SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
January 13, 1998
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Date of Report (Date of earliest event reported)
360 COMMUNICATIONS COMPANY
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(Exact name of registrant as specified in its charter)
Delaware 1-14108 47-0649117
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(State of Incorporation) (Commission File No.) (IRS Employer Identification No.)
8725 W. Higgins Road, Chicago, Illinois 60631
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(Address of principal executive offices) (Zip Code)
(773) 399-2500
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(Registrant's telephone number, including area code)
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Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1.1 Underwriting Agreement dated as of January 8, 1998.
4.8 360 Communications Company's 6.65% Senior Note Due 2008.
10.11 Second Amended and Restated Credit Agreement dated as of
December 5, 1997 among 360 Communications Company, the
initial lenders named therein, Citibank, N.A., as
Administrative Agent, The Chase Manhattan Bank, as
Syndication Agent, Toronto Dominion (Texas), Inc., as
Documentation Agent, and Bank of America N.T. & S.A., as
Syndication Agent.
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SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
360 COMMUNICATIONS COMPANY
/s/ Jeffrey R. Gardner
By:____________________________________
Jeffrey R. Gardner
Senior Vice President - Finance
Date: January 13, 1998
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EXHIBIT INDEX
Exhibit
No. Description of Exhibits
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1.1 Underwriting Agreement dated as of March 12, 1997.
4.8 360 Communications Company's 6.65% Senior Note Due 2008.
10.11 Second Amended and Restated Credit Agreement dated as of
December 5, 1997 among 360 Communications Company, the
initial lenders named therein, Citibank, N.A., as
Administrative Agent, The Chase Manhattan Bank, as
Syndication Agent, Toronto Dominion (Texas), Inc., as
Documentation Agent, and Bank of America N.T. & S.A., as
Syndication Agent.
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EXECUTION COPY
360 COMMUNICATIONS COMPANY
$100,000,000 6.65% Senior Notes Due 2008
Underwriting Agreement
New York, New York
January 8, 1998
Salomon Brothers Inc
J.P. Morgan Securities Inc.
Lazard Freres & Co. LLC
c/o Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
360 Communications Company, a Delaware corporation (the
"Company"), proposes to sell severally to each of the underwriters named in
Schedule I hereto (the "Underwriters") $100,000,000 in aggregate principal
amount of the Company's 6.65% Senior Notes Due 2008 (the "Securities"). The
Company proposes to issue the Securities under an Indenture (the "Indenture")
dated as of March 1, 1997 between the Company and Citibank, N.A., as Trustee
(the "Trustee").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (file number 333-21331) on such Form, including
a basic prospectus, for the registration under the Act of the offering
and sale of the Company's debt securities (the "Debt Securities")
and/or warrants to purchase Debt
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Securities, including the Securities. The Company may have filed one or
more amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you. Such
registration statement, as so amended, has become effective. The
Company will next file with the Commission pursuant to the applicable
paragraph of Rule 424(b) a final prospectus supplement to the Basic
Prospectus relating to the Securities and the offering thereof. Except
to the extent the Underwriters shall agree in writing to a
modification, such final prospectus supplement shall be in all
substantive respects in the form furnished to the Underwriters prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised the
Underwriters, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
respective rules and regulations of the Commission thereunder; on the
Effective Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date, and on the
Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the
rules and regulations of the Commission thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), did not or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the
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Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement, or
the Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean each
date that the Registra tion Statement and any post-effective amendment
or amendments thereto became or become effective. "Execu tion Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) of this Section 1 contained in
the Registration Statement at the Effective Date. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the
Basic Prospectus which describes the Securities and the proposed
offering thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus. "Registration
Statement" shall mean the registration statement referred to in the
first sentence of paragraph (a) of this Section 1, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as
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hereinafter defined), shall also mean such registration statement as so
amended. "Rule 424(b)" and "Regulation S- K" refer to such rules or
regulations under the Act. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal amount of
the Securities set forth opposite such Underwriter's name in Schedule I hereto
at a purchase price of 99.335% of the principal amount of the Securities, plus
accrued interest on the Securities from January 13, 1998, to the Closing Date.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 a.m., New York City time, on January 13, 1998,
or such later date (not later than January 20, 1998) as the Underwriters shall
designate, which date and time may be postponed by agreement between the
Underwriters and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made on the instructions of the
Underwriters for the respective accounts of the several
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Underwriters against payment by the several Underwriters of the purchase price
thereof to or upon the order of the Company in immediately available funds.
Delivery of, and payment for, the Securities shall be made through the
facilities of the Depository Trust Company.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus without your prior consent, which consent shall not be
unreasonably withheld. Subject to the foregoing sentence, (i) the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
therein and will provide evidence satisfactory to the Underwriters of
such timely filing and (ii) the Company will use its best reasonable
efforts to cause any amendment to the Registration Statement to become
effective. The Company will promptly advise the Underwriters (i) when
the Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to the applicable paragraph of Rule
424(b), (ii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for
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sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best reasonable
efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Pro spectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply, in all material respects, with the Act
or the Exchange Act or the respective rules and regulations of the
Commission thereunder, the Company promptly will notify the
Underwriters and prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 5, an amendment or
supplement which is reasonably necessary to correct such statement or
omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as the
Underwriters may reasonably request. The Company will pay the expenses
of printing
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or other production of all documents relating to the
offering.
(e) The Company will cooperate with you and your counsel in
connection with obtaining the qualification of the Securities for sale
under the laws of such jurisdictions in the United States as the
Underwriters may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities; provided,
however, that the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any jurisdiction
in which it shall not then be qualified but for the requirements of
this Section 5(e), to subject itself to taxation in any such
jurisdiction to which it shall not then be so subject or to consent to
general service of process in any such jurisdiction to which it shall
not than be so subject.
(f) The Company will not, for a period of 30 days following
the Execution Time, without the prior written consent of Salomon
Brothers Inc, offer, sell or contract to sell, or otherwise dispose of
(or enter into any transaction which is designed to, or could be
expected to, result in the disposition by any person of) directly or
indirectly, or announce the offering of, any Debt Securities (other
than the Securities) and having a maturity of more than one year from
the date of issue.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, will be
filed in the manner and within the time period required by Rule 424(b);
and no stop order
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suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Underwriters the
opinion of Kevin C. Gallagher, General Counsel of the Company, dated
the Closing Date, to the effect that:
(i) each of the Company and the subsidiaries named in
Schedule II hereto (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole; and each of
the limited partnerships named in Schedule III hereto
(individually a "Limited Partnership" and collectively the
"Limited Partnerships") has been duly formed and is validly
existing as a limited partnership in good standing under the
laws of the jurisdiction in which it is organized;
(ii) The Securities conform in all material respects
to the description thereof contained in the Final Prospectus;
(iii) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable
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9
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency (including, without limitation, all
laws relating to fraudulent transfers), moratorium or other
laws affecting creditors' rights generally from time to time
in effect and to general principles of equity (regardless of
whether enforcement is considered a proceeding in equity or at
law)); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity (regardless of whether
enforcement is considered a proceeding in equity or at law));
(iv) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
Limited Partnerships of a character required to be disclosed
in the Registration Statement and the Final Prospectus which
is not disclosed in all material respects in the Registration
Statement and the Final Prospectus and the statements included
or incorporated in the Registration Statement and the Final
Prospectus describing any legal proceedings relating to the
Company fairly summarize such matters;
(v) the Registration Statement has become effective
under the Act; to the best knowledge of
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such counsel, no stop order suspending the effec tiveness of
the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened; the
Registration State ment at the Effective Date, and the Final
Pro spectus, at the time it was filed with the Commission
pursuant to Rule 424(b) (other than the financial statements
and other financial and statistical information contained
therein as to which such counsel need express no opinion),
complied] as to form in all material respects with the
applicable requirements of the Act and the Trust Indenture Act
and the respective rules and regulations of the Commission
thereunder; and the documents incorporated by reference in the
Registration Statement and the Final Prospectus, at the time
such documents were filed with the Commission (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion), complied as to form in all material
respects with the applicable requirements of the Exchange Act
and the rules and regulations of the Commission thereunder;
(vi) while such counsel has not independently
verified, and is not passing upon or assuming responsibility
for, the accuracy, completeness or fairness of the statements
or representations contained in the Registration Statement or
Final Prospectus, no facts have come to the attention of such
counsel which would lead such counsel to believe that either
(A) at the Effective Date, the Registration Statement
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading (other
than the financial statements, schedules and other financial
and statistical information contained therein as to which such
counsel need express no belief) or (B) the Final Prospectus,
at the date it was filed with the
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Commission pursuant to Rule 424(b) and at the date of such
opinion, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(other than the financial statements, schedules and other
financial and statistical information contained therein as to
which such counsel need express no belief);
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) to the best knowledge of such counsel, no
consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation
of the transactions contemplated herein, except such as have
been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such
opinion) as have been obtained; and
(ix) neither the execution and delivery of the
Indenture, the issuance and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfill ment of the terms hereof (a) will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or (b) the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries.
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In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to
the Final Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Underwriters shall have received from Cravath, Swaine
& Moore, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Underwriters may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the President or any Executive or
Senior Vice President of the Company and the principal financial or
accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agree ments and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
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(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threat ened; and
(iii) since the date of the most recent finan cial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
proper ties of the Company and its subsidiaries, whether or
not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Ernst & Young LLP shall have
furnished to the Underwriters a letter dated as of the Closing Date, in
form and substance satisfactory to the Underwriters, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited consolidated
financial statements and financial statement schedule included
or incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements
of the Act, the Exchange Act and the related published rules
and regulations thereunder;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; a reading of the minutes of the meetings
of the stockholders, directors and executive, finance and
audit committees of the Company and its subsidiaries; and
inquiries of certain officials of the Company who
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have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events
subsequent to December 31, 1996, nothing came to their
attention that caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply as
to form in all material respects with applicable
accounting requirements of the Act and with the
published rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; and
(2) with respect to the period subsequent to
September 30, 1997, there were any changes, at a
specified date not more than five business days prior
to the date of the letter, in the common stock of the
Company or any increases in long term debt of the
Company and its subsidiaries or any decreases in the
shareowners' equity or working capital of the Company
and its subsidiaries as compared with the amounts
shown on the September 30, 1997 consolidated balance
sheet included or incorporated in the Registration
Statement and the Final Prospectus, or for the period
from October 1, 1997 to such specified date there
were any decreases, as compared with the
corresponding period during the preceding year, in
total operating revenues, operating income plus
depreciation and amortization or operating income,
except in all instances for
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changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an
explanation by the Company as to the significance
thereof unless said explanation is not deemed
necessary by the Underwriters,
(iii) they have performed certain other speci fied
procedures as a result of which they deter mined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus, including the information
included or incorporated in Item 7 of the Company's Annual
Report on Form 10-K, incorporated in the Registration
Statement and the Final Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change, increase or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii)
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above, is, in the judgment of the Underwriters, so material and adverse
as to make it impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Registration State
ment (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Underwriters such further information, certificates
and documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, this Agreement and all obliga tions of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancelation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the
Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters
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set forth in Section 6 hereof is not satisfied, because of any termination
pursuant to Section 10 hereof or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the Underwriters,
the Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Under writer, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission (i) made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter specifically for inclusion
therein, (ii) in respect of such part of the Registration Statement that
constitutes the
<PAGE>
18
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (iii) in respect of the Final Prospectus relating to the
sale of Securities to any person if the Final Prospectus shall have been amended
or supplemented to correct such untrue statement or alleged untrue statement or
omission or alleged omission and a copy of the Final Prospectus (exclusive of
the documents incorporated therein) shall not have been given or sent to such
person by or on behalf of any Underwriter with or prior to the written
confirmation of the sale involved, unless, with respect to the delivery of the
Final Prospectus as amended or supplemented, the untrue statement or alleged
untrue statement or omission or alleged omission was not corrected in the Final
Prospectus as so amended or supplemented at the time of such written
confirmation. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors (including any person who, with his
consent, is named in the Registration Statement as about to become a director of
the Company), officers, employees and agents and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
The Company acknowledges that the statements set forth in the last paragraph of
the cover page, the first paragraph on page S-2, the second and third sentences
of the fifth paragraph under the heading "Underwriting" and the last paragraph
under the heading "Underwriting" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, and you, as the Underwriters, confirm that such statements are
correct.
<PAGE>
19
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of (i) the commencement of any action or (ii) the intention
or threat to commence an action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this Section
8, notify the indemnifying party in writing of the commencement or intended or
threatened commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights or defenses or is otherwise materially prejudiced by such failure and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indem nified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action
<PAGE>
20
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party; provided, however,
that the indemnifying party shall not, in respect of the legal fees and expenses
of any indemnified party in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding. No indemnified
party, without the prior written consent of the indemnifying party, will settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnifying party is an actual or potential party to such claim or action)
unless the indemnifying party fails to perform its obligations hereunder.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Under writers may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such
<PAGE>
21
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or the Underwriters and the parties relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, each director (including any person who, with his consent, is
named in the Registration Statement as about to become a director of the
Company), officer, employee and agent of the Company shall have the same rights
to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
<PAGE>
22
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or Under
writers agreed but failed to purchase; provided, however, that in the event that
the aggregate principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Underwriters shall determine
in order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given to
the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall
<PAGE>
23
have been declared either by Federal or New York State authorities or (iii)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the judgment
of the Underwriters, impracticable or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Final Prospectus (exclusive
of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancelation of this
Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them, care of Salomon Brothers Inc, at
Seven World Trade Center, New York, New York, 10048; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 8725 W. Higgins
Road, Chicago, Illinois 60631-2702, attention Kevin C. Gallagher, Esq., Senior
Vice President, General Counsel and Secretary.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
<PAGE>
24
15. Actions of Underwriters. Any action required or permitted
to be taken by the Underwriters hereunder may be taken by Salomon Brothers Inc,
and the Company shall be entitled to act and rely upon any action so taken by
Salomon Brothers Inc, as having been taken by the Underwriters.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement.
17. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the transactions contemplated
hereby.
<PAGE>
25
If the foregoing is in accordance with your under standing of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
360 Communications Company
/s/ Peter W. Chehayl
By:
Name: Peter W. Chehayl
Title: Vice President
and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
J.P. Morgan Securities Inc.
Lazard Freres & Co. LLC
By: Salomon Brothers Inc
/s/ David M. Diwik
By:
Name: David M. Diwik
Title: Managing Director
<PAGE>
26
SCHEDULE I
Principal Amount
Underwriters of Notes
- ------------ ------------
Salomon Brothers Inc ......................................... $ 60,000,000
J.P. Morgan Securities Inc. . . . . . 25,000,000
Lazard Freres & Co. LLC . . . . . . . 15,000,000
--------------
Total............................................... $100,000,000
<PAGE>
27
SCHEDULE II
Certain Subsidiaries of the Company
Susquehanna Cellular Communications Limited Partnership
Virginia Metronet, Inc.
TeleSpectrum of Virginia, Inc.
360 Communications Company of Peoria
South Bend/Mishawaka MSA Limited Partnership
Toledo MSA Limited Partnership
Ohio RSA 6 Limited Partnership
Youngstown-Warren MSA Limited Partnership
Raleigh-Durham MSA Limited Partnership
360 Communications Company of North Carolina Limited Partnership
360 Communications Company of Hickory Limited Partnership
360 Communications Company of North Carolina No. 1
North Carolina RSA 6 Limited Partnership
TeleSpectrum, Inc.
Charleston-North Charleston MSA Limited Partnership
Greenville MSA Limited Partnership
360 Communications Company of New Mexico
360 Communications Company of Nevada Limited Partnership
360 Communications Company of Ohio No. 3
360 Communications Company of Hickory No. 1
Northeast Pennsylvania SMSA Limited Partnership
Cellular Plus LP
<PAGE>
28
SCHEDULE III
Certain Limited Partnerships of the Company
Chicago MSA Limited Partnership
GTE Mobilnet of South Texas Limited Partnership
Kansas City MSA Limited Partnership
New York MSA Limited Partnership
Orlando MSA Limited Partnership
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to 360
Communications Company (the "Company") or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Unless and until this Security is exchanged in whole or in part for
certificated Securities registered in the names of the various beneficial
holders hereof as then certified to the Company by DTC or a successor
depositary, this Security may not be transferred except as a whole by DTC to a
nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC
or any such nominee to a successor depositary or a nominee of such successor
depositary.
This Security may be exchanged for certificated Securities registered
in the names of the various beneficial owners hereof (as certified to the
Company by DTC or a successor depositary) only if (a) DTC notifies the Company
that is unwilling or unable to continue as depositary for this Security or if at
any time DTC ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor depositary is not appointed by
the Company within 90 days, (b) the Company executes and delivers to the Trustee
a notice that this Security and all Securities of the series designated below
shall be so transferable, registerable and exchangeable, and such transfers
shall be registerable, or (c) there shall have occurred and be continuing an
Event of Default or an event which, with the giving of notice or lapse of time
or both, would constitute an Event of Default with respect to the Securities
represented by this certificate.
<PAGE>
[FACE OF SECURITY]
360 COMMUNICATIONS COMPANY
6.65% Senior Note Due 2008
Principal Amount No.
$ CUSIP 885571 AE 9
360 COMMUNICATIONS COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company," which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
, or
registered assigns, the principal sum of
Dollars
on January 15, 2008 (the "Stated Maturity"), and to pay interest thereon from
January 13, 1998 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, payable semiannually in arrears on January
15 and July 15 in each year (each, an "Interest Payment Date"), commencing on
July 15, 1998, and at Maturity, at the rate of 6.65% (the "Interest Rate") per
annum, until the principal hereof is paid or duly provided for. Each payment of
interest in respect of an Interest Payment Date shall include interest accrued
through the day prior such Interest Payment Date. The interest so payable, and
paid or duly provided for, on any Interest Payment Date shall, as provided in
the Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be January 1 or July 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Interest shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
Notwithstanding the foregoing, interest payable at Maturity shall be
paid to the Person to whom principal shall be paid. Except as otherwise provided
in the Indenture, any such interest not so paid or duly provided for shall
forthwith cease to be payable to the Holder on the related Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
To the extent lawful, the Company shall pay interest on (i) any overdue
principal of and premium, if any, on this Security, at the interest rate borne
on this Security, plus 1% per annum, and (ii) Defaulted Interest (without regard
to any applicable grace period), at the same rate. The Company's obligation
pursuant to the previous sentence shall apply whether such overdue amount is due
at the Stated Maturity, as a result of the Company's obligations pursuant to
Section 1001 of the Indenture, or otherwise.
