EXHIBIT 10.7
================================================================================
CREDIT AGREEMENT
dated as of
July 2, 1999
among
GLOBAL CROSSING LTD.
GLOBAL CROSSING HOLDINGS LTD.
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Syndication Agent
CITICORP USA, INC.,
as Co-Documentation Agent
XXXXXXX XXXXX CAPITAL CORPORATION,
as Co-Documentation Agent
___________________________
CHASE SECURITIES INC.,
as Joint Lead Arranger
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Joint Lead Arranger
and
XXXXXXX XXXXX BARNEY INC.
XXXXXXX XXXXX & CO.
CIBC WORLD MARKETS CORP.
and
DEUTSCHE BANK SECURITIES INC.,
as Arrangers
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms 1
SECTION 1.02. Classification of Loans and
Borrowings 35
SECTION 1.03. Terms Generally 35
SECTION 1.04. Accounting Terms; GAAP; Treatment of
Unrestricted Subsidiaries 36
SECTION 1.05. Construction After the Frontier 36
Acquisition Date
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments 37
SECTION 2.02. Loans and Borrowings 37
SECTION 2.03. Requests for Borrowings 38
SECTION 2.04. Swingline Loans 39
SECTION 2.05. Letters of Credit 41
SECTION 2.06. Funding of Borrowings 47
SECTION 2.07. Interest Elections 48
SECTION 2.08. Termination and Reduction of
Commitments; Incremental Loans 49
SECTION 2.09. Repayment of Loans; Evidence of
Debt 51
SECTION 2.10. Amortization of Term Loans 52
SECTION 2.11. Prepayment of Loans 54
SECTION 2.12. Fees 57
SECTION 2.13. Interest 58
SECTION 2.14. Alternate Rate of Interest 59
SECTION 2.15. Increased Costs 60
SECTION 2.16. Break Funding Payments 61
SECTION 2.17. Taxes 62
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-Offs 64
SECTION 2.19. Mitigation Obligations; Replacement
of Lenders 66
3
ARTICLE III
Representations and Warranties
------------------------------
SECTION 3.01. Organization; Powers; Licenses 67
SECTION 3.02. Authorization; Enforceability 68
SECTION 3.03. Governmental Approvals; No 68
Conflicts
SECTION 3.04. Financial Condition; No Material 69
Adverse Change
SECTION 3.05. Properties 70
SECTION 3.06. Litigation and Environmental Matters 70
SECTION 3.07. Compliance with Laws and Agreements 71
SECTION 3.08. Investment and Holding Company Status 71
SECTION 3.09. Taxes 71
SECTION 3.10. ERISA 71
SECTION 3.11. Disclosure 72
SECTION 3.12. Subsidiaries 72
SECTION 3.13. Insurance 72
SECTION 3.14. Labor Matters 72
SECTION 3.15. Senior Indebtedness 73
SECTION 3.16. Year 2000 73
SECTION 3.17. Regulatory Matters; Etc. 73
SECTION 3.18. Indenture Compliance 73
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date 74
SECTION 4.02. Each Credit Event 76
ARTICLE V
Affirmative Covenants
---------------------
SECTION 5.01. Financial Statements and Other
Information 77
SECTION 5.02. Notices of Material Events 79
SECTION 5.03. Information Regarding Collateral 79
4
SECTION 5.04. Existence; Conduct of Business 80
SECTION 5.05. Payment of Obligations 80
SECTION 5.06. Maintenance of Properties 80
SECTION 5.07. Insurance 80
SECTION 5.08. Completion of Systems 81
SECTION 5.09. Books and Records; Inspection and
Audit Rights 81
SECTION 5.10. Compliance with Laws 81
SECTION 5.11. Use of Proceeds and Letters of 81
Credit
SECTION 5.12. Additional Subsidiaries 82
SECTION 5.13 Further Assurances 82
SECTION 5.14. Interest Rate Protection 82
ARTICLE VI
Negative Covenants
------------------
SECTION 6.01. Indebtedness; Certain Equity
Securities 83
SECTION 6.02. Liens 87
SECTION 6.03. Fundamental Changes 88
SECTION 6.04. Investments, Loans, Advances,
Guarantees and Acquisitions 90
SECTION 6.05 Asset Sales 92
SECTION 6.06. Sale and Leaseback Transactions 94
SECTION 6.07. Hedging Agreements 94
SECTION 6.08. Restricted Payments; Certain Payments
of Indebtedness 94
SECTION 6.09. Transactions with Affiliates 95
SECTION 6.10. Restrictive Agreements 96
SECTION 6.11. Amendment of Material Documents 97
SECTION 6.12. Interest Expense Coverage Ratio 97
SECTION 6.13. Total Leverage Ratio 98
SECTION 6.14. Senior Secured Leverage Ratio 98
SECTION 6.15. Total Indebtedness to Capitalization 99
Ratio
SECTION 6.16. Total Senior Secured Indebtedness to
Capitalization Ratio 99
ARTICLE VII
Events of Default 99
5
ARTICLE VIII
The Administrative Agent 103
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices 106
SECTION 9.02. Waivers; Amendments 107
SECTION 9.03. Expenses; Indemnity; Damage Waiver 109
SECTION 9.04. Successors and Assigns 111
SECTION 9.05. Survival 115
SECTION 9.06. Counterparts; Integration;
Effectiveness 115
SECTION 9.07. Severability 116
SECTION 9.08. Right of Setoff 116
SECTION 9.09. Governing Law; Jurisdiction; Consent
to Service of Process 116
SECTION 9.10. WAIVER OF JURY TRIAL 117
SECTION 9.11. Headings 117
SECTION 9.12. Confidentiality 117
SECTION 9.13. Interest Rate Limitation 118
SECTION 9.14 Conversion of Currencies 119
SCHEDULES:
----------
Schedule 1.01 - Restricted Subsidiaries
Schedule 2.01 - Commitments
Schedule 3.12 - Subsidiaries
Schedule 6.01 - Existing Indebtedness
Schedule 6.02 - Existing Liens
Schedule 6.04 - Existing Investments
Schedule 6.10 - Existing Restrictions
EXHIBITS:
---------
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Opinion of Borrower's Counsel
6
Exhibit B-2 - Form of Opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx (Effective Date)
Exhibit C - Form of Guarantee Agreement
Exhibit D - Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit E - Form of Pledge Agreement
CREDIT AGREEMENT dated as of July 2, 1999, among GLOBAL
CROSSING LTD., GLOBAL CROSSING HOLDINGS LTD., the LENDERS party
hereto, and THE CHASE MANHATTAN BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms. As used in this Agreement, the
--------------
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
---
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
------------------
for any Interest Period, an interest rate per annum (rounded, if necessary, to
the nearest 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
--------------------
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
----------------------------
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
---------
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
-------------------
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and
2
including the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Revolving Lender,
---------------------
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, initially, for any day (a) with respect to
---------------
any Tranche B Term Loan, 1.75% per annum, in the case of an ABR Loan, or 2.75%
per annum, in the case of a Eurodollar Loan, and (b) with respect to any ABR
Loan or Eurodollar Loan that is a Revolving Loan or a Tranche A Term Loan, as
the case may be, 1.25% per annum, in the case of an ABR Loan, or 2.25% per
annum, in the case of a Eurodollar Loan. The rates for Revolving Loans, Tranche
A Loans and Tranche B Loans, on and after the first day on which the ratings
established for the Index Debt are BBB- or better and Baa3 or better, will
thereafter be the applicable rate per annum set forth below under the caption
"ABR Spread" or "Eurodollar Spread", as the case may be, based upon the ratings
established by Xxxxx'x and S&P for the Index Debt as of the most recent
determination date:
==============================================================
Revolving Credit and
Tranche A
--------------------------------------------------------------
Credit Rating
ABR Eurodollar ABR Eurodollar
Spread Spread Spread Spread
--------------------------------------------------------------
Category 1
----------
BBB or better 0.00% 1.00% 1.00% 2.00%
Baa2 or better
--------------------------------------------------------------
Category 2
----------
BBB- and 0.25% 1.25% 1.00% 2.00%
Baa3
--------------------------------------------------------------
3
--------------------------------------------------------------
Category 3
----------------
BB+ or lower 1.25% 2.25% 1.75% 2.75%
Ba1 or lower
==============================================================
For purposes of the foregoing, (a) in the event the ratings
established by Xxxxx'x and S&P for the Index Debt fall within different
categories, (i) if either rating is in Category 3, Category 3 shall apply and
(ii) if neither rating is in Category 3, Category 1 shall apply, (b) if neither
Xxxxx'x nor S&P shall have established ratings for the Index Debt, the ratings
shall be deemed to be in Category 3, (c) after the occurrence and during the
continuance of any Event of Default, the ratings shall be deemed to be in
Category 3, and (d) if any rating established by Xxxxx'x or S&P shall be changed
(other than as a result of a change in the rating system of such rating agency),
such change shall be effective as of the date on which such change is first
announced by the rating agency making such change. If the rating system of
Xxxxx'x or S&P shall change, or if either of them shall cease rating the Index
Debt (other than by reason of any action or nonaction by the Borrower following
or in anticipation of a ratings downgrade), the parties hereto shall negotiate
in good faith to amend the references to specific ratings in this definition
(including by way of substituting another rating agency mutually acceptable to
the Borrower and the Administrative Agent for the rating agency with respect to
which the rating system has changed or for which no rating is then in effect) to
reflect such changed rating system or the nonavailability of ratings from such
rating agency, and pending agreement on such amendment, the rating in effect
immediately prior to such change or cessation will apply. If any rating agency
shall not have a rating in effect by reason of any action or nonaction by the
Borrower following or in anticipation of a ratings downgrade, then such rating
agency shall be deemed to have established a rating in Category 3.
"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender and an assignee
4
(with the consent of any party whose consent is required by Section 9.04), and
accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.
"Board" means the Board of Governors of the Federal Reserve System of
-----
the United States of America.
"Borrower" means, initially, GCHL, and after the Frontier Borrower
--------
Date also means Frontier, as more fully set forth in Section 1.05.
"Borrowing" means (a) Loans of the same Class and Type, made,
---------
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Borrowing in
-----------------
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
------------
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
--------
the term "Business Day" shall also exclude any day on which banks are not open
------------
for dealings in dollar deposits in the London interbank market.
"C&W Marine" means Cable & Wireless Marine Limited, a United Kingdom
----------
company.
"C&W Marine Acquisition" means the acquisition by GCHL or a Restricted
----------------------
Subsidiary of C&W Marine and certain Affiliates thereof as contemplated by the
Sale and Purchase Agreement between Limited and Cable & Wireless PLC dated as of
April 26, 1999, as amended prior to the date hereof.
"Capital Expenditures" means, for any period, (a) the additions to
--------------------
property, plant and equipment and other capital expenditures of the Borrower and
the Restricted Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Borrower for such period prepared in accordance
with GAAP and (b) Capital Lease Obligations incurred by the Borrower and the
Restricted Subsidiaries during such period.
5
"Capital Lease Obligations" of any Person means the obligations of
-------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capitalization" means, as of any date, the sum, without duplication,
--------------
as of such date, of Total Indebtedness, the liquidation preference of preferred
stock and common shareholders equity for the Borrower and the Restricted
Subsidiaries on a consolidated basis.
"Change in Control" means, except as a direct result of the U S West
-----------------
Transaction, (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person other than Limited, or indirectly
through Limited, of any Equity Interest in the Borrower other than the Preferred
Stock, any preferred stock that is not Disqualified Stock and any Disqualified
Stock permitted under Section 6.01(d); (b) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
other than the Permitted Holders, of Equity Interests representing more than 35%
of the aggregate ordinary voting power (the "Voting Stock") represented by the
issued and outstanding Equity Interests in Limited, and the Permitted Holders
own, in the aggregate, a lesser percentage of the total Voting Stock (measured
by a voting power rather than by number of shares) of Limited than such Person
or group and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the board of
directors of Limited (for purposes of this clause, such other Person or group
shall be deemed to "beneficially own" any Voting Stock of a specified
corporation held by a parent corporation if such
6
other Person or group beneficially owns, directly or indirectly, more than 35%
of the Voting Stock (measured by voting power rather than by number of shares)
of such parent corporation and the Permitted Holders beneficially own, directly
or indirectly, in the aggregate a lesser percentage of Voting Stock (measured by
voting power rather than by number of shares) of such parent corporation and do
not have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of such parent
corporation); (c) occupation of a majority of the seats (other than vacant
seats) on the board of directors of Limited by Persons who were neither (i)
nominated by the board of directors of Limited nor (ii) appointed by directors
so nominated; or (d) the occurrence of a "Change of Control", or similar event
under the Senior Note Indenture, the Preferred Stock or the Exchange Note
Indenture.
"Change in Law" means (a) the adoption of any law, rule or regulation
-------------
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
-----
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Tranche A Term Loans, Tranche B Term Loans, Incremental Loans or Swingline Loans
and, when used in reference to any Commitment, refers to whether such Commitment
is a Revolving Commitment, Tranche A Commitment or Tranche B Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time.
"Collateral" means any and all "Collateral", as defined in any
----------
applicable Security Document.
7
"Collateral and Guarantee Requirement" means the requirement that:
------------------------------------
(a) the Administrative Agent shall have received from Limited and each
Restricted Subsidiary either (i) a counterpart of a Guarantee Agreement
duly executed and delivered on behalf of such Person or (ii) in the case of
any Person that becomes a Restricted Subsidiary after the Effective Date, a
supplement to a Guarantee Agreement, in the form specified therein, duly
executed and delivered on behalf of such Restricted Subsidiary, in each
case involving a Restricted Subsidiary together with, as applicable, a
counterpart of an Indemnity, Subrogation and Contribution Agreement or a
supplement to an Indemnity, Subrogation and Contribution Agreement, in the
form specified therein, duly executed and delivered on behalf of such
Restricted Subsidiary;
(b) all outstanding Equity Interests of each Restricted Subsidiary
owned by or on behalf of the Borrower or any Restricted Subsidiary shall
have been pledged pursuant to a Pledge Agreement and the Administrative
Agent shall have received certificates or other instruments representing
all such Equity Interests, together with stock powers or other instruments
of transfer with respect thereto endorsed in blank;
(c) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the
Liens intended to be created by the Security Documents and perfect such
Liens to the extent required by, and with the priority required by, the
Security Documents, shall have been filed, registered or recorded or
delivered to the Administrative Agent for filing, registration or
recording; and
(d) each Loan Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery
of all Security Documents to which it is a party, the
8
performance of its obligations thereunder and the granting by it of the
Liens thereunder.
Notwithstanding the foregoing, (i) a Restricted Subsidiary shall not be required
to deliver a Guarantee Agreement or a Pledge Agreement if it would be a
violation of applicable law or, in the reasonable judgment of the Administrative
Agent, in consultation with the Borrower, the expense, tax or regulatory
consequences or difficulty of obtaining such Guarantee Agreement or Pledge
Agreement would not, in light of the benefits that would accrue to the Lenders,
justify obtaining such Guarantee Agreement or Pledge Agreement, (ii) a
Restricted Subsidiary that is less than wholly owned by the Borrower and the
Restricted Subsidiaries shall not be required to deliver a Guarantee Agreement
or a Pledge Agreement if each Restricted Subsidiary owning any Equity Interest
therein shall be in compliance with the Collateral and Guarantee Requirement and
(iii) the Collateral and Guarantee Requirement shall be satisfied with respect
to Frontier and its subsidiaries when (A) Limited shall have pledged all the
outstanding Equity Interests of Frontier pursuant to a Pledge Agreement and the
Administrative Agent shall have received certificates or other instruments
representing all such Equity Interests, together with stock powers or other
instruments of transfer with respect thereto endorsed in blank, (B) each of GCHL
and Frontier shall have duly executed and delivered a Guarantee Agreement and an
Indemnity, Subrogation and Contribution Agreement and (C) except as permitted
under clause (i) above, each subsidiary of Frontier shall have duly executed and
delivered a Guarantee Agreement and an Indemnity, Subrogation and Contribution
Agreement, provided that at any time that any direct or indirect parent of GCHL
--------
owning a majority of the Equity Interests in GCHL shall be organized under the
laws of the United States or any State thereof or the District of Columbia, (A)
no Loan Party organized under the laws of a jurisdiction other than the United
States or any State thereof or the District of Columbia (a "Non-U.S. Loan
Party") shall be required to Guarantee any Obligation of Frontier or to pledge
any Equity Interest owned by it to secure any Obligation of Frontier and (B) any
Loan Party organized under the laws of the United States or any State
9
thereof or the District of Columbia that owns Equity Interests in any Non-U.S.
Loan Party shall be deemed to have satisfied the requirement set forth in clause
(b) above with respect to the Frontier Obligations by its pledge of all the non-
voting Equity Interests in such Non-U.S. Loan Party held by it and 65% of all
the outstanding voting Equity Interests in such Non-U.S. Loan Party or, if less,
all such voting Equity Interests held by it. The Administrative Agent is
expressly authorized upon the request of the Borrower to release any pledge or
Guarantee previously delivered in respect of any Obligation that at the time of
such request is no longer required by the Collateral and Guarantee Requirement.
"Commitment" means a Revolving Commitment, Tranche A Commitment or
----------
Tranche B Commitment, or any combination thereof (as the context requires).
"Commitment Fee Rate" means, for any day, the applicable percentage
-------------------
rate per annum specified under the applicable utilization column, based upon the
ratings established by Xxxxx'x and S&P for the Index Debt as of such day:
Ratings greater than 33% 33-66% less than 66%
------- Utilization Utilization Utilization
---------------------------------------------------------------
Category 1 0.500 0.375 0.250
------------
BBB-/Baa3
or better
---------------------------------------------------------------
Category 2 0.750 0.500 0.375
------------
BB+/Ba1 or
BB/Ba2
---------------------------------------------------------------
Category 3 1.000 0.750 0.500
------------
BB-/Ba3 or
lower
---------------------------------------------------------------
For purposes of the foregoing, "utilization" at any time means the
percentage obtained by dividing (a) the sum at such time of the aggregate
outstanding amount of all the Revolving Exposures and the aggregate outstanding
principal amount of the Tranche A Loans by (b) the sum of
10
(i) the aggregate outstanding Revolving Commitments and Tranche A Commitments
and (ii) the aggregate outstanding principal amount of the Tranche A Loans.
