidiaries' operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R.
Parts 260-270 or any state equivalent. Compliance by Company and its
Subsidiaries with all current or reasonably foreseeable future requirements
pursuant to or under Environmental Laws could not be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect. No event or
condition has occurred or is occurring with respect to Company or any of its
Subsidiaries relating to any Environmental Law, any Release of Hazardous
Materials, or any Hazardous Materials Activity which individually or in the
aggregate has had, or could reasonably be expected to have, a Material Adverse
Effect.
4.12. No Defaults; Material Contracts. No Credit Party is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, could
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect. Schedule 4.12 contains a true, correct and complete
list of all the Material Contracts in effect on the Closing Date, and except as
described thereon, all such Material Contracts are in full force and effect and
no defaults currently exist thereunder by any Credit Party or, to the knowledge
of any Credit Party, by any other Person.
4.13. Governmental Regulation. Neither Company nor any of its
Subsidiaries is subject to regulation under the Investment Company Act, Public
Utility Holding Company Act of 1935 or the Federal Power Act or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
4.14. Margin Stock. Neither Company nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock. No
part of the proceeds of the Loans made to such Credit Party will be used to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any purpose that
violates, or is inconsistent with, the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.
4.15. Employee Matters. There is no strike or work stoppage in
existence or threatened involving Company or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
4.16. Employee Benefit Plans. Company, each of its Subsidiaries and
each of their respective ERISA Affiliates are in compliance with all applicable
provisions and requirements of 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. Each
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Employee Benefit Plan which is intended to qualify under Section 401(a) of the
Internal Revenue Code is so qualified. No ERISA Event has occurred or is
reasonably expected to occur. 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 employee of Company, any of its Subsidiaries or any of their
respective ERISA Affiliates. As of the most recent valuation date for any
Pension Plan, the amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities), does not exceed $5,000,000. As of the
most recent valuation date for each Multiemployer Plan for which the actuarial
report is available, the potential liability of Company, its Subsidiaries and
their respective ERISA Affiliates for a complete withdrawal from such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA, does not exceed $5,000,000.
4.17. Certain Fees. No broker's or finder's fee or commission will be
payable with respect hereto or any of the transactions contemplated hereby.
4.18. Solvency. Each Credit Party is and, upon the incurrence of any
Obligation by such Credit Party on any date on which this representation and
warranty is made, will be, Solvent.
4.19. Existing Indentures. Borrower has delivered to Syndication Agent
and Administrative Agent complete and correct copies of each Existing Indenture
and of all exhibits and schedules thereto.
4.20. Year 2000 Issues. Company and its Subsidiaries have (a) engaged
in a process of assessment of the existence of any Year 2000 Issues reasonably
appropriate to the scope and complexity of their respective Systems; (b) adopted
and have successfully implemented a plan of correction ("PLAN OF CORRECTION")
which Company reasonably believes has resulted in a substantial elimination of
any Year 2000 Issues before any processing failure of a System or of Systems due
to Year 2000 Issues which might have a material effect on the business,
operations or financial performance of Company and, in the case of all Systems
critical to the business or operations of Company and its Subsidiaries, a
virtually complete elimination of Year 2000 Issues; (c) adopted and have
successfully implemented validation procedures reasonably calculated to test on
an ongoing basis the sufficiency of the Plan of Correction, its implementation,
and the correction of Year 2000 Issues in any System; and (d) adopted and have
successfully implemented policies and procedures requiring regular reports to,
and monitoring by, senior management of Company concerning the foregoing
matters; it being understood with respect to the foregoing that no
representation or warranty is being made with respect to the Systems of Persons
to whose networks Company and its Subsidiaries are interconnected.
4.21. Disclosure. No representation or warranty of any Credit Party
contained in any Credit Document or in any other document, certificate or
written statement furnished to Lenders by or on
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behalf of Company or any of its Subsidiaries (other than projections and pro
forma financial information contained in such materials) for use in connection
with the transactions contemplated hereby contains any untrue statement of a
material fact or omits to state a material fact (known to Borrower or Company,
in the case of any document not furnished by either of them) necessary in order
to make the statements contained herein or therein not misleading in light of
the circumstances in which the same were made. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by Company to be reasonable at the time made,
it being recognized by Lenders that such projections as to future events are not
to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results. There are
no facts known (or which should upon the reasonable exercise of diligence be
known) to Company or Borrower (excluding matters of a general economic nature or
matters regarding the telecommunications industry which are generally available
to the public) that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect and that have not been disclosed
herein or in such other documents, certificates and statements furnished to
Lenders for use in connection with the transactions contemplated hereby.
4.22. No Burdensome Restrictions. Neither Company nor any of its
Subsidiaries is a party to or bound by any Contractual Obligation which could
reasonably be expected to have a Material Adverse Effect.
SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that so long as any Commitment
is in effect and until payment in full of all Obligations (other than inchoate
indemnification obligations with respect to claims, losses or liabilities which
have not yet arisen and are not yet due and payable), each Credit Party shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5 (it being understood that failure to comply with Section 5.13(b)
prior to the Initial Funding Date shall not result in an Event of Default;
provided that, Credit Parties shall, in any event, be in compliance with Section
5.13 as of the Initial Funding Date).
5.1. Financial Statements and Other Reports. Borrower will deliver to
Administrative Agent and Lenders:
(1) During Stage 1, in the event that there has been a funding of any
Loans, as soon as available and in any event within thirty (30) days after the
end of each month ending after the Closing Date, the consolidated balance sheet
of Company and its Subsidiaries as at the end of such month and the related
consolidated statements of income, stockholders' equity and cash flows of
Company and its Subsidiaries for such month and for the period from the
beginning of the then current Fiscal Year to the end of such month, setting
forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding figures
from the Financial Plan for the current Fiscal Year, to the extent prepared on a
monthly
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basis, all in reasonable detail, together with a Financial Officer Certification
and a Narrative Report with respect thereto;
(2) as soon as available and in any event within sixty (60) days after
the end of each of the first three Fiscal Quarters of each Fiscal Year, the
consolidated balance sheet of Company and its Subsidiaries as at the end of such
Fiscal Quarter and the related consolidated statements of income, stockholders'
equity and cash flows of Company and its Subsidiaries for such Fiscal Quarter
and for the period from the beginning of the then current Fiscal Year to the end
of such Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year
and the corresponding figures from the Financial Plan for the current Fiscal
Year, all in reasonable detail, together with (1) a Financial Officer
Certification, (2) a Narrative Report with respect thereto and (3) a revised
Schedule 4.1 (if necessary) reflecting all changes in the organizational
structure and capital structure of Company and its Subsidiaries since the
delivery of the last quarterly financial information, which revised Schedule 4.1
will be deemed to amend the then-existing Schedule 4.1 for all purposes under
this Agreement;
(3) as soon as available and in any event within ninety (90) days after
the end of each Fiscal Year, (i) the consolidated balance sheet of Company and
its Subsidiaries as at the end of such Fiscal Year and the related consolidated
statements of income, stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Year, setting forth in each case in comparative
form the corresponding figures for the previous Fiscal Year and the
corresponding figures from the Financial Plan for the Fiscal Year covered by
such financial statements, in reasonable detail, together with a Financial
Officer Certification and a Narrative Report with respect thereto; (ii) a report
thereon of Xxxxxx Xxxxxxxx LLP or other independent certified public accountants
of recognized national standing selected by Company and in form and substance
satisfactory to Administrative Agent, (which report shall be unqualified as to
going concern and scope of audit and shall state that such consolidated
financial statements fairly present in all material respects, the consolidated
financial position of Company and its Subsidiaries as at the dates indicated and
the results of their operations and their cash flows for the periods indicated
in conformity with GAAP applied on a basis consistent with prior years (except
as otherwise disclosed in such financial statements) and that the examination by
such accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards) together
with a written statement by such independent certified public accountants
stating (1) that their audit examination has included a review of the terms of
the Credit Documents, (2) whether, in connection therewith, any condition or
event that constitutes a Default or an Event of Default has come to their
attention and, if such a condition or event has come to their attention,
specifying the nature and period of existence thereof, and (3) that nothing has
come to their attention that causes them to believe that the information
contained in any Compliance Certificate is not correct or that the matters set
forth in such Compliance Certificate are not stated in accordance with the terms
hereof and (iii) a revised Schedule 4.1 (if necessary) reflecting all changes in
the organizational structure and capital structure of Company and its
Subsidiaries since the delivery of the last quarterly financial information,
which revised Schedule 4.1 will be deemed to amend the then-existing Schedule
4.1 for all purposes under this Agreement;
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(4) together with each delivery of financial statements of Company and
its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly executed and
completed Compliance Certificate;
(5) if, as a result of any change in accounting principles and policies
from those used in the preparation of the Historical Financial Statements, the
consolidated financial statements of Company and its Subsidiaries delivered
pursuant to Sections 5.1(a), 5.1(b) or 5.1(c) will differ in any material
respect from the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change in accounting
principles and policies been made, then together with the first delivery of such
financial statements after such change, one or more statements of reconciliation
for all such prior financial statements in form and substance satisfactory to
Administrative Agent;
(6) promptly upon their becoming available, copies of (i) all financial
statements, reports, notices and proxy statements sent or made available
generally by Company to its security holders acting in such capacity or by any
Subsidiary of Company to its security holders other than Company or another
Subsidiary of Company, (ii) all regular and periodic reports (but not including,
unless requested by Administrative Agent, routine reports regularly filed with
the FCC and state commissions with jurisdiction over telecommunications matters)
and all registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by Company or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority, and (iii) all press releases and
other statements made available generally by Company or any of its Subsidiaries
to the public concerning material developments in the business of Company or any
of its Subsidiaries;
(7) promptly upon any officer of Borrower or Company obtaining
knowledge (i) of any condition or event that constitutes a Default or an Event
of Default or that notice has been given to Borrower or Company with respect
thereto; (ii) that any Person has given any notice to Company or any of its
Subsidiaries or taken any other action with respect to any event or condition
set forth in Section 8.1(b); (iii) of any condition or event of a type required
to be disclosed in a current report on Form 8-K of the Securities and Exchange
Commission; or (iv) of the occurrence of any event or change that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect, a
certificate of an Authorized Officer specifying the nature and period of
existence of such condition, event or change, or specifying the notice given or
action taken by any such Person and the nature of such claimed Event of Default,
Default, default, event or condition, and what action Company has taken, is
taking and proposes to take with respect thereto;
(8) promptly upon any officer of Borrower or Company obtaining
knowledge of (i) the institution of, or non-frivolous threat of, any Adverse
Proceeding not previously disclosed in writing by Borrower or Company to
Lenders, or (ii) any material development in any Adverse Proceeding that, in the
case of either (i) or (ii) if adversely determined, could be reasonably expected
to have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the
transactions contemplated hereby, written notice
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thereof together with such other information as may be reasonably available to
Borrower or Company to enable Lenders and their counsel to evaluate such
matters;
(9) (i) promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event, a written notice specifying the
nature thereof, what action Company, any of its Subsidiaries or any of their
respective ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto; and
(ii) with reasonable promptness, copies of (1) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by Company, any of
its Subsidiaries or any of their respective ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan; (2) all notices received by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of
such other documents or governmental reports or filings relating to any Employee
Benefit Plan as Administrative Agent shall reasonably request;
(10) as soon as practicable and in any event no later than 10 days
prior to the beginning of each Fiscal Year, a consolidated plan and financial
forecast for such Fiscal Year and the next three succeeding Fiscal Years (a
"FINANCIAL PLAN") in substantially the same level of detail as that set forth in
the business plan and forecast included in the Confidential Information
Memorandum dated January 2000 relating to the transactions contemplated hereby,
including (i) a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows of Company and its Subsidiaries
for each such Fiscal Year, together with pro forma Compliance Certificates for
each such Fiscal Year and an explanation of the assumptions on which such
forecasts are based and (ii) during Stage 1, forecasted consolidated statements
of income and cash flows of Company and its Subsidiaries for each quarter of the
first such Fiscal Year included in a Financial Plan, together with an
explanation of the assumptions on which such forecasts are based;
(11) as soon as practicable and in any event by the last day of each
Fiscal Year, a report in form and substance satisfactory to Administrative Agent
outlining all material insurance coverage maintained as of the date of such
report by Company and its Subsidiaries and all material insurance coverage
planned to be maintained by Company and its Subsidiaries in the immediately
succeeding Fiscal Year;
(12) with reasonable promptness, written notice of any change in the
Board of Directors of Company;
(13) promptly, and in any event within ten (10) Business Days after any
Material Contract of Company or any of its Subsidiaries is terminated prior to
its scheduled term or amended in a manner that is materially adverse to Company
or such Subsidiary, as the case may be, or any new Material Contract is entered
into, a written statement describing such event, with copies of such material
amendments or new contracts, delivered to Administrative Agent (to the extent
such delivery is permitted by the terms of any such Material Contract, provided
that no such prohibition
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on delivery shall be effective if it were bargained for by Company or its
applicable Subsidiary with the intent of avoiding compliance with this Section
5.1(m)), and an explanation of any actions being taken with respect thereto; and
(14) with reasonable promptness, such other information and data with
respect to Company or any of its Subsidiaries as from time to time may be
reasonably requested by any Lender.
5.2. Contribution. Company and its Subsidiaries shall promptly upon the
receipt of any Cash proceeds after January 1, 2000 from (i) the incurrence of
Subordinated Indebtedness and (ii) the issuance of any equity Securities,
contribute all of such Cash proceeds to Borrower, net of underwriting discounts
and commissions and other reasonable costs and expenses associated therewith,
including reasonable legal fees and expenses.
5.3. Existence. Except as otherwise permitted under Section 6.9, each
Credit Party will, and will cause each of its Subsidiaries to, at all times
preserve and keep in full force and effect its existence and all rights and
franchises material to its business; provided that no Credit Party nor any of
its Subsidiaries shall be required to preserve any such existence, right or
franchise if such Person's Board of Directors (or similar governing body) shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of such Person, and that the loss thereof is not disadvantageous in
any material respect to such Person or Lenders.
5.4. Payment of Taxes and Claims. Each Credit Party will, and will
cause each of its Subsidiaries and Unrestricted 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 income, businesses or
franchises before any penalty accrues thereon, and all claims (including claims
for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto, except where the failure to do so could not reasonably be
expected to result in a Material Adverse Effect; provided that no such charge or
claim need be paid if it is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, so long as such
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor, and in the case of a charge
or claim which has or may become a Lien against any of the Collateral, such
contest proceedings conclusively operate to stay the sale of any portion of the
Collateral to satisfy such charge or claim. Company will not, nor will it permit
any of its Subsidiaries to, file or consent to the filing of any consolidated
income tax return with any Person (other than Company or any of its
Subsidiaries).