If any Interest Payment Date, any Redemption Date, any Change of
Control Payment Date or the
<PAGE>
Stated Maturity shall not be a Business Day (as hereinafter defined), payment of
the amount due on this Security on such date may be made on the next succeeding
Business Day; and, if such payment is made or duly provided for on such Business
Day, no interest shall accrue on such amounts for the period from and after such
Interest Payment Date, such Redemption Date, such Change of Control Payment Date
or the Stated Maturity, as the case may be, to such Business Day.
Payment of the principal of and premium, if any, and interest on this
Security at Maturity shall be made upon presentation hereof at the office or
agency of the Company, one of which will be maintained in The City of New York
(which initially will be the Corporate Trust Office of Citibank, N.A. in New
York, New York) or at such other office or agency permitted under the Indenture
and located in The City of New York. Payment the principal of and premium, if
any, and interest on this Security shall be payable in immediately available
funds; provided however, that payment of interest may be made at the option of
the Company by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register. Payment of the principal of
and premium, if any, and interest, if any, on this Security, as aforesaid, shall
be made in such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts.
-2-
<PAGE>
[REVERSE OF SECURITY]
360 COMMUNICATIONS COMPANY
6.65% Senior Note Due 2008
This Security is one of a duly authorized issue of unsecured senior
debt securities of the Company (herein called the "Securities"), issued and
issuable in one or more series under an Indenture dated as of March 1, 1997
(such Indenture as originally executed and delivered and as hereafter
supplemented or amended, together with any constituent instruments establishing
the terms of particular Securities, being herein called the "Indenture") from
the Company to Citibank N.A., as trustee (herein called the "Trustee," which
term includes any successor trustees under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. The acceptance of this Security shall be deemed to constitute the
consent and agreement of the Holder hereof to all of the terms and provisions of
the Indenture. This Security is one of the series designated on the face hereof.
All capitalized terms used in this Security which are not defined herein shall
have the meaning assigned to them in the Indenture.
Upon the occurrence of a Change of Control Triggering Event with
respect to the Securities of this series, each Holder of Securities of this
series shall have the right to require the Company to purchase such Holder's
Securities, in whole or in part, in principal amount that is an integral
multiple of $1,000, pursuant to a Change of Control Offer, at a purchase price
in cash equal to 101% of the principal amount thereof on any Change of Control
Payment Date plus accrued and unpaid interest, if any, to the Change of Control
Payment Date.
Within 30 calendar days following any Change of Control Triggering
Event with respect to the Securities of this series, the Company shall send, or
cause to be sent, by first-class mail, postage prepaid, a notice regarding the
Change of Control Offer to the Trustee and each Holder of Securities of this
series. The Holder of this Security may elect to have this Security or a portion
hereof in an authorized denomination purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below and tendering this Security
pursuant to the Change of Control Offer. Unless the Company defaults in the
payment of the Change of Control Purchase Price with respect thereto, all
Securities or portions thereof accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest from and after the Change of Control
Payment Date.
This Security shall be redeemable as a whole or in part, at the option
of the Company, at any time at a redemption price equal to the greater of (i)
100% of the principal amount hereof or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest hereon discounted to the
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis
points, plus in each case accrued interest hereon to the Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Composite
Treasury Issue (as defined below), assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
-3-
<PAGE>
Comparable Treasury Price (as defined below) for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker (as defined below) as having a
maturity comparable to the remaining term of the Securities of this series to be
redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Securities of this series.
"Independent Investment Banker" means one of the Reference Treasury Dealers (as
defined below) appointed by the Company.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and ask prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the Reference Treasury Dealer Quotations (as defined below) for such
Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (B) if the Company obtains fewer than four such Reference
Dealer Quotations, the average of all such Quotations. "Reference Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Company, of the bid and ask
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day preceding such Redemption
Date.
"Reference Treasury Dealer" means each of Salomon Brothers Inc, J.P.
Morgan Securities Inc. and Lazard Freres & Co. LLC and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in The City of New York (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer.
Notice of redemption shall be given by mail to Holders of Securities,
not less than 30 days nor more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture. As provided in the Indenture,
notice of redemption at the election of the Company as aforesaid may state that
such redemption shall be conditional upon the receipt by the Trustee of money
sufficient to pay the principal of and premium, if any, and interest, if any, on
this Security on or prior to the date fixed for such redemption; a notice of
redemption so conditioned shall be of no force or effect if such money is not so
received and, in such event, the Company shall not be required to redeem this
Security.
In the event of redemption of this Security in part only, a new
Security or Securities of this series, of like tenor, for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of this Security may be declared due and
payable in any manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as thereby provided, the
Trustee to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of not less than a
-4-
<PAGE>
majority in aggregate principal amount of the Securities of all series then
Outstanding under the Indenture, considered as one class; provided, however,
that if there shall be Securities of more than one series Outstanding under the
Indenture and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Securities then Outstanding, on behalf of the Holders of all
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Security at the times, place and rate, in the coin or
currency, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
Corporate Trust Office of Citibank, N.A. in The City of New York or other such
office or agency permitted under the Indenture and located in The City of New
York as may be designated by the Company from time to time, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series of authorized denominations and of like tenor and aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, in denominations of $1,000 and in integral multiple
of $1,000. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series, of any authorized
denominations, as requested by the Holder surrendering the same, and of like
tenor upon surrender of the Security or Securities to be exchanged at the
Corporate Trust Office of Citibank, N.A. in The City of New York or other such
office or agency permitted under the Indenture and located in The City of New
York as may be designated by the Company from time to time.
The Company shall not be required to (i) register the transfer of or
exchange Securities of this series during a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of this series called for redemption or (ii) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
-5-
<PAGE>
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES THEREOF.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
the State of New York or the city in which is located any office or agency
maintained for the purpose of principal of or premium, if any, or interest, if
any, on this Security, are authorized or required by law, regulation or
executive order to remain closed.
As provided in the Indenture, no recourse shall be had for the payment
of the principal of or premium, if any, or interest, if any, on any Securities,
or any part thereof, or for any claim based thereon or otherwise in respect
thereof, or of the Indebtedness represented thereby, or upon any obligation,
covenant or agreement under the Indenture, against and no personal liability
whatsoever shall attach to, or be Incurred by, any incorporator, stockholder,
officer or director, as such, past, present or future of the Company or of any
predecessor or successor corporation (either directly or through the Company or
a predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that the
Indenture and all of the Securities are solely corporate obligations and that
any such personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of the
Indenture and the issuance of the Securities.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
-6-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
360 COMMUNICATIONS COMPANY
By:
Attested:
By:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
CITIBANK, N.A.,
as Trustee
By:
Authorized Signatory
-7-
<PAGE>
ASSIGNMENT
(To be executed by the registered Holder if such Holder desires to transfer this
Security)
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
[please insert social security or other identifying number of assignee]
[please print or type name and address of assignee]
this Security of 360 COMMUNICATIONS COMPANY, together with all right, title and
interest herein, and does hereby irrevocably constitute and appoint , Attorney,
to transfer this Security in the Security Register, with full power of
substitution in the premises.
Dated:
Signature of Holder Signature Guaranteed:
Member of Securities Transfer Agent
Medallion Program
NOTICE: The signature to the foregoing must correspond to the name as
written upon the face of this Security in every particular,
without alteration or any change whatsoever.
-8-
<PAGE>
360 COMMUNICATIONS COMPANY
6.65% Senior Notes Due 2008
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
In connection with the Change of Control Offer made pursuant
to Section 1001 of the Indenture, the undersigned hereby elects to have:
|_| the entire principal amount; or
|_| $----------------- ($1,000 in principal amount or an integral
multiple thereof) of this Security
repurchased by the Company. The undersigned hereby directs the Trustee or Paying
Agent to pay it or an amount in cash equal
to 101% of the principal amount indicated above plus accrued and unpaid interest
thereon, if any, to the Change of Control Payment Date.
Dated:
Signature of Holder Signature Guaranteed:
Member of Securities Transfer Agent
Medallion Program
NOTICE: The signature to the foregoing must correspond to the name as
written upon the face of this Security in every particular,
without alteration or any change whatsoever.
COPY AS EXECUTED
U.S. $1,000,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 5, 1997
Among
360 COMMUNICATIONS COMPANY
as Borrower,
THE INITIAL LENDERS NAMED HEREIN
as Lenders,
and
CITIBANK, N.A.,
as Administrative Agent,
THE CHASE MANHATTAN BANK
as Syndication Agent,
TORONTO DOMINION (TEXAS), INC.
as Documentation Agent,
and
BANK OF AMERICA N.T. & S.A.
as Syndication Agent
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms................................... 2
SECTION 1.02. Computation of Time Periods............................. 20
SECTION 1.03. Accounting Terms........................................ 20
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances........................... 20
SECTION 2.02. Making the Revolving Credit Advances.................... 21
SECTION 2.03. The Competitive Bid Advances............................ 23
SECTION 2.04. Fees.................................................... 27
SECTION 2.05. Termination or Reduction of the Commitments............. 28
SECTION 2.06. Repayment of Revolving Credit Advances ................. 28
SECTION 2.07. Interest on Revolving Credit Advances................... 28
SECTION 2.08. Interest Rate Determination............................. 29
SECTION 2.09. Optional Conversion of Revolving Credit Advances........ 30
SECTION 2.10. Prepayments of Revolving Credit Advances................ 30
SECTION 2.11. Increased Costs......................................... 31
SECTION 2.12. Illegality.............................................. 32
SECTION 2.13. Payments and Computations............................... 32
SECTION 2.14. Taxes................................................... 34
SECTION 2.15. Sharing of Payments, Etc................................ 36
SECTION 2.16. Use of Proceeds......................................... 36
SECTION 2.17. Substitution of Lenders................................. 36
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03................................................ 37
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing. 39
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing.. 40
SECTION 3.04. Determinations Under Section 3.01....................... 40
<PAGE>
ii
Page
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower........... 41
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.................................... 46
SECTION 5.02. Negative Covenants....................................... 51
SECTION 5.03. Financial Covenants...................................... 60
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default........................................ 62
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action................................. 66
SECTION 7.02. Administrative Agent's Reliance, Etc..................... 66
SECTION 7.03. Citibank, BankAmerica, TD Bank and Chase and Affiliates.. 67
SECTION 7.04. Lender Credit Decision................................... 67
SECTION 7.05. Indemnification.......................................... 67
SECTION 7.06. Successor Agents......................................... 68
SECTION 7.07. Agents................................................... 68
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.......................................... 69
SECTION 8.02. Notices, Etc............................................. 69
SECTION 8.03. No Waiver; Remedies...................................... 70
SECTION 8.04. Costs and Expenses....................................... 70
<PAGE>
iii
Page
SECTION 8.05. Right of Set-off......................................... 71
SECTION 8.06. Binding Effect........................................... 72
SECTION 8.07. Assignments, Designations and Participations............. 72
SECTION 8.08. Confidentiality.......................................... 76
SECTION 8.09. Governing Law............................................ 76
SECTION 8.10. Execution in Counterparts................................ 76
SECTION 8.11. Jurisdiction, Etc........................................ 76
SECTION 8.12. Effective Date Assignments; Etc.......................... 77
SECTION 8.13. Waiver of Jury Trial..................................... 79
<PAGE>
iv
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 3.01(f) - Agreements and Instruments Relating to Structure and
Capitalization
Schedule 4.01(b) - Restricted Subsidiaries
Schedule 4.01(d) - Required Authorizations, Approvals, Actions, Notices
and Filings
Schedule 5.01(h) - Transactions with Affiliates
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Surviving Debt
Schedule 5.02(g) - Existing Investments
Schedule 8.12 - Existing Commitments and Existing Advances
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of General Counsel of the Borrower
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of
December 5, 1997 (as so amended and restated and as further amended,
supplemented or otherwise modified from time to time, the "Agreement") among 360
COMMUNICATIONS COMPANY, a Delaware corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders (the "Initial Lenders")
listed on the signature pages hereof, CITIBANK, N.A. ("Citibank"), as
administrative agent (the "Administrative Agent"), THE CHASE MANHATTAN BANK, as
successor to Chemical Bank ("Chase"), as syndication agent, TORONTO DOMINION
(TEXAS), INC. ("TD Bank"), as documentation agent (the "Documentation Agent"),
and BANK OF AMERICA N.T. & S.A., as successor to Bank of America Illinois
("BankAmerica"), as syndication agent (together with Chase, the "Syndication
Agents", and the Syndication Agents, together with the Administrative Agent and
the Documentation Agent, being the "Agents") for the Lenders (as hereinafter
defined).
PRELIMINARY STATEMENTS.
(1) The Borrower has entered into a Credit Agreement dated as
of March 6, 1996 (the "Credit Agreement") with the Agents and certain lenders,
financial institutions and other institutional lenders party thereto.
(2) The Credit Agreement was amended and restated by an
Amended and Restated Credit Agreement dated as of October 31, 1996 (as amended,
supplemented or otherwise modified by a Letter Waiver dated as of March 24, 1997
and a Letter Amendment and Waiver dated as of April 15, 1997 (the "First Amended
and Restated Credit Agreement")) among the Borrower, the Agents and certain
lenders, financial institutions and other institutional lenders party thereto
(collectively, the "Existing Lenders").
(3) The Borrower has requested that the Existing Lenders and
others enter into this Agreement to amend and restate the First Amended and
Restated Credit Agreement as set forth herein. The Existing Lenders party hereto
have indicated their willingness to amend and restate the First Amended and
Restated Credit Agreement upon the terms and conditions stated herein.
(4) Simultaneously with the execution hereof, the Existing
Lenders that are not Initial Lenders have entered into an assignment agreement
(as amended, supplemented or otherwise modified from time to time, the
"Assignment Agreement") with the Borrower and the Administrative Agent pursuant
to which such Existing Lenders have agreed to sell and assign to the Initial
Lenders all of their Existing Commitments (as hereinafter defined) and the
Initial Lenders have agreed to purchase and assume, as of the Effective Date,
all of such Existing Lenders' rights and obligations under the First Amended and
Restated Credit Agreement on the terms set forth in the Assignment Agreement.
After giving effect to such sale and assignment as of the Effective Date, the
Commitments (as hereinafter defined) of each of the Initial Lenders will be as
set forth opposite such Initial Lender's name on the signature pages hereof.
<PAGE>
2
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto hereby
agree that, subject to the satisfaction of the conditions set forth in Article
III, the First Amended and Restated Credit Agreement is amended and restated in
its entirety to read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank
with its office at 399 Park Avenue, New York, New York 10043, Account
No. 36852248, Attention: Matthew Carter.
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agents" has the meaning specified in the recital of parties
to this Agreement.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office, in the case of a Base
Rate Advance, such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance and, in the case of a Competitive Bid Advance,
the office of such Lender notified by such Lender to the Administrative
Agent as its Applicable Lending Office with respect to such Competitive
Bid Advance.
<PAGE>
3
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
================================================================================
Applicable Margin
Public Debt Rating Applicable Margin for for Eurodollar Rate
S&P/Moody's Base Rate Advances Advances
================================================================================
- --------------------------------------------------------------------------------
Level 1
A--or above or A3 or above 0.00% 0.225%
-- --
- --------------------------------------------------------------------------------
Level 2
Less than Level 1 but at least
BBB+ or at least Baa1 0.00% 0.275%
--
- --------------------------------------------------------------------------------
Level 3
Less than Level 2 but at least
BBB or at least Baa2 0.00% 0.350%
--
- --------------------------------------------------------------------------------
Level 4
Less than Level 3 but at least
BBB-- and Baa3 0.00% 0.425%
---
- --------------------------------------------------------------------------------
Level 5
Less than Level 4 but at least
BBB--or at least Baa3 0.00% 0.500%
--
- --------------------------------------------------------------------------------
Level 6
Less than Level 5 but at least
BB+ and Ba1 0.00% 0.625%
---
- --------------------------------------------------------------------------------
Level 7
Less than Level 6 0.00% 0.750%
================================================================================
<PAGE>
4
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
==========================================================================
Public Debt Rating Applicable
S&P/Moody's Percentage
==========================================================================
- --------------------------------------------------------------------------
Level 1
A--or above or A3 or above 0.08%
--
- --------------------------------------------------------------------------
Level 2
Less than Level 1 but at least
BBB+ or at least Baa1 0.10%
- --------------------------------------------------------------------------
Level 3
Less than Level 2 but at least BBB
or at least Baa2 0.125%
- --------------------------------------------------------------------------
Level 4
Less than Level 3 but at least
BBB-- and Baa3 0.150%
- --------------------------------------------------------------------------
Level 5
Less than Level 4 but at least
BBB-- or at least Baa3 0.150%
- --------------------------------------------------------------------------
Level 6
Less than Level 5 but at least
BB+ and Ba1 0.225%
- --------------------------------------------------------------------------
Level 7
Less than Level 6 0.250%
==========================================================================
"Assignment Agreement" has the meaning specified in the
Preliminary Statements hereto.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or,
if there is no nearest 1/16 of 1%, to the next higher 1/16 of
1%) of (i) 1/2 of 1% per annum,
<PAGE>
5
plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of
360 days) being determined weekly on each Monday (or, if such
day is not a Business Day, on the next succeeding Business
Day) for the three-week period ending on the previous Friday
by Citibank on the basis of such rates reported by certificate
of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received
by Citibank from three New York certificate of deposit dealers
of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the
Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for Citibank with respect
to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the average during
such three-week period of the annual assessment rates
estimated by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York, New York or
Chicago, Illinois and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"Commitment" has the meaning specified in Section 2.01.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
<PAGE>
6
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information that the Borrower
or any of its Subsidiaries furnishes to any Agent or any Lender, but
does not include any such information that is or becomes generally
available to the public other than as a result of a breach by any Agent
or any Lender of its obligations hereunder or that is or becomes
available to such Agent or such Lender from a source other than the
Borrower or any of its Subsidiaries.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"Credit Agreement" has the meaning specified in the
Preliminary Statements hereto.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money (including, without
limitation, indebtedness incurred in connection with securitizations,
whether or not any such securitization is reflected on the balance
sheet of such Person), (b) all payment Obligations of such Person for
the deferred purchase price of property or services (other than trade
payables and other accounts payable not overdue by more than 60 days
incurred in the ordinary course of such Person's business), (c) all
payment Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all payment Obligations of
such Person created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to
repossession or sale of such property), (e) all payment Obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases ("Capitalized
Leases"), (f) all payment Obligations, contingent or
<PAGE>
7
otherwise, of such Person in respect of acceptances, letters of credit
or similar extensions of credit which are or should be, in accordance
with GAAP, set forth in the consolidated financial statements of such
Person, (g) all payment Obligations, contingent or otherwise, of such
Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any capital stock of or other ownership or profit
interest in such Person or any other Person or any warrants, rights or
options to acquire such capital stock, valued, in the case of mandatory
redeemable preferred stock, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends,
(h) all payment Obligations, contingent or otherwise, of such Person in
respect of Hedge Agreements, (i) all Debt of others referred to in
clauses (a) through (h) above or clause (j) below guaranteed directly
or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (1) to pay
or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or to
assure the holder of such Debt against loss, (3) to supply funds to or
in any other manner invest in the debtor (including any agreement to
pay for property or services irrespective of whether such property is
received or such services are rendered) or (4) otherwise to assure a
creditor against loss, and (j) all Debt referred to in clauses (a)
through (i) above secured by (or for which the holder of such Debt has
an existing right, contingent or otherwise, to be secured by) any Lien
on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Bidder" means (a) an Eligible Assignee or (b) a
special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial
paper rated at least "Prime-1" (or the then equivalent grade) by
Moody's or "A-1" (or the equivalent grade) by S&P that, in the case of
either clause (a) or (b), (i) is organized under the laws of the United
States or any State thereof, (ii) shall have become a party hereto
pursuant to Sections 8.07(d), (e), (f) and (g) and (iii) is not
otherwise a Lender.
