Exhibit 99.2
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CREDIT AGREEMENT
dated as of
October 10, 1997
between
NEW RES, INC.
(to be renamed EXCEL Communications, Inc.)
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XXXXXX COMMERCIAL PAPER INC.,
as Arranger and Syndication Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
NATIONSBANK OF TEXAS, N.A.,
as Documentation Agents
and
FIRST UNION NATIONAL BANK,
as Administrative Agent
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$1,000,000,000
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience of reference only.
Page
Section 1. Definitions and Accounting Matters............................... 2
1.01 Certain Defined Terms......................................... 2
1.02 Accounting Terms and Determinations........................... 23
1.03 Types of Loans................................................ 24
Section 2. The Commitments, Loans, Notes and Prepayments.................... 24
2.01 Loans ...................................................... 24
2.02 Borrowings.................................................... 25
2.03 Letters of Credit............................................. 25
2.04 Changes of the Commitments.................................... 30
2.05 Commitment Fee................................................ 31
2.06 Lending Offices............................................... 31
2.07 Several Obligations; Remedies Independent..................... 31
2.08 Notes ...................................................... 31
2.09 Optional Prepayments and Conversions or
Continuations of Loans..................................... 32
2.10 Mandatory Prepayments and Reductions of Commitments........... 33
Section 3. Payments of Principal and Interest............................... 35
3.01 Repayment of Loans............................................ 35
3.02 Interest...................................................... 35
Section 4. Payments; Pro Rata Treatment; Computations; Etc.................. 36
4.01 Payments...................................................... 36
4.02 Pro Rata Treatment............................................ 37
4.03 Computations.................................................. 37
4.04 Minimum Amounts............................................... 38
4.05 Certain Notices............................................... 38
4.06 Non-Receipt of Funds by the Administrative Agent.............. 39
4.07 Sharing of Payments, Etc...................................... 40
Section 5. Yield Protection, Etc............................................ 42
5.01 Additional Costs.............................................. 42
5.02 Limitation on Types of Loans.................................. 44
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Page
5.03 Illegality.................................................... 44
5.04 Treatment of Affected Loans................................... 44
5.05 Compensation.................................................. 45
5.06 Additional Costs in Respect of Letters of Credit.............. 46
5.07 U.S. Taxes.................................................... 47
5.08 Replacement of Lenders........................................ 48
Section 6. Guarantee........................................................ 48
6.01 The Guarantee................................................. 48
6.02 Obligations Unconditional..................................... 49
6.03 Reinstatement................................................. 50
6.04 Subrogation................................................... 50
6.05 Remedies...................................................... 50
6.06 Instrument for the Payment of Money........................... 51
6.07 Continuing Guarantee.......................................... 51
6.08 Rights of Contribution........................................ 51
6.09 General Limitation on Guarantee Obligations................... 52
Section 7. Conditions....................................................... 52
7.01 Initial Extension of Credit................................... 52
7.02 Initial and Subsequent Extensions of Credit................... 55
Section 8. Representations and Warranties................................... 55
8.01 Organization; Powers.......................................... 55
8.02 Authorization; Enforceability................................. 55
8.03 Approvals..................................................... 56
8.04 No Breach..................................................... 56
8.05 Financial Condition; No Material Adverse Change............... 56
8.06 Properties.................................................... 58
8.07 Litigation.................................................... 58
8.08 Environmental Matters......................................... 58
8.09 Compliance with Laws and Agreements........................... 59
8.10 Investment Company Act........................................ 59
8.11 Public Utility Holding Company Act............................ 59
8.12 Taxes ...................................................... 60
8.13 ERISA ...................................................... 60
8.14 True and Complete Disclosure.................................. 60
8.15 Use of Credit................................................. 61
8.16 Material Agreements and Liens................................. 61
8.17 Capitalization................................................ 61
8.18 Subsidiaries, Etc............................................. 62
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Page
8.19 Merger Agreement.............................................. 62
Section 9. Covenants of the Company ........................................ 63
9.01 Financial Statements and Other Information.................... 63
9.02 Notices of Material Events.................................... 65
9.03 Existence, Etc................................................ 66
9.04 Insurance..................................................... 66
9.05 Prohibition of Fundamental Changes............................ 67
9.06 Liens ...................................................... 68
9.07 Indebtedness.................................................. 70
9.08 Investments................................................... 71
9.09 Restricted Payments........................................... 72
9.10 Certain Financial Covenants................................... 72
9.11 Capital Expenditures.......................................... 73
9.12 Subordinated Indebtedness; Qualified Senior Indebtedness...... 74
9.13 Lines of Business............................................. 74
9.14 Transactions with Affiliates.................................. 75
9.15 Restrictive Agreements........................................ 75
9.16 Use of Proceeds............................................... 76
9.17 Certain Obligations Respecting Restricted Subsidiaries........ 76
9.18 Modifications of Certain Documents............................ 77
Section 10. Events of Default............................................... 77
Section 11. The Administrative Agent........................................ 81
11.01 Appointment, Powers and Immunities........................... 81
11.02 Reliance by Administrative Agent............................. 82
11.03 Defaults..................................................... 83
11.04 Rights as a Lender........................................... 83
11.05 Indemnification.............................................. 83
11.06 Non-Reliance on Administrative Agent, Arranger and
Other Lenders............................................ 84
11.07 Failure to Act............................................... 84
11.08 Resignation or Removal of Administrative Agent............... 84
11.09 Consents under Pledge Agreement.............................. 85
11.10 Arranger and Syndication and Documentation Agents............ 86
Section 12. Miscellaneous................................................... 86
12.01 Notices...................................................... 86
12.02 Waiver ...................................................... 86
12.03 Amendments, Etc.............................................. 87
12.04 Expenses, Etc................................................ 88
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12.05 Successors and Assigns....................................... 89
12.06 Assignments and Participations............................... 89
12.07 Survival..................................................... 91
12.08 Counterparts................................................. 91
12.09 Governing Law; Submission to Jurisdiction.................... 92
12.10 WAIVER OF JURY TRIAL......................................... 92
12.11 Captions..................................................... 92
12.12 Confidentiality.............................................. 92
12.13 Interest Rates............................................... 93
12.14 Subordination................................................ 94
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Restrictive Agreements
SCHEDULE IV - Litigation
SCHEDULE V - Subsidiaries and Investments
SCHEDULE VI - Certain Matters Relating to Intellectual Property
SCHEDULE VII - Certain ERISA Matters
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EXHIBIT A - Form of Note
EXHIBIT B - Form of Guarantee Assumption Agreement
EXHIBIT C - Form of Pledge Agreement
EXHIBIT D-1 - Form of Opinion of Special New York Counsel to the
Obligors
EXHIBIT D-2 - Form of Opinion of General Counsel to Excel
EXHIBIT D-3 - Form of Opinion of Special Virginia Counsel to Telco
EXHIBIT E - Form of Opinion of Special New York Counsel to the
Arranger
EXHIBIT F - Form of Confidentiality Agreement
EXHIBIT G - Form of Notice of Borrowing
EXHIBIT H - Form of Notice of Account Designation
EXHIBIT I - Form of Notice of Prepayment
EXHIBIT J - Form of Notice of Conversion/Continuation
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CREDIT AGREEMENT dated as of October 10, 1997, between:
NEW RES, INC., a corporation duly organized and validly
existing under the laws of the State of Delaware (to be renamed EXCEL
Communications, Inc., upon consummation of the Merger Transactions
referred to herein, the "Company");
each of the Subsidiaries of the Company identified under the
caption "SUBSIDIARY GUARANTORS" on the signature pages hereto and each
Subsidiary of the Company that becomes a "Subsidiary Guarantor" after
the date hereof pursuant to Section 9.17(a) (individually, a
"Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors"
and, together with the Company, the "Obligors");
each of the lenders that is a signatory hereto identified
under the caption "LENDERS" on the signature pages hereto and each
lender that becomes a "Lender" after the date hereof pursuant to
Section 12.06(b) (individually, a "Lender" and, collectively, the
"Lenders");
XXXXXX COMMERCIAL PAPER INC., as Arranger (the "Arranger") and
Syndication Agent;
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
and NATIONSBANK OF TEXAS, N.A., as Documentation Agents; and
FIRST UNION NATIONAL BANK, as Administrative Agent for the
Lenders (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
Pursuant to an Agreement and Plan of Merger dated as of June
5, 1997 by and among EXCEL Communications, Inc., New RES, Inc., T-Sub, Inc.,
E-Sub, Inc. and Telco Communications Group, Inc. the parties thereto have agreed
to effect the Merger Transactions (as hereinafter defined) providing, inter
alia, for the merger of E-Sub, Inc. with and into EXCEL Communications, Inc. and
for the merger of T-Sub, Inc. with and into Telco Communications Group, Inc.,
following which mergers the surviving corporations will be wholly owned
subsidiaries of the Company. In that connection the Company has requested that
the Lenders extend credit to it, under the guarantee of the Subsidiary
Guarantors, in an aggregate principal or face amount not exceeding
$1,000,000,000 to finance the Merger Transactions, to pay for fees and expenses
relating thereto, to finance the operations of the
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Obligors, for general corporate purposes of the Obligors, to enable certain
acquisitions and capital expenditures by the Obligors, and for other purposes.
Accordingly, the parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
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1.01 Certain Defined Terms. As used herein, the following
terms shall have the following meanings (all terms defined in this Section 1.01
or in other provisions of this Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"Account" means any account (as that term is defined in
Section 9-106 of the Uniform Commercial Code as in effect from time to time in
the State of New York) of the Company or any of its Restricted Subsidiaries
arising from the sale or lease of goods or rendering of services.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means any Person that directly or indirectly
controls, or is under common control with, or is controlled by, the Company. As
used in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") means possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise), provided that, in any event, any Person
that owns directly or indirectly securities having 10% or more of the voting
power for the election of directors or other governing body of a corporation or
10% or more of the partnership or other ownership interests of any other Person
(other than as a limited partner of such other Person) will be deemed to control
such corporation or other Person. Notwithstanding the foregoing, (a) no
individual shall be an Affiliate solely by reason of his or her being a
director, officer or employee of the Company or any of its Subsidiaries and (b)
none of the Wholly Owned Restricted Subsidiaries of the Company shall be
Affiliates.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Company as the office by which its Loans of such Type are to be
made and maintained.
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"Applicable Margin" means, with respect to Loans of any Type
during any Interest Accrual Period (as defined below), the rate indicated below
for Loans of such Type opposite the applicable range of Debt Ratio for such
Interest Accrual Period:
Applicable Margin (% p.a.)
Range of
Debt Ratio Base Rate Loans Eurodollar Loans
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Greater than or equal
to 3.50 to 1.00 0.50% 1.750%
Greater than or equal
to 3.00 to 1.00 but less
than 3.50 to 1.00 0.00% 1.250%
Greater than or equal
to 2.50 to 1.00 but less
than 3.00 to 1.00 0.00% 1.125%
Greater than or equal
to 2.00 to 1.00 but less
than 2.50 to 1.00 0.00% 1.000%
Greater than or equal
to 1.50 to 1.00 but less
than 2.00 to 1.00 0.00% .750%
Less than 1.50 to 1.00 0.00% .625%
For purposes hereof, an "Interest Accrual Period" shall mean each of the
following successive periods, as applicable: (i) the period commencing on the
Closing Date to and including the first Business Day after the Certificate Date
(as defined below) for the financial statements with respect to the fiscal
quarter ending December 31, 1997, and (ii) thereafter, each successive period
(if any) commencing on the day immediately following the last day of the
preceding Interest Accrual Period through and including the first Business Day
after the next following Certificate Date.
The Applicable Margin for the initial Interest Accrual Period
shall be 0.00% for Base Rate Loans and 1.000% for Eurodollar Loans and the
Applicable Margin for any subsequent Interest Accrual Period shall be determined
on the basis of the calculation of the
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Debt Ratio set forth in the certificate of a Financial Officer of the Company
delivered pursuant to Section 9.01(c) setting forth a calculation of the Debt
Ratio as at the last day of each quarterly fiscal period ending on or after
December 31, 1997 (the date upon which any such certificate is delivered being
herein called a "Certificate Date"), provided that, notwithstanding the
foregoing, the Applicable Margin shall be the highest rates provided for in the
above schedule for any period during which the Company shall be in default of
its obligation to deliver such certificate and financial statements for any
fiscal quarter by the times specified in Section 9.01 (but upon the cure or
waiver of any such Event of Default or default this proviso shall no longer be
applicable until another such Event of Default or default shall occur).
"Bankruptcy Code" means the Federal Bankruptcy Code of 1978,
as amended from time to time.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (a) the Prime Rate for such day and (b) the Federal Funds Rate for
such day plus 1/2 of 1%. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"Base Rate Loans" means Loans that bear interest at rates
based upon the Base Rate.
"Basle Accord" means the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"Business Day" means any day (a) on which commercial banks are
not authorized or required to close in New York City or Charlotte, North
Carolina and (b) if such day relates to a borrowing of, a payment or prepayment
of principal of or interest on, a Conversion of or into, or an Interest Period
for, a Eurodollar Loan or a notice by the Company with respect to any such
borrowing, payment, prepayment, Conversion or Interest Period, that is also a
day on which dealings in Dollar deposits are carried out in the London interbank
market.
"Capital Expenditures" means, for any period, expenditures
(including, without limitation, the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Company or any of its
Restricted Subsidiaries to acquire or construct fixed assets, plant and
equipment (including renewals, improvements and replacements, but
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excluding repairs and excluding all acquisitions including, without limitation,
Telco's acquisition on April 15, 1997 of the voice network assets of Advantis)
during such period computed in accordance with GAAP.
"Capital Lease Obligations" means, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Closing Date" means the date upon which the initial extension
of credit hereunder is made.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, as to each Lender, the obligation of such
Lender to make Loans, and to issue or participate in Letters of Credit pursuant
to Section 2.03, in an aggregate principal or face amount at any one time
outstanding up to but not exceeding the amount set opposite the name of such
Lender on Schedule I or, in the case of a Person that becomes a Lender pursuant
to an assignment permitted under Section 12.06(b), as specified in the
respective instrument of assignment pursuant to which such assignment is
effected (as the same may be reduced permanently at any time or from time to
time pursuant to Section 2.04 or 2.10).
"Commitment Percentage" means, with respect to any Lender, the
ratio of (a) the amount of the Commitment of such Lender to (b) the aggregate
amount of the Commitments of all of the Lenders.
"Commitment Reduction Dates" means each Quarterly Date falling
on or nearest to September 30, 2000 and September 30, 2001 and the Commitment
Termination Date.
"Commitment Termination Date" means the Quarterly Date falling
on or nearest to September 30, 2002.
"Continue", "Continuation" and "Continued" refer to the
continuation pursuant to Section 2.09 of a Eurodollar Loan from one Interest
Period to the next Interest Period for such Loan.
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"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract, or
otherwise and "Controlled by" shall have a correlative meaning; provided that a
Person shall not be deemed to lack or to have failed to maintain Control of
another Person by reason of the existence of rights of approval or veto rights
held by any third party, including, without limitation, any stockholder,
director, partner, lender or landlord.
"Convert", "Conversion" and "Converted" refer to a conversion
pursuant to Section 2.09 of one Type of Loans into another Type of Loans, which
may be accompanied by the transfer by a Lender (at its sole discretion) of a
Loan from one Applicable Lending Office to another.
"Debt Issuance" means any issuance or sale by the Company or
any of its Restricted Subsidiaries after the Closing Date of any debt
securities, excluding, however, any Indebtedness incurred as permitted by clause
(d), (e), (f) or (g) of Section 9.07.
"Debt Ratio" means, as at any date of determination thereof,
the ratio of (a) all Indebtedness of the Company and its Restricted Subsidiaries
(determined on a consolidated basis, without duplication, in accordance with
GAAP) as at such date, including, without limitation, all Indebtedness
outstanding on such date arising in connection with the sale or financing of
Accounts on a recourse basis by the Company or any of its Restricted
Subsidiaries to (b) EBITDA for the period of four fiscal quarters ending on or
most recently ended prior to such date (or, for any such period ending on or
before September 30, 1998, for such shorter period as is specified in the
definition of "EBITDA" in this Section 1.01, and adjusted as provided in said
definition).
"Debt Service" means, for any period, the sum, for the Company
and its Restricted Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all regularly
scheduled payments or regularly scheduled prepayments of principal of
Indebtedness (including, without limitation, the principal component of any
payments in respect of Capital Lease Obligations) made during such period plus
(b) all Interest Expense for such period.
"Default" means an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"Disposition" means any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Company or any of its Restricted Subsidiaries to any other Person excluding (i)
any disposition of Accounts pursuant to any
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Permitted Receivables Transaction or (ii) any sale, assignment, transfer or
other disposition of (a) a Permitted Investment, (b) any Property sold or
disposed of in the ordinary course of business and on ordinary business terms or
(c) any Property yielding Net Available Proceeds of less than $1,000,000
individually.
"Dollars" and "$" means lawful money of the United States of
America.
"Domestic Subsidiary" means any Subsidiary of the Company
organized under the United States of America or a State thereof.
"E-Sub" means E-Sub, Inc., a Delaware corporation and a Wholly
Owned Subsidiary of the Company.
"EBITDA" means, for any period, the sum, for the Company and
its Restricted Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) net operating income
(calculated before taxes, Interest Expense, extraordinary and unusual items and
income or loss attributable to equity in Affiliates) for such period plus (b)
depreciation and amortization (to the extent deducted in determining net
operating income) for such period plus (c) the portion of management services
fees paid to the Company and its Restricted Subsidiaries by independent
representatives that is deferred during such period, net of any such fees
previously deferred that are amortized during such period, provided that,
notwithstanding the foregoing, if during any period for which EBITDA is being
determined the Company or any of its Restricted Subsidiaries shall have
consummated any acquisition or Disposition then, for all purposes of this
Agreement (other than for purposes of the definition of Excess Cash Flow),
EBITDA shall be determined on a pro forma basis as if such acquisition or
Disposition had been made or consummated on the first day of such period.
Except as otherwise provided in Section 7.01(i), whenever in
this Agreement EBITDA is to be calculated for any period of four fiscal quarters
ending on or before September 30, 1998, EBITDA shall be determined as follows:
(i) for any period ending December 31, 1997, EBITDA
shall be determined for the fiscal quarter ending on said date in the
manner specified in the next paragraph and shall be adjusted by
multiplying the amount of such EBITDA by four;
(ii) for any period ending March 31, 1998, EBITDA shall
be determined for the period of two fiscal quarters ending on said date
in the manner specified in the
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next paragraph and shall be adjusted by multiplying the amount of such
EBITDA by two;
(iii) for any period ending June 30, 1998, EBITDA shall
be determined for the period of three fiscal quarters ending on said
date in the manner specified in the next paragraph and shall be
adjusted by multiplying the amount of such EBITDA by 4/3; and
(iv) for any period ending September 30, 1998, EBITDA
shall be determined for the period of four fiscal quarters ending on
said date in the manner specified in the next paragraph.
In determining EBITDA for any of the periods specified in the
foregoing clauses (i) through (iv), EBITDA for the fiscal quarter ending
December 31, 1997 shall be deemed to be equal to the sum of
(x) for the Company and its Restricted Subsidiaries
(determined on a consolidated basis without duplication in accordance
with GAAP, but without giving effect to any operations of Telco prior
to the Closing Date), the following: (1) net operating income
(calculated before taxes, Interest Expense, extraordinary and unusual
items and income or loss attributable to equity in Affiliates) for such
fiscal quarter plus (2) depreciation and amortization (to the extent
deducted in determining net operating income) for such fiscal quarter
plus (3) the portion of management services fees paid to the Company
and its Restricted Subsidiaries by independent representatives that is
deferred during such period, net of any such fees previously deferred
that are amortized during such period plus (4) Merger-Related Charges
plus
(y) for Telco and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP), the
following: (1) net operating income (calculated before taxes, Interest
Expense, extraordinary and unusual items and income or loss
attributable to equity in Affiliates) for the period commencing on
October 1, 1997 to but not including the Closing Date plus (2)
depreciation and amortization (to the extent deducted in determining
net operating income) for such period plus (3) Merger-Related Charges.
"Environmental Laws" means any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
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environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any corporation or trade or business
that is a member of any group of organizations (i) described in Section 414(b)
or (c) of the Code of which Excel, the Company or Telco is a member and (ii)
solely for purposes of potential liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the lien created under Section 302(f) of
ERISA and Section 412(n) of the Code, described in Section 414(m) or (o) of the
Code of which the Company is a member.
"ERISA Event" means any of the following events or conditions:
(a) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a Plan, as
to which the PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event (provided that a failure to meet the minimum
funding standard of Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on or before its due
date a required installment under Section 412(m) of the Code or Section
302(e) of ERISA, shall be a reportable event regardless of the issuance
of any waivers in accordance with Section 412(d) of the Code); and any
request for a waiver under Section 412(d) of the Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by the Company or
an ERISA Affiliate to terminate any Plan;
(c) the institution by the PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan, or the
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receipt by the Company or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by the PBGC with
respect to such Multiemployer Plan;
(d) the complete or partial withdrawal from a Multiemployer
Plan by the Company or any ERISA Affiliate that results in liability
under Section 4201 or 4204 of ERISA (including the obligation to
satisfy secondary liability as a result of a purchaser default) or the
receipt by the Company or any ERISA Affiliate of notice from a
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 of ERISA;
(e) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Company or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within
30 days; or
(f) the adoption of an amendment to any Plan that, pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA, would result in
the loss of tax-exempt status of the trust of which such Plan is a part
if the Company or an ERISA Affiliate fails to timely provide security
to the Plan in accordance with the provisions of such Sections.
"Eurodollar Base Rate" means, for any Interest Period for any
Eurodollar Loan, the LIBOR rate per annum appearing on Page 3750 of the Dow
Xxxxx Markets Service (or on any successor or substitute page of such Service,
or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Dollar deposits in the
London interbank market) at approximately 11:00 a.m. London time on the date two
Business Days prior to the first day of such Interest Period as the rate for
Dollar deposits having a term comparable to such Interest Period, provided that
if such rate does not appear on such page, or if such page shall cease to be
publicly available, or if the information contained on such page, in the
reasonable judgment of the Administrative Agent and the Majority Lenders, shall
cease accurately to reflect the rate offered by leading banks in the London
interbank market as reported by any publicly available source of similar market
data selected by the Administrative Agent and the Majority Lenders, the
Eurodollar Base Rate means, for any Interest Period, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) quoted by First Union at
approximately 11:00 a.m. London time (or as soon thereafter as practicable) two
Business Days prior to the first day of such Interest Period for the offering by
First Union to leading banks in the London interbank market of Dollar deposits
having a term comparable to such Interest Period and in the amount of the
Eurodollar Loan to be made
Credit Agreement
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by First Union for such Interest Period. If First Union is not participating in
any Eurodollar Loan during any Interest Period therefor at any time when the
proviso contained in the preceding sentence is applicable, the Eurodollar Base
Rate for such Interest Period shall be determined by reference to the amount of
such Loan that First Union would have made or had outstanding during such
Interest Period had it been participating in such Loan during such Interest
Period.