5.5. Maintenance of Properties. Each Credit Party will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Company and its Subsidiaries and
from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof.
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5.6. Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for such
Persons. Without limiting the generality of the foregoing, Company will maintain
or cause to be maintained (a) flood insurance with respect to each Flood Hazard
Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of
the Board of Governors of the Federal Reserve System, and (b) replacement value
casualty insurance on the Collateral under such policies of insurance, with such
insurance companies, in such amounts, with such deductibles, and covering such
risks as are at all times carried or maintained under similar circumstances by
Persons of established reputation engaged in similar businesses. Each such
policy of insurance shall (i) name Administrative Agent for the benefit of
Lenders as an additional insured thereunder as its interests may appear and (ii)
in the case of each business interruption and casualty insurance policy, contain
a loss payable clause or endorsement, satisfactory in form and substance to
Administrative Agent, that names Administrative Agent for the benefit of Lenders
as the loss payee thereunder for any covered loss in excess of $1,000,000 and
provides for at least thirty (30) days prior written notice to Administrative
Agent of any modification adverse in any respect to Administrative Agent or
Lenders or cancellation of such policy.
5.7. Books and Records; Inspections; Lenders Meetings. Each Credit
Party will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. Each
Credit Party will, and will cause each of its Subsidiaries to, permit any
authorized representatives designated by any Lender to visit and inspect any of
the Facilities of Company or of any of its Subsidiaries, to inspect, copy and
take extracts from its and their financial and accounting records, 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 reasonably be
requested. Borrower and Company will, upon the request of Administrative Agent
or Requisite Lenders, participate in a meeting of Administrative Agent and
Lenders once during each Fiscal Year to be held at Company's corporate offices
(or at such other location as may be agreed to by Borrower and Administrative
Agent) at such time as may be agreed to by Borrower and Administrative Agent.
1.1.
5.8. Compliance with Laws; Contractual Obligations. Each Credit Party
will comply, and shall cause each of its Subsidiaries, Unrestricted Subsidiaries
and all other Persons, if any, on or occupying any Facilities to comply, with
applicable laws, rules, regulations and orders of any Governmental Authority
(including all Environmental Laws), noncompliance with which could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
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5.9. Environmental.
(1) ENVIRONMENTAL DISCLOSURE. Borrower will deliver to Administrative
Agent and Lenders:
(1) as soon as practicable following receipt thereof, copies of
all environmental audits, investigations, analyses and reports of any
kind or character, whether prepared by personnel of Company or any of
its Subsidiaries or any Unrestricted Subsidiaries or by independent
consultants, governmental authorities or any other Persons, with
respect to significant environmental matters at any Facility or with
respect to any Environmental Claims;
(2) promptly upon the occurrence thereof, written notice
describing in reasonable detail (1) any Release required to be reported
to any federal, state or local governmental or regulatory agency under
any applicable Environmental Laws, (2) any remedial action taken by
Company or any other Person in response to (A) any Hazardous Materials
Activities the existence of which has a reasonable possibility of
resulting in one or more Environmental Claims having, individually or
in the aggregate, a Material Adverse Effect, or (B) any Environmental
Claims that, individually or in the aggregate, have a reasonable
possibility of resulting in a Material Adverse Effect, and (3)
Company's discovery of any occurrence or condition on any real property
adjoining or in the vicinity of any Facility that could cause such
Facility or any part thereof to be subject to any material restrictions
on the ownership, occupancy, transferability or use thereof under any
Environmental Laws;
(3) as soon as practicable following the sending or receipt
thereof by Company or any of its Subsidiaries or any Unrestricted
Subsidiaries, a copy of any and all written communications with respect
to (1) any Environmental Claims that, individually or in the aggregate,
have a reasonable possibility of giving rise to a Material Adverse
Effect, (2) any Release required to be reported to any federal, state
or local governmental or regulatory agency, and (3) any request for
information from any governmental agency that suggests such agency is
investigating whether Company or any of its Subsidiaries or any
Unrestricted Subsidiaries may be potentially responsible for any
Hazardous Materials Activity;
(4) prompt written notice describing in reasonable detail (1) any
proposed acquisition of stock, assets, or property by Company or any of
its Subsidiaries or any Unrestricted Subsidiaries that could reasonably
be expected to (A) expose Company or any of its Subsidiaries to, or
result in, Environmental Claims that could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect or
(B) affect the ability of Company or any of its Subsidiaries or any
Unrestricted Subsidiaries to maintain in full force and effect all
material Governmental Authorizations required under any Environmental
Laws for their respective operations and (2) any proposed action to be
taken by Company or any of its Subsidiaries or any Unrestricted
Subsidiaries to modify current operations in a manner that could
reasonably be expected to subject Company or any of its Subsidiaries or
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any Unrestricted Subsidiaries to any additional obligations or
requirements under any Environmental Laws; and
(5) with reasonable promptness, such other documents and
information as from time to time may be reasonably requested by
Administrative Agent in relation to any matters disclosed pursuant to
this Section 5.9(a).
(2) HAZARDOUS MATERIALS ACTIVITIES, ETC. Each Credit Party shall
promptly take, and shall cause each of its Subsidiaries or any Unrestricted
Subsidiaries promptly to take, any and all actions necessary to (i) cure any
violation of applicable Environmental Laws by such Credit Party or its
Subsidiaries or any Unrestricted Subsidiaries that could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, and (ii)
make an appropriate response to any Environmental Claim against such Credit
Party or any of its Subsidiaries or any Unrestricted Subsidiaries and discharge
any obligations it may have to any Person thereunder where failure to do so
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
5.10. Subsidiaries. In the event that any Person becomes a Subsidiary
of Company, Company shall (other than with respect to Borrower and any
Subsidiary of Borrower as of the Closing Date) promptly (i) contribute 100% of
the capital stock of such Subsidiary to Borrower, such that after each such
contribution, such Subsidiary is a subsidiary of Borrower, and deliver to
Administrative Agent certificates (accompanied by irrevocable undated stock
powers, duly endorsed in blank and otherwise satisfactory in form and substance
to Administrative Agent) representing such capital stock, which shall be pledged
pursuant to the Pledge and Security Agreement and shall deliver such other
additional agreements or instruments, each in form and substance to
Administrative Agent, as may be necessary or desirable to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and perfected First
Priority security interest in 100% of the capital stock of such Subsidiary, (ii)
cause such Subsidiary to become a Guarantor hereunder and a Grantor under the
Pledge and Security Agreement by executing and delivering to Administrative
Agent a Counterpart Agreement, and (iii) take all such actions and execute and
deliver, or cause to be executed and delivered, all such documents, instruments,
agreements, and certificates similar to those described in Sections 3.1(b),
3.1(e) and 3.1(h). In the event that any Person becomes a first tier
Unrestricted Subsidiary, Company shall promptly, subject to applicable law, (a)
pledge all certificated shares of Capital Stock of such Unrestricted Subsidiary
(65% in the case of a Foreign Subsidiary) pursuant to the Pledge and Security
Agreement, and (b) take all such actions and execute and deliver, or cause to be
executed and delivered, all such documents, instruments, agreements, and
certificates as are similar to those described in Sections 3.1(b), 3.1(e) and
3.1(h) (to the extent applicable to a pledge of stock). With respect to each
such Subsidiary, Borrower shall promptly send to Administrative Agent written
notice setting forth with respect to such Person (i) the date on which such
Person became a Subsidiary of Company, and (ii) all of the data required to be
set forth in Schedule 4.1 with respect to all Subsidiaries of Company, and such
written notice shall be deemed to supplement Schedule 4.1 for all purposes
hereof. Notwithstanding the foregoing, if Company or any of its Subsidiaries
acquires a Person and liquidates or dissolves such Person within 30 days after
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the acquisition thereof in accordance with the provisions hereof, this Section
5.10 shall not require that any action be taken with respect to such Person.
5.11. Real Estate Assets. In the event that any Credit Party hereafter
acquires an interest in any Material Real Estate Asset and such interest has not
otherwise been made subject to the Lien of the Collateral Documents in favor of
Administrative Agent, for the benefit of Lenders, then such Credit Party,
contemporaneously with acquiring such Material Real Estate Asset, shall take all
such actions and execute and deliver, or cause to be executed and delivered, the
following:
(1) fully executed and notarized Mortgages, in proper form for
recording in all appropriate places in all applicable jurisdictions,
encumbering (each, a "MORTGAGED PROPERTY") (a) each such fee-owned
Material Real Estate Asset, and (b) each such Material Real Estate
Asset which is a Leasehold Property to the extent that such Credit
Party is able to obtain, after use of reasonable best efforts, (x) a
written consent of the related lessor to such mortgage in form and
substance satisfactory to Administrative Agent and (y) evidence that
such Leasehold Property is a Recorded Leasehold Interest;
(2) an opinion of counsel (which counsel shall be reasonably
satisfactory to Syndication Agent and Administrative Agent) in each
state in which such Material Real Estate Asset is located with respect
to the enforceability of the form(s) of Mortgages to be recorded in
such state and such other matters as Syndication Agent and
Administrative Agent may reasonably request, in each case in form and
substance reasonably satisfactory to Syndication Agent and
Administrative Agent;
(3) from time to time, at the request of Administrative Agent,
appraisals of each such Mortgaged Property as are required by law or
regulation;
(4) ALTA mortgagee title insurance policies or unconditional
commitments therefor issued by a title company with respect to each
such Mortgaged Property, together with a title report issued by a
title company with respect thereto, dated not more than thirty (30)
days prior to the effective date of such executed Mortgage and copies
of all recorded documents listed as exceptions to title or otherwise
referred to therein, each in form and substance reasonably
satisfactory to Syndication Agent and Administrative Agent;
(5) evidence of flood insurance with respect to each such
Mortgaged Property that is a Flood Hazard Property and that is located
in a community that participates in the National Flood Insurance
Program, in each case in compliance with any applicable regulations of
the Board of Governors of the Federal Reserve System, in form and
substance reasonably satisfactory to Syndication Agent and
Administrative Agent; and
(6) ALTA surveys of all such Mortgaged Properties which are not
Leasehold Properties, certified to Administrative Agent and dated not
more than thirty (30) days prior to the effective date of such executed
Mortgage.
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5.12. Interest Rate Protection. To the extent necessary, Company shall
maintain, or caused to be maintained, in effect one or more Interest Rate
Agreements for a term of not less than two years and otherwise in form and
substance reasonably satisfactory to Administrative Agent and Syndication Agent,
which Interest Rate Agreements shall at all times effectively limit the amount
of Indebtedness bearing interest at a floating rate to no more than 50% of the
aggregate principal amount of Consolidated Total Debt outstanding as of any date
of determination.
5.13. Certain Post Closing Matters.
(1) Within 45 days after the Closing Date, Company shall have used
reasonable best efforts to obtain from each Person identified on Schedule
5.13(a) an acknowledgment letter in favor of Administrative Agent, for the
benefit of Lenders, in the form of Exhibit K with respect to each corresponding
agreement listed on such Schedule 5.13(a).
(2) With respect to Allegiance Telecom of Pennsylvania, Inc.,
Allegiance Telecom of New Jersey, Inc. and Allegiance Telecom of Georgia, Inc.,
within three hundred-sixty (360) days following the Closing Date, Company shall
(i) effect the contribution by Company of 100% of the capital stock of any such
Subsidiaries that are not Subsidiaries of Borrower to Borrower, (ii) obtain all
consents and approvals necessary to enable each such Subsidiary to become a
Guarantor hereunder and to become a Grantor under the Pledge and Security
Agreement, (iii) cause each such Subsidiary to become a Guarantor and a Grantor
under the Pledge and Security Agreement, and (iv) take such actions and execute
and deliver, or cause to be executed and delivered, all such documents,
instruments, agreements, and certificates similar to those described in Sections
3.1(b), 3.1(e), 3.1(h) and 3.1(l), in connection with the foregoing to the
extent the same would have been required on the Closing Date as if such
Subsidiaries had been Guarantors as of the Closing Date.
SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment
is in effect and until payment in full of all Obligations (other than inchoate
indemnification obligations with respect to claims, losses or liabilities which
have not yet arisen and are not yet due and payable), such Credit Party shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6 (it being understood that the covenants in Sections 6.6 and 6.7
will be measured during Stage 1 and Stage 2, respectively, but shall not result
in an Event of Default if any Credit Party shall not be in compliance therewith
at any time prior to the Initial Funding Date; provided that, Credit Parties
shall be required, in any event, to comply with Section 6.6 or 6.7, as
applicable, as of the Fiscal Quarter most recently ended prior to the Initial
Funding Date).
6.1. Indebtedness. No Credit Party shall, nor shall it permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty,
or otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
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(1) the Obligations, including any Indebtedness under any Hedge
Agreement with any Lender Counterparty;
(2) Indebtedness of any Subsidiary Guarantor to Borrower or to any
other Subsidiary Guarantor, or of Borrower to any Subsidiary Guarantor; provided
that (i) all such Indebtedness shall be evidenced by promissory notes and all
such notes shall be subject to a First Priority Lien pursuant to the Pledge and
Security Agreement, (ii) all such Indebtedness owed by Company to any of its
Subsidiaries shall be subordinated in right of payment to the payment in full of
the Obligations pursuant to the terms of the applicable promissory notes, and
any payment by any such Subsidiary of Company under any guaranty of the
Obligations shall result in a pro tanto reduction of the amount of any
Indebtedness owed by such Subsidiary to Company or to any of its Subsidiaries
for whose benefit such payment is made;
(3) Subordinated Indebtedness (excluding for purposes of this clause
(c) Indebtedness under the Existing Indentures); provided that in any case, as
of the date of the incurrence of such Subordinated Indebtedness, no event shall
have occurred and be continuing or would result from such incurrence that would
result in a Default or Event of Default;
(4) Indebtedness incurred by Company or any of its Subsidiaries arising
from agreements providing for indemnification, adjustment of purchase price or
similar obligations, or from guaranties or letters of credit, surety bonds or
performance bonds securing the performance of Company or any such Subsidiary
pursuant to such agreements, in connection with acquisitions or dispositions of
any business, assets or Subsidiary of Company or any of its Subsidiaries not
prohibited by this Agreement;
(5) Indebtedness which may be deemed to exist pursuant to any
guaranties, performance, surety, statutory, appeal or similar obligations
obtained in the ordinary course of business;
(6) Indebtedness in respect of netting services, overdraft protections
and otherwise in connection with Deposit Accounts;
(7) guaranties in the ordinary course of business of the obligations of
suppliers, customers, franchisees and licensees of Company and its Subsidiaries;
(8) Indebtedness of Company outstanding under the Existing Indentures;
(9) Indebtedness with respect to (A) leases and rights to use fiber
optic cable incurred in the ordinary course of business ("DARK FIBER LEASES"),
which for all purposes under this Agreement shall be deemed to constitute and
shall be accounted for as Capital Leases in an aggregate amount not to exceed at
any time $225,000,000 and (B) other Capital Leases in an aggregate amount not to
exceed at any time $10,000,000;
(10) Permitted Equipment Financings;
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(11) Indebtedness incurred or assumed by Company or any of its
Subsidiaries in connection with any Permitted Acquisition;
(12) Indebtedness in the form of notes issued by Company or any of its
Subsidiaries in connection with the repurchase of Securities from any director,
officer, employee or consultant in an aggregate amount not to exceed $5,000,000;
(13) Indebtedness in the form of letters of credit for the account of
Company or any of its Subsidiaries in an aggregate face amount not to exceed
$15,000,000 at any time outstanding;
(14) Indebtedness not otherwise permitted under this Section 6.1 in an
aggregate amount not to exceed $15,000,000 at any time outstanding; and
(15) extensions, renewals and replacements of any such Indebtedness
listed in clauses (h), (j) and (k) above, that do not in any such case increase
the outstanding principal amount thereof.
