Exhibit 10(a)
EXECUTION COPY
$3,000,000,000
364-DAY CREDIT AGREEMENT
Dated as of August 4, 2000
Among
SPRINT CORPORATION
and
SPRINT CAPITAL CORPORATION
as Borrowers
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
CITIBANK, N.A.
as Administrative Agent
SALOMON SMITH BARNEY INC.
as Book Manager and Arranger
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
as Syndication Agent
and
BANK OF AMERICA, N.A.
and
THE CHASE MANHATTAN BANK
as Documentation Agents
<PAGE>
TABLE OF CONTENTS Page
Article I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. 1
SECTION 1.02. Computation of Time Periods. 11
SECTION 1.03. Accounting Terms. 11
Article II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. 11
SECTION 2.02. Making the Revolving Credit Advances. 11
SECTION 2.03. The Competitive Bid Advances. 12
SECTION 2.04. Fees. (a) Facility Fee. 15
SECTION 2.05. Optional Termination or Reduction of
the Commitments. 15
SECTION 2.06. Repayment of Advances. 15
SECTION 2.07. Interest on Revolving Credit Advances 15
SECTION 2.08. Interest Rate Determination. 16
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. 17
SECTION 2.10. Optional Prepayments of Revolving Credit
Advances. 17
SECTION 2.11. Increased Costs. 17
SECTION 2.12. Illegality. 18
SECTION 2.13. Payments and Computations. 18
SECTION 2.14. Taxes. 18
SECTION 2.15. Sharing of Payments, Etc. 20
SECTION 2.16. Increase in the Aggregate Commitments. 20
SECTION 2.17. Extension of Revolver Termination Date. 21
SECTION 2.18. Use of Proceeds. 23
Article III CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. 23
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing, Increase Date and
Extension Date. 24
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing. 25
SECTION 3.04. Determinations Under Section 3.01 25
Article IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrowers. 25
Article V COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. 26
SECTION 5.02. Negative Covenants. 28
SECTION 5.03. Financial Covenants. 29
Article VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default. 30
<PAGE>
Article VII COMPANY GUARANTY
SECTION 7.01. Guaranty. 31
SECTION 7.02. Guaranty Absolute. 32
SECTION 7.03. Waiver. 32
SECTION 7.04. Continuing Guaranty; Assignments. 32
SECTION 7.05. Subrogation. 32
Article VIII THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action. 33
SECTION 8.02. Administrative Agent's Reliance, Etc. 33
SECTION 8.03. Citibank and Affiliates. 33
SECTION 8.04. Lender Credit Decision. 34
SECTION 8.05. Indemnification. 34
SECTION 8.06. Successor Administrative Agent. 34
SECTION 8.07. Other Agents. 34
Article IX MISCELLANEOUS
SECTION 9.01. Amendments, Etc. 34
SECTION 9.02. Notices, Etc. 35
SECTION 9.03. No Waiver; Remedies. 35
SECTION 9.04. Costs and Expenses. 35
SECTION 9.05. Right of Set-off. 36
SECTION 9.06. Binding Effect. 36
SECTION 9.07. Assignments and Participations. 36
SECTION 9.08. Confidentiality. 38
SECTION 9.09. Governing Law. 38
SECTION 9.10. Execution in Counterparts. 38
SECTION 9.11. Jurisdiction, Etc. 38
SECTION 9.12. Waiver of Jury Trial. 39
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A - Form of Note
Exhibit B-1 - Form of Notice of Revolving Credit
Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid
Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrowers
<PAGE>
364-DAY CREDIT AGREEMENT
Dated as of August 4, 2000
SPRINT CORPORATION, a Kansas corporation (the "Company"), SPRINT
CAPITAL CORPORATION, a Delaware corporation ("Sprint Capital" and, together with
the Company, the "Borrowers"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the signature pages
hereof, and CITIBANK, N.A. ("Citibank"), as administrative agent (together with
any successor administrative agent appointed pursuant to Section 8.06, the
"Administrative Agent") for the Lenders (as hereinafter defined), SALOMON SMITH
BARNEY INC., as book manager and arranger, MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as syndication agent, and BANK OF AMERICA, N.A. and THE CHASE MANHATTAN
BANK, as documentation agents, agree 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):
"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.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank
with its office at 2 Penns Way, Suite 200, New Castle, Delaware 19720,
Account No. 36852248, Attention: Bank Loan Syndications.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
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.
"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:
<PAGE>
2
<TABLE>
<CAPTION>
Public Debt Applicable
Rating Margin for
S&P/Moody's Eurodollar Rate
Advances
<S> <C>
Level 1
A /A2 or above 0.240%
Level 2
A- / A3 0.430%
Level 3
BBB+ / Baa1 0.460%
Level 4
BBB / Baa2 0.580%
Level 5
BBB- / Baa3 0.725%
Level 6
Lower than 1.050%
Level 5 or
unrated
</TABLE>
"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:
<TABLE>
<CAPTION>
Public Debt Applicable
Rating Percentage
S&P/Moody's
<S> <C>
Level 1
A / A2 or above 0.060%
Level 2
A- / A3 0.070%
Level 3
BBB+/Baa1 0.090%
Level 4
BBB / Baa2 0.120%
Level 5
BBB- / Baa3 0.150%
Level 6
Lower than 0.200%
Level 5 or
unrated
</TABLE>
<PAGE>
3
"Applicable Utilization Fee" means, as of any date on which the
aggregate principal amount of the Advances equals or exceeds 25% of the
aggregate amount of the Lender's Commitments, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
<TABLE>
<CAPTION>
Public Debt Applicable
Rating Percentage
S&P/Moody's
<S> <C>
Level 1
A / A2 or above 0.050%
Level 2
A- / A3 0.050%
Level 3
BBB+/Baa1 0.125%
Level 4
BBB / Baa2 0.150%
Level 5
BBB- / Baa3 0.250%
Level 6
Lower than 0.250%
Level 5 or
unrated
</TABLE>
"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.
"Assuming Lender" means an Increase Assuming Lender or an Extension
Assuming Lender.
"Assumption Agreement" means (a) in the case of any such agreement
delivered pursuant to Section 2.17(c), an assumption agreement entered into
between an Extension Assuming Lender and a Non-Consenting Lender and
accepted by the Administrative Agent and the Company, in such form as is
agreed among the applicable Extension Assuming Lender, the applicable
NonConsenting Lender, the Administrative Agent and the Company and (b) in
the case of any such agreement delivered pursuant to Section 2.16(d), an
assumption agreement entered into between an Increase Assuming Lender and
the Borrowers and accepted by the Administrative Agent, in form and
substance satisfactory to the Administrative Agent.
"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 1/4 of 1% or, if there is no nearest
1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per annum, 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
<PAGE>
4
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 City 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.
"Commitment Date" has the meaning specified in Section 2.16(b).
"Commitment Increase" has the meaning specified in Section 2.16(a).
"Competitive Bid Advance" means an advance by a Lender to a 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.
"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 Reduction" has the meaning specified in Section 2.01.
"Confidential Information" means information that any Borrower
furnishes to the Administrative Agent or any Lender in a writing designated
as confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes available
to the Administrative Agent or such Lender from a source other than a
Borrower.
"Consenting Lender" has the meaning specified in Section 2.17(b).
"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.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services (other than trade
payables not overdue by more than 60 days incurred in the ordinary course
of such Person's business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all obligations
of such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital
<PAGE>
5
leases, (e) all obligations, contingent or otherwise, of such Person in
respect of acceptances, letters of credit or similar extensions of credit,
(f) all Debt of others referred to in clauses (a) through (e) above or
clause (g) 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 (g) all Debt referred to in
clauses (a) through (f) 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.
"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 or in the Assignment and Acceptance or
Assumption Agreement 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
Borrowers and the Administrative Agent.
"EBITDA" means, for any period, net income (or net loss) (before
discontinued operations for such period and exclusive of (x) the income or
loss resulting from extraordinary items and (y) the income or loss of any
Person accounted for by the Company on the equity method) plus the sum of
(a) interest expense, (b) income tax expense, (c) depreciation expense and
(d) amortization expense, 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
that is a bank or other financial institution; and (iii) any other bank or
financial institution approved by the Administrative Agent and, unless an
Event of Default has occurred and is continuing at the time any assignment
is effected in accordance with Section 9.07, the Company, such approval not
to be unreasonably withheld or delayed; provided, however, that neither any
Borrower nor an Affiliate of any Borrower 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 and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance 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.