"Designation Agreement" means a designation agreement entered
into by a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Agent, in substantially the form of Exhibit
D hereto.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto
<PAGE>
8
or in the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense and (e) non-cash losses
(in each case, to the extent deducted in the calculation of net
income), minus (f) non-cash gains (to the extent added in the
calculation of net income), in each case determined in accordance with
GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having a combined capital and surplus
of at least $500,000,000; (iv) a savings and loan association or
savings bank organized under the laws of the United States, or any
State thereof, and having a combined capital and surplus of at least
$500,000,000; (v) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having a combined capital and surplus of at least
$500,000,000, so long as such bank is acting through a branch or agency
located in the United States; (vi) the central bank of any country that
is a member of the Organization for Economic Cooperation and
Development; (vii) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership,
trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and having a combined capital and surplus of at least
$500,000,000; and (viii) any other Person approved by the
Administrative Agent and the Borrower, such approval not to be
unreasonably withheld or delayed; provided, however, that none of the
Borrower, Sprint or any Affiliate of the Borrower or Sprint shall
qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages relating to injuries or threats of
injuries to health, safety or the environment and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery,
<PAGE>
9
compensation or injunctive relief relating to injuries or threats of
injuries to health, safety or the environment.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation relating to pollution or
protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of the Borrower or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for the imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, a Plan.
<PAGE>
10
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period.
The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Revolving Credit Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances or LIBO Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances or LIBO Rate Advances is determined) having a term equal
to such Interest Period.
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11
"Events of Default" has the meaning specified in Section 6.01.
"Existing Advance" means, for each Existing Lender, all of
such Existing Lender's rights in and to, and all of its obligations
under, the Advances (as defined in the First Amended and Restated
Credit Agreement) evidenced by the Existing Notes and owing to it under
the First Amended and Restated Credit Agreement as of the Effective
Date, the aggregate amount of which is set forth opposite such Existing
Lender's name on Schedule 8.12 hereto.
"Existing Commitment" means, for each Existing Lender, all of
such Existing Lender's rights in and to, and all of its obligations
under, the Commitment (as defined in the First Amended and Restated
Credit Agreement) held by it under the First Amended and Restated
Credit Agreement as of the Effective Date, the aggregate amount of
which is set forth opposite such Existing Lender's name on Schedule
8.12 hereto.
"Existing Lenders" has the meaning specified in the
Preliminary Statements hereto.
"Existing Notes" means the Notes as defined in, and issued
pursuant to, the First Amended and Restated Credit Agreement.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"First Amended and Restated Credit Agreement" has the meaning
specified in the Preliminary Statements hereto.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
<PAGE>
12
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Information Memorandum" means the information memorandum
dated December 1995 used by the Agents in connection with the
syndication of the Commitments.
"Information Package" means certain information distributed by
the Agents on or about November 3, 1997, to the Lenders in connection
with this Agreement, but excluding the reports of independent analysts
contained therein.
"Initial Lender" has the meaning specified in the recital of
parties hereto.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurodollar Rate Advance (or the
date of the Conversion of any Base Rate Advance into such Eurodollar
Rate Advance) or LIBO Rate Advance, as the case may be, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, with respect to Eurodollar Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months or any other period agreed to by all of the Lenders, as the
Borrower may, upon notice received by the Administrative Agent not
later than 12:00 Noon (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of
the same Competitive Bid Borrowing shall be of the same
duration (provided that multiple Borrowings with different
Interest Periods may be made on the same Business Day);
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be
<PAGE>
13
extended to occur on the next succeeding Business Day,
provided, however, that, if such extension would cause the
last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock,
warrants, rights, options, obligations or other securities or all or
substantially all of the assets of such Person, any capital
contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clauses (i) and (j) of
the definition of "Debt" in respect of such Person.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b) and (c) and,
except when used in reference to a Revolving Credit Advance, a
Revolving Credit Borrowing, a Revolving Credit Note, a Commitment or a
related term, each Designated Bidder.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks, in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to the amount that would be the Reference
Banks' respective ratable shares of such Borrowing if such Borrowing
were to be a Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. The LIBO Rate for any Interest Period for
each LIBO Rate Advance comprising part of the same Competitive Bid
Borrowing shall be determined by the Administrative Agent on the basis
of applicable rates furnished to and received by the Administrative
Agent from the
<PAGE>
14
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Marketable Securities" means any of the following, to the
extent owned by the Borrower and having a maturity of not greater than
90 days from the date of acquisition thereof: (a) readily marketable
direct obligations of the Government of the United States or any agency
or instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States, (b)
insured certificates of deposit of or time or demand deposits with any
commercial bank that is a Lender or a member of the Federal Reserve
System, issues (or the parent of which issues) commercial paper rated
as described in clause (c), is organized under the laws of the United
States or any State thereof and has combined capital and surplus of at
least $500,000,000, (c) commercial paper in an aggregate amount of no
more than $10,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States
and rated at least "Prime-1" (or the then equivalent grade) by Moody's
or "A-1" (or the then equivalent grade) by S&P or (d) Investments in
money market or mutual funds that invest primarily in Marketable
Securities of the types described in clauses (a), (b) and (c) above, in
an aggregate amount invested in any one such fund not to exceed
$10,000,000 outstanding at any time.
"Material Adverse Change" means any material adverse change in
the financial condition, results of operations or prospects of the
Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the financial condition, results of operations or prospects of the
Borrower and its Subsidiaries taken as a whole, (b) the rights and
remedies of any Agent or any Lender under this Agreement or any Note or
(c) the ability of the Borrower to perform its payment Obligations in
any respect, or its other Obligations in any material respect, under
this Agreement or any Note.
"Material Contract" means each contract to which the Borrower
or any Restricted Subsidiary is a party involving aggregate
consideration payable to or by the Borrower or such Restricted
Subsidiary of $250,000 or more or otherwise material to the financial
<PAGE>
15
condition, results of operations or prospects of the Borrower and the
Restricted Subsidiaries taken as a whole.
"Material Subsidiary" means, at any time, a Subsidiary of the
Borrower having at least 5% of the total Consolidated assets of the
Borrower and its Subsidiaries (determined as of the last day of the
most recent fiscal quarter of the Borrower) or at least 5% of the total
Consolidated revenues or net income of the Borrower and its
Subsidiaries for the 12-month period ending on the last day of the most
recent fiscal quarter of the Borrower.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset by any Person, the aggregate
amount of cash received from time to time (whether as initial
consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a)
reasonable and customary brokerage commissions, underwriting fees and
discounts, legal fees, finder's fees and other similar fees and
commissions, (b) the amount of taxes payable in connection with or as a
result of such transaction and (c) the amount of any Debt that, by the
terms of the agreement or instrument governing such Debt (other than,
in any case, the Senior Notes and the Senior Note Indenture), is
required to be repaid upon such disposition, in each case to the
extent, but only to the extent, that the amounts so deducted are, at
the time of receipt of such cash, actually paid to a Person that is not
an Affiliate of such Person or the Borrower or Sprint or any Affiliate
of the Borrower or Sprint and are properly attributable to such
transaction or to the asset that is the subject thereof.
"Non-hostile Acquisition" means any acquisition by the
Borrower or any of its Subsidiaries of a Person, so long as (x) the
board of directors (or other governing body) of such Person shall have
approved such acquisition at the time such acquisition is first
<PAGE>
16
publicly announced, (y) if such Person shall have been soliciting bids
for its acquisition, the board of directors (or other governing body)
of such Person shall not have determined either to accept no offer or
to accept an offer other than an offer by the Borrower or any of its
Subsidiaries or (z) if such Person shall not have been soliciting bids
for its acquisition or if the board of directors (or other governing
body) of such Person shall have solicited bids for its acquisition but
shall have initially determined either to accept no offer or to accept
an offer other than an offer by the Borrower or any of its
Subsidiaries, in each case the existence, amount and availability for
the acquisition of such Person of the Commitments hereunder shall not
have been disclosed, orally or in writing, until after such time as the
board of directors (or other governing body) of such Person shall have
approved such acquisition by the Borrower or any of its Subsidiaries
and so long as, in any case, such acquisition is otherwise permitted
hereunder.
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a)(i).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(e). Without
limiting the generality of the foregoing, the Obligations of the
Borrower under this Agreement and the Notes include (a) the obligation
to pay principal, interest, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by the
Borrower under this Agreement or any Note and (b) the obligation of the
Borrower to reimburse any amount in respect of any of the foregoing
that any Lender, in its sole discretion, may elect to pay or advance on
behalf of the Borrower.
"Original Effective Date" means March 7, 1996.
"Other Taxes" has the meaning specified in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
<PAGE>
17
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 60
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; (d) pledges or deposits to secure the
performance of bids, government contracts, leases (other than
Capitalized Leases), surety and appeal bonds and other similar
obligations, in each case incurred in the ordinary course of business
(exclusive of obligations for payment of borrowed money) and (e)
easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property
for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the lowest rating
that has been most recently announced by S&P or by Moody's, as the case
may be, for any class of non-credit enhanced long-term senior unsecured
debt issued by the Borrower. For purposes of the foregoing, (a) if only
one of S&P and Moody's shall have in effect a Public Debt Rating as a
result of events beyond the Borrower's control, the Applicable Margin
and the Applicable Percentage shall be determined by reference to the
available rating, and if only one of S&P and Moody's shall have in
effect a Public Debt Rating for any other reason, the Applicable Margin
and Applicable Percentage will be set in accordance with Level 6 under
the definition of "Applicable Margin" or "Applicable Percentage", as
the case may be; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin and the Applicable Percentage
will be set in accordance with Level 6 under the definition of
"Applicable Margin" or "Applicable Percentage", as the case may be; (c)
if any rating established by S&P or Moody's shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (d) if
S&P or Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Moody's,
as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
<PAGE>
18
"Reference Banks" means Citibank, BankAmerica, TD Bank and
Chase.
"Register" has the meaning specified in Section 8.07(c).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Revolving Credit Advances owing to Lenders, or, if no such
principal amount is then outstanding, Lenders having at least a
majority in interest of the Commitments.
"Responsible Officer" means any officer of the Borrower (other
than regional vice presidents and any other regional officer).
"Restricted Subsidiaries" means, as of the Effective Date, the
Subsidiaries of the Borrower listed on Schedule 4.01(b) and thereafter
all other Subsidiaries of the Borrower other than the Unrestricted
Subsidiaries, provided, however, that no Restricted Subsidiary shall be
a Subsidiary of an Unrestricted Subsidiary.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender, in substantially the form
of Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances
made by such Lender.
"Rights Agreement" means the Rights Agreement dated as of
March 5, 1996, among the Borrower and Chemical Bank, as Rights Agent,
as in effect on the date hereof.
"Rolling Period" means, as at any date of determination, the
period of the four fiscal quarters of the Borrower then most recently
ended.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies.
"Senior Notes" means the senior unsecured notes of the
Borrower due 2003 and 2006 issued pursuant to the Senior Note
Indenture.
<PAGE>
19
"Senior Note Indenture" means the Indenture dated as of March
7, 1996, between the Borrower and Citibank, as trustee, as amended,
supplemented or otherwise modified from time to time in accordance with
its terms, to the extent permitted in accordance with this Agreement.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Spin-Off" means the pro rata tax-free distribution of all of
the shares of Voting Stock of the Borrower by Sprint to the holders of
Sprint's common stock.
"Sprint" means Sprint Corporation, a Kansas corporation.
"Subordinated Notes" means the $122,000,000 in initial
aggregate principal amount of subordinated non-negotiable promissory
notes due 2006, dated November 1, 1996, issued by the Borrower in
connection with its acquisition of Independent Cellular Network, Inc.
and affiliated companies, together with any agreement or instrument
pursuant to which such subordinated notes were issued.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the right or power to direct, in the case of any entity of which such
Person or any of its Subsidiaries is a general partner, or both the
beneficial ownership of and the right or power to direct, in any other
case, such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"Surviving Debt" has the meaning specified in Section
5.02(d)(i)(C).
"Taxes" has the meaning specified in Section 2.13(a).
<PAGE>
20
"Termination Date" means the earlier of the date that is the
five-year anniversary of the Effective Date and the date of termination
in whole of the Commitments pursuant to Section 2.05 or 6.01.
"Unrestricted Subsidiaries" means such Subsidiaries of the
Borrower as the Borrower shall designate as an Unrestricted Subsidiary
in writing to the Agents and the Lenders in accordance with the terms
of Section 5.02(k), and any Subsidiaries thereof; provided, however,
that no such Subsidiary shall own or hold any licenses, patents,
trademarks or intellectual property other than such as may be necessary
to the conduct of the business of such Subsidiary, and provided further
that any such items as may be shared with any Restricted Subsidiary
shall be owned and held by such Restricted Subsidiary.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. (a) Effective as
of the Effective Date, each Existing Lender hereby sells and assigns all of its
rights in and to, and all of its obligations under, each Existing Advance owing
to it and the Existing Commitment held by it to the Initial Lenders and each
Initial Lender hereby purchases and assumes, pro rata based on such Initial
Lender's Commitment, all of the Existing Lenders' rights in and to, and all of
their obligations under, the Existing Advances and the Existing Commitments, the
aggregate
<PAGE>
21
amount of which is set forth opposite such Existing Lender's name on Schedule
8.12 hereto. In furtherance of the foregoing, each Initial Lender hereby
authorizes and directs the Administrative Agent to accept the Assignment
Agreement on behalf of such Initial Lender.
(b) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Credit Advances to the Borrower from
time to time on any Business Day during the period from the Effective Date until
the Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the signature
pages hereof or, if such Lender has entered into any Assignment and Acceptance,
set forth for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(c), as such amount may be reduced pursuant to Section
2.05 (such Lender's "Commitment"), provided that the aggregate amount of the
Commitments of Lenders shall be deemed used from time to time to the extent of
the aggregate amount of the Competitive Bid Advances then outstanding and such
deemed use of the aggregate amount of the Commitments shall be allocated among
the Lenders ratably according to their respective Commitments (such deemed use
of the aggregate amount of the Commitments being a "Competitive Bid Reduction").
Each Revolving Credit Borrowing shall be in an aggregate amount of $15,000,000
or an integral multiple of $1,000,000 in excess thereof (or, if less, an
aggregate amount equal to the amount by which the aggregate amount of a proposed
Competitive Bid Borrowing requested by the Borrower exceeds the aggregate amount
of Competitive Bid Advances offered to be made by the Lenders and accepted by
the Borrower in respect of such Competitive Bid Borrowing, if such Competitive
Bid Borrowing is made on the same date as such Revolving Credit Borrowing) and
shall consist of Revolving Credit Advances of the same Type made on the same day
by the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Commitment, the Borrower may borrow under this Section
2.01, prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than 12:00
Noon (New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, or not later than 11:00 A.M. (New York
City time) on the same Business Day as the date of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting of Base Rate
Advances, by the Borrower to the Administrative Agent, which shall give to each
Lender prompt notice thereof by telecopier or telex. Each such notice of a
Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be
by telephone, confirmed immediately in writing, or telecopier or telex, in
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Revolving Credit Borrowing, (ii) Type of Advances comprising
such Revolving Credit Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance. Each
Lender shall, before 12:00 Noon (New York City time) on the date of such
Revolving Credit Borrowing, make available for the account of
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22
its Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of such
Revolving Credit Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will promptly make such funds available to the
Borrower at an account maintained by the Borrower at a commercial bank organized
under the laws of the United States, or any State thereof, and designated by the
Borrower for such purpose.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Revolving Credit Borrowing if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 or
2.12 and (ii) Eurodollar Rate Advances may not be outstanding as part of more
than 12 separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure by the Borrower to fulfill on or before the date specified in such
Notice of Revolving Credit Borrowing for such Revolving Credit Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Revolving Credit Advance to be made by such Lender as
part of such Revolving Credit Borrowing when such Revolving Credit Advance, as a
result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Revolving Credit Borrowing (or in the
case of a Revolving Credit Borrowing consisting of Base Rate Advances, prior to
12:00 Noon (New York City time) on the date of any Revolving Credit Borrowing)
that such Lender will not make available to the Administrative Agent such
Lender's ratable portion of such Revolving Credit Borrowing, the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to Revolving Credit
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall repay to the
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23
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Revolving Credit Advance as part of such Revolving
Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring three days prior to the Termination
Date in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, (x) the aggregate amount of the Competitive Bid
Advances of all Lenders then outstanding shall not exceed the aggregate amount
of $500,000,000, (y) the aggregate amount of the Competitive Bid Advances of any
one Lender then outstanding shall not exceed $50,000,000 and (z) the aggregate
amount of the Advances then outstanding shall not exceed the aggregate amount of
the Commitments of Lenders computed without regard to any Competitive Bid
Reduction.