6.2. Liens. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC of any State or under any similar recording or notice
statute, except:
(1) Liens in favor of Administrative Agent, as agent, for the benefit
of Lenders and Lender Counterparties granted pursuant to any Credit Document;
(2) Liens for taxes, assessments or governmental charges or claims that
are not yet due or are being contested in good faith by appropriate proceedings,
so long as such reserves or other appropriate provisions, if any, as shall be
required by GAAP shall have been made for any such contested amounts;
(3) statutory Liens of landlords, carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other Liens imposed by law, in each case
incurred in the ordinary course of business (i) for amounts not yet overdue or
(ii) for amounts that are overdue and that (in the case of any such amounts
overdue for a period in excess of five days) are being contested in good faith
by appropriate proceedings, so long as such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made for any
such contested amounts;
(4) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security, deposits made in the ordinary course of business with
utility companies, and Liens incurred or deposits made in the
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ordinary course of business to secure the performance of tenders, statutory or
regulatory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money), so long as no foreclosure, sale or similar proceedings have been
commenced with respect to any portion of the Collateral on account thereof;
(5) easements, rights-of-way, restrictions, encroachments, and other
minor defects or irregularities in title, and other similar encumbrances in each
case which do not and will not interfere in any material respect with the
ordinary conduct of the business of Company or any of its Subsidiaries;
(6) any interest or title of a lessor or sublessor under any lease
permitted hereunder;
(7) Liens solely on any xxxx xxxxxxx money deposits made by Company or
any of its Subsidiaries in connection with any letter of intent or purchase
agreement entered into by it;
(8) Liens incurred in connection with the purchase or shipping of goods
or assets on the related assets and proceeds thereof in favor of the seller or
shipper of such goods or assets;
(9) Liens arising from filing precautionary UCC financing statements
relating solely to leases entered into the ordinary course of business
(including Capital Leases permitted hereunder);
(10) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(11) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(12) licenses of patents, trademarks and other intellectual property
rights granted by Company or any of its Subsidiaries in the ordinary course of
business and not interfering in any respect with the ordinary conduct of the
business of Company or such Subsidiary;
(13) judgment liens not constituting an Event of Default pursuant to
Section 8.1(h);
(14) Liens described in Schedule 6.2 or on a title report delivered
pursuant to Section 5.11;
(15) Liens securing Indebtedness permitted pursuant to Section 6.1(j);
provided that any such Lien shall encumber only the assets acquired with the
proceeds of such Indebtedness;
(16) Liens existing on any property or assets acquired pursuant to a
Permitted Acquisition prior to the acquisition thereof by Borrower or any of its
Subsidiaries or existing on any property or asset of any Person that becomes a
Subsidiary (other than by RS Designation) after the date hereof prior to the
time such Person becomes a Subsidiary; provided that (i) such Lien is not
created in
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contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other
property or assets of Borrower or any of its Subsidiaries and (iii) such Lien
shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be,
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(17) Liens securing reimbursement obligations with respect to letters
of credit permitted pursuant to Section 6.1(m); and
(18) Liens that secure other obligations in an aggregate principal
amount not to exceed $5,000,000 at any time outstanding.
6.3. Equitable Lien; No Further Negative Pledges. If any Credit Party
or any of its Subsidiaries shall create or assume any Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other than
Permitted Liens, it shall make or cause to be made effective provision whereby
the Obligations will be secured by such Lien equally and ratably with any and
all other Indebtedness secured thereby as long as any such Indebtedness shall be
so secured; provided that notwithstanding the foregoing, this covenant shall not
be construed as a consent by Requisite Lenders to the creation or assumption of
any such Lien not otherwise permitted hereby. Except with respect to (a) the
Existing Indentures, (b) specific property encumbered to secure payment of
particular Indebtedness or to be sold pursuant to an executed agreement with
respect to an Asset Sale or assets not constituting an Asset Sale, or (c) any
agreement prohibiting only the creation of Liens securing Subordinated
Indebtedness, no Credit Party nor any of its Subsidiaries shall enter into any
agreement prohibiting the creation or assumption of any Lien upon any of its
properties or assets, whether now owned or hereafter acquired.
6.4. Restricted Payments; Restrictions on Subsidiary Distributions. (a)
No Credit Party shall nor shall it permit any of its Subsidiaries to, directly
or indirectly, declare, order, pay, make or set apart any sum for any Restricted
Junior Payment except the following:
(1) Company may make regularly scheduled payments required to be
made to holders of the Subordinated Indebtedness; and
(2) so long as no Event of Default (A) of the type specified in
Section 8.1(a) has occurred or (B) has occurred as the result of a
breach of any of Sections 6.6, 6.7, 6.8 and 6.9 Borrower may make
Restricted Junior Payments to Company at such times and in such amounts
as are necessary to enable Company to make the payments specified in
clause (i) above.
(2) Except as provided in Section 6.3 and as otherwise provided herein,
no Credit Party shall, nor shall it permit any of its Subsidiaries to, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any
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Subsidiary of Company to (i) pay dividends or make any other distributions on
any of such Subsidiary's capital stock owned by Company or any other Subsidiary
of Company, (ii) repay or prepay any Indebtedness owed by such Subsidiary to
Company or any other Subsidiary of Company, (iii) make loans or advances to
Company or any other Subsidiary of Company, or (iv) transfer any of its property
or assets to Company or any other Subsidiary of Company.
6.5. Investments. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(1) Cash Equivalents;
(2) Investments by any Credit Party in any Subsidiary of Company
(3) the contribution by Company of 100% of the capital stock of each of
its Subsidiaries to Borrower, such that after each such contribution, each such
Subsidiary is a subsidiary of Borrower;
(4) Investments (i) in accounts receivable arising and trade credit
granted in the ordinary course of business and in any Securities received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors and (ii) prepayments and other credits to suppliers, agents, consultants
and customers made in the ordinary course of business consistent with the past
practices of Company and its Subsidiaries;
(5) intercompany loans to the extent permitted under Section 6.1(b);
(6) Consolidated Capital Expenditures permitted by Sections 6.6(d) and
6.7(e);
(7) Permitted Acquisitions;
(8) Investments in the form of notes issued by Company or any of its
Subsidiaries in connection with the repurchase of Securities from any director,
officer, employee or consultant pursuant to Section 6.1(l);
(9) Investments in the form of Hedge Agreements;
(10) deposits permitted under Section 6.1(d);
(11) loans or advances to employees in an aggregate amount not to
exceed $2,500,000;
(12) other cash Investments in an aggregate amount not in excess of
$50,000,000 at any time outstanding; and
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(13) cumulative cash Investments in Unrestricted Subsidiaries
(including any Subsidiary designated as an Unrestricted Subsidiary pursuant to
Section 6.17) in an aggregate amount not to exceed, after giving effect to the
proposed Investment, the Excess Proceeds Amount; provided that, in no event
shall Investments made pursuant to this subsection (m) exceed $200,000,000 in
any Fiscal Year.
6.6. Stage 1 Financial Covenants. During Stage 1:
(1) MINIMUM REVENUES. Company shall not permit Revenues as of the last
day of any Fiscal Quarter, beginning with the Fiscal Quarter ending March 31,
2000, to be less than the correlative amount indicated as set forth on Schedule
6.6(a).
(2) RATIO OF SENIOR SECURED DEBT TO ANNUALIZED ADJUSTED EBITDA. As of
the last day of any Fiscal Quarter beginning with the Fiscal Quarter ending
March 31, 2000, Company shall not permit the ratio of (y) Senior Secured Debt to
(y) the aggregate Annualized Pre-Overhead EBITDA to exceed the correlative ratio
indicated as set forth on Schedule 6.6(b).
(3) SENIOR SECURED DEBT TO TOTAL CAPITALIZATION. Company shall not
permit the ratio of Senior Secured Debt to Total Capitalization to exceed
0.35:1.00 at any time during Stage 1.
(4) CONSOLIDATED TOTAL DEBT TO TOTAL CAPITALIZATION. Company shall not
permit the ratio of Consolidated Total Debt to Total Capitalization to exceed
0.60:1.00 at any time during Stage 1.
6.7. Stage 2 Financial Covenants. During Stage 2:
(1) SENIOR LEVERAGE RATIO. Company shall not permit the Senior Leverage
Ratio as of the last day of any Fiscal Quarter beginning with the Fiscal Quarter
ending March 31, 2003 to exceed the correlative ratio indicated as set forth on
Schedule 6.7(a).
(2) TOTAL LEVERAGE RATIO. Company shall not permit the Total Leverage
Ratio as of the last day of any Fiscal Quarter beginning with the Fiscal Quarter
ending March 31, 2003 to exceed the correlative ratio indicated as set forth on
Schedule 6.7(b).
(3) INTEREST COVERAGE RATIO. Company shall not permit the Interest
Coverage Ratio as of the last day of any Fiscal Quarter, beginning with the
Fiscal Quarter ending March 31, 2003, to be less than the correlative ratio
indicated as set forth on Schedule 6.7(c).
(4) PRO FORMA DEBT SERVICE COVERAGE RATIO. Company shall not permit the
Pro Forma Debt Service Coverage Ratio as of the last day of any Fiscal Quarter
beginning with the Fiscal Quarter ending December 31, 2003 to be less than the
correlative ratio indicated as set forth on Schedule 6.7(d).
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6.8. Maximum Consolidated Capital Expenditures. During Stage 1 and
Stage 2, Company shall not and shall not permit its Subsidiaries to make or
incur Consolidated Capital Expenditures, in any Fiscal Year indicated on
Schedule 6.8, in an aggregate amount for Company and its Subsidiaries in excess
of the corresponding amount set forth on Schedule 6.8.
6.9. Fundamental Changes; Disposition of Assets; Acquisitions. No
Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into
any transaction of merger or consolidation, or liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease or
sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any part of its business,
property or assets, whether now owned or hereafter acquired, or acquire by
purchase or otherwise (other than purchases or other acquisitions of inventory,
materials and equipment in the ordinary course of business) the business,
property or fixed assets of, or stock or other evidence of beneficial ownership
of, any Person or any division or line of business of any Person, except:
(1) subject to Section 6.14, any Subsidiary of Borrower may be merged
with or into Company or any other Subsidiary, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to Borrower or any of its Subsidiaries; provided
that in the case of such a merger, Company or such Subsidiary shall be the
continuing or surviving Person;
(2) sales of assets which do not constitute Asset Sales;
(3) leases or subleases to or from other Persons of assets by Company
or any of its Subsidiaries in the ordinary course of business;
(4) licenses to or from other Persons of Intellectual Property by
Company or any Subsidiary thereof in the ordinary course of business;
(5) Permitted Acquisitions;
(6) Investments made in accordance with Section 6.5; and
(7) subject to the requirements of Section 2.11(a), Asset Sales.
6.10. Disposal of Subsidiary Interests. Except for any sale of 100% of
the equity Securities of any of its Subsidiaries in compliance with the
provisions of Section 6.9, no Credit Party shall directly or indirectly sell,
assign, pledge or otherwise encumber or dispose of any equity Securities of any
of its Subsidiaries, except to qualify directors if required by applicable law;
or permit any of its Subsidiaries directly or indirectly to sell, assign, pledge
or otherwise encumber or dispose of any equity Securities of any of its
Subsidiaries (including such Subsidiary), except to another Credit
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Party (subject to the restrictions on such disposition otherwise imposed
hereunder), or to qualify directors if required by applicable law.
6.11. Sales and Lease-Backs. No Credit Party shall, nor shall it permit
any of its Subsidiaries to, directly or indirectly, become or remain liable as a
lessee or as a guarantor or other surety with respect to any lease of any
property (whether real, personal or mixed), whether now owned or hereafter
acquired, which Company or any of its Subsidiaries (a) has sold or transferred
or is to sell or to transfer to any other Person (other than Company or any of
its Subsidiaries), or (b) intends to use for substantially the same purpose as
any other property which has been or is to be sold or transferred by Company or
any of its Subsidiaries to any Person (other than Company or any of its
Subsidiaries) in connection with such lease.
6.12. Sale or Discount of Receivables. No Credit Party shall, nor shall
it permit any of its Subsidiaries to, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face value thereof,
any of its notes or accounts receivable (it being understood that the
restrictions contained in this Section 6.12 shall not apply to any write-off of
bad debt in the ordinary course of business consistent with prior practice).
6.13. Transactions with Shareholders and Affiliates. No Credit Party
shall, nor shall it permit any of its Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder of 5% or more of any class of equity Securities of Company or any of its
Subsidiaries or with any Affiliate of Company or of any such holder, on terms
that are less favorable to Company or that Subsidiary, as the case may be, than
those that might be obtained at the time from Persons who are not such a holder
or Affiliate; provided that the foregoing restriction shall not apply to (a) any
transaction between Company and any of its Subsidiaries or between any of the
Subsidiaries; (b) reasonable and customary fees and expenses paid to members of
the Boards of Directors of Company and its Subsidiaries; or (c) compensation
arrangements entered into in the ordinary course of business with respect to
officers and other employees of Company and its Subsidiaries.