<PAGE>
6
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Company's controlled group, or under common
control with the Company, 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 Company or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Company 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.
"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 or
Assumption Agreement 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 Borrowers
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
<PAGE>
7
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.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Assuming Lender" has the meaning specified in Section
2.17(c).
"Extension Date" has the meaning specified in Section 2.17(b).
"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.
"Five-Year Credit Agreement" means the Five-Year Credit Agreement
dated as of August 7, 1998 among the Company, Sprint Capital, the lenders
parties thereto, Citibank, as administrative agent, Morgan Guaranty Trust
Company of New York, as syndication agent, and Bank of America, N.A.
National Trust and Savings Association and The Chase Manhattan Bank, as
documentation agents, as amended, supplemented or otherwise modified from
time to time.
"Fixed Rate Advances" has the meaning specified in Section 2.03(a)(i).
"FON Group" has the meaning specified in the Company's Articles of
Incorporation.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"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.
"Increase Assuming Lender" has the meaning specified in Section
2.16(d).
"Increase Date" has the meaning specified in Section 2.16(a).
"Increasing Lender" has the meaning specified in Section 2.16(b).
"Information Memorandum" means the information memorandum dated June
28, 2000 used by the Administrative Agent in connection with the
syndication of the Commitments.
"Insignificant Subsidiary" means any Subsidiary of the Company that
(i) has assets aggregating $500,000 or less and (ii) does not have any
creditor that is the beneficiary of a guaranty of the Company or any of its
Subsidiaries.
"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 LIBO Rate Advance
or the date of the Conversion of any Base Rate Advance into such Eurodollar
Rate Advance and ending on the last day of the
<PAGE>
8
period selected by the applicable 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 such
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months (or if
available to all Lenders, nine months), as the applicable Borrower
may, upon notice received by the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:
(i) no Borrower may select any Interest Period that ends after the
scheduled Revolver 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;
(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 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.
"Lenders" means the Initial Lenders and each Person that shall become
a party hereto pursuant to Section 2.16, Section 2.17 or Section 9.07.
"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 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.
<PAGE>
9
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Borrower or any Borrower and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Borrower or any Borrower and its
Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or any Lender under this Agreement or any Note or (c)
the ability of any Borrower to perform its obligations under this Agreement
or any Note.
"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 Company 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
Company or any ERISA Affiliate and at least one Person other than the
Company and the ERISA Affiliates or (b) was so maintained and in respect of
which the Company 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 Worth" means the sum of (a) common stock and other shareholders'
equity, (b) capital in excess of par or stated value, (c) retained
earnings, (d) redeemable preferred stock, (e) non-redeemable preferred
stock and (f) deferred taxes and deferred income tax credits, in each case
of the Company and its Subsidiaries on a Consolidated basis.
"Non-Consenting Lender" has the meaning specified in Section 2.17(b).
"Note" means a promissory note of a Borrower payable to the order of
any Lender, in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of such Borrower to such Lender resulting from the
Advances made by such Lender.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PCS Group" has the meaning specified in the Company's Articles of
Incorporation.
"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 or which are being
contested in good faith by appropriate proceedings and as to which
appropriate reserves are being maintained; (c) pledges or deposits to
secure obligations under workers' compensation laws or similar legislation
or to secure public or statutory obligations; (d) deposits to secure the
performance of bids, trade contracts (other than for borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business; 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.
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10
"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 highest rating that
has been most recently announced by either S&P or Moody's, as the case may
be, for any class of non-credit enhanced long-term senior unsecured debt
issued by the Company. For purposes of the foregoing, (a) if only one of
S&P and Moody's shall have in effect a Public Debt Rating, the Applicable
Margin, the Applicable Percentage and the Applicable Utilization Fee shall
be determined by reference to the available rating; (b) if neither S&P nor
Moody's shall have in effect a Public Debt Rating, the Applicable Margin,
the Applicable Percentage and the Applicable Utilization Fee will be set in
accordance with Level 6 under the definition of "Applicable Margin",
"Applicable Percentage" or "Applicable Utilization Fee", as the case may
be; (c) if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be based upon the higher rating, provided
that if the lower of such ratings is more than one level below the higher
of such ratings, then the Applicable Margin, the Applicable Percentage and
the Applicable Utilization Fee shall be based on the rating that is the
level above the lower of such ratings; (d) 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 (e) 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.
"Reference Banks" means Citibank, Morgan Guaranty Trust Company of New
York, Bank of America, N.A. and The Chase Manhattan Bank.
"Register" has the meaning specified in Section 9.07(d).
"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.
"Revolver Termination Date" means the earlier of (a) August 3, 2001,
subject to the extension thereof pursuant to Section 2.17, or (b) the date
of termination in whole of the Commitments pursuant to Section 2.05 or
6.01, or if such date is not a Business Day, the immediately preceding
Business Day; provided, however, that the Revolver Termination Date of any
Lender that is a Non-Consenting Lender to any requested extension pursuant
to Section 2.17 shall be the Revolver Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of this
Agreement.
"Revolving Credit Advance" means an advance by a Lender to a 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.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"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
Company or any ERISA Affiliate and no Person other than the Company and the
ERISA Affiliates or (b) was so maintained and in respect of which the
Company or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
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11
"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 interest in the capital or
profits of 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.
"Telephone Asset" means any asset of a Person used by such Person to
provide telephone or communication services.
"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 appoint or 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.
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(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to any Borrower from time to time on any Business Day during
the period from the Effective Date until the Revolver 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 or an Assumption Agreement,
set forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d), as such amount may be reduced pursuant to
Section 2.05 (such Lender's "Commitment"), provided that the aggregate amount
of the Commitments of the 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 $25,000,000 or an integral multiple of
$1,000,000 in excess thereof 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. Notwithstanding any other provision of this Agreement,
more than one Revolving Credit Borrowing may be made on the same day by either
or both Borrowers. Within the limits of each Lender's Commitment, the Borrowers
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 11:00
A.M. (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 the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Base Rate Advances, by a 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
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12
Revolving Credit 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 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 make such funds available on
the date of such Revolving Credit Advance to the Borrower giving such Notice of
Revolving Credit Borrowing at the Administrative Agent's address referred to in
Section 9.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, no
Borrower may select Eurodollar Rate Advances for any Revolving Credit Borrowing
at any time that the obligation of the Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower giving such Notice of Revolving Credit Borrowing. 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 giving such Notice of Revolving Credit Borrowing shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a
result of any failure 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 Applicable Margin), 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 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 a Borrower giving such Notice
of Revolving Credit Borrowing 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 applicable 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 such Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of such Borrower, the
interest rate applicable at the time to Revolving Credit Advances comprising
such Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the 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 any 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 30 days prior to the Revolver
Termination Date in the manner set forth below; provided that, following
the making of each Competitive Bid Borrowing, the aggregate amount of the
Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction).
(i) Any 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,
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13
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 Revolver
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
one Business Day prior to the date of the proposed Competitive Bid
Borrowing, if the applicable 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 four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the applicable Borrower shall
instead specify in the Notice of Competitive Bid Borrowing that the rates
of interest to 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 a 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
applicable 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 such 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) 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, 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 applicable
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.
(iii) The Borrower giving the Notice of Competitive Bid Borrowing
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:
(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 applicable 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 giving the Notice of
Competitive Bid Borrowing shall accept the offers made by any Lender
or Lenders to make Competitive Bid Advances in order of the lowest to
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14
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 among such Lenders in
proportion to the maximum amount that each such Lender offered at such
interest rate.
(iv) If the applicable Borrower notifies the Administrative Agent
that such Competitive Bid Borrowing is canceled 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 applicable 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 applicable 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 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
promptly make such funds available to the applicable Borrower at the
Administrative Agent's address referred to in Section 9.02. Promptly after
each Competitive Bid Borrowing the Administrative Agent will notify each
Lender of the amount of the Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such Competitive Bid
Reduction commenced and will terminate.
(vi) If the applicable 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 such Borrower. The Borrower giving the
Notice of Competitive Bid Borrowing shall indemnify each Lender against
any loss, cost or expense incurred by such Lender as a result of any
failure 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, 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
$25,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrowers 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 Borrowers 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.
(d) The applicable 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
such Borrower for repayment of such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above), the then unpaid principal amount of such Competitive Bid Advance. No
Borrower shall have any right to prepay any principal amount of any Competitive
Bid Advance unless, and then only on the terms, specified by the applicable
Borrower for such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above.