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Administrative Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a "Notice
of Competitive Bid Borrowing"), in substantially the form of Exhibit
B-2 hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, Interest Period, or in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances,
maturity date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date may not be
earlier than the date occurring 7 days after the date of such
Competitive Bid Borrowing or later than the earlier of (I) 180 days
after the date of such Competitive Bid Borrowing and (II) the
Termination Date), (y) interest payment date or dates relating thereto,
and (z) other terms (if any) to be applicable to such Competitive Bid
Borrowing, not later than 10:00 A.M. (New York City time) (A) at least
four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall specify in the Notice of Competitive
Bid Borrowing that the rates of interest to be offered by the Lenders
shall be fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as "Fixed Rate
Advances") and (B) at least five Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall instead
specify in the Notice of Competitive Bid Borrowing that the rates
<PAGE>
24
of interest be offered by the Lenders are to be based on the LIBO Rate
(the Advances comprising such Competitive Bid Borrowing being referred
to herein as "LIBO Rate Advances"). The Administrative Agent shall in
turn promptly notify each Lender of each request for a Competitive Bid
Borrowing received by it from the Borrower by sending such Lender a
copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Administrative Agent (which shall give
prompt notice thereof to the Borrower), before 9:30 A.M. (New York City
time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
and before 10:00 A.M. (New York City time) on the third Business Day
prior to the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
of the minimum amount and maximum amount of each Competitive Bid
Advance which such Lender would be willing to make as part of such
proposed Competitive Bid Borrowing (which amounts may, subject to the
proviso to the first sentence of this Section 2.03(a), exceed such
Lender's Commitment, if any), the rate or rates of interest therefor
and such Lender's Applicable Lending Office with respect to such
Competitive Bid Advance; provided that, if the Administrative Agent in
its capacity as a Lender shall, in its sole discretion, elect to make
any such offer, it shall notify the Borrower of such offer at least 30
minutes before the time and on the date on which notice of such
election is to be given to the Administrative Agent by the other
Lenders. If any Lender shall elect not to make such an offer, such
Lender shall so notify the Administrative Agent, before 10:00 A.M. (New
York City time) on the date on which notice of such election is to be
given to the Administrative Agent by the other Lenders, and such Lender
shall not be obligated to, and shall not, make any Competitive Bid
Advance as part of such Competitive Bid Borrowing; provided that the
failure by any Lender to give such notice shall not cause such Lender
to be obligated to make any Competitive Bid Advance as part of such
proposed Competitive Bid Borrowing. In the event that a Lender elects
hereunder to make one or more Competitive Bid Advances, such Lender
agrees to comply with the proviso in the first sentence of this Section
2.03(a).
(iii) The Borrower shall, in turn, before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances, and before 11:00 A.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid Borrowing in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
<PAGE>
25
(x) cancel such Competitive Bid Borrowing by giving
the Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Administrative Agent
of the amount of each Competitive Bid Advance (which amount
shall be equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to the
Borrower by the Administrative Agent on behalf of such Lender
for such Competitive Bid Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such Competitive
Bid Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the Administrative
Agent notice to that effect. The Borrower shall accept the
offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of
interest offered by such Lenders. If two or more Lenders have
offered the same interest rate, the amount to be borrowed at
such interest rate will be allocated by the Administrative
Agent among such Lenders in proportion to the maximum amount
that each such Lender offered at such interest rate.
(iv) If the Borrower notifies the Administrative Agent that
such Competitive Bid Borrowing is cancelled pursuant to paragraph
(iii)(x) above, the Administrative Agent shall give prompt notice
thereof to the Lenders and such Competitive Bid Borrowing shall not be
made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Administrative Agent shall in turn promptly notify (A) each Lender that
has made an offer as described in paragraph (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or not
any offer or offers made by such Lender pursuant to paragraph (ii)
above have been accepted by the Borrower, (B) each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, of the amount of each Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing, and (C) each
Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, upon receipt, that the Administrative Agent
has received forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing
shall, before 12:00 Noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding sentence
or any later time when such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day
<PAGE>
26
funds, such Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the Borrower at
the Agent's address referred to in Section 8.02. Promptly after each
Competitive Bid Borrowing, the Administrative Agent will notify each
Lender of the amount of the Competitive Bid Borrowing, the consequent
deemed use of the aggregate amount of the Commitments as a result
thereof and the dates upon which such Competitive Bid Borrowing
commenced and will terminate.
(vi) If the Borrower notifies the Administrative Agent that it
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, such notice of acceptance shall
be irrevocable and binding on the Borrower. The Borrower shall
indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure by the Borrower to fulfill on or
before the date specified in the related Notice of Competitive Bid
Borrowing for such Competitive Bid Borrowing the applicable conditions
set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Competitive Bid Advance to be made
by such Lender as part of such Competitive Bid Borrowing when such
Competitive Bid Advance, as a result of such failure, is not made on
such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $15,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower shall
be in compliance with the limitation set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Administrative Agent for
the account of each Lender that has made a Competitive Bid Advance, on the
maturity date of each Competitive Bid Advance (such maturity date being that
specified by the Borrower for repayment of such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance. The Borrower shall have no right to prepay any principal amount of
any Competitive Bid Advance unless, and then only on the terms, specified by the
Borrower for such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above,
<PAGE>
27
or unless separately agreed between the Borrower and any Lender that has made a
Competitive Bid Advance, and set forth in the Competitive Bid Note evidencing
such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by the Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above, as provided in the Competitive Bid Note
evidencing such Competitive Bid Advance. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance owing
to a Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance under the terms of
the Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing,
the Borrower shall pay to the Administrative Agent for its own account a
non-refundable fee as may from time to time be agreed between the Borrower and
the Administrative Agent.
SECTION 2.04. Fees. (a) Commitment Fee. The Borrower agrees to
pay to the Administrative Agent for the account of each Lender (other than the
Designated Bidder) a commitment fee on the average daily unused portion of such
Lender's Commitment (computed without giving effect to any Competitive Bid
Reduction) from the Effective Date in the case of each Initial Lender and from
the effective date specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender until the Termination Date
at a rate per annum equal to the Applicable Percentage in effect from time to
time, payable in arrears quarterly on the last day of each March, June,
September and December, commencing December 31, 1997, and on the Termination
Date.
(b) Administrative Agent's Fees. The Borrower agrees to pay to
the Administrative Agent for its own account such fees as may from time to time
be agreed between the Borrower and the Administrative Agent.
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28
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower shall have the right, upon at least three Business Days'
notice to the Administrative Agent, permanently to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate amount
of $15,000,000 or an integral multiple of $1,000,000 in excess thereof, and
provided further that the aggregate amount of the Commitments of the Lenders
shall not be reduced to an amount that is less than the aggregate principal
amount of the Competitive Bid Advances then outstanding.
(b) Mandatory. The Commitments shall be automatically and
permanently reduced on a pro rata basis on each date on which any prepayment is
required to be made pursuant to Section 2.10(b) in an amount equal to the
applicable Reduction Amount (as defined in Section 2.10(b)).
SECTION 2.06. Repayment of Revolving Credit Advances . The
Borrower shall repay to the Administrative Agent for the ratable account of the
Lenders on the Termination Date the aggregate principal amount of the Revolving
Credit Advances made to the Borrower and then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing to each Lender from the date of
such Revolving Credit Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
<PAGE>
29
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on (i) the
unpaid principal amount of each Revolving Credit Advance owing to each Lender,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above
and (ii) to the fullest extent permitted by law, the amount of any interest, fee
or other amount payable hereunder (without duplication as to clause (i) above)
that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on Base Rate Advances
pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Administrative Agent timely information for the
purpose of determining each Eurodollar Rate and each LIBO Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Administrative Agent
shall give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes of Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance, and (ii) the
obligation of the Lenders to make, or to Convert Revolving Credit Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest
<PAGE>
30
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
(e) If fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar Rate or
LIBO Rate for any Eurodollar Rate Advances or LIBO Rate Advances, as the case
may be,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances or LIBO Rate Advances, as the case
may be,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base Rate
Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances, or to Convert Revolving Credit Advances
into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 12:00 Noon (New York City time) on the third
Business Day prior to the date of the proposed Conversion and subject to the
provisions of Sections 2.08 and 2.12, Convert all Revolving Credit Advances of
one Type comprising the same Revolving Credit Borrowing into Revolving Credit
Advances of the other Type; provided, however, that any Conversion of Eurodollar
Rate Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.01 and no Conversion of any Revolving
Credit Advances shall result in more separate Revolving Credit Borrowings than
permitted under Section 2.02(b). Each such notice of a Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii)
the Revolving Credit Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
each such Advance. Each notice of Conversion shall be irrevocable and binding on
the Borrower.
SECTION 2.10. Prepayments of Revolving Credit Advances. (a)
The Borrower may, upon at least three Business Days' notice, in the case of
Eurodollar Rate Advances, and same day notice given not later than 12:00 Noon
(New York City time) on any Business Day, in the case of Base Rate Advances, to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall,
<PAGE>
31
prepay the outstanding principal amount of the Revolving Credit Advances
comprising part of the same Revolving Credit Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $15,000,000 or an integral multiple
of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
(b) The Borrower shall, on the date of receipt (or such later
date as may be specified in Section 5.02(e)) of the Net Cash Proceeds by the
Borrower or any of its Restricted Subsidiaries from the sale, lease, transfer or
other disposition of any assets of the Borrower or any of its Restricted
Subsidiaries (other than any sale, lease, transfer or other disposition of
assets pursuant to clause (i), (ii), (iii), (iv), (v) or (viii) of Section
5.02(e)), prepay an aggregate principal amount of the Advances comprising part
of the same Borrowings equal to the amount of such Net Cash Proceeds or such
lesser amount as may be required to be prepaid under Section 5.02(e)(vi), (vii)
or (ix) (the amount of such Net Cash Proceeds or such lesser amount being the
"Reduction Amount").
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as contemplated by Section 2.11(c) as to the amount of such
increased cost, setting forth a reasonable basis for the calculation thereof,
submitted to the Borrower and the Administrative Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to the Administrative
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32
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate as contemplated by
Section 2.11(c) as to such amounts submitted to the Borrower and the
Administrative Agent by such Lender, setting forth a reasonable basis for the
calculation thereof, shall be conclusive and binding for all purposes, absent
manifest error.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, that will entitle such Lender to compensation pursuant to this
Section and will use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if such designation would avoid the need for, or reduce the amount of,
such compensation and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. In determining such amount, such
Lender may use any reasonable averaging and attribution methods. A certificate
of any Lender claiming compensation under this Section and setting forth in
reasonable detail the additional amount or amounts to be paid to it hereunder
and the basis for the calculation thereof shall be conclusive in the absence of
manifest error.
SECTION 2.12. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
LIBO Rate Advances or to fund or maintain Eurodollar Rate Advances or LIBO Rate
Advances hereunder, (i) each Eurodollar Rate Advance or LIBO Rate Advances, as
the case may be, will automatically, upon such demand, Convert into a Base Rate
Advance or an Advance that bears interest at the rate set forth in Section
2.07(a)(i), as the case may be, and (ii) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances, or to Convert Revolving Credit
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Administrative
Agent at the Administrative Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or commitment fees ratably
(other than amounts payable pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to
the Lenders for the account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount payable to any Lender to
such Lender for the account of its
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33
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due. Each Lender agrees
promptly to notify the Borrower after any such charge, provided that the failure
to give such notice shall not affect the validity of such charge.
(c) All computations of interest based on the Base Rate under
clause (a) or (b) of the definition thereof shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the LIBO Rate (unless otherwise specified in
the applicable Notice of Competitive Bid Borrowing), the Eurodollar Rate or the
Federal Funds Rate (including in connection with clause (c) of the definition of
"Base Rate") and of commitment fees shall be made by the Administrative Agent on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or commitment fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount
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34
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Subject to Sections 2.14(e) and (f),
any and all payments by the Borrower hereunder or under the Notes shall be made,
in accordance with Section 2.13, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and each Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of overall net income taxes, by the United
States or any political subdivision thereof, or by the jurisdiction under the
laws of which such Lender or such Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of overall net
income taxes, by the jurisdiction of such Lender's Applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). Subject
to Sections 2.14(e) and (f), if the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Note to
any Lender or any such Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
such Agent (as the case may be) receives an amount equal 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 taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrower shall indemnify each Lender and each Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
taxes imposed by any jurisdiction on amounts payable under this Section 2.14)
imposed on or paid by such Lender or such Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender or such Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or
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35
a certified copy of a receipt evidencing payment thereof. In the case of any
payment hereunder or under the Notes by or on behalf of the Borrower through an
account or branch outside the United States or by or on behalf of the Borrower
by a payor that is not a United States person, if the Borrower determines that
no Taxes are payable in respect thereof, the Borrower shall furnish, or shall
cause such payor to furnish, to the Administrative Agent, at such address, an
opinion of counsel acceptable to the Administrative Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and subsection
(e), the terms "United States" and "United States person" shall have the
meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as reasonably requested in
writing by the Borrower (but only so long as such Lender remains lawfully able
to do so), shall provide each of the Administrative Agent and the Borrower with
two original Internal Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the
forms provided by a Lender at the time such Lender first becomes a party to this
Agreement indicate a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date.
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above
because the Borrower has not requested in writing such form subsequent to the
date on which such Lender became a Lender hereunder), such Lender shall not be
entitled to indemnification under Section 2.14(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; provided, however, that
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
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36
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.11, 2.12 or 8.04(c)) in excess of
its ratable share of payments on account of the Revolving Credit Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for general corporate purposes of the Borrower and its Subsidiaries,
including, without limitation, to finance Investments permitted under Section
5.02(g) and for Non-hostile Acquisitions.
SECTION 2.17. Substitution of Lenders. In the event that (x)
any Lender, pursuant to Section 2.11, 2.12 or 2.14 hereof, incurs any increased
costs, receives a reduced payment or is required to make any payment for which
such Lender demands compensation pursuant to such Section, which compensation
increases the effective lending rate of such Lender in excess of the effective
lending rate of the other Lenders, and such Lender has not mitigated such
increased costs, reduced payment or additional payment within 60 days after
receipt by such Lender from the Borrower of a written notice that such Lender's
effective lending rate has so exceeded the effective lending rate of the other
Lenders, or (y) any Lender has determined pursuant to Section 2.08 hereof that
it may not make or maintain all or certain of its Eurodollar Rate Advances at
such time (and the other Lenders shall continue to be able to make or maintain
their corresponding Eurodollar Rate Advances at such time) and the inability of
such Lender to
<PAGE>
37
make or maintain such Eurodollar Rate Advances continues for 60 or more days
after the receipt by such Lender from the Borrower of written notice of such
inability and that the Borrower requests that such Lender alleviate such
inability, then and in any such event, the Borrower may substitute for such
Lender (the "Affected Lender") another financial institution, which financial
institution shall be an Eligible Assignee, for such Lender to assume the
Commitment of such Affected Lender and to purchase the Note of such Affected
Lender hereunder in accordance with Section 8.07. Such assumption and purchase
shall be effected by execution and delivery by such Affected Lender and such
replacement Lender of an Assignment and Acceptance, and shall otherwise be made
in the manner described in Section 8.07, provided that the Affected Lender's
obligation to so assign and sell its Commitment and Note shall be subject to the
condition that all amounts owing to such Affected Lender (including, without
limitation, principal, accrued and unpaid interest and fees, and all amounts
owing to such Affected Lender under Sections 2.11, 2.12, 2.14 and 8.04) shall
have been paid in full.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1996.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(c) The Lenders shall have received the Information Package,
and be satisfied with the Consolidated financial statements of the
Borrower and its Subsidiaries for the six months ended June 30, 1997.
(d) Nothing shall have come to the attention of the Lenders
during the course of their due diligence investigation to lead them to
believe that the Information Package was or has become misleading,
incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such
access to the management, records, books of account, contracts and
properties of the Borrower and its Subsidiaries as they shall have
reasonably requested.
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38
(e) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders in their reasonable judgment) and shall
remain in effect, and no law or regulation shall be applicable in the
reasonable judgment of the Lenders that restrains, prevents or imposes
materially adverse conditions upon the transactions contemplated
hereby.
(f) Since the execution of the First Amended and Restated
Credit Agreement by the Lenders, there shall have been no change in any
agreement or instrument listed on Schedule 3.01(f) to the First Amended
and Restated Credit Agreement, a copy of which is attached hereto as
Schedule 3.01(f), that, in the reasonable judgment of the Lenders,
adversely affects the Borrower or the Lenders, other than changes
reasonably acceptable to the Lenders.
(g) The Borrower shall have paid all accrued fees and expenses
of the Agents (including the accrued fees and expenses of counsel to
the Administrative Agent) under the First Amended and Restated Credit
Agreement and under this Agreement and all accrued fees of the Initial
Lenders and the Existing Lenders (including, without limitation,
upfront fees and commitment fees).
(h) The Borrower shall have given each Agent at least three
Business Days' prior written notice as to the proposed Effective Date.
(i) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account
of each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(j) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except for the
Revolving Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the
Lenders, respectively.
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39
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower approving this Agreement and the
Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
(iv) A copy of the most recent letters from each of
S&P, Moody's and Duff & Phelps, certified by the chief
financial officer of the Borrower, confirming the Public Debt
Rating then in effect.
(v) A favorable opinion of Kevin Gallagher, General
Counsel of the Borrower, substantially in the form of Exhibit
D hereto and as to such other matters as any Lender through
the Administrative Agent may reasonably request.
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
(k) The Administrative Agent shall have received on or before
the Effective Date an executed copy of the Assignment Agreement, in form and
substance satisfactory to the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance
pursuant to Sections 2.01(b) and 2.02 on the occasion of each Revolving Credit
Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and on the date of such Revolving Credit Borrowing (a) the
following statements shall be true (and each of the giving of the applicable
Notice of Revolving Credit Borrowing and the acceptance by the Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in Section
4.01 are correct on and as of the date of such Revolving Credit
Borrowing, before and after giving effect to such Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and
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40
(ii) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Administrative Agent shall have received the
written confirmatory Notice of Competitive Bid Borrowing with respect thereto,
(ii) on or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Administrative Agent shall have received a
Competitive Bid Note payable to the order of such Lender for each of the one or
more Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal amount
of the Competitive Bid Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such Competitive Bid Advance in accordance with
Section 2.03, and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Competitive Bid Borrowing and the acceptance by the Borrower of the
proceeds of such Competitive Bid Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Competitive Bid Borrowing such
statements are true):
(a) the representations and warranties contained in Section
4.01 are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and
(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.04. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Administrative Agent shall
promptly notify the Agents and the Lenders of the occurrence of the Effective
Date.
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41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and (ii) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and
other approvals and all intellectual property) to own or lease and
operate its properties and to carry on its business as now conducted
and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Restricted Subsidiaries showing as of the Original
Effective Date (as to each such Restricted Subsidiary) the jurisdiction
of its incorporation or organization, the number of shares of each
class of capital stock authorized (if applicable), and the number
outstanding, as of the Original Effective Date and the percentage of
the outstanding shares (or other ownership interest, as applicable) of
each such class owned (directly or indirectly) by the Borrower and the
number of shares (or other ownership interest, as applicable) covered
by all outstanding options, warrants, rights of conversion or purchase
and similar rights as of the Original Effective Date. Each Restricted
Subsidiary (i) is a corporation duly organized, validly existing and in
good standing or a partnership or joint venture validly organized and
in good standing under the laws of the jurisdiction of its
incorporation or organization and (ii) has all requisite corporate
power and authority (including, without limitation, all governmental
licenses, permits and other approvals) to own or lease and operate its
properties and to carry on its business as now conducted and as
proposed to be conducted except where the failure to have such
authority would not be reasonably likely to have a Material Adverse
Effect. As of the Effective Date, there are no Unrestricted
Subsidiaries.