For purposes of the foregoing, (a) in the event the ratings
established by Xxxxx'x and S&P for the Index Debt fall within different
categories, the lower rating shall apply, (b) if neither Xxxxx'x nor S&P shall
have established ratings for the Index Debt, the ratings shall be deemed to be
in Category 3, (c) after the occurrence and during the continuance of any Event
of Default, the ratings shall be deemed to be in Category 3, and (d) if any
rating established by Xxxxx'x or S&P shall be changed (other than as a result of
a change in the rating system of such rating agency), such change shall be
effective as of the date on which such change is first announced by the rating
agency making such change. If the rating system of Xxxxx'x or S&P shall change,
or if either of them shall cease rating the Index Debt (other than by reason of
any action or nonaction by the Borrower following or in anticipation of a
ratings downgrade), the parties hereto shall negotiate in good faith to amend
the references to specific ratings in this definition (including by way of
substituting another rating agency mutually acceptable to the Borrower and the
Administrative Agent for the rating agency with respect to which the rating
system has changed or for which no rating is then in effect) to reflect such
changed rating system or the nonavailability of ratings from such rating agency,
and, pending agreement on such amendment, the rating in effect immediately prior
to such change or cessation will apply. If any rating agency shall not have a
rating in effect by reason of any action or nonaction by the Borrower following
or in anticipation of a ratings downgrade, then such rating agency shall be
deemed to have established a rating in Category 3.
"Consent" means a consent under the Senior Notes permitting the
-------
transactions contemplated by the Loan Documents obtained pursuant to the Amended
and Restated Consent Solicitation Statement dated June 22, 1999, or in a manner
otherwise satisfactory in all respects to the Administrative Agent.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
-------------------
for such period, adjusted (without
11
duplication and to the extent deducted or added in deter mining such
Consolidated Net Income) as follows: plus (a) an amount equal to any
extraordinary loss for such period, minus (b) an amount equal to any
extraordinary gain for such period, plus (c) provision for taxes based on income
or profits of the Borrower and the Restricted Subsidiaries for such period, plus
(d) Consolidated Interest Expense for such period, whether paid or accrued and
whether or not capital ized, plus (e) the aggregate amount of cash dividends or
cash distributions actually received by the Borrower or any Restricted
Subsidiary from any Unrestricted Subsidiary during such period to the extent not
in excess of the EBITDA of such Unrestricted Subsidiary for the relevant period,
plus (f) depreciation, amortization (including amortization of goodwill and
other intangibles and the amount of capacity available for sale charged to cost
of sales, but excluding amortization of prepaid cash expenses that were paid in
a prior period) and other non-cash expenses (excluding any such non-cash expense
to the extent that it represents an accrual of or reserve for cash expenses in
any future period or amortization of a prepaid cash expense that was paid in a
prior period) of the Borrower and the Restricted Subsidiaries for such period,
minus (g) non-cash items increasing such Consolidated Net Income for such period
(other than items that were accrued in the ordinary course of business), plus or
minus (h) any increase or decrease, respectively, in Deferred Revenue as of the
last day of such period from Deferred Revenue as of the date immediately
preceding the first day of such period, in each case, on a consolidated basis
and determined in accordance with GAAP. For purposes of calculating the
financial covenants set forth in Sections 6.13 and 6.14 and, in the case of the
Frontier Acquisition and the C&W Marine Acquisition, 6.12, if a material
acquisition or disposition has occurred during the relevant period, Consolidated
EBITDA will be determined giving pro forma effect thereto (without giving effect
to cost savings except to the extent approved by the Administrative Agent) as if
such acquisition or disposition and any related incurrence of Indebtedness or
issuance of preferred stock had occurred at the beginning of the relevant four-
quarter period.
12
"Consolidated Interest Expense" means, for any period, the
-----------------------------
consolidated interest expense included in a consolidated income statement
(without deduction of interest income) of the Borrower and the Restricted
Subsidiaries for such period, including without limitation or duplication (or,
to the extent not so included, with the addition of), (a) amortization of debt
issuance costs and original issue discount, (b) non-cash interest payments, (c)
the interest component of any deferred payment obligations, (d) the interest
component of all payments associated with Capital Lease Obligations, (e)
commissions, discounts and other fees and charges incurred in respect of Letter
of Credit or bankers' acceptance financings, (f) net payments or receipts (if
any) pursuant to Hedging Agreements that relate to the hedging of interest rate
fluctuations and (g) dividends paid in cash in respect of preferred stock. For
purposes of calculating the financial covenant set forth in Section 6.12, if the
Frontier Acquisition or the C&W Marine Acquisition has occurred during the
relevant period, Consolidated Interest Expense will be determined giving pro
forma effect thereto as if such acquisition and any related incurrence of
Indebtedness or issuance of preferred stock had occurred at the beginning of the
relevant four-quarter period.
"Consolidated Net Income" means, for any period, the net income or
-----------------------
loss of the Borrower and the Restricted Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP (adjusted to reflect any charge,
tax or expense incurred or accrued by Limited during such period as though such
charge, tax or expense had been incurred by the Borrower, to the extent that the
Borrower has made or would be entitled under the Loan Documents to make any
payment to or for the account of Limited in respect thereof) plus, to the extent
that any of the following items were deducted in computing such consolidated net
income, (a) non-recurring, non-cash charges (other than charges arising from
write-downs of assets) and (b) non-cash compensation charges arising from stock
options or other similar employee benefit or compensation plans; provided that
--------
(i) the net income (but not loss) of any Restricted Subsidiary that is accounted
for by the equity method of accounting shall be included only to the extent of
the amount of dividends or distributions paid in cash to the Borrower or a
wholly owned Restricted Subsidiary thereof by
13
such Restricted Subsidiary and (ii) the net income of any Person acquired in a
pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded.
"Control" means the possession, directly or indirectly, of the power
-------
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
----------- ----------
"date hereof" or "date of this Agreement" or other references to the
----------- ----------------------
date of this Agreement shall mean the date this Agreement becomes effective in
accordance with Section 9.06.
"Default" means any event or condition which constitutes an Event of
-------
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Defeased Obligations" means Indebtedness or other obligations of the
--------------------
Borrower or any Restricted Subsidiary (a) in respect of which the Borrower or
such Restricted Subsidiary shall have deposited cash and/or cash equivalents in
a trust in an amount sufficient to defease in full all payment obligations in
respect of such Indebtedness through the maturity of such Indebtedness in
accordance with the terms of the defeasance requirements of the indenture or
other instrument governing such Indebtedness, and (b) lease in lease out
obligations ("LILOs") of C&W Marine or a subsidiary thereof in which C&W Marine
or such subsidiary shall have deposited cash, cash equivalents (or deposits with
or the obligations of a banking institution with a rating of AA or higher from
S&P and Aa2 or higher from Xxxxx'x or other obligations having such ratings or
higher ratings) in a trust or as security in an amount sufficient to pay in full
all non-contingent payment obligations in respect of such Indebtedness or
obligations through the maturity thereof and in a manner resulting in GAAP
treatment in which such obligations do not constitute liabilities and
14
such deposit does not constitute an asset of C&W Marine or such subsidiary,
provided that each LILO existing on the date hereof shall not fail to constitute
--------
a Defeased Obligation as a result of a failure to meet any ratings requirement
at any time prior to the date that is six months after the Effective Date so
long as the senior unsecured long-term Indebtedness rating of each Person whose
obligations are held in trust or as security to make the payment obligations in
respect of such LILO are rated BBB or higher by S&P or Baa2 or higher by
Xxxxx'x.
"Deferred Revenue" means, at any date, amounts appearing as a
----------------
liability on the financial statements of the Borrower and the Restricted
Subsidiaries as prepared according to GAAP classified as deferred revenue to the
extent of cash received in connection therewith.
"Disqualified Stock" means any Equity Interest that, by its terms (or
------------------
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
final maturity of the latest maturing Loans; provided, however, that any Equity
-------- -------
Interest which would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require the Borrower to repurchase
or redeem such Equity Interest upon the occurrence of a Change in Control shall
not constitute Disqualified Stock if the change in control provisions applicable
to such Equity Interest are no more favorable to the holders of such Equity
Interest than the provisions applicable to the Loans and such Equity Interest
specifically provides that the Borrower will not repurchase or redeem any such
stock pursuant to such provisions prior to the Borrower's repayment in full of
the Loans. For purposes of this Agreement, the Preferred Stock shall not
constitute Disqualified Stock.
"dollars" or "$" refers to lawful money of the
------- -
15
United States of America.
"Effective Date" means the date on which the conditions specified in
--------------
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all applicable laws, rules, regulations,
------------------
codes, ordinances, orders, decrees, judgments, injunctions, notices, treaties or
binding agreements issued, promulgated or entered into by any Governmental
Authority, relating in any way to the protection of the environment, the
preservation or reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to health and safety matters
relating to the work place or the environment.
"Environmental Liability" means any liability, contingent or otherwise
-----------------------
(including any liability for damages, costs of environmental remediation,
remediation of natural resources, fines, penalties or indemnities), of Limited,
the Borrower or any Subsidiary directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment, (e) impairment of or damage to
natural resources or (f) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
----------------
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of
16
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
-----------
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
----------
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
----------------
VII.
"Excess Cash Flow" means, for any fiscal year, the sum (without
----------------
duplication) of:
(a) Consolidated Net Income (or loss) of the
17
Borrower and the Restricted Subsidiaries for such fiscal year, adjusted to
exclude any gains or losses attributable to Prepayment Events; plus
----
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such Consolidated Net Income (or loss) for such
fiscal year; plus
----
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal year plus (ii) the net amount, if any, by
which Deferred Revenues increased during such fiscal year; minus
-----
(d) the sum of (i) any non-cash gains included in determining such
Consolidated Net Income (or loss) for such fiscal year plus (ii) the
amount, if any, by which Net Working Capital increased during such fiscal
year plus (iii) the net amount, if any, by which Deferred Revenues
decreased during such fiscal year; minus
-----
(e) the sum of (i) Capital Expenditures for such fiscal year (except
to the extent attributable to the incurrence of Capital Lease Obligations
or otherwise financed by incurring Long-Term Indebtedness or with funds
that would otherwise have constituted Net Proceeds of a Prepayment Event)
plus (ii) cash consideration paid during such fiscal year by the Borrower
----
and the Restricted Subsidiaries to make acquisitions or other capital
investments (except to the extent financed by incurring Long-Term
Indebtedness or with funds that would otherwise have constituted Net
Proceeds of a Prepayment Event); minus
-----
(f) the aggregate principal amount of Long-Term Indebtedness
(including Capital Lease Obligations) repaid or prepaid by the Borrower and
the Restricted Subsidiaries during such fiscal year, excluding (i)
Indebtedness in respect of Revolving Loans and Letters of Credit, (ii) Term
Loans prepaid pursuant to Section 2.11(c) or (d), and (iii) repayments or
prepayments of Long-Term Indebtedness financed by incurring other Long-Term
Indebtedness.
For purposes of the foregoing, the Restricted
18
Subsidiaries shall include only the Subsidiaries that were Restricted
Subsidiaries as of the last day of the fiscal year in respect of which Excess
Cash Flow is being calculated.
"Exchange Notes" means the subordinated notes of the Borrower issuable
--------------
in exchange for the Preferred Stock.
"Exchange Note Indenture" means the indenture to be entered into by
-----------------------
GCHL upon the issuance of, and which shall govern the terms of, the Exchange
Notes, which shall have substantially the terms described in the Offering
Memorandum for the Preferred Stock dated November 24, 1998, as amended,
supplemented or otherwise modified from time to time in accordance with this
Agreement.
"Excluded Taxes" means, with respect to the Administrative Agent, any
--------------
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) any withholding
tax that (i) is in effect and would apply to amounts payable to any Lender at
the time such Lender becomes a party to this Agreement (or designates a new
lending office), other than any withholding tax imposed on any payment, in
respect of a Guarantee, from a Guarantor that is domiciled outside the United
States and except to the extent that such Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.17(a), or (ii) is attributable to such Lender's failure to
comply with Section 2.17(e).
"Federal Funds Effective Rate" means, for any day,
----------------------------
19
the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of the Borrower.
"Financing Transactions" means the execution, delivery and performance
----------------------
by each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof as contemplated hereby and
the issuance of Letters of Credit hereunder.
"Frontier" means Frontier Corporation, a New York corporation.
--------
"Frontier Acquisition" means the acquisition by Limited of all the
--------------------
common Equity Interests in Frontier in a transaction consistent with the public
disclosure thereof prior to the date hereof. The exercise by Limited, the
Borrower or any Restricted Subsidiary of any option to acquire Equity Interests
in Frontier in connection with the abandonment or termination of the Frontier
Acquisition shall not constitute an investment for purposes of Section 6.04 or a
sale, transfer, lease or other disposition of such option for purposes of
Section 6.05 if such exercise is effected without the expenditure of any funds
(other than transaction costs) by any of them.
"Frontier Borrower Date" means the date on or following the Frontier
----------------------
Acquisition on which (a) Frontier shall have delivered a duly executed
counterpart of this Agreement and become a Borrower hereunder and shall have
delivered notes to each Lender which has requested notes, (b) Frontier and its
subsidiaries shall become Restricted Subsidiaries and satisfy the Collateral and
Guarantee
20
Requirement and (c) the Administrative Agent shall have received
favorable written opinions (addressed to the Administrative Agent and the
Lenders and dated the Frontier Borrower Date) of Xxxxx X. Xxxxxx and Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Borrower, with respect to Frontier and the
transactions to occur on the Frontier Borrower Date, substantially to the effect
of the opinions set forth in Exhibits B-1 and B-2, respectively, and covering
such other matters as the Administrative Agent shall reasonably request (each of
Limited and the Borrower hereby requests such counsel to deliver such opinion).
"GAAP" means generally accepted accounting principles in the United
----
States of America.
"GCHL" means Global Crossing Holdings Ltd., a Bermuda corporation.
----
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay
21
such Indebtedness or other obligation or (d) as an account party in respect of
any letter of credit or letter of guaranty issued to support such Indebtedness
or obligation; provided, that the term Guarantee shall not include endorsements
--------
for collection or deposit in the ordinary course of business.
"Guarantee Agreement" means an agreement substantially in the form of
-------------------
Exhibit C or, if required or to the extent advisable in a jurisdiction outside
the United States, another form of agreement providing for a Guarantee of the
Obligations satisfactory in form and scope to the Administrative Agent.
"Hazardous Materials" means all explosive or radioactive substances
-------------------
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes,
radio frequency emissions, electromagnetic field radiation and all other
substances or wastes of any nature regulated pursuant to 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.
"Incremental Loans" has the meaning assigned to such term in Section
-----------------
2.08(e).
"Indebtedness" of any Person means, without dupli cation, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits (other
than customer deposits in respect of capacity purchases shown as assets on such
Person's balance sheet) or advances of any kind, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obliga tions of such Person upon which interest charges are cus tomarily paid,
(d) all obligations of such Person under
22
conditional sale or other title retention agreements relating to property
acquired by such Person (excluding obligations under contracts for the supply of
goods, equipment or fiber in connection with the installation, construction,
operation and/or maintenance of the Borrower's network, provided that all
obligations thereunder in respect of any such property are due upon completion
of such installation, construction or other work and are not overdue), (e) all
obligations of such Person in respect of the deferred purchase price of property
or services (excluding accounts payable incurred in the ordinary course of
business which are not past due by more than 90 days), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all Capital Lease Obligations of such Person, (i) all obliga tions, contingent
or otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (j) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor. For purposes of
this Agreement, Indebtedness shall not include (i) Defeased Obligations or (ii)
obligations to any seller of backhaul capacity or dark fiber (or any financing
Affiliate thereof) the proceeds of which are used to finance the purchase of
such capacity or dark fiber from such seller in the ordinary course of business.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Indemnity, Subrogation and Contribution Agreement" means an agreement
-------------------------------------------------
substantially in the form of Exhibit D or, if required or to the extent
advisable in a jurisdiction outside the United States, another form of agreement
designed to achieve the intended result
23
satisfactory in form and scope to the Administrative Agent.
"Index Debt" means the highest rated senior, unsecured, long-term
----------
Indebtedness for borrowed money of the Borrower that is not guaranteed or
otherwise credit enhanced, other than by Limited or the other Borrower.
"Information Memorandum" means the Confidential Information Memorandum
----------------------
dated June 1999 relating to the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
---------------------
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
---------------
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter (or nine or twelve months thereafter if, at the time of the relevant
Borrowing, all Lenders participating therein agree to make interest periods of
such duration available), as the Borrower may elect; provided, that (a) if any
--------
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
24
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Investment Grade Date" means the first day on which the ratings
---------------------
established by both Xxxxx'x and S&P for the Index Debt are, respectively, Baa2
or better and BBB or better.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
------------
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank
(including Chase Manhattan Bank Delaware), in which case the term "Issuing Bank"
shall include any such Affiliate with respect to Letters of Credit issued by
such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
---------------
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the
term "Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement.
25
"Leverage Ratio" means, on any date, the ratio of (a) the sum of Total
--------------
Indebtedness and the liquidation preference of Disqualified Stock as of such
date to (b) Consolidated EBITDA for the period of four consecutive fiscal
quarters of the Borrower ended on such date (or, if such date is not the last
day of a fiscal quarter, ended on the last day of the fiscal quarter of the
Borrower most recently ended prior to such date).
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of the Telerate 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, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
---------
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect
26
to such securities.
"Limited" means Global Crossing Ltd., a Bermuda corporation and any
-------
permitted successor thereto as a result of the U S West Transaction or as a
result of a transaction permitted by Section 6.03(a)(ii)(C).
"Loan Documents" means this Agreement, the Guarantee Agreements, the
--------------
Indemnity, Subrogation and Contribution Agreements and the other Security
Documents.