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15
(e) The applicable 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 such Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above. Upon the occurrence and during
the continuance of an Event of Default, such 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.
SECTION 2.04. Fees. (a) Facility Fee. The Borrowers agree to pay to
the Administrative Agent for the account of each Lender a facility fee on the
aggregate amount of such Lender's Commitment from the date hereof in the case
of each Initial Lender and from the effective date specified in the Assignment
and Acceptance or Assumption Agreement pursuant to which it became a Lender in
the case of each other Lender until the Revolver Termination Date (or, if
applicable, until such Lender's Commitment has been assigned to another
Lender) 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 September 30, 2000, and on the
Revolver Termination Date.
(b) Administrative Agent's Fees. The Borrowers shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed among the Borrowers and the Administrative Agent.
SECTION 2.05. Optional Termination or Reduction of the Commitments.
The Company shall have the right, upon at least three Business Days' notice to
the Administrative Agent, to terminate in whole or reduce ratably in part the
aggregate unused Commitments of the Lenders; provided that each partial
reduction shall be in an aggregate amount of $25,000,000 or an integral multiple
of $1,000,000 in excess thereof or, if less, the aggregate amount of all
Commitments at such time.
SECTION 2.06. Repayment of Advances. (a) Revolving Credit Advances.
Each Borrower shall repay to the Administrative Agent, for the ratable account
of the Lenders, on the Revolver Termination Date the aggregate principal
amount of all Revolving Credit Advances made to it outstanding on such date.
(b) Competitive Bid Advances. Each Borrower shall repay to the
Administrative Agent, for the account of each Lender that has made a Competitive
Bid Advance, the aggregate outstanding principal amount of each Competitive Bid
Advance made to such Borrower and owing to such Lender on the earlier of (i) the
maturity date therefor, specified in the related Notice of Competitive Bid
Borrowing delivered pursuant to Section 2.03(a)(i) and (ii) the Revolver
Termination Date.
SECTION 2.07. Interest on Revolving Credit Advances (a) Scheduled
Interest. Each Borrower shall pay interest on the unpaid principal amount
of each Revolving Credit Advance made to it 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
Base Rate 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 plus (z) the Applicable Utilization Fee, 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.
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16
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default under Section 6.01(a) or Section 6.01(e), each Borrower shall
pay interest on (i) the unpaid principal amount of each Revolving Credit Advance
made to it and 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 Revolving Credit
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 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 Borrowers 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
Borrowers 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 Borrowers and
the Lenders that the circumstances causing such suspension no longer exist.
(c) If any 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 such 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) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $25,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default
under Section 6.01(a) or Section 6.01(e), (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 Advances into, Eurodollar Rate Advances shall be suspended.
(f) 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 Borrowers 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
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17
(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 Borrowers and the Lenders that the circumstances causing such suspension
no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. Each
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (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 made to it of one
Type comprising the same 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, and 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. 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 giving such notice.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances.
Each Borrower may, upon notice by 11:00 A.M. (New York City time) at least two
Business Days' prior to the date of the proposed prepayment (in the case of
Eurodollar Rate Advances) and notice by 11:00 A.M. (New York City time) on the
date of the proposed prepayment (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 such Borrower shall, prepay the
outstanding principal amount of the Revolving Credit Advances made to it
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 $25,000,000 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, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
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) after the date hereof, in the case of Eurodollar Rate Advances, or
after the date of any Lender's offer to make a Competitive Bid Advance
pursuant to Section 2.03(a)(ii), in the case of LIBO Rate Advances, 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 Borrowers 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 to the amount of such increased cost, submitted to the
Borrowers 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 Borrowers shall pay to the
Administrative 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
to such amounts submitted to the Borrowers and the Administrative Agent by such
Lender shall be conclusive and binding for all purposes, absent manifest error.
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18
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 such 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 LIBO Rate Advance of such
Lender and each Eurodollar Rate Advance 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 such Lender to make LIBO Rate Advances and the obligation of the Lenders to
make Eurodollar Rate Advances or to Convert Revolving Credit Advances into
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrowers and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) Each 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 facility fees ratably (other than
amounts payable pursuant to Section 2.03, 2.11, 2.14 or 9.04(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 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 9.07(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) All computations of interest based on the Base Rate 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 Eurodollar Rate or the
Federal Funds Rate and of facility fees and utilization 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 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.
(c) 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 fees, 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.
(d) Unless the Administrative Agent shall have received notice from the
applicable Borrower prior to the date on which any payment is due to the
Lenders hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such 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 applicable 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 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) Any and all payments by each 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 the
Administrative Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the
jurisdiction under the laws of which such Lender or the Administrative
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 net income taxes, by
the jurisdiction of such Lender's Applicable
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19
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"). If any 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
the Administrative 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
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Borrower
shall make such deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Borrower shall 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) Each Borrower shall indemnify each Lender and the Administrative Agent
for and hold it harmless against the full amount of Taxes or Other Taxes imposed
on or paid by such Lender or the Administrative Agent (as the case may be) and
any liability (including penalties, interest and expenses, but excluding
items specifically excluded from the definition of "Taxes" in subsection (a)
above) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Administrative Agent
(as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each Borrower
shall furnish to the Administrative Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing such payment. In
the case of any payment hereunder or under the Notes by or on behalf of any
Borrower through an account or branch outside the United States or by or on
behalf of such Borrower by a payor that is not a United States person, if such
Borrower determines that no Taxes are payable in respect thereof, such 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 or the Assumption Agreement pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as requested
in writing by the Borrowers (but only so long as such Lender remains lawfully
able to do so), shall provide each of the Administrative Agent and the Borrowers
with two (or such other number as may be prescribed by applicable laws or
regulations) original, duly completed Internal Revenue Service form W-8BEN,
W-8ECI, or W-8IMY, as appropriate, or any successor or other forms 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 form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates 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 form; provided, however, that, if at the date of
the Assignment and Acceptance or the Assumption Agreement 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 United States withholding tax at a rate
equal to the lesser of (i) the rate of United States withholding tax, if any,
included in Taxes in respect of the Lender assignor on such date or (ii) the
rate of United States withholding tax, if any, applicable with respect to the
Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required by Internal
Revenue Service form W-8BEN, W- 8ECI, or W-8IMY, or any successor or other forms
prescribed by the Internal Revenue Service, that the Lender reasonably considers
to be confidential, the Lender shall give notice thereof to the Borrowers and
shall not be obligated to include in such form or document such confidential
information.
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20
(f) For any period with respect to which a Lender has failed to provide the
Borrowers 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 subsection (e) above), 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 Borrowers shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(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, 2.14 or 9.04(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. Each 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 such Borrower in the amount of such
participation.
SECTION 2.16. Increase in the Aggregate Commitments. (a) The Borrowers
may, at any time but in any event not more than once in any calendar year prior
to the Revolver Termination Date, by notice to the Administrative Agent,
request that the aggregate amount of the Commitments be increased by
$25,000,000 or an integral multiple of $25,000,000 in excess thereof (each
a "Commitment Increase") to be effective as of a date that is at least 90 days
prior to the scheduled Revolver Termination Date then in effect (the
"Increase Date") as specified in the related notice to the Administrative
Agent; provided, however, that (i) in no event shall the aggregate amount of the
Commitments at any time exceed $3,500,000,000, (ii) no Default shall have
occurred and be continuing as of the date of such request and (iii) all of the
applicable conditions set forth in Article III shall be satisfied as of the
applicable Increase Date.
(b) The Administrative Agent shall promptly notify the Lenders of a request
by the Borrowers for a Commitment Increase, which notice shall include (i) the
proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date"). Each Lender that is willing to participate
in such requested Commitment Increase (each an "Increasing Lender") shall, in
its sole discretion, give written notice to the Administrative Agent on or prior
to the Commitment Date of the amount by which it is willing to increase its
Commitment. If the Lenders notify the Administrative Agent that they are willing
to increase the amount of their respective Commitments by an aggregate amount
that exceeds the amount of the requested Commitment Increase, the requested
Commitment Increase shall be allocated among the Lenders willing to participate
therein in such amounts as are agreed between the Borrowers and the
Administrative Agent.