(c) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or bylaws or (ii) law or any
material contractual restriction binding on the Borrower or to which
the Borrower is subject. Neither the Borrower nor any of the Borrower's
Subsidiaries nor, to the best of the Borrower's knowledge, any other
party to any Material Contract is in breach of such Material Contract,
except where such breach would not be reasonably likely to have a
Material Adverse Effect.
<PAGE>
42
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Borrower of this Agreement or the Notes or for
the consummation of the transactions contemplated hereby, except for
those authorizations, approvals, actions, notices and filings listed on
Schedule 4.01(d) hereto, all of which have been duly obtained, taken,
given or made and are in full force and effect.
(e) This Agreement has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their
respective terms, subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally.
(f) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1996, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Ernst & Young LLP, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at
June 30, 1997, and the related Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the 6 months then
ended, duly certified by the chief financial officer of the Borrower,
copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at June 30, 1997, and
said statements of income and cash flows for the 6 months then ended,
to year-end audit adjustments, the Consolidated financial condition of
the Borrower and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 1996,
there has been no Material Adverse Change.
(g) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that
(i) would be reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of
this Agreement or any Note or the consummation of the transactions
contemplated hereby.
(h) The Consolidated forecasted balance sheets, income
statements and cash flows statements of the Borrower and its
Subsidiaries delivered to the Lender Parties in the Information
Memorandum or the Information Package (collectively, the "Projections")
were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in the light of conditions
existing at the time of delivery of
<PAGE>
43
such forecasts, and represented, at the time of delivery and, in the
case of the Projections contained in the Information Memorandum, at the
time of the Original Effective Date, and in the case of the Projections
contained in the Information Package, at the time of the Effective
Date, the Borrower's reasonable estimate of its future financial
performance but without any assurance by the Borrower of the future
achievement of such performance; none of the Information Memorandum,
the Information Package or any other information, exhibits or reports,
taken as a whole, furnished by the Borrower to any Agent or any Lender
in connection with the negotiation of this Agreement and the Notes or
pursuant to the terms hereof (other than the Projections) contained at
the time they were furnished any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock (other than, to
the extent applicable, in connection with the acquisitions referred to
in Section 4.01(j)).
(j) No proceeds of any Advance will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of
the Securities Exchange Act of 1934 (other than, to the extent
applicable, in connection with a Non-hostile Acquisition or in
connection with the purchase, redemption or other acquisition for value
of any shares of the capital stock of the Borrower or any options to
acquire any such shares, now or hereafter outstanding to the extent
otherwise permitted hereunder).
(k) Following application of the proceeds of each Advance, not
more than 25% of the value of the assets (either of the Borrower only
or of the Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(a) or 5.02(e) or subject to
any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Debt
and within the scope of Section 6.01(d) will be margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System). For purposes of this Section 4.01(k), "assets"
of the Borrower or any of its Subsidiaries includes, without
limitation, the treasury stock of the Borrower that has not been
retired.
(l) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(m) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 90% and
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44
there has been no material adverse change in the funding status of any
such Plan since such date.
(n) Neither the Borrower nor any ERISA Affiliate has incurred
or is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan.
(o) Neither the Borrower nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the
meaning of Title IV of ERISA.
(p) Except as set forth in the financial statements referred
to in this Section 4.01 and in Section 5.01, the Borrower and its
Subsidiaries have no material liability with respect to "expected post
retirement benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(q) The operations and properties of the Borrower and each of
its Subsidiaries comply with all applicable Environmental Laws and
Environmental Permits except where the failure to comply would not be
reasonably likely to have a Material Adverse Effect, all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs except where the
failure to be so resolved would not be reasonably likely to have a
Material Adverse Effect, and, to the best knowledge of the Borrower, no
event has occurred or condition exists that would be reasonably likely
to (i) form the basis of an Environmental Action against the Borrower
or any of its Subsidiaries or any of their properties that would be
reasonably likely to have a Material Adverse Effect or (ii) cause any
such property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law that
would be reasonably likely to have a Material Adverse Effect.
(r) None of the properties currently or formerly owned or
operated by the Borrower or any of its Subsidiaries is listed or
proposed for listing on the National Priorities List under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("NPL") or on the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency ("CERCLIS") or any analogous foreign,
state or local list or, to the knowledge of the Borrower, is adjacent
to any such property; there are no and never have been any underground
or aboveground storage tanks or any surface impoundments, septic tanks,
pits, sumps or lagoons in which Hazardous Materials are being or have
been treated, stored or disposed of on any property currently owned or
operated by the Borrower or any of its Subsidiaries or, to its
knowledge, on any property formerly owned or operated by the Borrower
or any of its Subsidiaries; there is no asbestos or
<PAGE>
45
asbestos-containing material on any property currently owned or
operated by the Borrower or any of its Subsidiaries; and Hazardous
Materials have not been released, discharged or disposed of on any
property currently or formerly owned or operated by the Borrower or any
of its Subsidiaries or, to its knowledge, any adjoining property,
except where the events or conditions giving rise to the listing or
proposed listing of properties or adjacent properties, the presence of
storage tanks, surface impoundments, septic tanks, pits, sumps,
lagoons, asbestos or asbestos-containing material and the release,
discharge or disposal of Hazardous Materials described in this
subsection would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect. For purposes of this
subsection, "knowledge" means the knowledge of any current Responsible
Officer or regional vice president of the Borrower or any current
employee of the Borrower involved in environmental management.
(s) Neither the Borrower nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together
with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at any
site, location or operation, either voluntarily or pursuant to the
order of any governmental or regulatory authority or the requirements
of any Environmental Law that would reasonably be expected to have a
Material Adverse Effect; and all Hazardous Materials generated, used,
treated, handled or stored at or transported to or from any property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries have been disposed of in a manner not reasonably expected
to result in a Material Adverse Effect.
(t) Neither the Borrower nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances nor the application of the proceeds or repayment
thereof by the Borrower, nor the consummation of the other transactions
contemplated hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange Commission
thereunder.
(u) The Spin-Off will not be taxable to the Borrower or Sprint
or any of their Subsidiaries or Affiliates or shareholders.
(v) The common parent of the affiliated group (within the
meaning of Section 1504(a)(1) of the Internal Revenue Code) of which
the Borrower is a member has paid to the Internal Revenue Service or
other taxing authority the full amount that such affiliated group is
required to pay in respect of Federal income tax for all fiscal years
of the Borrower ending on or before December 31, 1995 except any such
taxes which are being contested in good faith and by appropriate
proceedings and for which adequate provision has been made and the
Borrower and its Subsidiaries have received any
<PAGE>
46
amounts payable to them, and have not paid amounts in respect of taxes
(Federal, state, local or foreign) in excess of the amount they are
required to pay, under any tax agreements to which they are a party.
(w) The Borrower and each of its Subsidiaries is in
compliance, in all material respects, with all applicable laws, rules,
regulations and orders, except in any case where the failure to so
comply, either individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Restricted Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws as provided in Section 5.01(j), except in any case where the
failure to so comply, either individually or in the aggregate, would
not be reasonably likely to be materially adverse to the Borrower, its
Restricted Subsidiaries or the Lenders.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Restricted Subsidiaries to pay and discharge, before the same
shall become delinquent, (i) all income and other material taxes,
assessments and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property to the extent not otherwise permitted
under Section 5.02(a); provided, however, that neither the Borrower nor
any of its Restricted Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Restricted Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is customarily carried by companies engaged in
similar businesses and owning similar properties, taking into account
the general areas in which the Borrower or such Restricted Subsidiary
operates.
<PAGE>
47
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Restricted Subsidiaries to preserve and
maintain, its corporate or partnership existence, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that the Borrower and its Restricted Subsidiaries
may consummate any merger or consolidation permitted under Section
5.02(b) or any sale or exchange of assets permitted under Section
5.02(e) and provided further that neither the Borrower nor any of its
Restricted Subsidiaries shall be required to preserve or maintain the
corporate or partnership existence of any Restricted Subsidiary or any
right, permit, license, approval, privilege or franchise if, in the
case of the preservation and maintenance of the corporate or
partnership existence of any Restricted Subsidiary, the Board of
Directors of the entity owning such Restricted Subsidiary or, in any
other case, a Responsible Officer of the Borrower or Restricted
Subsidiary with authority to do so, in his or her reasonable business
judgment, shall determine that the preservation and maintenance thereof
is no longer desirable in the conduct of the business of the Borrower
or such Restricted Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Borrower
or such Restricted Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time (which, so long as no Default shall have occurred and be
continuing, shall be upon reasonable prior telephonic notice), permit
any Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records
and books of account of, and visit the properties of, the Borrower and
any of its Restricted Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Restricted
Subsidiaries with any of their officers and with their independent
certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Restricted
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Restricted Subsidiary
in accordance with generally accepted accounting principles in effect
from time to time.
(g) Maintenance of Properties, Etc. Except as otherwise
permitted by this Agreement, maintain and preserve, and cause each of
its Restricted Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower
<PAGE>
48
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate, other than as set forth on Schedule 5.01(h)
hereto.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
fiscal year of the Borrower, Consolidated balance sheets of
the Borrower and its Subsidiaries and of the Unrestricted
Subsidiaries as of the end of such quarter and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries and of the Unrestricted Subsidiaries for the
period commencing at the end of the previous fiscal year and
ending with the end of such quarter, duly certified (subject
to year-end audit adjustments) by the chief financial officer
of the Borrower as having been prepared in accordance with
generally accepted accounting principles and certificates of
the chief financial officer of the Borrower as to (i) a
statement of reconciliation setting forth the accounting
adjustments used in the Consolidation of the financial
statements of the Unrestricted Subsidiaries with those of the
Borrower and its Subsidiaries and (ii) compliance with the
terms of this Agreement and setting forth in reasonable detail
the calculations necessary to demonstrate compliance with
Section 5.03, provided that, in the event of any change in
GAAP used in the preparation of such financial statements of
the Borrower and its Restricted Subsidiaries, the Borrower
shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing Consolidated balance sheets of
the Borrower and its Subsidiaries and of the Unrestricted
Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries and of the Unrestricted
Subsidiaries for such fiscal year, in each case accompanied by
an opinion acceptable to the Required Lenders by Ernst & Young
LLP or other independent public accountants acceptable to the
Required Lenders, provided that, in the event of any change in
GAAP used in the preparation of such financial statements of
the Borrower and its Restricted Subsidiaries, the Borrower
shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP and certificates
of the chief financial officer of the Borrower as to (i) the
identity of all Restricted Subsidiaries, the percentage of
outstanding shares of each class of capital stock (or other
ownership interest) directly or indirectly owned by the
Borrower, and the total assets, intercompany Debt, Debt owing
to third parties and equity, for
<PAGE>
49
each such Subsidiary as at the end of the fiscal year then
ended and total service revenues, equipment sales and EBITDA
for each such Subsidiary for the fiscal year then ended, (ii)
a statement of reconciliation setting forth the accounting
adjustments used in the Consolidation of the financial
statements of the Unrestricted Subsidiaries with those of the
Borrower and its Subsidiaries and (iii) compliance with the
terms of this Agreement and setting forth in reasonable detail
the calculations necessary to demonstrate compliance with
Section 5.03;
(iii) as soon as possible and in any event within
five Business Days after a Responsible Officer of the Borrower
or any Restricted Subsidiary knows or reasonably should know
of the occurrence of each Default continuing on the date of
such statement, a statement of the chief financial officer of
the Borrower setting forth details of such Default and the
action that the Borrower has taken and proposes to take with
respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that the Borrower sends to its security
holders in a general distribution, and copies of all reports
and effective registration statements that the Borrower or any
Subsidiary files with the Securities and Exchange Commission
or any national securities exchange (other than registration
statements on Form S-8 and Annual Reports on Form 11-K);
(v) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(g)(i) or
(ii) of which a Responsible Officer of the Borrower or any
Restricted Subsidiary has or reasonably should have knowledge;
(vi) (x) promptly and in any event within 10 days
after the Borrower or any ERISA Affiliate knows or has reason
to know that any ERISA Event has occurred, a statement of the
chief financial officer of the Borrower describing such ERISA
Event and the action, if any, that the Borrower or such ERISA
Affiliate has taken and proposes to take with respect thereto
and (y) on the date any records, documents or other
information must be furnished to the PBGC with respect to any
Plan pursuant to Section 4010 of ERISA, a copy of such
records, documents and information;
(vii) promptly and in any event within two Business
Days after receipt thereof by the Borrower or any ERISA
Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed
to administer any Plan;
<PAGE>
50
(viii) promptly and in any event within 30 days after
the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) with respect to each Plan;
(ix) promptly and in any event within five Business
Days after receipt thereof by the Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV
of ERISA, of any such Multiemployer Plan or (C) the amount of
liability incurred, or that may be incurred, by the Borrower
or any ERISA Affiliate in connection with any event described
in clause (A) or (B);
(x) promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any
noncompliance by the Borrower or any of its Subsidiaries with
any Environmental Law or Environmental Permit that would
reasonably be expected to have a Material Adverse Effect;
(xi) promptly after the designation thereof, notice
of the designation of any Subsidiary of the Borrower as an
Unrestricted Subsidiary;
(xii) promptly and in any event within five Business
Days after the Borrower obtains knowledge of any such change,
notice that S&P or Moody's has made any change in the Public
Debt Rating;
(xiii) promptly after the occurrence thereof, notice
of any regulatory action or change or any change in, amendment
to or waiver of any term of any Material Contract that, in
each case, would be reasonably likely to have a Material
Adverse Effect of which a Responsible Officer has or
reasonably should have knowledge; and
(xiv) such other information respecting the Borrower
or any of its Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.
(j) Compliance with Environmental Laws. Comply, and cause each
of its Restricted Subsidiaries and all lessees and other Persons
operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental
Permits; obtain and renew and cause each of its Restricted Subsidiaries
to obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its
Restricted Subsidiaries to conduct, any investigation, study, sampling
and testing, and undertake any cleanup, removal, remedial
<PAGE>
51
or other action necessary to remove and clean up all Hazardous
Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither
the Borrower nor any of its Restricted Subsidiaries shall be required
to undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith
and by proper proceedings and appropriate reserves are being maintained
with respect to such circumstances.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Restricted Subsidiaries to create or suffer to exist, any Lien on
or with respect to any of its properties, whether now owned or
hereafter acquired, or assign, or permit any of its Restricted
Subsidiaries to assign, any right to receive income, other than:
(i) Permitted Liens;
(ii) purchase money Liens upon or in any real
property or equipment acquired or held by the Borrower or any
of its Restricted Subsidiaries in the ordinary course of
business to secure the purchase price of such property or
equipment or to secure Debt incurred solely for the purpose of
financing the acquisition of such property or equipment, and
Liens existing on such property or equipment at the time of
its acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such property) or extensions,
renewals or replacements of any of the foregoing for the same
or a lesser amount, provided, however, that no such Lien shall
extend to or cover any properties of any character other than
the real property or equipment being acquired, and no such
extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the Lien being extended,
renewed or replaced, provided further that the aggregate
principal amount of the indebtedness secured by the Liens
referred to in this clause (ii) shall not exceed the amounts
specified therefor in Section 5.02(d)(iii)(C) at any time
outstanding;
(iii) the Liens existing on the Original Effective
Date and described on Schedule 5.02(a) hereto;
(iv) Liens on property of a Person that becomes a
Restricted Subsidiary after the Original Effective Date in
accordance with the terms of Section 5.02(g) or through the
designation of an Unrestricted Subsidiary as a Restricted
Subsidiary existing at the time such Person is merged into or
consolidated with the Borrower or any Restricted Subsidiary of
the Borrower or becomes a
<PAGE>
52
Restricted Subsidiary of the Borrower; provided that such
Liens were not created solely in contemplation of such merger,
consolidation or acquisition and do not extend to any assets
other than those of the Person so merged into or consolidated
with the Borrower or such Restricted Subsidiary or acquired by
the Borrower or such Restricted Subsidiary;
(v) Liens arising in connection with Capitalized
Leases; provided that no such Lien shall extend to or cover
any assets other than the assets subject to such Capitalized
Leases;
(vi) Liens arising out of judgments or awards (other
than any judgment described in Section 6.01(f) or (g) hereof
and constituting an Event of Default thereunder) in respect of
which the Borrower or any of its Restricted Subsidiaries shall
in good faith be prosecuting an appeal or proceedings for
review and in respect of which it shall have secured a
subsisting stay of execution pending such appeal or
proceedings for review, provided it shall have set aside on
its books adequate reserves, in accordance with GAAP, with
respect to such judgment or award;
(vii) the replacement, extension or renewal of any
Lien permitted by clause (ii), (iii), (iv) or (v) above upon
or in the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the
Debt secured thereby;
(viii) Liens created in the ordinary course of
business on money market or mutual accounts maintained by the
Borrower and any funds or other assets contained therein in
favor of the financial institution with which such account is
maintained to secure the payment of customary fees and charges
incurred in connection with such account;
(ix) additional Liens securing Debt permitted under
Section 5.02(d)(i)(G); and
(x) Liens on accounts receivable of the Borrower
solely in connection with a transaction permitted by Section
5.02(e)(v).
