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Exhibit 10.55
CREDIT AGREEMENT
dated as of
September 28, 2000
among
CORECOMM COMMUNICATIONS, INC.
CORECOMM LIMITED
CORECOMM HOLDCO, INC.
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral Agent
---------------------------
CHASE SECURITIES INC.,
as Book Manager and Lead Arranger
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms ............................................. 1
SECTION 1.02. Classification of Loans and Borrowings .................... 35
SECTION 1.03. Terms Generally ........................................... 35
SECTION 1.04. Accounting Terms; GAAP .................................... 35
ARTICLE II
The Credits
SECTION 2.01. Commitments ............................................... 36
SECTION 2.02. Loans and Borrowings ...................................... 36
SECTION 2.03. Requests for Borrowings ................................... 37
SECTION 2.04. Letters of Credit ......................................... 38
SECTION 2.05. Funding of Borrowings ..................................... 44
SECTION 2.06. Interest Elections ........................................ 45
SECTION 2.07. Termination and Reduction of Commitments .................. 47
SECTION 2.08. Repayment of Loans; Evidence of Debt ...................... 48
SECTION 2.09. Automatic Commitment Reductions;
Amortization of Tranche A Term Loans .............. 49
SECTION 2.10. Prepayment of Loans ....................................... 51
SECTION 2.11. Fees ...................................................... 52
SECTION 2.12. Interest .................................................. 54
SECTION 2.13. Alternate Rate of Interest ................................ 55
SECTION 2.14. Increased Costs ........................................... 55
SECTION 2.15. Break Funding Payments .................................... 57
SECTION 2.16. Taxes ..................................................... 57
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs ............................... 59
SECTION 2.18. Mitigation Obligations; Replacement of Lenders ............ 61
SECTION 2.19. Incremental Facility ...................................... 62
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ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers ...................................... 64
SECTION 3.02. Authorization; Enforceability ............................. 64
SECTION 3.03. Governmental Approvals; No Conflicts ...................... 64
SECTION 3.04. Financial Condition; No Material Adverse Change ........... 65
SECTION 3.05. Properties ................................................ 65
SECTION 3.06. Litigation and Environmental Matters ...................... 66
SECTION 3.07. Compliance with Laws and Agreements ....................... 66
SECTION 3.08. Investment and Holding Company Status ..................... 67
SECTION 3.09. Taxes ..................................................... 67
SECTION 3.10. ERISA ..................................................... 67
SECTION 3.11. Disclosure ................................................ 67
SECTION 3.12. Subsidiaries .............................................. 68
SECTION 3.13. Insurance ................................................. 68
SECTION 3.14. Labor Matters ............................................. 68
SECTION 3.15. Security Interests ........................................ 69
SECTION 3.16. Regulatory Compliance ..................................... 70
SECTION 3.17. Absence of Non-Permitted Obligations ...................... 71
ARTICLE IV
Conditions
SECTION 4.01. Effective Date ............................................ 71
SECTION 4.02. Each Credit Event ......................................... 74
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information ................ 76
SECTION 5.02. Notices of Material Events ................................ 78
SECTION 5.03. Information Regarding Collateral .......................... 78
SECTION 5.04. Existence; Conduct of Business ............................ 79
SECTION 5.05. Payment of Obligations .................................... 79
SECTION 5.06. Maintenance of Properties ................................. 80
SECTION 5.07. Insurance ................................................. 80
SECTION 5.08. Casualty and Condemnation ................................. 80
SECTION 5.09. Books and Records; Inspection and Audit Rights ............ 80
SECTION 5.10. Compliance with Laws ...................................... 81
SECTION 5.11. Use of Proceeds and Letters of Credit ..................... 81
SECTION 5.12. Additional Subsidiaries ................................... 81
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SECTION 5.13. Further Assurances ........................................ 81
SECTION 5.14. Interest Rate Protection .................................. 82
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness of the Parent and CCI;
Certain Equity Securities ......................... 83
SECTION 6.02. Indebtedness of Restricted Subsidiaries ................... 85
SECTION 6.03. Liens ..................................................... 87
SECTION 6.04. Sale and Lease-Back Transactions .......................... 88
SECTION 6.05. Fundamental Changes ....................................... 89
SECTION 6.06. Investments, Loans, Advances, Guarantees
and Acquisitions .................................. 90
SECTION 6.07. Asset Sales ............................................... 91
SECTION 6.08. Hedging Agreements ........................................ 92
SECTION 6.09. Restricted Payments; Certain Payments of
Indebtedness ...................................... 92
SECTION 6.10. Transactions with Affiliates .............................. 93
SECTION 6.11. Restrictive Agreements .................................... 94
SECTION 6.12. Amendment of Material Documents ........................... 94
SECTION 6.13. Minimum Active Access Lines ............................... 95
SECTION 6.14. Minimum Active Access Lines within
Collocation Footprint ............................. 95
SECTION 6.15. Minimum Consolidated Service Revenues ..................... 95
SECTION 6.16. Secured Debt to Total Capital ............................. 96
SECTION 6.17. Total Debt to Total Capital ............................... 96
SECTION 6.18. Positive EBITDA ........................................... 96
SECTION 6.19. Maximum Secured Debt to Adjusted EBITDA ................... 96
SECTION 6.20. Maximum Total Debt to Annualized EBITDA ................... 96
SECTION 6.21. Minimum Consolidated EBITDA to Cash
Interest Expense .................................. 97
SECTION 6.22. Minimum Consolidated EBITDA to
Consolidated Fixed Charges ........................ 97
SECTION 6.23. Maximum Capital Expenditures .............................. 97
SECTION 6.24. Designation of Unrestricted Subsidiaries .................. 97
SECTION 6.25. License Subsidiaries ...................................... 99
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ................................................... 106
SECTION 9.02. Waivers; Amendments ....................................... 107
SECTION 9.03. Expenses; Indemnity; Damage Waiver ....................... 109
SECTION 9.04. Successors and Assigns .................................... 111
SECTION 9.05. Survival .................................................. 114
SECTION 9.06. Counterparts; Integration; Effectiveness .................. 115
SECTION 9.07. Severability .............................................. 115
SECTION 9.08. Right of Setoff ........................................... 115
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process ................................ 116
SECTION 9.10. WAIVER OF JURY TRIAL ...................................... 116
SECTION 9.11. Headings .................................................. 117
SECTION 9.12. Confidentiality ........................................... 117
SECTION 9.13. Interest Rate Limitation .................................. 118
SECTION 9.14. Special Funding Option .................................... 118
SECTION 9.15. Release of Subsidiaries ................................... 124
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.03 -- Governmental Approvals, etc.
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.15 -- Mortgage Filing Offices
Schedule 4.01(c) -- ATX Note
Schedule 6.01(a) -- Existing Indebtedness of the Borrower
Schedule 6.02 -- Existing Subsidiary Indebtedness
Schedule 6.03 -- Existing Liens
Schedule 6.06 -- Existing Investments
Schedule 6.10 -- Existing Affiliate Transactions
Schedule 6.11 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Skadden, Arps, Slate, Meagher & Flom, LLP
Exhibit B-2 -- Form of Opinion of General Counsel of the Parent
Exhibit B-3 -- Form of Opinion of Regulatory Counsel
Exhibit B-4 -- Form of Opinion of Local Counsel
Exhibit C -- Form of Security Agreement
Exhibit D -- Form of Pledge Agreement
Exhibit E -- Form of Guarantee Agreement
Exhibit F -- Form of Indemnity, Subrogation and Contribution Agreement
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CREDIT AGREEMENT dated as of
September 28, 2000 among CoreComm Limited (the "Parent"),
CoreComm Holdco, Inc. ("CCI"), CoreComm Communications, Inc.