(c) Promptly following each Commitment Date, the Administrative Agent shall
notify the Borrowers as to the amount, if any, by which the Lenders are willing
to participate in the requested Commitment Increase. If the aggregate amount by
which the Lenders are willing to participate in any requested Commitment
Increase on any such Commitment Date is less than the requested Commitment
Increase, then the Borrowers may extend offers to one or more Eligible Assignees
to participate in any portion of the requested Commitment Increase that has not
been committed to by
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21
the Lenders as of the applicable Commitment Date; provided, however, that the
Commitment of each such Eligible Assignee, when aggregated with the
commitment of such Person to lend under the Five-Year Credit Agreement, shall in
no event be less than $10,000,000.
(d) On each Increase Date, each Eligible Assignee that accepts an offer
to participate in a requested Commitment Increase in accordance with Section
2.16(c) (each an "Increase Assuming Lender") shall become a Lender party to this
Agreement as of such Increase Date and the Commitment of each Increasing
Lender for such requested Commitment Increase shall be so increased by such
amount (or by the amount allocated to such Lender pursuant to the last
sentence of Section 2.16(b)) as of such Increase Date; provided, however,
that the Administrative Agent shall have received on or before such Increase
Date the following, each dated such date:
(i) (A) certified copies of resolutions of the board of directors of
each Borrower or the Executive Committee of such board approving the amount
of the Commitments after giving effect to the Commitment Increase, (B) a
certificate, signed by a duly authorized Responsible Officer of each
Borrower, stating that all of the applicable conditions in Article III have
been satisfied and (C) an opinion of counsel for the Borrowers, in
substantially the form of Exhibit C hereto;
(ii) an Assumption Agreement from each Increase Assuming Lender, duly
executed by such Increase Assuming Lender, the Administrative Agent and
the Borrowers; and
(iii) confirmation from each Increasing Lender of the increase in the
amount of its Commitment in a writing satisfactory to the Borrowers
and the Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.16(d), the Administrative
Agent shall notify the Lenders (including, without limitation, each Increase
Assuming Lender) and the Borrowers, on or before 1:00 P.M. (New York City
time), by telecopier or telex, of the occurrence of the Commitment Increase
to be effected on such Increase Date and shall record in the Register the
relevant information with respect to each Increasing Lender and each
Increase Assuming Lender on such date. In addition, on each Increase Date, each
of the Increasing Lenders and the Increase Assuming Lenders will purchase and
assume from the other Lenders such interests in the Revolving Credit Advances
made by such other Lenders and outstanding on such Increase Date as shall be
necessary so that, after giving effect to such purchases and assumptions, each
of the Lenders (including the Increasing Lenders and the Increase Assuming
Lenders) will hold their respective pro rata shares of all Revolving Credit
Advances outstanding on such Increase Date (such purchases and assumptions to be
effected by each of the Increasing Lenders and the Increase Assuming Lenders
making an amount equal to such respective pro rata shares available for the
accounts of their Applicable Lending Offices to the Administrative Agent at the
Administrative Agent's Account, in same day funds). Each Borrower hereby agrees
to each of the purchases and assumptions described in the immediately preceding
sentence.
SECTION 2.17. Extension of Revolver Termination Date. (a) At least 45
days but not more than 60 days prior to the scheduled Revolver Termination Date
then in effect, the Borrowers, by written notice to the Administrative
Agent, may request an extension of such Revolver Termination Date for a period
of 364 days from its then scheduled expiration. The Administrative Agent shall
promptly notify each Lender of such request, and each Lender shall in turn, in
its sole discretion, not earlier than 30 days but at least 20 days prior to
the scheduled Revolver Termination Date then in effect, notify the
Administrative Agent in writing as to whether such Lender will consent to such
extension. If any Lender shall fail to notify the Administrative Agent in
writing of its consent to, or refusal of, any such request for extension of the
Revolver Termination Date at least 20 days prior to the scheduled Revolver
Termination Date then in effect, such Lender shall be deemed to be a
Non-Consenting Lender with respect to such request. The Administrative Agent
shall notify the Borrowers in writing not later than 15 days prior to the
scheduled Revolver Termination Date then in effect of the decision of the
Lenders regarding the Borrowers' request for an extension of such Revolver
Termination Date. It is understood and agreed that no Lender shall have any
obligation whatsoever to agree to any request made by the Borrowers for an
extension of the Revolver Termination Date.
(b) If all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.17, upon fulfillment of the
applicable conditions set forth in Article III, the Revolver Termination Date in
effect at such time shall, effective as at such Revolver Termination Date (the
"Extension Date"), be extended for a period of 364 days from such Extension
Date. If Lenders holding at least a majority in interest of the aggregate
Commitments at such
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22
time (after giving effect to any assumptions of the Commitments of
Non-Consenting Lenders in accordance with subsection (c) of this Section 2.17)
consent in writing to any such request in accordance with subsection (a)
of this Section 2.17, the Revolver Termination Date in effect at such time
shall, upon fulfillment of the applicable conditions set forth in Article
III, effective as at the applicable Extension Date, be extended as to those
Lenders that so consented (each a "Consenting Lender") but shall not be
extended as to any other Lender (each a "Non-Consenting Lender"). To the extent
that the Revolver Termination Date is not extended as to any Lender pursuant to
this Section 2.17 and the Commitment of such Lender is not assumed in accordance
with subsection (c) of this Section 2.17 on or prior to the applicable Extension
Date, the Commitment of such Non-Consenting Lender shall automatically terminate
in whole on such unextended Revolver Termination Date without any further notice
or other action by the Borrowers, such Lender or any other Person; provided that
such Non-Consenting Lender's rights under Sections 2.11, 2.14 and 9.04, and its
obligations under Section 8.05, shall survive the Revolver Termination Date for
such Lender as to matters occurring prior to such Extension Date.
(c) If less than all of the Lenders consent to any such request pursuant to
subsection (a) of this Section 2.17, the Administrative Agent shall promptly so
notify the Consenting Lenders, and each Consenting Lender may, in its sole
discretion, give written notice to the Administrative Agent not later than 10
days prior to the Revolver Termination Date of the amount of the Non-Consenting
Lenders' Commitments for which it is willing to accept an assignment. If the
Consenting Lenders notify the Administrative Agent that they are willing to
accept assignments of Commitments in an aggregate amount that exceeds the amount
of the Commitments of the Non-Consenting Lenders, such Commitments shall be
allocated among the Consenting Lenders willing to accept such assignments in
such amounts as are agreed between the Borrowers and the Administrative Agent.
If after giving effect to the assignments described above there remains any
Commitments of Non-Consenting Lenders, the Borrowers may arrange for one or more
Consenting Lenders or other Eligible Assignees to assume, effective as of the
Extension Date, any Non-Consenting Lender's Commitment and all of the rights and
obligations of such Non-Consenting Lender under this Agreement thereafter
arising (each Eligible Assignee assuming the Commitment of one or more
Non-Consenting Lenders pursuant to this Section 2.17 being an "Extension
Assuming Lender"), without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the Commitment of any such
Extension Assuming Lender shall in no event be less than $10,000,000 unless the
Commitment of such Non-Consenting Lender hereunder at such time is less than
$10,000,000, in which case such Extension Assuming Lender shall assume all of
such lesser amount; and provided further that:
(i) the Consenting Lenders and Extension Assuming Lenders shall
collectively have paid to the Non-Consenting Lenders the aggregate
principal amount of, and any interest accrued and unpaid to the effective
date of such assumption on, the outstanding Advances, if any, of such
Non-Consenting Lenders;
(ii) any accrued and unpaid Facility Fees and Utilization Fees
owing to such Non-Consenting Lenders as of the effective date of such
assumption, and all additional cost and expense reimbursements and
indemnification payments payable to such Non-Consenting Lenders, and all
other accrued and unpaid amounts owing to such Non-Consenting Lenders
under this Agreement and the Notes, as of the effective date of such
assumption, shall have been paid to such Non-Consenting Lenders by the
Borrowers or such Consenting Lenders and Extension Assuming Lenders;
and
(iii) with respect to any such Extension Assuming Lender, the
applicable processing and recordation fee required under Section 9.07(a)
shall have been paid; and
provided further that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 9.04, and its obligations under Section 8.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to each Extension Date, (A) such Extension
Assuming Lender, if any, shall have delivered to the Borrowers and the
Administrative Agent an Assumption Agreement, duly executed by such Extension
Assuming Lender, such Non-Consenting Lender, the Borrowers and the
Administrative Agent, (B) each such Consenting Lender, if any, shall have
delivered written confirmation satisfactory to the Borrowers and the
Administrative Agent as to any increase in the amount of its Commitment
resulting from its assumption of one or more Commitments of the Non-Consenting
Lenders and (C) each Non-Consenting Lender being replaced pursuant to this
Section 2.17(c) shall have delivered to the Administrative Agent, to be held in
escrow on behalf of such Non-Consenting Lender until the payment in full of all
amounts owing to such Non-Consenting Lender under clauses (i) through (iii) of
this Section 2.17(c), any
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23
Note or Notes held by such Non-Consenting Lender. Upon the payment or prepayment
of all amounts referred to in clauses (i), (ii) and (iii) of this Section
2.17(c), each such Consenting Lender or Extension Assuming Lender, as of the
Extension Date, will be substituted for the applicable Non-Consenting
Lender(s) under this Agreement and shall be a Lender for all purposes of
this Agreement, without any further acknowledgment by or the consent of any of
the other Lenders, and the obligations of each such Non-Consenting Lender
hereunder shall, by the provisions hereof, be released and discharged.