"Loan Parties" means Limited, the Borrower and the Subsidiary Loan
------------
Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Long-Term Indebtedness" means any Indebtedness that, in accordance
----------------------
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, operations or condition, financial or otherwise, of Limited,
the Borrower and the Restricted Subsidiaries taken as a whole, (b) the ability
of any Loan Party to perform any of its obligations under any Loan Document or
(c) the rights of or benefits available to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
---------------------
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Limited, the Borrower and the Restricted Subsidiaries in
an aggregate principal amount exceeding (a) at any time prior to the Investment
Grade Date, $50,000,000, and (b) at any time on or after the Investment Grade
Date, $100,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of Limited, the Borrower or any Restricted
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that Limited, the
Borrower or such Restricted Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
27
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash proceeds
------------
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by Limited, the Borrower and the
Restricted Subsidiaries to third parties (other than Affiliates) in connection
with such event, (ii) in the case of a sale, transfer or other disposition of an
asset (including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by Limited, the Borrower and the Restricted Subsidiaries as a result of
such event to repay Indebtedness (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such event, and (iii)
the amount of all taxes paid (or reasonably estimated to be payable) by Limited,
the Borrower and the Restricted Subsidiaries, and the amount of any reserves
established by Limited, the Borrower and the Restricted Subsidiaries to fund
contingent liabilities reasonably estimated to be payable, in each case during
the year that such event occurred or the next succeeding year and that are
directly attributable to such event (as determined reasonably and in good faith
by the chief financial officer of the Borrower).
"Net Tangible Assets" means, at any date, the assets of the Borrower
-------------------
and the Restricted Subsidiaries at such date minus the intangible assets of the
Borrower and the Restricted Subsidiaries, all determined on a consolidated basis
in accordance with GAAP.
"Net Working Capital" means, at any date, (a) the consolidated current
-------------------
assets of the Borrower and the Restricted Subsidiaries as of such date
(excluding cash and
28
Permitted Investments) minus (b) the consolidated current liabilities of the
Borrower and the Restricted Subsidiaries as of such date (excluding current
liabilities in respect of Indebtedness). Net Working Capital at any date may be
a positive or negative number. Net Working Capital increases when it becomes
more positive or less negative and decreases when it becomes less positive or
more negative. For purposes of calculating Excess Cash Flow, Net Working Capital
shall be determined after eliminating any increase due to any reduction or
termination of any Permitted Securitization or any decrease due to the
implementation or increase of any Permitted Securitization.
"Obligations" has the meaning assigned to such term in the form of
-----------
Guarantee Agreement attached hereto as Exhibit C.
"Other Taxes" means any and all present or future recording, stamp,
-----------
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form approved by
----------------------
the Administrative Agent.
"Permitted Acquisition" means any acquisition by the Borrower or any
---------------------
Restricted Subsidiary of all or substantially all the assets of, or all the
Equity Interests in, a Person or division or line of business of a Person if,
immediately after giving effect thereto, (a) no Default has occurred and is
continuing or would result therefrom, (b) the principal business of such Person
shall be reasonably related, ancillary or complementary to a business in which
the Borrower and its Restricted Subsidiaries or Frontier or U S West were
engaged on the Effective Date, (c) each Subsidiary formed for the purpose of or
resulting from such acquisition shall be a Restricted Subsidiary and all the
Equity Interests of each such Subsidiary shall be owned directly by the Borrower
and/or a Restricted
29
Subsidiary of the Borrower and all actions required to be taken with respect to
such acquired or newly formed Subsidiary under Sections 5.12 and 5.13 have been
taken, (d) the Borrower and its Restricted Subsidiaries are in compliance, on a
pro forma basis after giving effect to such acquisition (without giving effect
to operating expense reductions), with the covenants contained in Sections 6.12
and 6.13 and, if such determination is being made prior to the earlier of the
Frontier Borrower Date and the Investment Grade Date, 6.14, 6.15 and 6.16
recomputed as at the last day of the most recently ended fiscal quarter of the
Borrower for which financial statements are available, as if such acquisition
had occurred on the first day of each relevant period for testing such
compliance and (e) the Borrower has delivered to the Administrative Agent an
officers' certificate to the effect set forth in clauses (a), (b), (c) and (d)
above, together with all relevant financial information for the Person or assets
to be acquired and reasonably detailed calculations demonstrating satisfaction
of the requirement set forth in clause (d) above.
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety
30
appeal bonds, performance bonds and other obligations of a like nature,
in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
(g) leases and grants of indefeasible rights of use, rights of use and
similar rights in respect of capacity, dark fiber and similar assets of the
Borrower and the Restricted Subsidiaries in the ordinary course of
business; and
(h) Liens in favor of the Borrower and/or Subsidiary Loan Parties;
provided that the term "Permitted Encumbrances" shall not include any Lien
--------
securing Indebtedness.
"Permitted Holder" means Pacific Capital Group, Inc. and CIBC World
----------------
Markets Inc. and their respective Affiliates.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest
31
credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above.
"Permitted Securitization" shall mean the transfer or pledge of
------------------------
accounts receivable or interests in accounts receivable to a trust, partnership,
corporation or other entity in an off balance sheet true sale transaction, which
transfer or pledge is funded by such entity in whole or in part by the issuance
of instruments or securities that are paid principally from the cash flow
derived from such accounts receivable or interests in accounts receivable,
provided that (a) the aggregate outstanding face amount of the receivables sold
into such securitization, together with the aggregate outstanding face amount of
the receivables sold into all other Permitted Securitizations, shall not exceed
$200,000,000 at any time outstanding, (b) there shall be no recourse under such
securitization to Limited, the Borrower or any Restricted Subsidiary and (c) the
terms of such securitization shall be satisfactory to the Administrative Agent
(whose consent shall not be unreasonably withheld).
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
32
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" means an agreement substantially in the form of
----------------
Exhibit E or, if required or to the extent advisable in a jurisdiction outside
the United States, another form of agreement providing for the pledge of Equity
Interests to secure the Obligations satisfactory in form and scope to the
Administrative Agent.
"Preferred Stock" means the 10-1/2% Senior Exchangeable Preferred
---------------
Stock Due 2008 of GCHL, as amended in accordance with this Agreement.
"Prepayment Event" means:
----------------
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Borrower or
any Restricted Subsidiary, other than (i) dispositions described in clauses
(a), (b), (f), (g) and (h) of Section 6.05 and (ii) any other disposition
(or series of dispositions) as to which the Net Proceeds do not exceed
$500,000; or
(b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any property
or asset of the Borrower or any Restricted Subsidiary, but only to the
extent that the Net Proceeds therefrom have not been applied to repair,
restore or replace such property or asset, or to reimburse the Borrower or
such Restricted Subsidiary for expenditures previously made for such
purposes, within 360 days after such event (but in no event earlier than
the date which is 5 Business Days after the date of receipt of such Net
Proceeds).
33
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Purchase Money Indebtedness" means Indebtedness incurred to finance
---------------------------
the acquisition, construction, development, installation or improvement of any
fixed or capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof or result in an earlier
maturity date or decreased weighted average life thereof; provided that such
--------
Indebtedness is incurred or assumed prior to or within 90 days after such
acquisition or the completion of such construction or improvement.
"Register" has the meaning set forth in Section 9.04.
--------
"Related Fund" shall mean, with respect to any Lender that is a fund
------------
that invests in bank loans, any other fund or trust or entity that invests in
bank loans and is advised or managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, trustees, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
----------------
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other property) with respect to any Equity Interests in
Limited, the
34
Borrower or any Restricted Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in Limited, the Borrower or any Restricted
Subsidiary or any option, warrant or other right to acquire any such Equity
Interests in Limited, the Borrower or any Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary that is not an
---------------------
Unrestricted Subsidiary, and shall in any event include the following Persons,
which may not be designated as Unrestricted Subsidiaries: (a) each Subsidiary
specified on Schedule 1.01, each direct or indirect subsidiary of any of them
and each direct or indirect Subsidiary whose business activities constitute a
material component of the specific business conducted or anticipated to be
conducted by any Subsidiary specified on Schedule 1.01 or any direct or indirect
subsidiary of any Subsidiary specified on Schedule 1.01, (b) at any time prior
to the designation of C&W Marine as an Unrestricted Subsidiary in accordance
with clause (c) of the definition of Unrestricted Subsidiary, C&W Marine and
each direct or indirect subsidiary thereof, (c) on and after the Frontier
Borrower Date, Frontier and each direct or indirect subsidiary of Frontier, and
(d) on and after the date on which U S West becomes an Affiliate of Limited, U S
West and each direct or indirect subsidiary of U S West.
"Revolving Availability Period" means the period from and including
-----------------------------
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time
35
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Revolving Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Revolving Commitment, as applicable. The initial aggregate
amount of the Lenders' Revolving Commitments is $1,000,000,000.
"Revolving Exposure" means, with respect to any Lender at any time,
------------------
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
----------------
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (c) of Section
--------------
2.01.
"Revolving Maturity Date" means July 2, 2004.
-----------------------
"S&P" means Standard & Poor's.
---
"Security Documents" means the Pledge Agreements and each other
------------------
security agreement or other instrument or document executed and delivered
pursuant to Section 5.12 or 5.13 to secure any of the Obligations.
"Senior Secured Leverage Ratio" means, on any date, the ratio of (a)
-----------------------------
Total Senior Secured Indebtedness as of such date to (b) Consolidated EBITDA for
the period of four consecutive fiscal quarters of the Borrower ended on such
date (or, if such date is not the last day of a fiscal quarter, ended on the
last day of the fiscal quarter of the Borrower most recently ended prior to such
date for which financial statements are available).
"Senior Notes" means the 9-5/8% Senior Notes Due 2008 of GCHL.
------------
"Senior Note Indenture" means the indenture dated as of May 8, 1998,
---------------------
among GCHL, the guarantors referred to therein and United States Trust Company
of New York, as trustee, as amended in accordance with the Consent and as
36
amended, supplemented or modified from time to time in accordance with this
Agreement.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means (a) any subsidiary of the Borrower and (b) at any
----------
time that Frontier is a subsidiary of Limited but is not a subsidiary of the
Borrower, Frontier
37
and each subsidiary of Frontier.
"Subsidiary Loan Party" means each Restricted Subsidiary which has
---------------------
executed and delivered to the Administrative Agent a Guarantee Agreement and an
Indemnity, Subrogation and Contribution Agreement satisfactory to the
Administrative Agent and which has pledged as Collateral any Equity Interest
owned by it and required to be pledged to satisfy the Collateral and Guarantee
Requirement.
"Swingline Exposure" means, at any time, the aggregate principal
------------------
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as
----------------
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
--------------
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loans" means Tranche A Term Loans, Tranche B Term Loans and
----------
Incremental Loans.
"Total Indebtedness" means, as of any date, the sum of (a) the
------------------
aggregate principal amount of Indebtedness of the Borrower and the Restricted
Subsidiaries outstanding as of such date, in the amount that would be reflected
on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, plus (b) the aggregate principal amount of Indebtedness of
the Borrower and the Restricted Subsidiaries outstanding as of such date that is
not required to be reflected on a balance sheet in accordance with GAAP,
determined on a consolidated basis; provided that the term "Indebtedness" shall
--------
not include contingent obligations of the Borrower or any Restricted Subsidiary
as an account party in respect of any letter of credit or letter of guaranty
unless such letter of credit or letter of guaranty supports an obligation that
constitutes Indebtedness. For purposes of computing Total Indebtedness for any
date on or prior to December 31, 1999, in
38
determining compliance with Section 6.13 and Section 6.14, the outstanding
principal amount of the Indebtedness of the Borrower and the Restricted
Subsidiaries shall be deemed reduced by an amount equal to the lesser of (a)
$150,000,000 and (b) the amount of cash (other than cash held as collateral for
any obligation other than the Obligations) on the consolidated balance sheet of
the Borrower and the Restricted Subsidiaries as of such date.
"Total Senior Secured Indebtedness" means, as of any date, the Loans
---------------------------------
and that portion of Total Indebtedness that ranks pari passu with the Loans and
---- -----
is secured by any collateral.
"Tranche A Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche A Term Loans hereunder,
expressed as an amount representing the maximum principal amount of the Tranche
A Term Loans to be made by such Lender hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Tranche A Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Tranche A Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche A Commitments is
$1,000,000,000.
"Tranche A Lender" means a Lender with a Tranche A Commitment or an
----------------
outstanding Tranche A Term Loan.
"Tranche A Maturity Date" means July 2, 2004.
-----------------------
"Tranche A Term Loan" means a Loan made pursuant to clause (a) of
-------------------
Section 2.01.
"Tranche B Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make a Tranche B Term Loan hereunder on
the Effective Date, expressed as an amount representing the maximum principal
amount of the Tranche B Term Loan to be made by such Lender
39
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Tranche B Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Tranche B Commitment, as applicable. The initial aggregate amount of the
Lenders' Tranche B Commitments is $1,000,000,000.
"Tranche B Lender" means a Lender with a Tranche B Commitment or an
----------------
outstanding Tranche B Term Loan.
"Tranche B Maturity Date" means July 2, 2007.
-----------------------
"Tranche B Term Loan" means a Loan made pursuant to clause (b) of
-------------------
Section 2.01.
"Transactions" means the Financing Transactions and the obtaining of
------------
the Consent.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Unrestricted Subsidiary" means (a) GCT Pacific Holdings, Ltd. and the
-----------------------
joint ventures owned in part by Pacific Crossing Holdings Ltd. and/or GCT
Pacific Holdings, Ltd., including Pacific Crossing Ltd., and Global Access
Limited and their direct and indirect subsidiaries, (b) Global Crossing Landing
Mexicana S. De X.X. de C.V. and the joint ventures which will develop the
terrestrial systems within South America, (c) if the acquisition thereof is
financed or refinanced with Indebtedness in respect of which none of Limited,
the Borrower and the Restricted Subsidiaries shall have any contingent, direct
or other liabilities, and the Borrower shall at any time on or after the earlier
of the Frontier Borrower Date and the Investment Grade Date designate it by
written notice to the Administrative Agent as an Unrestricted Subsidiary, then
40
from and after such time C&W Marine and any direct or indirect subsidiary
thereof, (d) any other Subsidiary of the Borrower that shall have been
designated an Unrestricted Subsidiary by the Borrower in the manner provided
below and (e) any Subsidiary of an Unrestricted Subsidiary. The Borrower may
designate C&W Marine as an Unrestricted Subsidiary in accordance with clause (c)
above and may designate any other Subsidiary (including any newly acquired or
newly formed Subsidiary) to be an Unrestricted Subsidiary as contemplated by
clause (d) above if (i) neither such Subsidiary nor any of its Subsidiaries owns
any Equity Interests or Indebtedness of, or holds any Lien on any property of,
Limited, the Borrower or any other Restricted Subsidiary, (ii) after giving
effect to such designation, the Borrower shall be in compliance with clause
(c)(ii) of Section 6.04 (it being understood that, for purposes of determining
such compliance, all investments made by Loan Parties in, loans or advances made
by Loan Parties to and Guarantees made by Loan Parties of Indebtedness of any
Subsidiary so designated, shall be deemed to be investments, loans, advances and
Guarantees in, to or on behalf of an Unrestricted Subsidiary), (iii) after
giving effect to such designation, the Borrower and the Restricted Subsidiaries
shall be in compliance on a pro forma basis with the covenants contained in
--- -----
Sections 6.12 and 6.13 and, if such determination is being made prior to the
earlier of the Frontier Borrower Date and the Investment Grade Date, 6.14, 6.15
and 6.16 recomputed as at the last day of the most recently completed fiscal
quarter of the Borrower for which financial statements are available, as if such
designation had occurred on the first day of each relevant period for testing
such compliance, and (iv) no Default shall have occurred and be continuing or
would result therefrom. The Borrower may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary if (i) no Default shall have occurred and be
continuing or would result therefrom, (ii) after giving effect to such
designation, the Borrower and the Restricted Subsidiaries are in compliance on a
pro forma basis with the covenants contained in Sections 6.12 and 6.13 and, if
--- -----
such determination is being made prior to the earlier of the Frontier Borrower
Date and the Investment Grade Date, 6.14, 6.15 and 6.16 recomputed as at the
last day of the most recently completed fiscal quarter of the Borrower for which
financial statements are available, as if such designation had occurred on the
first day of each
41
relevant period for testing such compliance and (iii) all Indebtedness and Liens
of such Subsidiary could be incurred by it on the date of such designation
(without reliance on Section 6.01(a)(viii) or 6.02(a)(iv)). The Borrower shall
promptly notify the Administrative Agent in writing of any such designation and
shall deliver to the Administrative Agent a certificate signed by a Financial
Officer of the Borrower certifying that such designation complied with the
foregoing provisions together with reasonably detailed calculations
demonstrating satisfaction of the requirement set forth in clause (iii) of the
second sentence of this definition or in clause (ii) of the third sentence of
this definition, as applicable. In the event the date that Frontier becomes a
Subsidiary is not the Frontier Borrower Date, Frontier and each of its
subsidiaries shall be Unrestricted Subsidiaries until the Frontier Borrower Date
occurs.
"U S West" means U S West., Inc., a Delaware corporation.
--------
"U S West Transaction" means the transactions contemplated by the
--------------------
Agreement and Plan of Merger between Limited and U S West dated as of May 16,
1999, in connection with which U S West and Limited will become Affiliates with
a common parent or through another structure satisfactory to the Administrative
Agent.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
---------------------------------------
of this Agreement, Loans may be classified and referred to by Class (e.g., a
----
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
----
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
-----
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
---- ----
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
----
Borrowing").
42
SECTION 1.03. Terms Generally. The definitions of terms herein shall
----------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP; Treatment of Unrestricted
-------------------------------------------------
Subsidiaries. (a) Except as otherwise expressly provided herein, all terms of
-------------
an accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided that, if the Borrower notifies the
--------
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose or to eliminate the effect of
any voluntary change by the Borrower in the application of GAAP), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be
43
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith. For purposes of
calculating compliance with any covenant, Defeased Obligations shall not
constitute Indebtedness and the assets used to effect the defeasance thereof
shall not constitute assets of the Borrower or any Restricted Subsidiary.