6.14. Conduct of Business. From and after the Closing Date, no Credit
Party shall, nor shall it permit any of its Subsidiaries to, engage in any
business other than (a) the businesses engaged in by such Credit Party on the
Closing Date and similar or related businesses including, without limitation,
data communications, Internet access, Internet portal, web hosting, application
hosting, and communication equipment collocation businesses, in any event
without the consent of the Requisite Lenders, in no more than thirty six (36)
Geographic Markets (plus up to an additional six (6) markets designated as
Excess Proceeds Geographic Markets), or as otherwise permitted under clause (vi)
of the definition of Permitted Acquisition, and (b) such other lines of business
as may be consented to by Requisite Lenders. Company will not engage in any
business activities (other than the issuance of Securities to the extent not
otherwise prohibited in this Agreement) or own any assets or properties other
than the capital stock of its Subsidiaries and otherwise as incident to its
existence as a holding company.
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6.15. Amendments or Waivers of Existing Indentures/Subordinated
Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries
to, amend or otherwise change the terms of the Existing Indentures or any
Subordinated Indebtedness, or make any payment consistent with an amendment
thereof or change thereto, if the effect of such amendment or change is to
increase the interest rate on the Existing Indentures or such Subordinated
Indebtedness, change (to earlier dates) any dates upon which payments of
principal or interest are due thereon, change any event of default or condition
to an event of default with respect thereto (other than to eliminate any such
event of default or increase any grace period related thereto), change the
redemption, prepayment or defeasance provisions thereof, change the
subordination provisions of such Subordinated Indebtedness (or of any guaranty
thereof), or change any collateral therefor (other than to release such
collateral), or if the effect of such amendment or change, together with all
other amendments or changes made, is to increase materially the obligations of
the obligor thereunder or to confer any additional rights on the holders of
notes issued under the Existing Indentures or such Subordinated Indebtedness (or
a trustee or other representative on their behalf) which would be adverse to any
Credit Party or Lenders.
6.16. Fiscal Year. No Credit Party shall, nor shall it permit any of
its Subsidiaries to, change its Fiscal Year-end from December 31.
6.17. Designation of Unrestricted Subsidiaries; RS Designations.
(a) Borrower may designate a Subsidiary acquired or formed after
the Closing Date as an Unrestricted Subsidiary under this Agreement (a
"DESIGNATION") only if:
(i) no Event of Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(ii) after giving effect to such Designation, Company and its
Subsidiaries would be in compliance with each of the covenants set
forth in Sections 6.6, 6.7 and 6.8, as applicable, calculated on a pro
forma basis as if such Designation had occurred immediately prior to
the first day of the period of four consecutive fiscal quarters most
recently ended;
(iii) no Designation shall be made for any Subsidiary whose
assets, rights or franchises are material to the conduct of the
business of Company and its Subsidiaries in a Geographic Market (other
than an Excess Proceeds Geographic Market); and
(iv) Borrower has delivered to the Administrative Agent (x)
written notice of such Designation and (y) a certificate, dated the
effective date of such Designation, of an Authorized Officer of
Borrower stating that no Event of Default has occurred and is
continuing and setting forth reasonably detailed calculations
demonstrating pro forma compliance with each of Sections 6.6, 6.7 and
6.8, as applicable, in accordance with clause (ii) above.
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(b) Borrower may designate any Unrestricted Subsidiary as a
Subsidiary under this Agreement (an "RS DESIGNATION") only if:
(i) such Subsidiary is predominantly engaged in similar business
activities to Company and its Subsidiaries;
(ii) no Event of Default shall have occurred and be continuing at
the time of or after giving effect to such RS Designation;
(iii) after giving effect to such RS Designation, Company and its
Subsidiaries would be in compliance with each of the covenants set
forth in Sections 6.6, 6.7 and 6.8, as applicable, calculated on a pro
forma basis as if such RS Designation had occurred immediately prior to
the first day of the relevant period specified in such Section, as
applicable;
(iv) Borrower has delivered to the Administrative Agent (x)
written notice of such RS Designation and (y) a certificate, dated the
effective date of such RS Designation, of an Authorized Officer of
Borrower stating that no Event of Default has occurred and is
continuing and setting forth reasonably detailed calculations
demonstrating pro forma compliance with each of Section 6.6, 6.7 and
6.8, as applicable, in accordance with clause (iii) above; and
(v) all Indebtedness of such Subsidiary outstanding and all Liens
on assets of such Subsidiary existing immediately following the RS
Designation would, if initially incurred at such time, have been
permitted to be incurred pursuant to Sections 6.1 and 6.2 without
reliance on Section 6.2(p), provided, however, that, if the Person
subject to an RS Designation had Liens described in Section 6.2(p) at
the time such Person was designated an Unrestricted Subsidiary, such
Liens shall be permitted following such RS Designation.
Upon any such RS Designation, Borrower shall be deemed to have
(i) received a return of its Investment in such Unrestricted Subsidiary equal to
the lesser of (x) the amount of such Investment immediately prior to such RS
Designation and (y) the fair market value (as reasonably determined by Borrower)
of the net assets of such Subsidiary at the time of such RS Designation and (ii)
a permanent Investment in an Unrestricted Subsidiary equal to the excess, if
positive, of the amount referred to in clause (i)(x) above over the amount
referred to in clause (i)(y) above.
(c) Neither Borrower nor any Subsidiary shall at any time (x)
provide a Guaranty of any Indebtedness of any Unrestricted Subsidiary, (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any other Indebtedness
which provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon (or cause such Indebtedness or the payment thereof to
be accelerated, payable or subject to repurchase prior to its final scheduled
maturity) upon the occurrence of a default with respect to any other
Indebtedness that is Indebtedness of an Unrestricted Subsidiary.
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SECTION 7. GUARANTY
7.1. Guaranty of the Obligations. Subject to the provisions of Section
7.2, Guarantors jointly and severally hereby irrevocably and unconditionally
guaranty to Administrative Agent for the rateable benefit of the Beneficiaries
the due and punctual payment in full of all Obligations when the same shall
become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. ss. 362(a) (collectively, the "GUARANTEED OBLIGATIONS")).
7.2. Contribution by Guarantors. Each Guarantor desires to allocate
among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and
equitable manner, their obligations arising under this Guaranty. Accordingly, in
the event any payment or distribution is made on any date by a Guarantor under
this Guaranty (a "FUNDING GUARANTOR") that exceeds its Fair Share as of such
date, that Funding Guarantor shall be entitled to a contribution from each of
the other Contributing Guarantors in the amount of such other Contributing
Guarantor's Fair Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor's Aggregate Payments to
equal its Fair Share as of such date. "FAIR SHARE" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (a)
the ratio of (i) the Fair Share Contribution Amount with respect to such
Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors multiplied by (b) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations guarantied. "FAIR
SHARE SHORTFALL" means, with respect to a Contributing Guarantor as of any date
of determination, the excess, if any, of the Fair Share of such Contributing
Guarantor over the Aggregate Payments of such Contributing Guarantor. "FAIR
SHARE CONTRIBUTION AMOUNT" means, with respect to a Contributing Guarantor as of
any date of determination, the maximum aggregate amount of the obligations of
such Contributing Guarantor under this Guaranty that would not render its
obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code
or any applicable provisions of comparable state law; provided that solely for
purposes of calculating the "FAIR SHARE CONTRIBUTION AMOUNT" with respect to any
Contributing Guarantor for purposes of this Section 7.2, any assets or
liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Contributing Guarantor. "AGGREGATE PAYMENTS" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (1)
the aggregate amount of all payments and distributions made on or before such
date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this Section 7.2), minus (2) the aggregate
amount of all payments received on or before such date by such Contributing
Guarantor from the other Contributing Guarantors as contributions under this
Section 7.2. The amounts payable as contributions hereunder shall be determined
as of the date on which the related payment or distribution is made by the
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applicable Funding Guarantor. The allocation among Contributing Guarantors of
their obligations as set forth in this Section 7.2 shall not be construed in any
way to limit the liability of any Contributing Guarantor hereunder. Each
Guarantor is a beneficiary to the contribution agreement set forth in this
Section 7.2.
7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby
jointly and severally agree, in furtherance of the foregoing and not in
limitation of any other right which any Beneficiary may have at law or in equity
against any Guarantor by virtue hereof, that upon the failure of Borrower to pay
any of the Guaranteed Obligations when and as the same shall become due, whether
at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss.
362(a)), Guarantors will upon demand pay, or cause to be paid, in cash, to
Administrative Agent for the ratable benefit of Beneficiaries, an amount equal
to the sum of the unpaid principal amount of all Guaranteed Obligations then due
as aforesaid, accrued and unpaid interest on such Guaranteed Obligations
(including interest which, but for the filing of a petition in bankruptcy with
respect to Borrower, would have accrued on such Guaranteed Obligations, whether
or not a claim is allowed against Borrower for such interest in the related
bankruptcy proceeding) and all other Obligations then owed to Beneficiaries as
aforesaid.
7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guaranteed Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees as follows:
(1) this Guaranty is a guaranty of payment when due and not of
collectibility;
(2) Administrative Agent may enforce this Guaranty upon the occurrence
of an Event of Default notwithstanding the existence of any dispute between
Borrower and any Beneficiary with respect to the existence of such Event of
Default;
(3) the obligations of each Guarantor hereunder are independent of the
obligations of Borrower and the obligations of any other guarantor (including
any other Guarantor) of the obligations of Borrower, and a separate action or
actions may be brought and prosecuted against such Guarantor whether or not any
action is brought against Borrower or any of such other guarantors and whether
or not Borrower is joined in any such action or actions;
(4) payment by any Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or abridge any
Guarantor's liability for any portion of the Guaranteed Obligations which has
not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any
Guarantor's covenant to pay a portion of the Guaranteed Obligations, such
judgment shall not be deemed to release such Guarantor from its covenant to pay
the portion of the Guaranteed Obligations that is not
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the subject of such suit, and such judgment shall not, except to the extent
satisfied by such Guarantor, limit, affect, modify or abridge any other
Guarantor's liability hereunder in respect of the Guaranteed Obligations;
(5) any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability hereof or
giving rise to any reduction, limitation, impairment, discharge or termination
of any Guarantor's liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms of payment of the Guaranteed Obligations; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Guaranteed Obligations or any
agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other guaranties of
the Guaranteed Obligations and take and hold security for the payment hereof or
the Guaranteed Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or
without consideration, any security for payment of the Guaranteed Obligations,
any other guaranties of the Guaranteed Obligations, or any other obligation of
any Person (including any other Guarantor) with respect to the Guaranteed
Obligations; (v) enforce and apply any security now or hereafter held by or for
the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations
and direct the order or manner of sale thereof, or exercise any other right or
remedy that such Beneficiary may have against any such security, in each case as
such Beneficiary in its discretion may determine consistent herewith and any
applicable security agreement or Hedge Agreement, including foreclosure on any
such security pursuant to one or more judicial or nonjudicial sales, whether or
not every aspect of any such sale is commercially reasonable, and even though
such action operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Guarantor against Borrower or any
security for the Guaranteed Obligations; and (vi) exercise any other rights
available to it under the Credit Documents or the Hedge Agreements; and
(6) this Guaranty and the obligations of Guarantors hereunder shall be
valid and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than payment in full
of the Guaranteed Obligations), including the occurrence of any of the
following, whether or not any Guarantor shall have had notice or knowledge of
any of them: (i) any failure or omission to assert or enforce, or agreement or
election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim
or demand or any right, power or remedy (whether arising under the Credit
Documents or the Hedge Agreements, at law, in equity or otherwise) with respect
to the Guaranteed Obligations or any agreement relating thereto, or with respect
to any other guaranty of or security for the payment of the Guaranteed
Obligations; (ii) any rescission, waiver, amendment or modification of, or any
consent to departure from, any of the terms or provisions (including provisions
relating to events of default) hereof, any of the other Credit Documents or the
Hedge Agreements or any agreement or instrument executed pursuant hereto or
thereto, or of any other guaranty or security for the Guaranteed Obligations, in
each case whether or not in accordance with the terms hereof or such Credit
Document or Hedge Agreement or any agreement relating to
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such other guaranty or security; (iii) the Guaranteed Obligations, or any
agreement relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of payments received from any
source (other than payments received pursuant to the other Credit Documents or
any Hedge Agreement or from the proceeds of any security for the Guaranteed
Obligations, except to the extent such security also serves as collateral for
indebtedness other than the Guaranteed Obligations) to the payment of
indebtedness other than the Guaranteed Obligations, even though any Beneficiary
might have elected to apply such payment to any part or all of the Guaranteed
Obligations; (v) any Beneficiary's consent to the change, reorganization or
termination of the corporate structure or existence of Company or any of its
Subsidiaries and to any corresponding restructuring of the Guaranteed
Obligations; (vi) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guaranteed Obligations;
(vii) any defenses, set-offs or counterclaims which Borrower may allege or
assert against any Beneficiary in respect of the Guaranteed Obligations,
including failure of consideration, breach of warranty, payment, statute of
frauds, statute of limitations, accord and satisfaction and usury; and (viii)
any other act or thing or omission, or delay to do any other act or thing, which
may or might in any manner or to any extent vary the risk of any Guarantor as an
obligor in respect of the Guaranteed Obligations.
7.5. Waivers by Guarantors. Each Guarantor hereby waives, for the
benefit of Beneficiaries: (a) any right to require any Beneficiary, as a
condition of payment or performance by such Guarantor, to (i) proceed against
Borrower, any other guarantor (including any other Guarantor) of the Guaranteed
Obligations or any other Person, (ii) proceed against or exhaust any security
held from Borrower, any such other guarantor or any other Person, (iii) proceed
against or have resort to any balance of any deposit account or credit on the
books of any Beneficiary in favor of Borrower or any other Person, or (iv)
pursue any other remedy in the power of any Beneficiary whatsoever; (b) any
defense arising by reason of the incapacity, lack of authority or any disability
or other defense of Borrower including any defense based on or arising out of
the lack of validity or the unenforceability of the Guaranteed Obligations or
any agreement or instrument relating thereto or by reason of the cessation of
the liability of Borrower from any cause other than payment in full of the
Guaranteed Obligations; (c) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal; (d) any
defense based upon any Beneficiary's errors or omissions in the administration
of the Guaranteed Obligations, except behavior which amounts to gross
negligence, willful misconduct or bad faith; (e)(i) any principles or provisions
of law, statutory or otherwise, which are or might be in conflict with the terms
hereof and any legal or equitable discharge of such Guarantor's obligations
hereunder, (ii) the benefit of any statute of limitations affecting such
Guarantor's liability hereunder or the enforcement hereof, (iii) any rights to
set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any
requirement that any Beneficiary protect, secure, perfect or insure any security
interest or lien or any property subject thereto; (f) notices, demands,
presentments, protests, notices of protest, notices of dishonor and notices of
any action or inaction, including acceptance hereof, notices of default
hereunder, the Hedge Agreements or any agreement or instrument related hereto or
thereto, notices of any renewal, extension or modification of the Guaranteed
Obligations or any agreement related thereto, notices
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of any extension of credit to Borrower and notices of any of the matters
referred to in Section 7.4 and any right to consent to any thereof; and (g) any
defenses or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the
terms hereof.