"Eurodollar Loans" means Loans that bear interest at rates
based on rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.01.
"Eurodollar Rate" means, for any Interest Period for any
Eurodollar Loan, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the
Eurodollar Base Rate for such Interest Period divided by 1 minus the Reserve
Requirement (if any) for such Interest Period.
"Event of Default" has the meaning assigned to such term in
Section 10.
"Excel" means EXCEL Communications, Inc., a Delaware
corporation into which E-Sub is to be merged pursuant to the Merger Agreement.
"Excess Cash Flow" means, for any fiscal year, the excess of
(a) EBITDA for such fiscal year over (b) the sum of (i) the aggregate amount of
Debt Service for such fiscal year plus (ii) Capital Expenditures made during
such fiscal year plus (iii) the aggregate amount paid, or required to be paid,
in cash in respect of income taxes for such fiscal year.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds 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 (a) if the day for which such rate is to
be determined 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 (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to First Union on such Business Day on such
transactions as determined by the Administrative Agent.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
"First Union" means First Union National Bank, a national
banking association.
Credit Agreement
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"FirstExcel" means a federal savings bank to be formed as a
Wholly Owned Subsidiary of the Company.
"Fixed Charges" means, for any period, the sum of (a) Debt
Service for such period plus (b) the aggregate amount of all Capital
Expenditures made during such period (except for any such Capital Expenditures
to the extent financed with the proceeds of Indebtedness, or Capital Lease
Obligations, incurred as permitted by Section 9.07(f) during such period, up to
a maximum aggregate amount of $50,000,000 during such period) plus (c) the
aggregate amount paid, or required to be paid, in cash in respect of income
taxes during such fiscal period.
"Fixed Charges Ratio" means, as at any date, the ratio of (a)
EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date (or, for any such period ending on or before
September 30, 1998, for such shorter period as is specified in the definition of
"EBITDA" in this Section 1.01, and adjusted as provided in said definition) to
(b) Fixed Charges for the period of four consecutive fiscal quarters ending on
or most recently ended prior to such date.
"Foreign Subsidiary" means any Subsidiary of the Company other
than a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a), are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"Guarantee" means a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as verbs have
the correlative meanings.
Credit Agreement
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"Guarantee Assumption Agreement" means a Guarantee Assumption
Agreement substantially in the form of Exhibit B by an entity that, pursuant to
Section 9.17(a), is required to become a "Subsidiary Guarantor" hereunder in
favor of the Administrative Agent.
"Hazardous Material" means, collectively, (a) any petroleum or
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls ("PCB's"), (b) any chemicals or other
materials or substances that are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import under any Environmental Law and (c) any other chemical or other
material or substance, exposure to which is now or hereafter prohibited, limited
or regulated under any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" means, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than (i)
trade credit and trade accounts payable (in each case other than for borrowed
money) arising, and accrued expenses incurred, in the ordinary course of
business so long as such trade credit and trade accounts payable are payable
within 180 days of the date the respective credit is incurred, respective goods
are delivered or the respective services are rendered or (ii) minimum purchase
commitments under resale agreements entered into in the ordinary course of
business; (c) Indebtedness of others secured by a Lien on the Property of such
Person, whether or not the respective indebtedness so secured has been assumed
by such Person; (d) obligations of such Person in respect of letters of credit
or similar instruments issued or accepted by banks and other financial
institutions for account of such Person; (e) Capital Lease Obligations of such
Person; and (f) Indebtedness of others Guaranteed by such Person.
"Interest Coverage Ratio" means, as at any date, the ratio of
(a) EBITDA for the period of four consecutive fiscal quarters ending on or most
recently ended prior to such date (or, for any such period ending on or before
September 30, 1998, for such shorter period as is specified in the definition of
"EBITDA" in this Section 1.01, and adjusted as provided in
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said definition) to (b) Interest Expense for the period of four consecutive
fiscal quarters ending on or most recently ended prior to such date.
"Interest Expense" means, for any period, the sum, for the
Company and its Restricted Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of the following: (a) all interest
in respect of Indebtedness (including, without limitation, the interest
component of any payments in respect of Capital Lease Obligations but excluding
any amortization of debt issuance costs) accrued or capitalized during such
period (whether or not actually paid during such period) plus (b) all interest,
whether shown as interest expense, other expense or discount, or as loss and
expense on the sale of receivables, in any such case incurred pursuant to any
Permitted Receivables Transaction during such period plus (c) the net amount
payable (or minus the net amount receivable) under Hedging Agreements relating
to interest during such period (whether or not actually paid or received during
such period).
Notwithstanding the foregoing, if, as at any date (a
"Calculation Date"), fewer than four complete consecutive fiscal quarters have
elapsed subsequent to the Closing Date, Interest Expense shall be calculated
only for the portion of such period commencing on the Closing Date and ending on
the Calculation Date, and then shall be annualized by multiplying the amount of
such Interest Expense by a fraction, the numerator of which is 365 and the
denominator of which is the number of days during the period commencing on the
date immediately following the Closing Date through and including the
Calculation Date.
"Interest Period" means, for any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made or Converted from a Loan of
another Type or (in the event of a Continuation) the last day of the next
preceding Interest Period for such Loan and (subject to the requirements of the
proviso set forth at the end of Section 2.01) ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Company may select as provided in Section 4.05, except that
each Interest Period that commences on the last Business Day of a calendar month
(or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the foregoing:
(i) if any Interest Period would otherwise end after
the Commitment Termination Date, such Interest Period shall end on the
Commitment Termination Date;
(ii) no Interest Period may commence before and end
after any Commitment Reduction Date unless, after giving effect to the
reduction of the
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Commitments required on such date, the aggregate principal amount of
the Loans having Interest Periods that end after such Commitment
Reduction Date shall be equal to or less than the aggregate amount of
the Commitments as so reduced on such Commitment Reduction Date;
(iii) each Interest Period that would otherwise end on a
day that is not a Business Day shall end on the next succeeding
Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day);
and
(iv) notwithstanding clauses (i) and (ii) above, no Interest
Period shall have a duration of less than one month and, if the
Interest Period for any Eurodollar Loan would otherwise be a shorter
period, such Loan shall not be available hereunder for such period.
"Investment" means, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of any
securities at a time when such securities are not owned by the Person entering
into such sale); (b) the making of any deposit with, or advance, loan or other
extension of credit to, any other Person (including the purchase of Property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person), but excluding (i) trade
credit extended in the ordinary course of business so long as such trade credit
is payable within 180 days of the date such credit is provided and (ii) any such
advance, loan or extension of credit having a term not exceeding 180 days
arising in connection with the sale of inventory or supplies by such Person in
the ordinary course of business; (c) the entering into of any Guarantee of, or
other contingent obligation with respect to, Indebtedness or other liability of
any other Person and (without duplication) any amount committed to be advanced,
lent or extended to such Person; or (d) the entering into of any Hedging
Agreement.
"Issuing Lender" means First Union, in its capacity as the
Lender that will issue Letters of Credit under Section 2.03, together with its
successors and assigns in such capacity.
"Letter of Credit" has the meaning assigned to such term in
Section 2.03.
"Letter of Credit Documents" means, with respect to any Letter
of Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit)
Credit Agreement
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governing or providing for (a) the rights and obligations of the parties
concerned or at risk with respect to such Letter of Credit or (b) any collateral
security for any of such obligations, each as the same may be modified and
supplemented and in effect from time to time.
"Letter of Credit Interest" means, for each Lender, such
Lender's participation interest (or, in the case of the Issuing Lender, the
Issuing Lender's retained interest) in the Issuing Lender's liability under
Letters of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" means, without duplication, at
any time and in respect of any Letter of Credit, the sum of (a) the undrawn face
amount of such Letter of Credit plus (b) the aggregate unpaid principal amount
of all Reimbursement Obligations of the Company at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Issuing Lender) shall be deemed to hold a
Letter of Credit Liability in an amount equal to its participation interest in
the related Letter of Credit under Section 2.03, and the Issuing Lender shall be
deemed to hold a Letter of Credit Liability in an amount equal to its retained
interest in the related Letter of Credit after giving effect to the acquisition
by the Lenders other than the Issuing Lender of their participation interests
under Section 2.03.
"Lien" means, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement and the other Loan Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease) relating to such Property.
"Loan Documents" means, collectively, this Agreement, the
Notes, the Pledge Agreement, each Guarantee Assumption Agreement and the Letter
of Credit Documents.
"Loans" means the loans provided for in Section 2.01, which
may be Base Rate Loans and/or Eurodollar Loans.
"Majority Lenders" means Lenders having at least 51% of the
aggregate amount of the Commitments or, if the Commitments shall have
terminated, Lenders holding at least 51% of the aggregate unpaid principal
amount of the Loans and Letter of Credit Liabilities.
Credit Agreement
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"Margin Stock" means "margin stock" within the meaning of
Regulations G, T, U and X.
"Material Adverse Effect" means a material adverse effect on
(a) the business, Property or financial condition of the Company and its
Restricted Subsidiaries taken as a whole, (b) the ability of any Obligor to
perform its obligations under any of the Loan Documents to which it is a party,
(c) the validity or enforceability of any of the Loan Documents, (d) the rights
and remedies of the Lenders and the Administrative Agent under any of the Loan
Documents or (e) the timely payment of the principal of or interest on the Loans
or the Reimbursement Obligations or other amounts payable in connection
therewith.
"Merger Agreement" means an Agreement and Plan of Merger dated
as of June 5, 1997 by and among EXCEL Communications, Inc., T-Sub, Inc., E-Sub,
Inc., Telco Communications Group, Inc. and the Company.
"Merger-Related Charges" means merger-related charges for the
fiscal quarter ending December 31, 1997 reasonably determined by (in the case of
clause (x) of the definition of EBITDA) the Company to relate to the Merger
Transactions or (in the case of clause (y) of the definition of EBITDA) Telco to
relate to the Merger Transactions except (in each case) for such charges, if
any, that have been objected to by the Majority Lenders within 30 days after the
delivery by the Company of the financial statements for the fiscal quarter
ending December 31, 1997, in a notice provided by the Administrative Agent to
the Company hereunder.
"Merger Transactions" means, collectively, the following
transactions contemplated by the Merger Agreement, each of which is to take
place either prior to or substantially simultaneously on the Closing Date:
(a) the merger of E-Sub with and into Excel under the
Delaware General Corporation Law, whereupon the separate corporate
existence of E-Sub shall cease and Excel shall continue as the
surviving corporation and a Wholly Owned Restricted Subsidiary of the
Company; and
(b) the merger of T-Sub with and into Telco under the
Virginia Stock Corporation Act, whereupon the separate corporate
existence of T-Sub shall cease and Telco shall continue as the
surviving corporation and a Wholly Owned Restricted Subsidiary of the
Company.
"Moody's" means Xxxxx'x Investors Service, Inc.
Credit Agreement
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"Multiemployer Plan" means a multiemployer plan defined as
such in Section 3(37) of ERISA to which contributions have been made by Excel,
the Company, Telco or any ERISA Affiliate and that is covered by Title IV of
ERISA.
"Net Available Proceeds" means (a) in the case of any
Disposition, the amount of Net Cash Payments received in connection with such
Disposition; and (b) in the case of any Debt Issuance, the aggregate amount of
all cash received by the Company and its Restricted Subsidiaries in respect of
such Debt Issuance net of underwriting discounts and commissions, and expenses
incurred by the Company and its Restricted Subsidiaries, in connection
therewith.
"Net Cash Payments" means, with respect to any Disposition,
the aggregate amount of all cash payments received by the Company and its
Restricted Subsidiaries directly or indirectly in connection with such
Disposition, whether at the time of such Disposition or after such Disposition
under deferred payment arrangements or Investments entered into or received in
connection with such Disposition; provided that
(a) Net Cash Payments shall be net of (i) the amount of any
legal, title and recording tax expenses, commissions and other fees and
expenses payable by the Company and its Restricted Subsidiaries in
connection with such Disposition and (ii) any Federal, state and local
income or other taxes estimated to be payable by the Company and its
Restricted Subsidiaries as a result of such Disposition, but only to
the extent that on the date of such Disposition the Company delivers a
certificate of a Financial Officer of the Company setting forth a
calculation of the amount of such estimated taxes; and
(b) Net Cash Payments shall be net of any repayments by the
Company or any of its Restricted Subsidiaries of Indebtedness to the
extent that (i) such Indebtedness is secured by a Lien on the Property
that is the subject of such Disposition and the transferee of (or
holder of a Lien on) such Property requires that such Indebtedness be
repaid as a condition to the purchase of such Property or (ii) such
Indebtedness requires that it be repaid as a condition to such
Disposition.
"Notes" means the promissory notes provided for in Section
2.08 and all promissory notes delivered in substitution or exchange therefor, in
each case as the same shall be modified and supplemented and in effect from time
to time.
"Notice of Account Designation" has the meaning assigned to
such term in Section 2.02.
Credit Agreement
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"Notice of Borrowing" has the meaning assigned to such term in
Section 2.02.
"Notice of Conversion/Continuation" has the meaning assigned
to such term in Section 2.09.
"Notice of Prepayment" has the meaning assigned to such term
in Section 2.09.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Investments" means: (a) direct obligations of the
United States of America, or of any agency thereof (including, without
limitation, Xxxxxx Xxx, Xxxxxx Xxx, Xxxxxxx Mac, the Federal Home Loan Savings
Bank, the Federal Farm Loan Savings Bank and other similar agencies), or
obligations guaranteed as to principal and interest by the United States of
America, or of any agency thereof, in either case maturing not more than 365
days from the date of acquisition thereof; (b) certificates of deposit and time
deposits issued (x) by any bank or trust company organized under the laws of the
United States of America or any state thereof and having capital, surplus and
undivided profits of at least $500,000,000, or that has one of the two highest
deposit ratings obtainable from S&P or Xxxxx'x, or (y) by any Lender, and (in
the case of each of the foregoing (x) and (y)) maturing not more than 365 days
from the date of acquisition thereof; (c) commercial paper rated A-1 or better
or P-1 by S&P or Xxxxx'x, respectively; (d) debt securities issued by U.S.
corporations that have one of the two highest ratings obtainable from S&P or
Xxxxx'x, maturing not more than 365 days from the acquisition thereof; and (e)
repurchase agreements relating to any of the investments permitted under clauses
(a) through (d) above; in the case of each of the Investments described in the
foregoing clauses (a) through (e), so long as the same (x) provide for the
payment of principal and interest (and not principal alone or interest alone)
and (y) are not subject to any contingency regarding the payment of principal or
interest.
"Permitted Investors" means Xxxxx X. Xxxxxx and his Permitted
Transferees.
"Permitted Receivables Transaction" means any transaction
providing for (i) the sale or financing (whether on a recourse or non-recourse)
basis of Accounts by the Company and its Restricted Subsidiaries arising in the
ordinary course of business, provided that the aggregate amount of such Accounts
sold or financed that on any date shall be outstanding shall not at any time
exceed $150,000,000 and such sale or financing transaction shall have been
effected pursuant to a transaction having terms and conditions reasonably
satisfactory to the Majority Lenders and (ii) the purchase of Accounts by the
Company and its Restricted Subsidiaries from customers in the ordinary course of
business, provided that the aggregate
Credit Agreement
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outstanding amount of such purchased Accounts shall not at any one time exceed
$25,000,000.
"Permitted Reinvestment Transaction" means any of (a) an
acquisition or Capital Expenditure permitted under Section 9.05(b), (b) a
reimbursement of the Company for monies expended by the Company within the
previous 180 days with respect to any such acquisition or Capital Expenditure or
(c) an Investment permitted under Section 9.08(h) or 9.08(i).
"Permitted Transferee" means, with respect to a Person, (a)
the sibling, spouse or child of such Person, (b) such Person's heirs, executors
or legal representatives, (c) the trustees of an inter vivos trust or
testamentary trust for the benefit of such Person or persons identified in
clause (a) of this definition, or (d) another Person Controlled by such Person
or by any Person identified in clauses (a) through (c) of this definition.
"Person" means any individual, corporation, company, voluntary
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" means an employee benefit or other plan established or
maintained by Excel, the Company, Telco or any ERISA Affiliate and that is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"Pledge Agreement" means a Pledge Agreement substantially in
the form of Exhibit C between the Company, the Subsidiary Guarantors party
thereto and the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"Post-Default Rate" means a rate per annum equal to 1% plus
the Base Rate as in effect from time to time plus the Applicable Margin for Base
Rate Loans and, with respect to principal of a Eurodollar Loan, the
"Post-Default Rate" shall be 1% plus the interest rate for such Loan as provided
in Section 3.02.
"Prime Rate" means the rate of interest from time to time
announced by First Union at its Principal Office as its prime commercial lending
rate, which rate is First Union's index rate and not necessarily the lowest or
best rate charged to customers or other banks.
"Principal Office" means the principal office of First Union,
located on the date hereof at One First Union Center, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000.
Credit Agreement
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"Property" means any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Qualified Senior Indebtedness" means Indebtedness (other than
Indebtedness permitted under clauses (a), (b), (d), (e), (f) or (g) of Section
9.07) (i) for which the Company is directly and primarily liable, (ii) in
respect of which none of its Subsidiaries is contingently or otherwise obligated
and (iii) that is incurred pursuant to documentation containing terms (including
interest, amortization, covenants and events of default), in form and substance
satisfactory to the Majority Lenders.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"Receivables Co." means any special purpose,
bankruptcy-remote, Wholly- Owned Subsidiary of the Company organized after the
date hereof (or such other Person designated by the Company) that purchases
Accounts generated by the Company or any of its Restricted Subsidiaries in
connection with a Permitted Receivables Transaction.
"Regulations A, D, G, T, U and X" means, respectively,
Regulations A, D, G, T, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be modified and supplemented and in
effect from time to time.
"Regulatory Change" means, with respect to any Lender, any
change after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"Reimbursement Obligations" means, at any time, the
obligations of the Company then outstanding, or that may thereafter arise in
respect of all Letters of Credit then outstanding, to reimburse amounts paid by
the Issuing Lender in respect of any drawings under a Letter of Credit.
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment, including, without limitation,
the movement of Hazardous Materials through ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata.
Credit Agreement
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"Reserve Requirement" means, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate for any
Interest Period for any Eurodollar Loans is to be determined as provided in the
definition of "Eurodollar Base Rate" in this Section 1.01 or (ii) any category
of extensions of credit or other assets that includes Eurodollar Loans.
"Restricted Payment" means dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Company or of any warrants, options or other rights to
acquire the same (or to make any payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of the Company or any of its Subsidiaries), but excluding
dividends payable solely in shares of common stock of the Company.
"Restricted Subsidiary" means any Subsidiary of the Company
that is not an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
"Specified Default" means, collectively, any Event of Default
under clause (a), (h) or (i) of Section 10.
"Subordinated Indebtedness" means Indebtedness (i) for which
the Company is directly and primarily liable, (ii) in respect of which none of
its Subsidiaries is contingently or otherwise obligated and (iii) that is
subordinated to the obligations of the Company to pay principal of and interest
on the Loans, Reimbursement Obligations, Notes and fees hereunder, and to pay
obligations owing by the Company to any one or more Lenders under Hedging
Agreements, on terms, and pursuant to documentation containing other terms
(including interest, amortization, covenants and events of default), in form and
substance satisfactory to the Majority Lenders.
Credit Agreement
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"Subsidiary" means, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person. Unless otherwise specified, "Subsidiary"
means a subsidiary of the Company.
"T-Sub" means T-Sub, Inc., a Virginia corporation and a Wholly
Owned Subsidiary of the Company.
"Telco" means Telco Communications Group, Inc., a Virginia
corporation.
"Type" has the meaning assigned to such term in Section 1.03.
"Unrestricted Subsidiary" means FirstExcel and Receivables Co.
"Wholly Owned Subsidiary" means, with respect to any Person,
any corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) are directly or indirectly owned or
controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person. A "Wholly Owned Restricted Subsidiary" means any Wholly Owned Subsidiary
that is also a Restricted Subsidiary.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in paragraph (b)
of this Section 1.02) be prepared, in accordance with generally accepted
accounting principles applied on a basis consistent with those used in the
preparation of the latest financial statements furnished to the Lenders
hereunder (which, prior to the delivery of the first financial statements under
Section 9.01, shall mean the audited financial statements as at December 31,
1996 referred to in Section 8.05). All calculations made for the purposes of
determining compliance with this Agreement shall (except as otherwise expressly
provided
Credit Agreement
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herein) be made by application of generally accepted accounting principles
applied on a basis consistent with those used in the preparation of the latest
annual or quarterly financial statements furnished to the Lenders pursuant to
Section 9.01 (or, prior to the delivery of the first financial statements under
Section 9.01, used in the preparation of the audited financial statements as at
December 31, 1996 referred to in Section 8.05) unless
(i) the Company shall have objected to determining such
compliance on such basis at the time of delivery of such financial
statements or
(ii) the Majority Lenders shall so object in writing
within 30 days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 9.01, shall
mean the audited financial statements referred to in Section 8.05).
(b) The Company shall deliver to the Lenders at the same time
as the delivery of any annual or quarterly financial statement under Section
9.01 (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) of this Section 1.02 and (ii) reasonable estimates of the
difference between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 9, the Company will not
change the last day of its fiscal year from December 31, or the last days of the
first three fiscal quarters in each of its fiscal years from March 31, June 30
and September 30, respectively.
1.03 Types of Loans. Loans hereunder are distinguished by
"Type". The "Type" of a Loan refers to whether such Loan is a Base Rate Loan or
a Eurodollar Loan, each of which constitutes a Type.
Section 2. The Commitments, Loans, Notes and Prepayments.
---------------------------------------------
2.01 Loans. Each Lender severally agrees, on the terms and
conditions of this Agreement, to make loans to the Company in Dollars during the
period from and including
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the Closing Date to but not including the Commitment Termination Date in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount of the Commitment of such Lender as in effect from time to time,
provided that in no event shall the aggregate principal amount of all Loans,
together with the aggregate amount of all Letter of Credit Liabilities, exceed
the aggregate amount of the Commitments as in effect from time to time. Subject
to the terms and conditions of this Agreement, during such period the Company
may borrow, repay and reborrow the amount of the Commitments by means of Base
Rate Loans and Eurodollar Loans and may Convert Loans of one Type into Loans of
another Type (as provided in Section 2.09) or Continue Loans of one Type as
Loans of the same Type (as provided in Section 2.09); provided that no more than
10 separate Interest Periods in respect of Eurodollar Loans from each Lender may
be outstanding at any one time.