(b) Mergers, Etc. Merge or consolidate with or into any
Person, or permit any of its Restricted Subsidiaries to do so, except
that: (i) any Subsidiary of the Borrower may merge into or consolidate
with the Borrower and, in connection with any acquisition of a Person
made pursuant to Section 5.02(g), such Person may merge into or
consolidate with the Borrower, so long as, in each case, the Borrower
is the surviving corporation, provided that immediately after giving
effect thereto, the Borrower shall be
<PAGE>
53
in pro forma compliance (calculated based on historical financial
statements most recently furnished or required to be furnished pursuant
to Section 5.01(i)) with the covenants set forth in Section 5.03; (ii)
any Restricted Subsidiary may merge into or consolidate with any other
Restricted Subsidiary; (iii) in connection with any sale or other
disposition permitted under Section 5.02(e) (other than clause (ii)
thereof), any Restricted Subsidiary of the Borrower may merge into or
consolidate with any other Person or permit any other Person to merge
into or consolidate with it; and (iv) any Restricted Subsidiary may
merge into or consolidate with any Unrestricted Subsidiary or any other
Person and any Unrestricted Subsidiary or any other Person may merge
into or consolidate with any Restricted Subsidiary, in order to
consummate an acquisition or investment permitted under Section
5.02(g), provided that immediately after giving effect thereto, the
Borrower shall be in pro forma compliance (calculated based on
historical financial statements most recently furnished or required to
be furnished pursuant to Section 5.01(i)) with the covenants set forth
in Section 5.03, provided further, in each case, that no Default shall
have occurred and be continuing at the time of such proposed
transaction or would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
(d) Debt. Create, incur, assume or suffer to exist, or permit
any of its Restricted Subsidiaries to create, incur, assume or suffer
to exist, any Debt other than:
(i) in the case of the Borrower,
(A) Debt in respect of this Agreement and
the Notes,
(B) Debt in respect of the Senior Notes,
(C) Debt existing on the Original Effective
Date and described on Schedule 5.02(d) hereto (the
"Surviving Debt") and Debt in respect of the
Subordinated Notes, and any Debt extending the
maturity of, or refunding or refinancing, in whole or
in part, any Surviving Debt or the Subordinated
Notes, provided that the terms relating to principal
amount, amortization, maturity, collateral (if any)
and subordination (if any), and other material terms
taken as a whole, of any such extending, refunding or
refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith,
are no less favorable in any material respect to the
Borrower or the Lenders than the terms of any
agreement or instrument governing the Surviving Debt
or Subordinated Notes, as the case may be, being
extended, refunded or refinanced and the
<PAGE>
54
interest rate applicable to any such extending,
refunding or refinancing Debt does not exceed the
then market interest rate, and provided further that
the principal amount of such Surviving Debt or
Subordinated Notes, as the case may be, shall not be
increased above the principal amount thereof
outstanding immediately prior to such extension,
refunding or refinancing, and the direct and
contingent obligors therefor shall not be changed, as
a result of or in connection with such extension,
refunding or refinancing,
(D) Debt in respect of Hedge Agreements not
entered into for speculative purposes and designed to
hedge against fluctuations in interest rates or
foreign exchange rates incurred in the ordinary
course of business and consistent with prudent
business practice, provided that with respect to
foreign exchange hedging arrangements, such hedging
arrangements shall be in an aggregate notional amount
not to exceed $10,000,000 at any time outstanding,
(E) Debt owed to any Restricted Subsidiary,
(F) Debt incurred in the ordinary course of
business in an aggregate face amount not to exceed
$7,000,000 outstanding at any time and consisting of
surety bonds, standby letters of credit, trade
letters of credit, bankers' acceptances and
reimbursement obligations in respect thereof,
(G) Debt incurred in the ordinary course of
business maturing within one year from the date
incurred, and aggregating not more than $100,000,000
at any time outstanding,
(H) additional unsecured Debt (other than
Debt of the type described in clauses (i) and (j) of
the definition of "Debt"), provided that at the time
such Debt is incurred, (i) no Default exists before
or after giving effect to the incurrence of such
Debt, (ii) the maturity thereof is at least six
months after the Termination Date and any
amortization thereof shall commence no earlier than
the Termination Date, and (iii) the terms relating to
principal amount, amortization, maturity, collateral
(if any) and subordination (if any), and other
material terms taken as a whole, of such Debt and of
any agreement entered into and of any instrument
issued in connection therewith are no less favorable
in any material respect to the Borrower or the
Lenders than the terms and conditions of this
Agreement, and
<PAGE>
55
(I) additional unsecured Debt (other than
Debt of the type described in clauses (i) and (j) of
the definition of "Debt", or in clause (H) above)
aggregating not more than $150,000,000 at any time
outstanding, provided that at the time such Debt is
incurred, (i) no Default exists before or after
giving effect to the incurrence of such Debt, (ii)
the maturity thereof is prior to a date that is six
months after the Termination Date, and (iii) the
terms relating to principal amount, amortization,
maturity, collateral (if any) and subordination (if
any), and other material terms taken as a whole, of
such Debt and of any agreement entered into and of
any instrument issued in connection therewith are no
less favorable in any material respect to the
Borrower or the Lenders than the terms and conditions
of this Agreement;
(ii) in the case of the Restricted Subsidiaries, Debt
owed to the Borrower, in each case evidenced by one or more
senior promissory notes; and
(iii) in the case of the Borrower and its Restricted
Subsidiaries,
(A) Debt of any Person that becomes a
Restricted Subsidiary after the date hereof through
Investments made in accordance with the terms of
Section 5.02(g) or through the designation of an
Unrestricted Subsidiary as a Restricted Subsidiary
that is existing at the time such Person becomes a
Restricted Subsidiary (other than Debt incurred
solely in contemplation of such Person becoming a
Subsidiary of the Borrower) in an aggregate principal
amount not to exceed $50,000,000 at any time
outstanding,
(B) Debt in respect of Capitalized Leases,
(C) Debt secured by Liens permitted by
Section 5.02(a)(ii) or (v) not to exceed in the
aggregate $50,000,000 at any time outstanding,
(D) Debt incurred in the ordinary course of
business in connection with the Borrower's cash
management system, consisting of daylight overdrafts
not to exceed in the aggregate $500,000 at any time
outstanding,
(E) Debt incurred in connection with a
transaction permitted by Section 5.02(e)(v), and
(F) indorsement of negotiable instruments
for deposit or collection or similar transactions in
the ordinary course of business.
<PAGE>
56
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Restricted Subsidiaries to sell,
lease, transfer or otherwise dispose of, any assets, or grant any
option or other right to purchase, lease or otherwise acquire any
assets, except:
(i) sales of inventory in the ordinary course of its
business,
(ii) in a transaction authorized by Section 5.02(b),
(iii) sales or other dispositions of damaged,
worn-out or obsolete property that is no longer necessary for
the proper conduct of the business of the Borrower and its
Subsidiaries for fair value in the ordinary course of
business,
(iv) sales or transfers of assets from any Restricted
Subsidiary to any other Restricted Subsidiary for cash and for
fair value,
(v) the sale of accounts receivable for cash and fair
value in the ordinary course of business of the Borrower and
its Subsidiaries; provided that recourse to the Borrower and
its Subsidiaries in connection with sales of accounts
receivables for cash and fair value under this clause (v)
shall be limited to recourse that is customary in connection
with such sales, it being agreed that recourse with respect to
collectibility of such accounts receivable will not be
considered customary for purposes of this clause (v),
(vi) the transfer of assets in exchanges for assets
for use consistent with the ongoing trade or business of the
Borrower and its Subsidiaries, provided that, with respect to
such exchanges: (A) immediately before and after giving effect
thereto, no Default shall have occurred and be continuing or
would result therefrom, (B) immediately before and after
giving effect to such exchange, the Borrower shall be in pro
forma compliance (calculated based on historical financial
statements most recently furnished or required to be furnished
pursuant to Section 5.01(i)) with the covenants set forth in
Section 5.03, (C) any business acquired or invested in as a
result of an exchange pursuant to this clause (vi) shall be in
the same, a similar or related line of business as the
business of the Borrower or any of its Restricted
Subsidiaries, and (D) any such exchange shall be for
equivalent fair market value (after giving effect to the
payment or receipt of any cash in connection with any such
exchange),
(vii) sales or transfers of assets from the Borrower
to any Restricted Subsidiary for cash for no less than fair
value,
<PAGE>
57
(viii) sales or transfers of assets from any
Restricted Subsidiary to the Borrower for cash for no more
than fair value, and
(ix) in addition to the foregoing items, sales of
assets for cash, and for fair value, provided that the assets
so sold in any Fiscal Year shall not have generated more than
35% of the Consolidated EBITDA of the Borrower and its
Restricted Subsidiaries for the Fiscal Year then most recently
ended,
provided that, with respect to clauses (vi), (vii) and (ix) to the
extent the Net Cash Proceeds thereof shall not have been reinvested
within 12 months after the receipt thereof by the Borrower or such
Restricted Subsidiary in assets necessary in the same or similar line
of businesses as the businesses of the Borrower and the Restricted
Subsidiaries, the Borrower shall, at the end of such 12 month period,
prepay the Advances pursuant to Section 2.10(b) in an amount equal to
the amount by which such Net Cash Proceeds exceeds the amount thereof
so reinvested.
(f) Dividends, Etc. Declare or make any dividend payment or
other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of capital stock of
the Borrower, or purchase, redeem or otherwise acquire for value (or
permit any of its Subsidiaries to do so) any shares of any class of
capital stock of the Borrower or any warrants, rights or options to
acquire any such shares, now or hereafter outstanding, or issue or sell
any capital stock or any warrants, rights or options to acquire such
capital stock except that, so long as no Default shall have occurred
and be continuing at the time of any action described below or would
result therefrom, the Borrower may (i) declare and make any dividend
payment or other distribution payable in common stock of the Borrower,
(ii) declare and make any dividend payment or other distribution, or
redeem any shares of any class of capital stock of the Borrower,
pursuant to and to the extent required by the Rights Agreement, (iii)
issue and sell shares of common stock of the Borrower for cash, (iv)
issue shares of common stock of the Borrower in connection with
Investments permitted under Section 5.02(g) to the extent permitted
therein, (v) purchase shares of capital stock of the Borrower through a
variety of ways, including, but not limited to (A) purchasing such
stock in the open market or in private transactions, (B) selling and/or
buying put and/or call options directly or indirectly on such stock,
(C) entering into forward contracts to purchase such stock at specified
future dates, and (D) entering into any combination of the foregoing,
provided, however, that each such purchase shall be made in
nonspeculative transactions and provided further, however, that, except
for such purchases made pursuant to mandatory redemption provisions
relating to any preferred stock of the Borrower which mandatorily
redeemable preferred stock is otherwise permitted under this Agreement
the aggregate settlement price for such purchases valued at the time of
settlement of such purchases, net of any premiums received by the
Borrower, shall not exceed the sum of $100,000,000, (vi) issue and sell
shares of
<PAGE>
58
preferred stock of the Borrower for cash or in connection with any
Investment permitted hereunder; provided, however, that (A) the
issuance and sale of such preferred stock would not materially impair
the rights or interests of any Agent or any Lender under this Agreement
and the Notes, (B) no Default exists before or after giving effect to
the issuance and sale of such preferred stock, and (C) the material
terms, taken as a whole, of such preferred stock and of any agreement
entered into and of any instrument issued in connection therewith are
no less favorable in any material respect to the Borrower or the
Lenders than the terms and conditions of this Agreement, and (vii) the
Borrower may declare and pay dividends on its preferred stock so long
as immediately before and after giving effect thereto, the Borrower
shall be in pro forma compliance with the covenants set forth in
Section 5.03.
(g) Investments in Other Persons. Make or hold, or permit any
of its Restricted Subsidiaries to make or hold, any Investment in any
Person other than:
(i) loans and advances to employees in the ordinary
course of the business of the Borrower and its Restricted
Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding;
(ii) Investments in Marketable Securities;
(iii) Investments existing on the Original Effective
Date and described on Schedule 5.02(g) hereto;
(iv) Investments in accounts receivable and prepaid
expenses arising in the ordinary course of business;
(v) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(d)(i)(D);
(vi) Investments consisting of intercompany Debt
permitted under Section 5.02(d)(i)(E) or (ii);
(vii) Investments consisting of (A) Investments by
the Borrower and its Restricted Subsidiaries in their
Restricted Subsidiaries, (B) Investments in Affiliates of the
Borrower existing on the Original Effective Date, and (C)
Investments in any other Person, provided that after giving
effect to such Investment, such Person would not be an
Unrestricted Subsidiary;
(viii) Investments in Unrestricted Subsidiaries, or
in any other Person that after giving effect thereto becomes
an Unrestricted Subsidiary, in an
<PAGE>
59
aggregate amount invested (in any combination of cash and
securities of the Borrower) not to exceed $100,000,000 at any
time outstanding; and
(ix) other Investments consisting of transactions
permitted under Section 5.02(f)(v) to the extent permitted
therein and to the extent such transactions constitute
Investments hereunder and are not otherwise permitted under
any other clause of this Section 5.02(g);
provided that, with respect to Investments made under clauses (vii) and
(viii) above:
(a) immediately before and after giving effect
thereto, no Default shall have occurred and be continuing or
would result therefrom,
(b) immediately before and after giving effect to
such Investment, the Borrower shall be in pro forma compliance
(calculated based on historical financial statements most
recently furnished or required to be furnished pursuant to
Section 5.01(i)) with the covenants set forth in Section 5.03,
(c) any business acquired or invested in pursuant to
clause (vii) or (viii) shall be in the same, a similar or
related line of business as the business of the Borrower or
any of its Restricted Subsidiaries, and
(d) any such Investment shall be for fair value.
(h) Change in Nature of Business. Make, or permit any
of its Restricted Subsidiaries to make, any material change in
the nature of its business as carried on at the date hereof.
(i) Charter Amendments. Amend, or permit any of its
Restricted Subsidiaries to amend, its certificate of
incorporation or bylaws in any material respect that would be
reasonably likely to be adverse to the Borrower, any
Restricted Subsidiary or the Lenders.
(j) Prepayments, Etc. of Debt. Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Debt, other than
(i) the prepayment of the Advances in accordance with the
terms of this Agreement, (ii) the prepayment of Debt assumed
pursuant to a Non-Hostile Acquisition, provided that such
assumed Debt is prepaid or refinanced simultaneously with such
Non-Hostile Acquisition and (iii) regularly scheduled or
required repayments or redemptions or refinancing of Surviving
Debt or the Subordinated Notes or as otherwise permitted
hereunder, or amend, modify or change in any manner any term
or condition of any Surviving Debt,
<PAGE>
60
the Subordinated Notes or the Senior Notes except as otherwise
permitted hereunder, or permit any of its Subsidiaries to do any of the
foregoing other than to prepay any Debt payable to the Borrower or as
otherwise permitted hereunder.
(k) Designation of Restricted and Unrestricted Subsidiaries.
(i) Designate a Subsidiary, in connection with an acquisition permitted
under Section 5.02(g), as an Unrestricted Subsidiary or redesignate an
Unrestricted Subsidiary as a Restricted Subsidiary unless, in either
case, immediately before and after giving effect thereto, no Default
shall have occurred and be continuing or would result therefrom and the
Borrower shall be in pro forma compliance (calculated based on
historical financial statements most recently furnished or required to
be furnished pursuant to Section 5.01(i)) with the covenants set forth
in Section 5.03, or (ii) redesignate a Restricted Subsidiary as an
Unrestricted Subsidiary.
(l) Limitation on Dividend Restrictions. Enter into or suffer
to exist, or permit any Restricted Subsidiary to enter into or suffer
to exist, any agreement prohibiting the declaration or payment by any
Restricted Subsidiary of dividends or other distributions in respect of
its capital stock to the Borrower or any Restricted Subsidiary of the
Borrower, unless such agreement was in effect at the time such
Restricted Subsidiary became a Subsidiary of the Borrower, and such
agreement was not entered into solely in contemplation of such Person
becoming a Subsidiary of the Borrower.
(m) Amendment, Etc. of the Subordinated Notes. Amend, modify
or change in any manner any term or condition of the Subordinated Notes
or give any consent, waiver or approval thereunder, waive any default
under or any breach of any term or condition of the Subordinated Notes,
or take any other action in connection with the Subordinated Notes that
would materially impair the value of the interest or rights of the
Borrower thereunder or that would materially impair the rights or
interests of any Agent or any Lender.
(n) Amendment, Etc. of the Senior Note Indenture.
Amend, modify or change in any manner any term or condition of
the Senior Note Indenture and the Senior Notes issued pursuant
thereto or give any consent, waiver or approval thereunder,
waive any default under or any breach of any term or condition
of the Senior Note Indenture and the Senior Notes issued
pursuant thereto, or take any other action in connection with
the Senior Note Indenture and the Senior Notes issued pursuant
thereto that would materially impair the value of the interest
or rights of the Borrower thereunder or that would materially
impair the rights or interests of any Agent or any Lender.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
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61
(a) Leverage Ratio. Maintain at the end of each fiscal quarter
of the Borrower a ratio of Consolidated Debt of the Borrower and its
Restricted Subsidiaries (excluding, for purposes of this Section
5.03(a), Debt of the types referred to in clauses (b), (g), (h) and (j)
of the definition of "Debt" and Debt of the type described in clause
(i) of the definition of "Debt" to the extent that the Debt being
guarantied thereby was of the type referred to in clause (b), (g), (h)
or (j) of the definition of "Debt") to Consolidated EBITDA of the
Borrower and its Restricted Subsidiaries of not greater than the amount
set forth below for each Rolling Period set forth below:
Rolling Period
Ending On Ratio
-------------------- ------
December 31, 1995 6.00:1
March 31, 1996 6.00:1
June 30, 1996 5.75:1
September 30, 1996 5.75:1
December 31, 1996 5.50:1
March 31, 1997 5.50:1
June 30, 1997 5.00:1
September 30, 1997 5.00:1
December 31, 1997 4.75:1
March 31, 1998 4.75:1
June 30, 1998 4.50:1
September 30, 1998 4.50:1
December 31, 1998 4.25:1
March 31, 1999 4.25:1
June 30, 1999 4.00:1
and thereafter
provided that in the event that the Borrower or any of its Restricted
Subsidiaries shall have acquired a Restricted Subsidiary or sold or
otherwise disposed of Restricted Subsidiaries that, at the time of such
sale or disposition, were individually, or if taken in the aggregate
would have been, a Material Subsidiary during any Rolling Period, the
ratio described above shall be calculated on a historical pro forma
basis for such Rolling Period as though such Restricted Subsidiary had
been acquired, sold or otherwise disposed of on the first day of such
Rolling Period.