7.6. Guarantors' Rights of Subrogation, Contribution, Etc. Each
Guarantor hereby waives any claim, right or remedy, direct or indirect, that
such Guarantor now has or may hereafter have against Borrower or any of its
assets in connection with this Guaranty or the performance by such Guarantor of
its obligations hereunder for so long (but only for so long) as any Obligation
of any Credit Party remains outstanding, in each case whether such claim, right
or remedy arises in equity, under contract, by statute, under common law or
otherwise and including, without limitation, (a) any right of subrogation,
reimbursement or indemnification that such Guarantor now has or may hereafter
have against Borrower with respect to the Guaranteed Obligations, (b) any right
to enforce, or to participate in, any claim, right or remedy that any
Beneficiary now has or may hereafter have against Borrower, and (c) any benefit
of, and any right to participate in, any collateral or security now or hereafter
held by any Beneficiary. In addition, until the Guaranteed Obligations shall
have been indefeasibly paid in full and the Commitments shall have terminated
each Guarantor shall withhold exercise of any right of contribution such
Guarantor may have against any other guarantor (including any other Guarantor)
of the Guaranteed Obligations, including, without limitation, any such right of
contribution as contemplated by Section 7.2. Each Guarantor further agrees that,
to the extent the waiver or agreement to withhold the exercise of its rights of
subrogation, reimbursement, indemnification and contribution as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation, reimbursement or indemnification such
Guarantor may have against Borrower or against any collateral or security, and
any rights of contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights any Beneficiary may
have against Borrower, to all right, title and interest any Beneficiary may have
in any such collateral or security, and to any right any Beneficiary may have
against such other guarantor. If any amount shall be paid to any Guarantor on
account of any such subrogation, reimbursement, indemnification or contribution
rights at any time when all Guaranteed Obligations shall not have been paid in
full, such amount shall be held in trust for guarantied party on behalf of
Beneficiaries and shall forthwith be paid over to guarantied party for the
benefit of Beneficiaries to be credited and applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms hereof.
7.7. Subordination of Other Obligations. Any Indebtedness of Borrower
or any Guarantor now or hereafter held by any Guarantor (the "OBLIGEE
GUARANTOR") is hereby subordinated in right of payment to the Guaranteed
Obligations, and any such indebtedness collected or received by the Obligee
Guarantor after an Event of Default has occurred and is continuing shall be held
in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith
be paid over to Administrative Agent for the benefit of Beneficiaries to be
credited and applied against the Guaranteed Obligations but without affecting,
impairing or limiting in any manner the liability of the Obligee Guarantor under
any other provision hereof.
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7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and
shall remain in effect until all of the Guaranteed Obligations shall have been
paid in full and the Commitments shall have terminated. Each Guarantor hereby
irrevocably waives any right to revoke this Guaranty as to future transactions
giving rise to any Guaranteed Obligations.
7.9. Authority of Guarantors or Borrower. It is not necessary for any
Beneficiary to inquire into the capacity or powers of any Guarantor or Borrower
or the officers, directors or any agents acting or purporting to act on behalf
of any of them.
7.10. Financial Condition of Borrower. Any Loan may be granted to
Borrower or continued from time to time, and any Hedge Agreement may be entered
into from time to time, in each case without notice to or authorization from any
Guarantor regardless of the financial or other condition of Borrower at the time
of any such grant or continuation or at the time such Hedge Agreement is entered
into, as the case may be. No Beneficiary shall have any obligation to disclose
or discuss with any Guarantor its assessment, or any Guarantor's assessment, of
the financial condition of Borrower. Each Guarantor has adequate means to obtain
information from Borrower on a continuing basis concerning the financial
condition of Borrower and its ability to perform its obligations under the
Credit Documents and the Hedge Agreements, and each Guarantor assumes the
responsibility for being and keeping informed of the financial condition of
Borrower and of all circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations. Each Guarantor hereby waives and relinquishes any duty
on the part of any Beneficiary to disclose any matter, fact or thing relating to
the business, operations or conditions of Borrower now known or hereafter known
by any Beneficiary.
7.11. Bankruptcy, Etc. (a) So long as any Guaranteed Obligations remain
outstanding, no Guarantor shall, without the prior written consent of
Administrative Agent acting pursuant to the instructions of Requisite Lenders,
commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency proceedings of or against Borrower. The obligations
of Guarantors hereunder shall not be reduced, limited, impaired, discharged,
deferred, suspended or terminated by any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of Borrower or by any defense which Borrower may have by reason
of the order, decree or decision of any court or administrative body resulting
from any such proceeding.
(1) Each Guarantor acknowledges and agrees that any interest on any
portion of the Guaranteed Obligations which accrues after the commencement of
any proceeding referred to in clause (a) above (or, if interest on any portion
of the Guaranteed Obligations ceases to accrue by operation of law by reason of
the commencement of said proceeding, such interest as would have accrued on such
portion of the Guaranteed Obligations if said proceedings had not been
commenced) shall be included in the Guaranteed Obligations because it is the
intention of Guarantors and Beneficiaries that the Guaranteed Obligations which
are guarantied by Guarantors pursuant hereto should be determined without regard
to any rule of law or order which may relieve Borrower of any portion of such
Guaranteed Obligations. Guarantors will permit any trustee in bankruptcy,
receiver,
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debtor in possession, assignee for the benefit of creditors or similar
person to pay Administrative Agent, or allow the claim of Administrative Agent
in respect of, any such interest accruing after the date on which such
proceeding is commenced.
(2) In the event that all or any portion of the Guaranteed Obligations
are paid by Borrower, the obligations of Guarantors hereunder shall continue and
remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) are rescinded or recovered
directly or indirectly from any Beneficiary as a preference, fraudulent transfer
or otherwise, and any such payments which are so rescinded or recovered shall
constitute Guaranteed Obligations for all purposes hereunder.
7.12. Notice of Events. As soon as any Guarantor obtains knowledge
thereof, such Guarantor shall give Administrative Agent written notice of any
condition or event which has resulted in a material adverse change in the
financial condition of any Guarantor or Borrower or a breach of or noncompliance
with any term, condition or covenant contained herein, any other Credit
Document, any Hedge Agreement or any other document delivered pursuant hereto or
thereto.
7.13. Discharge of Guaranty Upon Sale of Guarantor. If all of the
equity Securities of any Guarantor or any of its successors in interest
hereunder shall be sold or otherwise disposed of (including by merger or
consolidation) in accordance with the terms and conditions hereof, the Guaranty
of such Guarantor or such successor in interest, as the case may be, hereunder
shall automatically be discharged and released without any further action by any
Beneficiary or any other Person effective as of the time of such Asset Sale;
provided that as a condition precedent to such discharge and release,
Administrative Agent shall have received evidence satisfactory to it that
arrangements satisfactory to it have been made for delivery to Administrative
Agent of the applicable Net Asset Sale Proceeds of such disposition pursuant to
Section 2.13(a).
SECTION 8. EVENTS OF DEFAULT
8.1. Events of Default. If any one or more of the following conditions
or events shall occur:
(1) FAILURE TO MAKE PAYMENTS WHEN DUE. Failure by Borrower to pay (i)
any installment of principal of any Loan when due, whether at stated maturity,
by acceleration, by notice of voluntary prepayment, by mandatory prepayment or
otherwise; or (ii) any interest on any Loan or any fee or any other amount due
hereunder within five (5) days after the date due; or (1)
(2) DEFAULT IN OTHER AGREEMENTS. (i) Failure of any Credit Party to pay
when due any principal of or interest on or any other amount payable in respect
of one or more items of Indebtedness (other than Indebtedness referred to in
Section 8.1(a)) in an aggregate principal amount of $5,000,000 or more, in each
case beyond the grace period, if any, provided therefor; or (ii) breach or
default by any Credit Party with respect to any other material term of (1) one
or more items of Indebtedness in the individual or aggregate principal amounts
referred to in clause (i) above or (2)
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any loan agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness, in each case beyond the grace period, if any, provided
therefor, if the effect of such breach or default is to cause, or to permit the
holder or holders of that Indebtedness (or a trustee on behalf of such holder or
holders) to cause, that Indebtedness to become or be declared due and payable
(or redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; or
(3) BREACH OF CERTAIN COVENANTS. Failure of any Credit Party to perform
or comply with any term or condition contained in Sections 2.3, 5.1(g), 5.2 or
Section 6 (other than, at any time prior to the Initial Funding Date, Sections
5.13(b), 6.6 and Section 6.7) hereof; or
(4) BREACH OF REPRESENTATIONS, ETC. Any representation, warranty,
certification or other statement made or deemed made by any Credit Party in any
Credit Document or in any statement or certificate at any time given by Company
or any of its Subsidiaries in writing pursuant hereto or thereto or in
connection herewith or therewith shall be false in any material respect as the
date made or deemed made; or
(5) OTHER DEFAULTS UNDER CREDIT DOCUMENTS. Any Credit Party shall
default in the performance of or compliance with any term contained herein or
any of the other Credit Documents, other than any such term referred to in any
other Section of this Section 8.1 (including, on and after the Initial Funding
Date, Sections 5.13(b), 6.6 and 6.7), and such default shall not have been
remedied or waived within thirty (30) days after the earlier of (i) an officer
of such Credit Party becoming aware of such default or (ii) receipt by Borrower
of notice from Administrative Agent or any Lender of such default; or
(6) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. (i) A court
of competent jurisdiction shall enter a decree or order for relief in respect of
any Credit Party in an involuntary case under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect, which decree or order is not stayed; or any other similar relief shall
be granted under any applicable federal or state law; or (ii) an involuntary
case shall be commenced against any Credit Party under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over any Credit Party, or over
all or a substantial part of its property, shall have been entered; or there
shall have occurred the involuntary appointment of an interim receiver, trustee
or other custodian of any Credit Party for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall have
been issued against any substantial part of the property of any Credit Party,
and any such event described in this clause (ii) shall continue for sixty (60)
days without having been dismissed, bonded or discharged; or
(7) VOLUNTARY BANKRUPTCY. (i) Any Credit Party shall have an order for
relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or shall consent to the
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entry of an order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent to
the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or any Credit Party
shall make any assignment for the benefit of creditors; or (ii) any Credit Party
shall be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of Directors
of any Credit Party (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred to herein
or in Section 8.1(f); or
(8) JUDGMENTS OF ATTACHMENTS. Any money judgment, writ or warrant of
attachment or similar process involving in the aggregate at any time an amount
in excess of $5,000,000 (not adequately covered by insurance as to which a
solvent and unaffiliated insurance company has acknowledged coverage) shall be
entered or filed against any Credit Party or any of their respective assets and
shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty
(60) days (or in any event later than five days prior to the date of any
proposed sale thereunder); or
(9) DISSOLUTION. Any order, judgment or decree shall be entered against
any Credit Party decreeing the dissolution or split up of Company or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of thirty (30) days; or
(10) EMPLOYEE BENEFIT PLANS. There shall occur one or more ERISA Events
which individually or in the aggregate results in or might reasonably be
expected to result in liability of Company, any of its Subsidiaries or any of
their respective ERISA Affiliates in excess of $5,000,000 during the term
hereof; or there shall exist an amount of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for
all Pension Plans (excluding for purposes of such computation any Pension Plans
with respect to which assets exceed benefit liabilities), which exceeds
$5,000,000; or
(11) CHANGE OF CONTROL. A Change of Control shall occur; or
(12) GUARANTIES, COLLATERAL DOCUMENTS AND OTHER CREDIT DOCUMENTS. At
any time after the execution and delivery thereof, (i) the Guaranty for any
reason, other than the satisfaction in full of all Obligations, shall cease to
be in full force and effect (other than in accordance with its terms) or shall
be declared to be null and void or any Guarantor shall repudiate its obligations
thereunder, (ii) this Agreement or any Collateral Document ceases to be in full
force and effect (other than by reason of a release of Collateral in accordance
with the terms hereof or thereof or the satisfaction in full of the Obligations
in accordance with the terms hereof) or shall be declared null and void, or
Administrative Agent shall not have or shall cease to have a valid and perfected
Lien in any material Collateral purported to be covered by the Collateral
Documents with the priority required by the relevant Collateral Documents, in
each case for any reason other than the failure of Administrative Agent or any
Lender to take any action within its control, or (iii) any Credit Party shall
contest the validity or enforceability of any Credit Document in writing or deny
in writing that
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it has any further liability, including with respect to future advances by
Lenders, under any Credit Document to which it is a party;
THEN, (1) upon the occurrence of any Event of Default described in Sections
8.1(f) or 8.1(g), automatically, and (2) upon the occurrence of any other Event
of Default, at the request of (or with the consent of) Requisite Lenders, upon
notice to Borrower by Administrative Agent, (A) the Commitments, if any, of each
Lender having such Commitments shall terminate, and (B) each of the following
shall immediately become due and payable, in each case without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by each Credit Party: (I) the unpaid principal amount of and
accrued interest on the Loans and (II) all other Obligations.
SECTION 9. AGENTS
9.1. Appointment of Agents. GSCP is hereby appointed Sole Lead Arranger
and Syndication Agent hereunder, and each Lender hereby authorizes Sole Lead
Arranger and Syndication Agent to act as its agent in accordance with the terms
hereof and the other Credit Documents. TD is hereby appointed Administrative
Agent hereunder and under the other Credit Documents and each Lender hereby
authorizes Administrative Agent to act as its agent in accordance with the terms
hereof and the other Credit Documents (except with respect to the rights granted
to it in the second sentence of Section 9.7). Each of Fleet Boston and MSSF is
hereby appointed Co-Documentation Agent hereunder, and each Lender hereby
authorizes each Co-Documentation Agent to act as its agent in accordance with
the terms hereof and the other Credit Documents. Each Agent hereby agrees to act
upon the express conditions contained herein and the other Credit Documents, as
applicable. The provisions of this Section 9 are solely for the benefit of
Agents and Lenders and no Credit Party shall have any rights as a third party
beneficiary of any of the provisions thereof. In performing its functions and
duties hereunder, each Agent shall act solely as an agent of Lenders and does
not assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for Company or any of its Subsidiaries.