(the "Borrower"), the Lenders party hereto, and The Chase
Manhattan Bank, as Administrative Agent and Collateral Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acquisition Documents" means the ATX Acquisition Documents and the
Voyager Acquisition Documents.
"Acquisitions" means the ATX Acquisition and the Voyager Acquisition.
"Active Access Lines" means, on any date, the total number of telephony
and DSL/ dedicated data access lines provided by the Parent, the Borrower and
the other Restricted Subsidiaries (including through resale arrangements) to
customers of the Parent, the Borrower and the other Restricted Subsidiaries
whose service payments are not overdue to a point where service is generally
disconnected.
"Additional Lender" is defined in Section 2.19.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such interest
period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder.
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"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agent" means The Chase Manhattan Bank, in its capacities as
Administrative Agent and Collateral Agent.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Annualized EBITDA" means, in respect of any fiscal quarter, the
product of (a) Consolidated EBITDA for the period of two consecutive fiscal
quarters ending on the last day of such fiscal quarter times (b) two.
"Applicable Commitment Fee Rate" means, with respect to the commitment
fee payable pursuant to Section 2.11(a), a rate per annum equal to (x) 1.50% for
each day on which Usage is less than or equal to 33.33%, (y) 1.25% for each day
on which Usage is greater than 33.33% but less than or equal to 66.66% and (z)
1.00% for each day on which Usage is greater than 66.66%. For purposes of the
foregoing, "Usage" means, on any date, the percentage obtained by dividing (i)
the sum of the aggregate outstanding Tranche A Term Loans and the aggregate
Revolving Exposure on such date by (ii) the sum of the aggregate outstanding
Tranche A Term Loans, unutilized Tranche A Commitments and Revolving Commitments
on such date.
"Applicable Percentage" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day with respect to any Revolving Loan
or Tranche A Term Loan, the applicable rate per annum set forth below under the
applicable caption
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below based upon the Leverage Ratio as of the most recent determination date;
provided, that (A) until the date of delivery to the Administrative Agent
pursuant to Section 5.01(a) or (b) of financial statements covering the first
four fiscal quarters ending after the Effective Date, the Leverage Ratio shall
be deemed to be in Category I and (B) during any period thereafter, the Leverage
Ratio shall be deemed to be in Category I if the financial statements most
recently delivered to the Administrative Agent pursuant to Section 5.01(a) or
(b) show that Consolidated EBITDA for the most recently ended fiscal quarter was
equal to or less than zero:
<TABLE>
<CAPTION>
Level Leverage Ratio LIBOR Spread for ABR Spread for
Revolving Loans and Revolving Loans and
Tranche A Term Loans Tranche A Term Loans
<S> <C> <C> <C>
I Negative 4.25% 3.25%
Consolidated
EBITDA for most
recent fiscal
quarter
II greater than or 4.00% 3.00%
equal to 10.0 to 1.0
III greater than or 3.75% 2.75%
equal to 8.0 to 1.0
but less than 10.0 to 1.0
IV greater than or 3.50% 2.50%
equal to 6.0 to 1.0
but less than 8.0 to 1.0
V greater than or 3.25% 2.25%
equal to 5.0 to 1.0 but
less than 6.0 to 1.0
VI greater than or 3.00% 2.00%
equal to 4.0 to 1.0
but less than 5.0 to 1.0
VII less than 4.0 to 1.0 2.50% 1.50%
</TABLE>
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Parent based upon the
Parent's consolidated financial statements delivered pursuant to Section 5.01(a)
or (b) and (ii) each change in the Applicable Rate resulting from a change in
the Leverage Ratio shall be effective during the period commencing on and
including the date of delivery to the Administrative Agent of such consolidated
financial statements indicating such change and ending on the date immediately
preceding the effective date of the next such change; provided that the Leverage
Ratio shall be deemed to be in Category I (A) at any time that an Event of
Default has occurred and is continuing or (B) at the option of the
Administrative Agent or at the request of the
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Required Lenders if the Parent fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 5.01(a) or (b),
during the period from the expiration of the time for delivery thereof (without
giving effect to any grace period) until such consolidated financial statements
are delivered.
"Arranger" means each financial institution that the Administrative
Agent and the Borrower designate as an "Arranger" in writing so long as such
financial institution is a Lender hereunder.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"ATX" means ATX Telecommunications Services, Inc., a Delaware
corporation.
"ATX Acquisition" means the acquisition by Holdings of ATX pursuant to
the ATX Acquisition Documents.
"ATX Acquisition Documents" means the Recapitalization Agreement and
Plan of Merger, dated as of March 9, 2000, by and among ATX, the ATX
Stockholders and the Parent, as amended.
"ATX Note" means a promissory note in an amount not in excess of
$119,000,000 issued by the Parent to stockholders of ATX pursuant to the ATX
Acquisition Documents in partial payment of the consideration payable by the
Parent for the ATX Acquisition. The terms of the ATX Note are summarized in
Schedule 4.01(k) hereto.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Board of Directors" means the Board of Directors of the Borrower, or
any committee thereof duly authorized to act on behalf of the Board of
Directors.
"Borrower" means CoreComm Communications, Inc., a Delaware corporation
and a Wholly Owned Subsidiary of the Parent and CCI.
"Borrowing" means Loans of the same Class and Type, made, converted or
continued on the same date and, in
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the case of Eurodollar Loans, as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, for any period, without duplication, (a)
the additions to property, plant and equipment and other capital expenditures of
the Parent, the Borrower and the other Restricted Subsidiaries that are (or
would be) set forth in a consolidated statement of cash flows of the Parent for
such period prepared in accordance with GAAP and (b) the amount of Capital Lease
Obligations incurred by the Parent, the Borrower and the other Restricted
Subsidiaries during such period.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase or subscribe for any of
the foregoing, or any warrants, rights or options to purchase or subscribe for
any such warrants, rights or options.
"CCI" means CoreComm Holdco, Inc., a Delaware corporation, which is a
Wholly-Owned Subsidiary of the Parent.
"Change of Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person (i) other than the Parent
of any Equity Interest in CCI or (ii) other than CCI of any Equity
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Interest in the Borrower; (b) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) of Equity
Interests representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests in the Parent; (c)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Parent by Persons who were neither (i) nominated by the board
of directors of the Parent on the date hereof nor (ii) appointed by directors so
nominated; or (d) the occurrence of a "Change of Control" or similar event (i)
as defined in any indenture or other agreement governing Long-Term Indebtedness
of the Parent or CCI which gives holders of such Indebtedness the right
(pursuant to a tender offer or otherwise) to have it repurchased by the Parent
or CCI or to declare such Indebtedness due and payable or (ii) as described in
the agreement governing the commitment to provide the Senior Unsecured Facility,
until the commitment to provide such facility has been terminated for a reason
other than a "Change of Control" or similar event.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Chase Agreements" means the Commitment Letter and Fee Letter, each
dated August 10, 2000, and the Supplemental Letter dated August 31, 2000, in
each case among the Parent, the Borrower, The Chase Manhattan Bank and CSI.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Tranche A Term Loans and, when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or Tranche A Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
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"Collateral" means any and all "Collateral", as defined in any Security
Document.
"Collateral Agent" means The Chase Manhattan Bank, in its capacity as
collateral agent under the Loan Documents.