2.02 Borrowings. The Company shall give the Administrative
Agent notice of each borrowing hereunder, which notice shall be in substantially
the form of Exhibit G (a "Notice of Borrowing"), as provided in Section 4.05.
Not later than 12:00 noon Charlotte, North Carolina time (except that for same
day Base Rate borrowings the time shall be no later than 2:00 p.m. Charlotte,
North Carolina time) on the date specified for each borrowing hereunder, each
Lender shall make available the amount of the Loan or Loans to be made by it on
such date to the Administrative Agent as specified by the Administrative Agent,
in immediately available funds, for account of the Company. The amount so
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Company by depositing the same, in
immediately available funds, in an account of the Company designated by the
Company from time to time in writing to the Administrative Agent by the Company
in a notice of account designation substantially in the form of Exhibit H (a
"Notice of Account Designation").
Anything herein to the contrary notwithstanding, the Loans
made on the Closing Date shall consist only of Base Rate Loans.
2.03 Letters of Credit. Subject to the terms and conditions of
this Agreement, the Commitments may be utilized, upon the request of the
Company, in addition to the Loans provided for by Section 2.01, by the issuance
by the Issuing Lender of standby (but not commercial) letters of credit
(collectively, "Letters of Credit") for account of the Company or any of its
Subsidiaries (as specified by the Company), provided that in no event shall (i)
the aggregate amount of all Letter of Credit Liabilities, together with the
aggregate principal amount of the Loans, exceed the aggregate amount of the
Commitments as in effect from time to time, (ii) the outstanding aggregate
amount of all Letter of Credit Liabilities exceed $50,000,000, (iii) the face
amount of any Letter of Credit be less than $250,000 and (iv) the expiration
date of any Letter of Credit extend beyond the earlier of the Commitment
Termination Date and the date twelve months following the issuance of such
Letter of Credit,
Credit Agreement
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provided that nothing herein shall limit the right of the Company to extend the
current expiration date of a Letter of Credit (provided that such extension does
not extend beyond the Commitment Termination Date) so long as such extension
does not extend the expiration date of a Letter of Credit beyond a date that is
twelve months from such current expiration date. The following additional
provisions shall apply to Letters of Credit:
(a) The Company shall give the Administrative Agent at least
ten Business Days' irrevocable prior notice (effective upon receipt)
specifying the Business Day (which shall be no later than 30 days
preceding the Commitment Termination Date) each Letter of Credit is to
be issued and the account party or parties therefor and describing in
reasonable detail the proposed terms of such Letter of Credit
(including the beneficiary thereof) and the nature of the transactions
or obligations proposed to be supported thereby. Upon receipt of any
such notice, the Administrative Agent shall advise the Issuing Lender
of the contents thereof. Upon each issuance of a Letter of Credit, the
Issuing Lender shall notify each Lender (through the Administrative
Agent) of the amount and expiration date thereof.
(b) On each day during the period commencing with the issuance
by the Issuing Lender of any Letter of Credit and until such Letter of
Credit shall have expired or been terminated, the Commitment of each
Lender shall be deemed to be utilized for all purposes of this
Agreement in an amount equal to such Lender's Commitment Percentage of
the then undrawn face amount of such Letter of Credit. Each Lender
(other than the Issuing Lender) agrees that, upon the issuance of any
Letter of Credit hereunder, it shall automatically acquire a
participation in the Issuing Lender's liability under such Letter of
Credit in an amount equal to such Lender's Commitment Percentage of
such liability, and each Lender (other than the Issuing Lender) thereby
shall absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and shall be unconditionally obligated to
the Issuing Lender to pay and discharge when due, its Commitment
Percentage of the Issuing Lender's liability under such Letter of
Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit
of any demand for payment under such Letter of Credit, the Issuing
Lender shall promptly notify the Company (through the Administrative
Agent) of the amount to be paid by the Issuing Lender as a result of
such demand and the date on which payment is to be made by the Issuing
Lender to such beneficiary in respect of such demand. Notwithstanding
the identity of the account party of any Letter of Credit, the Company
hereby unconditionally agrees to pay and reimburse the Administrative
Agent for account of the Issuing Lender for the amount of each demand
for payment under such Letter of Credit that is in substantial
compliance with the provisions of such Letter of Credit at
Credit Agreement
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or prior to the date on which payment is to be made by the Issuing
Lender to the beneficiary thereunder, without presentment, demand,
protest or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in
paragraph (c) of this Section 2.03, the Company shall advise the
Administrative Agent whether or not the Company intends to borrow
hereunder to finance its obligation to reimburse the Issuing Lender for
the amount of the related demand for payment and, if it does, submit a
notice of such borrowing as provided in Section 4.05.
(e) Each Lender (other than the Issuing Lender) shall pay to
the Administrative Agent for account of the Issuing Lender at the
Principal Office in Dollars and in immediately available funds, the
amount of such Lender's Commitment Percentage of any payment under a
Letter of Credit upon notice by the Issuing Lender (through the
Administrative Agent) to such Lender requesting such payment and
specifying such amount. Each such Lender's obligation to make such
payment to the Administrative Agent for account of the Issuing Lender
under this paragraph, and the Issuing Lender's right to receive the
same, shall be absolute and unconditional and shall not be affected by
any circumstance whatsoever, including, without limitation, the failure
of any other Lender to make its payment under this paragraph, the
financial condition of the Company (or any other account party), the
existence of any Default or the termination of the Commitments,
provided that nothing herein shall limit the right of the Lenders to
assert a claim against the Issuing Lender to the extent that such
payment by the Issuing Lender was the result of willful misconduct or
gross negligence by the Issuing Lender in determining whether to make
such payment. Each such payment to the Issuing Lender shall be made
without any offset, abatement, withholding or reduction whatsoever. If
any Lender shall default in its obligation to make any such payment to
the Administrative Agent for account of the Issuing Lender, for so long
as such default shall continue the Administrative Agent may at the
request of the Issuing Lender withhold from any payments received by
the Administrative Agent under this Agreement or any Note for account
of such Lender the amount so in default and, to the extent so withheld,
pay the same to the Issuing Lender in satisfaction of such defaulted
obligation.
(f) Upon the making of each payment by a Lender to the Issuing
Lender pursuant to paragraph (e) of this Section 2.03 in respect of any
Letter of Credit, such Lender shall, automatically and without any
further action on the part of the Administrative Agent, the Issuing
Lender or such Lender, acquire (i) a participation in an amount equal
to such payment in the Reimbursement Obligation owing to the Issuing
Lender by the Company hereunder and under the Letter of Credit
Documents
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relating to such Letter of Credit and (ii) a participation in a
percentage equal to such Lender's Commitment Percentage in any interest
or other amounts payable by the Company hereunder and under such Letter
of Credit Documents in respect of such Reimbursement Obligation (other
than the commissions, charges, costs and expenses payable to the
Issuing Lender pursuant to paragraph (g) of this Section 2.03). Upon
receipt by the Issuing Lender from or for account of the Company of any
payment in respect of any Reimbursement Obligation or any such interest
or other amount (including by way of setoff or application of proceeds
of any collateral security) the Issuing Lender shall promptly pay to
the Administrative Agent for account of each Lender entitled thereto,
such Lender's Commitment Percentage of such payment, each such payment
by the Issuing Lender to be made in the same money and funds in which
received by the Issuing Lender. In the event any payment received by
the Issuing Lender and so paid to the Lenders hereunder is rescinded or
must otherwise be returned by the Issuing Lender, each Lender shall,
upon the request of the Issuing Lender (through the Administrative
Agent), repay to the Issuing Lender (through the Administrative Agent)
the amount of such payment paid to such Lender, with interest at the
rate specified in paragraph (i) of this Section 2.03.
(g) The Company shall pay to the Administrative Agent for
account of each Lender (ratably in accordance with their respective
Commitment Percentages) a letter of credit fee in respect of each
Letter of Credit at a rate per annum equal to the Applicable Margin for
Eurodollar Loans times the daily average undrawn face amount of such
Letter of Credit for the period from and including the date of issuance
of such Letter of Credit (i) in the case of a Letter of Credit that
expires in accordance with its terms, to and including such expiration
date and (ii) in the case of a Letter of Credit that is drawn in full
or is otherwise terminated other than on the stated expiration date of
such Letter of Credit, to but excluding the date such Letter of Credit
is drawn in full or is terminated (such fee to be non-refundable, to be
paid in arrears on each Quarterly Date and on the Commitment
Termination Date and to be calculated for any day after giving effect
to any payments made under such Letter of Credit on such day). In
addition, the Company shall pay to the Administrative Agent for account
of the Issuing Lender a fronting fee in respect of each Letter of
Credit in an amount equal to 0.15% per annum of the daily average
undrawn face amount of such Letter of Credit for the period from and
including the date of issuance of such Letter of Credit (x) in the case
of a Letter of Credit that expires in accordance with its terms, to and
including such expiration date and (y) in the case of a Letter of
Credit that is drawn in full or is otherwise terminated other than on
the stated expiration date of such Letter of Credit, to but excluding
the date such Letter of Credit is drawn in full or is terminated (such
fee to be non-refundable, to be paid in arrears on each Quarterly Date
and on the Commitment Termination Date and to be calculated for any day
after
Credit Agreement
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giving effect to any payments made under such Letter of Credit on such
day) plus all commissions, charges, costs and expenses in the amounts
customarily charged by the Issuing Lender from time to time in like
circumstances with respect to the issuance of each Letter of Credit and
drawings and other transactions relating thereto.
(h) The issuance by the Issuing Lender of each Letter of
Credit shall, in addition to the conditions precedent set forth in
Section 7, be subject to the conditions precedent that (i) such Letter
of Credit shall be in such form, contain such terms and support such
transactions as shall be satisfactory to the Issuing Lender consistent
with its then current practices and procedures with respect to letters
of credit of the same type and (ii) the Company shall have executed and
delivered such applications, agreements and other instruments relating
to such Letter of Credit as the Issuing Lender shall have reasonably
requested consistent with its then current practices and procedures
with respect to letters of credit of the same type, provided that in
the event of any conflict between any such application, agreement or
other instrument and the provisions of this Agreement, the provisions
of this Agreement shall control.
(i) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (e) or (f) of this Section
2.03 on the due date therefor, such Lender shall pay interest to the
Issuing Lender (through the Administrative Agent) on such amount from
and including such due date to but excluding the date such payment is
made at a rate per annum equal to the Federal Funds Rate, provided that
if such Lender shall fail to make such payment to the Issuing Lender
within three Business Days of such due date, then, retroactively to the
due date, such Lender shall be obligated to pay interest on such amount
at the Post-Default Rate.
(j) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder shall be subject to the
same conditions applicable under this Section 2.03 to the issuance of
new Letters of Credit, and no such modification or supplement shall be
issued hereunder unless either (i) the respective Letter of Credit
affected thereby would have complied with such conditions had it
originally been issued hereunder in such modified or supplemented form
or (ii) each Lender shall have consented thereto.
The Company hereby indemnifies and holds harmless each Lender and the
Administrative Agent from and against any and all claims and damages, losses,
liabilities, costs or expenses that such Lender or the Administrative Agent may
incur (or that may be claimed against such Lender or the Administrative Agent by
any Person whatsoever) by reason of or in connection with the execution and
delivery or transfer of or payment or refusal to pay by the Issuing Lender under
any Letter of Credit; provided that the Company shall not be required to
Credit Agreement
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indemnify any Lender or the Administrative Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
caused by (x) the willful misconduct or gross negligence of the Issuing Lender
in determining whether a request presented under any Letter of Credit complied
with the terms of such Letter of Credit or (y) in the case of the Issuing
Lender, such Lender's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and conditions
of such Letter of Credit. Nothing in this Section 2.03 is intended to limit the
other obligations of the Company, any Lender or the Administrative Agent under
this Agreement.
2.04 Changes of the Commitments.
(a) The aggregate amount of the Commitments shall be
automatically reduced to zero on the Commitment Termination Date. In addition,
the aggregate amount of the Commitments shall be automatically reduced
permanently on each Commitment Reduction Date set forth in column (A) below to
the amount (subject to permanent reduction pursuant to paragraph (c) of this
Section 2.04) set forth in column (B) below opposite such Commitment Reduction
Date:
(A) (B)
Commitment Reduction Commitments Reduced
Date Falling on or to the Following
Nearest to: Amounts ($)
------------------- -------------------
September 30, 2000 $800,000,000
September 30, 2001 $500,000,000
September 30, 2002 $ 0
(b) The Company shall have the right at any time or from time
to time (i) so long as no Loans or Letter of Credit Liabilities are outstanding,
to terminate the Commitments, and (ii) to reduce permanently the aggregate
unutilized amount of the Commitments (for which purpose utilization of the
Commitments shall be deemed to include the aggregate amount of Letter of Credit
Liabilities); provided that (x) the Company shall give notice of each such
termination or permanent reduction as provided in Section 4.05 and (y) each
partial permanent reduction shall be in an aggregate amount at least equal to
$10,000,000 (or a larger multiple of $1,000,000).
(c) Each permanent reduction in the aggregate amount of the
Commitments pursuant to paragraph (b) of this Section 2.04 or Section 2.10 on
any date shall result in an automatic and simultaneous permanent reduction (but
not below zero) in the aggregate amount of the Commitments for each Commitment
Reduction Date (as reflected in column (B) at the
Credit Agreement
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end of paragraph (a) of this Section 2.04) after such date in an amount equal to
the amount of such permanent reduction.
(d) The Commitments once terminated or reduced may not be
reinstated.
2.05 Commitment Fee. The Company shall pay to the
Administrative Agent for account of each Lender a commitment fee on the daily
average unutilized amount of such Lender's Commitment (for which purpose the
aggregate amount of any Letter of Credit Liabilities shall be deemed to be a pro
rata (based on the Commitments) utilization of each Lender's Commitment), for
the period from and including the date hereof to but not including the earlier
of the date such Commitment is terminated and the Commitment Termination Date,
at a rate per annum equal to 1/4 of 1%. Accrued commitment fee shall be payable
on the first Business Day after each Quarterly Date and on the earlier of the
date the Commitments are terminated and the Commitment Termination Date.
2.06 Lending Offices. The Loans of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Loans of such Type.
2.07 Several Obligations; Remedies Independent. The failure of
any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of its obligation to make its Loan on such
date, but neither any Lender nor the Administrative Agent shall be responsible
for the failure of any other Lender to make a Loan to be made by such other
Lender, and (except as otherwise provided in Section 4.06) no Lender shall have
any obligation to the Administrative Agent or any other Lender for the failure
by such Lender to make any Loan required to be made by such Lender. The amounts
payable by the Company at any time hereunder and under the Notes to each Lender
shall be a separate and independent debt and each Lender shall be entitled to
protect and enforce its rights arising out of this Agreement and the Notes, and
it shall not be necessary for any other Lender or the Administrative Agent to
consent to, or be joined as an additional party in, any proceedings for such
purposes.
2.08 Notes.
(a) The Loans made by each Lender shall be evidenced by a
single promissory note of the Company substantially in the form of Exhibit A,
dated the date hereof, payable to such Lender in a principal amount equal to the
amount of its Commitment as originally in effect and otherwise duly completed.
(b) The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Loan made by each Lender to the Company,
and each payment made on
Credit Agreement
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account of the principal thereof, shall be recorded by such Lender on its books
and, prior to any transfer of the Note held by it, endorsed by such Lender on
the schedule attached to such Note or any continuation thereof; provided that
the failure of such Lender to make any such recordation or endorsement shall not
affect the obligations of the Company to make a payment when due of any amount
owing hereunder or under such Note in respect of such Loans.
(c) No Lender shall be entitled to have its Note substituted
or exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Lender's Commitment, Loans and Note pursuant to Section 12.06
(and, if requested by any Lender, the Company agrees to so exchange any Note).
2.09 Optional Prepayments and Conversions or Continuations of
Loans. Subject to Section 4.04, the Company shall have the right to prepay
Loans, or to Convert Loans of one Type into Loans of another Type or Continue
Loans of one Type as Loans of the same Type, at any time or from time to time,
provided that: (a) the Company shall give the Administrative Agent notice of
each such prepayment, Conversion or Continuation as provided in Section 4.05
(and, upon the date specified in any such notice of prepayment, the amount to be
prepaid shall become due and payable hereunder); (b) any prepayment or
Conversion of Eurodollar Loans other than on the last day of an Interest Period
for such Loans shall be accompanied by payment of any amounts owing under
Section 5.05 as a result of such prepayment; and (c) any Conversion into or
Continuation of Eurodollar Loans shall be subject to the proviso set forth at
the end of Section 2.01. Each such notice of prepayment shall be in
substantially the form of Exhibit I (a "Notice of Prepayment"), and each such
notice of any Conversion or Continuation shall be in substantially the form of
Exhibit J (a "Notice of Conversion/Continuation").
Notwithstanding the foregoing, and without limiting the rights
and remedies of the Lenders under Section 10, in the event that any Event of
Default shall have occurred and be continuing, the Administrative Agent may (and
at the request of the Majority Lenders shall) suspend the right of the Company
to Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a
Eurodollar Loan, in which event all Loans shall be Converted (on the last day(s)
of the respective Interest Periods therefor) into, or Continued as, as the case
may be, Base Rate Loans.
Credit Agreement
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2.10 Mandatory Prepayments and Reductions of Commitments.
(a) Sale of Assets. Without limiting the obligation of the
Company to obtain the consent of the Majority Lenders pursuant to Section 9.05
to any Disposition not otherwise permitted hereunder, in the event that the Net
Available Proceeds of any Disposition (herein, the "Current Disposition"), and
of all prior Dispositions as to which a prepayment has not yet been made under
this paragraph, shall exceed $50,000,000 then, no later than five Business Days
prior to the occurrence of the Current Disposition, the Company will deliver to
the Lenders a statement, certified by a Financial Officer of the Company, in
form and detail satisfactory to the Administrative Agent, of the estimated
amount of the Net Available Proceeds of the Current Disposition that will (on
the date of the Current Disposition) be received in cash, in which event the
Company will prepay the Loans and, to the extent the Loans shall have been
prepaid in full, provide cover for Letter of Credit Liabilities as specified in
paragraph (c) below (and the Commitments shall be subject to automatic permanent
reduction in a like amount), as follows:
(i) upon the date of the Current Disposition, in an
aggregate amount equal to 100% of such estimated amount of the Net
Available Proceeds of the Current Disposition, to the extent received
in cash on the date of the Current Disposition, together with 100% of
the Net Available Proceeds of all such prior Dispositions; and
(ii) thereafter, quarterly, on the date of the delivery
by the Company to the Administrative Agent pursuant to Section 9.01 of
the financial statements for each quarterly fiscal period or (if
earlier) the date 60 days after the end of such quarterly fiscal
period, to the extent the Company or any of its Restricted Subsidiaries
shall receive Net Available Proceeds during such quarterly fiscal
period in cash under deferred payment arrangements or Investments
entered into or received in connection with any Disposition, an amount
equal to (A) 100% of the aggregate amount of such Net Available
Proceeds minus (B) any transaction expenses associated with
Dispositions and not previously deducted in the determination of Net
Available Proceeds plus (or minus, as the case may be) (C) any other
adjustment received or paid by the Company or such Restricted
Subsidiary pursuant to the respective agreements giving rise to
Dispositions and not previously taken into account in the determination
of the Net Available Proceeds of Dispositions, provided that if prior
to the date upon which the Company would otherwise be required to make
a prepayment under this clause (ii) with respect to any quarterly
fiscal period the aggregate amount of such Net Available Proceeds
received in cash shall aggregate an amount that will require a
prepayment of $10,000,000 or more under this clause (ii) with respect
to such quarterly fiscal period, then the Company shall within three
Business Days make a prepayment under this clause (ii) in an amount
equal to such required prepayment.
Credit Agreement
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Notwithstanding the foregoing, the Company shall not be
required to make a prepayment pursuant to this Section 2.10(a) (and the
Commitments shall not be subject to automatic permanent reduction) with respect
to the Net Available Proceeds from any Disposition in the event that the Company
advises the Administrative Agent at the time such prepayment is required to be
made that it intends to reinvest such Net Available Proceeds pursuant to a
Permitted Reinvestment Transaction, so long as the Net Available Proceeds from
any Disposition are in fact so reinvested within twelve months of such
Disposition (it being understood that, in the event there are Net Available
Proceeds from more than one Disposition, such Net Available Proceeds shall be
deemed to be utilized in the same order in which such Dispositions occurred and,
accordingly, any such Net Cash Payments not reinvested for more than twelve
months shall be forthwith applied to the prepayment of Loans (and/or provide
cover for Letter of Credit Liabilities as specified in paragraph (c) of this
Section 2.10) and/or permanent reductions of Commitments as provided above).
Prepayments and/or permanent reductions of Commitments
described in this paragraph (a) shall be applied to reduce permanently the
aggregate amount of the Commitments (and to the extent that, after giving effect
to such permanent reduction, the aggregate principal amount of the Loans,
together with the aggregate amount of all Letter of Credit Liabilities, would
exceed the Commitments, the Company shall, first, prepay Loans and, second,
provide cover for Letter of Credit Liabilities as specified in paragraph (c) of
this Section 2.10, in an aggregate amount equal to such excess).
(b) Debt Issuance. Upon any Debt Issuance, other than a Debt
Issuance in respect of Subordinated Indebtedness or Qualified Senior
Indebtedness permitted hereunder, the Company shall prepay the Loans (and the
Commitments shall be subject to automatic permanent reduction) in an aggregate
amount equal to 100% of the Net Available Proceeds of such Debt Issuance. Upon
any Debt Issuance in respect of Subordinated Indebtedness permitted hereunder,
the Company shall prepay the Loans (but the Commitments shall not be subject to
permanent reduction) in an aggregate amount equal to 100% of the Net Available
Proceeds of such Debt Issuance. Upon any Debt Issuance in respect of Qualified
Senior Indebtedness permitted hereunder, the Company shall prepay the Loans (and
the Commitments shall be subject to automatic permanent reduction) in an
aggregate amount equal to 75% of the Net Available Proceeds of such Debt
Issuance.
(c) Cover for Letter of Credit Liabilities. In the event that
the Company shall be required pursuant to this Section 2.10, or pursuant to
Section 3.01, to provide cover for Letter of Credit Liabilities, the Company
shall effect the same by paying to the Administrative Agent immediately
available funds in an amount equal to the required amount, which funds shall be
retained by the Administrative Agent in a segregated deposit account (as
collateral
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security in the first instance for the Letter of Credit Liabilities) until such
time as the Letters of Credit shall have been terminated and all of the Letter
of Credit Liabilities paid in full.
Section 3. Payments of Principal and Interest.