Each Agent, without consent of or notice to any party hereto, may assign any and
all of its rights or obligations hereunder to any of its Affiliates. As of the
Closing Date, all the respective obligations of (i) GSCP, in its capacity as
Syndication Agent and (ii) each of Fleet Boston and MSSF, in its capacity as
Co-Documentation Agent, shall terminate.
9.2. Powers and Duties. Each Lender irrevocably authorizes each Agent
to take such action on such Lender's behalf and to exercise such powers, rights
and remedies hereunder and under the other Credit Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly
specified herein and the other Credit Documents. Each Agent may exercise such
powers, rights and remedies and perform such duties by or through its agents or
employees. No Agent shall have, by reason hereof or any of the other Credit
Documents, a fiduciary relationship in respect of any Lender; and nothing herein
or any of the other Credit Documents, expressed or implied, is intended to or
shall
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be so construed as to impose upon any Agent any obligations in respect hereof or
any of the other Credit Documents except as expressly set forth herein or
therein.
9.3. General Immunity.
(1) NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency hereof or any other
Credit Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by any of Agent to Lenders or by or on behalf of
Borrower to any Agent or any Lender in connection with the Credit Documents and
the transactions contemplated thereby or for the financial condition or business
affairs of any Credit Party or any other Person liable for the payment of any
Obligations, nor shall any Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in any of the Credit Documents or as to the use of the
proceeds of the Loans or as to the existence or possible existence of any Event
of Default or Default. Anything contained herein to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans.
(2) EXCULPATORY PROVISIONS. No Agent nor any of its officers, partners,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by any Agent under or in connection with any of the Credit Documents
except to the extent caused by such Agent's gross negligence or willful
misconduct. Each Agent shall be entitled to refrain from any act or the taking
of any action (including the failure to take an action) in connection herewith
or any of the other Credit Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under Section 10.5) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper Person or Persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against any Agent as a result of such Agent
acting or (where so instructed) refraining from acting hereunder or any of the
other Credit Documents in accordance with the instructions of Requisite Lenders
(or such other Lenders as may be required to give such instructions under
Section 10.5).
9.4. Agents Entitled to Act as Lender. The agency hereby created shall
in no way impair or affect any of the rights and powers of, or impose any duties
or obligations upon, any Agent in its
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individual capacity as a Lender hereunder. With respect to its participation in
the Loans, each Agent, in its individual capacity, shall have the same rights
and powers hereunder as any other Lender and may exercise the same as if it were
not performing the duties and functions delegated to it hereunder, and the term
"LENDER" shall, unless the context clearly otherwise indicates, include each
Agent in its individual capacity. Any Agent, in its individual capacity, and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of banking, trust, financial advisory or other business with Borrower or
any of its Affiliates as if it were not performing the duties specified herein,
and may accept fees and other consideration from Borrower for services in
connection herewith and otherwise without having to account for the same to
Lenders.
9.5. Lenders' Representations, Warranties and Acknowledgment. Each
Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with Loans hereunder and that it has made and shall
continue to make its own appraisal of the creditworthiness of Company and its
Subsidiaries. No Agent shall have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter, and no Agent shall have
any responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
9.6. Right to Indemnity. Each Lender, in proportion to its Pro Rata
Share, severally agrees to indemnify each Agent, to the extent that such Agent
shall not have been reimbursed by any Credit Party, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against such Agent in exercising its powers, rights and remedies or performing
its duties hereunder or under the other Credit Documents or otherwise in its
capacity as such Agent in any way relating to or arising out hereof or the other
Credit Documents; provided that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct. If any indemnity furnished to any Agent for
any purpose shall, in the opinion of such Agent, be insufficient or become
impaired, such Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished; provided that in no event shall this sentence require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty,
action, judgment, suit, cost, expense or disbursement in excess of such Lender's
Pro Rata Share thereof; and provided further that this sentence shall not be
deemed to require any Lender to indemnify any Agent against any liability,
obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement described in the proviso in the immediately preceding sentence.
9.7. Successor Administrative Agent. Administrative Agent may resign at
any time by giving thirty (30) days' prior written notice thereof to Lenders and
Borrower. Upon any such notice of resignation, Requisite Lenders shall have the
right, with the consent of Borrower (which shall not be unreasonably withheld or
delayed or required at any time an Event of Default shall have occurred
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and then be continuing), to appoint a successor Administrative Agent. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent hereunder.
9.8. Collateral Documents and Guaranties. (A) ADMINISTRATIVE AGENT AS
AGENT UNDER COLLATERAL DOCUMENTS AND GUARANTIES. Each Lender hereby further
authorizes Administrative Agent, on behalf of and for the benefit of Lenders, to
be the agent for and representative of Lenders with respect to the Guaranty, the
Collateral and the Collateral Documents. Subject to Section 10.5, without
further written consent or authorization from Lenders, Administrative Agent may
execute any documents or instruments necessary to (i) release any Lien
encumbering any item of Collateral that is the subject of a sale or other
disposition of assets permitted hereby or to which Requisite Lenders (or such
other Lenders as may be required to give such consent under Section 10.5) have
otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to
Section 7.13 or with respect to which Requisite Lenders (or such other Lenders
as may be required to give such consent under Section 10.5) have otherwise
consented.
(1) ADMINISTRATIVE AGENTS' RIGHT TO REALIZE ON COLLATERAL AND ENFORCE
GUARANTY. Anything contained in any of the Credit Documents to the contrary
notwithstanding, each Credit Party, Administrative Agent and each Lender hereby
agree that (i) no Lender shall have any right individually to realize upon any
of the Collateral or to enforce the Guaranty, it being understood and agreed
that all powers, rights and remedies hereunder may be exercised solely by
Administrative Agent for the benefit of Lenders in accordance with the terms
hereof, and (ii) in the event of a foreclosure by Administrative Agent on any of
the Collateral pursuant to a public or private sale, Administrative Agent or any
Lender may be the purchaser of any or all of such Collateral at any such sale
and Administrative Agent, as agent for and representative of Lenders (but not
any Lender or Lenders in its or their respective individual capacities unless
Requisite Lenders shall otherwise agree in writing) shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price for
any collateral payable by Administrative Agent at such sale.
(2) SUPPLEMENTAL COLLATERAL AGENT. It is the purpose hereof and the
other Credit Documents that there shall be no violation of any law of any
jurisdiction denying or restricting the right of banking corporations or
associations to transact business as agent or trustee in such jurisdiction. It
is recognized that in case of litigation hereunder or any of the other Credit
Documents, and in particular in case of the enforcement of any of the Credit
Documents, or in case Administrative Agent deems that by reason of any present
or future law of any jurisdiction it may not exercise any of the rights, powers
or remedies granted herein or in any of the other Credit Documents or take any
other action which may be desirable or necessary in connection therewith,
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it may be necessary that Administrative Agent appoint an additional individual
or institution as a separate trustee, co-trustee, collateral agent or collateral
co-agent (a "SUPPLEMENTAL COLLATERAL AGENT"). In the event that Administrative
Agent appoints a Supplemental Collateral Agent with respect to any Collateral,
(i) each and every right, power, privilege or duty expressed or intended hereby
or any of the other Credit Documents to be exercised by or vested in or conveyed
to Administrative Agent with respect to such Collateral shall be exercisable by
and vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Credit Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either Agent or such Supplemental Collateral Agent, and (ii) the provisions of
this Section 9 and of Sections 10.2 and 10.3 that refer to Administrative Agent
shall inure to the benefit of such Supplemental Collateral Agent and all
references therein to Administrative Agent shall be deemed to be references to
Administrative Agent and/or such Supplemental Collateral Agent, as the context
may require. Should any instrument in writing from Borrower or any other Credit
Party be required by any Supplemental Collateral Agent so appointed by
Administrative Agent for more fully and certainly vesting in and confirming to
him or it such rights, powers, privileges and duties, Borrower shall, or shall
cause such Credit Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by Administrative Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Administrative Agent until the
appointment of a new Supplemental Collateral Agent.
SECTION 10. MISCELLANEOUS
10.1. Notices. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given to a
Credit Party or any Agent, shall be sent to such Person's address as set forth
on Appendix B or in the other relevant Credit Document, and in the case of any
Lender, the address as indicated on Appendix B or otherwise indicated to
Administrative Agent in writing. Each notice hereunder shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service and signed for against receipt thereof, upon
receipt of telefacsimile or telex, or three Business Days after depositing it in
the United States mail with postage prepaid and properly addressed; provided
that no notice to any Agent or Lender shall be effective until received by such
Agent or Lender.
10.2. Expenses. Whether or not the transactions contemplated hereby
shall be consummated, Borrower agrees to pay promptly (a) all the reasonable
out-of-pocket costs and expenses of Sole Lead Arranger associated with the
syndication of the credit facilities hereunder and the preparation of the Credit
Documents and any consents, amendments, waivers or other modifications thereto;
(b) all reasonable costs of furnishing all opinions by counsel for any Credit
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Party (including any opinions requested by Lenders as to any legal matters
arising hereunder) and of Borrower's and each Credit Party's performance of and
compliance with all agreements and conditions on its part to be performed or
complied with hereunder and the other Credit Documents including with respect to
confirming compliance with environmental, insurance and solvency requirements;
(c) the reasonable fees, expenses and disbursements of counsel to Sole Lead
Arranger in connection with the negotiation, preparation, execution and
administration of the Credit Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by any
Credit Party; (d) all the reasonable out-of-pocket expenses of creating and
perfecting Liens in favor of Administrative Agent for the benefit of Lenders
pursuant hereto, including filing and recording fees, expenses and taxes, stamp
or documentary taxes, search fees, title insurance premiums and reasonable fees,
expenses and disbursements of counsel to each Agent and of counsel providing any
opinions that any Agent or Requisite Lenders may request in respect of the
Collateral or the Liens created pursuant to the Collateral Documents; (e) all
the reasonable out-of-pocket costs and fees, expenses and disbursements of any
auditors, accountants, consultants or appraisers; (f) all the reasonable out of
pocket costs and expenses (including the reasonable fees, expenses and
disbursements of any appraisers, consultants, advisors and agents employed or
retained by Administrative Agent and its counsel) in connection with the custody
or preservation of any of the Collateral; (g) all other reasonable out-of-pocket
costs and expenses incurred by each Agent in connection with the syndication of
the Loans and Commitments and the negotiation, preparation and execution of the
Credit Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby; and (h) after the occurrence
of a Default or an Event of Default, all costs and expenses, including
reasonable attorneys' fees and costs of settlement, incurred by any Agent and
Lenders in enforcing any Obligations of or in collecting any payments due from
any Credit Party hereunder or under the other Credit Documents by reason of such
Default or Event of Default (including in connection with the sale of,
collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranty) or in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the nature of a
"work-out" or pursuant to any insolvency or bankruptcy cases or proceedings.
10.3. Indemnity. In addition to the payment of expenses pursuant to
Section 10.2, whether or not the transactions contemplated hereby shall be
consummated, each Credit Party agrees to defend (subject to Indemnitees'
selection of counsel), indemnify, pay and hold harmless, each Agent and Lender
and the officers, partners, directors, trustees, employees, agents and
Affiliates of each Agent and each Lender (each, an "INDEMNITEE"), from and
against any and all Indemnified Liabilities; provided that no Credit Party shall
have any obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise from the gross
negligence or willful misconduct of that Indemnitee. To the extent that the
undertakings to defend, indemnify, pay and hold harmless set forth in this
Section 10.3 may be unenforceable in whole or in part because they are violative
of any law or public policy, the applicable Credit Party shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law to
the payment and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them.
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10.4. Set-Off. 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 Event of Default each Lender is
hereby authorized by each Credit Party at any time or from time to time subject
to the consent of Administrative Agent (such consent not to be unreasonably
withheld or delayed), without notice to any Credit Party or to any other Person
(other than Administrative Agent), any such notice being hereby expressly
waived, to set off and to appropriate and to apply any and all deposits (general
or special, including Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time held or owing by such Lender to or for the credit or
the account of any Credit Party against and on account of the obligations and
liabilities of any Credit Party to such Lender hereunder and the other Credit
Documents, including all claims of any nature or description arising out of or
connected herewith, or any other Credit Document, irrespective of whether or not
(a) such Lender shall have made any demand hereunder or (b) the principal of or
the interest on the Loans or any other amounts due hereunder shall have become
due and payable pursuant to Section 2 and although said obligations and
liabilities, or any of them, may be contingent or unmatured. Each Credit Party
hereby further grants to Administrative Agent and each Lender a security
interest in all Deposit Accounts maintained with Administrative Agent or such
Lender as security for the Obligations.
10.5. Amendments and Waivers; Requisite Lenders' Consent. (a) Subject
to Sections 10.5(b) and 10.5(c), no amendment, modification, termination or
waiver of any provision of the Credit Documents, or consent to any departure by
any Credit Party therefrom, shall in any event be effective without the written
concurrence of the Requisite Lenders.
(1) AFFECTED LENDERS' CONSENT. Without the written consent of each
Lender that would be affected thereby (other than a Defaulting Lender), no
amendment, modification, termination, or consent shall be effective if the
effect thereof would:
(1) extend the scheduled final maturity of any Loan or Note;
(2) waive, reduce or postpone any scheduled repayment (but not
prepayment) or the Delayed Draw Term Loan Commitment Termination Date;
(3) reduce the rate of interest on any Loan (other than any
waiver of any increase in the interest rate applicable to any Loan
pursuant to Section 2.7) or any fee payable hereunder;
(4) extend the time for payment of any such interest or fees;
(5) reduce the principal amount of any Loan;
(6) amend, modify, terminate or waive any provision of this
Section 10.5(b), Section 10.5(c) or Section 10.6(a);
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(7) amend the definition of "REQUISITE LENDERS" or "PRO RATA
SHARE"; provided that with the consent of Requisite Lenders (except
that such consent shall not be required in the case of Indebtedness
incurred or commitments made under Section 2.1(a)(iii) of this
Agreement), additional extensions of credit pursuant hereto may be
included in the determination of "REQUISITE LENDERS" or "PRO RATA
SHARE" on substantially the same basis as the Revolving Loan
Commitments, the Revolving Loans, the Delayed Draw Term Loan
Commitments, the Delayed Draw Term Loans, the New Term Loan Commitments
and the New Term Loans are included on the Closing Date;
(8) release or otherwise subordinate all or substantially all of
the Collateral or all or substantially all of the Guarantors from the
Guaranty except as expressly provided in the Credit Documents; or
(9) consent to the assignment or transfer by any Credit Party of
any of its rights and obligations under any Credit Document.