(b) Except as otherwise expressly provided herein, all accounting and
financial calculations and determinations hereunder shall be made without
consolidating the accounts of Unrestricted Subsidiaries with those of the
Borrower or any Restricted Subsidiary, notwithstanding that such treatment is
inconsistent with GAAP.
SECTION 1.05. Construction After the Frontier Borrower Date.
----------------------------------------------
Notwithstanding any other provision contained herein, unless and until the
Frontier Borrower Date shall have occurred, Frontier shall not be a "Borrower"
and its subsidiaries shall not be "Subsidiaries" hereunder. At all times after
the Frontier Borrower Date, (a) each reference herein to the "Borrower" shall
mean each of GCHL and Frontier and each of them may borrow at any time up to the
full amount of the unutilized Tranche A Commitments or Revolving Commitments
that is available to be borrowed by the Borrower at such time, (b) all
determinations or calculations to be made with respect to the Borrower and the
Subsidiaries or the Restricted Subsidiaries shall be made for all periods in
respect of which such determinations or calculations are being made with respect
to GCHL, Frontier and the Subsidiaries or the Restricted Subsidiaries, as
applicable, (c) references herein to consolidated financial statements of the
Borrower and the Restricted Subsidiaries shall mean combined and consolidated
financial statements, (d) all representations and warranties by the Borrower
under the Loan Documents will be deemed to be made by each of GCHL and Frontier,
(e) each of GCHL and Frontier shall be bound by the covenants of the Borrower
under the Loan Documents and (f) each of GCHL and Frontier shall be jointly and
severally liable for each other agreement of the Borrower under each Loan
Document and for each of the Obligations
44
(except in the case of GCHL with respect to Obligations of Frontier as
contemplated by the proviso to the penultimate sentence of the definition of
Collateral and Guarantee Requirement).
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. Subject to the terms and conditions set
------------
forth herein, each Lender agrees (a) to make Tranche A Term Loans to the
Borrower from time to time on and after the Effective Date in a principal amount
on each occasion not exceeding its remaining unused Tranche A Commitment at such
time, (b) to make a Tranche B Term Loan to the Borrower on the Effective Date in
a principal amount not exceeding its Tranche B Commitment and (c) to make
Revolving Loans to the Borrower from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in
such Lender's Revolving Exposure exceeding such Lender's Revolving Commitment.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans. Amounts
repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a
---------------------
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
--------
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith; provided that all Borrowings made
--------
on the Effective Date must be made as ABR Borrowings. Each Swingline Loan shall
be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by
causing any domestic
45
or foreign branch or Affiliate of such Lender to make such Loan; provided that
--------
any exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $20,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $10,000,000; provided
--------
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Each Swingline Loan shall be in an amount that is not less than
$100,000. Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of 10
--------
Eurodollar Borrowings outstanding for each Class of Borrowing.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date, Tranche A Maturity Date or Tranche B Maturity
Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
------------------------
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 1:00 p.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
1:00 p.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Revolving Borrowing to
--------
finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e) may be given not later than 10:00 a.m., New York City time, on the date
of the proposed Borrowing. Each
46
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing,
Tranche A Term Borrowing or Tranche B Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing. The
Borrower may combine within a single document Borrowing Requests for more than
one Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
----------------
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from
47
time to time during the Revolving Availability Period, in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans exceeding $25,000,000, (ii) the
Revolving Exposure of any Revolving Lender, after giving effect to the
applicable Swingline Loan, exceeding the Revolving Commitment of such Revolving
Lender or (iii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative
Agent will give notice thereof to each Revolving Lender, specifying in such
notice such Lender's Applicable Percentage of such
48
Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Revolving Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
------- --------
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Revolving Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Revolving
Lenders that shall have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms
------------------ --------
and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and
49
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
----------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
-----------
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for a Letter of Credit (in the event of any
conflict between the terms of such application and the terms of this Agreement
with respect to any subject matter covered by this Agreement (including
covenants and events of default), this Agreement shall govern). A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the aggregate LC Exposure in respect of
Letters of Credit contemplated by Section 6.01(a)(i) shall not exceed
$600,000,000, (ii) the aggregate LC Exposure in respect of all other Letters of
Credit shall not exceed $250,000,000, (iii) the aggregate LC Exposure shall not
exceed
50
$750,000,000, and (iv) the total Revolving Exposures shall not exceed the total
Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
----------------
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
---------------
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
--------------
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such
51
LC Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on the Business Day
immediately following the day that the Borrower receives such notice; provided
--------
that the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.02 and, as applicable, Section 2.03 or 2.04
that such payment be financed with an ABR Revolving Borrowing or Swingline Loan
in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to
make such payment when due, the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, the payment then due from the Borrower
in respect thereof and such Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each Revolving Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.06 with respect to Loans
made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the
------- --------
payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their interests may
appear. Any payment made by a Revolving Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of
ABR Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
---------------------
Disbursements as provided in paragraph (e) of this Section shall be absolute,
52
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
--------
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in
53
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
------------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
--------
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
-----------------
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
--------
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
--------------------------------
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative
54
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
-----------------------
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that the obligation
--------
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (h) or (i) of Article VII. The Borrower also shall
deposit cash collateral pursuant to this paragraph as and to the extent required
by Section 2.11(b). Each such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Other than any
55
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or waived. If
the Borrower is required to provide an amount of cash collateral hereunder
pursuant to Section 2.11(b), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower as and to the extent that, after
giving effect to such return, the Borrower would remain in compliance with
Section 2.11(b) and no Default shall have occurred and be continuing.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make
----------------------
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
--------
provided in Section 2.04. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans made to finance the reimbursement of
--------
an LC Disbursement as provided in
56
Section 2.05(e) shall be remitted by the Administrative Agent to the Issuing
Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans of the applicable Class. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing and
-------------------
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request for such Borrowing and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
57
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02;
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
58
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments; Increase of
-----------------------------------------------------
Commitments. (a) (i) Unless previously terminated, (A) the Tranche B
------------
Commitments shall terminate at 5:00 p.m., New York City time, on the Effective
Date and (B) the Revolving Commitments shall terminate on the Revolving Maturity
Date.
(ii) Unless previously terminated, the Tranche A Commitments shall be
reduced at 5:00 p.m., New York City time, (A) on the date of each Tranche A
Borrowing in an amount for each Tranche A Lender equal to the amount of the Loan
of such Lender included in such Tranche A Borrowing and (B) on each date set
forth below in an aggregate amount equal to the excess, if any, at 5:00 p.m.,
New York City time, on such date of (x) the aggregate unused Tranche A
Commitments over (y) the amount set forth below for such date:
Date Maximum Unused
---- -----------------
Tranche A Commitment
--------------------
Effective Date $500,000,000
-----------------------------------------------------
July 2, 2000 0
-----------------------------------------------------
59
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; provided that (i) each reduction of the
--------
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $20,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the sum of the Revolving Exposures would exceed the total Revolving Commitments.
(c) If any prepayment of Term Borrowings is required pursuant to
Section 2.11 but cannot be made because there are no Term Borrowings
outstanding, or because the amount of the required prepayment exceeds the
outstanding amount of Term Borrowings, then, on the date that such prepayment is
required, the Revolving Commitments (or, if any Tranche A Commitments remain
outstanding, first the Tranche A Commitments and then after there are no
remaining Tranche A Commitments, the Revolving Commitments) shall be reduced by
an aggregate amount equal to the amount of the required prepayment, or the
excess of such amount over the outstanding amount of Term Borrowings, as the
case may be.
(d) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
--------
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the
60
Lenders in accordance with their respective Commitments of such Class.
(e) At any time, the Borrower may, by notice to the Administrative
Agent (which shall promptly deliver a copy to each of the Lenders), request the
addition of a new tranche of Term Loans (the "Incremental Loans"). The
-----------------
Incremental Loans (i) shall be in an aggregate principal amount not in excess of
$500,000,000 or a greater amount approved by Lenders holding Loans, LC Exposures
and unutilized Commitments representing 66-2/3% of all the Loans, LC Exposures
and unutilized Commitments at the time of such approval, (ii) shall be Term
Loans for all purposes hereunder (including for purposes of sharing of
Collateral, Guarantees and prepayments) and (iii) shall have such pricing as may
be agreed by the Borrower and the Lenders providing such Incremental Loans and
shall otherwise have the same terms as, at the Borrower's election, either the
Tranche A Term Loans or the Tranche B Term Loans (and references to Tranche A
Term Loans or to Tranche B Term Loans shall be deemed as the context requires to
include references to Incremental Loans having the terms of Tranche A Term Loans
or Tranche B Term Loans, respectively), including the same proportional
amortization as the remaining Tranche A Term Loans or Tranche B Term Loans, as
applicable. The Borrower shall have the right to arrange for one or more banks
or other financial institutions (any such bank or other financial institution
being called an "Additional Lender") to extend commitments to provide
-----------------
Incremental Loans in an aggregate amount equal to the amount, if any, by which
the commitments by the Lenders to provide such Incremental Loans are less than
the amount thereof requested by the Borrower, provided that each Additional
--------
Lender shall be subject to the approval of the Borrower and the Administrative
Agent (which approval shall not be unreasonably withheld). Commitments in
respect of Incremental Loans shall become Commitments under this Agreement
pursuant to an amendment to this Agreement executed by each of the Borrower,
each Lender agreeing to provide such Commitment, each Additional Lender, if any,
the Issuing Bank and the Administrative Agent, and such amend ments to the
other Loan Documents as the Administrative
61
Agent shall reasonably deem appropriate to effect such purpose. The
effectiveness of such amendment shall be subject to the satisfaction on the date
thereof and, if different, on the date on which the Incremental Loans are made,
of each of the conditions set forth in paragraphs (a) and (b) of Section 4.02.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The
-------------------------------------
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Loan of such Lender as provided in Section 2.10 and (iii) to
the Swingline Lender (or to the Administrative Agent to the extent the Revolving
Lenders have acquired participations in any Swingline Loan) the then unpaid
principal amount of each Swingline Loan on the Revolving Maturity Date; provided
--------
that on each date that a Revolving Borrowing is made, the Borrower shall repay
all Swingline Loans that were outstanding on the date such Borrowing was
requested.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such
62
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Amortization of Term Loans. (a) Subject to adjustment
---------------------------
pursuant to paragraph (d) of this Section, the Borrower shall repay Tranche A
Term Borrowings in the principal amounts for each date set forth below equal to
the percentage set forth opposite such date of the aggregate outstanding
principal amount of the Tranche A Borrowings at 5:00 p.m., New York City time,
on June 30, 2002:
Payment Percentage
------- ----------
Date
June 30, 2002 3.00%
September 30, 2002 3.00%
December 31, 2002 3.00%
March 31, 2003 3.00%
June 30, 2003 5.00%
September 30, 2003 5.00%
December 31, 2003 10.00%
March 31, 2004 10.00%
Tranche A Maturity Date 58.00%
(b) Subject to adjustment pursuant to paragraph (d) of this Section,
the Borrower shall repay Tranche B Term Borrowings (i) in the aggregate
principal amounts for the four-fiscal-quarter periods ending on the dates set
forth below in consecutive equal quarterly
63
installments on each September 30, December 31, March 31 and June 30, commencing
on September 30, 2001 and ending on June 30, 2006:
Fiscal Period Annual
------------- ------
Ended Amounts
June 30, 2002 $10,000,000
------------- ----------
June 30, 2003 10,000,000
------------- ----------
June 30, 2004 10,000,000
------------- ----------
June 30, 2005 10,000,000
------------- ----------
June 30, 2006 10,000,000
and (ii) on the dates set forth below in the respective amounts set forth for
such dates:
Date Amount
---- ------
September 30, 2006 $ 10,000,000
December 31, 2006 313,333,333
March 31, 2007 313,333,333
Tranche B Maturity Date 313,333,334
(c) To the extent not previously paid, (i) all Tranche A Term Loans
shall be due and payable on the Tranche A Maturity Date and (ii) all Tranche B
Term Loans shall be due and payable on the Tranche B Maturity Date.
(d) Any prepayment of a Term Borrowing of any Class shall be applied
to reduce the subsequent scheduled repayments of the Term Borrowings of such
Class to be made pursuant to this Section ratably; provided that any prepayment
--------
made pursuant to Section 2.11(a) shall be applied, first, to reduce the next
scheduled repayment of the Term Borrowings of such Class to be made pursuant to
this Section unless and until such next scheduled repayment has been eliminated
as a result of reductions hereunder and, second, ratably.
64
(e) Prior to any repayment of any Term Borrowings of any Class
hereunder, the Borrower shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 11:00 a.m.,
New York City time, three Business Days before the scheduled date of such
repayment. In the event the Borrower fails to give such notice, such repayments
shall be applied first to ABR Borrowings of the applicable Class and then to
Eurodollar Borrowings of such Class in the direct order of then-scheduled
expiration dates of the Interest Periods then applicable thereto. Each
repayment of a Borrowing shall be applied ratably to the Loans included in the
repaid Borrowing. Repayments of Term Borrowings shall be accompanied by accrued
interest on the amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the
--------------------
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) In the event and on each occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrower shall prepay
Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are
outstanding, deposit cash collateral in an account with the Administrative Agent
pursuant to Section 2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Restricted Subsidiary at any
time prior to the Investment Grade Date in respect of any Prepayment Event, the
Borrower shall, within three Business Days after such Net Proceeds are received,
prepay Term Borrowings in an aggregate amount equal to such Net Proceeds;
provided that, in the case of any event described in clause (a) of the
--------
definition of the term Prepayment Event, if the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer to the effect that the
Borrower and the Restricted Subsidiaries intend to apply the Net Proceeds from
such event (or a portion thereof specified in such
65
certificate), within 360 days after receipt of such Net Proceeds, (x) to acquire
real property, equipment or other assets to be used in the business of the
Borrower and the Restricted Subsidiaries, (y) to make investments permitted by
Section 6.04(g) or investments in Restricted Subsidiaries permitted by Section
6.04(l), or (z) if such Prepayment Event arises from the sale, transfer or
disposition of any investment in an Unrestricted Subsidiary, to make investments
in one or more other Unrestricted Subsidiaries, and, in each case, certifying
that no Default has occurred and is continuing or would occur as a result of any
such application, then no prepayment shall be required pursuant to this
paragraph in respect of the Net Proceeds in respect of such event (or the
portion of such Net Proceeds specified in such certificate, if applicable)
except to the extent of any such Net Proceeds therefrom that have not been so
applied by the end of such 360-day period, at which time a prepayment shall be
required in an amount equal to such Net Proceeds that have not been so applied.
(d) Following the end of each fiscal year of the Borrower, commencing
with the fiscal year ending December 31, 2002, the Borrower shall prepay Term
Borrowings in an aggregate amount equal to 50% of Excess Cash Flow for such
fiscal year; provided that no such payment shall be required if either (i) the
--------
ratings established for the Index Debt are BBB- or better and Baa3 or better as
of the date by which payment is required to be made pursuant to the next
succeeding sentence or (ii) the Leverage Ratio as of the last day of such fiscal
year shall be 4.0 to 1 or less. Each prepayment pursuant to this paragraph shall
be made on or before the date on which financial statements are delivered
pursuant to Section 5.01 with respect to the fiscal year for which Excess Cash
Flow is being calculated (and in any event within 90 days after the end of such
fiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section. In the event the Borrower fails to give such
notice, such prepayments shall be applied first to ABR Borrowings of each
applicable Class and then to Eurodollar Borrowings of such Class in the direct
order of
66
then-scheduled expiration dates of the Interest Periods then applicable thereto.
In the event of any mandatory prepayment of Term Borrowings made at a time when
Term Borrowings of both Classes remain outstanding, the Borrower shall select
Term Borrowings to be prepaid so that the aggregate amount of such prepayment is
allocated between the Tranche A Term Borrowings and Tranche B Term Borrowings
pro rata based on the aggregate principal amount of outstanding Borrowings of
each such Class; provided that, so long as any Tranche A Term Loans are
--------
outstanding, any Tranche B Lender may elect, by notice to the Administrative
Agent by telephone (confirmed by telecopy) at least one Business Day prior to
the prepayment date, to decline all or any portion of any such mandatory
prepayment of its Tranche B Term Loans pursuant to this Section, in which case
the aggregate amount of the prepayment that would have been applied to prepay
Tranche B Term Loans but was so declined shall be applied pro rata to prepay
Tranche A Term Borrowings and the Tranche B Term Loans of any Tranche B Lenders
which have accepted such prepayment. In the event of any optional prepayment of
Term Borrowings, prepayments shall be allocated among the Tranche A Borrowings,
Tranche B Borrowings and Incremental Loans at the Borrower's election.
(f) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; provided that, if a
--------
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving
67
Commitments as contemplated by Section 2.08, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with Section
2.08. Promptly following receipt of any such notice (other than a notice
relating solely to Swingline Loans), the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that would be permitted in the case of an advance of a Borrowing
of the same Type as provided in Section 2.02, except as necessary to apply fully
the required amount of a mandatory prepayment. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
-----
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Commitment Fee Rate on the average daily unused amount of
each Commitment of such Lender during the period from and including the date of
this Agreement to but excluding the date on which such Commitment terminates.
Accrued commit ment fees shall be payable in arrears (i) in the case of
commitment fees in respect of the Revolving Commitments and the Tranche A
Commitments, on the last day of March, June, September and December of each year
and on the date on which the Revolving Commitments or the Tranche A Commitments,
as applicable, terminate, commencing on the first such date to occur after the
date hereof and (ii) in the case of commitment fees in respect of the Tranche B
Term Commitments, on the Effective Date or on any earlier date on which such
Commitments terminate. All commitment fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees with respect to Revolving Commitments, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender
shall be disregarded for such purpose).