----------------------------------
3.01 Repayment of Loans. The Company hereby promises to pay to
the Administrative Agent for account of each Lender the entire outstanding
principal amount of such Lender's Loans, and each Loan shall mature, on the
Commitment Termination Date. In addition, if following any Commitment Reduction
Date the aggregate principal amount of the Loans, together with the aggregate
amount of all Letter of Credit Liabilities, shall exceed the Commitments, the
Company shall, first, pay Loans and, second, provide cover for Letter of Credit
Liabilities as specified in Section 2.10(c), in an aggregate amount equal to
such excess.
3.02 Interest. The Company hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan made by such Lender for the period from and including the
date of such Loan to but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) plus the Applicable Margin;
and
(b) during each Interest Period for such Loan during which
such Loan is a Eurodollar Loan, the Eurodollar Rate for such Interest
Period plus the Applicable Margin.
Notwithstanding the foregoing, the Company hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate
(x) on the principal of all Loans made by all Lenders if any
principal of any Loan shall not be paid in full when due (whether at
stated maturity, by acceleration, by mandatory prepayment or
otherwise), for the period from and including the due date thereof to
but excluding the date the same is paid in full;
(y) on any Reimbursement Obligation held by such Lender and on
any other amount payable by the Company hereunder or under the Note
held by such Lender to or for account of such Lender, that shall not be
paid in full when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise), for the
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period from and including the due date thereof to but excluding the
date the same is paid in full; and
(z) on the principal of all Loans made by all Lenders during
any period when any Specified Default shall have occurred and for so
long as such Specified Default shall be continuing.
Accrued interest on each Loan shall be payable (i) in the case of a Base Rate
Loan, quarterly on the Quarterly Dates, (ii) in the case of a Eurodollar Loan,
on the last day of each Interest Period therefor and, if such Interest Period is
longer than three months, at three-month intervals following the first day of
such Interest Period, (iii) in the case of any Eurodollar Loan, upon the payment
or prepayment thereof, and upon the Conversion thereof into a Base Rate Loan,
but in each case only on the principal amount so paid, prepaid or Converted and
(iv) in the case of a payment or prepayment of a Base Rate Loan upon the
Commitment Termination Date, or in connection with an early termination of the
Commitments, on the date of such payment or prepayment. Notwithstanding the
foregoing, interest payable at the Post-Default Rate shall be payable from time
to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, the Administrative Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Company.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
-----------------------------------------------
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest, Reimbursement Obligations and other amounts to
be made by the Company under this Agreement and the Notes, and, except to the
extent otherwise provided therein, all payments to be made by the Obligors under
any other Loan Document, shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Administrative Agent
at an account maintained by the Administrative Agent with First Union at the
Principal Office, not later than 1:00 p.m. Charlotte, North Carolina time on the
date on which such payment shall become due (each such payment made after such
time on such due date to be deemed to have been made on the next succeeding
Business Day).
(b) Any Lender for whose account any such payment is to be
made may (but shall not be obligated to) debit the amount of any such payment
that is not made by such time to any ordinary deposit account of the Company
with such Lender (with notice to the
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Company and the Administrative Agent), provided that such Lender's failure to
give such notice shall not affect the validity thereof.
(c) The Company shall, at the time of making each payment
under this Agreement or any Note for account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans, Reimbursement Obligations or other amounts payable by the Company
hereunder to which such payment is to be applied (and in the event that the
Company fails to so specify, or if an Event of Default has occurred and is
continuing, the Administrative Agent may distribute such payment to the Lenders
for application in such manner as it or the Majority Lenders, subject to Section
4.02, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last
sentence of Section 2.03(e), each payment received by the Administrative Agent
under this Agreement or any Note for account of any Lender shall be paid by the
Administrative Agent promptly to such Lender, in immediately available funds,
for account of such Lender's Applicable Lending Office for the Loan or other
obligation in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day that is not a Business Day, such date shall
be extended to the next succeeding Business Day, and interest shall be payable
for any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein: (a) each borrowing from the Lenders under Section 2.01 shall be
made from the Lenders, each payment of commitment fee under Section 2.05, or of
letter of credit fee under Section 2.03(g), shall be made for account of the
Lenders, and each termination or permanent reduction of the amount of the
Commitments under Section 2.04 or 2.10 shall be applied to the respective
Commitments of the Lenders, pro rata according to the amounts of their
respective Commitments; (b) except as otherwise provided in Section 5.04,
Eurodollar Loans having the same Interest Period shall be allocated pro rata
among the Lenders according to the amounts of their respective Commitments (in
the case of the making of Loans) or their respective Loans; (c) each payment or
prepayment of principal of Loans by the Company shall be made for account of the
Lenders pro rata in accordance with the respective unpaid principal amounts of
the Loans held by them; and (d) each payment of interest on Loans by the Company
shall be made for account of the Lenders pro rata in accordance with the amounts
of interest on such Loans then due and payable to the respective Lenders.
4.03 Computations. Interest on Eurodollar Loans, commitment
fee and letter of credit fees shall be computed on the basis of a year of 360
days and actual days elapsed
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(including the first day but, except as otherwise provided in Section 2.03(g),
excluding the last day) occurring in the period for which payable and interest
on Base Rate Loans and Reimbursement Obligations shall be computed on the basis
of a year of 365 or 366 days, as the case may be, and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable. Notwithstanding the foregoing, for each day that the Base Rate is
calculated by reference to the Federal Funds Rate, interest on Base Rate Loans
and Reimbursement Obligations shall be computed on the basis of a year of 360
days and actual days elapsed.
4.04 Minimum Amounts. Except for mandatory prepayments made
pursuant to Section 2.10 and Conversions or prepayments made pursuant to Section
5.04, each borrowing, Conversion and partial prepayment of principal of Loans
shall be in an aggregate amount equal to $10,000,000 or a larger multiple of
$1,000,000 (borrowings, Conversions or prepayments of or into Loans of different
Types or, in the case of Eurodollar Loans, having different Interest Periods at
the same time hereunder to be deemed separate borrowings, Conversions and
prepayments for purposes of the foregoing, one for each Type or Interest
Period), provided that the aggregate principal amount of Eurodollar Loans having
the same Interest Period shall be in an amount equal to $10,000,000 or a larger
multiple of $1,000,000 and, if any Eurodollar Loans would otherwise be in a
lesser principal amount for any period, such Loans shall be Base Rate Loans
during such period.
4.05 Certain Notices. Notices by the Company to the
Administrative Agent of terminations or permanent reductions of the Commitments,
of borrowings, Conversions, Continuations and optional prepayments of Loans, of
Types of Loans and of the duration of Interest Periods shall be irrevocable and
shall be effective only if received by the Administrative Agent not later than
1:00 p.m. Charlotte, North Carolina time (except for same day notices as
provided below, which must be received not later than 12:00 Noon Charlotte,
North Carolina time) on the number of Business Days prior to the date of the
relevant termination, permanent reduction, borrowing, Conversion, Continuation
or prepayment or the first day of such Interest Period specified below:
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Number of
Business
Notice Days Prior
------ ----------
Termination or permanent
reductions of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans same day
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or permanent reduction shall specify the amount
of the Commitments to be terminated or reduced permanently. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Loans to be borrowed, Converted, Continued or prepaid and the amount (subject to
Section 4.04) and Type of each Loan to be borrowed, Converted, Continued or
prepaid and the date of borrowing, Conversion, Continuation or optional
prepayment (which shall be a Business Day). Each such notice of the duration of
an Interest Period shall specify the Loans to which such Interest Period is to
relate. The Administrative Agent shall promptly notify the Lenders of the
contents of each such notice. In the event that the Company fails to select the
Type of Loan, or the duration of any Interest Period for any Eurodollar Loan,
within the time period and otherwise as provided in this Section 4.05, such Loan
(if outstanding as a Eurodollar Loan) will be automatically Converted into a
Base Rate Loan on the last day of the then current Interest Period for such Loan
or (if outstanding as a Base Rate Loan) will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless
the Administrative Agent shall have been notified by a Lender or the Company
(the "Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Company) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required
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to), make the amount thereof available to the intended recipient(s) on such
date; and, if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"Advance Date") such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate for such day and, if such recipient(s) shall
fail promptly to make such payment, the Administrative Agent shall be entitled
to recover such amount, on demand, from the Payor, together with interest as
aforesaid, provided that if neither the recipient(s) nor the Payor shall return
the Required Payment to the Administrative Agent within three Business Days of
the Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
(i) if the Required Payment shall represent a payment
to be made by the Company to the Lenders, the Company and the
recipient(s) shall each be obligated retroactively to the Advance Date
to pay interest in respect of the Required Payment at the Post-Default
Rate (without duplication of the obligation of the Company under
Section 3.02 to pay interest on the Required Payment at the
Post-Default Rate), it being understood that the return by the
recipient(s) of the Required Payment to the Administrative Agent shall
not limit such obligation of the Company under Section 3.02 to pay
interest at the Post-Default Rate in respect of the Required Payment,
and
(ii) if the Required Payment shall represent proceeds of
a Loan to be made by the Lenders to the Company, the Payor and the
Company shall each be obligated retroactively to the Advance Date to
pay interest in respect of the Required Payment pursuant to whichever
of the rates specified in Section 3.02 is applicable to the Type of
such Loan, it being understood that the return by the Company of the
Required Payment to the Administrative Agent shall not limit any claim
the Company may have against the Payor in respect of such Required
Payment.
4.07 Sharing of Payments, Etc.
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it for the
credit or account of such Obligor at any of its offices, in Dollars or in any
other currency, against any principal of or interest on any of such Lender's
Loans, Reimbursement Obligations or any other amount payable to such Lender
hereunder, that is not paid when due
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(regardless of whether such deposit or other indebtedness is then due to such
Obligor), in which case it shall promptly notify such Obligor and the
Administrative Agent thereof, provided that such Lender's failure to give such
notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan or Letter of Credit Liability owing to it
or payment of any other amount under this Agreement or any other Loan Document
through the exercise of any right of set-off, banker's lien or counterclaim or
similar right or otherwise (other than from the Administrative Agent as provided
herein), and, as a result of such payment, such Lender shall have received a
greater percentage of the principal of or interest on the Loans or Letter of
Credit Liabilities or such other amounts then due hereunder or thereunder by
such Obligor to such Lender than the percentage received by any other Lender, it
shall promptly purchase from such other Lenders participations in (or, if and to
the extent specified by such Lender, direct interests in) the Loans or Letter of
Credit Liabilities or such other amounts, respectively, owing to such other
Lenders (or in interest due thereon, as the case may be) in such amounts, and
make such other adjustments from time to time as shall be equitable, to the end
that all the Lenders shall share the benefit of such excess payment (net of any
expenses that may be incurred by such Lender in obtaining or preserving such
excess payment) pro rata in accordance with the unpaid principal of and/or
interest on the Loans or Letter of Credit Liabilities or such other amounts,
respectively, owing to each of the Lenders. To such end all the Lenders shall
make appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) The Company agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Credit Agreement
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Section 5. Yield Protection, Etc.
---------------------
5.01 Additional Costs.
(a) The Company shall pay directly to each Lender from time to
time such amounts as such Lender may determine to be necessary to compensate
such Lender for any costs that such Lender determines are attributable to its
making or maintaining of any Eurodollar Loans or its obligation to make any
Eurodollar Loans hereunder, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending
Office for any of such Loans) to any tax, duty or other charge in
respect of such Loans or its Note or changes the basis of taxation of
any amounts payable to such Lender under this Agreement or its Note in
respect of any of such Loans (excluding changes in the rate of tax on
the overall net income of such Lender or of such Applicable Lending
Office by the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement used in the
determination of the Eurodollar Rate for any Interest Period for such
Loan) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Lender (including, without
limitation, any of such Loans or any deposits referred to in the
definition of "Eurodollar Base Rate" in Section 1.01), or any
commitment of such Lender (including, without limitation, the
Commitment of such Lender hereunder); or
(iii) imposes any other condition affecting this
Agreement or its Note (or any of such extensions of credit or
liabilities) or its Commitment.
If any Lender requests compensation from the Company under this paragraph, the
Company may, by notice to such Lender (with a copy to the Administrative Agent),
suspend the obligation of such Lender thereafter to make or Continue Eurodollar
Loans, or to Convert Loans of any other Type into Eurodollar Loans, until the
Regulatory Change giving rise to such request ceases to be in effect (in which
case the provisions of Section 5.04 shall be applicable), provided that such
suspension shall not affect the right of such Lender to receive the compensation
so requested.
Credit Agreement
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(b) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Company shall pay directly to
each Lender from time to time on request such amounts as such Lender may
determine to be necessary to compensate such Lender (or, without duplication,
the bank holding company of which such Lender is a subsidiary) for any costs
that it determines are attributable to the maintenance by such Lender (or any
Applicable Lending Office or such bank holding company), pursuant to any law or
regulation or any interpretation, directive or request (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any risk-based capital guideline or other
requirement (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful) hereafter issued by any
government or governmental or supervisory authority implementing at the national
level the Basle Accord, of capital in respect of its Commitment or Loans (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Lender (or any Applicable Lending
Office or such bank holding company) to a level below that which such Lender (or
any Applicable Lending Office or such bank holding company) could have achieved
but for such law, regulation, interpretation, directive or request.
(c) Each Lender shall notify the Company of any event
occurring after the date hereof entitling such Lender to compensation under
paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any
event within 45 days, after such Lender obtains actual knowledge thereof;
provided that (i) if any Lender fails to give such notice within 45 days after
it obtains actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 45 days prior to the date that such
Lender does give such notice and (ii) each Lender will designate a different
Applicable Lending Office for the Loans of such Lender affected by such event if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender, except that such Lender shall have no obligation
to designate an Applicable Lending Office located in the United States of
America. Each Lender will furnish to the Company (with a copy to the
Administrative Agent) a certificate setting forth the basis and amount of each
request by such Lender for compensation under paragraph (a) or (b) of this
Section 5.01. Determinations and allocations by any Lender for purposes of this
Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) of
this Section 5.01, or of the effect of capital maintained pursuant to paragraph
(b) of this Section 5.01, on its costs or rate of return of maintaining Loans or
its obligation to make Loans, or on amounts receivable by it in respect of
Loans, and of the amounts required to
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compensate such Lender under this Section 5.01, shall be conclusive, provided
that such determinations and allocations are made on a reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of the Eurodollar
Base Rate for any Interest Period for any Eurodollar Loan;
(a) the Administrative Agent determines, which determination
shall be conclusive, that quotations of interest rates for the relevant
deposits referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for
Eurodollar Loans as provided herein; or
(b) the Majority Lenders determine, which determination shall
be conclusive, and notify the Administrative Agent that the relevant
rates of interest referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 upon the basis of which the rate of interest for
Eurodollar Loans for such Interest Period is to be determined are not
likely adequately to cover the cost to such Lenders of making or
maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Company and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Loans of any other Type into Eurodollar Loans,
and the Company shall, on the last day(s) of the then current Interest Period(s)
for the outstanding Eurodollar Loans, either prepay such Loans or Convert such
Loans into another Type of Loan in accordance with Section 2.09.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
the Company thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
Eurodollar Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions of Section 5.04
shall be applicable).
5.04 Treatment of Affected Loans. If the obligation of any
Lender to make Eurodollar Loans or to Continue, or to Convert Base Rate Loans
into, Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03, such
Lender's Eurodollar Loans shall be
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automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for Eurodollar Loans (or, in the case of a Conversion
resulting from a circumstance described in Section 5.03, on such earlier date as
such Lender may specify to the Company with a copy to the Administrative Agent)
and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.01 or 5.03 that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have
been so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Eurodollar Loans shall be made or Continued instead as
Base Rate Loans, and all Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Company with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 that gave rise to
the Conversion of such Lender's Eurodollar Loans pursuant to this Section 5.04
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans, to the extent necessary so that, after giving effect thereto,
all Base Rate Loans and Eurodollar Loans are allocated among the Lenders ratably
(as to principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
5.05 Compensation. The Company shall pay to the Administrative
Agent for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan made by such Lender for any reason
(including, without limitation, the acceleration of the Loans pursuant
to Section 10) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by the Company for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 7 to be satisfied) to
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borrow a Eurodollar Loan from such Lender on the date for such
borrowing specified in the relevant notice of borrowing given pursuant
to Section 2.02.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender), or if such Lender shall cease to make such bids, the equivalent rate,
as reasonably determined by such Lender, derived from Page 3750 of the Dow Xxxxx
Markets Service or other publicly available source as described in the
definition of "Eurodollar Base Rate" in Section 1.01).
5.06 Additional Costs in Respect of Letters of Credit. Without
limiting the obligations of the Company under Section 5.01 (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Company shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent), such additional amounts as shall
be sufficient to compensate such Lender or Lenders (through the Administrative
Agent) for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Company shall be conclusive in the
absence of manifest error as to the amount thereof.
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5.07 U.S. Taxes.
(a) The Company agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, provided
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Lender hereunder unless such
Lender is, on the date hereof (or on the date it becomes a Lender
hereunder as provided in Section 12.06(b)) and on the date of any
change in the Applicable Lending Office of such Lender, either entitled
to submit a Form 1001 (relating to such Lender and entitling it to a
complete exemption from withholding on all interest to be received by
it hereunder in respect of the Loans) or Form 4224 (relating to all
interest to be received by such Lender hereunder in respect of the
Loans and Reimbursement Obligations), or
(ii) to any U.S. Taxes imposed solely by reason of the
failure by such non-U.S. Person to comply with applicable
certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or
connections with the United States of America of such non-U.S. Person
if such compliance is required by statute or regulation of the United
States of America as a precondition to relief or exemption from such
U.S. Taxes.
For the purposes of this paragraph, (A) "U.S. Person" shall mean a citizen,
national or resident of the United States of America, a corporation, partnership
or other entity created or organized in or under any laws of the United States
of America or any State thereof, or any estate or trust that is subject to
Federal income taxation regardless of the source of its income, (B) "U.S. Taxes"
shall mean any present or future tax, assessment or other charge or levy imposed
by or on behalf of the United States of America or any taxing authority thereof
or therein, (C) "Form 1001" shall mean Form 1001 (Ownership, Exemption, or
Reduced Rate Certificate) of the Department of the Treasury of the United States
of America and (D) "Form 4224" shall mean Form 4224 (Exemption from Withholding
of Tax on Income Effectively Connected with the Conduct of a Trade or Business
in the United States) of the Department of the Treasury of the United States of
America. Each of the Forms referred to in the foregoing clauses (C) and (D)
shall include such successor and related forms as may from time to time be
adopted by the relevant taxing authorities of the United States of America to
document a claim to which such Form relates.
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(b) Within 30 days after paying any amount to the
Administrative Agent or any Lender from which it is required by law to make any
deduction or withholding, and within 30 days after it is required by law to
remit such deduction or withholding to any relevant taxing or other authority,
the Company shall deliver to the Administrative Agent for delivery to such
non-U.S. Person evidence satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
5.08 Replacement of Lenders. If any Lender requests
compensation pursuant to Section 5.01, 5.06 or 5.07, or any Lender's obligation
to make or Continue Loans of any Type, or to Convert Loans of any Type into the
other Type of Loan, shall be suspended pursuant to Section 5.01 or 5.03 (any
such Lender requesting such compensation, or whose obligations are so suspended,
being herein called a "Requesting Lender"), the Company, upon three Business
Days notice, may require that such Requesting Lender transfer all of its right,
title and interest under this Agreement and such Requesting Lender's Notes to
any bank or other financial institution (a "Proposed Lender") identified by the
Company that is satisfactory to the Administrative Agent and the Issuing Lender
(i) if such Proposed Lender agrees to assume all of the obligations of such
Requesting Lender hereunder, and to purchase all of such Requesting Lender's
Loans hereunder for consideration equal to the aggregate outstanding principal
amount of such Requesting Lender's Loans, together with interest thereon to the
date of such purchase, and satisfactory arrangements are made for payment to
such Requesting Lender of all other amounts payable hereunder to such Requesting
Lender on or prior to the date of such transfer (including any fees accrued
hereunder and any amounts that would be payable under Section 5.05 as if all of
such Requesting Lender's Loans were being prepaid in full on such date) and (ii)
if such Requesting Lender has requested compensation pursuant to Section 5.01,
5.06 or 5.07, such Proposed Lender's aggregate requested compensation, if any,
pursuant to Section 5.01, 5.06 or 5.07 with respect to such Requesting Lender's
Loans is lower than that of the Requesting Lender. Subject to the provisions of
Section 12.06(b), such Proposed Lender shall be a "Lender" for all purposes
hereunder. Without prejudice to the survival of any other agreement of the
Company hereunder, the agreements of the Company contained in Sections 5.01,
5.06, 5.07 and 12.04 (without duplication of any payments made to such
Requesting Lender by the Company or the Proposed Lender) shall survive for the
benefit of such Requesting Lender under this Section 5.08 with respect to the
time prior to such replacement.
Section 6. Guarantee.
---------
6.01 The Guarantee. The Subsidiary Guarantors hereby jointly
and severally guarantee to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or
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otherwise) of the principal of and interest on the Loans made by the Lenders to,
and the Note held by each Lender of, the Company and all other amounts from time
to time owing to the Lenders or the Administrative Agent by the Company under
this Agreement and under the Notes and by any Obligor under any of the other
Loan Documents, and all obligations of the Company or any of its Subsidiaries to
any Lender (or any affiliate of any Lender) in respect of any Hedging Agreement,
in each case strictly in accordance with the terms thereof (such obligations
being herein collectively called the "Guaranteed Obligations"). The Subsidiary
Guarantors hereby further jointly and severally agree that if the Company shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Subsidiary Guarantors will
promptly pay the same, without any demand or notice whatsoever, and that in the
case of any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
6.02 Obligations Unconditional. The obligations of the
Subsidiary Guarantors under Section 6.01 are absolute and unconditional, joint
and several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Company under this Agreement, the Notes
or any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 6.02 that the obligations of the
Subsidiary Guarantors hereunder shall be absolute and unconditional, joint and
several, under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Subsidiary Guarantors hereunder,
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
the Subsidiary Guarantors, the time for any performance of or
compliance with any of the Guaranteed Obligations shall be extended, or
such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of this Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under
this Agreement or the Notes or any other
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agreement or instrument referred to herein or therein shall be waived
or any other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or in
favor of, the Administrative Agent or any Lender or Lenders as security
for any of the Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Company under this Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
6.03 Reinstatement. The obligations of the Subsidiary
Guarantors under this Section 6 shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Company in respect
of the Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
6.04 Subrogation. Each Subsidiary Guarantor hereby waives all
rights of subrogation or contribution, whether arising by contract or operation
of law (including, without limitation, any such right arising under the
Bankruptcy Code) or otherwise by reason of any payment by it pursuant to the
provisions of this Section 6 and further agrees with the Company for the benefit
of each of its creditors (including, without limitation, each Lender and the
Administrative Agent) that any such payment by it shall constitute an investment
in the equity capital of the Company by such Subsidiary Guarantor.