(2) OTHER CONSENTS. No amendment, modification, termination or waiver
of any provision of the Credit Documents, or consent to any departure by any
Credit Party therefrom, shall:
(1) increase any Commitment of any Lender over the amount thereof
then in effect without the consent of such Lender; provided that no
amendment, modification or waiver of any condition precedent, covenant,
Default or Event of Default shall constitute an increase in any
Commitment of any Lender;
(2) amend the definition of "REQUISITE CLASS LENDERS" without the
consent of Requisite Class Lenders of each Class; provided that with
the consent of the Requisite Lenders additional extensions of credit
pursuant hereto may be included in the determination of such "REQUISITE
CLASS LENDERS" on substantially the same basis as the Revolving Credit
Commitments, the Revolving Loans, the Delayed Draw Term Loan
Commitments and the Delayed Draw Term Loans the New Term Loan
Commitments and the New Term Loans are included on the Closing Date;
(3) alter the required application of any repayments or
prepayments as between Classes pursuant to Section 2.12 without the
consent of Requisite Class Lenders of each Class which is being
allocated a lesser repayment or prepayment as a result thereof;
provided that Requisite Lenders may waive, in whole or in part, any
prepayment so long as the application, as between Classes, of any
portion of such prepayment which is still required to be made is not
altered; or
(4) amend, modify, terminate or waive any provision of Section 9
or Section 10 as the same applies to any Agent, or any other provision
hereof (including, without limitation Section 2.1) as the same applies
to the rights or obligations of any Agent, in each case without the
consent of such Agent.
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(3) EXECUTION OF AMENDMENTS, ETC. Administrative Agent may, but shall
have no obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender. 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 any Credit Party in
any case shall entitle any Credit Party to any other or further notice or demand
in similar or other circumstances. Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 10.5 shall be binding
upon each Lender at the time outstanding, each future Lender and, if signed by a
Credit Party, on such Credit Party.
10.6. Successors and Assigns; Participations. (a) 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 successors and
assigns of Lenders. No Credit Party's rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the
prior written consent of all Lenders.
(1) Borrower, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof, and
no assignment or transfer of any such Commitment or Loan shall be effective, in
each case, unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been delivered to and accepted by Administrative
Agent and recorded in the Register. Prior to such recordation, all amounts owed
with respect to the applicable Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be conclusive
and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(2) Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement,
including, without limitation, all or a portion of its Commitment or Loans owing
to it, Note or Notes held by it, or other Obligation (provided that each such
assignment shall be of a uniform, and not varying, percentage of all rights and
obligations under and in respect of any Loan and its related Commitments):
(1) to any Person meeting the criteria of clause (i) of the
definition of the term of "ELIGIBLE ASSIGNEE" upon the giving of notice
to Borrower and Administrative Agent; and
(2) to any Person meeting the criteria of clause (ii) of the
definition of the term of "Eligible Assignee" and, in the case of
assignments of Commitments and Loans to any such Person (except in the
case of assignments made by or to GSCP) consented to by each of
Borrower and Administrative Agent (such consent not to be unreasonably
withheld or delayed or, in the case of Borrower, required at any time
an Event of Default shall have occurred and then be continuing);
provided that each such assignment pursuant to this Section 10.6(c)(ii)
shall be in an aggregate amount of not less than (A) $5,000,000 (or
such
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lesser amount as may be agreed to by Borrower and Administrative Agent
or as shall constitute the aggregate amount of the Revolving Loan
Commitments, Revolving Loans and/or the aggregate amount of the Delayed
Draw Term Loan Commitments, Delayed Draw Term Loans and other
Obligations of the assigning Lender) with respect to the assignment of
the Revolving Loan Commitments and Revolving Loans and/or the Delayed
Draw Term Loan Commitments and Delayed Draw Term Loans and (B)
$1,000,000 (or such lesser amount as may be agreed to by Borrower and
the Administrative Agent or as shall constitute the aggregate amount of
New Term Loans of the assigning Lender with respect to the assignment
of New Term Loans) with respect to the assignment of New Term Loans
and/or New Term Loan Commitments; provided further that after giving
effect to such assignment, the assigning Lender shall have Commitments
and Loans aggregating at least $2,000,000 (unless such assigning Lender
is assigning all of its Commitments and Loans), in each case unless
otherwise agreed to the Borrower and the Administrative Agent.
(3) The assigning Lender and the assignee thereof shall execute and
deliver to Administrative Agent an Assignment Agreement, together with (i)
unless otherwise agreed to by Administrative Agent a processing and recordation
fee of $750 in the case of assignments pursuant to Section 10.6(c)(i) and $3,500
in the case of all other assignments), and (ii) such forms, certificates or
other evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may be
required to deliver to Administrative Agent pursuant to Section 2.18(c).
(4) Upon its receipt of a duly executed and completed Assignment
Agreement, together with the processing and recordation fee referred to in
Section 10.6(d) (and any forms, certificates or other evidence required by this
Agreement in connection therewith), Administrative Agent shall record the
information contained in such Assignment Agreement in the Register, shall give
prompt notice thereof to Borrower and shall maintain a copy of such Assignment
Agreement.
(5) Each Lender, upon execution and delivery hereof or upon executing
and delivering an Assignment Agreement, as the case may be, represents and
warrants as of the Closing Date or as of the applicable Effective Date (as
defined in the applicable Assignment Agreement) that it is an Eligible Assignee;
it has experience and expertise in the making of or investing in commitments or
loans such as the Revolving Loan Commitments or Loans, as the case may be; and
it will make or invest in, as the case may be, its Revolving Loan Commitments or
Loans for its own account in the ordinary course of its business and without a
view to distribution of such Revolving Loan Commitments or Loans within the
meaning of the Securities Act or the Exchange Act or other federal securities
laws (it being understood that, subject to the provisions of this Section 10.6,
the disposition of such Revolving Loan Commitments or Loans or any interests
therein shall at all times remain within its exclusive control).
(6) Subject to the terms and conditions of this Section 10.6, as of the
"Effective Date" specified in the applicable Assignment Agreement: the assignee
thereunder shall have the rights and obligations of a "Lender" hereunder to the
extent such rights and obligations hereunder have been
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assigned to it pursuant to such Assignment Agreement and shall thereafter be a
party hereto and a "Lender" for all purposes hereof; the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have been
assigned thereby pursuant to such Assignment Agreement, relinquish its rights
(other than any rights which survive the termination hereof under Section 10.8)
and be released from its obligations hereunder (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender's rights and obligations hereunder, such Lender shall cease to be a party
hereto; provided that anything contained in any of the Credit Documents to the
contrary notwithstanding, such assigning Lender shall continue to be entitled to
the benefit of all indemnities hereunder as specified herein with respect to
matters arising out of the prior involvement of such assigning Lender as a
Lender hereunder); the Revolving Loan Commitments shall be modified to reflect
the Revolving Loan Commitment of such assignee and any remaining Revolving Loan
Commitment of such assigning Lender, if any; and if any such assignment occurs
after the issuance of any Note hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as practicable,
surrender its applicable Notes to Administrative Agent for cancellation, and
thereupon Borrower shall issue and deliver new Notes, if so requested by the
assignee and/or assigning Lender, to such assignee and/or to such assigning
Lender, with appropriate insertions, to reflect the new Revolving Loan
Commitments, new Delayed Draw Term Loan Commitments and/or outstanding Loans of
the assignee and/or the assigning Lender.
(7) Each Lender shall have the right at any time to sell one or more
participations to any Person (other than Company, any of its Subsidiaries or any
of its Affiliates) in all or any part of its Revolving Loan Commitments, Loans
or in any other Obligation. The holder of any such participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except with
respect to any amendment, modification or waiver that would (i) extend the final
scheduled maturity of any Loan or Note in which such participant is
participating, or reduce the rate or extend the time of payment of interest or
fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Commitment shall not
constitute a change in the terms of such participation, and that an increase in
any Commitment or Loan shall be permitted without the consent of any participant
if the participant's participation is not increased as a result thereof), (ii)
consent to the assignment or transfer by any Credit Party of any of its rights
and obligations under this Agreement or (iii) release all or substantially all
of the Collateral under the Collateral Documents (except as expressly provided
in the Credit Documents) supporting the Loans hereunder in which such
participant is participating. All amounts payable by any Credit Party hereunder,
including amounts payable to such Lender pursuant to Sections 2.16(c), 2.17 or
2.18, shall be determined as if such Lender had not sold such participation.
Each Credit Party and each Lender hereby acknowledge and agree that, solely for
purposes of Sections 2.15 and 10.4, any participation will give rise to a direct
obligation of each Credit Party to the participant and the participant shall be
considered to be a "Lender".
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(8) In addition to any other assignment permitted pursuant to this
Section 10.6, (i) any Lender may assign and pledge all or any portion of its
Loans, the other Obligations owed to such Lender, and its Notes, if any, to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to any Federal Reserve Bank, and this Section 10.6 shall not apply
to any such pledge or assignment of a security interest; provided, (x) no
Lender, as between Borrower and such Lender, shall be relieved of any of its
obligations hereunder as a result of any such assignment and pledge and (y) in
no event shall the applicable pledgee or assignee be considered to be a "Lender"
or be entitled to require the assigning Lender to take or omit to take any
action hereunder and (z) any transfer of the rights and obligations of a
"Lender" hereunder to any Person upon the foreclosure of any pledge or security
interest referred to in this clause (i) may only be made pursuant to the
provisions of Sections 10.6(c) through (e) governing assignments of interests in
the Loans.
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 any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
10.8. Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements made herein shall survive the
execution and delivery hereof and the making of any Loan. Notwithstanding
anything herein or implied by law to the contrary, the agreements of each Credit
Party set forth in Sections 2.16(c), 2.17, 2.18, 7.2, 10.2, 10.3 and 10.4 and
the agreements of Lenders set forth in Sections 2.15 and 9.6 shall survive the
payment of the Loans.
10.9. No Waiver; Remedies Cumulative. No failure or delay on the part
of Administrative Agent or any Lender in the exercise of any power, right or
privilege hereunder or under any other Credit Document 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 power,
right or privilege. The rights, powers and remedies given to each Agent and each
Lender hereby are cumulative and shall be in addition to and independent of all
rights, powers and remedies existing by virtue of any statute or rule of law or
in any of the other Credit Documents or any Hedge Agreement. Any forbearance or
failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be
a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.
10.10. Marshalling; Payments Set Aside. Neither Administrative Agent
nor any Lender shall be under any obligation to marshal any assets in favor of
any Credit Party or any other Person or against or in payment of any or all of
the Obligations. To the extent that any Credit Party makes a payment or payments
to Administrative Agent or Lenders (or to Administrative Agent on behalf of
Lenders), or Administrative Agent or Lenders enforce any security interests or
exercise their rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part
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thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, any other state or federal law, common law or any
equitable cause, then, to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such enforcement or
setoff had not occurred.
10.11. Severability. In case any provision in or obligation hereunder
or any Note 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.
10.12. Entire Agreement. This Agreement (together with the Exhibits
hereto, the schedules hereto and the other agreements, documents and instruments
delivered in connection herewith) and the Credit Documents constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof and supersede all other prior agreements and understandings, both
written and verbal, among the parties or any of them with respect to the subject
matter hereof.
10.13. Obligations Several; Independent Nature of Lenders' Rights. The
obligations of Lenders hereunder are several and no Lender shall be responsible
for the obligations or Commitments of any other Lender hereunder. Nothing
contained herein or in any other Credit Document, and no action taken by Lenders
pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights hereunder and it shall not be necessary for any other Lender to be joined
as an additional party in any proceeding for such purpose.
10.14. Headings. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
10.15. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF.
10.16. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT
DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN
CONNECTION WITH ITS
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PROPERTIES, IRREVOCABLY ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS; WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS; AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE
WITH SECTION 10.1; AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN
ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT; AND AGREES SUCH LENDERS RETAIN THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
10.17. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES
TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND
ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT
EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH
PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION
10.17 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR
ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.18. Confidentiality. Each Lender shall hold all non-public
information obtained pursuant to the requirements hereof in accordance with such
Lender's customary procedures for handling confidential information of this
nature and in accordance with prudent lending or investing practices,
109
EXECUTION
116
it being understood and agreed by Company that in any event a Lender may make
disclosures to Affiliates of such Lender (and to other persons authorized by a
Lender or Agent to organize, present or disseminate such information in
connection with disclosures otherwise made in accordance with this Section
10.18) or disclosures reasonably required by any bona fide or potential
assignee, transferee or participant in connection with the contemplated
assignment, transfer or participation by such Lender of any Loans or any
participations therein or by any direct or indirect contractual counterparties
(or the professional advisors thereto) in Hedge Agreements (provided that such
counterparties and advisors are advised of and agree to be bound by the
provisions of this Section 10.18) or disclosures required or requested by any
governmental agency or representative thereof or by the NAIC or pursuant to
legal process; provided that unless prohibited by applicable law or court order,
each Lender shall make reasonable efforts to notify 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 or other routine
examination of such Lender by such governmental agency) for disclosure of any
such non-public information prior to disclosure of such information; and
provided further that in no event shall any Lender be obligated or required to
return any materials furnished by Company or any of its Subsidiaries.
10.19. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged with respect to any of the
Obligations, including all charges or fees in connection therewith deemed in the
nature of interest under applicable law shall not exceed the Highest Lawful
Rate. If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the
outstanding amount of the Loans made hereunder shall bear interest at the
Highest Lawful Rate until the total amount of interest due hereunder equals the
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in full the total interest
due hereunder (taking into account the increase provided for above) is less than
the total amount of interest which would have been due hereunder if the stated
rates of interest set forth in this Agreement had at all times been in effect,
then to the extent permitted by law, Borrower shall pay to Administrative Agent
an amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention of
Lenders and Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest Lawful Rate, then any such
excess shall be cancelled automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of the Loans made hereunder
or be refunded to Borrower.
110
EXECUTION
117
10.20. Counterparts; Effectiveness. This Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument. This Agreement shall become effective upon the
execution of a counterpart hereof by all Lenders, Agents, Company, Borrower and
each Guarantor and receipt by Borrower and Administrative Agent of written or
telephonic notification of such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank.]
111
EXECUTION
118
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: ALLEGIANCE TELECOM, INC.