(b) Interest Coverage Ratio. Maintain at the end of each
fiscal quarter of the Borrower a ratio of Consolidated EBITDA of the
Borrower and its Restricted Subsidiaries to interest payable on, and
amortization of debt discount in respect of, all Debt during such
period, in each case, by the Borrower and its Restricted Subsidiaries
of not less than the amount set forth below for each Rolling Period set
forth below:
<PAGE>
62
Rolling Period
Ending On Ratio
-------------------- ------
December 31, 1995 2.00:1
March 31, 1996 2.00:1
June 30, 1996 2.00:1
September 30, 1996 2.00:1
December 31, 1996 2.25:1
March 31, 1997 2.25:1
June 30, 1997 2.25:1
September 30, 1997 2.25:1
December 31, 1997 2.50:1
March 31, 1998 2.50:1
June 30, 1998 2.50:1
September 30, 1998 2.50:1
December 31, 1998 2.75:1
March 31, 1999 2.75:1
June 30, 1999 2.75:1
September 30, 1999 2.75:1
December 31, 1999 3.00:1
and thereafter
provided that in the event that the Borrower or any of its Restricted
Subsidiaries shall have acquired a Restricted Subsidiary or sold or
otherwise disposed of Restricted Subsidiaries that, at the time of such
sale or disposition, were individually, or if taken in the aggregate
would have been, a Material Subsidiary during any Rolling Period, the
ratio described above shall be calculated on a historical pro forma
basis for such Rolling Period as though such Restricted Subsidiary had
been acquired, sold or otherwise disposed of on the first day of such
Rolling Period.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower shall
fail to pay any interest on any Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or
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63
(b) Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d) (as to the
corporate or partnership existence of the Borrower or any Restricted
Subsidiary), (e), (h) or (i), 5.02 or 5.03, or (ii) the Borrower shall
fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed if
such failure shall remain unremedied for 15 Business Days after the
earlier of the date on which (A) a Responsible Officer of the Borrower
becomes aware of such failure or (B) written notice thereof shall have
been given to the Borrower by any Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding
in a principal or notional amount of at least $15,000,000, in the case
of the Borrower or any Restricted Subsidiary, or at least $25,000,000,
in the case of any Unrestricted Subsidiary, in the aggregate (but
excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period (which, in the case of the failure to make a
mandatory redemption of preferred stock, shall include the period that
the obligations of the Borrower to redeem such preferred stock cumulate
without permitting the holders thereof to accelerate payment with
respect thereto), if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt
and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Borrower or any of its Subsidiaries in which the
Borrower has an Investment, directly or indirectly, aggregating at
least $15,000,000, in the case of any Restricted Subsidiary, or at
least $25,000,000, in the case of any Unrestricted Subsidiary, shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any such Subsidiary
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition
<PAGE>
64
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 45 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part
of its property) shall occur; or the Borrower or any such Subsidiary
shall take any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $15,000,000, in the case of the Borrower or any Restricted
Subsidiary, or in excess of $25,000,000, in the case of any
Unrestricted Subsidiary, shall be rendered against the Borrower or any
of its Subsidiaries and either (i) a warrant of attachment or execution
or similar process shall have been issued or levied against any
property or assets of the Borrower or any of its Subsidiaries to
enforce any such judgment or (ii) there shall be any period of 15
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; provided, however, that any such judgment or order shall not be
an Event of Default under this Section 6.01(f) if and for so long as
(i) the amount by which such judgment or order exceeds $15,000,000, in
the case of the Borrower or any Restricted Subsidiary, or $25,000,000,
in the case of any Unrestricted Subsidiary, is covered by a valid and
binding policy of insurance between the defendant and the insurer
covering payment thereof and (ii) such insurer, which shall be rated at
least "B++" by A.M. Best Company and which shall have a capital surplus
in excess of $50,000,000, has been notified of, and has not disputed
the claim made for payment of, an amount not less than the amount by
which such judgment or order exceeds $15,000,000, in the case of the
Borrower or any Restricted Subsidiary, or $25,000,000, in the case of
any Unrestricted Subsidiary; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Subsidiaries that could be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 15 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) (i) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the
Borrower (or other securities convertible into such Voting Stock)
representing 30% or more of the combined voting power of all Voting
Stock of the
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65
Borrower; or (ii) during any period of up to 24 consecutive months,
commencing after the date of this Agreement, individuals who at the
beginning of such 24-month period were directors of the Borrower shall
cease for any reason to constitute a majority of the board of directors
of the Borrower; or (iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of, control over Voting Stock of the
Borrower (or other securities convertible into such Voting Stock)
representing 30% or more of the combined voting power of all Voting
Stock of the Borrower; or
(i) Any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Borrower and the ERISA
Affiliates related to such ERISA Event) exceeds $15,000,000; or
(j) The Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Borrower and the ERISA Affiliates as Withdrawal Liability
(determined as of the date of such notification), exceeds $15,000,000
or requires payments exceeding $3,000,000 per annum; or
(k) The Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the
ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$3,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitment and the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Notes, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of
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an order for relief with respect to the Borrower under the Federal Bankruptcy
Code, (A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent, each Syndication Agent and the
Documentation Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to such Agent
by the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that no Agent shall be required to
take any action that exposes such Agent to personal liability or that is
contrary to this Agreement or applicable law. Each Agent agrees to give to each
Lender prompt notice of each notice given to it by the Borrower pursuant to the
terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
any Agent nor any of its directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, each
Agent: (i) may treat the payee of any Note as the holder thereof until, in the
case of the Administrative Agent, the Administrative Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, or, in the case
of any other Agent, such Agent has received notice from the Administrative Agent
that it has received and accepted such Assignment and Acceptance, in each case
as provided in Section 8.07; (ii) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the
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Borrower or to inspect the property (including the books and records) of the
Borrower; (v) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier, telegram or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. Citibank, BankAmerica, TD Bank and Chase and
Affiliates. With respect to its Commitment, the Advances made by it and the Note
issued to it, each of Citibank, BankAmerica, TD Bank and Chase shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not an Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include each of Citibank,
BankAmerica, TD Bank and Chase in its individual capacity. Each of Citibank,
BankAmerica, TD Bank and Chase and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank,
BankAmerica, TD Bank or Chase, as the case may be, were not an Agent and without
any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other 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 any Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the
Designated Bidders) agree to indemnify each Agent (to the extent not reimbursed
by the Borrower), ratably according to the respective principal amounts of the
Revolving Credit Notes then held by each of them (or if no Revolving Credit
Notes are at the time outstanding or if any Revolving Credit Notes are held by
Persons that are not Lenders, ratably according to the respective amounts of
their Commitments), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against such Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by such Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. Without
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limitation of the foregoing, each Lender (other than the Designated Bidders)
agrees to reimburse each Agent promptly upon demand for its ratable share of any
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by such Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that such Agent
is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agents. Any Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon the
resignation or removal of the Administrative Agent, the Required Lenders shall
have the right to appoint a successor Administrative Agent, provided that, as
long as no Default shall have occurred and be continuing, the Borrower shall
have the right to consent to any such successor Administrative Agent, such
consent not to be unreasonably withheld or delayed. If no successor
Administrative Agent shall have been so appointed by the Required Lenders (and,
if required, consented to by the Borrower), and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent (which, so long as no
Default shall have occurred and be continuing, shall be subject to the consent
of the Borrower, such consent not to be unreasonably withheld or delayed), which
shall be a commercial bank organized under the laws of the United States of
America or of any state thereof and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
SECTION 7.07. Agents. None of the Banks identified on the
cover page or in the recital of parties or on the signature pages of this
Agreement as an Agent (other than the Administrative Agent) shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified as an Agent (other than the
Administrative Agent) shall have or be deemed to have any fiduciary relationship
with any Lender.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders and the Borrower,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders and the Borrower, do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) increase any Commitment of any Lender
or subject any Lender to any additional monetary obligations, (c) reduce the
principal of, or interest on, any Revolving Credit Note or any fee or other
amount payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, any Revolving Credit Note or any fee or other
amount payable hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Revolving Credit Notes, or the number
of Lenders, that shall be required for the Lenders or any of them to take any
action hereunder or (f) amend this Section 8.01; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at 8725 West Higgins Road,
Chicago, IL 60631-2702, Attention: Corporate Secretary, with a copy to the
Treasurer; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender; if to Citibank, as Administrative Agent, at its address at 399
Park Avenue, New York, NY 10043, Attention: Global Communications Department; if
to Chase, as Syndication Agent, at its address at 270 Park Avenue, New York, NY
10017, Attention: Laurie Perper; if to TD Bank, as Documentation Agent, at its
address at 31 West 52nd Street, New York, NY 10019, Attention: Brian O'Reilly;
and if to BankAmerica, as Syndication Agent, at its address at 231 S. LaSalle
Street, Chicago, IL 60697, Attention: Patricia DelGrande; or, as to the Borrower
or any Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to the Borrower
and the Administrative Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed or telexed, be effective when deposited in the
mails, telecopied, delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications to any Agent
pursuant to Article II, III or VII shall not be effective until received by such
Agent. Delivery by telecopier
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of an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all costs and expenses of the Agents in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of one law firm (Shearman & Sterling or another law firm) as
counsel for the Administrative Agent with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities under
this Agreement. The Borrower further agrees to pay on demand all costs and
expenses of the Agents and the Lenders (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for each
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless each
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of, or in connection with
the preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Borrower or any of its Subsidiaries or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries, in each case whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated (but excluding any such claims, damages, losses,
liabilities or expenses (i) to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of
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competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct or (ii) arising from disputes among two or more
Lenders (but not including any such dispute that involves a Lender to the extent
that such Lender is acting in any different capacity, such as Agent, under the
Credit Agreement or to the extent it involves the Agents' syndication
activities). The Borrower also agrees not to, and will not permit any Affiliate
to, assert any claim against any Agent, any Lender, any of their Affiliates, or
any of their respective directors, officers, employees, attorneys and agents, on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to Section
2.08(d), 2.10 or 2.12, acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender
Party other than on the last day of the Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement pursuant to Section
8.07 as a result of a demand by the Borrower pursuant to Section 2.17, the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.02(c), 2.10, 2.13 and 8.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, 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 indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Note to which the Borrower is a
party held by such Lender, whether or not such Lender shall have made any demand
under this Agreement or such Note and although such obligations may be
unmatured.
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Each Lender agrees promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agents and when the
Administrative Agent shall have been notified by each Initial Lender that such
Initial Lender has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, each Agent and each Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender (other than the Designated Bidders) may and, if demanded by the
Borrower pursuant to Section 2.16, will assign to one or more Persons all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Revolving Credit Advances
owing to it and the Revolving Credit Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement (other
than any right to make Competitive Bid Advances owing to it and Competitive Bid
Notes), (ii) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an assignment of all of a Lender's
rights and obligations under this Agreement, the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $10,000,000 or an integral multiple of $1,000,000
in excess thereof, (iii) each such assignment shall be to an Eligible Assignee,
(iv) each such assignment made as a result of a demand by the Borrower pursuant
to this Section 8.07(a) shall be arranged by the Borrower after consultation
with the Administrative Agent and shall be either an assignment of all of the
rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall
have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties
to each such assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register, an Assignment and Acceptance,
together
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with any Revolving Credit Note subject to such assignment and a processing and
recordation fee of $3,000, provided that, if such assignment is the result of a
demand by the Borrower pursuant to Section 2.16, the Borrower shall pay the
processing and recordation fee therefor. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon any Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes each Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to such Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and each
Designation Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and, with respect to
Lenders other than Designated Bidders, the Commitment of, and principal amount
of the Advances owing to, each Lender from time to time (the "Register").
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The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit C hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower and
the other Agents. Within five Business Days after its receipt of such notice,
the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Revolving Credit Note a new
Note to the order of such Eligible Assignee in an amount equal to the Commitment
assumed by it pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder, a new Note to the order of the
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Revolving Credit Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Revolving
Credit Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A-1
hereto.
(e) Each Lender (other than the Designated Bidders) may
designate one or more banks or other entities to have a right to make
Competitive Bid Advances as a Lender pursuant to Section 2.03; provided,
however, that (i) no such Lender shall be entitled to make more than 2 such
designations, (ii) each such Lender making one or more of such designations
shall retain the right to make Competitive Bid Advances as a Lender pursuant to
Section 2.03, (iii) each such designation shall be to a Designated Bidder and
(iv) the parties to each such designation shall execute and deliver to the
Agent, for its acceptance and recording in the Register, a Designation
Agreement. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Designation Agreement, the designee
thereunder shall be a party hereto with a right to make Competitive Bid Advances
as a Lender pursuant to Section 2.03 and the obligations related thereto.
(f) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm and
agree with each other and the other parties hereto as follows: (i) such Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender makes no representation or
warranty and assumes
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no responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such designee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Designation Agreement; (iv) such
designee will, independently and without reliance upon the Agent, such
designating Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
designee confirms that it is a Designated Bidder; (vi) such designee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such designee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(g) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Agent shall, if such Designation Agreement has been completed and is
substantially in the form of Exhibit D hereto, (i) accept such Designation
Agreement, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(h) Each Lender may sell participations to one or more banks
or other entities (other than the Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and the Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agents 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 and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07,
<PAGE>
76
disclose to the assignee, designee or participant or proposed assignee, designee
or participant any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee, designee or participant or proposed assignee, designee or
participant shall agree in writing to preserve the confidentiality of any
Confidential Information relating to the Borrower received by it from such
Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. Neither any Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to such Agent's or such Lender's
Affiliates and their officers, directors, employees, auditors, accountants,
counsel, agents and advisors and, as contemplated by Section 8.07(i), to actual
or prospective assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process and
(c) as requested or required by any state, federal or foreign authority or
examiner regulating banks or banking or to whose jurisdiction such Agent or
Lender may be subject.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York state court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, 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 any such New York state court or, to
the 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 shall affect any
right that any party may otherwise
<PAGE>
77
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that 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 the Notes
in any New York state or federal court. 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.
SECTION 8.12. Effective Date Assignments; Etc. (a) As of the
Effective Date, prior to giving effect to any assignment under this Agreement as
of such date, each Existing Lender party hereto represents and warrants, as to
the assignment effected by such Existing Lender by this Agreement that as of the
Effective Date (i) its Existing Commitment is in the dollar amount specified as
its Existing Commitment on Schedule 8.12 hereto and the aggregate outstanding
principal amount of Existing Advances owing to it is in the dollar amount
specified as the aggregate outstanding principal amount of Existing Advances
owing to such Existing Lender on Schedule 8.12 hereto; and (ii) that such
Existing Lender is the legal and beneficial owner of such interest being
assigned by it hereunder and that such interest is free and clear of any adverse
claim created by such Existing Lender.
(b) Each Existing Lender party hereto and Initial Lender
confirms to, and agrees with, each of the other Initial Lenders as to the
assignment effected by this Agreement by such Existing Lender or Initial Lender,
as the case may be, as follows: (i) except as set forth in subsection (a) above,
each such Existing Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, the First Amended and
Restated Credit Agreement or this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the First Amended and Restated Credit Agreement or this Agreement or
any other instrument or document furnished pursuant thereto or hereto; (ii) each
such Existing Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any of
its Subsidiaries or the performance or observance by the Borrower or any of its
Subsidiaries of any of its obligations under the Credit Agreement, the First
Amended and Restated Credit Agreement or this Agreement or any other instrument
or document furnished pursuant thereto or hereto; (iii) each Initial Lender
confirms that it has received such documents and information as it has deemed
appropriate to make its own credit analysis and decision to execute and deliver
this Agreement and agrees that it shall have no recourse against any of the
Agents, any Existing Lender or any other Lender with respect to any matters
relating to the Credit Agreement, the First Amended and Restated Credit
Agreement or this Agreement; and (iv) each Initial Lender will, independently
and without reliance upon any Agent, any Existing Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own
<PAGE>
78
credit decisions in taking or not taking action under this Agreement, the Note
or Notes held by it and the other documents executed in connection herewith.
(c) As of the Effective Date, (i) each Initial Lender shall be
a party to this Agreement and, to the extent provided herein, have the rights
and obligations of a Lender hereunder and (ii) each Existing Lender party hereto
shall, to the extent provided herein, relinquish its rights and be released from
its obligations under this Agreement as to any assignment effected herein.
(d) From and after the Effective Date, the Administrative
Agent shall make all payments under this Agreement in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the Initial Lenders and
other Lenders hereunder.
(e) On or before the Effective Date, the Borrower shall have
paid all accrued interest, fees and other amounts payable and owing to the
Existing Lenders and the Agents as of the Effective Date in connection with the
First Amended and Restated Credit Agreement. Without prejudice to the survival
of any other agreement of the Borrower under the First Amended and Restated
Credit Agreement, all amounts that would be payable under Sections 2.10, 2.13
and 8.04 of the First Amended and Restated Credit Agreement shall be payable
under this Agreement to the extent that such amounts have not been paid as of
the Effective Date.
(f) As of the Effective Date, (i) the First Amended and
Restated Credit Agreement is amended and restated in full as set forth in this
Agreement, (ii) the Existing Commitments are held by the Initial Lenders under
this Agreement, (iii) the Existing Notes are cancelled and replaced by the
Notes, (iv) all obligations which, by the terms of the First Amended and
Restated Credit Agreement, are evidenced by the Existing Notes are evidenced by
the Notes and (v) no fees shall be payable by the Borrower pursuant to Section
2.03(a) of the First Amended and Restated Credit Agreement, except to the extent
that such fees become due and payable, and remain unpaid, on or prior to the
Effective Date.
<PAGE>
79
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lenders hereby (or by execution and delivery of an Assignment and
Acceptance) irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to: (i) this Agreement; (ii) the Notes; or (iii) the
actions of any Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
360 COMMUNICATIONS COMPANY
By
Title:
<PAGE>
CITIBANK, N.A.,
as Administrative Agent
By
Title:
<PAGE>
THE CHASE MANHATTAN BANK
(as successor to Chemical Bank),
as Syndication Agent
By
Title:
<PAGE>
TORONTO DOMINION (TEXAS), INC.,
as Documentation Agent
By
Title:
<PAGE>
BANK OF AMERICA N.T. & S.A.
(as successor to Bank of America
Illinois),
as Syndication Agent
By
Title:
<PAGE>
Initial Lenders
Commitment
Agents
$46,000,000 CITIBANK, N.A.
By
Title:
<PAGE>
$46,000,000 THE CHASE MANHATTAN BANK
(as successor to Chemical Bank)
By
Title:
<PAGE>
$46,000,000 TORONTO DOMINION (TEXAS), INC.
By
Title:
<PAGE>
$46,000,000 BANK OF AMERICA N.T. & S.A.
(as successor to Bank of America Illinois)
By
Title:
<PAGE>
Co-Agents
$36,000,000 ABN AMRO BANK N.V.
By
Title:
<PAGE>
$36,000,000 THE BANK OF NEW YORK
By
Title:
<PAGE>
$36,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By
Title:
<PAGE>
$36,000,000 FIRST UNION NATIONAL BANK
(as successor to First Union National Bank
of North Carolina)
By
Title:
<PAGE>
$36,000,000 THE FUJI BANK, LIMITED, CHICAGO
BRANCH
By
Title:
<PAGE>
$36,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By
Title:
<PAGE>
$36,000,000 MELLON BANK, N.A.
By
Title:
<PAGE>
$36,000,000 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By
Title:
<PAGE>
$36,000,000 NATIONSBANK OF TEXAS, N.A.