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving
68
Lender a participation fee with respect to its participa tions in Letters of
Credit, which shall accrue at the same Applicable Rate as interest on Eurodollar
Revolving Loans on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Revolving Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Borrower and the Issuing Bank on the average
daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as the Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Revolving Commitments terminate and
any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on
69
the dates due, in immediately available funds, to the Administrative Agent (or
to the Issuing Bank, in the case of fees payable to it) for distribution, in the
case of commitment fees and participation fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
---------
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; provided that (i) interest accrued
--------
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
70
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
---------------------------
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. Increased Costs. (a) If any
----------------
71
Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender, by an amount that such Lender deems to be material, of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any
such Loan) or to increase, by an amount that such Lender deems to be material,
the cost to such Lender or the Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce, by an amount that such Lender
deems to be material, the amount of any sum received or receivable by such
Lender or the Issuing Bank with respect to Eurodollar Loans made or Letters of
Credit issued hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the Issuing Bank's policies and the
policies of such Lender's or the Issuing Bank's holding company with respect to
capital adequacy) by an
72
amount that such Lender or Issuing Bank, as the case may be, deems material,
then from time to time the Borrower will pay to such Lender or the Issuing Bank,
as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be prima facie
----- -----
evidence of the accuracy thereof. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
--------
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
-------- -------
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the
-----------------------
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified
73
in any notice delivered pursuant hereto (regardless of whether such notice may
be revoked under Section 2.08(d) or 2.11(f) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be prima facie evidence of
the accuracy thereof. The Borrower shall pay such Lender the amount shown as due
on any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of
------
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if the Borrower shall be required to deduct any
--------
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal
74
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as reasonably practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) If any Lender, the Administrative Agent or the Issuing Bank is
entitled to an exemption from or reduction of withholding tax under the law of
the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement, such
person shall deliver to the Borrower (with a copy to the Administrative Agent),
at
75
the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law or reasonably requested by
the Borrower as will permit such payments to be made without withholding or at a
reduced rate, provided that such person has received written notice from the
Borrower advising it of the availability of such exemption or reduction and
supplying all applicable documentation.
(f) If the Administrative Agent or a Lender determines, in its
reasonable discretion, that it has received a refund of any Taxes or Other Taxes
as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.17 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all out-
of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, however, that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay
such refund to such Governmental Authority. Nothing contained in this Section
2.17(f) shall require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-
------------------------------------------------------
Offs. (a) The Borrower shall make each payment required to be made by it
-----
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
76
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto, and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall be made
in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender
77
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline
Loans and accrued interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing
78
Bank, as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a)
-----------------------------------------------
If any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
79
Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i)
--------
unless such assignee is another Lender the Borrower shall have received the
prior written consent of the Administrative Agent (and, if a Revolving
Commitment is being assigned, the Issuing Bank and Swingline Lender), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.15 or payments required to be made pursuant to Section 2.17, such assignment
will result in a material reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
Each of Limited and the Borrower represents and warrants to the
Lenders that:
SECTION 3.01. Organization; Powers; Licenses. Each of Limited, the
-------------------------------
Borrower and the Restricted Subsidiaries is duly organized, validly existing and
in good
80
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
------------------------------
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by each
of Limited and the Borrower and constitutes, and each other Loan Document to
which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of Limited, the
Borrower or such Loan Party (as the case may be), enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
-------------------------------------
participation by Limited, the Borrower and each Restricted Subsidiary in the
Transactions (a) does not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except (i) such
as have been obtained or made and are in full force and effect, (ii) filings
necessary to perfect Liens created under the Loan Documents and (iii) such as
its failure to obtain, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of Limited, the Borrower or any of the Restricted Subsidiaries, (c)
will not violate or result in a default under the Senior Note Indenture, the
Preferred Stock or the Exchange Note Indenture or give rise to a right
thereunder to require any payment to be made by Limited, the Borrower or any of
the Restricted Subsidiaries, (d) will not violate any order of any Governmental
Authority or violate or result
81
in a default under any indenture, agreement or other instrument binding upon
Limited, the Borrower or any of the Restricted Subsidiaries or its assets, or
give rise to a right thereunder to require any payment to be made by Limited,
the Borrower or any of the Restricted Subsidiaries, except for such violations,
defaults or rights, individually or in the aggregate, as could not reasonably be
expected to result in a Material Adverse Effect or to expose any Lender or the
Administrative Agent to any potential material civil liability or any potential
criminal liability, and (e) will not result in the creation or imposition of any
Lien on any asset of Limited, the Borrower or any of the Restricted
Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
------------------------------------------------
The Borrower has heretofore furnished to the Lenders Limited's consolidated
balance sheet and statements of income, stockholders equity and cash flows (i)
as of and for the fiscal year ended December 31, 1998, reported on by Xxxxxx
Xxxxxxxx & Co., independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended March 31, 1999,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of Limited and its consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) The Borrower has heretofore furnished to the Lenders the pro
forma consolidated balance sheet for Limited and the Restricted Subsidiaries as
of March 31, 1999, prepared giving effect to the Transactions as if the
Transactions had occurred on such date. Such pro forma consolidated balance
sheet (i) has been prepared in good faith based on the same assumptions used to
prepare the pro forma financial statements included in the Information
Memorandum (which assumptions are believed by Limited and the Borrower to be
reasonable), (ii) to the best of the Borrower's knowledge as of the Effective
Date, accurately
82
reflects all adjustments necessary to give effect to the Transactions and (iii)
when prepared, presented, and will as of the Effective Date present, fairly, in
all material respects, the pro forma financial position of the Borrower and the
Restricted Subsidiaries as of March 31, 1999, as if the Transactions had
occurred on such date.
(c) Except as disclosed in the financial statements referred to above
or the notes thereto or in the Information Memorandum, after giving effect to
the Transactions, none of Limited, the Borrower or the Restricted Subsidiaries
has, as of the Effective Date, any material contingent liabilities, unusual
long-term commitments or unrealized losses.
(d) Since December 31, 1998, there has not occurred any event,
condition or change that could reasonably be expected to have a material adverse
effect on the business, assets, operations or condition (financial or otherwise)
of Limited, the Borrower and the Restricted Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of Limited, the Borrower and the
-----------
Restricted Subsidiaries has good title to, or valid leasehold interests,
licenses, easements, or other rights in, all its real and personal property
material to its business as currently conducted, except for defects in title and
other infirmities that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect or to interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of Limited, the Borrower and the Restricted Subsidiaries
owns, or is licensed or has other rights to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by Limited, the Borrower and the Restricted Subsidiaries
does not infringe upon the rights of any other Person, except for any such
failures that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are
-------------------------------------
no actions, suits or proceedings by
83
or before any arbitrator or Governmental Authority pending against or, to the
knowledge of Limited or the Borrower, threatened against or affecting Limited,
the Borrower or any of the Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect or (ii) that involve any of the Loan Documents or the
Transactions.
(b) Except with respect to any matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither Limited, the Borrower nor any of the Restricted Subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.
SECTION 3.07. Compliance with Laws and Agreements. Each of Limited,
------------------------------------
the Borrower and the Restricted Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority 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. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
--------------------------------------
Limited, the Borrower nor any of the Subsidiaries is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of Limited, the
------
84
Borrower and the Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) any Taxes that are
being contested in good faith by appropriate proceedings and for which Limited,
the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
------
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. Except where an ERISA Event in respect of
such excess could not reasonably be expected to result in a Material Adverse
Effect, the present value of all accumulated benefit obligations under each Plan
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets
of such Plan, and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Plans. Each employee benefit plan
maintained primarily in respect of current or former employees of Limited, the
Borrower and its Subsidiaries who are or were employed outside the United States
is in compliance with all applicable laws and regulations and there are not any
material unfunded amount thereunder, except where such noncompliance or unfunded
liabilities would not, individually or in the aggregate, have a Material Adverse
Effect.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders
-----------
all agreements, instruments and corporate or other restrictions to which
Limited, the Borrower or any of the Restricted Subsidiaries is subject, and all
other matters known to any of them as of the date hereof, that, individually or
in the aggregate, could
85
reasonably be expected to result in a Material Adverse Effect. As of the date
hereof, neither the Information Memorandum nor any of the other reports,
financial statements, certificates or other information furnished by or on
behalf of any Loan Party to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement or any other Loan Document or delivered
hereunder or thereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, Limited and the Borrower represent
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.
SECTION 3.12. Subsidiaries. As of the Effective Date, Limited does
-------------
not have any subsidiaries other than the Borrower, the Subsidiaries and Global
Crossing Holdings II Ltd. Schedule 3.12 sets forth the name of, and the
ownership interest of the Borrower in, each Subsidiary of the Borrower and
identifies each Subsidiary that is a Subsidiary Loan Party, in each case as of
the Effective Date.
SECTION 3.13. Insurance. Limited and the Borrower believe that the
----------
insurance maintained by or on behalf of the Borrower and its Subsidiaries is
adequate.
SECTION 3.14. Labor Matters. As of the Effective Date, there are no
--------------
strikes, lockouts or slowdowns against Limited, the Borrower or any Subsidiary
pending or, to the knowledge of Limited or the Borrower, threatened.
SECTION 3.15. Senior Indebtedness. The Obligations constitute
--------------------
"Senior Debt" under and as defined in the Exchange Note Indenture.
SECTION 3.16. Year 2000. Any reprogramming required to permit the
----------
proper functioning, in and following the year 2000, of the computer systems of
the Borrower and
86
the Restricted Subsidiaries and the testing of all such systems and equipment,
as so reprogrammed, are expected to be completed by December 31, 1999. The cost
to the Borrower and the Subsidiaries of such reprogramming and testing and of
the reasonably foreseeable consequences of year 2000 to the Borrower and its
Subsidiaries (including reprogramming errors and the failure of others' systems
or equipment) have not resulted in and are not expected to result in a Material
Adverse Effect.
SECTION 3.17. Regulatory Matters; Etc. Limited, the Borrower and the
------------------------
Restricted Subsidiaries have or have sufficient rights in all licenses, consents
and approvals from the FCC, other applicable Governmental Authorities and other
third parties necessary or advisable to authorize Limited, the Borrower and such
Subsidiaries to consummate the Transactions, to own and operate the businesses
of Limited, the Borrower and such Restricted Subsidiaries and to conduct their
operations as contemplated by their business plan (or have no reason to believe
that they will not have or have sufficient rights in such licenses, consents and
approvals as and when required), all of which to the extent currently required
are in full force and effect, and no action has been taken by the FCC or any
other Person or, to the knowledge of the Borrower, is threatened by any
competent authority to challenge any such license, consent or approval or that
would otherwise restrain, prevent or otherwise impose material adverse
conditions on the financings contemplated hereby or in the business, operations
or financial condition of Limited, the Borrower and such Subsidiaries taken as a
whole, except in each case where the failure of any of the statements in this
Section to be true, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.18. Indenture Compliance. At the time of any Borrowing or
---------------------
issuance of a Letter of Credit, such Borrowing or issuance is permitted under
the debt incurrence test specified under each of the Senior Note Indenture and,
as applicable, the Preferred Stock or the Exchange Note Indenture, or such
Borrowing or issuance is permitted under another provision of such Senior Note
Indenture or, as applicable, the Preferred Stock or the Exchange Note Indenture.
87
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
---------------
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a written opinion
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of each of (i) Xxxxx X. Xxxxxx, General counsel of the
Borrower, substantially in the form of Exhibit B-1, (ii) Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Borrower, substantially in the form of Exhibit B-
2, and (iii) local counsel in each jurisdiction in which a Guarantee
Agreement or Pledge Agreement is required to be obtained by the Collateral
and Guarantee Requirement, in a form reasonably satisfactory to the
Administrative Agent, and (iv) FCC counsel for the Borrower substantially
to the effect that no consent, approval, authorization, license or order
of, or filing with, the FCC is required in connection with the Financing
Transactions and that the Financing Transactions will not violate or breach
the Communications Act of 1934, as amended, or the Submarine Cable Statute
or the rules and regulations of the FCC and court interpretations thereof.
Each of
88
Limited and the Borrower hereby requests such counsel to deliver such
opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party, the authorization of the Transactions and any other legal
matters relating to the Loan Parties, the Loan Documents or the
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan
Document.
(f) The Collateral and Guarantee Requirement shall have been
satisfied and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by an executive
officer or Financial Officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to the Loan
Parties in the jurisdictions contemplated by the Perfection Certificate and
copies of the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Administrative Agent
that the Liens indicated by such financing statements (or similar
documents) are
89
permitted by Section 6.02 or have been released.
(g) The Consent shall have been obtained and shall be effective.
(h) All requisite material Governmental Authorities and all material
third parties shall have approved or consented to the transactions
contemplated hereby to the extent required.
(i) The Lenders shall have received a pro forma consolidated balance
sheet of the Borrower and the Restricted Subsidiaries as of March 31, 1999,
reflecting all pro forma adjustments as if the Transactions had been
consummated on such date, and such pro forma consolidated balance sheet
shall be consistent in all material respects with the forecasts and other
information previously provided to the Lenders, and the Borrower and the
Restricted Subsidiaries will be in compliance on a pro forma basis with the
--- -----
covenants contained in Sections 6.12, 6.13, 6.14, 6.15 and 6.16 recomputed
as of the last day of the most recently completed fiscal quarter of the
Borrower for which financial statements are available, as if the
Transactions had occurred on the first day of each relevant period for
testing such compliance.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on July
31, 1999 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
------------------
make a Loan on the occasion of any Borrowing (other than a Borrowing which
constitutes the conversion or continuation of a Loan), and of the Issuing Bank
to issue, amend, renew or extend any Letter of Credit, is subject to receipt of
the request therefor in accordance herewith and to the satisfaction of the
following
90
conditions:
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects on
and as of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing (other than a Borrowing which constitutes the conversion or
continuation of a Loan) and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty by
Limited and the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Limited and the
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
-------------------------------------------
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
an audited consolidated balance sheet and related statements of operations,
91
stockholders' equity and cash flows as of the end of and for such year for
the Borrower and the Restricted Subsidiaries, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on
by Xxxxxx Xxxxxxxx & Co. or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of the Borrower and the Restricted Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, a consolidated balance sheet
and related statements of operations and cash flows as of the end of and
for such fiscal quarter and the then elapsed portion of the fiscal year for
the Borrower and the Restricted Subsidiaries, setting forth in each case in
comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by one of the Borrower's Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and the Restricted Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.01, 6.04,
6.05, 6.08, 6.12, 6.13, 6.14, 6.15 and 6.16, and (iii) stating whether any
material voluntary change by the Borrower in the application of
92
GAAP has occurred since the date of the Borrower's audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default
(which certificate may be limited to the extent required by accounting
rules or guidelines);
(e) prior to the commencement of each fiscal year of the Borrower, a
detailed consolidated budget for such fiscal year (including a projected
consolidated balance sheet and related statements of projected operations
and cash flow as of the end of and for such fiscal year and setting forth
the assumptions used for purposes of preparing such budget and including a
quarterly breakdown in each case) and, promptly when available, any
significant revisions of such budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Limited, the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by Limited to its shareholders generally, as the case may be;
and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of
Limited, the Borrower or any Subsidiary, or compliance with the terms of
any Loan Document, as the Administrative Agent or any Lender may reasonably
request.
93
SECTION 5.02. Notices of Material Events. Limited and the Borrower
---------------------------
will furnish to the Administrative Agent and each Lender prompt written notice
of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting
Limited, the Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of Limited, the Borrower and its Subsidiaries in an
aggregate amount exceeding (i) at any time prior to the Investment Grade
Date, $50,000,000 and (ii) at any time on or after the Investment Grade
Date, $100,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Borrower
---------------------------------
will furnish to the Administrative Agent prompt written notice of any change (i)
in any Loan Party's corporate name or in any trade name used to identify it in
the conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office or any office or facility at
which Collateral owned by it is located (including the establishment of any such
new office or facility), (iii) in any Loan Party's identity or corporate
structure or (iv) in any Loan Party's Federal Taxpayer Identification Number.
The Borrower agrees not to effect or permit any change
94
referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Administrative Agent to continue at all times following such change to have a
valid, legal and perfected security interest in all the Collateral.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to clause (a) of Section
5.01, the Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer and the chief legal officer of the Borrower setting forth the
information required pursuant to the Perfection Certificate or confirming that
there has been no change in such information since the date of the Perfection
Certificate delivered on the Effective Date or the date of the most recent
certificate delivered pursuant to this Section.
SECTION 5.04. Existence; Conduct of Business. Each of Limited and the
-------------------------------
Borrower will, and will cause each of the Restricted Subsidiaries to, do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business; provided that the foregoing shall not prohibit any
--------
merger, consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.05. Payment of Obligations. Each of Limited and the
-----------------------
Borrower will, and will cause each of the Restricted Subsidiaries to, pay its
material Indebtedness and other material obligations, including material Tax
liabilities, before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) Limited, the Borrower or such Subsidiary has set
aside on its books adequate reserves with respect thereto in accordance with
GAAP, and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
95
SECTION 5.06. Maintenance of Properties. Each of Limited and the
--------------------------
Borrower will, and will cause each of the Restricted Subsidiaries to, keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
SECTION 5.07. Insurance. Each of Limited and the Borrower will, and
----------
will cause each of the Restricted Subsidiaries to, maintain, with financially
sound and reputable insurance companies insurance in such amounts (with no
greater risk retention) and against such risks as are customarily maintained by
companies of established repute engaged in the same or similar businesses
operating in the same or similar locations. The Borrower will furnish to the
Lenders, upon request of the Administrative Agent, information in reasonable
detail as to the insurance so maintained.
SECTION 5.08. Completion of Systems. The Borrower will, and will
---------------------
cause each Restricted Subsidiary to, use commercially reasonable efforts to
complete its network in accordance with the business plan contained in the
Information Memorandum.