"Collateral and Guarantee Requirement" means the requirement that:
(a) the Collateral Agent shall have received (i) from the Borrower, the
Parent and the Subsidiary Loan Parties a counterpart of each of the
Security Documents duly executed and delivered on behalf of all Loan
Parties party thereto and (ii) in the case of any Person that becomes a
Subsidiary Loan Party after the Effective Date, a supplement to each
Security Document, in the form specified therein, duly executed and
delivered on behalf of such Subsidiary Loan Party;
(b) all outstanding Equity Interests of the Borrower, CCI and each
other Restricted Subsidiary owned by or on behalf of any Loan Party shall
have been pledged pursuant to the Pledge Agreement (except that the Loan
Parties shall not be required to pledge more than 65% of the outstanding
voting Equity Interests of any subsidiary of the Borrower that is a Foreign
Subsidiary) and the Agent shall have received certificates or other
instruments representing all such Equity Interests, together with stock
powers or other instruments of transfer with respect thereto endorsed in
blank;
(c) each promissory note evidencing any Indebtedness of the Parent, the
Borrower or any Subsidiary that is owing to any Loan Party shall have been
pledged pursuant to the Pledge Agreement and the Agent shall have received
all such promissory notes, together with instruments of transfer with
respect thereto endorsed in blank;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the Agent
to be filed, registered or recorded to create the Liens intended to be
created by the Security Documents and perfect such Liens to the extent
required by, and with the priority required by, the Security Documents,
shall have been filed, registered or recorded or delivered to the Agent for
filing, registration or
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recording or arrangements satisfactory to the Agent shall have been made
therefor;
(e) the Collateral Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first
Lien on the Mortgaged Property described therein, free of any other Liens
except as expressly permitted by Section 6.03, together with such
endorsements, coinsurance and reinsurance as the Agent or the Required
Lenders may reasonably request, and (iii) such surveys, abstracts,
appraisals, legal opinions and other documents as the Agent or the Required
Lenders may reasonably request with respect to any such Mortgage or
Mortgaged Property; and
(f) each Loan Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery
of all Security Documents to which it is a party, the performance of its
obligations thereunder and the granting by it of the Liens thereunder.
"Commitment" means a Revolving Commitment, Tranche A Commitment or any
combination thereof (as the context requires).
"Communications Act" means the Communications Act of 1934 and any
similar or successor Federal statute and the rules, regulations and published
policies of the Federal Communications Commission thereunder, all as amended and
as the same may be in effect from time to time.
"Consolidated Cash Interest Expense" means, for any period, the excess
of (a) the sum of (i) the interest expense (including imputed interest expense
in respect of Capital Lease Obligations) of the Parent, the Borrower and the
other Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP, (ii) any interest accrued during such period in
respect of Indebtedness of the Parent, the Borrower or any other Restricted
Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP, (iii) any
cash payments made during such period in respect of obligations referred to in
clause (b)(ii) below that were amortized or accrued in a previous period, minus
(b) the sum of (i) to the extent
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included in such consolidated interest expense for such period, non-cash amounts
attributable to amortization of financing costs paid in a previous period, plus
(ii) to the extent included in such consolidated interest expense for such
period, non-cash amounts attributable to amortization of debt discounts or
accrued interest payable in kind for such period.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and amortization for such period,
and (iv) any extraordinary non-cash charges for such period, and minus (b)
without duplication and to the extent included in determining such Consolidated
Net Income, any extraordinary gains for such period, all determined on a
consolidated basis in accordance with GAAP.
"Consolidated Fixed Charges" means, for any period, the sum of (a)
Consolidated Cash Interest Expense for such period, (b) the aggregate amount of
scheduled principal payments made during such period in respect of Long-Term
Indebtedness, including Capital Lease Obligations, of the Parent, the Borrower
and the other Restricted Subsidiaries, (c) the aggregate amount of rental
expense of the Parent, the Borrower and the other Restricted Subsidiaries during
such period in respect of leases other than Capital Lease Obligations, (d) the
aggregate amount of Capital Expenditures during such period and (e) the
aggregate amount of Taxes paid in cash by the Parent, the Borrower and the other
Restricted Subsidiaries during such period.
"Consolidated Net Income" means, for any period, the net income or loss
of the Parent, the Borrower and the other Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP; provided that
there shall be excluded (a) the income of any Person in which any other Person
(other than the Parent, the Borrower or any other Restricted Subsidiary or any
director holding qualifying shares in compliance with applicable law) owns an
Equity Interest, except to the extent of the amount of dividends or other
distributions actually paid to the Parent, the Borrower or any of the other
Restricted Subsidiaries during such period, and (b) the income or loss of any
Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Parent, the Borrower or any other Restricted Subsidiary or
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the date that such Person's assets are acquired by the Parent, the Borrower or
any other Restricted Subsidiary.
"Consolidated Service Revenue" means, for any period, the revenues of
the Parent, the Borrower and the other Restricted Subsidiaries for such period,
excluding any revenues (i) representing interest or investment income, (ii)
representing dividends or distributions from Unrestricted Subsidiaries and (iii)
representing any extraordinary revenues from non-ordinary course of business
transactions, including without limitation revenues from the sale or disposition
of businesses, assets (other than in the ordinary course of business) or
investments or from any Prepayment Event.
"Contributed Capital" means, at any date, the sum (without duplication)
of (a) $326,836,000, plus (b) Equity Proceeds received by the Parent subsequent
to June 30, 2000, plus (c) the amount of Conversion Proceeds received by the
Parent after June 30, 2000, in respect of convertible securities that were not
included in the combined stockholders equity of the Parent, the Borrower and the
other Restricted Subsidiaries as of June 30, 2000, plus (d) the undrawn
commitments under the Senior Unsecured Facility on such date which have neither
expired or been terminated.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Conversion Proceeds" means an amount deemed for purposes hereof to
have been received by the Parent at the time of conversion of any convertible
debt securities or preferred stock (other than Non-Cash Pay Preferred Stock) of
the Parent into common stock or Non-Cash Pay Preferred Stock of the Parent equal
to the principal amount (or Imputed Principal Amount, as applicable) of such
debt securities or preferred stock so converted.
"Convertible Note Condition" means (a) the conversion prior to April 1,
2006 of all the outstanding Convertible Notes into common stock of the Parent
and/or (b) the repayment prior to April 1, 2006 of all the Convertible Notes
with Net Proceeds from the issuance of unsecured Long-Term Indebtedness of the
Parent that is subordinated to the Obligations in a manner reasonably
satisfactory to the Administrative Agent and that does not mature or amortize
until the date that is eight years and
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six months after the Effective Date, with the result that no Convertible Notes
are outstanding on April 1, 2006.
"Convertible Notes" means the Parent's 6% Convertible Notes due 2006.
"CSI" means Chase Securities Inc.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Derivatives Counterparty" means any financial institution, commodities
or stock exchange or clearinghouse with which the Parent, the Borrower or any
other Restricted Subsidiary enters into a derivatives transaction.
"Designated Equity Proceeds Use" means the application of Equity
Proceeds or Conversion Proceeds to any of the following: (i) Restricted Payments
pursuant to stock option plans or other benefit plans for management or
employees of the Parent, the Borrower and the other Restricted Subsidiaries in
excess of $2,000,000 in any twelve-month period, (ii) payments of cash
consideration in connection with Permitted Business Acquisitions pursuant to
Section 6.06(e) and (iii) Investments permitted by Section 6.06(l) and (iv)
repayments or refinancings of Indebtedness permitted by Section 6.09(b)(v).
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating to the pollution or protection of the environment, preservation or
reclamation of natural resources, the management, release or threatened release
of any Hazardous Material.
<PAGE> 17
12
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Parent, the Borrower, any other Restricted
Subsidiary or (to the extent that the Parent, the Borrower or any other
Restricted Subsidiary may be liable as a result thereof) any Unrestricted
Subsidiary, directly or indirectly resulting from or based upon (a) violation of
any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"Equity Proceeds" means the cash Net Proceeds received by the Parent
from the issuance and sale of common stock of the Parent or Non-Cash Pay
Preferred Stock of the Parent.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any
<PAGE> 18
13
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excess Capital" means, during any fiscal year, the aggregate amount of
Equity Proceeds and Net Proceeds from the issuance of Indebtedness permitted to
be incurred under this Agreement (other than any proceeds of the Initial
Permitted Financing (including the Senior Unsecured Facility) and the Loans)
received during such year and not required to be applied to prepay Term
Borrowings pursuant to Section 2.10.