(d) If Lenders holding at least a majority in interest of the aggregate
Commitments at such time (after giving effect to any assumptions pursuant to
subsection (c) of this Section 2.17) consent in writing to a requested extension
(whether by execution and delivery of an Assumption Agreement or otherwise) not
later than one Business Day prior to an Extension Date, the Administrative Agent
shall so notify the Borrowers, and, upon fulfillment of the applicable
conditions set forth in Article III and subsection (c) above, the Revolver
Termination Date then in effect shall be extended for the 364-day period
described in subsection (a) of this Section 2.17, and all references in this
Agreement and in the Notes to the "Revolver Termination Date" shall, with
respect to each Consenting Lender and each Extension Assuming Lender for such
Extension Date, refer to the Revolver Termination Date as so extended. Promptly
following each Extension Date, the Administrative Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) of the extension of the
scheduled Revolver Termination Date in effect immediately prior thereto and
shall thereupon record in the Register the relevant information with respect to
each such Consenting Lender and each such Extension Assuming Lender.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances shall
be available (and each Borrower agrees that it shall use such proceeds) solely
for general corporate purposes of the Company and its Subsidiaries, including
commercial paper backstop.
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,
1999.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i) could 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) 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 Memorandum 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 Company and its Subsidiaries as
they shall have reasonably requested.
(d) 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) 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.
(e) The Company shall have notified each Lender and the Administrative
Agent in writing as to the proposed Effective Date.
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24
(f) The Company shall have paid all accrued fees and expenses of the
Administrative Agent and the Lenders in connection with this Agreement and the
transactions contemplated hereby (including the accrued fees and expenses of
counsel to the Administrative Agent).
(g) 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 Company, 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.
(h) 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 Notes) in sufficient copies for
each Lender:
(i) The Notes payable to the order of the Lenders, respectively.
(ii) Certified copies of the resolutions of the Board of Directors of
each Borrower authorizing this Agreement and the Notes to be executed by
it, 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 each
Borrower certifying the names and true signatures of the officers of such
Borrower authorized to sign this Agreement and the Notes and the other
documents to be delivered hereunder.
(iv) A favorable opinion of Don A. Jensen, Vice President and
Secretary of each of the Borrowers, counsel for the Borrowers,
substantially in the form of Exhibit D hereto and as to such other
matters as any Lender through the Administrative Agent may reasonably
request.
(v) A favorable opinion of Shearman & Sterling, counsel for the
Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
(i) The Borrowers shall have terminated the commitments, and paid in full
all Debt, interest, fees and other amounts outstanding, under the $3,000,000,000
364-Day Credit Agreement dated as of August 6, 1999 among the Company and Sprint
Capital, as borrowers, the lenders parties thereto, Citibank N.A., as
administrative agent, Salomon Smith Barney Inc., as book manager and arranger,
Morgan Guaranty Trust Company of New York, as syndication agent and Bank of
America, N.A. National Trust and Savings Association and The Chase Manhattan
Bank, as documentation agents.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing, Increase Date and Extension Date. The obligation of each Lender to
make a Revolving Credit Advance on the occasion of each Revolving Credit
Borrowing, each Commitment Increase and each extension of Commitments
pursuant to Section 2.17 shall be subject to the conditions precedent that
the Effective Date shall have occurred and on the date of such Revolving Credit
Borrowing, the applicable Increase Date and the applicable Extension Date
(a) the following statements shall be true (and each of the giving of the
applicable Notice of Revolving Credit Borrowing, request for Commitment
Increase, request for Commitment extension and the acceptance by the applicable
Borrower of the proceeds of such Revolving Credit Borrowing shall constitute a
representation and warranty by such Borrower that on the date of such
Borrowing, such Increase Date and such Extension Date such statements are
true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii) thereof))
are correct in all material respects on and as of the date of such
Revolving Credit Borrowing, before and after giving
<PAGE>
25
effect to such Revolving Credit Borrowing and to the application of
the proceeds therefrom, such Commitment Increase or Commitment extension
as though made on and as of such date, and
(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 (a) the Administrative Agent shall have received the
written notice of the acceptance of offers made by Lenders for Competitive Bid
Advances with respect thereto in accordance with Section 2.03(a)(iii)(y) and
(b) 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 applicable Borrower of the proceeds
of such Competitive Bid Borrowing shall constitute a representation and
warranty by such Borrower that on the date of such Competitive Bid Borrowing
such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof and in subsection (f) thereof (other than clause (ii) thereof))
are correct in all material respects 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
(ii) 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 Borrowers, by notice to the Lenders, designate as the
proposed Effective Date, specifying its objection thereto. The
Administrative Agent shall promptly notify the Lenders of the occurrence of the
Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Kansas. Sprint Capital is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
(b) The execution, delivery and performance by each Borrower of this
Agreement and the Notes to be executed by it, and the consummation of the
transactions contemplated hereby, are within such Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) such Borrower's charter or bylaws or (ii) any law or any
contractual restriction binding on or affecting such Borrower.
(c) 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 such Borrower of this Agreement or the Notes to be executed by it.
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26
(d) This Agreement has been duly executed and delivered by each Borrower.
This Agreement is the legal, valid and binding obligation of each Borrower
enforceable against such Borrower in accordance with its terms. Each of the
Notes to be executed by a Borrower when delivered hereunder will have been
duly executed and delivered by such Borrower and will be the legal, valid and
binding obligation of such Borrower, enforceable against such Borrower in
accordance with its terms.
(e) The Consolidated balance sheet of the Company and its Subsidiaries as
at December 31, 1999, and the related Consolidated statements of income
and cash flows of the Company 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 Company and its
Subsidiaries as at March 31, 2000, and the related Consolidated statements of
income and cash flows of the Company and its Subsidiaries for the three months
then ended, duly certified by the chief financial officer, chief accounting
officer or treasurer of the Company, copies of which have been furnished
to each Lender, fairly present, subject, in the case of said balance sheet as
at March 31, 2000, and said statements of income and cash flows for the three
months then ended, to year-end audit adjustments, the Consolidated
financial condition of the Company and its Subsidiaries as at such dates and the
Consolidated results of the operations of the Company and its Subsidiaries for
the periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 1999, there has
been no Material Adverse Change.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Company or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could 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.
(g) No Borrower is 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.
(h) The Company and each of its Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted except for
those the failure to own or license which could not reasonably be expected to
have a Material Adverse Effect (the "Intellectual Property"). No claim has
been asserted and is pending by any Person challenging or questioning the
use of any such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does such Borrower know of any valid basis
for any such claim, except, in either case, for such claims that in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
The use of such Intellectual Property by the Company and its Subsidiaries
does not infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
(i) No Borrower is an "investment company", or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act
of 1940, as amended. No Borrower is subject to regulation under any Federal
or State statute or regulation which limits its ability to incur Debt.
(j) The Company owns all of the shares of the issued and outstanding
capital stock of Sprint Capital.
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, each
Borrower will:
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27
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
to comply, in all material respects, with all applicable laws, rules,
regulations and orders (including, without limitation, compliance with ERISA and
Environmental Laws).
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all 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; provided, however, that neither the Company
nor any of its 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.