SECTION 5.09. Books and Records; Inspection and Audit Rights. Each
-----------------------------------------------
of Limited and the Borrower will, and will cause each of its Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities. Each of Limited and the Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
SECTION 5.10. Compliance with Laws. Each of Limited and the Borrower
---------------------
will, and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so,
96
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. The proceeds of
--------------------------------------
the Term Loans, the Revolving Loans and Swingline Loans and the issuance of
Letters of Credit will be used only to fund, or to refinance Indebtedness used
to fund, Capital Expenditures to extend, expand or otherwise modify the
fiberoptic cable system of the Borrower and the Restricted Subsidiaries or other
Capital Expenditures in connection with other businesses in which the Borrower
and the Restricted Subsidiaries shall be engaged, to refinance Indebtedness of,
or to finance the acquisition of, Frontier, U S West or C&W Marine, or to fund,
or to refinance Indebtedness used to fund or acquired in connection with,
Permitted Acquisitions. In addition, the proceeds of the Revolving Loans and
Swingline Loans and the issuance of Letters of Credit may be used to fund the
working capital needs of, and for the general corporate purposes of, the
Borrower and the Restricted Subsidiaries. No part of the proceeds of any Loan
will be used, whether directly or indirectly (i) for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations U and X,
and the Borrower will provide the Administrative Agent with a Form U-1 if at any
time more than 25% of the Collateral and the assets subject to the limitations
of Section 6.02 or 6.05 consists of "margin stock", as defined in Regulation U
of the Board as from time to time in effect or (ii) to finance any acquisition
of Equity Interests for the purpose of obtaining Control of any publicly held
Person that has not at the time of the first public announcement of an offer
relating thereto been approved by the board of directors of the Person to be
acquired.
SECTION 5.12. Additional Subsidiaries. If any additional Restricted
------------------------
Subsidiary is formed or acquired after the Effective Date or if any Unrestricted
Subsidiary is designated as a Restricted Subsidiary, the Borrower will, within
10 Business Days after such Restricted Subsidiary is formed or acquired or so
designated, notify the Administrative Agent and the Lenders thereof and cause
the Collateral and Guarantee Requirement to be satisfied with
97
respect to such Restricted Subsidiary and with respect to any Equity Interest in
such Restricted Subsidiary owned by or on behalf of any Loan Party.
SECTION 5.13. Further Assurances. Each of Limited and the Borrower
-------------------
will, and will cause each Subsidiary Loan Party to, execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
registrations and other documents), which may be required under any applicable
law, or which the Administrative Agent or the Required Lenders may reasonably
request, to cause the Collateral and Guarantee Requirement to be and remain
satisfied, all at the expense of the Loan Parties. Limited and the Borrower
also agree to provide to the Administrative Agent, from time to time upon
request, evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.
SECTION 5.14. Interest Rate Protection. As promptly as practicable,
-------------------------
and in any event within 60 days after the Effective Date, the Borrower will
enter into one or more interest rate protection agreements on such terms and
with such parties as shall be reasonably satisfactory to the Administrative
Agent, the effect of which shall be substantially to mitigate the risk of
interest rate variations.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, each of Limited and the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) At any
----------------------------------------
time prior to the Investment Grade Date, the Borrower will not, and will not
permit any
98
Restricted Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except (subject in each case to clause (b) below):
(i) Indebtedness created under the Loan Documents and Indebtedness of
any Restricted Subsidiary which is supported by a Letter of Credit having a
stated amount that is not less than 100% of the principal amount of such
Indebtedness;
(ii) in the case of GCHL, the Senior Notes and the Exchange Notes; and
any unsecured Indebtedness of the Borrower used to refinance such
Indebtedness that does not increase the outstanding principal amount
thereof (except to the extent of any interest accrued thereon and any fees
or expenses payable in connection therewith) or result in an earlier
maturity date or decreased weighted average life thereof and that has other
terms (other than pricing) that, taken as a whole, in the good faith
judgment of the Borrower, are no less favorable to GCHL than those of the
Senior Notes or the Exchange Notes, as applicable, that is not Guaranteed
by any Person that does not Guarantee the Senior Notes or the Exchange
Notes, as applicable, and that, in the case of a refinancing of the
Exchange Notes, is subordinated to the Obligations to at least the same
extent as the Exchange Notes;
(iii) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
(except to the extent of any interest accrued thereon and any fees or
expenses payable in connection therewith) or result in an earlier maturity
date or decreased weighted average life thereof;
(iv) Indebtedness of the Borrower to any Subsidiary and of any
Restricted Subsidiary to the Borrower or any other Subsidiary;
(v) Guarantees by the Borrower of Indebtedness of
99
any Restricted Subsidiary and by any Restricted Subsidiary of Indebtedness
of the Borrower or any other Restricted Subsidiary; provided that (A) no
--------
Restricted Subsidiary (other than Frontier at any time that Frontier has
pledged the Equity Interests in its direct subsidiaries pursuant to a
Pledge Agreement to secure the Obligations) may Guarantee the Senior Notes
or the Exchange Notes and (B) the aggregate amount of Indebtedness
Guaranteed by Restricted Subsidiaries that are not Loan Parties, other than
Guarantees of Indebtedness created under the Loan Documents, shall not,
when taken together with all other amounts referred to in clause (b) below,
exceed the applicable limit set forth in clause (b)(C) below;
(vi) Indebtedness of U S West and each Restricted Subsidiary that is a
subsidiary of U S West outstanding at the time U S West or such subsidiary
becomes a Restricted Subsidiary; and any Indebtedness of the Borrower or
such obligor used to refinance such Indebtedness that does not increase the
outstanding principal amount thereof (except to the extent of any interest
accrued thereon and any fees or expenses payable in connection therewith)
or result in an earlier maturity date or decreased weighted average life
thereof and that is not secured by any assets in addition to those by which
it was secured immediately prior to such refinancing;
(vii) Indebtedness of Frontier and each Restricted Subsidiary that is
a subsidiary of Frontier outstanding at the time Frontier or such
subsidiary becomes a Restricted Subsidiary; and any Indebtedness of the
Borrower or such obligor used to refinance such Indebtedness that does not
increase the outstanding principal amount thereof (except to the extent of
any interest accrued thereon and any fees or expenses payable in connection
therewith) or result in an earlier maturity date or decreased weighted
average life thereof and that is not secured by any assets in addition to
those by which it was secured immediately prior to such refinancing;
(viii) Indebtedness of any other Person that becomes a Restricted
Subsidiary after the date hereof; provided
--------
100
that (A) such Indebtedness exists at the time such Person becomes a
Restricted Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Restricted Subsidiary and (B) after
giving effect to the acquisition of such Restricted Subsidiary, the
Borrower and the Restricted Subsidiaries will be in compliance, on a pro
forma basis, with the covenants contained in Sections 6.12 and 6.13 and, if
such determination is being made prior to the earlier of the Frontier
Borrower Date and the Investment Grade Date, 6.14, 6.15 and 6.16 recomputed
as at the last day of the most recently ended fiscal quarter of the
Borrower for which financial statements are available, as if such
acquisition had occurred, and such Indebtedness had been incurred, on the
first day of each relevant period for testing and compliance; and any
unsecured Indebtedness of the Borrower used to refinance such Indebtedness
that does not increase the outstanding principal amount thereof (except to
the extent of any interest accrued thereon and any fees or expenses payable
in connection therewith) or result in an earlier maturity date or decreased
weighted average life thereof;
(ix) Purchase Money Indebtedness of C&W Marine and its subsidiaries in
an aggregate principal amount at any time outstanding that, when taken
together with the aggregate outstanding amount of leases under Section 6.06
entered into in reliance on this clause (computed as set forth in Section
6.06), shall not exceed $200,000,000;
(x) Purchase Money Indebtedness of the Borrower or any Restricted
Subsidiary (other than Purchase Money Indebtedness described in clause (ix)
above) at any time outstanding in an aggregate principal amount that, when
taken together with the aggregate outstanding amount of leases under
Section 6.06 entered into in reliance on this clause (computed as set forth
in Section 6.06), shall not exceed $300,000,000;
(xi) Guarantees permitted by Section 6.04(c);
101
(xii) Indebtedness in respect of trade letters of credit incurred in
the ordinary course of business and Indebtedness in respect of other
letters of credit or letters of guaranty incurred in the ordinary course of
business that support only obligations that do not constitute Indebtedness;
(xiii) unsecured Indebtedness of the Borrower used to refinance Term
Loans in an aggregate amount not in excess of the aggregate principal
amount of the Loans refinanced thereby (except to the extent of any
interest accrued thereon and any fees or expenses payable in connection
therewith), having no amortization and having a maturity date no sooner
than the date that is 91 days after the maturity date of the latest
maturing Loan remaining after such refinancing; and
(xiv) other Indebtedness in an aggregate principal amount at any time
outstanding not exceeding 10% of Net Tangible Assets as of the last day of
the most recently ended fiscal quarter for which financial statements are
available at such time.
(b) Notwithstanding anything contained in clause (a) above, the
Borrower will not, and will not permit any Restricted Subsidiary to, at any
time, create, incur, assume or permit to exist any (i) Purchase Money
Indebtedness, (ii) Indebtedness secured by any Lien on any asset of the Borrower
or any Restricted Subsidiary or that constitutes a Capital Lease Obligation or
(iii) Indebtedness of any Restricted Subsidiary that is not a Loan Party,
except:
(A) Indebtedness described in subclauses (i), (iii), (iv), (vi),
(vii), (viii) and (xii) of clause (a) above;
(B) Indebtedness described in subclauses (ix) and (x) of clause (a)
above, in amounts not to exceed at any time the respective limits set forth
in subclauses (ix) and (x); and
(C) other such Indebtedness that, when taken
102
together with the aggregate outstanding amount of leases under Section 6.06
entered into in reliance on this clause (computed as set forth in Section
6.06), shall not exceed (i) at any time prior to the Investment Grade Date,
$50,000,000, and (2) at any time on or after the Investment Grade Date,
$100,000,000.
(c) Limited will not create, incur, assume or permit to exist any
Indebtedness except (i) Indebtedness created under the Loan Documents, (ii)
Guarantees of commercial obligations (not constituting Indebtedness) of its
subsidiaries incurred in the ordinary course of business and (iii) Guarantees of
the Senior Notes, the Exchange Notes or any other Indebtedness of any Loan Party
permitted hereunder.
(d) Neither Limited nor the Borrower will, nor will they permit any
Restricted Subsidiary to, issue any Disqualified Stock unless after giving
effect to the issuance thereof the Borrower and the Restricted Subsidiaries will
be in compliance, on a pro forma basis, with the covenants contained in Sections
6.12 and 6.13 and, if such determination is being made prior to the earlier of
the Frontier Borrower Date and the Investment Grade Date, 6.14, 6.15 and 6.16
recomputed as at the last day of the most recently ended fiscal quarter of the
Borrower for which financial statements are available, as if such issuance had
occurred on the first day of each relevant period for testing such compliance.
(e) Neither Limited nor the Borrower will, nor will they permit any
Restricted Subsidiary to, consent to any incurrence of Indebtedness by Frontier
or any subsidiary of Frontier prior to the Frontier Borrower Date unless
Frontier or such subsidiary, as applicable, would have been permitted to incur
such Indebtedness under this Agreement if Frontier were a Borrower.
SECTION 6.02. Liens. (a) The Borrower will not, and will not permit
------
any Restricted Subsidiary to, create, incur, assume or permit to exist any Lien
on any property or asset now owned or hereafter acquired by it, or (except as
103
expressly permitted by Section 6.05) assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
Restricted Subsidiary existing on the date hereof and set forth in Schedule
6.02; provided that (i) such Lien shall not apply to any other property or
--------
asset of the Borrower or any Restricted Subsidiary and (ii) such Lien shall
secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof (except to the extent of any interest
accrued thereon and any fees or expenses payable in connection therewith);
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Restricted Subsidiary or
existing on any property or asset of any Person that becomes a Subsidiary
after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (A) such Lien is not created in contemplation of or in
--------
connection with such acquisition or such Person becoming a Subsidiary, as
the case may be, (B) such Lien shall not apply to any other property or
assets of the Borrower or any Restricted Subsidiary and (C) such Lien shall
secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may
be and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof (except to the extent of any
interest accrued thereon and any fees or expenses payable in connection
therewith);
(v) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Restricted Subsidiary; provided that (1) such
--------
security interests secure Indebtedness permitted by
104
Section 6.01(a)(ix), 6.01(a)(x) or 6.01(b)(C), (2) such security interests
and the Indebtedness secured thereby are incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement, (3) the Indebtedness secured thereby does not exceed 100% of
the cost of acquiring, constructing or improving such fixed or capital
assets and (4) such security interests shall not apply to any other
property or assets of the Borrower or any Restricted Subsidiary;
(vi) Liens in favor of the holders of Defeased Obligations securing
such Defeased Obligations;
(vii) after the earlier of the Frontier Borrower Date and the
Investment Grade Date, the sale of accounts receivable pursuant to a
Permitted Securitization; and
(viii) other Liens securing Indebtedness permitted by Section
6.01(b)(C).
(b) Limited will not create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect thereof, except Liens created under the Security Documents, Permitted
Encumbrances and Liens on Equity Interests in Unrestricted Subsidiaries.
SECTION 6.03. Fundamental Changes. (a) Neither Limited nor the
--------------------
Borrower will, nor will they permit any Restricted Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer or otherwise dispose of all or
substantially all its assets, or liquidate or dissolve, except that, if such
transaction would not otherwise violate Section 6.04:
(i) (A) Frontier may merge into Limited, GCHL or any Restricted
Subsidiary, or GCHL or any Restricted Subsidiary may merge into Frontier,
in a transaction in which Frontier, GCHL, or a Subsidiary Loan Party is the
surviving corporation, (B) the parties may consummate the U S West
Transaction and the Frontier Acquisition and (C) U S West may merge into
GCHL, or any Restricted
105
Subsidiary, or GCHL or any Restricted Subsidiary may merge into U S West,
in each case in a transaction in which U S West, GCHL or a Subsidiary Loan
Party is the surviving corporation, provided that in the case of each
transaction referred to in clause (A), (B) and (C), after giving effect to
such transaction (1) the Lenders shall not as a result of such transaction
lose the benefit of any Guarantee by, or any pledge of Equity Interests in,
any Subsidiary (except as a result of any direct or indirect parent of GCHL
becoming organized under the laws of the United States or any State thereof
or the District of Columbia as contemplated by the proviso to the
penultimate sentence of the definition of Collateral and Guarantee
Requirement) and (2) any surviving corporation in a merger with Frontier or
GCHL shall be domiciled in Bermuda or the United States, shall deliver all
such documents and take all such actions as the Administrative Agent shall
request to evidence and confirm its obligations as Borrower under the Loan
Documents and shall not have outstanding any secured Indebtedness that is
not within the limits set forth in Section 6.01(b); and
(ii) (A) any Person may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (B) any Person (other than
the Borrower) may merge with any Restricted Subsidiary in a transaction in
which the surviving entity is a Restricted Subsidiary and (if any party to
such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party, (C)
Limited may merge with and into or dissolve into a Delaware corporation
having no assets or liabilities (other than de minimis assets and
-- -------
liabilities consistent with its not having conducted any business prior to
such merger) or reincorporate in a transaction effected in a manner
satisfactory to the Administrative Agent in which it becomes incorporated
in Delaware or another jurisdiction approved by the Administrative Agent
and (D) any Restricted Subsidiary (other than a Subsidiary Loan Party) may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation
106
or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders, provided in each case that at
the time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing.
(b) Prior to the Investment Grade Date, the Borrower will not, and
will not permit any of its Restricted Subsidiaries to, engage to any material
extent in any business other than businesses of the type conducted by the
Borrower and the Restricted Subsidiaries or Frontier or U S West on the date of
execution of this Agreement and businesses reasonably related, ancillary or
complementary thereto.
(c) Limited will not engage in any business or activity other than
the consummation of the U S West Transaction, the Frontier Acquisition and the
C&W Acquisition and the ownership of all the outstanding shares of capital stock
of the Borrower, Frontier and Global Crossing Holdings II Ltd., the ownership of
Unrestricted Subsidiaries and activities incidental thereto. Limited will not
own or acquire any assets (other than shares of capital stock of the Borrower,
Frontier, Global Crossing Holdings II Ltd. or Unrestricted Subsidiaries, cash
and Permitted Investments) or incur any liabilities (other than liabilities
under the Loan Documents, Guarantees permitted under Section 6.01(c),
liabilities imposed by law, including tax liabilities, and other liabilities
incidental to its existence and permitted business and activities).