6.05 Remedies. The Subsidiary Guarantors jointly and severally
agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of the Company under this Agreement and the Notes may be declared to
be forthwith due and payable as provided in Section 10 (and shall be deemed to
have become automatically due and payable in the circumstances provided in
Section 10) for purposes of Section 6.01 notwithstanding any stay,
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injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against the Company and that, in
the event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the Company) shall forthwith become due and payable by the Subsidiary
Guarantors for purposes of Section 6.01.
6.06 Instrument for the Payment of Money. Each Subsidiary
Guarantor hereby acknowledges that the guarantee in this Section 6 constitutes
an instrument for the payment of money, and consents and agrees that any Lender
or the Administrative Agent, at its sole option, in the event of a dispute by
such Subsidiary Guarantor in the payment of any moneys due hereunder, shall have
the right to bring motion-action under New York CPLR Section 3213.
6.07 Continuing Guarantee. The guarantee in this Section 6 is
a continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.08 Rights of Contribution. The Subsidiary Guarantors hereby
agree, as between themselves, that if any Subsidiary Guarantor shall become an
Excess Funding Guarantor (as defined below) by reason of the payment by such
Subsidiary Guarantor of any Guaranteed Obligations, each other Subsidiary
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the Properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) in respect of
such Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to
any Excess Funding Guarantor under this Section 6.08 shall be subordinate and
subject in right of payment to the prior payment in full of the obligations of
such Subsidiary Guarantor under the other provisions of this Section 6 and such
Excess Funding Guarantor shall not exercise any right or remedy with respect to
such excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section 6.08, (i) "Excess Funding
Guarantor" shall mean, in respect of any Guaranteed Obligations, a Subsidiary
Guarantor that has paid an amount in excess of its Pro Rata Share of such
Guaranteed Obligations, (ii) "Excess Payment" shall mean, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess
of its Pro Rata Share of such Guaranteed Obligations and (iii) "Pro Rata Share"
shall mean, for any Subsidiary Guarantor, the ratio (expressed as a percentage)
of (x) the amount by which the aggregate present fair saleable value of all
Properties of such Subsidiary Guarantor (excluding any shares of stock of any
other Subsidiary Guarantor) exceeds the amount of all the debts and liabilities
of such Subsidiary Guarantor (including
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contingent, subordinated, unmatured and unliquidated liabilities, but excluding
the obligations of such Subsidiary Guarantor hereunder and any obligations of
any other Subsidiary Guarantor that have been Guaranteed by such Subsidiary
Guarantor) to (y) the amount by which the aggregate fair saleable value of all
Properties of all of the Subsidiary Guarantors exceeds the amount of all the
debts and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of the Company and the
Subsidiary Guarantors hereunder and under the other Loan Documents) of all of
the Subsidiary Guarantors, determined (A) with respect to any Subsidiary
Guarantor that is a party hereto on the Closing Date, as of the Closing Date,
and (B) with respect to any other Subsidiary Guarantor, as of the date such
Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
6.09 General Limitation on Guarantee Obligations. In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 6.01 would otherwise, taking into account the provisions of Section
6.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 6.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
Section 7. Conditions.
----------
7.01 Initial Extension of Credit. The obligation of any Lender
to make its initial extension of credit hereunder (whether by making a Loan or
issuing a Letter of Credit) is subject to the conditions precedent that (i) such
extension of credit shall be made on or before December 31, 1997 and (ii) the
Administrative Agent shall have received the following documents (with, in the
case of clauses (a), (b), (c), (d), (e) and (i) below, sufficient copies for
each Lender), each of which shall be satisfactory to the Arranger (and to the
extent specified below, to each Lender) in form and substance:
(a) Opinions of Counsel to the Obligors. Opinions, each dated
the Closing Date, of (i) Weil, Gotshal & Xxxxxx LLP, New York counsel
to the Obligors, (ii) X. Xxxxxxxxxxx Dance, general counsel to Excel
and its Subsidiaries and (iii) Xxxxxxx & Berlin, Chartered, special
Virginia counsel to Telco and its Subsidiaries, as to the matters set
forth in Exhibits X-0, X-0 and D-3 hereto, respectively, and covering
such
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other matters as the Arranger or any Lender may reasonably request (and
each Obligor hereby instructs such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
(b) Opinion of Special New York Counsel to the Arranger. An
opinion, dated the Closing Date, of Milbank, Tweed, Xxxxxx & XxXxxx,
special New York counsel to the Arranger, substantially in the form of
Exhibit E (and the Arranger hereby instructs such counsel to deliver
such opinion to the Lenders).
(c) Corporate Documents. Certified copies of the charter and
by-laws (or equivalent documents) of each Obligor and of all corporate
authority for each Obligor (including, without limitation, board of
director resolutions and evidence of the incumbency, including specimen
signatures, of officers) with respect to the execution, delivery and
performance of such of the Loan Documents to which such Obligor is
intended to be a party and each other document to be delivered by such
Obligor from time to time in connection herewith and the extensions of
credit hereunder (and the Administrative Agent and each Lender may
conclusively rely on such certificate until it receives notice in
writing from such Obligor to the contrary).
(d) Merger Transactions. Evidence that the Merger Transactions
shall have been (or shall be simultaneously) consummated in all
material respects in accordance with the terms of the Merger Agreement
(except for any modifications, supplements or waivers thereof, or
written consents or determinations made by the parties thereto, that
shall be satisfactory to the Majority Lenders), and the Administrative
Agent shall have received a certificate of a Financial Officer of the
Company to such effect and to the effect that attached thereto are true
and complete copies of the documents delivered in connection with the
closing of the Merger Transactions pursuant to the Merger Agreement.
(e) Officer's Certificate. A certificate of a Financial
Officer of the Company, dated the Closing Date, to the effect set forth
in the lettered clauses of the first sentence of Section 7.02.
(f) Repayment of Existing Indebtedness. Evidence that the
principal of and interest on, and all other amounts owing in respect
of, any Indebtedness (including any contingent or other amounts in
respect of letters of credit) indicated on Schedule II that is to be
repaid on the Closing Date shall have been (or shall be simultaneously)
paid in full, that any commitments to extend credit under any
agreements or instruments relating to such Indebtedness shall have been
canceled or terminated and that all Guarantees in respect of, and all
Liens securing, any such Indebtedness shall
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have been released (or arrangements for such release satisfactory to
the Administrative Agent shall have been made).
(g) Notes. The Notes, duly completed and executed for each
Lender.
(h) Pledge Agreement. The Pledge Agreement, duly executed and
delivered by the Company, the Subsidiary Guarantors named therein and
the Administrative Agent, together with the certificates identified
under the name of such Obligor in Annex 1 thereto, in each case,
accompanied by undated stock powers executed in blank.
(i) Financial Ratios. A certificate of a Financial Officer of
the Company setting forth a calculation of the Debt Ratio and Interest
Coverage Ratio that would have existed on June 30, 1997 under the
assumption that (i) the Merger Transactions and the borrowings to be
made hereunder on the Closing Date had occurred on June 30, 1996 and
(ii) EBITDA were calculated on a pro forma basis for Excel and Telco
for the fiscal quarter ended June 30, 1997, and multiplied by four.
(j) Insurance. A certificate of a Financial Officer of the
Company setting forth the insurance obtained by it in accordance with
the requirements of Section 9.04 and stating that such insurance is in
full force and effect and that all premiums then due and payable
thereon have been paid.
(k) Notice of Account Designation. A Notice of Account
Designation, duly completed.
(l) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York counsel to the
Arranger may reasonably request.
The obligation of any Lender to make its initial extension of
credit hereunder is also subject to the payment by the Company of such fees as
the Company shall have agreed to pay to any Lender or the Administrative Agent
in connection herewith, including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Xxxxxx & XxXxxx, special New York counsel to the
Arranger, and Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., special North
Carolina counsel to the Administrative Agent, in connection with the
negotiation, preparation, execution and delivery of this Agreement and the Notes
and the other Loan Documents and the extensions of credit hereunder (to the
extent that statements for such fees and expenses have been delivered to the
Company).
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7.02 Initial and Subsequent Extensions of Credit. The
obligation of the Lenders to make any Loan or otherwise extend any credit to the
Company upon the occasion of each borrowing or other extension of credit
hereunder (including the initial borrowing) is subject to the further conditions
precedent that, both immediately prior to the making of such Loan or other
extension of credit and also after giving effect thereto and to the intended use
thereof:
(a) the representations and warranties made by the Company in
Section 8, and by each Obligor in each of the other Loan Documents to
which it is a party, shall be true and complete on and as of the date
of the making of such Loan or other extension of credit with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date); and
(b) no Default shall have occurred and be continuing.
Each notice of borrowing or request for the issuance of a Letter of Credit by
the Company hereunder shall constitute a certification by the Company to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless the Company otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 8. Representations and Warranties. The Company
--------------------------------------------
represents and warrants to the Administrative Agent and the Lenders that:
------------------------------------------------------------------------
8.01 Organization; Powers. Each of the Company and its
Restricted Subsidiaries: (a) is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify could
(either individually or in the aggregate) have a Material Adverse Effect.
8.02 Authorization; Enforceability. Each Obligor has all
necessary corporate power, authority and legal right to execute, deliver and
perform its obligations under each of the Loan Documents to which it is a party;
the execution, delivery and performance by each Obligor of each of the Loan
Documents to which it is a party have been duly authorized by
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all necessary corporate or other action on its part (including, without
limitation, any required shareholder approvals); and this Agreement has been
duly and validly executed and delivered by each Obligor and constitutes, and
each of the Notes and the other Loan Documents to which it is a party when
executed and delivered by such Obligor (in the case of the Notes, for value)
will constitute, its legal, valid and binding obligation, enforceable against
each Obligor in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability affecting the enforcement of creditors' rights and
(b) the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
8.03 Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any governmental or regulatory authority
or agency, or any securities exchange, are necessary for the execution, delivery
or performance by any Obligor of this Agreement or any of the other Loan
Documents to which it is a party or for the legality, validity or enforceability
hereof or thereof, except (in the case of the Merger Transactions only) where
the failure to obtain such authorization, approval or consent, or to so file or
register, could not reasonably be expected to have a Material Adverse Effect.
8.04 No Breach. None of the execution and delivery of this
Agreement and the Notes and the other Loan Documents, the consummation of the
transactions herein and therein contemplated or compliance with the terms and
provisions hereof and thereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws of any Obligor, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which any of them
or any of their Property is bound or to which any of them is subject, or
constitute a default under any such agreement or instrument, or result in the
creation or imposition of any Lien upon any Property of the Company or any of
its Subsidiaries pursuant to the terms of any such agreement or instrument,
except (in the case of the Merger Transactions only) where the failure to obtain
such consent could not reasonably be expected to have a Material Adverse Effect.
8.05 Financial Condition; No Material Adverse Change.
(a) The Company has heretofore furnished to each of the
Lenders the following financial statements:
(i) the audited consolidated balance sheet of Excel and
its Subsidiaries as at December 31, 1996 and the related consolidated
statements of income, retained earnings and cash flows of Excel and its
Subsidiaries for the fiscal year ended on such
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date, with the opinion thereon (in the case of such consolidated
balance sheet and statements) of Xxxxxx Xxxxxxxx LLP;
(ii) the unaudited consolidated balance sheet of Excel
and its Subsidiaries as of and for the six-month period ended June 30,
1997 and the related consolidated statements of income, retained
earnings and cash flows of Excel and its Subsidiaries as of and for
such period;
(iii) the audited consolidated balance sheet of Telco and
its Subsidiaries as at December 31, 1996 and the related consolidated
statements of income, retained earnings and cash flows of Telco and its
Subsidiaries for the fiscal year ended on such date, with the opinion
thereon (in the case of such consolidated balance sheet and statements)
of Deloitte & Touche;
(iv) the unaudited consolidated balance sheet of Telco
and its Subsidiaries as of and for the six-month period ended June 30,
1997 and the related consolidated statements of income, retained
earnings and cash flows of the Telco and its Subsidiaries as of and for
such period; and
(v) the unaudited pro forma consolidated balance sheet
of the Company and its Subsidiaries for the period ended June 30, 1997,
prepared under the assumption that the Merger Transactions had occurred
on June 30, 1997 and the related statements of income of the Company
and its Subsidiaries for the six-month period ended June 30, 1997,
prepared under the assumption that the Merger Transactions had occurred
on January 1, 1997.
All such financial statements (actual and pro forma) are complete and correct
and fairly present the consolidated financial condition of the respective
entities and their Subsidiaries, as the case may be, and the consolidated
results of their respective operations for the fiscal year or the six-month
period, as the case may be, ended on such dates, all in accordance with
generally accepted accounting principles and practices applied on a consistent
basis, subject to year-end adjustments for such interim financial statements.
None of such respective entities or any of their Subsidiaries has on the date
hereof any material contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
their respective balance sheets as at such date.
(b) Since June 30, 1997, there has been no material adverse
change in the consolidated financial condition, operations or business taken as
a whole of the Company and
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its Restricted Subsidiaries, from that set forth in the pro forma financial
statements referred to in Section 8.05(a)(v).
8.06 Properties.
(a) Each of Company and its Restricted Subsidiaries owns and
has on the date hereof (and, after giving effect to the Merger Transactions,
will have) good title (subject only to Liens permitted by Section 9.06) to the
Properties shown to be owned in the most recent financial statements referred to
in Section 8.05 (other than Properties disposed of in the ordinary course of
business or otherwise permitted to be disposed of pursuant to Section 9.05).
Each of Company and its Restricted Subsidiaries owns and has on the date hereof
(and, after giving effect to the Merger Transactions, will have) good title to,
and enjoys on the date hereof peaceful and undisturbed possession of, all
Properties (subject only to Liens permitted by Section 9.06) that are necessary
for the operation and conduct of its businesses.
(b) Except as set forth on Schedule VI, each of the Company
and its Restricted Subsidiaries owns, or is licensed to use (and, after giving
effect to the Merger Transactions, will own or be licensed to use), all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Company and its Restricted
Subsidiaries does not (and, after giving effect to the Merger Transactions, will
not) infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
8.07 Litigation. Except as disclosed to the Lenders in
Schedule IV hereto, there are no legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Company) threatened against the Company or
any of its Restricted Subsidiaries that, if adversely determined, could (either
individually or in the aggregate) have a Material Adverse Effect.
8.08 Environmental Matters. Each of the Company and its
Restricted Subsidiaries has obtained (and, after giving effect to the Merger
Transactions, will have obtained) all environmental, health and safety permits,
licenses and other authorizations required under all Environmental Laws to carry
on its business as now being or as proposed to be conducted, except to the
extent failure to have any such permit, license or authorization would not
(either individually or in the aggregate) have a Material Adverse Effect. Each
of such permits, licenses and authorizations is in full force and effect (and,
after giving effect to the Merger Transactions, will be in full force and
effect) and each of the Company and its Restricted Subsidiaries is in compliance
(and, after giving effect to the Merger Transactions,
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will be in compliance) with the terms and conditions thereof, and is also in
compliance (and, after giving effect to the Merger Transactions, will be in
compliance) with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply
therewith would not (either individually or in the aggregate) have a Material
Adverse Effect. In addition, no notice, notification, demand, request for
information, citation, summons or order has been issued (or, after giving effect
to the Merger Transactions, will have been issued), no complaint has been filed
(or after giving effect to the Merger Transactions, will have been filed), no
penalty has been assessed (or, after giving effect to the Merger Transactions,
will have been assessed) and no investigation or review is pending or threatened
(or, after giving effect to the Merger Transactions, will be pending or
threatened) by any governmental or other entity with respect to any alleged
failure by the Company or any of its Restricted Subsidiaries to have any
environmental, health or safety permit, license or other authorization required
under any Environmental Law in connection with the conduct of the business of
the Company or any of its Restricted Subsidiaries or with respect to any
generation, treatment, storage, recycling, transportation, discharge or
disposal, or any Release of any Hazardous Materials generated by the Company or
any of its Restricted Subsidiaries. All environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or that are in the
possession of the Company, Excel, Telco or any of their respective Subsidiaries
in relation to facts, circumstances or conditions at or affecting any site or
facility now or previously owned, operated or leased by the Company, Excel,
Telco or any of their respective Subsidiaries and that could result in a
Material Adverse Effect have been made available to the Arranger.
8.09 Compliance with Laws and Agreements. Each of the Company
and its Restricted Subsidiaries is (and, after giving effect to the Merger
Transactions, will be) in compliance with all laws, regulations and orders of
any governmental or regulatory authority or agency applicable to it or its
Property and all indentures, agreements and other instruments binding upon it or
its Property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
8.10 Investment Company Act. Neither the Company, Excel, Telco
nor any of their respective Subsidiaries is an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
8.11 Public Utility Holding Company Act. Neither the
Company, Excel, Telco nor any of their respective Subsidiaries is a "holding
company", or an "affiliate" of a "holding
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company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8.12 Taxes. After giving effect to the Merger Transactions the
Company and its Subsidiaries will be members of an affiliated group of
corporations filing consolidated returns for Federal income tax purposes, of
which the Company is the "common parent" (within the meaning of Section 1504 of
the Code) of such group. The Company, Excel, Telco and their respective
Subsidiaries have filed all Federal income tax returns and all other material
tax returns that are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company,
Excel, Telco or any of their respective Subsidiaries, except where the failure
to so file or pay could not reasonably be expected to have a Material Adverse
Effect. The charges, accruals and reserves on the books of the Company, Excel,
Telco and their respective Subsidiaries in respect of taxes and other
governmental charges are, in the opinion of the Company, adequate. None of the
Company, Excel, Telco or any of their Subsidiaries has given or been requested
to give a waiver of the statute of limitations relating to the payment of any
Federal, state, local and foreign taxes or other impositions.
8.13 ERISA. Except as set forth on Schedule VII, each Plan,
and, to the knowledge of the Company, each Multiemployer Plan, is in compliance
in all material respects with, and has been administered in all material
respects in compliance with, the applicable provisions of ERISA, the Code and
any other Federal or State law, and no ERISA Event has occurred and is
continuing as to which the Company would be under an obligation to furnish a
report to the Administrative Agent under Section 9.02(c).
8.14 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Obligors to the Administrative Agent or any Lender in connection
with the negotiation, preparation or delivery of this Agreement and the other
Loan Documents or included herein or therein or delivered pursuant hereto or
thereto, when taken as a whole, do not contain any untrue statement of material
fact or omit to state any material fact necessary to make the statements herein
or therein, in light of the circumstances under which they were made, not
misleading and, in the case of projections, are based on reasonable estimates.
All written information furnished after the date hereof by the Company and its
Subsidiaries to the Administrative Agent and the Lenders in connection with this
Agreement and the other Loan Documents and the transactions contemplated hereby
and thereby will be true, complete and accurate in every material respect, or
(in the case of projections) based on reasonable estimates, on the date as of
which such information is stated or certified. There is no fact known to the
Company that could have a Material Adverse Effect (including after giving effect
to the Merger Transactions) that has not been disclosed herein, in the other
Loan Documents or in a report,
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financial statement, exhibit, schedule, disclosure letter or other writing
furnished to the Lenders for use in connection with the transactions
contemplated hereby or thereby.
8.15 Use of Credit. Neither the 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, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
8.16 Material Agreements and Liens.
(a) Part A of Schedule II is a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to any
Indebtedness or any extension of credit (or commitment for any extension of
credit) to, or guarantee by, the Company or any of its Restricted Subsidiaries
outstanding on the date hereof (or that will be outstanding after giving effect
to the Merger Transactions) the aggregate principal or face amount of which
equals or exceeds (or may equal or exceed) $5,000,000, and the aggregate
principal or face amount outstanding or that may become outstanding under each
such arrangement is correctly described in Part A of Schedule II.
(b) Part B of Schedule II is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof (or
that will be outstanding after giving effect to the Merger Transactions) the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $5,000,000 and covering any Property of the Company or any of its
Restricted Subsidiaries, and the aggregate Indebtedness secured (or that may be
secured) by each such Lien and the Property covered by each such Lien is
correctly described in Part B of Schedule II.
(c) Part C of Schedule II sets forth a complete and correct
list of each telephone resale agreement in effect on the date hereof providing
for minimum purchase commitments.
8.17 Capitalization. On the Closing Date it is anticipated
that (after giving effect to the Merger Transactions) the authorized capital
stock of the Company will consist of an aggregate of approximately 133,000,000
issued and outstanding shares of common stock, par value $.001 per share, each
of which shares will be fully paid and nonassessable. There are no outstanding
obligations of the Company or any of its Restricted Subsidiaries to repurchase,
redeem, or otherwise acquire any shares of capital stock of the Company nor are
there any outstanding obligations of the Company or any of its Restricted
Subsidiaries to
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make payments to any Person, such as "phantom stock" payments, where the amount
thereof is calculated with reference to the fair market value or equity value of
the Company or any of its Restricted Subsidiaries, except for obligations which
could not reasonably be expected to have a Material Adverse Effect.
8.18 Subsidiaries, Etc.
(a) Set forth in Part A of Schedule V is a complete and
correct list of all of the Subsidiaries of the Company as of the date hereof
(and, after giving effect to the Merger Transactions), together with, for each
such Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii)
each Person holding ownership interests in such Subsidiary and (iii) the nature
of the ownership interests held by each such Person and the percentage of
ownership of such Subsidiary represented by such ownership interests. Except as
disclosed in Part A of Schedule V, (x) each of the Company and its Subsidiaries
owns, free and clear of Liens, and has the unencumbered right to vote, all
outstanding ownership interests in each Person shown to be held by it in Part A
of Schedule V, (y) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person.
(b) Set forth in Part B of Schedule V is a complete and
correct list of all Investments (other than (i) Investments disclosed in Part A
of Schedule V, (ii) Permitted Investments and (iii) other Investments with an
aggregate fair market value of less than $5,000,000) held by the Company or any
of its Subsidiaries in any Person on the date hereof (or that will be held on
the Closing Date after giving effect to the Merger Transactions) and, for each
such Investment, (x) the identity of the Person or Persons holding such
Investment and (y) the nature of such Investment. Except as disclosed in Part B
of Schedule V, each of the Company and its Subsidiaries owns, free and clear of
all Liens, all such Investments.
(c) None of the Subsidiaries of the Company is, on the date
hereof, subject to any indenture, agreement, instrument or other arrangement of
the type described in Section 9.15.
8.19 Merger Agreement. The Company has heretofore delivered to
the Administrative Agent a complete and correct copy (including all
modifications, waivers and supplements thereto, and exhibits and schedules) of
the Merger Agreement. None of the holders of outstanding shares of stock of the
Company (or warrants or options to acquire the same) will be entitled to any
dissenters or appraisal rights under applicable law in connection with the
Merger Transactions.