"Excess Cash Flow" means, for any fiscal period, the sum (without
duplication) of:
(a) Consolidated Net Income for such fiscal period, adjusted to exclude
any gains or losses attributable to Prepayment Events; plus
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such Consolidated Net Income for such fiscal period;
plus
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal period plus (ii) the net amount, if any, by
which the deferred revenues of the Parent, the Borrower and the other
Restricted Subsidiaries increased during such fiscal period plus (iii) the
amount, if any, by which the deferred cash expenses of the Parent, the
Borrower and the other Restricted Subsidiaries decreased during such fiscal
period; minus
<PAGE> 19
14
(d) the sum of (i) any non-cash gains included in determining such
Consolidated Net Income for such fiscal period plus (ii) the amount, if any,
by which Net Working Capital increased during such fiscal period plus (iii)
the amount, if any, by which the deferred revenues of the Parent, the
Borrower and the other Restricted Subsidiaries decreased during such fiscal
period plus (iv) the amount, if any, by which the deferred cash expenses of
the Parent, the Borrower and the other Restricted Subsidiaries increased
during such fiscal period; minus
(e) the sum of (i) Capital Expenditures paid in cash during such fiscal
period (except to the extent attributable to the incurrence of Capital Lease
Obligations or otherwise financed by incurring Long-Term Indebtedness and
except to the extent paid with Net Proceeds in respect of Prepayment Events
or from the issuance of Capital Stock) plus (ii) cash consideration paid
during such fiscal period to make Permitted Business Acquisitions or other
investments permitted hereunder (other than Permitted Investments and except
to the extent financed by incurring Long-Term Indebtedness or issuing
Capital Stock); minus
(f) cash payments made during such fiscal period which were not deducted
in determining such Consolidated Net Income for such fiscal period that will
in a subsequent fiscal period become a non-cash charge deducted in
determining Consolidated Net Income for such subsequent fiscal period; minus
(g) the aggregate principal amount of Long-Term Indebtedness repaid or
prepaid in cash by the Parent, the Borrower and the other Restricted
Subsidiaries during such fiscal period, excluding (i) Indebtedness in
respect of Revolving Loans and Letters of Credit (unless accompanied by a
corresponding permanent reduction in the Revolving Commitments), (ii)
Tranche A Term Loans prepaid pursuant to Section 2.10(b) or (c), and (iii)
repayments or prepayments of Long-Term Indebtedness financed by incurring
other Long-Term Indebtedness or issuing Capital Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
<PAGE> 20
15
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.16(a), or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.16(e).
"Executive Officer" means the chief executive officer, the president,
the chief financial officer, the secretary, the treasurer or a vice president of
any Loan Party.
"FCC" means the United States Federal Communications Commission, and
any successor agency thereto.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiberstream" means Fiberstream, Inc., a Delaware corporation.
"Financial Covenants" means the covenants set forth in Sections 6.16
through 6.23, inclusive.
<PAGE> 21
16
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of any Loan Party.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"Funded Debt" means, as of any date, the sum of all Indebtedness for
borrowed money of the Parent, the Borrower and the other Restricted
Subsidiaries, determined on a consolidated basis, which by its terms matures
more than one year after such date, and any such Indebtedness for borrowed money
maturing within one year from such date which is renewable or extendible at the
option of the obligor to a date more than one year from such date.
"GAAP" means generally accepted accounting principles in the United
States of America.
"General Syndication Date" means the date after the Effective Date on
which the general syndication of the Revolving Commitments, Tranche A
Commitments and Tranche A Term Loans has, as determined by CSI in its sole
discretion, been completed, and the Lenders arranged by CSI in such general
syndication have, pursuant to Assignments and Acceptances or an amendment to
this Agreement, become parties to this Agreement.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the
<PAGE> 22
17
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation or
to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Imputed Principal Amount" means, with respect to any class of
preferred stock, the maximum amount that would be payable upon mandatory
redemption or repurchase of all such preferred stock or, if no mandatory
redemption or repurchase is applicable, the greater of the issue price or
liquidation preference of such preferred stock.
"Incremental Facility Amendment" is defined in Section 2.19.
"Incremental Loans" is defined in Section 2.19.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
<PAGE> 23
18
(excluding current accounts payable incurred in the ordinary course of business
and earn-out agreements), (e) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (f)
all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty and (i) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement among the Parent, CCI, the
Borrower and the Subsidiary Guarantors, substantially in the form of Exhibit F
hereto.
"Information Memorandum" means the Information Memorandum dated August
2000 relating to the Parent, the Borrower and the Transactions.
"Initial Permitted Financing" means one or more Permitted Parent
Financings (including the Senior Unsecured Facility) consummated after August
10, 2000 (other than any financing or portion thereof effected in lieu of, or
used to refinance, any portion of the $119,000,000 principal amount, or
anticipated principal amount, of the ATX Note) generating aggregate gross cash
proceeds of $100,000,000.
"Initial Permitted Financing Condition" means the condition that (i)
the Initial Permitted Financing shall have been consummated or partially
consummated and partially committed to by investors or lenders reasonably
satisfactory to the Administrative Agent (the Administrative Agent hereby
confirming its satisfaction with the Senior Unsecured Facility), (ii) not less
than $50,000,000 in gross cash proceeds of the Initial Permitted Financing shall
have been funded and the Net Proceeds thereof contributed to the
<PAGE> 24
19
Borrower and (iii) the Administrative Agent shall be reasonably satisfied with
the subordination provisions of any subordinated Indebtedness included in the
funded portion of the Initial Permitted Financing.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter as the Borrower may elect; provided, that (a) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (b) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"Investment" means purchasing, holding or acquiring (including pursuant
to any merger with any Person that was not a Wholly Owned Restricted Subsidiary
prior to such merger) any Capital Stock, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, or making or permitting to exist any loans or advances (other
than commercially reasonable extensions of trade credit) to, guaranteeing any
obligations of, or making or permitting to exist any investment in, any other
Person, or purchasing or
<PAGE> 25
20
otherwise acquiring (in one transaction or a series of transactions) any assets
of any Person constituting a business unit. For purposes hereof, the term
"Investment" shall also include any royalty, license or other fees paid by any
Loan Party to any Subsidiary that is not a Loan Party in respect of or for the
use of or rights to any patents, trademarks or other intangible assets, which
payments will be deemed to be investments in such Subsidiary. The amount, as of
any date of determination, of any Investment shall be the original cost of such
Investment (including any Indebtedness of a Person existing at the time such
Person becomes a Restricted Subsidiary in connection with any Investment and any
Indebtedness assumed in connection with any acquisition of assets), plus the
cost of all additions, as of such date, thereto and minus the amount, as of such
date, of any portion of such Investment repaid to the investor in cash or
property as a repayment of principal or a return of capital, as the case may be
(except to the extent such repaid amount has been included in Consolidated Net
Income), but without any other adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such Investment. In
determining the amount of any Investment or repayment involving a transfer of
any property other than cash, such property shall be valued at its fair market
value at the time of such transfer.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance or an Incremental Facility Amendment, other than any such Person
<PAGE> 26
21
that ceases to be a party hereto pursuant to an Assignment and Acceptance.
"Lender Affiliate" means (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender and (b) with respect to any Lender that is a fund which invests in
bank loans or similar extensions of credit in the ordinary course of business,
any Related Fund; provided, that no entity shall be a "Lender Affiliate" unless
such entity is capable of performing the applicable obligations of a Lender
hereunder.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Leverage Ratio" means, on any date, the ratio of (a) Total Debt as of
such date to (b) Annualized EBITDA in respect of the fiscal quarter of the
Parent ended on such date (or, if such date is not the last day of a fiscal
quarter, ended on the last day of the fiscal quarter of the Parent most recently
ended prior to such date).