SECTION 6.04. Investments, Loans, Advances, Guarantees and
--------------------------------------------
Acquisitions. Prior to the Investment Grade Date, the Borrower will not, and
-------------
will not permit any of its Restricted Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly owned
Restricted Subsidiary prior to such merger) any Equity Interests in or evidences
of indebtedness or other securities (including any option, warrant or other
right to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit,
107
except:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth on Schedule
6.04;
(c) investments by the Borrower and the Restricted Subsidiaries in
Equity Interests in their respective Subsidiaries; provided that: (i) the
--------
Collateral and Guarantee Requirement shall have been satisfied with respect
to such Restricted Subsidiaries and Equity Interests; and (ii) the
aggregate amount at any time outstanding of investments made after the date
hereof by the Borrower and the Loan Parties in, and loans and advances by
Loan Parties to, and Guarantees by Loan Parties of Indebtedness of,
Unrestricted Subsidiaries (including with respect to C&W Marine if it is
designated as an Unrestricted Subsidiary in accordance with clause (c) of
the definition of "Unrestricted Subsidiary", all such investments, loans,
advances and Guarantees made therein after the date hereof but excluding
any of the foregoing made therein on or prior to the date hereof) shall
not, when taken together with the aggregate amount of investments made
under clause (l) below, exceed 15% of Net Tangible Assets as of the last
day of the most recently ended fiscal quarter for which financial
statements are available at such time (it being understood that, for
purposes of determining outstanding investments in Unrestricted
Subsidiaries, the sale or disposition by a Loan Party of an investment in
an Unrestricted Subsidiary shall be deemed to reduce investments in
Unrestricted Subsidiaries by an amount equal to the Net Proceeds of such
sale or disposition);
(d) loans or advances made by the Borrower to any Restricted
Subsidiary and made by any Restricted Subsidiary to the Borrower or any
other Restricted Subsidiary;
(e) Guarantees constituting Indebtedness permitted
108
by Section 6.01 and Guarantees of commercial obligations (not constituting
Indebtedness) of Restricted Subsidiaries incurred in the ordinary course of
business; provided that the aggregate principal amount of Indebtedness of
--------
Unrestricted Subsidiaries that is Guaranteed by any Restricted Subsidiary
shall be subject to the limitation set forth in clause (c)(ii) above;
(f) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(g) Permitted Acquisitions;
(h) the Frontier Acquisition;
(i) the U S West Transaction;
(j) the C&W Marine Acquisition;
(k) any transaction permitted by Section 6.03 without reliance on this
paragraph (k);
(l) any other investments in, advances or loans to, or Guarantees of
Indebtedness of any Person or acquisitions of all or substantially all the
assets of a Person or division or line of business of a Person in an
aggregate amount at any time outstanding that, when taken together with the
aggregate amount of investments in Unrestricted Subsidiaries made in
accordance with clause (c)(ii) above, shall not exceed 15% of Net Tangible
Assets as of the last day of the most recently ended fiscal quarter for
which financial statements are available at such time (it being understood
that, for purposes of determining outstanding investments for purposes of
this clause (l), the sale or disposition of such an investment shall be
deemed to reduce the aggregate amount of such investments by an amount
equal to the Net Proceeds of such sale or disposition);
(m) any investment made with Equity Interests in Limited or the
proceeds of the issuance thereof;
109
(n) title retention, installment sale, deferred purchase price or
other customary financing arrangements entered into in the ordinary course
of business with customers purchasing capacity and dark fiber;
(o) investments by the Borrower and the Restricted Subsidiaries
contemplated as of the Effective Date in Pacific Crossing Ltd., Global
Access Ltd., Global Crossing Landing Mexicana S. de X.X. de C.V., SAC
Brazil (Backhaul) Ltd., AIG Orion Fund and Telergy in an aggregate amount
not to exceed $120,000,000; and
(p) investments of C&W Marine, Frontier, U S West or any of their
subsidiaries in minority interests or joint ventures that are owned,
respectively, as of the date of the C&W Marine Acquisition, the date of the
Frontier Acquisition or the date on which U S West and Limited become
Affiliates and that are not acquired in contemplation of or in connection
with such acquisition.
SECTION 6.05. Asset Sales. The Borrower will not, and will not
------------
permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any Equity Interest owned by it, nor will the
Borrower permit any of the Restricted Subsidiaries to issue any additional
Equity Interest in such Subsidiary, except:
(a) sales, leases, transfers or other dispositions of inventory,
capacity, dark fiber, used or surplus equipment or equipment being replaced
with new technology and Permitted Investments in the ordinary course of
business (including, without limitation, bulk dispositions of capacity and
disposition of capacity and/or dark fiber in exchange for non-cash
consideration (including capacity on other systems));
(b) sales, leases, transfers or other dispositions to the Borrower or
a Restricted Subsidiary; provided that any such sales, transfers or
--------
dispositions
110
involving a Subsidiary that is not a Loan Party shall be made in compliance
with Section 6.09 (without reliance on Section 6.09(d));
(c) sales, leases, transfers or other dispositions of assets (other
than sales by any Restricted Subsidiary of Equity Interests in a
Subsidiary) that are not permitted by any other clause of this Section;
provided that (i) the aggregate fair market value of all assets sold,
--------
transferred or otherwise disposed of in reliance upon this clause (c) shall
not, when taken together with the fair market value of all Restricted
Subsidiaries designated as Unrestricted Subsidiaries during the term of
this Agreement (net of the fair market value of Unrestricted Subsidiaries
designated as Restricted Subsidiaries), exceed in the aggregate as of any
date during the term of this Agreement 10% of Net Tangible Assets as of the
last day of the most recently ended fiscal quarter for which financial
statements are available as of such date and (ii) the Borrower and its
Restricted Subsidiaries are in compliance, on a pro forma basis after
giving effect to such disposition, with the covenants contained in Sections
6.12 and 6.13 and, if such determination is being made prior to the earlier
of the Frontier Borrower Date and the Investment Grade Date, 6.14, 6.15 and
6.16 recomputed as at the last day of the most recently ended fiscal
quarter of the Borrower for which financial statements are available, as if
such sale, transfer or other disposition had occurred on the first day of
each relevant period for testing such compliance;
(d) sales, transfers and dispositions of any Equity Interests of,
loans or advances to, or other investments in, any Unrestricted Subsidiary;
(e) sale and leaseback transactions permitted under Section 6.06;
(f) after the earlier of the Frontier Borrower Date and the Investment
Grade Date, sales of accounts receivable under any Permitted
Securitization;
111
(g) issuances of additional Equity Interests of Restricted
Subsidiaries to existing shareholders in exchange for additional equity;
and
(h) sales, transfers and dispositions of Equity Interests and other
assets of Restricted Subsidiaries that constitute investments permitted by
Section 6.04(l);
provided that all sales, transfers, leases and other dispositions permitted
--------
hereby (other than those permitted by clause (b) above) shall be made for fair
value and (other than those permitted by clauses (a), (b) and (h)), prior to the
Investment Grade Date, for at least 90% cash consideration.
SECTION 6.06. Sale and Leaseback Transactions. The Borrower will not,
--------------------------------
and will not permit any of the Restricted Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred, except for any such sale of any fixed or
capital assets that is made for cash consideration in an amount not less than
the cost of such fixed or capital asset and is consummated within 90 days after
the Borrower or such Subsidiary acquires or completes the construction of such
fixed or capital asset in connection with a lease the amount of which, when
taken together with the aggregate amount of all Indebtedness outstanding under
Section 6.01(a)(ix), 6.01(a)(x) or 6.01(b)(C), as the case may be, and the
aggregate amount of all other outstanding leases (the amount of each lease being
computed as if such lease were a Capital Lease Obligation) under this Section
6.06 entered into in reliance on the same clause of Section 6.01, shall not
exceed the limit set forth in such clause.
SECTION 6.07. Hedging Agreements. Prior to the Investment Grade
-------------------
Date, the Borrower will not, and will not permit any of the Restricted
Subsidiaries to, enter into any Hedging Agreement, other than (a) Hedging
Agreements
112
required by Section 5.14 and (b) Hedging Agreements entered into in the ordinary
course of business to hedge or mitigate risks to which the Borrower or any
Restricted Subsidiary is exposed in the conduct of its business or the
management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
------------------------------------------------------
(a) Prior to the Investment Grade Date, neither Limited nor the Borrower will,
nor will they permit any Restricted Subsidiary to, declare or make, or agree to
pay or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except (i) Limited may declare
and pay dividends with respect to its capital stock payable solely in additional
shares of its common stock, (ii) Restricted Subsidiaries may declare and pay
dividends ratably with respect to their capital stock, (iii) Limited may make
Restricted Payments pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of the Borrower and its
Subsidiaries, (iv) the Borrower may pay dividends to Limited at such times and
in such amounts as shall be necessary to permit Limited to discharge its
permitted liabilities, provided that if a Default or Event of Default shall have
--------
occurred and be continuing no such dividends may be paid the proceeds of which
are used to make any payment in respect of any Guarantee or any Indebtedness of
Limited, and (v) Restricted Payments may be made in respect of the Preferred
Stock as required thereunder so long as no Default would exist as a result of
making such payments.
(b) Prior to the Investment Grade Date, neither Limited nor the
Borrower will, nor will they permit any Restricted Subsidiary to, make or agree
to pay or make, directly or indirectly, any payment or other distribution
(whether in cash, securities or other property) of or in respect of principal of
or interest on any Indebtedness, or any payment or other distribution (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any Indebtedness, except:
113
(i) payment of Indebtedness created under the Loan Documents or the
Senior Notes;
(ii) payment of regularly scheduled interest and principal payments as
and when due in respect of any Indebtedness, other than payments in respect
of subordinated Indebtedness prohibited by the subordination provisions
thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01; and
(iv) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness.
(c) The Borrower will not exercise its right to issue the Exchange
Notes in exchange for the Preferred Stock prior to the earlier of the Frontier
Borrower Date and the Investment Grade Date.
SECTION 6.09. Transactions with Affiliates. Neither Limited nor the
-----------------------------
Borrower will, nor will they permit any Restricted Subsidiary to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions at prices and
on terms and conditions not less favorable to Limited, the Borrower or such
Restricted Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties, (b) transactions entered into in connection with
transactions involving selections by customers of cable system capacity and/or
dark fiber entered into in the ordinary course of business and on a basis that
is not systematically disadvantageous to the Restricted Subsidiaries, (c)
transactions that involve the provision by the Borrower or a Restricted
Subsidiary to an Unrestricted Subsidiary of sales and marketing services,
operations, administration and maintenance services or development services for
which the Borrower or such Restricted Subsidiary receives a return at least
equal to its expenses for providing such services, (d) transactions between or
among the Borrower and the Restricted Subsidiaries not involving any other
Affiliate, (e) any Restricted Payment
114
permitted by Section 6.08, (f) the entering into, maintaining or performance of
any employment contract, collective bargaining agreement, benefit plan, program
or arrangement, related trust agreement or any other similar arrangement for or
with any employee, officer or director heretofore or hereafter entered into in
the ordinary course of business, including vacation, health, insurance, deferred
compensation, retirement, savings or other similar plans, (g) the payment of
compensation, performance of indemnification or contribution obligations, or an
issuance, grant or award of stock, options, or other equity-related interests or
other securities to employees, officers or directors in the ordinary course of
business, (h) any transaction with an officer or director in the ordinary course
of business not involving more than $250,000 in any one case, (i) loans or
advances made to directors, officers or employees of Limited, the Borrower or
any Subsidiary (1) in respect of travel, entertainment or moving-related
expenses incurred in the ordinary course of business, (2) in respect of moving-
related expenses incurred in connection with any closing or consolidation of any
facility or (3) in the ordinary course of business not exceeding $10,000,000 in
the aggregate at any time outstanding and payments in respect of any of the
foregoing, (j) payment of reasonable directors fees, or (k) any sale or other
issuance of Equity Interests (other than Disqualified Stock) of Limited.
SECTION 6.10. Restrictive Agreements. Neither Limited nor the
-----------------------
Borrower will, nor will they permit any Restricted Subsidiary 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 Limited, the Borrower or any Restricted Subsidiary to create, incur
or permit to exist any Lien upon any of its property or assets to secure the
obligations and liabilities of the Loan Parties under the Loan Documents or
those of any Person refinancing any Obligation under the Loan Documents, 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 Borrower or any other Restricted Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Restricted Subsidiary; provided that
--------
(i) the foregoing shall not apply to restrictions and conditions imposed by law
or by any Loan
115
Document or, as modified by the Consent, the Senior Notes or the Preferred Stock
or the Exchange Notes or Indebtedness of Frontier or any of its subsidiaries
existing on the date hereof, (ii) the foregoing shall not apply to restrictions
and conditions existing on the date hereof identified on Schedule 6.10 (but
shall apply to any amendment 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
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the 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 and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases restricting the assignment thereof.
SECTION 6.11. Amendment of Material Documents. Prior to the
--------------------------------
Investment Grade Date, neither Limited nor the Borrower will, nor will they
permit any Restricted Subsidiary to, amend, modify or waive any of its rights in
any manner adverse to the Lenders (except as the Administrative Agent shall deem
not materially adverse to the Lenders) under (a) the Senior Notes, (b) the
Preferred Stock or (c) the Exchange Notes.
SECTION 6.12. Interest Expense Coverage Ratio. The Borrower will not
--------------------------------
permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense, in each case for any period of four consecutive fiscal quarters ending
on any date during any period set forth below (i) if such date occurs prior to
the earlier of the Frontier Borrower Date and the Investment Grade Date, to be
less than the ratio set forth below opposite such period:
Period Ratio
------ ----
Effective Date to March 31, 2000 1.60
April 1, 2000 to September 30, 2000 1.75
October 1, 2000 to March 31, 2001 2.00
116
thereafter 2.50
or (ii) if such date occurs on or after the earlier of the Frontier Borrower
Date and the Investment Grade Date, to be less than 2.50.
SECTION 6.13. Total Leverage Ratio. The Borrower will not permit the
---------------------
Leverage Ratio as of the last day of any fiscal quarter ending during any period
set forth below (a) if such day occurs prior to the earlier of the Frontier
Borrower Date and the Investment Grade Date, to exceed the ratio set forth
opposite such period:
Period Ratio
------------------------------------- -----
Effective Date to March 31, 2000 6.75
April 1, 2000 to September 30, 2000 6.00
October 1, 2000 to March 31, 2001 5.00
April 1, 2001 to December 31, 2001 4.50
thereafter 4.00
or (b) if such day occurs on or after the earlier of the Frontier Borrower Date
and the Investment Grade Date (i) but on or prior to December 31, 2000, to
exceed 4.75, or (ii) and after January 1, 2001, to exceed 4.00.
SECTION 6.14. Senior Secured Leverage Ratio. The Borrower will not
------------------------------
permit the Senior Secured Leverage Ratio as of the last day of any fiscal
quarter ending prior to the earlier of the Frontier Borrower Date and the
Investment Grade Date and during any period set forth below to exceed the ratio
set forth opposite such period:
Period Ratio
------------------------------------- -----
Effective Date to March 31, 2000 5.25
April 1, 2000 to September 30, 2000 4.50
October 1, 2000 to March 31, 2001 4.00
April 1, 2001 to December 31, 2001 3.25
thereafter 3.00
SECTION 6.15. Total Indebtedness to Capitaliza tion Ratio. The
--------------------------------------------
Borrower will not permit as of the last day of any fiscal quarter ending prior
to the earlier of the Frontier Borrower Date and the Investment Grade Date and
during any period set forth below the ratio of (a) the sum of Total Indebtedness
and the liquidation
117
preference of Disqualified Stock as of such day to (b) Capitalization as of such
date to exceed the ratio set forth opposite such period:
Period Ratio
------ -----
Effective Date to June 30, 2002 0.80
thereafter 0.70
SECTION 6.16. Total Senior Secured Indebtedness to Capitalization
---------------------------------------------------
Ratio. The Borrower will not permit on the last day of any fiscal quarter
------
ending at any time prior to the earlier of the Frontier Borrower Date and the
Investment Grade Date the ratio of (a) Total Senior Secured Indebtedness to (b)
Capitalization to exceed 0.60.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
-----------------
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of Limited, the Borrower or any Subsidiary in or in connection with any
Loan Document or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial
118
statement or other document furnished pursuant to or in connection with any
Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect when
made or deemed made;
(d) Limited or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02(a) or 5.04 (with
respect to the existence of Limited or the Borrower) or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) Limited, the Borrower or any Restricted Subsidiary shall fail to
make any payment of principal or interest (regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and
payable after any applicable grace period;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material Indebtedness
to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; provided that this
--------
clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing
such Indebtedness;
(h) an involuntary proceeding shall be commenced
119
or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of Limited, the Borrower or any
Restricted Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for Limited, the Borrower or any Restricted Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) Limited, the Borrower or any Restricted Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for Limited, the Borrower or any Subsidiary or for a substantial
part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) Limited, the Borrower or any Restricted Subsidiary shall become
unable, admit in writing its inability or fail generally to pay its debts
as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of (i) at any time prior to the Investment Grade Date,
$50,000,000 and (ii) at any time on or after the Investment Grade Date,
$100,000,000, shall be rendered against Limited, the Borrower, any
Restricted Subsidiary or any combination
120
thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach or levy
upon any assets of Limited, the Borrower or any Subsidiary to enforce any
such judgment;
(l) an ERISA Event shall have occurred that, when taken together with
all other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect;
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral, with the priority required by the
applicable Security Document, except (i) as a result of the sale or other
disposition of the applicable Collateral in a transaction permitted under
the Loan Documents or (ii) as a result of the Administrative Agent's
failure to maintain possession of any stock certificates or other
instruments delivered to it under a Pledge Agreement;
(n) any Guarantee Agreement shall not for any reason be, or shall be
asserted by the Borrower or any Subsidiary not to be, in full force and
effect and enforceable in all material respects in accordance with its
terms;
(o) a Change in Control shall occur; or
(p) the Frontier Borrower Date shall fail to occur within 210 days
after the date on which Frontier becomes a Subsidiary;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions,
121
at the same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter (so long as such
event shall be continuing) be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower described in
clause (h) or (i) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower. On
the first date on which any event referred to in clause (h) or clause (i) above
shall occur in respect of Frontier, the Lenders shall automatically and without
further act be deemed to have exchanged interests in the Loans and LC Exposures
(each interest in any Loan or any LC Exposure being referred to as a "Claim" and
each Class of Loans and the LC Exposure being referred to as a "Claims Class")
such that in lieu of the interest of each Lender in each Claims Class in which
it shall participate as of such date (including such Lender's interest in the
principal, reimbursement, interest and fee obligations of each Loan Party in
respect of each such Claims Class), such Lender shall hold a percentage interest
in every one of the Claims Classes (including the principal, reimbursement,
interest and fee obligations of each Loan Party in respect of each such Claims
Class), whether or not such Lender shall previously have participated therein,
equal to the percentage of all the outstanding Claims represented by such
Lender's Claims. Each Lender, each person acquiring a participation from any
Lender as contemplated by Section 9.04(e) and each Loan Party hereby consents
and agrees to the foregoing exchanges. Each Loan Party agrees from time to time
to execute and deliver to the Administrative Agent all such instruments and
documents as the Administrative Agent shall reasonably request to
122
evidence and confirm the respective interests of the Lenders after giving effect
to such exchanges, and each Lender agrees to surrender any note received by it
in connection with its Loans hereunder to the Administrative Agent against
delivery of a new note evidencing its interests as adjusted in the Claims
Classes; provided, however, that the failure of any Loan Party to execute or
deliver or of any Lender to accept any such note, instrument or document shall
not affect the validity or effectiveness of any exchange. In addition, each
Lender and each Loan Party agrees with respect to any unfunded LC Exposure to
take such actions as may be specified by the Administrative Agent, including in
the case of each Revolving Lender, funding its share of such unfunded LC
Exposure into an escrow account maintained by the Administrative Agent, for the
purpose of giving effect to the intent of the foregoing provisions relating to
the exchange of interests.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with Limited, the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties
123
or obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the
Loan Documents that the Administrative Agent is required to exercise in writing
by the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to Limited, the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by Limited, the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon,
124
any notice, request, certificate, consent, statement, instrument, document or
other writing believed by it to be genuine and to have been signed or sent by
the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, subject to
the prior written approval of the Borrower (which approval shall not be
unreasonably withheld), to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as
125
Administrative Agent hereunder by a successor, such successor shall 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. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
--------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Limited or the Borrower, to it at Xxxxxx Xxxxx, 00 Xxxx
Xxxxxx, XX00: Hamilton, Bermuda,
126
Attention of Chief Financial Officer (Telecopy No. (000) 000-0000), with a
copy to Global Crossing Ltd., 000 Xx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention of General Counsel (Telecopy No. (310)
281-4942);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000),
with a copy to The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxxxx XxXxxxxx (Telecopy No. (000) 000-0000);
(c) if to the Issuing Bank, to it at The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000),
with a copy to Chase Manhattan Bank Delaware, Letter of Credit Department -
8th Floor, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention of
Xxxxxxx Xxxxxxx (Telecopy No. 000-000-0000/984-4904);
(d) if to the Swingline Lender, to it at The Chase Manhattan Bank,
Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (212) 552-
5658); and
(e) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No
--------------------
127
failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except as
provided in Section 2.08(e) or, in the case of this Agreement, pursuant to an
agreement or agreements in writing entered into by Limited, the Borrower and the
Required Lenders or, in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Administrative Agent and
the Loan Party or Loan Parties that are parties thereto, in each case with the
consent of the Required Lenders; provided that no such agreement shall (i)
--------
increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
maturity of any Loan, or any payment of the scheduled principal amount of any
Term Loan under Section 2.10, or the required date of reimbursement of any LC
Disbursement, or any date for the payment of any interest or fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any
128
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, or
change Section 2.08(d) in a manner that would alter the pro rata reduction of
Commitments required thereby, without the written consent of each Lender of any
Class affected thereby, (v) change any of the provisions of this Section or the
percentage set forth in the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be), (vi) prior to the later of the Investment Grade Date and the first date
on which there shall be no Tranche B Term Loans (or Incremental Loans having the
terms thereof) outstanding, release Limited or any material Subsidiary Loan
Party from its Guarantee under any Guarantee Agreement (except as expressly
provided in such Guarantee Agreement), or limit its liability in respect of such
Guarantee, or at any time release Frontier or GCHL (except as contemplated by
the definition of Collateral and Guarantee Requirement) from its Guarantee under
any Guarantee Agreement, or limit its liability in respect of such Guarantee, in
any case described in this clause (vi), without the written consent of each
Lender, (vii) prior to the later of the Investment Grade Date and the first date
on which there shall be no Tranche B Term Loans (or Incremental Loans having the
terms thereof) outstanding, release all or any substantial part of the
Collateral from the Liens of the Security Documents, without the written consent
of each Lender, (viii) change any provisions of any Loan Document in a manner
that by its terms adversely affects the rights in respect of payments due to
Lenders holding Loans of any Class differently than those holding Loans of any
other Class, without the written consent of Lenders holding a majority in
interest of the outstanding Loans and unused Commitments of each affected Class
or (ix) change the rights of the Tranche B Lenders to decline mandatory
prepayments as provided in Section 2.11, without the written consent of Tranche
B Lenders holding a
129
majority of the outstanding Tranche B Loans; provided further that (A) no such
--------
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Issuing Bank or the Swingline Lender without the prior
written consent of the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be, and (B) any waiver, amendment or modification of
this Agreement that by its terms affects the rights or duties under this
Agreement of the Revolving Lenders (but not the Tranche A Lenders and Tranche B
Lenders), the Tranche A Lenders (but not the Revolving Lenders and Tranche B
Lenders) or the Tranche B Lenders (but not the Revolving Lenders and Tranche A
Lenders) may be effected by an agreement or agreements in writing entered into
by Limited, the Borrower and requisite percentage in interest of the affected
Class of Lenders that would be required to consent thereto under this Section if
such Class of Lenders were the only Class of Lenders hereunder at the time.