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Section 9. Covenants of the Company . The Company covenants
------------------------
and agrees with the Lenders and the Administrative Agent that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by the Company hereunder:
9.01 Financial Statements and Other Information. The Company
shall deliver to the Administrative Agent (together with an adequate number of
copies for each of the Lenders, which the Administrative Agent shall promptly
forward to each Lender):
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company (including the fiscal year
ending December 31, 1997), consolidated statements of income, retained
earnings and cash flows of the Company and its Subsidiaries (and,
separately stated, of the Company and its Restricted Subsidiaries and,
if then a Subsidiary of the Company, of FirstExcel) for such fiscal
year and the related consolidated balance sheets of the Company and its
Subsidiaries (and, separately stated, of the Company and its Restricted
Subsidiaries and, if then a Subsidiary of the Company, of FirstExcel)
as at the end of such fiscal year, setting forth in each case in
comparative form the corresponding consolidated (or, in the case of
FirstExcel, individual) figures for the preceding fiscal year, and
accompanied:
(i) in the case of such consolidated
statements of the Company and its Subsidiaries, and of
FirstExcel, by an opinion thereon of independent certified
public accountants of recognized national standing, which
opinion shall state that such financial statements fairly
present the consolidated financial condition and results of
operations of the Company and its Subsidiaries (or, as the
case may be, the individual financial condition and results of
operations of FirstExcel) as at the end of, and for, such
fiscal year in accordance with generally accepted accounting
principles, provided that if such opinion is qualified in any
respect, such accountants shall have disclosed the basis and
nature of such qualification; and
(ii) in the case of such consolidated
statements of the Company and its Restricted Subsidiaries, by
a certificate of a Financial Officer of the Company, which
certificate shall state that such financial statements fairly
present the consolidated financial condition and results of
operations of the Company and its Restricted Subsidiaries, in
accordance with generally accepted accounting principles,
consistently applied;
(b) as soon as available and in any event within 45 days after
the end of each of the first three quarterly fiscal periods of each
fiscal year of the Company (and
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within 60 days after the end of the quarterly fiscal period ending
December 31, 1997), consolidated statements of income, retained
earnings and cash flows of the Company and its Subsidiaries (and,
separately stated, of the Company and its Restricted Subsidiaries and,
if then a Subsidiary of the Company, of FirstExcel) for such period and
for the period from the beginning of the respective fiscal year to the
end of such period, and the related consolidated balance sheets of the
Company and its Subsidiaries (and, separately stated, of the Company
and its Restricted Subsidiaries and, if then a Subsidiary of the
Company, of FirstExcel) as at the end of such period, setting forth in
each case in comparative form the corresponding consolidated (or, in
the case of FirstExcel, individual) figures for the corresponding
periods in the preceding fiscal year (except that, in the case of
balance sheets, such comparison shall be to the last day of the prior
fiscal year), accompanied by a certificate of a Financial Officer of
the Company, which certificate shall state that such financial
statements fairly present the consolidated financial condition and
results of operations of the Company and its Subsidiaries (or, as the
case may be, of the Company and its Restricted Subsidiaries or
FirstExcel), in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for, such
period (subject to normal year-end audit adjustments);
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section 9.01, a certificate of a
Financial Officer of the Company (i) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing the
action that the Company has taken or proposes to take with respect
thereto), (ii) setting forth a calculation of the Debt Ratio as at the
last day of the period covered by said statements, (iii) in the case of
the financial statements as at the fiscal year ending December 31,
1997, a separate itemization of the merger-related charges (as
determined by the Company or Telco, as the case may be) referred to in
the definition of "Merger-Related Charges" in Section 1.01 and (iv)
setting forth in reasonable detail the computations necessary to
determine whether the Company is in compliance with Sections 9.10 and
9.11 as of the end of the respective quarterly fiscal period or fiscal
year;
(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Company shall have filed with the Securities and Exchange Commission
(or any governmental agency substituted therefor) or any national
securities exchange;
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(e) promptly upon the mailing thereof to the shareholders of
the Company generally or to holders of Subordinated Indebtedness
generally, copies of all financial statements, reports and proxy
statements so mailed; and
(f) from time to time such other information regarding the
financial condition, operations, business or prospects of the Company
or any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA), or compliance with the terms of this Agreement and
the other Loan Documents, as any Lender or the Administrative Agent may
reasonably request.
9.02 Notices of Material Events. The Company shall deliver to
the Administrative Agent (together with an adequate number of copies for each of
the Lenders, which the Administrative Agent shall promptly forward to each
Lender):
(a) promptly after the Company knows or has reason to believe
that any Default has occurred, notice of such Default;
(b) prompt notice of all legal or arbitral proceedings, and of
all proceedings by or before any governmental or regulatory authority
or agency, and of any material development in respect of such legal or
other proceedings, affecting the Company or any of its Subsidiaries,
except proceedings that, if adversely determined, would not (either
individually or in the aggregate) have a Material Adverse Effect;
(c) as soon as possible, and in any event within ten days
after the Company knows or has reason to believe that any ERISA Event
has occurred or exists, notice of the occurrence of such ERISA Event
and a copy of any report or notice required to be filed with or given
to the PBGC by the Company or an ERISA Affiliate with respect to such
ERISA Event; and
(d) prompt notice of any other development that results in, or
could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 9.02 shall be accompanied by a
statement of a Financial Officer or other executive officer of the Company
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
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9.03 Existence, Etc. The Company will, and will cause each
of its Restricted Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that
nothing in this Section 9.03 shall prohibit any transaction expressly
permitted under Section 9.05);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
and material contracts if failure to comply with such requirements
could (either individually or in the aggregate) have a Material Adverse
Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles consistently applied; and
(f) permit representatives of any Lender or the Administrative
Agent, during normal business hours, to examine, copy and make extracts
from its books and records, to inspect any of its Properties, and to
discuss its business and affairs with its officers, all to the extent
reasonably requested by such Lender or the Administrative Agent (as the
case may be).
9.04 Insurance. The Company will, and will cause each of its
Restricted Subsidiaries to, maintain insurance with financially sound and
reputable insurance companies, and with respect to Property and risks of a
character usually maintained by corporations engaged in the same or similar
business similarly situated, against loss, damage and liability of the kinds and
in the amounts customarily maintained by such corporations.
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9.05 Prohibition of Fundamental Changes.
(a) Mergers. The Company will not, nor will it permit any of
its Restricted Subsidiaries to, enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution).
(b) Acquisitions. The Company will not, nor will it permit any
of its Restricted Subsidiaries to, acquire any business or Property from, or
capital stock of, or be a party to any acquisition of, any Person, unless
(i) at the time thereof, and after giving effect
thereto, no Default shall have occurred and be continuing,
(ii) in the case of an acquisition in an amount
exceeding $50,000,000, the Company shall be in pro forma compliance
with Section 9.10(a) and 9.10(b) after giving effect thereto (and for
purposes of determining such pro forma compliance (x) EBITDA shall be
calculated for the period of four fiscal quarters most recently ended
prior to the date of such acquisition for which financial statements
for the Company are available, under the assumption that such
acquisition shall have occurred at the beginning of such period, (y)
Indebtedness shall be calculated as at the date of such acquisition,
after giving effect to any Indebtedness incurred or assumed in
connection with such acquisition and (z) Interest Expense shall be
calculated, using the blended average interest rates in effect on the
date of such acquisition for all Indebtedness of the Company and its
Restricted Subsidiaries, under the assumption that the Indebtedness
calculated pursuant to the preceding clause (y) had been outstanding
during the entire period referred to in the preceding clause (x)) and
the Company shall have delivered to the Administrative Agent (together
with sufficient copies for each of the Lenders, which the
Administrative Agent shall promptly forward to each Lender) a
certificate of a Financial Officer showing calculations in reasonable
detail to demonstrate such compliance, and
(iii) if such acquisition shall occur on or before
September 30, 1998 and the Debt Ratio after giving effect thereto shall
be greater than 3.00 to 1, the Majority Lenders shall have consented
thereto.
(c) Restrictions on Sales. The Company will not, nor will it
permit any of its Restricted Subsidiaries to, convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or a
substantial part of the business or Property of the Company and its Restricted
Subsidiaries, on a consolidated basis, whether now owned or hereafter acquired
(including, without limitation, receivables and leasehold interests, but
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excluding (i) obsolete or worn-out Property, tools or equipment no longer used
or useful in its business, (ii) any inventory or other Property sold or disposed
of in the ordinary course of business and on ordinary business terms and (iii)
Permitted Receivables Transactions).
(d) Sale and Leaseback. The Company will not, nor will it
permit any of its Restricted Subsidiaries to, enter into any transaction
pursuant to which it shall convey, sell, transfer or otherwise dispose of any
Property and, as part of the same transaction or series of transactions, rent or
lease as lessee or similarly acquire the right to possession or use of, such
Property, or other Property which it intends to use for the same purpose or
purposes as such Property, to the extent such transaction gives rise to
Indebtedness, unless any Indebtedness arising in connection with such
transaction shall be permitted under Section 9.07(f).
(e) Certain Permitted Transactions. Notwithstanding the
foregoing provisions of this Section 9.05:
(i) any Restricted Subsidiary of the Company may be
merged or consolidated with or into: (A) the Company if the Company
shall be the continuing or surviving corporation or (B) any other such
Restricted Subsidiary; provided that (x) if any such transaction shall
be between a Restricted Subsidiary and a Wholly Owned Restricted
Subsidiary, the Wholly Owned Restricted Subsidiary shall be the
continuing or surviving corporation and (y) if any such transaction
shall be between a Subsidiary Guarantor and a Restricted Subsidiary not
a Subsidiary Guarantor, and such Subsidiary Guarantor is not the
continuing or surviving corporation, then the continuing or surviving
corporation shall have assumed all of the obligations of such
Subsidiary Guarantor hereunder and under the other Loan Documents; and
(ii) any Restricted Subsidiary of the Company may
sell, lease, transfer or otherwise dispose of any or all of its
Property (upon voluntary liquidation or otherwise) to the Company or a
Wholly Owned Restricted Subsidiary of the Company; provided that if any
such sale is by a Subsidiary Guarantor to a Restricted Subsidiary of
the Company not a Subsidiary Guarantor, then such Subsidiary shall have
assumed all of the obligations of such Subsidiary Guarantor hereunder
and under the other Loan Documents.
9.06 Liens. The Company will not, nor will it permit any of
its Restricted Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens in existence on the date hereof in an amount up to
but not exceeding $10,000,000 in the aggregate, excluding (after the
making of the initial extension of
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credit hereunder) any Lien identified in Schedule II that secures
Indebtedness that is to be repaid on the Closing Date;
(b) Liens created pursuant to the Pledge Agreement;
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Company or the affected
Restricted Subsidiaries, as the case may be, in accordance with GAAP;
(d) landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business that are not overdue for a period of more than 30
days or that are being contested in good faith and by appropriate
proceedings and Liens securing judgments but only to the extent for an
amount and for a period not resulting in an Event of Default under
clause (k) of Section 10;
(e) pledges or deposits under workers' compensation,
unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Property or minor imperfections in title
thereto that, in the aggregate, are not material in amount, and that do
not in any case materially detract from the value of the Property
subject thereto or interfere with the ordinary conduct of the business
of the Company or any of its Restricted Subsidiaries;
(h) Liens on amounts payable to the Company and its Restricted
Subsidiaries under billing and collection agreements entered into with
local exchange carriers in the ordinary course of business;
(i) Liens created pursuant to Permitted Receivables
Transactions; and
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(j) Liens upon real and/or tangible personal Property acquired
after the date hereof (by purchase, construction or otherwise) by the
Company or any of its Restricted Subsidiaries, each of which Liens
either (A) existed on such Property before the time of its acquisition
and was not created in anticipation thereof or (B) was created solely
for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, the cost (including the cost of
construction) of such Property; provided that (i) no such Lien shall
extend to or cover any Property of the Company or such Restricted
Subsidiary other than the Property so acquired and improvements thereon
and such Lien and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction, (ii) the principal amount of Indebtedness secured by any
such Lien shall at no time exceed the fair market value (as determined
in good faith by a Financial Officer of the Company) of such Property
and (iii) such Indebtedness is permitted under Section 9.07(f).
9.07 Indebtedness. The Company will not, nor will it permit
any of its Restricted Subsidiaries to, create, incur or suffer to exist any
Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof, excluding
(after the making of the initial extension of credit hereunder) any
Indebtedness identified in Schedule II that is to be repaid on the
Closing Date;
(c) Subordinated Indebtedness or Qualified Senior
Indebtedness, so long as at the time of the incurrence of any such
Indebtedness, and after giving effect thereto, no Default shall have
occurred and be continuing and the Company shall be in pro forma
compliance with Section 9.10 (the determination of such pro forma
compliance to be calculated, as at the end of and for the period of
four fiscal quarters most recently ended prior to the date of such
incurrence for which financial statements of the Company and its
Restricted Subsidiaries are available, under the assumption that such
incurrence shall have occurred at the beginning of the applicable
period) and the Company shall have delivered to the Administrative
Agent (together with sufficient copies for each of the Lenders, which
the Administrative Agent shall promptly forward to each Lender) a
certificate of a Financial Officer showing such calculations in
reasonable detail to demonstrate such compliance;
(d) Indebtedness of the Company or any of its Restricted
Subsidiaries to the Company or any of its Restricted Subsidiaries,
provided that any Restricted Subsidiary that is not a Subsidiary
Guarantor hereunder shall have agreed, pursuant to an
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instrument in form satisfactory to the Administrative Agent, that any
such Indebtedness of the Company to such Subsidiary is subordinated to
the obligations of the Company hereunder on terms substantially the
same as set forth in Section 12.14;
(e) Indebtedness of the Company or its Restricted Subsidiaries
incurred pursuant to Permitted Receivables Transactions up to but not
exceeding $150,000,000 at any one time outstanding;
(f) additional Indebtedness of the Company and its Restricted
Subsidiaries (including, without limitation, Capital Lease Obligations
and other Indebtedness secured by Liens permitted under Section
9.06(j)) up to but not exceeding $50,000,000 at any one time
outstanding; and
(g) additional Indebtedness of the Company (none of which
shall be secured) up to but not exceeding $100,000,000 at any one time
outstanding.
9.08 Investments. The Company will not, nor will it permit any
of its Restricted Subsidiaries to, make or permit to remain outstanding any
Investments except:
(a) Investments outstanding on the date hereof and identified
in Part B of Schedule V;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Company and its Wholly Owned Domestic
Restricted Subsidiaries in the Company and its Wholly Owned Domestic
Restricted Subsidiaries, including newly-acquired Wholly Owned Domestic
Restricted Subsidiaries;
(e) Investments by the Company and its Wholly Owned Foreign
Subsidiaries in the Company and its Wholly Owned Foreign Subsidiaries,
including newly-acquired Wholly Owned Foreign Subsidiaries, up to but
not exceeding $100,000,000 at any one time outstanding;
(f) Hedging Agreements entered into as bona fide xxxxxx and
not for speculation purposes;
(g) Permitted Receivables Transactions;
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(h) Investments by the Company or any of its Restricted
Subsidiaries in FirstExcel in an amount up to but not exceeding
$25,000,000 at any one time outstanding; and
(i) additional Investments (other than in Wholly Owned
Restricted Subsidiaries) up to but not exceeding $50,000,000 in the
aggregate.
The aggregate amount of an Investment at any one time outstanding for purposes
of clauses (e), (h) or (i) above, shall be deemed to be equal to (A) the
aggregate amount of cash, together with the aggregate fair market value of
Property (excluding shares of capital stock of the Company), loaned, advanced,
contributed, transferred or otherwise invested that gives rise to such
Investment minus (B) the aggregate amount of dividends, distributions or other
payments received in cash in respect of such Investment; the amount of an
Investment shall not in any event be reduced by reason of any write-off of such
Investment.
9.09 Restricted Payments. The Company will not, nor will it
permit any of its Restricted Subsidiaries to, declare or make any Restricted
Payment at any time; provided that the Company may make Restricted Payments, so
long as (a) at the time of such Restricted Payment, and after giving effect
thereto, no Default shall have occurred and be continuing and (b) the aggregate
amount of such Restricted Payments made during the period commencing on the
Closing Date through and including the date of such Restricted Payment shall not
exceed the sum of (i) $25,000,000 plus (ii) for each complete fiscal year in
such period, 10% of Excess Cash Flow for such fiscal year.
Nothing herein shall be deemed to prohibit the payment of
dividends by any Restricted Subsidiary of the Company to the Company or to any
other Restricted Subsidiary of the Company.
9.10 Certain Financial Covenants.
(a) Debt Ratio. The Company will not permit the Debt Ratio as
of any date during the following respective periods, to exceed the following
respective ratios:
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Period Ratio
--------------------------- -----------
From the Closing Date
through September 29, 1998 4.00 to 1
From September 30, 1998
through September 29, 1999 3.50 to 1
From September 30, 1999
through March 30, 2001 3.00 to 1
From March 31, 2001
and at all times thereafter 2.50 to 1
(b) Interest Coverage Ratio. The Company will not permit the
Interest Coverage Ratio to be less than the following respective ratios as at
any time during the following respective periods:
Period Ratio
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From the Closing Date
through September 29, 1998 2.50 to 1
From September 30, 1998
through September 29, 1999 3.00 to 1
From September 30, 1999
and at all times thereafter 3.50 to 1
(c) Fixed Charges Ratio. The Company will not permit the Fixed
Charges Ratio as of any date to be less than 1.25 to 1.
9.11 Capital Expenditures. The Company will not permit the
aggregate amount of Capital Expenditures by the Company and its Restricted
Subsidiaries to exceed the following respective amounts for the following
respective fiscal years:
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Fiscal Year Amount
----------- ------
From the Closing Date
through December 31, 1997 $50,000,000
Fiscal Year Ending
December 31, 1998 $150,000,000
Fiscal Year Ending
December 31, 1999
and each fiscal year
thereafter $125,000,000
If the aggregate amount of Capital Expenditures for any fiscal year set forth in
the schedule above shall be less than the amount set forth opposite such fiscal
year in the schedule above, then the shortfall shall be added to the amount of
Capital Expenditures permitted for the immediately succeeding (but not any
other) fiscal year and, for purposes hereof, the amount of Capital Expenditures
made during any fiscal year shall be deemed to have been made first from the
amount of any carryover from any previous fiscal year and last from the amount
permitted in the schedule above.
9.12 Subordinated Indebtedness; Qualified Senior Indebtedness.
The Company will not, nor will it permit any of its Restricted Subsidiaries to,
purchase, redeem, retire or otherwise acquire for value, or set apart any money
for a sinking, defeasance or other analogous fund for the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or prepayment
of the principal of or interest on, or any other amount owing in respect of, any
Subordinated Indebtedness or Qualified Senior Indebtedness, except for regularly
scheduled payments, prepayments or redemptions of principal and interest in
respect thereof required pursuant to the instruments evidencing such
Subordinated Indebtedness or Qualified Senior Indebtedness, as the case may be.
9.13 Lines of Business. The Company will not, nor will it
permit any of its Restricted Subsidiaries to, engage in any business other than
the business of communications and direct broadcast satellite, financial
services (limited to FirstExcel), information processing, internet, data and
on-line services, home security, as well as the multimedia and network marketing
of products and services related to any of the above and multimedia and network
marketing of office supplies, electricity and other utilities, exclusively on a
resale basis, so long as the aggregate revenues derived from such marketing of
office supplies, electricity and other utilities in any fiscal quarter shall not
exceed 15% of the aggregate revenues of the
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Company and its Restricted Subsidiaries for such fiscal quarter, and other
businesses reasonably related to the foregoing.
In addition to the foregoing, (a) the Company will not permit
FirstExcel to engage in any business other than financial services permitted
under applicable regulations of the Office of Thrift Supervision and (b) the
Company will not engage in the business of providing home security other than
within the United States of America and will not permit the aggregate amount of
Capital Expenditures and Investments (determined in the manner provided in the
last sentence of Section 9.08) in the home security business by the Company and
its Restricted Subsidiaries to exceed $50,000,000 in the aggregate (as to all
Investments in the home security business) at any one time.
9.14 Transactions with Affiliates. Except as expressly
permitted by this Agreement, the Company will not, nor will it permit any of its
Restricted Subsidiaries to, directly or indirectly: (a) make any Investment in
an Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; or (d) enter into any other transaction
directly or indirectly with or for the benefit of an Affiliate (including,
without limitation, Guarantees and assumptions of obligations of an Affiliate);
provided that (x) any Affiliate who is an individual may serve as a director,
officer or employee of the Company or any of its Restricted Subsidiaries and
receive reasonable compensation for his or her services in such capacity and (y)
the Company and its Restricted Subsidiaries may enter into transactions (other
than extensions of credit by the Company or any of its Restricted Subsidiaries
to an Affiliate) providing for the leasing of Property, the rendering or receipt
of services or the purchase or sale of inventory and other Property in the
ordinary course of business if the monetary or business consideration arising
therefrom would be substantially as advantageous to the Company and its
Restricted Subsidiaries as the monetary or business consideration that would
obtain in a comparable transaction with a Person not an Affiliate.
9.15 Restrictive Agreements. The Company will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Company or any Restricted Subsidiary to create, incur or permit to exist any
Lien upon any of its property or assets, or (b) the ability of any Restricted
Subsidiary to pay dividends or other distributions with respect to any shares of
its capital stock or to make or repay loans or advances to the Company or any
other Restricted Subsidiary or to Guarantee Indebtedness of the Company or any
other Restricted Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by this Agreement, (ii) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule III (but shall apply to any extension or renewal
of, or any amendment
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or modification expanding the scope of, any such restriction or condition),
(iii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Restricted Subsidiary pending
such sale, so long as such restrictions and conditions apply only to the
Restricted Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (v) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof and (vi) clause (a) of the foregoing shall not apply to
restrictions upon the creation of Liens on accounts receivable of the Company
and its Restricted Subsidiaries to be collected under agreements entered into in
the ordinary course of business with local exchange carriers or associations of
local exchange carriers.
9.16 Use of Proceeds. The Company will use the proceeds of the
Loans hereunder to finance the cash portion of the Merger Transactions, to pay
for fees and expenses relating thereto, to finance general corporate purposes,
including working capital and for Capital Expenditures and acquisitions
permitted hereunder (in compliance with all applicable legal and regulatory
requirements, including, without limitation, Regulations G, T, U and X and the
Securities Act of 1933 and the Securities Exchange Act of 1934 and the
regulations thereunder); provided that neither the Administrative Agent nor any
Lender shall have any responsibility as to the use of any of such proceeds.