By:
---------------------------------
Name:
Title:
BORROWER: ALLEGIANCE TELECOM COMPANY WORLDWIDE
By:
---------------------------------
Name:
Title:
GUARANTORS: ALLEGIANCE TELECOM SERVICE
CORPORATION,
as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM INTERNATIONAL,
INC.,
as a Guarantor
By:
---------------------------------
Name:
Title:
INTERNET ALLEGIANCE INC,
as a Guarantor
By:
---------------------------------
Name:
Title:
S-1
EXECUTION
000
XXXXXXXXXX XXXXXXX XX XXXXX, INC.,
as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF ILLINOIS, INC.,
as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF MICHIGAN, INC.,
as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF MARYLAND, INC.,
as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF THE DISTRICT
OF COLUMBIA, INC., as a Guarantor
By:
---------------------------------
Name:
Title:
S-2
EXECUTION
120
ALLEGIANCE TELECOM OF COLORADO,
INC., as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF FLORIDA, INC.,
as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF CALIFORNIA,
INC., as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF NEW YORK,
INC., as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF VIRGINIA,
INC., as a Guarantor
By:
---------------------------------
Name:
Title:
S-3
EXECUTION
121
ALLEGIANCE TELECOM OF MASSACHUSETTS,
INC., as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF ARIZONA, INC.,
as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF MISSOURI,
INC., as a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF OHIO, INC., as
a Guarantor
By:
---------------------------------
Name:
Title:
ALLEGIANCE TELECOM OF WASHINGTON,
INC., as a Guarantor
By:
---------------------------------
Name:
Title:
S-4
EXECUTION
122
KIVEX, INC., as a Guarantor
By:
---------------------------------
Name:
Title:
CONNECTNET, INC., as a Guarantor
By:
---------------------------------
Name:
Title:
S-5
EXECUTION
123
AGENTS XXXXXXX XXXXX CREDIT PARTNERS L.P.,
AND LENDERS: as Syndication Agent, Sole Lead
Arranger and a Lender
By:
---------------------------------
Authorized Signatory
S-6
EXECUTION
124
TORONTO DOMINION (TEXAS), INC., as
Administrative Agent and a Lender
By:
---------------------------------
Name:
Title:
S-7
EXECUTION
000
XXXX XXXXXX, X.X., as
Co-Documentation Agent and a Lender
By:
---------------------------------
Name:
Title:
S-8
EXECUTION
126
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Co-Documentation Agent and a
Lender
By:
---------------------------------
Name:
Title:
S-9
EXECUTION
000
XXX XXXX XX XXX XXXX, as Managing
Agent and a Lender
By:
---------------------------------
Name:
Title:
S-10
EXECUTION
128
PNC BANK, NATIONAL ASSOCIATION, as
Managing Agent and a Lender
By:
---------------------------------
Name:
Title:
S-11
EXECUTION
129
CREDIT LYONNAIS NEW YORK BRANCH, as
Managing Agent and a Lender
By:
---------------------------------
Name:
Title:
S-12
EXECUTION
130
FIRST UNION NATIONAL BANK, as
Managing Agent and a Lender
By:
---------------------------------
Name:
Title:
S-13
EXECUTION
131
GENERAL ELECTRIC CAPITAL
CORPORATION, as Managing Agent and a
Lender
By:
---------------------------------
Name:
Title:
S-14
EXECUTION
000
XXX XXXX XX XXXX XXXXXX, as Managing
Agent and a Lender
By:
---------------------------------
Name:
Title:
S-15
EXECUTION
000
XXXXXXXX XXXX XX, XXX XXXX AND GRAND
CAYMAN BRANCHES, as Managing Agent
and a Lender
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
S-16
EXECUTION
134
CITICORP USA, INC., as Managing
Agent and a Lender
By:
---------------------------------
Name:
Title:
S-17
EXECUTION
135
ABN AMRO BANK N.V., as Managing
Agent and a Lender
By:
---------------------------------
Name:
Title:
S-18
EXECUTION
000
XXXX XX XXXXXXX N.A., as Managing
Agent and a Lender
By:
---------------------------------
Name:
Title:
S-19
EXECUTION
137
FRANKLIN FLOATING RATE TRUST, as
Managing Agent and a Lender
By:
---------------------------------
Name:
Title:
S-20
EXECUTION
138
MEESPIERSON CAPITAL CORP., as
Managing Agent and a Lender
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
S-21
EXECUTION
139
DLJ, CAPITAL FUNDING INC., as
Managing Agent and a Lender
By:
---------------------------------
Name:
Title:
S-22
EXECUTION
140
BEAR XXXXXXX CORPORATE LENDING INC.,
as Managing Agent and a Lender
By:
---------------------------------
Name:
Title:
S-23
EXECUTION
141
UBS AG, STAMFORD BRANCH, as Managing
Agent and a Lender
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
S-24
EXECUTION
142
LENDERS: UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By:
---------------------------------
Name:
Title:
S-25
EXECUTION
143
XXXXXX FINANCIAL, INC.,
as a Lender
By:
---------------------------------
Name:
Title:
S-26
EXECUTION
000
XXXX XX XXXXXXXX,
as a Lender
By:
---------------------------------
Name:
Title:
S-27
EXECUTION
145
PARIBAS,
as a Lender
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
S-28
EXECUTION
146
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE INC.,
as a Lender
By:
---------------------------------
Name:
Title:
S-29
EXECUTION
147
IBM CREDIT CORPORATION,
as a Lender
By:
---------------------------------
Name:
Title:
S-30
EXECUTION
148
ING (US) CAPITAL LLC,
as a Lender
By:
---------------------------------
Name:
Title:
S-31
EXECUTION
149
APPENDIX A
TO CREDIT AND GUARANTY AGREEMENT
Pro
Lender Revolving Loan Pro Delayed Draw Term Rata
Commitment Rata Share Loan Commitment Share
Toronto Dominion (Texas) Inc. $16,800,000 3.36% $ 7,200,000 1.44%
Xxxxxxx Xxxxx Credit Partners L.P. $16,800,000 3.36% $ 7,200,000 1.44%
Xxxxxx Xxxxxxx Senior Funding, Inc. $16,800,000 3.36% $ 7,200,000 1.44%
BankBoston, N.A $16,800,000 3.36% $ 7,200,000 1.44%
ABN AMRO Bank N.V $14,000,000 2.80% $ 6,000,000 1.20%
Bank of America N.A $14,000,000 2.80% $ 6,000,000 1.20%
Bear Xxxxxxx Corporate Lending Inc. $14,000,000 2.80% $ 6,000,000 1.20%
The Bank of New York $14,000,000 2.80% $ 6,000,000 1.20%
The Bank of Nova Scotia $14,000,000 2.80% $ 6,000,000 1.20%
Citicorp USA, Inc. $14,000,000 2.80% $ 6,000,000 1.20%
Credit Lyonnais New York Branch $14,000,000 2.80% $ 6,000,000 1.20%
DLJ, Captial Funding Inc. $14,000,000 2.80% $ 6,000,000 1.20%
Dresdner Bank AG, New York and Grand Cayman Branches $14,000,000 2.80% $ 6,000,000 1.20%
First Union National Bank $14,000,000 2.80% $ 6,000,000 1.20%
Franklin Floating Rate Trust $14,000,000 2.80% $ 6,000,000 1.20%
General Electric Capital Corporation $14,000,000 2.80% $ 6,000,000 1.20%
ING (US) Capital LLC $14,000,000 2.80% $ 6,000,000 1.20%
MeesPierson Capital Corp. $14,000,000 2.80% $ 6,000,000 1.20%
PNC Bank, National Association $14,000,000 2.80% $ 6,000,000 1.20%
UBS AG, Stamford Branch $14,000,000 2.80% $ 6,000,000 1.20%
APPENDIX A-1
EXECUTION
150
Pro
Lender Revolving Loan Pro Delayed Draw Term Rata
Commitment Rata Share Loan Commitment Share
Bank Austria Creditanstalt Corporate
Finance Inc. $ 9,800,000 1.96% $ 4,200,000 0.84%
Bank of Montreal $ 9,800,000 1.96% $ 4,200,000 0.84%
Xxxxxx Financial, Inc. $ 9,800,000 1.96% $ 4,200,000 0.84%
IBM Credit Corporation $ 9,800,000 1.96% $ 4,200,000 0.84%
Paribas $ 9,800,000 1.96% $ 4,200,000 0.84%
Union Bank of California, N.A $ 9,800,000 1.96% $ 4,200,000 0.84%
Total $350,000,000 100% $150,000,000 100%
APPENDIX A-2
EXECUTION
000
XXXXXXXX X
TO CREDIT AND GUARANTY AGREEMENT
NOTICE ADDRESSES
ALLEGIANCE TELECOM, INC.
Allegiance Telecom, Inc.
0 Xxxxxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
For each of the following:
ALLEGIANCE TELECOM COMPANY WORLDWIDE
ALLEGIANCE TELECOM SERVICE CORPORATION
ALLEGIANCE TELECOM INTERNATIONAL, INC.
INTERNET ALLEGIANCE, INC.
ALLEGIANCE TELECOM OF ILLINOIS, INC.
ALLEGIANCE TELECOM OF MICHIGAN, INC.
ALLEGIANCE TELECOM OF MARYLAND, INC.
ALLEGIANCE TELECOM OF THE DISTRICT OF COLUMBIA, INC.
ALLEGIANCE TELECOM OF COLORADO, INC.
ALLEGIANCE TELECOM OF FLORIDA, INC..
ALLEGIANCE TELECOM OF CALIFORNIA, INC..
ALLEGIANCE TELECOM OF NEW YORK, INC.
ALLEGIANCE TELECOM OF TEXAS, INC.
ALLEGIANCE TELECOM OF VIRGINIA, INC.
ALLEGIANCE TELECOM OF MASSACHUSETTS, INC.
ALLEGIANCE TELECOM OF ARIZONA, INC.
ALLEGIANCE TELECOM OF MISSOURI, INC.
ALLEGIANCE TELECOM OF OHIO, INC.
ALLEGIANCE TELECOM OF WASHINGTON, INC.
KIVEX, INC.
CONNECTNET, INC.
c/o Allegiance Telecom, Inc.
0 Xxxxxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-1
EXECUTION
152
In each case, with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-2
EXECUTION
153
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as Syndication Agent
Xxxxxxx Xxxxx Credit Partners L.P.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy of all Notices to:
Xxxxxxx Sachs Credit Partners L.P.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX X-0
XXXXXXXXX
000
XXXXXXX XXXXXXXX (XXXXX), INC.,
as Administrative Agent
Administrative Agent's Principal Office:
Toronto Dominion Bank - Houston Agency
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Attention: Xxxxxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-4
EXECUTION
155
BANK BOSTON, N.A.
as Co-Documentation Agent
Co-Documentation Agent's Principal Office:
000 Xxxxxxx Xxxxxx
XX: XXXX-00-00
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxx, Loan Administrator
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
000 Xxxxxxx Xxxxxx
XX: XXXX-00-00
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-5
EXECUTION
156
XXXXXX XXXXXXX SENIOR FUNDING, INC.
as Co-Documentation Agent
Co-Documentation Agent's Principal Office:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Principal
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-6
EXECUTION
000
XXX XXXX XX XXX XXXX
as Managing Agent and a Lender
Lender's Principal Office:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-7
EXECUTION
000
XXX XXXX XX XXXX XXXXXX
as Managing Agent and a Lender
Lender's Principal Office:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-8
EXECUTION
000
XXXXXXXX XXXX XX, XXX XXXX AND CAYMAN ISLAND BRANCHES
as Managing Agent and a Lender
Lender's Principal Office:
Dresdner Bank AG, New York Branch
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-9
EXECUTION
160
CITICORP USA, INC.
as Managing Agent and a Lender
Lender's Principal Office:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-10
EXECUTION
161
CREDIT LYONNAIS, NEW YORK BRANCH
as Managing Agent and a Lender
Lender's Principal Office:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-11
EXECUTION
162
FIRST UNION NATIONAL BANK
as Managing Agenet and a Lender
Lender's Principal Office:
000 X. Xxxxxxx Xxxxxx
XX0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxx, Xx. Vice President
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
000 X. Xxxxxxx Xxxxxx
XX0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-12
EXECUTION
163
GENERAL ELECTRIC CAPTIAL CORPORATION
as Managing Agent and a Lender
Lender's Principal Office:
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-13
EXECUTION
164
XXXXXX FINANCIAL, INC.
as a Lender
Lender's Principal Office:
000 X. Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-14
EXECUTION
165
PNC BANK, NATIONAL ASSOCIATION
as Managing Agent and a Lender
Lender's Principal Office:
PNC Bank, N.A.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
PNC Bank, N.A.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-15
EXECUTION
000
XXXXX XXXX XX XXXXXXXXXX, N.A.
as a Lender
Lender's Principal Office:
000 Xx. Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-16
EXECUTION
167
ABN AMRO BANK N.V.
as Managing Agent and a Lender
Lender's Principal Office:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-00000
Attention: Loan Administration
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-17
EXECUTION
000
XXXX XX XXXXXXX, N.A.
as Managing Agent and a Lender
Lender's Principal Office:
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-18
EXECUTION
169
FRANKLIN FLOATING RATE TRUST
as Managing Agent and a Lender
Lender's Principal Office:
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-19
EXECUTION
170
MEESPIERSON CAPITAL CORP.
as Managing Agent and a Lender
Lender's Principal Office:
0 Xxxxxxxx Xxxxx
(000 Xxxxxxx Xxxxxxxxx)
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-20
EXECUTION
171
DLJ, CAPITAL FUNDING INC.
as Managing Agent and a Lender
Lender's Principal Office:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Albany
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-21
EXECUTION
172
BEAR XXXXXXX CORPORATE LENDING
as Managing Agent and a Lender
Lender's Principal Office:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-22
EXECUTION
173
UBS AG, STAMFORD BRANCH
as Managing Agent and a Lender
Lender's Principal Office:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
Warburg Dillon Read
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Wit Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-23
EXECUTION
000
XXXX XX XXXXXXXX
as a Lender
Lender's Principal Office:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 212-605-1621
In each case, with a copy to:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 212-605-1621
APPENDIX B-24
EXECUTION
175
PARIBAS
as a Lender
Lender's Principal Office:
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX X-00
XXXXXXXXX
000
XXXX XXXXXXX CREDITANSTALT CORPORATE FINANCE, INC.
as a Lender
Lender's Principal Office:
Two Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-26
EXECUTION
177
IBM CREDIT CORPORATION
as a Lender
Lender's Principal Office:
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Perkrul
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-27
EXECUTION
178
ING (US) CAPITAL LLC
as a Lender
Lender's Principal Office:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
In each case, with a copy to:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
APPENDIX B-28
EXECUTION