(c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which such Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Continue to engage in
business of the same general type as now conducted by it and preserve and
maintain, and cause each of its Subsidiaries (other than Insignificant
Subsidiaries) to preserve and maintain, its existence, rights (charter and
statutory) and franchises; provided, however, that the Company and its
Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(b) and provided further that neither the Company nor any of its
Subsidiaries shall be required to preserve any right or franchise if the Company
or such Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or such Subsidiary,
as the case may be, and that the loss thereof is not disadvantageous in any
material respect to the Company, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time upon
notice, permit the Administrative 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, such Borrower
and any of its Subsidiaries, and to discuss the affairs, finances and accounts
of such Borrower and any of its Subsidiaries with any of their officers
or directors and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its 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 such
Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its 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 (other than the Company and its
Subsidiaries) on terms that are fair and reasonable and no less favorable to
such Borrower or such Subsidiary than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate.
(i) Reporting Requirements. Furnish to the Administrative Agent for the
account of each of the Lenders:
(i) as soon as available and in any event within 45 days
electronically and within 60 days in paper format after the end of each of
the first three quarters of each fiscal year of the Company, Consolidated
balance sheets of (A) the Company and its Subsidiaries, (B) the PCS Group
and (C) the FON Group as of the end of such quarter and Consolidated
statements of income and cash flows of (A) the Company and its
Subsidiaries, (B) the PCS Group and (C) the FON Group 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, the chief accounting officer or the treasurer
of the Company as having been prepared in accordance with
<PAGE>
28
generally accepted accounting principles and a certificate of the chief
financial officer, the chief accounting officer or the treasurer of the
Company as to 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, the Company shall
also provide, if necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial statements
to GAAP; provided further, that financial statements for the PCS Group and
the FON Group shall be required only for periods during which the Company
has PCS tracking stock outstanding;
(ii) as soon as available and in any event within 90 days
electronically and within 120 days in paper format after the end of
each fiscal year of the Company, a copy of the annual audit report for
such year for the Company and its Subsidiaries, containing Consolidated
balance sheets of (A) the Company and its Subsidiaries, (B) the PCS Group
and (C) the FON Group as of the end of such fiscal year and Consolidated
statements of income and cash flows of (A) the Company and its
Subsidiaries, (B) the PCS Group and (C) the FON Group 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, the
Company shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP; provided further, that financial
statements for the PCS Group and the FON Group shall be required only for
periods during which the Company has PCS tracking stock outstanding;
(iii) as soon as possible and in any event within five days after the
occurrence of each Default continuing on the date of such statement, a
statement of the chief financial officer, the chief accounting officer
or the treasurer of the Company setting forth details of such Default
and the action that the Company has taken and proposes to take with
respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports that the Company sends to any of its securityholders, and copies
of all reports and proxy solicitations that the Company files with
the Securities and Exchange Commission;
(v) promptly after the commencement thereof, notice of all actions
and proceedings before any court, governmental agency or arbitrator
affecting the Company or any of its Subsidiaries of the type described in
Section 4.01(f); and
(vi) such other information respecting the Company or any of its
Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
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 for security
purposes, or permit any of its Subsidiaries to assign for security purposes, 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 Company or any Subsidiary 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, or 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
<PAGE>
29
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,
(iii) the Liens existing on the Effective Date and described on
Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such Person is
merged into or consolidated with the Company or any Subsidiary of the
Company or becomes a Subsidiary of the Company; provided that such
Liens were not created 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 Company or such Subsidiary or
acquired by the Company or such Subsidiary,
(v) Liens on the property or assets of a Subsidiary of the Company
that is a member of the FON Group which secure obligations and liabilities
of such Subsidiary,
(vi) other Liens securing Debt in an aggregate principal amount not
to exceed at any time outstanding 2% of the sum of Consolidated Debt and
Consolidated Net Worth of the Company and its Subsidiaries, and
(vii) the replacement, extension or renewal of any Lien described on
Schedule 5.02(a) 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.
(b) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, or permit any of its Subsidiaries to do so,
except that (i) any Subsidiary of the Company may merge or consolidate with or
into, or dispose of assets to, any other Subsidiary of the Company, (ii) any
Subsidiary of the Company may merge into or dispose of assets to the Company and
the Company or any of its Subsidiaries may merge with any other Person so long
as the Company or any of its Subsidiaries is the surviving corporation; (iii)
the Company or any of its Subsidiaries may exchange Telephone Assets for
Telephone Assets of any other Person, for the purpose of consolidating the
Telephone Assets of the Company or such Subsidiary, to the extent of the greater
of the book value and the fair market value (as determined in good faith by the
Board of Directors of the Company or such Subsidiary) of the Telephone Assets
obtained by the Company or such Subsidiary as a result of such exchange; (iv)
the Company or any of its Subsidiaries may sell any and all investments owned by
it that constitute minority interests in other Persons, provided that the
aggregate book value of all such investments so sold by the Company and its
Subsidiaries does not exceed $1,000,000,000; (v) the Company or any of its
Subsidiaries may sell accounts receivable with or without recourse; and (vi) the
Company and any of its Subsidiaries may sell, lease, transfer or otherwise
dispose of its non-current assets (in addition to sales, transfers or other
dispositions permitted by clauses (iii), (iv) and (v) above), provided that the
excess of (A) the aggregate book value of all such assets so sold, leased,
transferred or otherwise disposed of over (B) liabilities associated with such
assets for which neither the Company nor any of its Subsidiaries are liable
immediately after any such sale, transfer, or other disposition does not exceed
$1,700,000,000 for the period from December 31, 1997 through the Revolver
Termination Date, 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.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will:
(a) Leverage Ratio. Maintain a ratio of Consolidated Debt to the sum of
Consolidated Debt and Consolidated Net Worth of not greater than 0.65:1.00.
(b) Interest Coverage Ratio. Maintain, as of the end of any fiscal
quarter ending on or prior to June 30, 2001, for any period of four fiscal
quarters (which need not be consecutive) out of any of the five
consecutive fiscal
<PAGE>
30
quarters ending at the end of such fiscal quarter a ratio of Consolidated EBITDA
of the Company and its Subsidiaries for such four fiscal quarter period to
interest expense on, including amortization of debt discount in respect of,
Consolidated Debt of the Company and its Subsidiaries during such four fiscal
quarter period of not less than 3.00:1; provided that if the Revolver
Termination Date is extended one or more times pursuant to the provisions of
Section 2.17, (x) such ratio shall not be less than 3.50:1 for any fiscal
quarter ending after June 30, 2001 and on or before June 30, 2002, and (y) such
ratio shall not be less than 4.00:1 for any fiscal quarter ending after June 30,
2002 and on or before June 30, 2003.
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) Any Borrower shall fail to pay any principal of any Advance when the
same becomes due and payable; or any 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
(b) Any representation or warranty made by any Borrower herein or by
such Borrower in connection with this Agreement shall prove to have been
incorrect in any material respect when made; or
(c) (i) Any Borrower shall fail to perform or observe any term, covenant or
agreement contained in Section 5.01(d), (e) or (i), 5.02 or 5.03, or (ii)
any 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 30 days after written notice thereof
shall have been given to the Borrowers by the Administrative Agent or
any Lender; or
(d) The Company 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 amount of at least $75,000,000 in the aggregate (but excluding
Debt outstanding hereunder) of the Company 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, 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 Company or any of its Subsidiaries (other than any Insignificant
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 Company or any of its Subsidiaries (other than
any Insignificant Subsidiary) seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition 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 60 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 Company or any of its Subsidiaries (other than any
Insignificant 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 $10,000,000
shall be rendered against the Company or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor or
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upon such judgment or order or (ii) there shall be any period of 60 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
(g) (i) Any Person or two or more Persons (other than France Telecom
S.A., a societe anonyme formed under the laws of France ("FT"), or Deutsche
Telekom AG, an Aktiengesellschaft formed under the laws of Germany ("DT"))
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
Company (or other securities convertible into such Voting Stock) representing 33
1/3% or more of the combined voting power of all Voting Stock of the Company, or
shall obtain the power (whether or not exercised) to elect a majority of the
Company's directors; or (ii) any Person or two or more Persons (other than FT or
DT) acting in concert shall succeed in having sufficient of its nominees elected
to the Board of Directors of the Company such that such nominees, when added to
any existing director remaining on the Board of Directors of the Company after
such election who is a related person of such Person, shall constitute a
majority of the Board of Directors of the Company; (iii) any Person or two or
more Persons (other than FT or DT) acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or arrangement (and
five Business Days shall have elapsed since the date of entering into such
contract or arrangement) that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a controlling
influence over the management or policies of the Company; or (iv) the Company
shall cease to maintain beneficial ownership of 100% of the Voting Stock of
Sprint Capital; or
(h) The Company or any of its ERISA Affiliates shall incur, or shall be
reasonably likely to incur, liability in excess of $75,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence of any
ERISA Event; (ii) the partial or complete withdrawal of the Company or any of
its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization
or termination of a Multiemployer Plan; or
(i) The Company Guaranty contained in Article VII of this Agreement shall
cease for any reason to be valid and binding on or enforceable against the
Company or the Company shall so state in writing;
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 Borrowers,
declare 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 Borrowers,
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 Borrowers; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to any
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 each Borrower.