9.17 Certain Obligations Respecting Restricted Subsidiaries.
(a) Subsidiary Guarantors. The Company will take such action,
and will cause each of its Subsidiaries, other than Unrestricted Subsidiaries
and any Foreign Subsidiary, to take such action from time to time as shall be
necessary to ensure that such Subsidiaries (excluding Unrestricted Subsidiaries
and Foreign Subsidiaries) are "Subsidiary Guarantors" hereunder. Without
limiting the generality of the foregoing, in the event that the Company or any
of its Restricted Subsidiaries shall form or acquire any new Subsidiary
(excluding a Foreign Subsidiary) that shall constitute a Restricted Subsidiary
hereunder, the Company and its Restricted Subsidiaries will cause such new
Subsidiary to
(i) become a "Subsidiary Guarantor" hereunder pursuant
to a Guarantee Assumption Agreement,
(ii) deliver such proof of corporate action, incumbency
of officers, opinions of counsel and other documents as is consistent
with those delivered by each Obligor pursuant to Section 7.01 on the
Closing Date or as the Administrative Agent shall have requested.
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In addition, upon the formation or acquisition of any new Subsidiary, the
Company shall cause all shares of capital stock of such Subsidiary to be
delivered in pledge to the Administrative Agent pursuant to the Pledge
Agreement, provided that in the case of a Foreign Subsidiary, the Company shall
only be required to cause 65% of the voting stock and 100% of the non-voting
stock to be so delivered.
(b) Ownership of Subsidiaries. The Company will, and will
cause each of its Subsidiaries to, take such action from time to time as shall
be necessary to ensure that each of its Restricted Subsidiaries, other than
Subsidiaries in which Investments have been made pursuant to Section 9.08(i), is
a Wholly Owned Subsidiary.
9.18 Modifications of Certain Documents. The Company will not
consent to any modification, supplement or waiver of any of the provisions of
any agreement, instrument or other document evidencing or relating to Qualified
Senior Indebtedness, Subordinated Indebtedness or the Merger Transactions
without the prior consent of the Administrative Agent (with the approval of the
Majority Lenders).
Section 10. Events of Default. If one or more of the
-----------------
following events (herein called "Events of Default") shall occur and be
continuing:
(a) the Company shall default in the payment of any principal
of any Loan or any Reimbursement Obligation when due (whether at stated
maturity or at mandatory or optional prepayment);
(b) the Company shall default in the payment of any interest
on any Loan, any fee or any other amount (other than an amount referred
to in clause (a) of this Section 10) payable by it hereunder or under
any other Loan Document when due and such default shall have continued
unremedied for five or more Business Days;
(c) any representation, warranty or certification made or
deemed made herein or in any other Loan Document (or in any
modification or supplement hereto or thereto) by the Company or any of
its Restricted Subsidiaries, or any certificate furnished to any Lender
or the Administrative Agent pursuant to the provisions hereof or
thereof, shall prove to have been false or misleading as of the time
made or furnished in any material respect;
(d) the Company shall default in the performance of any of its
obligations under any of Sections 9.02, 9.05, 9.06, 9.07, 9.08, 9.09,
9.10, 9.11, 9.12, 9.14, 9.15, 9.17 or 9.18;
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(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Section 10) or any other
Loan Document and such failure shall continue unremedied for a period
of 30 days after notice thereof to the Company by the Administrative
Agent or any Lender (through the Administrative Agent);
(f) the Company or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its
other Indebtedness aggregating $10,000,000 or more; or the Company or
any of its Restricted Subsidiaries shall default in the payment when
due of any amount aggregating $10,000,000 or more under any Hedging
Agreement;
(g) any event specified in any note, agreement, indenture or
other document evidencing or relating to any other Indebtedness
aggregating $10,000,000 or more of the Company or any of its Restricted
Subsidiaries shall occur if the effect of such event is to cause, or
(with the giving of any notice or the lapse of time or both) to permit
the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, such Indebtedness to become
due, or to be prepaid in full (whether by redemption, purchase, offer
to purchase or otherwise), prior to its stated maturity or to have the
interest rate thereon reset to a level so that securities evidencing
such Indebtedness trade at a level specified in relation to the par
value thereof; or any event specified in any Hedging Agreement shall
occur if the effect of such event is to cause, or (with the giving of
any notice or the lapse of time or both) to permit, termination or
liquidation payment or payments aggregating $10,000,000 or more to
become due;
(h) a proceeding or case shall be commenced, without the
application or consent of the Company or its affected Restricted
Subsidiary, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or winding-up, or
the composition or readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the like of the
Company or such Restricted Subsidiary or of all or any substantial part
of its Property, or (iii) similar relief in respect of the Company or
such Restricted Subsidiary under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an
order, judgment or decree approving or ordering any of the foregoing
shall be entered and continue unstayed and in effect, for a period of
60 or more days; or an order for relief against the Company or any of
its Restricted Subsidiaries shall be entered in an involuntary case
under the Bankruptcy Code;
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(i) the Company or any of its Restricted Subsidiaries shall
(i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, examiner or liquidator
of itself or of all or a substantial part of its Property, (ii) make a
general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the Bankruptcy Code, (iv) file a petition seeking
to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition
filed against it in an involuntary case under the Bankruptcy Code or
(vi) take any corporate action for the purpose of effecting any of the
foregoing;
(j) the Company or any of its Restricted Subsidiaries shall
admit in writing its inability to, or be generally unable to, pay its
debts as such debts become due;
(k) a final judgment or judgments for the payment of money of
$10,000,000 or more in the aggregate shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against the Company or any of its Restricted Subsidiaries and the same
shall not be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be procured,
within 60 days from the date of entry thereof and the Company or the
relevant Restricted Subsidiary shall not, within such period of 60
days, or such longer period during which execution of the same shall
have been stayed, appeal therefrom and cause the execution thereof to
be stayed during such appeal;
(l) an event or condition specified in Section 9.02(c) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events
or conditions, the Company or any ERISA Affiliate shall incur or in the
opinion of the Majority Lenders shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or the PBGC (or any
combination of the foregoing) that, in the determination of the
Majority Lenders, would (either individually or in the aggregate) have
a Material Adverse Effect;
(m) a reasonable basis shall exist for the assertion against
the Company or any of its Restricted Subsidiaries, or any predecessor
in interest of the Company or any of its Restricted Subsidiaries or
Affiliates, of (or there shall have been asserted against the Company
or any of its Restricted Subsidiaries) any claims or liabilities,
whether accrued, absolute or contingent, based on or arising from the
generation, storage, transport, handling or disposal of Hazardous
Materials by the Company or any of its Restricted Subsidiaries,
Affiliates or predecessors that, in the judgment of the Majority
Lenders, are reasonably likely to be determined adversely to the
Company or any of its
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Restricted Subsidiaries, and the amount thereof (either individually or
in the aggregate) is reasonably likely to have a Material Adverse
Effect (insofar as such amount is payable by the Company or any of its
Restricted Subsidiaries but after deducting any portion thereof that is
reasonably expected to be paid by other creditworthy Persons jointly
and severally liable therefor);
(n) during any period of 13 consecutive calendar months (i) a
majority of the Board of Directors of the Company shall no longer be
composed of individuals (A) who were members of such Board on the first
day of such period, (B) whose election or nomination to such Board was
approved by individuals referred to in clause (A) above constituting at
the time of such election or nomination at least a majority of such
Board or (C) whose election or nomination to such Board was approved by
individuals referred to in clauses (A) and (B) above constituting at
the time of such election or nomination at least a majority of such
Board or (ii) any Person, other than a Permitted Investor, shall obtain
more than 30% of the voting capital stock of the Company unless a
single Permitted Investor (including Permitted Investors Controlled by
such single Permitted Investor) shall also hold a percentage of the
voting capital stock of the Company equal to or greater than the
percentage of such voting capital stock owned by such Person; or
(o) during any period that FirstExcel is a Subsidiary of the
Company and conducting (or licensed to conduct) a financial services
business, either (i) FirstExcel shall cease for any reason to be a
"qualified thrift lender" under 12 C.F.R. ss.583.17 or (ii) the Company
shall cease for any reason to be a savings and loan holding company
exempt under 12 C.F.R. ss.584.2a(a)(1)(i) from the limitations of 12
C.F.R. ss.584.2(b), and the applicable regulatory authority shall have
notified the Company that it shall be required to divest itself of
FirstExcel or take other action to requalify as a "qualified thrift
lender" or an exempt savings and loan holding company, as the case may
be (and the Company shall have failed to so divest itself of
FirstExcel, or the Company or FirstExcel shall have failed to take such
action to so requalify, within the period of time prescribed by such
regulatory authority);
THEREUPON:
(1) in the case of an Event of Default other than one referred
to in clause (h) or (i) of this Section 10 with respect to any Obligor,
the Administrative Agent may and, upon request of the Majority Lenders
will, by notice to the Company, terminate the Commitments and/or
declare the principal amount then outstanding of, and the accrued
interest on, the Loans, the Reimbursement Obligations and all other
amounts payable by the Obligors hereunder and under the Notes
(including, without limitation,
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any amounts payable under Section 5.05 or 5.06) to be forthwith due and
payable, whereupon such amounts shall be immediately due and payable
without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by each Obligor; and
(2) in the case of the occurrence of an Event of Default
referred to in clause (h) or (i) of this Section 10 with respect to any
Obligor, the Commitments shall automatically be terminated and the
principal amount then outstanding of, and the accrued interest on, the
Loans, the Reimbursement Obligations and all other amounts payable by
the Obligors hereunder and under the Notes (including, without
limitation, any amounts payable under Section 5.05 or 5.06) shall
automatically become immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are
hereby expressly waived by each Obligor.
In addition, upon the occurrence and during the continuance of
any Event of Default (if the Administrative Agent has declared the principal
amount then outstanding of, and accrued interest on, the Loans and all other
amounts payable by the Company hereunder and under the Notes to be due and
payable), the Company agrees that it shall, if requested by the Administrative
Agent or the Majority Lenders through the Administrative Agent (and, in the case
of any Event of Default referred to in clause (h) or (i) of this Section 10 with
respect to the Company, forthwith, without any demand or the taking of any other
action by the Administrative Agent or such Lenders) provide cover for the Letter
of Credit Liabilities by paying to the Administrative Agent immediately
available funds in an amount equal to the then aggregate undrawn face amount of
all Letters of Credit, which funds shall be held by the Administrative Agent in
a segregated account (as collateral security in the first instance for the
Letter of Credit Liabilities) until such time as the Letters of Credit shall
have been terminated and all of the Letter of Credit Liabilities paid in full.
Section 11. The Administrative Agent.
------------------------
11.01 Appointment, Powers and Immunities. Each Lender hereby
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the other Loan Documents with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and of the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 11.05 and the first sentence of Section 11.06 shall
include reference to its affiliates and its own and its affiliates' officers,
directors, employees and agents):
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(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be
a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement
or in any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any other Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other Loan Document or any other document
referred to or provided for herein or therein or for any failure by the
Company or any other Person to perform any of its obligations hereunder
or thereunder;
(c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan
Document; and
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other Loan Document or under
any other document or instrument referred to or provided for herein or
therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent, together with the consent of the Company to
such assignment or transfer (to the extent required by Section 12.06(b)).
11.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including, without limitation, any thereof by telephone,
telecopy, telegram or cable) reasonably believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Administrative Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or thereunder in accordance with instructions
given by the Majority Lenders, and such instructions of the Majority Lenders and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders.
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11.03 Defaults. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or the Company specifying
such Default and stating that such notice is a "Notice of Default". In the event
that the Administrative Agent receives such a notice of the occurrence of a
Default, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall (subject to Section 11.07) take such
action with respect to such Default as shall be directed by the Majority
Lenders, provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Majority Lenders or all of the Lenders.
11.04 Rights as a Lender. With respect to its Commitment and
the Loans made by it, First Union (and any successor acting as Administrative
Agent) in its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not acting as the Administrative Agent, and the term "Lender" or "Lenders"
shall, unless the context otherwise indicates, include the Administrative Agent
in its individual capacity. First Union (and any successor acting as
Administrative Agent) and its affiliates may (without having to account therefor
to any Lender) accept deposits from, lend money to, make investments in and
generally engage in any kind of banking, trust or other business with the
Obligors (and any of their Subsidiaries or Affiliates) as if it were not acting
as the Administrative Agent, and First Union and its affiliates (and any such
successor) and its affiliates may accept fees and other consideration from the
Obligors for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
11.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent and the Arranger (to the extent not reimbursed under
Section 12.04, but without limiting the obligations of the Company under Section
12.04,) ratably in accordance with the aggregate principal amount of the Loans
and Reimbursement Obligations held by the Lenders (or, if no Loans or
Reimbursement Obligations are at the time outstanding, ratably in accordance
with their respective Commitments), for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against the Administrative Agent or the Arranger (including by
any Lender) arising out of or by reason of any investigation in or in any way
relating to or arising out of this Agreement or any other Loan Document or any
other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and
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expenses that the Company is obligated to pay under Section 12.04, but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
11.06 Non-Reliance on Administrative Agent, Arranger and Other
Lenders. Each Lender agrees that it has, independently and without reliance on
the Administrative Agent, the Arranger or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis of the Company and its Subsidiaries and decision to enter into this
Agreement and that it will, independently and without reliance upon the
Administrative Agent, the Arranger or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
Agreement or under any other Loan Document. Neither the Administrative Agent nor
the Arranger shall be required to keep itself informed as to the performance or
observance by any Obligor of this Agreement or any of the other Loan Documents
or any other document referred to or provided for herein or therein or to
inspect the Properties or books of the Company or any of its Subsidiaries.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
neither the Administrative Agent nor the Arranger shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Company or any of
its Subsidiaries (or any of their affiliates) that may come into the possession
of the Administrative Agent, the Arranger or any of their respective affiliates.
11.07 Failure to Act. Except for action expressly required of
the Administrative Agent hereunder and under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action.
11.08 Resignation or Removal of Administrative Agent. Subject
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Company, and the Administrative Agent may be
removed at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders, with the consent of the Company,
which consent shall not be unreasonably withheld, shall have the right to
appoint, a successor Administrative Agent, provided that the consent of the
Company
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shall not be required if a Default shall have occurred or be continuing or if no
successor has been appointed within 30 days of such retiring Administrative
Agent's giving of notice of resignation or the Majority Lenders' removal of the
retiring Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders and the Company and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent's giving of notice of resignation or the Majority Lenders' removal of the
retiring Administrative Agent, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, that shall be a
bank that has an office in New York, New York. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, 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 or removal hereunder as Administrative Agent, the provisions
of this Section 11 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent.
11.09 Consents under Pledge Agreement. The Administrative
Agent may, with the prior consent of the Majority Lenders (but not otherwise),
consent to any modification, supplement or waiver under the Pledge Agreement,
provided that, without the prior consent of each Lender, the Administrative
Agent shall not (except as provided herein or in the Pledge Agreement) release
any collateral or otherwise terminate any Lien under the Pledge Agreement, agree
to additional obligations being secured by such collateral security (unless the
Lien for such additional obligations shall be junior to the Lien in favor of the
other obligations secured by such Pledge Agreement, in which event the
Administrative Agent may consent to such junior Lien provided that it obtains
the consent of Majority Lenders thereto) or alter the relative priorities of the
obligations entitled to the benefits of the Liens created under the Pledge
Agreement, except that no such consent shall be required, and the Administrative
Agent is hereby authorized, to release any Lien covering Property that is the
subject of either a disposition of Property permitted hereunder or a disposition
to which the Majority Lenders have consented.
As more particularly provided in the Pledge Agreement, upon
payment in full of the principal of and interest on, and all other amounts owing
in respect of, the Loans, the Reimbursement Obligations and all other
obligations owing to the Lenders or the Administrative Agent hereunder or under
the Loan Documents, and the termination or expiration of the Commitments and all
Letters of Credit, the Administrative Agent may release the collateral security
provided by the Obligors pursuant to the Pledge Agreement.
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11.10 Arranger and Syndication and Documentation Agents.
Except as expressly provided herein, neither the Arranger, nor any of the
Syndication or Documentation Agents, shall have any rights or obligations under
this Agreement or any of the other Loan Documents except in its capacity as a
"Lender" hereunder.
Section 12. Miscellaneous.
-------------
12.01 Notices. All notices, requests and other communications
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) and delivered to the intended
recipient, as follows:
(a) if to the Company or any Subsidiary Guarantor, to EXCEL
Communications, Inc. at 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, Attention of X. Xxxxxxxxxxx Dance, Esq.
(Telecopy No. 000-000-0000;
(b) if to the Administrative Agent, to First Union National
Bank at Xxx Xxxxx Xxxxx Xxxxxx, XX-00, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000- 0608, Attention of Syndication Agency
Services (Telecopy No. 704-383-0288);
(c) if to the Issuing Lender, to First Union National Bank at
One First Union Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000, Attention of Communications and Media Finance
Group (Telecopy No. 704-374-4092);
(d) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given
or addressed as aforesaid.
12.02 Waiver. No failure on the part of the Administrative
Agent or any Lender to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement or
any Note shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this Agreement or any Note
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
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Each Obligor irrevocably waives, to the fullest extent
permitted by applicable law, any claim that any action or proceeding commenced
by the Administrative Agent or any Lender relating in any way to this Agreement
should be dismissed or stayed by reason, or pending the resolution, of any
action or proceeding commenced by any Obligor relating in any way to this
Agreement whether or not commenced earlier. To the fullest extent permitted by
applicable law, the Obligors shall take all measures necessary for any such
action or proceeding commenced by the Administrative Agent or any Lender to
proceed to judgment prior to the entry of judgment in any such action or
proceeding commenced by any Obligor.
12.03 Amendments, Etc. Except as otherwise expressly provided
in this Agreement, any provision of this Agreement may be modified or
supplemented only by an instrument in writing signed by the Company and the
Majority Lenders, or by the Company and the Administrative Agent acting with the
consent of the Majority Lenders, and any provision of this Agreement may be
waived by the Majority Lenders or by the Administrative Agent acting with the
consent of the Majority Lenders; provided that: (a) no modification, supplement
or waiver shall, unless by an instrument signed by all of the Lenders or by the
Administrative Agent acting with the consent of all of the Lenders: (i)
increase, or extend the term of the Commitments, or extend the time or waive any
requirement for the permanent reduction or termination of the Commitments, (ii)
extend the date fixed for the payment of principal of or interest on any Loan,
the Reimbursement Obligations or any fee or other amount hereunder, (iii) reduce
the amount of any such payment of principal, (iv) reduce the rate at which
interest is payable thereon or any fee or other amount is payable hereunder, (v)
alter the manner in which payments or prepayments of principal, interest or
other amounts hereunder shall be applied as between the Lenders or Types of
Loans, (vi) alter the terms of this Section 12.03, (vii) modify the definition
of the term "Majority Lenders", or modify in any other manner the number or
percentage of the Lenders required to make any determinations or waive any
rights hereunder or to modify any provision hereof, (viii) release any
Subsidiary Guarantor from any of its guarantee obligations under Section 6, or
(ix) waive any of the conditions precedent set forth in Section 7.01; (b) any
modification or supplement of Section 11, or of any of the rights or duties of
the Administrative Agent hereunder, shall require the consent of the
Administrative Agent; and (c) any modification or supplement of Section 6 shall
require the consent of each Subsidiary Guarantor.
In the event that any Subsidiary Guarantor shall be the
subject of any disposition permitted hereunder or a disposition to which the
Majority Lenders have consented, the Administrative Agent is hereby authorized
by each of the Lenders to (and shall, if requested by the Company) execute and
deliver such instruments as shall be necessary to release such Subsidiary
Guarantor from its obligations under this Agreement and the Pledge Agreement
(and, subject to Section 11.09, to release any Lien granted by such Subsidiary
Guarantor under the Pledge Agreement).
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12.04 Expenses, Etc. The Company agrees to pay or reimburse
each of the Lenders, the Administrative Agent and the Arranger for: (a) all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and expenses of Milbank,
Tweed, Xxxxxx & XxXxxx, special New York counsel to the Arranger and Xxxxxxx
Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., special North Carolina counsel to the
Administrative Agent) in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement and the other Loan Documents and the
extension of credit hereunder and (ii) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of this Agreement or any
of the other Loan Documents (whether or not consummated); (b) all reasonable
out-of-pocket costs and expenses of the Lenders and the Administrative Agent
(including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (i) any Default and any enforcement or collection
proceedings resulting therefrom, including, without limitation, all manner of
participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section
12.04; and (c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Loan Documents or any other
document referred to herein or therein.
The Company hereby agrees to indemnify the Administrative
Agent, the Arranger and each Lender and their respective directors, officers,
employees, attorneys and agents from, and hold each of them harmless against,
any and all losses, liabilities, claims, damages or expenses incurred by any of
them (including, without limitation, any and all losses, liabilities, claims,
damages or expenses incurred by the Administrative Agent or the Arranger to any
Lender, whether or not the Administrative Agent, the Arranger or any Lender is a
party thereto) arising out of or by reason of any investigation or litigation or
other proceedings (including any threatened investigation or litigation or other
proceedings) relating to the extensions of credit hereunder or any actual or
proposed use by the Company or any of its Subsidiaries of the proceeds of any of
the extensions of credit hereunder, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified). Without
limiting the generality of the foregoing, the Company will indemnify the
Administrative Agent, the Arranger and each Lender from, and hold the
Administrative Agent, the Arranger and each Lender harmless against, any losses,
liabilities, claims, damages or expenses described in the preceding sentence
(but excluding, as provided in the preceding sentence, any loss, liability,
claim, damage or expense incurred by reason of the gross negligence or willful
misconduct of the
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Person to be indemnified) arising under any Environmental Law as a result of the
past, present or future operations of the Company or any of its Restricted
Subsidiaries (or any predecessor in interest to the Company or any of its
Restricted Subsidiaries), or the past, present or future condition of any site
or facility owned, operated or leased at any time by the Company or any of its
Restricted Subsidiaries (or any such predecessor in interest), or any Release or
threatened Release of any Hazardous Materials at or from any such site or
facility, excluding any such Release or threatened Release that shall occur
during any period when the Administrative Agent, the Arranger or any Lender
shall be in possession of any such site or facility following the exercise by
the Administrative Agent, the Arranger or any Lender of any of its rights and
remedies hereunder, but including any such Release or threatened Release
occurring during such period that is a continuation of conditions previously in
existence, or of practices employed by the Company and its Restricted
Subsidiaries, at such site or facility.
12.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12.06 Assignments and Participations.
(a) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Lenders,
the Administrative Agent and the Arranger.
(b) Each Lender may assign any of its Loans, its Note, its
Commitment and its Letter of Credit Interest (but only with the consent of, in
the case of its outstanding Loans or Commitment, the Company, the Arranger and
the Administrative Agent and, in the case of a Letter of Credit Interest, the
Issuing Lender, which consents shall not be unreasonably withheld or delayed);
provided that:
(i) no such consent by the Company, the Arranger, the
Administrative Agent or the Issuing Lender shall be required in the
case of any assignment to another Lender;
(ii) except to the extent the Company, the Arranger and
the Administrative Agent shall otherwise consent, any such partial
assignment (other than to another Lender) shall be in an amount at
least equal to $5,000,000; and
(iii) each such assignment by a Lender of its Loans,
Note, Commitment or Letter of Credit Interest shall be made in such
manner so that the same portion of its Loans, Note, Commitment and
Letter of Credit Interest is assigned to the respective assignee.