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market),
rounded upwards, if necessary, to the nearest 1/100th of a percent, at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
<PAGE> 27
22
"License" means any license granted by the FCC (other than any landing
license granted by the FCC pursuant to Section 214 of the Communications Act) or
any equivalent foreign telecommunications regulatory body.
"License Subsidiary" means Cortelyou Communications Corp., a Delaware
corporation, and any other wholly owned direct subsidiary of the Borrower
designated as a License Subsidiary by notice to the Administrative Agent;
provided, however, that (i) such Subsidiary is a Subsidiary Loan Party and has
no obligations or liabilities other than as permitted by Section 6.25, (ii) all
the Capital Stock of such Subsidiary is pledged to the Collateral Agent for the
benefit of the Secured Parties under the Pledge Agreement and (iii) the Parent,
the Borrower and such Subsidiary have entered into a Special Purpose Subsidiary
Funding Agreement.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LMDS Licenses means the FCC Licenses covering local multipoint
distribution services which are owned by the Borrower on the date of this
Agreement.
"Loan Documents" means this Agreement and the Security Documents.
"Loan Parties" means the Parent, the Borrower and the Subsidiary Loan
Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Long-Term Indebtedness" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"Material Adverse Effect" means a material adverse effect on (a) the
actual or prospective business, assets, operations or condition (financial or
otherwise) of the Parent, the Borrower and the other Restricted Subsidiaries,
taken as a whole, (b) the ability of any Loan Party to perform any of its
material obligations under any Loan
<PAGE> 28
23
Document or (c) the rights of or benefits available to the Administrative Agent,
the Collateral Agent and the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Parent, the Borrower and the other Restricted
Subsidiaries in an aggregate principal amount exceeding $10,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Parent, the Borrower or any other Restricted Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Parent, the Borrower
or such other Restricted Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time (or is required to pay, if such Hedging
Agreement has been terminated).
"Moody's" means Moody's Investors Service, Inc., or, if Moody's
Investors Service, Inc. shall cease rating the specified debt securities, and
such ratings business has been transferred to a successor Person, such successor
Person.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"Mortgaged Property" means each parcel of real property and the
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 5.12 or 5.13.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by the Loan Parties to third
parties (other than Affiliates) in connection with such event, (ii) in the case
of a sale, transfer or other disposition of an asset (including pursuant to a
sale and leaseback transaction or a casualty or a condemnation or
<PAGE> 29
24
similar proceeding), the amount of all payments required to be made by the Loan
Parties as a result of such event to repay Indebtedness (other than Loans)
secured by such asset or otherwise subject to mandatory prepayment as a result
of such event, and (iii) the amount of all taxes paid (or reasonably estimated
to be payable, provided, that such amounts withheld or estimated for tax
payments shall, to the extent not utilized for the payment of taxes, be deemed
to be Net Proceeds) by the Loan Parties, and the amount of any reserves
established by the Loan Parties to fund contingent liabilities reasonably
estimated to be payable (provided that any reversal of any such reserves will be
deemed to be Net Proceeds in the amount of such reversal), in each case that are
directly attributable to such event (as determined reasonably and in good faith
by the chief financial officer of the Parent).
"Net Working Capital" means, at any date, (a) the consolidated current
assets of the Parent, the Borrower and the other Restricted Subsidiaries as of
such date (excluding cash and Permitted Investments) minus (b) the consolidated
current liabilities of the Parent, the Borrower and the other Restricted
Subsidiaries as of such date (excluding current liabilities in respect of
Indebtedness). Net Working Capital at any date may be a positive or negative
number. Net Working Capital increases when it becomes more positive or less
negative and decreases when it becomes less positive or more negative.
"New Preferred Stock" means any preferred stock of the Parent issued
after the Effective Date that would qualify as Non-Cash Pay Preferred Stock
except for (i) any requirement that cash dividends accrue in respect of periods
after the third anniversary of the Effective Date and (ii) any provision
permitting conversion into, or exchange for, Permitted Parent Indebtedness or
other New Preferred Stock.
"Non-Cash Pay Preferred Stock" means preferred stock of the Parent
which (i) is not mandatorily redeemable, in whole or part, or required to be
repurchased or reacquired, in whole or in part, by the Parent, the Borrower or
any other Restricted Subsidiary, and which does not require any payment of cash
dividends, in each case, prior to March 22, 2009; provided, however, that any
preferred stock which would constitute Non-Cash Pay Preferred Stock but for
provisions thereof giving holders thereof the right to require the Parent to
repurchase or redeem such preferred stock upon the occurrence of a change of
control shall constitute Non-Cash Pay Preferred Stock if the change of control
provisions (other than the purchase price)
<PAGE> 30
25
applicable to such preferred stock are no more favorable to the holders of such
preferred stock than the provisions applicable to the Loans contained in this
Agreement and such preferred stock specifically provides that the Parent, the
Borrower and the other Restricted Subsidiaries will not repurchase or redeem any
such preferred stock pursuant to such provisions prior to the repayment of the
Loans and LC Disbursements and the termination of all Commitments hereunder,
(ii) is not secured by any assets of the Parent, the Borrower or any other
Restricted Subsidiary, (iii) is not Guaranteed by the Borrower or any other
Restricted Subsidiary and (iv) is not exchangeable or convertible into
Indebtedness of the Parent, the Borrower or any other Restricted Subsidiary or
any preferred stock (other than Non-Cash Pay Preferred Stock) of the Parent, the
Borrower or any Subsidiary.
"Obligations" has the meaning assigned to such term in the Guarantee
Agreement.
"On-Net Access Lines" means, on any date, the total number of telephony
and DSL/dedicated data access lines provided by the Parent, the Borrower and the
other Restricted Subsidiaries through their owned telecommunications system
network facilities (excluding lines provided through resale agreements) to
customers of the Parent, the Borrower and the other Restricted Subsidiaries
whose service payments are not overdue to a point where service is generally
disconnected.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Parent Convertible Notes" means the CoreComm Limited $175,000,000 6%
Convertible Subordinated Notes due 2006.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Annex II to
the Security Agreement or any other form approved by the Collateral Agent.
"Permitted Business Acquisition" means any acquisition (by merger or
otherwise) by the Parent, the
<PAGE> 31
26
Borrower or a Subsidiary Loan Party of all or substantially all the assets of,
or all the Equity Interests in, a Person or division or line of business of a
Person, if (a) immediately after giving effect thereto, no Default has occurred
and is continuing or would result therefrom, (b) any such acquired Person is
organized under the laws of the United States and any such acquired Person or
business is predominately engaged in one or more Telecommunications Businesses
in the United States, (c) each Subsidiary resulting from such acquisition (and
which survives such acquisition) shall be a Subsidiary Loan Party (unless it is
a Foreign Subsidiary) and all the Equity Interests of each such Subsidiary shall
be owned directly by the Parent, the Borrower and/or Subsidiary Loan Parties and
shall have been pledged pursuant to the Pledge Agreement (subject to the
limitations with respect to the pledge of Capital Stock of Foreign Subsidiaries
set forth therein), (d) the Collateral and Guarantee Requirement shall have been
satisfied with respect to each such Subsidiary, (e) the Parent, the Borrower and
the other Restricted Subsidiaries are in compliance, on a pro forma basis after
giving effect to such acquisition (without giving effect to operating expense
reductions), with the Financial Covenants, to the extent then applicable, as if
such acquisition had occurred on the first day of the relevant period for
testing compliance, and (f) the Parent has delivered to the Agent an officer's
certificate to the effect set forth in clauses (a), (b), (c), (d) and (e) above,
together with all relevant financial information for the Person or assets
acquired and reasonably detailed calculations demonstrating satisfaction of the
requirement set forth in clause (e) above.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations and deposits securing liabilities to
insurance carriers or in connection with self-insurance arrangements;
<PAGE> 32
27
(d) deposits to secure the performance of bides, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Parent, the Borrower or any
Restricted Subsidiary;
(g) restrictions on the transfer or pledge of assets contained in any
License or imposed by the Communications Act, comparable state or local
legislation, regulations or ordinances;
(h) leases or subleases granted to others not interfering in any
material respect with the business of the Parent, the Borrower and any
Restricted Subsidiary and any interest or title of a lessor under any lease
not prohibited by this Agreement;
(i) ground leases in respect of real property on which facilities owned
or leased by the Parent, the Borrower or any Restricted subsidiary are
located;
(j) the filing of financing statements regarding operating leases (other
than in connection with Sale and Leaseback Transactions) not prohibited by
this Agreement; and
(k) with respect to each Mortgaged Property, the exceptions listed in
the title insurance policy relating to such Mortgaged Property;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America (or
by any
<PAGE> 33
28
agency thereof to the extent such obligations are backed by the full faith
and credit of the United States of America), in each case maturing within
one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or place with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause (c)
above; and
(e) investments in money market funds substantially all of whose assets
consist of securities of the types described in clauses (a) through (d).