ARTICLE VII
COMPANY GUARANTY
SECTION 7.01. Guaranty. The Company hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of Sprint Capital
now or hereafter existing under this Agreement or any Note, whether for
principal, interest, fees, expenses or otherwise (such obligations, to the
extent not paid by Sprint Capital or specifically waived in accordance with
Section 9.01, being the "Guaranteed Obligations"), and agrees to pay any and all
expenses (including reasonable counsel fees and expenses) incurred by the
Administrative Agent or the Lenders in enforcing any rights under this
Article VII ("this Guaranty"). Without limiting the generality of the foregoing,
the Company's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by Sprint Capital to the
Administrative Agent or any Lender under this Agreement or any Note but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving Sprint Capital.
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SECTION 7.02. Guaranty Absolute. The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Notes, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Administrative Agent or the Lenders with respect
thereto. The obligations of the Company under this Guaranty are independent of
the Guaranteed Obligations, and a separate action or actions may be brought
and prosecuted against the Company to enforce this Guaranty, irrespective
of whether any action is brought against Sprint Capital or whether Sprint
Capital is joined in any such action or actions. The liability of the Company
under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and, to the maximum extent permitted by law, the Company hereby
irrevocably waives any defenses it may now or hereafter have in any way relating
to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or any
agreement or instrument relating hereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations, or any other amendment or
waiver of or any consent to departure from this Agreement or any Note,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to Sprint Capital or
otherwise;
(c) any taking, exchange, release or non-perfection of any collateral,
or any taking, release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate structure
or existence of Sprint Capital; or
(e) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by the
Administrative Agent or any Lender that might otherwise constitute a defense
available to, or a discharge of, the Company, Sprint Capital or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed
Obligations is rescinded or must otherwise be returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy or
reorganization of Sprint Capital or otherwise, all as though such payment had
not been made.
SECTION 7.03. Waiver. The Company hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any Lender exhaust any right or take any action
against Sprint Capital or any other Person or any collateral. The Company
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated herein and that the waiver set forth in
this Section 7.03 is knowingly made in contemplation of such benefits.
The Company hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
SECTION 7.04. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
later of the cash payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the Revolver Termination Date, (b) be
binding upon the Company, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Lenders, the Administrative Agent
and their successors, transferees and assigns. Without limiting the generality
of the foregoing clause (c), any Lender may assign or otherwise transfer all or
any portion of its rights and obligations hereunder (including, without
limitation, all or any portion of its Commitment, the Advances owing to it and
the Note or Notes held by it) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to such
Lender herein or otherwise, in each case as provided in Section 9.07.
SECTION 7.05. Subrogation. The Company will not exercise any rights
that it may now or hereafter acquire against Sprint Capital or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of the Company's obligations under this Guaranty, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of the Administrative Agent or any Lender against Sprint Capital or
any other insider guarantor or any collateral, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law,
including, without limitation, the right to take or receive from Sprint Capital
or any other insider guarantor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security solely on
account of such claim, remedy or right, unless and
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33
until all of the Guaranteed Obligations and all other amounts payable under
this Guaranty shall have been paid in full in cash and the Revolver
Termination Date shall have occurred. If any amount shall be paid to the
Company in violation of the preceding sentence at any time prior to the later
of the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the Revolver Termination Date, such
amount shall be held in trust for the benefit of the Administrative Agent and
the Lenders and shall forthwith be paid to the Administrative Agent to be
credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance
with the terms of this Guaranty, or to be held as collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty
thereafter arising. If (i) the Company shall make payment to the
Administrative Agent or any Lender of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall be paid in full in cash and (iii) the Revolver
Termination Date shall have occurred, the Administrative Agent and the Lenders
will, at the Company's request and expense, execute and deliver to the Company
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Company of an interest
in the Guaranteed Obligations resulting from such payment by the Company.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Administrative Agent to take such action as Administrative
Agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Administrative 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), the
Administrative Agent shall not 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 the
Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to this Agreement
or applicable law. The Administrative Agent agrees to give to each Lender prompt
notice of each notice given to it by any Borrower pursuant to the terms of this
Agreement.
SECTION 8.02. Administrative Agent's Reliance, Etc. Neither the
Administrative 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, the Administrative Agent: (i) may treat the payee of any Note as
the holder thereof until 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, as provided in Section
9.07; (ii) may consult with legal counsel (including counsel for the Borrowers),
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 Borrowers or
to inspect the property (including the books and records) of the Borrowers; (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) reasonably believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank 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 Company, any of its Subsidiaries and any Person who may
do business with or
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own securities of the Company or any such Subsidiary, all as if Citibank were
not the Administrative Agent and without any duty to account therefor to the
Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Administrative 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 the Administrative 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 8.05. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrowers), ratably
according to the respective principal amounts of the Revolving Credit
Advances then owed to each of them (or if no such Advances are outstanding at
the time, ratably according to the respective amounts of their Commitments),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, reasonable costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement or any action taken or omitted by the
Administrative Agent under this Agreement (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its ratable share of
any reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred by the Administrative 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 the Administrative Agent is not reimbursed for such expenses by the
Borrowers. In the case of any investigation, litigation or proceeding giving
rise to any Indemnified Costs, this Section 8.05 applies whether any such
investigation, litigation or proceeding is brought by the Administrative Agent,
any Lender or a third party.
SECTION 8.06. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the
Lenders and the Borrowers. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, 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 hereunder as Administrative Agent,
the provisions of this Article VIII 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 8.07. Other Agents. Each Lender hereby acknowledges that none
of the arranger, syndication agent, the documentation agents or any other
Lender designated as any "Agent" (other than the Administrative Agent) on the
signature pages hereof has any liability hereunder other than in its capacity as
a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by
any Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, 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, do
any of the following: (a) waive any of the conditions specified in Section
3.01, (b) increase the Commitments of the Lenders or subject the Lenders to any
additional obligations (except as contemplated by Section 2.16), (c) reduce
the principal of, or interest on, the Notes or any fees or other amounts
payable
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35
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder,
(e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder, (f)
reduce or limit the obligations of the Company under Section 7.01 or release
or otherwise limit liability of the Company with respect to the Guaranteed
Obligations or (g) amend this Section 9.01; 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 9.02. 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 Company, at its address at 2330 Shawnee Mission
Parkway, Westwood, Kansas 66205, Attention: Treasurer (Telecopier No.:
(913) 624-3670); if to Sprint Capital, at its address at 2330 Shawnee Mission
Parkway, Westwood, Kansas 66205, Attention: Treasurer (Telecopier No.:
(913) 624-3670); 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
or the Assumption Agreement pursuant to which it became a Lender; and if to the
Administrative Agent, at its address at 399 Park Avenue, New York, New York
10043, Attention: Robert Parr (Telecopier No.: (212) 793-6873); or, as to
any Borrower or the Administrative 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 Borrowers 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 the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit (other than the
Notes) hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative 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 9.04. Costs and Expenses. (a) The Borrowers agree to pay on
demand all reasonable costs and expenses of the Administrative Agent 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 outside
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 Borrowers further agree to pay on
demand all costs and expenses of the Administrative Agent and the Lenders, if
any (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 the Administrative Agent and each Lender in connection with the
enforcement of rights under this Section 9.04(a).
(b) The Borrowers agree to indemnify and hold harmless the Administrative
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 (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Borrower, its directors, shareholders or
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36
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. Each Borrower also agrees not to
assert any claim against the Administrative Agent, any Lender, 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 any 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) or (e), 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 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 9.07 as a result of a
demand by the Borrowers pursuant to Section 9.07(a), such 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 Applicable Margin),
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
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. 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 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 to or for the credit or the account of any Borrower against any and
all of the obligations of such Borrower now or hereafter existing under
this Agreement and the Note 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. Each Lender agrees promptly to notify
the applicable 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 under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender may have.