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Upon execution and delivery by the assignee to the Company, the Arranger, the
Administrative Agent and (if applicable) the Issuing Lender of an instrument in
writing pursuant to which such assignee agrees to become a "Lender" hereunder
(if not already a Lender) having the Commitment, Loans and, if applicable,
Letter of Credit Interest specified in such instrument, and upon consent thereto
by the Company, the Arranger, the Administrative Agent and the Issuing Lender to
the extent required above, the assignee shall have, to the extent of such
assignment (unless otherwise consented to by the Company, the Arranger, the
Administrative Agent and the Issuing Lender), the obligations, rights and
benefits of a Lender hereunder holding the Commitment, Loans and, if applicable,
Letter of Credit Interest (or portions thereof) assigned to it (in addition to
the Commitment, Loans and Letter of Credit Interest, if any, theretofore held by
such assignee) and the assigning Lender shall, to the extent of such assignment,
be released from the Commitment and Letter of Credit Interest (or portion
thereof) so assigned. Upon each such assignment the assigning Lender (except if
such assigning Lender is the Arranger) shall pay the Administrative Agent an
assignment fee of $3,000.
(c) A Lender may sell or agree to sell to one or more other
Persons (each a "Participant") a participation in all or any part of any Loans
or Letter of Credit Interest held by it, or in its Commitment, provided that
such Participant shall not have any rights or obligations under this Agreement
or any Note or any other Loan Document (the Participant's rights against such
Lender in respect of such participation to be those set forth in the agreements
executed by such Lender in favor of the Participant). All amounts payable by the
Company to any Lender under Section 5 in respect of Loans and Letter of Credit
Interest held by it and its Commitment shall be determined as if such Lender had
not sold or agreed to sell any participations in such Loans, Letter of Credit
Interest and Commitment, and as if such Lender were funding each of such Loans,
Letter of Credit Interest and Commitment in the same way that it is funding the
portion of such Loans, Letter of Credit Interest and Commitment in which no
participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Loan Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term of such Lender's
Commitment or extend the amount or date of any scheduled permanent reduction of
such Commitment pursuant to Section 2.04, (ii) extend the date fixed for the
payment of principal of or interest on the related Loan or Loans, Reimbursement
Obligations or any portion of any fee hereunder payable to the Participant,
(iii) reduce the amount of any such payment of principal, (iv) reduce the rate
at which interest is payable thereon, or any fee hereunder payable to the
Participant, to a level below the rate at which the Participant is entitled to
receive such interest or fee or (v) consent to any modification, supplement or
waiver hereof or of any of the other Loan Documents to the extent that the same,
under Section 11.09 or 12.03, requires the consent of each Lender.
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(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.06, any Lender may
(without notice to the Company, the Arranger, the Administrative Agent or any
other Lender and without payment of any fee) (i) assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank, and such Loans and Note shall be fully transferrable as
provided therein and (ii) assign all or any portion of its rights under this
Agreement and its Loans, its Letter of Credit Interest and its Notes to an
affiliate. No such assignment shall release the assigning Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning the
Company or any of its Subsidiaries in the possession of such Lender from time to
time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 12.12.
(f) Anything in this Section 12.06 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan or
Reimbursement Obligation held by it hereunder to the Company or any of its
Affiliates or Subsidiaries without the prior consent of each Lender.
12.07 Survival. The obligations of the Company under Sections
5.01, 5.05, 5.06, 5.07 and 12.04, the obligations of each Subsidiary Guarantor
under Section 6.03, and the obligations of the Lenders under Section 11.05,
shall survive the repayment of the Loans and Reimbursement Obligations and the
termination of the Commitments and, in the case of any Lender that may assign
any interest in its Commitment, Loans or Letter of Credit Interest hereunder,
shall survive the making of such assignment, notwithstanding that such assigning
Lender may cease to be a "Lender" hereunder. In addition, each representation
and warranty made, or deemed to be made by a notice of any extension of credit
(whether by means of a Loan or a Letter of Credit), herein or pursuant hereto
shall survive the making of such representation and warranty, and no Lender
shall be deemed to have waived, by reason of making any extension of credit
hereunder (whether by means of a Loan or a Letter of Credit), any Default that
may arise by reason of such representation or warranty proving to have been
false or misleading, notwithstanding that such Lender or the Administrative
Agent may have had notice or knowledge or reason to believe that such
representation or warranty was false or misleading at the time such extension of
credit was made.
12.08 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
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12.09 Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. Each Obligor hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of the Supreme Court of the State of New York sitting
in New York County (including its Appellate Division), and of any other
appellate court in the State of New York, for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each Obligor hereby irrevocably waives, to the fullest
extent permitted by applicable law, any objection that it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
12.10 WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
12.11 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
12.12 Confidentiality. Each Lender and the Administrative
Agent agrees (on behalf of itself and each of its affiliates, directors,
officers, employees and representatives) to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature and in accordance with safe and
sound banking practices, any non-public information supplied to it by the
Company pursuant to this Agreement that is identified by the Company as being
confidential at the time the same is delivered to the Lenders or the
Administrative Agent, provided that nothing herein shall limit the disclosure of
any such information (i) after such information shall have become public (other
than through a violation of this Section 12.12), (ii) to the extent required by
statute, rule, regulation or judicial process, (iii) to counsel for any of the
Lenders or the Administrative Agent, (iv) to bank examiners (or any other
regulatory authority having jurisdiction over any Lender or the Administrative
Agent), or to auditors or accountants, (v) to the Administrative Agent or any
other Lender, (vi) in connection with any litigation to which any one or more of
the Lenders or the Administrative Agent is a party, or in connection with the
enforcement of rights or remedies hereunder or under any other Loan Document,
(vii) to a subsidiary or affiliate of such Lender or (viii) to any assignee or
participant (or prospective assignee or participant) so long as such assignee or
participant (or
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prospective assignee or participant) first executes and delivers to the
respective Lender a Confidentiality Agreement substantially in the form of
Exhibit F (or executes and delivers to such Lender an acknowledgement to the
effect that it is bound by the provisions of this Section 12.12, which
acknowledgement may be included as part of the respective assignment or
participation agreement pursuant to which such assignee or participant acquires
an interest in the Loans hereunder); provided, further, that in no event shall
any Lender or the Administrative Agent be obligated or required to return any
materials furnished by the Company.
The obligations of each Lender under this Section 12.12 shall
supersede and replace the obligations of such Lender under the confidentiality
letter in respect of this financing signed and delivered by such Lender to the
Company prior to the date hereof; in addition, the obligations of any assignee
that has executed a Confidentiality Agreement in the form of Exhibit F shall be
superseded by this Section 12.12 upon the date upon which such assignee becomes
a Lender hereunder pursuant to Section 12.06(b).
12.13 Interest Rates.
(a) It is the intention of the parties hereto that the Loans
made hereunder shall conform strictly to applicable usury laws. Accordingly,
none of the terms and provisions contained in this Agreement or any of the other
Loan Documents shall ever be construed to create a contract to pay interest to
the Lenders for the use, forbearance or detention of money at a rate in excess
of the highest lawful rate applicable (the "Maximum Lawful Rate"); for purposes
of this Section 12.13, "interest" shall include the aggregate of all charges or
other consideration which constitute interest under applicable laws (whether or
not denominated as interest) and are contracted for, taken, reserved, charged or
received under any of this Agreement or the other Loan Documents or otherwise in
connection with the transactions contemplated by this Agreement and the other
Loan Documents. If as a result of prepayment, acceleration of maturity or
otherwise, the effective rate of interest which would otherwise be payable to
any Lender under this Agreement or any other Loan Document would exceed the
Maximum Lawful Rate for the period during which the principal amount of any Loan
was outstanding, or if any Lender shall receive moneys or other consideration
that are deemed to constitute interest that would increase the effective rate of
interest payable by the Company to such Lender under this Agreement or any other
Loan Document to a rate in excess of the Maximum Lawful Rate for the period
during which the principal amount of any Loan was outstanding, then (i) the
amount of interest that would otherwise be payable by the Company to such Lender
under this Agreement and the other Loan Documents shall be reduced to the
Maximum Lawful Rate, and (ii) any interest paid by the Company to such Lender in
excess of the Maximum Lawful Rate shall be credited by such Lender as an
optional prepayment of the Loans (to be applied to the principal of the Loans of
such Lender in the order specified in
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Section 4.02), provided that such amount shall not be applied to reduce such
Lender's Commitments, if any) and, thereafter, shall be returned to the Company.
All calculations of the rate or amount of interest contracted for, taken,
reserved, charged or received by any Lender under any of this Agreement and the
other Loan Documents that are made for the purpose of determining whether such
rate or amount exceeds the Maximum Lawful Rate shall be made, to the extent
permitted by applicable law, by amortizing, prorating, allocating and spreading
during the full stated term of all of the Loans owed to such Lender.
(b) If at any time and from time to time (i) the amount of interest
payable to any Lender on any date would otherwise exceed the Maximum Lawful
Rate, the amount of interest payable to such Lender shall be limited to the
Maximum Lawful Rate pursuant to paragraph (a) above and (ii) in respect of any
subsequent interest computation period, the amount of interest otherwise payable
to such Lender would be less than the amount of interest payable to such Lender
computed at the Maximum Lawful Rate, then the amount of interest payable in
respect of such subsequent computation period shall be computed at the Maximum
Lawful Rate until the earlier to occur of (x) the date upon which the total
amount of interest payable to such Lender shall equal the total amount of
interest that would have been payable to such Lender if the total amount of
interest had been computed without giving effect to paragraph (a) above, or (y)
payment in full of all Loans held by such Lender.
(c) Without limiting the application of Section 12.09, insofar
as the provisions of Article 5069-1.04, Title 79 of the Revised Civil Statutes
of Texas, 1925, as amended, are deemed applicable to the determination of the
Maximum Lawful Rate with respect to any of the Loans, the indicated rate ceiling
computed from time to time pursuant to Section (a) of such Article shall apply
to such Loans; provided that to the extent permitted by such Article, any Lender
may from time to time by notice to the Company revise the election of such
interest rate ceiling as such ceiling affects the then current or future
balances of the Loans and other obligations held by such Lender.
(d) Without limiting the application of Section 12.09,
pursuant to Article 5069-15.10(b), Title 79, Revised Civil Statutes of Texas,
1925, as amended, the provisions of Chapter 15, Title 79, of the Revised Civil
Statutes of Texas, 1925, as amended, shall not apply to this Agreement, the
other Loan Documents or the transactions contemplated hereby.
12.14 Subordination. Each Subsidiary Guarantor hereby agrees
that any Indebtedness of the Company to such Subsidiary Guarantor now or
hereafter outstanding (herein, the "Subordinated Indebtedness") shall be
subordinate in right of payment, to the extent and in the manner hereinafter set
forth, to the Senior Indebtedness (as defined below), including, without
limitation, any interest accruing after the commencement of any proceeding
referred to in the next sentence, whether or not such interest is an allowed
claim in such
Credit Agreement
----------------
- 95 -
proceeding. In that connection, each Subsidiary Guarantor hereby agrees that, in
the event of any insolvency or bankruptcy proceedings, and any receivership,
liquidation, reorganization or other similar proceedings in connection
therewith, relative to the Company, or to its Property, and in the event of any
proceedings for voluntary liquidation, dissolution or other winding up of the
Company, whether or not involving insolvency or bankruptcy, then the Lenders and
the Administrative Agent shall be entitled to receive payment in full of all
amounts constituting Senior Indebtedness before such Subsidiary Guarantor is
entitled to receive, or make any demand for, any payment on account of any
Subordinated Indebtedness, and to that end the Lenders and the Administrative
Agent shall be entitled to receive for application in payment thereof any
payment or distribution of any kind or character, whether in cash or property or
securities.
If in any such proceeding any payment or distribution of any
character, whether in cash, securities or other property, in respect of the
Subordinated Indebtedness shall (despite these subordination provisions) be
received by any Subsidiary Guarantor before all Senior Indebtedness shall have
been paid in full in cash, such payment or distribution shall be held in trust
for the benefit of, and shall be paid over or delivered to, the Administrative
Agent for distribution in respect of the Senior Indebtedness, to the extent
necessary to pay all Senior Indebtedness in full.
For purposes hereof, "Senior Indebtedness" means the principal
of and interest on the Loans made by the Lenders to, and the Notes held by the
Lenders of, the Company and all other amounts from time to time owing to the
Lenders or the Administrative Agent by the Company under this Agreement and
under the Notes and by any Obligor under any of the other Loan Documents, and
all obligations of the Company or any of its Subsidiaries to any Lender (or any
affiliate of any Lender) in respect of any Hedging Agreement.
Credit Agreement
----------------
- 96 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
NEW RES, INC. (to be renamed EXCEL
Communications, Inc.)
By /s/ Xxxx X. XxXxxxx
------------------------------------
Xxxx X. XxXxxxx
Title: President and
Chief Operating Officer
SUBSIDIARY GUARANTORS
----------------------
EXCEL COMMUNICATIONS, INC
EXCEL COMMUNICATIONS MARKETING, INC.
EXCEL FULFILLMENT SERVICES, INC.
EXCEL MANAGEMENT SERVICES, INC.
EXCEL PRODUCTS, INC.
EXCEL SWITCH FACILITY, INC.
EXCEL TELECOMMUNICATIONS, INC.
EXCEL TELEPHONE, INC.
EXCEL TELESERVICES, INC.
EXCEL TELECOMMUNICATIONS OF
VIRGINIA, INC.
EXCEL TELECOMMUNICATIONS, INC. OF
NEW HAMPSHIRE
By /s/ Xxxx X. XxXxxxx
----------------------------------
Xxxx X. XxXxxxx
Title: President and
Chief Operating Officer
Credit Agreement
----------------
- 97 -
TELCO COMMUNICATIONS GROUP,INC.
LONG DISTANCE WHOLESALE CLUB
TELCO HOLDINGS, INC.
TELCO BILLING, INC.
TEL LABS, INC.
TELCO NETWORK SERVICES, INC.
TELCO SWITCH CORP.
NETWORK CONTROL SERVICES, INC.
TELCO VOICE NETWORK, INC.
TELCO SWITCH ACQUISITION, INC.
DIAL & SAVE OF ALABAMA, INC.
DIAL & SAVE OF ARIZONA, INC.
DIAL & SAVE OF ARKANSAS, INC.
DIAL & SAVE OF CALIFORNIA, INC.
DIAL & SAVE OF COLORADO, INC.
DIAL & SAVE OF CONNECTICUT, INC.
DIAL & SAVE OF DELAWARE, INC.
DIAL & SAVE OF FLORIDA, INC.
DIAL & SAVE OF FLORIDA, ALPHA, INC.
DIAL & SAVE OF FLORIDA, BETA, INC.
DIAL & SAVE OF FLORIDA, GAMMA, INC.
DIAL & SAVE OF FLORIDA, DELTA, INC.
DIAL & SAVE OF GEORGIA, INC.
DIAL & SAVE OF IDAHO, INC.
DIAL & SAVE OF ILLINOIS, INC.
DIAL & SAVE OF INDIANA, INC.
DIAL & SAVE OF IOWA, INC.
DIAL & SAVE OF KANSAS, INC.
DIAL & SAVE OF KENTUCKY, INC.
DIAL & SAVE OF LOUISIANA, INC.
DIAL & SAVE OF MAINE, INC.
DIAL & SAVE OF MARYLAND, INC.
DIAL & SAVE OF MASSACHUSETTS, INC.
DIAL & SAVE OF MICHIGAN, INC.
DIAL & SAVE OF MINNESOTA, INC.
DIAL & SAVE OF MISSISSIPPI, INC.
DIAL & SAVE OF MISSOURI, INC.
DIAL & SAVE OF MONTANA, INC.
DIAL & SAVE OF NEBRASKA, INC.
DIAL & SAVE OF NORTH DAKOTA
Credit Agreement
----------------
- 98 -
DIAL & SAVE OF NEW HAMPSHIRE, INC.
DIAL & SAVE OF NEW JERSEY, INC.
DIAL & SAVE OF NEW MEXICO, INC.
DIAL & SAVE OF NEVADA, INC.
DIAL & SAVE OF NEW YORK, INC.
DIAL & SAVE OF NORTH CAROLINA, INC.
DIAL & SAVE OF OHIO, INC.
DIAL & SAVE OF OKLAHOMA, INC.
DIAL & SAVE OF OREGON, INC.
DIAL & SAVE OF PENNSYLVANIA, INC.
DIAL & SAVE OF RHODE ISLAND, INC.
DIAL & SAVE OF SOUTH CAROLINA, INC.
DIAL & SAVE OF NORTH CAROLINA, INC.
DIAL & SAVE OF SOUTH DAKOTA, INC.
DIAL & SAVE OF TENNESSEE, INC.
DIAL & SAVE OF TEXAS, INC.
DIAL & SAVE OF UTAH, INC.
DIAL & SAVE OF VERMONT, INC.
DIAL & SAVE OF VIRGINIA, INC.
DIAL & SAVE OF WASHINGTON, INC.
DIAL & SAVE OF WASHINGTON, D.C., INC.
DIAL & SAVE OF WEST VIRGINIA, INC.
DIAL & SAVE OF WISCONSIN, INC.
DIAL & SAVE OF WYOMING, INC.
By /s/ Xxxxxx Xxxxx
------------------------
Xxxxxx Xxxxx
Title: President
Credit Agreement
----------------
- 99 -
TELCO SWITCH LIMITED PARTNERSHIP
By its general partner
Telco Switch Corp.
By /s/ Xxxxxx Xxxxx
--------------------
Xxxxxx Xxxxx
Title: President
Credit Agreement
- 100 -
LENDERS
XXXXXX COMMERCIAL PAPER INC.,
individually and as Arranger and
Syndication Agent
By /s/ Xxxxxx X. Xxx
-------------------------------
Xxxxxx X. Xxx
Title: Authorized Signatory
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, individually
and as Documentation Agent
By /s/ R. Xxxxxx Xxxxxx, Jr.
-------------------------------
R. Xxxxxx Xxxxxx, Jr.
Title: Managing Director
FIRST UNION NATIONAL BANK
By /s/ Xxxx X. Xxxx
-------------------------------
Xxxx X. Xxxx
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A.,
individually and as Documentation
Agent
By /s/ Xxxxxxxx X. Xxxxxx
------------------------
Xxxxxxxx X. Xxxxxx
Title: Vice President
Credit Agreement
----------------
- 000 -
XXXXXXX
XXX XXXX XX XXX XXXX
By /s/ Xxxxxx X. Xxxx, Xx.
--------------------------------
Xxxxxx X. Xxxx, Xx.
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx X. XxXxxxxx
--------------------------------
Xxxxxx X. XxXxxxxx
Title: Vice President
ROYAL BANK OF CANADA
By /s/ Xxxx X. Page
--------------------------------
Xxxx X. Page
Title: Senior Manager
TORONTO DOMINION (TEXAS), INC.
By /s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ Xxxxx X. Xxxxxx, CFA
--------------------------------
Xxxxx X. Xxxxxx, CFA
Title: Vice President
Credit Agreement
----------------
- 102 -
LENDERS
BANQUE PARIBAS
By /s/ Xxxx Aizenberg By /s/ Xxxxx X. Xxxxxxx
------------------ ---------------------
Xxxx Xxxxxxxxx Xxxxx X. Xxxxxxx
Title: Vice President Title: Director
CREDITANSTALT-BANKVEREIN
By /s/ Xxxxx Xxxx
--------------------------------
Xxxxx Xxxx
Title: Vice President
By /s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx
Title: Senior Associate
CITIBANK, N.A.
By /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxxxxx
Title: Vice President
BANK HAPOALIM B.M.
By /s/ Xxxx Xxxxxxxxx
----------------------------------
Xxxx Xxxxxxxxx
Title: Vice President
By /s/ X.X. XxXxxxx
----------------------------------
X.X. XxXxxxx
Title: Vice President-Controller
Credit Agreement
----------------
- 103 -
LENDERS
BANK OF HAWAII
By /s/ Xxxxxxxxx X. XxxXxxx
------------------------------
Xxxxxxxxx X. XxxXxxx
Title: Vice President
BANK OF MONTREAL
By /s/ Xxxx Xxxxxxxxxxx
------------------------------
Xxxx Xxxxxxxxxxx
Title: Director
BANK ONE, TEXAS, N.A.
By /s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
Title: Vice President
COMERICA BANK
By /s/ Xxx X. Xxxxxxxx
----------------------------
Xxx X. Uhelmann
Title: Vice President
Credit Agreement
----------------
- 104 -
LENDERS
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
By /s/ Xxxxx XxXxxx
------------------------------
Xxxxx XxXxxx
Title: Senior Vice President
By /s/ Xxxx Xxxxxxxx
-------------------------------
Xxxx Xxxxxxxx
Title: Asst. Vice President
HIBERNIA NATIONAL BANK
By /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Xxxx X. Xxxxxxxxxx
Title: Vice President
XXXXX BANK N.A.
By /s/ Xxxxxxx Xxxxxx
------------------------------
Xxxxxxx Xxxxxx
Title: Vice President
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Xxxxxxxx X. Xxxxx
Title: Vice President
Credit Agreement
----------------
- 105 -
LENDERS
THE DAI-ICHI KANGYO BANK, LTD,
By /s/ Xxxxx Xxxx
--------------------------
Xxxxx Xxxx
Title: Vice President
THE FUJI BANK, LIMITED
By /s/ Xxxxxx X. Xxxxxxxx III
-----------------------------
Xxxxxx X. Xxxxxxxx III
Title: Vice President & Manager
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By /s/ Xxxxxxxx Xxxxxxxx
------------------------------
Masahiri Watanabe
Title: Joint General Manager
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By /s/ Xxxxx Xxxxxxx
-----------------------------
Xxxxx Xxxxxxx
Title: Head of Southwest Region
Credit Agreement
----------------
- 106 -
LENDERS
-------
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx
Title: Chief Manager
THE ROYAL BANK OF SCOTLAND plc
By /s/ Xxxxx X. Xxxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxxx
Title: Vice President
THE TOYO TRUST & BANKING
CO., LIMITED
By /s/ T. Mikumo
------------------------
T. Mikumo
Title: Vice President
BANQUE NATIONALE DE PARIS
By /s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
Title: Vice President
By /s/ Xxxx Xxxxxxx
------------------------
Xxxx Xxxxxxx
Title: Vice President
Credit Agreement
----------------
- 107 -
FIRST UNION NATIONAL BANK, as
Administrative Agent
By /s/ Xxxxxxx X. Xxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx
Title: Vice President
Credit Agreement
---------------