Notwithstanding the foregoing, any provision of this Agreement may be amended by
an agreement in writing entered into by Limited, the Borrower, the Required
Lenders and the Administrative Agent (and, if their rights or obligations are
affected thereby, the Issuing Bank and the Swingline Lender) if (i) by the terms
of such agreement the Commitment of each Lender not consenting to the amendment
provided for therein shall terminate upon the effectiveness of such amendment
and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
-----------------------------------
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be
130
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout or restructuring, or negotiations with respect to
any of the foregoing, in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
----------
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of any Loan Document or any other agreement or instrument contemplated
hereby, the performance by the parties to the Loan Documents of their respective
obligations thereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any material real property or any other property currently
or formerly owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity
--------
131
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Indemnitee or of any of such
Indemnitee's officers, directors, trustees, agents, advisors, controlling
persons or Affiliates or, in the case such Indemnitee is an individual, the
gross negligence or wilful misconduct of such Indemnitee's employer or of any of
such employer's officers, directors, trustees, agents, advisors, controlling
persons or Affiliates.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as
the case may be, such Lender's pro rata share (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
--------
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such. For purposes hereof, a Lender's "pro rata
share" shall be determined based upon its share of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Limited nor
the Borrower shall assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be
132
payable not later than 10 days after written demand there for.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
-----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that
(i)--------except in the case of an assignment to a Lender, an Affiliate of a
Lender or a Related Fund of any Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a portion of a
Revolving Commitment or any Lender's obligations in respect of its LC Exposure
or Swingline Exposure, the Issuing Bank and the Swingline Lender) must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender, an
Affiliate of a Lender or a Related Fund of any Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment or Loans, the
amount of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, (iii) each partial
133
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender's rights and obligations in
respect of one Class of Commitments or Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further that
----------------
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause (a), (b), (h) or (i) of Article VII
has occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and
134
LC Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be conclusive, and
--------
Limited, the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
-----------
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
--------
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Limited, the Borrower,
the Administrative Agent, the Issuing Bank and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
provided that such agreement or instrument may provide that such Lender will
--------
135
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.15,
2.16 and 2.17 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant shall not be entitled to the
benefits of Section 2.17 unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
--------
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
---------
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties
136
hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17, 9.03 and
9.14 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
-----------------------------------------
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
-------------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be
137
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default under clause
----------------
(a) or (b) of Article VII shall have occurred and be continuing, each Lender and
each of its Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process. (a) This Agreement shall be construed in accordance with and governed
--------
by the law of the State of New York.
(b) Each of Limited and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
138
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against Limited, the Borrower or its
properties in the courts of any jurisdiction.
(c) Each of Limited and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
---------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
139
SECTION 9.11. Headings. Article and Section headings and the Table
---------
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
----------------
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, trustees, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty in Hedging Agreements or other swap agreements
relating to this Agreement or such contractual counterparty's professional
advisor, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than Limited
or the Borrower. For the purposes of this Section, "Information" means all
-----------
information received from Limited or the Borrower relating to Limited or the
Borrower or its business, other than any such information that is available to
the Administrative Agent, the Issuing Bank or any Lender
140
on a nonconfidential
basis prior to disclosure by Limited or the Borrower. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
-------------------------
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
-------
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
------------
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Conversion of Currencies. (a) If, for the purpose of
-------------------------
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or under any other Loan Document in dollars into another currency, the parties
hereto agree, to the fullest extent that they may legally and effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase dollars with such
other currency in New York, New York, on the Business Day immediately preceding
the day on which final judgment is given.
(b) The obligations of Limited, the Borrower and
141
the other Loan Parties in respect of any sum due to the Administrative Agent,
any Lender or the Issuing Bank hereunder or under any other Loan Document in
dollars shall, to the extent permitted by applicable law, notwithstanding any
judgment in a currency other than dollars, be discharged only to the extent that
on the Business Day following receipt of any sum adjudged to be so due in the
judgment currency, the Administrative Agent, such Lender or the Issuing Bank may
in accordance with normal banking procedures purchase dollars in the amount
originally due to the Administrative Agent, such Lender or the Issuing Bank with
the judgment currency. If the amount of dollars so purchased is less than the
sum originally due to the Administrative Agent, such Lender or the Issuing Bank,
the Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent, such Lender or the Issuing Bank
against the resulting loss.
142
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
GLOBAL CROSSING LTD.,
by
/s/ Xxxxxxxx Xxxx
----------------------------
Name: Xxxxxxxx Xxxx
Title: Assistant Secretary
GLOBAL CROSSING HOLDINGS LTD,
by
/s/ Xxxxxx Xxxx
----------------------------
Name: Xxxxxx Xxxx
Title: Director
THE CHASE MAHATTAN BANK,
individually and as Administrative
Agent,
by
/s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
individually and as Syndication
Agent,
by
/s/ Xxxx XxXxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Authorized Signatory
CITICORP USA, INC., individually
and as Co-Documentation Agent,
by
/s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
143
XXXXXXX XXXXX CAPITAL CORPORATION,
individually and as
Co-Documentation Agent,
by
/s/ Xxxx Lucid
----------------------------
Name: Xxxx Lucid
Title: V.P.
144
ABN AMRO BANK N.V.,
By:
/s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: S.V.P.
By:
/s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: V.P.
ARCHIMEDES FUNDING,
L.L.C.,
By: ING Capital Advisors,
LLC As Collateral Manager
By:
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: SVP
BANK OF MONTREAL,
By:
/s/ Xxxxxx Xxx
----------------------------
Name: Xxxxxx Xxx
Title: Senior Vice President
THE BANK OF NOVA SCOTIA,
By:
/s/ Xxx X. Xxxxxxx
----------------------------
Name: Xxx X. Xxxxxxx
Title: Authorized Signatory
THE BANK OF SCOTLAND,
By:
/s/ Xxx Xxxxxxxx Garden
----------------------------
Name: Xxx Xxxxxxxx
Garden
Title: Director
Finance
145
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
By:
/s/ Xxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
BANK UNITED,
By:
/s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Director
Commercial
Syndication
BANKBOSTON, N.A. AS TRUST
ADMINISTRATOR FOR LONG
LANE MASTER TRUST IV,
By:
/s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Managing
Director
BARCLAYS BANK PLC,
By:
/s/ Xxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Associate
Director
000
XXXXXXXXXX XXXX-XXX
XXXXXXXXXXX XX, XXX XXXX
BRANCH,
By:
/s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Managing
Director
By:
/s/ Xxxxxxxx X. Trespan
----------------------------
Name: Xxxxxxxx X. Trespan
Title: Director
BAYERISCHE LANDESBANK
GIROZENTRALE,
By:
/s/ Xxxxx Xxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By:
/s/ Xxxxxxx Xxxx
----------------------------
Name: Xxxxxxx Xxxx
Title: First Vice
President
BHF (USA) CAPITAL
CORPORATION,
By:
/s/ Xxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Assistant Vice
President
By:
/s/ Xxxxxxxx Xxxx
----------------------------
Name: Xxxxxxxx Xxxx
Title: AVP
000
XXXXXXXX XXXXXXXX XXXX XX
XXXXXXXX,
By:
/s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized
Signatory
XXXXX XXX COMMERCIAL
BANK, LTD., NEW YORK
BRANCH,
By:
/s/ Wan-Tu Yeh
----------------------------
Name: Wan-Tu Yeh
Title: VP & General
Manager
CIBC INC.,
By:
/s/ Xxxxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Executive
Director
COBANK, ACB,
By:
/s/ Xxxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
148
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK
INTERNATIONAL", NEW YORK
BRANCH,
By:
/s/ Xxxx X. XxXxxxxxx
----------------------------
Name: Xxxx X. XxXxxxxxx
Title: Vice President
By:
/s/ Xxxxx X. Tackling
----------------------------
Name: Xxxxx X. Tackling
Title: Vice President Credit Control
CREDIT LYONNAIS NEW YORK
BRANCH,
By:
/s/ Xxxx X. Xxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
CYPRESSTREE INSTITUTIONAL
FUND, LLC,
By: CypressTree
Investment Management
Company, Inc. its
Managing Member
By:
/s/ Xxxxxxxxx XxXxxxxxx
----------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
Title: Principal
149
CYPRESSTREE INVESTMENT
FUND, LLC,
By: CypressTree
Investment Management
Company, Inc. its
Managing Member
By:
/s/ Xxxxxxxxx XxXxxxxxx
----------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
Title: Principal
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and
on behalf of First
Allmerica Financial Life
Insurance Company as
Portfolio Manager
By:
/s/ Xxxxxxxxx XxXxxxxxx
----------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
Title: Principal
CYPRESSTREE SENIOR
FLOATING RATE FUND,
By: CypressTree
Investment Management
Company, Inc. as
Portfolio Manager
By:
/s/ Xxxxxxxxx XxXxxxxxx
----------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
Title: Principal
150
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR GRAND
CAYMAN ISLANDS BRANCH,
By:
/s/ Xxx X. Xxxxxx
---------------------
Name: Xxx X. Xxxxxx
Title: Vice President
By:
/s/ Xxxxxxx Xxxxx
---------------------
Name: Xxxxxxx Xxxxx
Title: Associate
DRESDNER BANK AG, NEW
YORK AND GRAND CAYMAN
BRANCHES,
By:
/s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice
President
By:
/s/ Xxxxx Xx, P.E.
---------------------
Name: Xxxxx Xx, P.E.
Title: Assistant Vice
President
THE FIRST NATIONAL BANK
OF CHICAGO,
By:
/s/ Xxxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: Associate
Underwriter
FIRST UNION NATIONAL
BANK,
By:
/s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
151
FLEET NATIONAL BANK,
By:
/s/ Xxx Xxxxxxxx
-------------------------
Name: Xxx Xxxxxxxx
Title: V.P.
FLOATING RATE PORTFOLIO,
By: INVESCO Senior
Secured Management, Inc.
as attorney in fact
By:
/s/ Xxxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxxx X.
Xxxxxxxx
Title: Authorized
Signatory
FRANKLIN FLOATING RATE
TRUST,
By:
/s/ Xxxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
IBM CREDIT CORPORATION,
By:
/s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
152
IKB DEUTSCHE
INDUSTRIEBANK AG
LUXEMBOURG BRANCH,
By:
/s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Executive
Director
By:
/s/ Xxxxxxx Ziwey
-----------------------------
Name: Xxxxxxx Ziwey
Title: Director
THE INDUSTRIAL BANK OF
JAPAN, LIMITED,
By:
/s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice
President
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND
HOLDINGS, LDC,
By: ING Capital Advisors,
LLC As Investment Advisor
By:
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X.
Xxxxxxxx
Title: SVP
153
XXXXXXX NATIONAL LIFE
INSURANCE COMPANY,
By: PPM America, Inc., as
attorney in fact on
behalf of Xxxxxxx
National Life Insurance
Company
By:
/s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
KBC BANK,
By:
/s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice
President
By:
/s/ Xxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: First Vice
President
KZH CYPRESSTREE-1 LLC,
By:
/s/ Xxxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized
Signatory
KZH III LLC,
By:
/s/ Xxxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized
Signatory
154
KZH CRESCENT LLC,
By:
/s/ Xxxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized
Signatory
KZH CRESENT-2 LLC,
By:
/s/ Xxxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized
Signatory
KZH CRESCENT-3 LLC,
By:
/s/ Xxxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized
Signatory
KZH ING-2 LLC,
By:
/s/ Xxxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized
Signatory
KZH HIGHLAND-2 LLC
By:
/s/ Xxxxx Xxxx
-------------------------
Name: Xxxxx Xxxx
Title: Authorized
Agent
KZH SHOSHONE LLC,
By:
/s/ Xxxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized
Signatory
155
KZH SOLEIL-1 LLC,
By:
/s/ Xxxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized
Signatory
KZH SOLEIL-2 LLC,
By:
/s/ Xxxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized
Signatory
KZH WATERSIDE LLC,
By:
/s/ Xxxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized
Signatory
XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX
INCORPORATED,
By:
/s/ Xxxx Lucid
--------------------------
Name: Xxxx Lucid
Title: V.P.
METROPOLITAN LIFE
INSURANCE COMPANY,
By:
/s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
156
MONUMENTAL LIFE INSURANCE
COMPANY,
By:
/s/ Xxxx X. Xxxx
-------------------------
Name: Xxxx X. Xxxx
Title: Vice President
XXXXXX XXXXXXX XXXX
XXXXXX PRIME INCOME
TRUST,
By:
/s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X.
Xxxxxxxx
Title: Vice President
NATIONSBANK, N.A., TO BE
KNOWN AS BANK OF AMERICA,
N.A. EFFECTIVE 7/5/99,
By:
/s/ Xxxxxxx Xxxx
-------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
NORTH AMERICAN SENIOR
FLOATING RATE FUND,
By: CypressTree
Investment Management
Company, Inc. as
Portfolio Manager
By:
/s/ Xxxxxxxxx XxXxxxxxx
-------------------------
Name: Xxxxxxxxx X.
XxXxxxxxx
Title: Principal
157
OCTAGON LOAN TRUST,
By: Octagon Credit
Investors, as Manager
By:
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing
Director
PILGRIM PRIME RATE TRUST,
By:
/s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PILGRIM PRIME RATE INCOME
TRUST,
By:
/s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PINEHURST TRADING, INC.
By:
/s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ROYAL BANK OF CANADA,
By:
/s/ Xxxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Senior Manager
000
XXXXXXX XXXXXXXX (XXXXX),
INC.,
By:
/s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
XXX XXXXXX PRIME RATE
INCOME TRUST,
By: Xxx Xxxxxx Investment
Advisory Corp.
By:
/s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK
BRANCH,
By:
/s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
By:
/s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: MD