SECTION 9.06. 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 each Borrower and the Administrative Agent 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 Borrowers, the Administrative
Agent and each Lender and their respective successors and assigns,
except that no Borrower shall have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
and, if demanded by the Borrowers (following a demand by such Lender
pursuant to Section 2.11 or 2.14) upon at least 5 Business Days' notice to
such Lender and the Administrative Agent, will assign to one or more banks or
other financial institutions 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
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 and Competitive Bid Advances owing to it), (ii) except in the case of
an assignment to a bank or other financial institution 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 Borrowers pursuant
to this Section 9.07(a) shall be arranged by the Borrowers after
<PAGE>
37
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 Borrowers pursuant to this
Section 9.07(a) unless and until such Lender shall have received one or more
payments from either a 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
with any Note subject to such assignment and a processing and
recordation fee of $3,000. 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 any
Borrower or the performance or observance by any 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 the Administrative 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 the Administrative Agent to
take such action as Administrative Agent on its behalf and to exercise such
powers and discretion under this Agreement as are delegated to the
Administrative 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) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together (if the entire interest is being assigned) with any 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 Borrowers. Within five Business Days after its
receipt of such notice, each Borrower, at its own expense, shall execute and
deliver to the Administrative Agent a new Note to the order of such Eligible
Assignee. Such new Note shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit A
hereto.
(d) The Administrative Agent shall maintain at its address referred
to in Section 9.02 a copy of each Assignment and Acceptance and each
Assumption Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment of,
and principal amount of the Advances owing to, each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrowers, 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
<PAGE>
38
available for inspection by any Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
financial institutions (other than the Company 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 to the Borrowers 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 Borrowers, the Administrative Agent
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 any 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.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such Lender
by or on behalf of the Borrowers; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrowers received by it from such Lender.
(g) 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 9.08. Confidentiality. Neither the Administrative Agent
nor any Lender shall disclose any Confidential Information to any other
Person without the consent of the Company, other than (a) to the Administrative
Agent's or such Lender's Affiliates (that are not competitors of the Company
and its Subsidiaries) and their officers, directors, employees, agents and
advisors and, as contemplated by Section 9.07(f), to actual or prospective
assignees and participants, and then only on a confidential and a need-to-know
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.
SECTION 9.09. 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 9.10. 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 9.11. 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
arising out of or relating to this Agreement or the Notes, 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
<PAGE>
39
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction.
(a) 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 court or federal court sitting in New York City. 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 9.12. Waiver of Jury Trial. Each of the Borrowers, the
Administrative Agent and the Lenders hereby 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 this Agreement or
the Notes or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement hereof or 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.
SPRINT CORPORATION
By /s/ Dennis C. Piper
Title: Vice President - Finance
and Assistant Treasurer
SPRINT CAPITAL CORPORATION
By /s/ Dennis C. Piper
Title: Vice President and
Treasurer
CITIBANK, N.A.,
as Administrative Agent
By /s/ Carolyn A. Kee
Title: Vice President
INITIAL LENDERS
Administrative Agent
Commitment
$211,600,000 CITIBANK, N.A.
By /s/ Carolyn A. Kee
Title: Vice President
Syndication Agent
$175,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Dennis Wilczek
Title: Associate
<PAGE>
40
Documentation Agents
$175,000,000 BANK OF AMERICA, N.A.
By /s/ Jay Tweed
Title: Managing Director
$175,000,000 THE CHASE MANHATTAN BANK
By /s/ Constance M. Cole
Title: Vice President
Senior Managing Agents
$142,800,000 ABN AMRO BANK N.V.
By /s/ Frances O'R. Logan
Title: Senior Vice President
By /s/ Ravneet Mumick
Title: Vice President
$142,800,000 CREDIT SUISSE FIRST BOSTON
By /s/ Joel Glodowski
Title: Managing Director
By /s/ Robert Hetu
Title: Vice President
$142,800,000 DEUTSCHE BANK AG NEW YORK
By /s/ Virginia Mahler Cosenza
Title: Vice President
By /s/ P. Sandmeier
Title: Director
$142,800,000 FIRST UNION NATIONAL BANK
By /s/ Brand Hosford
Title: Vice President
$142,800,000 FLEET NATIONAL BANK
By /s/ Barbara Agostini Keegan
Title: Vice President
$142,800,000 ROYAL BANK OF CANADA
By /s/ Andrew C. Williamson
Title: Vice President
<PAGE>
41
$142,800,000 UBS AG, STAMFORD BRANCH
By /s/ Robert H. Riley III
Title: ExecutiveDirector
By /s/ Dorothy McKinley
Title: Director
$142,800,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Lisa Walker
Title: Associate Director
By /s/ Barry S. Wadler
Title: Manager
Managing Agents
$90,000,000 BANK ONE, N A
By /s/ Jennifer L. Jones
Title: Commercial Banking Officer
$90,000,000 BNP PARIBAS
By /s/ Nuala Marley
Title: Vice President
By /s/ E. Causso
Title: Assistant Vice President
$90,000,000 LEHMAN COMMERCIAL PAPER INC.
By /s/ Michele Swanson
Title: Authorized Signatory
$90,000,000 WACHOVIA BANK, N.A.
By /s/ Mark L. Thomas
Title: Vice President
Co-Agents
$60,000,000 THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH
By /s/ Hisashi Miyashiro
Title: Deputy General Manager
<PAGE>
42
$60,000,000 COMMERZBANK AG, NEW YORK and
GRAND CAYMAN BRANCHES
By /s/ Marie Cualoping
Title: Assistant Treasurer
By /s/ Paul Karlin
Title: Assistant Vice President
$60,000,000 THE FUJI BANK, LIMITED
By /s/ Peter L. Chinnici
Title: Senior Vice President &
Group Head
$60,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ William Kennedy
Title: Senior Vice President
$60,000,000 THE NORTHERN TRUST COMPANY
By Lisa M. Taylor
Title: Second Vice President
$60,000,000 THE SANWA BANK LIMITED
By /s/ Lee Prewitt
Title: Vice President
Lenders
$50,000,000 BANCA NAZIONALE DELL'AGRICOLTURA
By /s/ Domenico Loschiavo
Title: Senior Vice President &
Mgr. #1744
By /s/ Constantine I. Manzini
Title: General Counsel #1532
$40,000,000 MELLON BANK, N.A.
By /s/ Nancy E. Gale
Title: Assistant Vice President
$35,000,000 THE SUMITOMO BANK, LIMITED
By /s/ John H. Kemper
Title: Senior Vice President
<PAGE>
43
$30,000,000 BANCA COMMERCIALE ITALIANA,
CHICAGO BRANCH
By /s/ Charles Dougherty
Title: Vice President
By /s/ J. Dickerhof
Title: Vice President
$30,000,000 BANCO DI NAPOLI S.P.A.
By /s/ Lucio Passarello
Title: First Vice President
By /s/ Francesco Di Mario
Title: First Vice President
$30,000,000 BANK HAPOALIM
By /s/ James Surless
Title: Vice President
By /s/ Laura Raffa
Title: First Vice President
$30,000,000 BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
By /s/ Hereward Drummond
Title: Senior Vice President
By /s/ James H. Boyle
Title: Vice President
$30,000,000 WELLS FARGO BANK, N.A.
By /s/ Irene G. Hale
Title: Vice President
By /s/ Melissa Nachman
Title: Vice President
$20,000,000 FIRST NATIONAL BANK OF KANSAS
By /s/ Jeffrey D. Farrell
Title: Vice President
$18,000,000 BANK OF HAWAII
By /s/ Luke Yeh
Title: Vice President
<PAGE>
44
$15,000,000 SUNTRUST BANK
By /s/ Thomas C. King, Jr.
Title: Assistant Vice President
$15,000,000 FIFTH THIRD BANK
By /s/ David C. Gordley
Title: Vice President
$15,000,000 FIRST HAWAIIAN BANK
By /s/ Travis Ruetenik
Title: Assistant Vice President
$15,000,000 THE NORINCHUKIN BANK, NEW YORK
BRANCH
By /s/ Toshiyuki Futaoka
Title: Joint General Manager
$9,000,000 UMB BANK, N.A.
By /s/ David Proffitt
Title: Senior Vice President
$10,000,000 ALLFIRST BANK
By /s/ Timothy A. Knabe
Title: Vice President
9,000,000 COMMERCE BANK, N.A.
By /s/ Julius Madas
Title: Senior Vice President
$3,000,000,000 Total of the Commitments