"Permitted Parent Financing" means the issuance of common stock of the
Parent, Non-Cash Pay Preferred Stock, New Preferred Stock or Permitted Parent
Indebtedness.
"Permitted Parent Indebtedness" means unsecured senior or subordinated
Indebtedness of the Parent or CCI that (a) is not Guaranteed by the Borrower or
any Restricted Subsidiary (other than CCI), (b) does not mature or amortize or
require any payment of principal, and is not subject to any sinking fund
requirement, prior to March 22, 2009 (other than pursuant to a prepayment
obligation), (c) is not convertible into or exchangeable for any Indebtedness or
Equity Interests other than a Permitted Parent Financing, (d) either requires no
cash interest payments or provides for a pre-funded cash interest reserve
sufficient to cover all interest payments, in each case for the period of three
years commencing on the Effective Date, and (e) in the case of subordinated
debt, contains subordination terms reasonably satisfactory to the Administrative
Agent.
<PAGE> 34
29
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Parent, the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pledge Agreement" means the Pledge Agreement among the Parent, CCI,
the Borrower, the Subsidiary Guarantors and the Collateral Agent, substantially
in the form of Exhibit D.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Parent, the
Borrower or any other Restricted Subsidiary, other than (i) dispositions
described in clauses (a), (b) and (d) of Section 6.07;
(b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any
Telecommunications Asset of the Parent, the Borrower or any other Restricted
Subsidiary; or
(c) the incurrence by the Parent, the Borrower or any other Restricted
Subsidiary of any Indebtedness other than Indebtedness permitted by Section
6.01(a) or Section 6.02.
Notwithstanding the foregoing, so long as any Indebtedness under the Senior
Unsecured Facility remains outstanding, the term "Prepayment Event" shall also
mean the occurrence of any event (other than a Permitted Parent Financing the
proceeds of which are utilized to repay outstandings under the Senior Unsecured
Facility) that would require prepayment of Indebtedness under the Senior
Unsecured Facility in aggregate amount greater than the aggregate amount of
Loans which would be required to be prepayed upon the occurrence of such event
pursuant to Section 2.10 if this sentence were not included in this definition,
so that the Net Proceeds of such event shall be applied first to prepay all
outstanding
<PAGE> 35
30
Term Borrowings before any Indebtedness under the Senior Unsecured Facility
shall be prepaid.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 9.04.
"Related Fund" means with respect to any Lender that is a fund that
invests in bank loans or similar extensions of credit in the ordinary course of
business, any other fund that invests in bank loans or similar extensions of
credit in the ordinary course of business and is advised or managed by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, trustees, partners, members,
officers, employees, agents and advisors of such Person and such Person's
Affiliates.
"Required Lenders" means, at any time, Lenders having aggregate
Revolving Exposures, Tranche A Term Loans and unused Commitments representing
more than 50.0% of the sum of the total Revolving Exposures, outstanding Tranche
A Term Loans and unused Commitments at such time.
"Restricted Indebtedness" means Indebtedness of the Parent, the
Borrower or any Restricted Subsidiary the payment, prepayment, redemption,
repurchase or defeasance of which is restricted under Section 6.09(b).
"Restricted Payment" means (a) any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Parent, the Borrower or any other Restricted Subsidiary, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of (i) any Equity Interests in the
Parent, the Borrower or any other Restricted Subsidiary or (ii) any option,
warrant or other right to acquire any such Equity Interests in the Parent, the
Borrower or any other Restricted Subsidiary or (b) any payment under a Synthetic
Purchase Agreement.
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31
"Restricted Subsidiary" means (i) each Subsidiary of the Parent on the
date hereof, including CCI and the Borrower, and (ii) each Subsidiary of the
Parent organized or acquired after the date hereof that has not been designated
an Unrestricted Subsidiary in accordance with the provisions of Section 6.24.
"Revolving Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Revolving Maturity Date and
the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Sections 2.07, 2.09, and 2.10 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Revolving Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Revolving Commitment, as applicable. The initial aggregate
amount of the Lenders' Revolving Commitments is $50,000,000.
"Revolving Exposure" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Revolving Loans and its
LC Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (b) of Section
2.01.
"Revolving Maturity Date" means April 1, 2006; provided that if and
when the Convertible Note Condition is satisfied prior to April 1, 2006, the
Revolving Maturity Date will be September 22, 2008.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill
Companies, or, if Standard & Poor's Ratings Group shall cease rating the
specified debt securities, and such ratings business has been transferred to a
successor Person, such successor Person.
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32
"Secured Debt" means, on any date, the Loans and all other
Indebtedness that would be reflected as a liability on a consolidated balance
sheet of the Parent, the Borrower and the other Restricted Subsidiaries prepared
as of such date in accordance with GAAP and that is secured by any assets of the
Parent, the Borrower or any other Restricted Subsidiary.
"Secured Parties" is defined in the Security Agreement.
"Security Agreement" means the Security Agreement among the
Parent, the Borrower, the Subsidiary Guarantors and the Collateral Agent,
substantially in the form of Exhibit C.
"Security Documents" means the Security Agreement, the Pledge
Agreement, the Guarantee Agreement, the Indemnity, Subrogation and Contribution
Agreement, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to Section 5.12 or 5.13 to secure
any of the Obligations.
"Senior Unsecured Facility" means the senior unsecured credit
facility provided for in the Commitment Letter dated September 19, 2000, among
The Chase Manhattan Bank, Chase Securities Inc. and CCI, under which The Chase
Manhattan Bank commits to make senior unsecured loans to CCI in aggregate
principal amount of $50,000,000.
"Special Purpose Subsidiary Funding Agreement" means an
agreement among the Parent, the Borrower and each License Subsidiary, in form
and substance satisfactory to the Administrative Agent, pursuant to which (a)
such License Subsidiary agrees to provide to the Borrower and the other
Restricted Subsidiaries the benefit of the use of such License Subsidiary's
assets, (b) the Parent and the Borrower jointly and severally agree to pay to
such License Subsidiary an amount equal to all liabilities of such License
Subsidiary as and when such liabilities become due and payable (less any amounts
contributed at such time to the equity of such License Subsidiary to fund such
liabilities), (c) the Parent and the Borrower agree to cause all contractual
obligations of such License Subsidiary to be performed and all laws and
regulations applicable to such License Subsidiary to be complied with and (d)
the Parent, the Borrower and such License Subsidiary agree to the assignment by
each of its rights thereunder to the Collateral Agent for the benefit of the
Secured Parties.