By
Title:
<PAGE>
$36,000,000 THE ROYAL BANK OF CANADA
By
Title:
<PAGE>
$36,000,000 THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
By
Title:
<PAGE>
$36,000,000 THE BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By
Title:
<PAGE>
$20,000,000 BANKERS TRUST COMPANY
By
Title:
<PAGE>
$36,000,000 BANQUE NATIONALE DE PARIS
By
Title:
<PAGE>
$15,000,000 CREDIT SUISSE
By
Title:
<PAGE>
$15,000,000 CREDIT SUISSE FIRST BOSTON
By
Title:
<PAGE>
$10,000,000 CRESTAR BANK
By
Title:
<PAGE>
$20,000,000 THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By
Title:
<PAGE>
$15,000,000 FIRST HAWAIIAN BANK
By
Title:
<PAGE>
$36,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By
Title:
<PAGE>
$36,000,000 FLEET NATIONAL BANK
By
Title:
<PAGE>
$25,000,000 MITSUBISHI TRUST & BANKING CORP.
By
Title:
<PAGE>
$18,000,000 THE NORTHERN TRUST COMPANY
By
Title:
<PAGE>
$32,000,000 PNC BANK, NATIONAL ASSOCIATION
By
Title:
<PAGE>
$36,000,000 THE SAKURA BANK, LTD., CHICAGO
BRANCH
By
Title:
<PAGE>
$32,000,000 THE SANWA BANK, LIMITED,
CHICAGO BRANCH
By
Title:
<PAGE>
$15,000,000 THE TOKAI BANK, LTD.,
CHICAGO BRANCH
By
Title:
<PAGE>
$18,000,000 UNION BANK OF SWITZERLAND, NEW
YORK BRANCH
By
Title:
By
Title:
<PAGE>
$20,000,000 THE YASUDA TRUST AND BANKING
COMPANY, LTD.
By
Title:
$1,000,000,000.00 Total of the Commitments
<PAGE>
Schedule I - List of Applicable Lending Offices (omitted)
Schedule 3.01(f) - Agreements and Insruments Relating to Structure and
Capitalization
(Filed as Schedule 3.01(f) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 4.01(b) - Restricted Subsidiaries
(Filed as Schedule 4.01(b) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 4.01(d) - Required Authorizations, Approvals, Actions, Notices and
Filings
(Filed as Schedule 4.01(d) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 4.01(b) - Restricted Subsidiaries
(Filed as Schedule 4.01(b) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 5.01(h) - Transactions with Affiliates
(Filed as Schedule 5.01(h) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 5.02(a) - Existing Liens
(Filed as Schedule 5.02(a) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 5.02(d) - Surviving Debt
(Filed as Schedule 5.02(d) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 5.02(g) - Existing Investments
(Filed as Schedule 5.02(h) to Exhibit 10.9 to the Company's Annual Report of
Form 10-K for the fiscal year ended December 31, 1995; File No. 1-14108, and
incorporated herein by reference.)
Schedule 8.12 - Existing Commitments and Existing Advances (omitted)
<PAGE>
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, ____
FOR VALUE RECEIVED, the undersigned, 360 Communications
Company, a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate unpaid principal amount of the
Revolving Credit Advances made by the Lender to the Borrower pursuant to the
Second Amended and Restated Credit Agreement dated as of December 5, 1997 among
the Borrower, the Lender and certain other lenders parties thereto, Citibank,
N.A., as Administrative Agent, The Chase Manhattan Bank, as Syndication Agent,
Toronto Dominion (Texas), Inc., as Documentation Agent, and Bank of America N.T.
& S.A., as Syndication Agent (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance made to it from the date of such
Revolving Credit Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, at 399 Park
Avenue, New York, New York 10043, in same day funds. Each Revolving Credit
Advance owing to the Lender by the Borrower pursuant to the Credit Agreement,
and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, (i) provides for the making of Revolving
Credit Advances by the Lender to the Borrower from time to time in an aggregate
amount not to exceed at any time outstanding the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such Revolving
Credit Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
360 COMMUNICATIONS COMPANY
By
Title:
360 Exhibit A - Promissory Note
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
================================================================================
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
- --------------------------------------------------------------------------------
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360 Exhibit A - Promissory Note
<PAGE>
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, ____
FOR VALUE RECEIVED, the undersigned, 360 Communications
Company, a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Second Amended and Restated Credit
Agreement dated as of December 5, 1997 among the Borrower, the Lender and
certain other lenders parties thereto, Citibank, N.A., as Administrative Agent,
The Chase Manhattan Bank, as Syndication Agent, Toronto Dominion (Texas), Inc.,
as Documentation Agent, and Bank of America N.T. & S.A., as Syndication Agent
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)), on
___________________, 199_, the principal sum of U.S.$____________________.
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
Interest Rate: ________% per annum (calculated on the basis of a year
of ___ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, for the
account of the Lender at 399 Park Avenue, New York, New York 10043, in same day
funds.
This Promissory Note is one of the Competitive Bid Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
360 COMMUNICATIONS COMPANY
By
Title:
360 Exhibit A - Promissory Note
<PAGE>
EXHIBIT B-1
FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties to the
Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
[Date]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, 360 Communications Company, refers to the
Second Amended and Restated Credit Agreement, dated as of December 5, 1997 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto, Citibank, N.A., as
Administrative Agent, The Chase Manhattan Bank, as Syndication Agent, Toronto
Dominion (Texas), Inc., as Documentation Agent, and Bank of America N.T. & S.A.,
as Syndication Agent and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Revolving Credit Borrowing under the Credit Agreement, and in that connection
sets forth below the information relating to such Revolving Credit Borrowing
(the "Proposed Revolving Credit Borrowing") as required by Section 2.02(a) of
the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit
Borrowing is _______________, 199_/20__.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is $---------------.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Revolving Credit Borrowing is
__________ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Revolving Credit Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
1649.4/NYL4A
<PAGE>
2
(B) no event has occurred and is continuing, or would result
from such Proposed Revolving Credit Borrowing or from the application
of the proceeds therefrom, that constitutes a Default.
Very truly yours,
360 COMMUNICATIONS COMPANY
By
Title:
1649.4/NYL4A
<PAGE>
EXHIBIT B-2
FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties to the
Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
[Date]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, 360 Communications Company, refers to the
Second Amended and Restated Credit Agreement, dated as of December 5, 1997 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto, Citibank, N.A., as
Administrative Agent, The Chase Manhattan Bank, as Syndication Agent, Toronto
Dominion (Texas), Inc., as Documentation Agent, and Bank of America N.T. & S.A.,
as Syndication Agent and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing
(B) Amount of Competitive Bid Borrowing
(C) [Maturity Date] [Interest Period]
(D) Interest Rate Basis
(E) Interest Payment Date(s)
(F)
(G)
(H)
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Competitive Bid Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date; and
(b) no event has occurred and is continuing, or would result
from such Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default;
<PAGE>
2
(c) the aggregate amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day under the
Credit Agreement is within the aggregate amount of the unused
Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive
Bid Borrowing is to be made available to it in accordance with Section
2.03(a)(v) of the Credit Agreement.
Very truly yours,
360 COMMUNICATIONS COMPANY
By
Title:
<PAGE>
EXHIBIT C
FORM OF ASSIGNMENT
AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit
Agreement dated as of December 5, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among 360 Communications
Company, a Delaware corporation (the "Borrower"), the Lenders (as defined in the
Credit Agreement) and Citibank, N.A., as Administrative Agent (the
"Administrative Agent"), The Chase Manhattan Bank ("Chase"), Toronto Dominion
(Texas), Inc., as Documentation Agent (the "Documentation Agent"), and Bank of
America N.T. & S.A. ("BankAmerica", together with Chase each a "Syndication
Agent" and collectively the "Syndication Agents", and the Syndication Agents
together with the Administrative Agent and the Documentation Agent, the
"Agents"). Terms defined in the Credit Agreement are used herein with the same
meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof (other than in respect of Competitive Bid Advances and Competitive
Bid Notes) equal to the percentage interest specified on Schedule 1 hereto of
all outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Revolving Credit Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Revolving Credit Note
held by the Assignor and requests that the Administrative Agent exchange such
Revolving Credit Note for a new Revolving Credit Note payable to the order of
the Assignee in an amount equal to the Commitment assumed by the Assignee
pursuant hereto or new Revolving Credit Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal
<PAGE>
2
to the Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon any Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Credit Agreement as are
delegated to such Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 2.13 of
the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Revolving Credit Notes in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the Revolving Credit Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
<PAGE>
3
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
<PAGE>
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of
Revolving Credit Advances assigned: $_______________
Principal amount of Revolving Credit Note
payable to Assignee: $_______________
Principal amount of Revolving Credit Note
payable to Assignor: $_______________
Effective Date1: _______________, [199_][20__]
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: _______________, [199_][20__]
[NAME OF ASSIGNEE], as Assignee
By
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
- --------
1 This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
<PAGE>
2
Accepted [and Approved]2 this
__________ day of _______________, [199_][20__]
CITIBANK, N.A., as Administrative Agent
By
Title:
[Approved this __________ day
of _______________, [199_][20__]
360 COMMUNICATIONS COMPANY
By ]2
Title:
- --------
2 Required if the Assignee is an Eligible Assignee solely by reason of clause
(viii) of the definition of "Eligible Assignee".
<PAGE>
EXHIBIT D
FORM OF
DESIGNATION AGREEMENT
Dated _______________, 199_
Reference is made to the Second Amended and Restated Credit
Agreement dated as of December 5, 1997 (as amended or modified from time to
time, the "Credit Agreement") among 360 Communications Company, a Delaware
corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement),
Citibank, N.A., as Administrative Agent, The Chase Manhattan Bank, as
Syndication Agent, Toronto Dominion (Texas), Inc., as Documentation Agent, and
Bank of America Illinois, as Syndication Agent. Terms defined in the Credit
Agreement are used herein with the same meaning.
_________________________ (the "Designor") and
_________________________ (the "Designee") agree as follows:
1. The Designor hereby designates the Designee, and the
Designee hereby accepts such designation, to have a right to make Competitive
Bid Advances pursuant to Section 2.03 of the Credit Agreement.
2. The Designor makes no representation or warranty and
assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto and (ii) the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Credit Agreement
or any other instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Designor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is a Designated Bidder; (iv)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit Agreement
as are delegated to the Administrative Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; and (v) agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of the Credit Agreement are required to be performed by it as a
Lender.
4. Following the execution of this Designation Agreement by
the Designor and its Designee, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective date for
this Designation Agreement (the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on the
signature page hereto.
3370.1/NYL4/Desgination Agreement
<PAGE>
2
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, the Designee shall be a party to the Credit
Agreement with a right to make Competitive Bid Advances as a Lender pursuant to
Section 2.03 of the Credit Agreement and the rights and obligations of a Lender
related thereto.
6. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
7. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by telecopier
shall be effective as delivery of a manually executed counterpart of this
Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee have caused
this Designation Agreement to be executed by their officers thereunto duly
authorized as of the date first above written.
Effective Date*: _______________, 199__
[NAME OF DESIGNOR],
as Designor
By
Title:
[NAME OF DESIGNEE],
as Designee
By
Title:
Applicable Lending Office (and
address for notices):
[Address]
- --------
* This date should be no earlier than five Business Days after the
delivery of this Designation Agreement to the Administrative Agent.
3
Accepted this ____ day
of _______________, 199_
CITIBANK, N.A., as ADMINISTRATIVE AGENT
By
Title:
3370.1/NYL4/Desgination Agreement
<PAGE>
Exhibit D - Form of Opinion of General Counsel of the Borrower
December 5, 1997
To the Lenders party to the Credit
Agreement referred to below and to
Citibank, N.A., as Administrative Agent,
The Chase Manhattan Bank and Bank of
America N.T. & S.A., as Syndication Agents,
and Toronto Dominion (Texas), Inc., as
Documentation Agent
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of 360
Communications Company, a Delaware corporation (the "Borrower"). Reference is
made to that certain Second Amended and Restated Credit Agreement (the "Credit
Agreement") dated as of December 5, 1997 among the Borrower and each of you, and
the related documents described herein.
This opinion is being furnished to you pursuant to Section 3.01(j)(v)
of the Credit Agreement. Capitalized terms used and not otherwise defined herein
shall have their respective meanings set forth in the Credit Agreement.
In connection with this opinion, I have examined and am familiar with
original or copies, certified or otherwise identified to my satisfaction, of the
following:
(i) the Credit Agreement;
(ii) those certain Revolving Credit Notes of even date herewith
executed by the Borrower in favor of each Lender;
(iii) the form of Competitive Bid Notes attached as Exhibit A-2 to
the Credit Agreement, which Notes may be executed and
delivered by the Borrower from time to time under Section 2.03
of the Credit Agreement;
(iv) the Assignment Agreement;
(v) the Amended and Restated Certificate of Incorporation, as
amended (the "Charter"), and the Amended and Restated Bylaws
(the "Bylaws") of the Borrower;
(vi) certain resolutions of the Board of Directors of the Borrower
duly adopted at a
<PAGE>
meeting of the Board of Directors held on July 14, 1997; and
(vii) a certificate from the Secretary of State of the State of
Delaware as to the corporate existence and good standing of
the Borrower in such jurisdiction.
The Credit Agreement, the Assignment Agreement, the Revolving Credit
Notes described in clause (ii) above and the Competitive Bid Notes described in
clause (iii) above are herein referred to collectively as the "Credit
Documents."
I have also examined originals or copies, certified or otherwise
identified to my satisfaction, of such corporate records of the Borrower, public
records, agreements and other instruments, certificates of public officials,
certificates of officers of the Borrower and such other documents and questions
of law as I have deemed relevant in connection with the rendering of this
opinion.
In my examination I have assumed, without any investigation, the
genuineness of all signatures (other than those of the Borrower), the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents presented to
me as certified or photostatic copies and the authenticity of the originals of
such documents. As to any questions of fact material to the opinions herein
expressed that I did not independently verify or establish, I have relied upon
written statements of officers of the Borrower and I have no reason to believe
such reliance was not justified. Whenever my opinion in this letter is qualified
by the phrase "to the best of my knowledge" or a phrase of similar import, such
phrase is intended to signify that no information has come to my attention or to
the attention of the lawyers acting under my supervision that would give us
actual current knowledge of the existence or absence of such factual matter in
question.
I am a member of the Bar of the State of Illinois, and I do not express
any opinion as to the laws of any jurisdiction other than the State of Illinois,
the General Corporation Law of the State of Delaware, the federal securities
laws of the United States and, to the extent applicable to the Borrower and its
subsidiaries, the federal laws of the United States relating specifically to
public utilities and/or telecommunications companies.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has, either itself
or through its subsidiaries, all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and other
approvals and all intellectual property) adequate to own or lease and operate
its properties and to carry on its business.
2. The execution and delivery by the Borrower of the Credit Documents
and the performance by the Borrower of its obligations thereunder, each in
accordance with its terms, and the consummation of the transactions contemplated
thereby, are within the Borrower's corporate
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<PAGE>
powers, have been duly authorized by all necessary corporate action, and do not
or, in the case of the Competitive Bid Notes, will not (a) conflict with the
Charter or the Bylaws, (b) contravene any judgment, order or decree binding on
or affecting the Borrower or any of its Subsidiaries or any of their respective
properties or (c) to the best of my knowledge, after reasonable inquiry,
conflict or be inconsistent with or result in any breach of or constitute a
default under any material contractual obligation of the Borrower or any of its
Subsidiaries.
3. To the best of my knowledge, neither the execution, delivery or
performance by the Borrower of the Credit Documents nor the compliance by the
Borrower with the terms and provisions thereof nor the consummation of the
transactions contemplated thereby, will contravene any provision of any
Applicable Law. For purposes of the opinion expressed in this paragraph 3,
"Applicable Laws" shall mean those laws, rules and regulations of the State of
Illinois, the General Corporation Law of the State of Delaware and, to the
extent applicable to the Borrower and its Subsidiaries, the federal laws of the
United States relating specifically to public utilities and/or
telecommunications companies which, in my experience, are normally applicable to
transactions of the type contemplated by the Credit Documents and are not
otherwise the subject of a specific opinion herein that expressly refers to a
particular law or laws.
4. No authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority or, to the best of my knowledge, any
other third party, which has not been obtained or taken and is not in full force
and effect, is required to authorize or is legally required in connection with
the due execution, delivery and performance by the Borrower of any of the Credit
Documents or for the consummation of the transactions contemplated thereby.
5. Except for the Competitive Bid Notes, each of the Credit Documents
has been duly executed and delivered by the Borrower. In any action or
proceeding arising out of or relating to the Credit Documents in any court of
the State of Illinois or in any federal court sitting in the State of Illinois,
such court should recognize and give effect to the governing law provision of
the Credit Agreement wherein the parties thereto agree that the Credit Documents
shall be governed by the laws of the State of New York. Without limiting the
generality of the foregoing, a court of the State of Illinois or a federal court
sitting in the State of Illinois should apply the usury law of the State of New
York to the Credit Documents. However, if a court were to hold that the Credit
Documents are governed by, and to be construed in accordance with, the laws of
the State of Illinois, each of the Credit Agreement, the Assignment Agreement,
the Revolving Credit Notes and, assuming the execution and delivery thereof by
the Borrower in accordance with the Credit Agreement, the Competitive Bid Notes
would be, under the laws of the State of Illinois, the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, subject as to enforceability, to the effect of any applicable
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
6. The Borrower has not been served with and there is not, to the best
of my knowledge,
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<PAGE>
after reasonable inquiry, any litigation, arbitration or administrative
proceeding including, without limitation, any Environmental Action, of or before
any court, arbitrator or governmental authority pending or threatened by or
against the Borrower or against any of its Subsidiaries (a) which purports to
affect the legality, validity or enforceability of the Credit Documents, or the
consummation of the transactions contemplated thereby, or (b) which, if
adversely determined, would be reasonably likely to have a Material Adverse
Effect.
7. The provisions of the Credit Documents (without regard for any
provisions thereof limiting the payment of interest or any other sums thereunder
to the highest rate permitted by applicable law) do not violate any applicable
law of the State of Illinois relating to usury.
8. Neither the Borrower nor any of its Subsidiaries is an "investment
company," or an "affiliated person" of, or "promotor" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
This opinion is being furnished solely to you, is solely for your
benefit and the benefit of financial institutions that may become Lenders under
the Credit Agreement after the date hereof, and is being issued solely in
connection with the transactions contemplated by the Credit Documents. This
opinion may not be relied upon by any other person for any other purpose without
my prior written consent. The opinion set forth herein is rendered as of the
date hereof and will not be updated at any time as a result of, or in response
to, any change in law or fact.
Very truly yours,
Kevin C. Gallagher
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