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33
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority to which
the Administrative Agent is subject and applicable to "Eurocurrency
Liabilities", as such term is defined in Regulation D of the Board, or any
similar category of assets or liabilities relating to eurocurrency fundings.
Eurodollar Loans shall be deemed to continue Eurocurrency Liabilities and to be
subject to such reserve requirements without benefit or credit for proration,
exemptions or offsets that may be available to a Lender from time to time under
Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Parent.
"Subsidiary Loan Party" means any Restricted Subsidiary (other
than the Borrower) that is not a Foreign Subsidiary, including without
limitation Fiberstream; provided, that non-Wholly Owned Restricted Subsidiaries
formed or acquired after the date hereof shall not be "Subsidiary Loan Parties"
if the entire amount of the Investment by the Parent, the Borrower and the other
Restricted Subsidiaries in such non-Wholly Owned Restricted Subsidiary has been
designated by the Parent as having been made pursuant to Section 6.06(l).
"Synthetic Purchase Agreement" means any swap, derivative or
other agreement or combination of agreements
<PAGE> 39
34
pursuant to which the Parent, the Borrower or any Restricted Subsidiary is or
may become obligated to make (i) any payment in connection with a purchase by
any third party from a Person other than the Parent, the Borrower or any
Restricted Subsidiary of any Equity Interest or Restricted Indebtedness or (ii)
any payment (other than on account of a permitted purchase by it of any Equity
Interest or any Restricted Indebtedness) the amount of which is determined by
reference to the price or value at any time of any Equity Interest or Restricted
Indebtedness; provided that no phantom stock or similar plan providing for
payments only to current or former directors, officers or employees of the
Parent, the Borrower or any Restricted Subsidiary (or to their heirs or estates)
shall be deemed to be a Synthetic Purchase Agreement.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Telecommunications Assets" means all assets, rights
(contractual or otherwise) and properties, whether tangible or intangible, used
or intended for use in connection with a Telecommunications Business, but shall
not include any Capital Stock or Equity Interests.
"Telecommunications Business" means the business of (i)
transmitting, or providing services relating to the transmission of, voice,
video or data through owned or leased terrestrial or submarine transmission
facilities and (ii) constructing, installing, maintaining, creating, developing
or marketing terrestrial or submarine communications related network
infrastructure, components, equipments, software and other devices for use in a
telecommunications business and any other business that is reasonably related or
complementary thereto.
"Total Capital" means, on any date, the sum of (a) Funded
Debt, on such date plus (b) Contributed Capital on such date.
"Total Debt" means, on any date, the sum of (a) all
Indebtedness (other than Indebtedness under the Senior Unsecured Facility) of
the Parent, the Borrower and the other Restricted Subsidiaries that would be
reflected as a liability on a consolidated balance sheet of the Parent, the
Borrower and the other Restricted Subsidiaries prepared as of such date in
accordance with GAAP plus (b) the Imputed Principal Amount of any New Preferred
Stock outstanding on such date.
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35
"Tranche A Availability Period" means the period commencing
with the date hereof and ending on the earlier of (a) the date the Tranche A
Commitments are terminated and (b) the date that is one year after the date
hereof.
"Tranche A Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Tranche A Term Loan hereunder on
the Effective Date, expressed as an amount representing the maximum principal
amount of the Tranche A Term Loan to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Sections 2.07, 2.09
and 2.10 and (b) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 9.04. The initial amount of each
Lender's Tranche A Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Tranche A Commitment, as applicable. The initial aggregate amount of the
Lenders' Tranche A Commitments is $100,000,000.
"Tranche A Lender" means a Lender with a Tranche A Commitment
or an outstanding Tranche A Term Loan.
"Tranche A Maturity Date" means April 1, 2006; provided that
if and when the Convertible Note Condition is satisfied prior to April 1, 2006,
the Tranche A Maturity Date will be September 22, 2008.
"Tranche A Term Borrowing" means a borrowing of Tranche A Term
Loans.
"Tranche A Term Loan" means a Loan made pursuant to clause (a)
of Section 2.01.
"Transactions" means the execution, delivery and performance
by each Loan Party of the Loan Documents to which it is to be a party, the
granting and perfection of Liens on the Collateral under the Security Documents,
the borrowing of Loans, the use of the proceeds thereof and the issuance of
Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Unrestricted Subsidiary" means any Subsidiary of the Parent
that has been designated as an Unrestricted Subsidiary by the Parent pursuant
to and in compliance with
<PAGE> 41
36
Section 6.24. No Unrestricted Subsidiary may own any Capital Stock of a
Restricted Subsidiary.
"Voting Stock" means, with respect to any Person, securities
of any class or classes of Capital Stock in such Person entitling the holders
thereof (whether at all times or at the times that such class of Capital Stock
has voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such Person.
"Voyager" means Voyager.net, Inc., a Delaware corporation.
"Voyager Acquisition" means the acquisition by Holdings of
Voyager pursuant to the Voyager Acquisition Documents.
"Voyager Acquisition Documents" means the Agreement and Plan
of Merger, dated as of March 12, 2000, among the Parent, CoreComm Group Sub I,
Inc. and Voyager.
"Wholly Owned subsidiary" of any Person shall mean a
subsidiary of such Person of which securities or other ownership interests
(except for directors' qualifying shares and other de minimis amounts of
outstanding securities or ownership interests) representing 100% of the
ordinary voting power and 100% of equity or 100% of the general partnership
interests are, at the time any determination is being made, owned, controlled
or held by such Person or one or more Wholly Owned subsidiaries of such Person
or by such Person and one or more Wholly Owned subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and
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37
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
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38
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees (a) to make Tranche A Term Loans to the
Borrower from time to time during the Tranche A Availability Period in an
aggregate principal amount not exceeding its Tranche A Commitment, and (b) to
make Revolving Loans to the Borrower from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in
such Lender's Revolving Exposure exceeding such Lender's Revolving Commitment;
provided, however, that until the General Syndication Date the aggregate
Tranche A Term Loans and Revolving Exposure at any time outstanding shall not
exceed $75,000,000. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans. Amounts repaid in respect of Tranche A Term Loans may not be
reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be
made as part of a Borrowing consisting of Loans of the same Class and Type made
by the Lenders ratably in accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than
$10,000,000; provided that an ABR Revolving Borrowing may be in an aggregate
amount that is
<PAGE> 44
39
equal to the entire unused balance of the total Revolving Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e). Borrowings of more than one Type and Class may be outstanding
at the same time; provided that there shall not at any time be more than a total
of 10 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or Tranche A Maturity Date then in effect, as
applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Tranche A Term Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of
an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of the proposed Borrowing; provided that any such notice of
an ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement
as contemplated by Section 2.04(e) may be given not later than 10:00 a.m., New
York City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing or a Tranche A Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period";
<PAGE> 45
40
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.06; and
(vii) a description of any Telecommunications Assets being
acquired with the proceeds of such Borrowing and all information
required in Section 2 of the Perfection Certificate with respect to
such assets to the extent not previously provided and, in the case of
the initial Borrowing hereunder, a description of any Indebtedness
being refinanced with proceeds of such Borrowing.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
Such terms and conditions of any such application shall not, in any event,
contain any operating covenants or restrictions, provide for any collateral not
provided under the Loan Documents or provide for the imposition of fees (other
than customary charges).
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of
<PAGE> 46
41
issuance, amendment, renewal or extension) a notice requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the Issuing Bank, the Borrower also shall
submit a letter of credit application on the Issuing Bank's standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed $25,000,000 and (ii)
the total Revolving Exposures shall not exceed the total Revolving Commitments
and (iii) prior to the General Syndication Date, the Revolving Exposure and the
outstanding Tranche A Term Loans shall not exceed $75,000,000.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of
<PAGE> 47
42
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on (i) the date that
the Borrower shall have received notice of such LC Disbursement, if such notice
is received prior to 10:00 a.m., New York City time, on such date, or (ii) the
Business Day immediately following the day that the Borrower receives such
notice, in all other cases; provided that, if such LC Disbursement is not less
than $5,000,000, the Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 that such payment be
financed with an ABR Revolving Borrowing in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing. If the
Borrower fails to make such payment when due, the Administrative Agent shall
notify each Revolving Lender of the applicable LC Disbursement, the payment then
due from the Borrower in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from the Borrower, in the same manner as provided in Section 2.05 with
respect to Loans made by such Lender (and Section 2.05 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
<PAGE> 48
43
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for
<PAGE> 49
44
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.12(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.11(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context
<PAGE> 50
45
shall require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit or to extend any existing Letters
of Credit issued by it hereunder.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Revolving Lenders with LC Exposure representing
greater than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the LC Exposure as of
such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Article VII. Each such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the Obligations, and the Borrower hereby grants the
Collateral Agent, for the benefit of the Secured Parties, a security interest in
all funds and investments from time to time in such account, and the proceeds
thereof, to secure the Obligations. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account. Other than any interest earned on the investment of such
deposits in readily marketable Permitted Investments maturing in not more than
60 days, which investments shall be made at the direction of the Borrower and at
the Borrower's risk and expense, such deposits shall not bear interest. Interest
or profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank and/or the Revolving Lenders, as applicable, for LC Disbursements
for which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other
<PAGE> 51
46
obligations of the Borrower under this Agreement or the other Loan Documents. If
the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived. If the Borrower is
required to provide an amount of cash collateral hereunder pursuant to Section
2.10(b), such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower as and to the extent that, after giving effect to such return,
the Borrower would remain in compliance with Section 2.10(b) and no Default
shall have occurred and be continuing.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Admini-
<PAGE> 52
47
strative Agent, then such amount shall constitute such Lender's Loan included in
such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
<PAGE> 53
48
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower, then,
so long as an Event of Default is continuing (i) no outstanding Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Borrowing shall be converted into an ABR Borrowing at the end
of the Interest Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a)
Unless previously terminated, (i) the Tranche A Commitments shall terminate at
5:00 p.m., New York City time, on the last day of the Tranche A Availability
Period and (ii) the Revolving Commitments shall terminate on the Revolving
Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments of any Class; provided that (i) each reduction of
the Commitments of any Class shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans and any deposit of cash collateral
in accordance with Section 2.10, the sum of the Revolving Exposures would exceed
the total Revolving Commitments.
<PAGE> 54
49
(c) In the event that any prepayment of Term Borrowings is
required to be made pursuant to the provisions of Section 2.10 at a time when no
Tranche A Term Loans are outstanding (or in an amount in excess of the
outstanding Tranche A Term Loans) then, on the date such prepayment would
otherwise be required to be made, an amount equal to such required payment or
excess amount, as the case may be, shall be applied, first, to the permanent
reduction of unused Tranche A Commitments, if any, until no unused Tranche A
Commitments are outstanding, and thereafter to the permanent reduction of the
Revolving Commitments.
(d) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section, or any required reduction of the Revolving Commitments under paragraph
(c) of this Section, at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Tranche A Term Loan of such Lender as provided in Section 2.09.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
<PAGE> 55
50
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans and LC Disbursements in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.09. Automatic Commitment Reductions; Amortization of
Tranche A Term Loans. (a) The aggregate amount of the Lenders' Revolving
Commitments shall be automatically and permanently reduced in nineteen
consecutive quarterly reductions commencing on December 31, 2003 and a twentieth
and final reduction on the Revolving Maturity Date, in each case in the amount
set forth opposite such reduction date below:
<TABLE>
<S> <C>
December 31, 2003 $625,000
March 31, 2004 $625,000
June 30, 2004 $625,000
September 30, 2004 $625,000
December 31, 2004 $1,250,000
March 31, 2005 $1,250,000
June 30, 2005 $1,250,000
September 30, 2005 $1,250,000
</TABLE>
<PAGE> 56
51
<TABLE>
<S> <C>
December 31, 2005 $4,375,000
March 31, 2006 $4,375,000
June 30, 2006 $4,375,000
September 30, 2006 $4,375,000
December 31, 2006 $3,125,000
March 31, 2007 $3,125,000
June 30, 2007 $3,125,000
September 30, 2007 $3,125,000
December 31, 2007 $3,125,000
March 31, 2008 $3,125,000
June 30, 2008 $3,125,000
Revolving Maturity Date $3,125,000
</TABLE>
Any reduction of the Revolving Commitments shall be applied to reduce the
subsequent scheduled reductions of the Revolving Commitments to be made pursuant
to this Section ratably.
(b) On the date that is six months after the Effective Date,
the Tranche A Commitments will be automatically and permanently reduced by the
amount, if any, by which $50,000,000 exceeds the aggregate principal amount of
Borrowings of Tranche A Term Loans made on or prior to such date (regardless of
whether subsequently prepaid).
(c) Subject to adjustment pursuant to paragraph (f) of this
Section, the Borrower shall repay Tranche A Term Borrowings on each date set
forth below in the aggregate principal amount of Tranche A Term Loans
outstanding on the last day of the Tranche A Availability Period as are set
forth opposite such date:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
December 31, 2003 $1,250,000
March 31, 2004 $1,250,000
June 30, 2004 $1,250,000
September 30, 2004 $1,250,000
December 31, 2004 $2,500,000
March 31, 2005 $2,500,000
June 30, 2005 $2,500,000
September 30, 2005 $2,500,000
December 31, 2005 $8,750,000
March 31, 2006 $8,750,000
June 30, 2006 $8,750,000
September 30, 2006 $8,750,000
December 31, 2006 $6,250,000
March 31, 2007 $6,250,000
</TABLE>
<PAGE> 57
52
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
June 30, 2007 $6,250,000
September 30, 2007 $6,250,000
December 31, 2007 $6,250,000
March 31, 2008 $6,250,000
June 30, 2008 $6,250,000
Tranche A Maturity Date $6,250,000
</TABLE>
(d) To the extent not previously paid, (i) all Tranche A Term
Loans shall be due and payable on the Tranche A Maturity Date.
(e) Any prepayment of Tranche A Term Loans shall be applied to
reduce the subsequent scheduled repayments of the Tranche A Term Loans to be
made pursuant to this Section ratably. If the initial aggregate amount of the
Lenders' Tranche A Commitments exceeds the aggregate principal amount of Tranche
A Term Loans that are outstanding at the end of the Tranche A Availability
Period, then the scheduled repayments of Tranche A Term Loans to be made
pursuant to this Section shall be reduced ratably by an aggregate amount equal
to such excess.
(f) Prior to any repayment of any Tranche A Term Loans
hereunder, the Borrower shall select the Borrowing or Borrowings to be repaid
and shall notify the Administrative Agent by telephone (confirmed by telecopy)
of such selection not later than 11:00 a.m., New York City time, three Business
Days before the scheduled date of such repayment. Each repayment of a Borrowing
shall be applied ratably to the Loans included in the repaid Borrowing.
Repayments of Tranche A Term Loans shall be accompanied by accrued interest on
the amount repaid.
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to the requirements of this Section.
(b) In the event and on such occasion that the sum of the
Revolving Exposures exceeds the total Revolving Commitments, the Borrower shall
prepay Revolving Borrowings (or, if no such Borrowings are outstanding, deposit
cash collateral in an account with the Administrative Agent pursuant to Section
2.04(j)) in an aggregate amount equal to such excess.
<PAGE> 58
53
(c) In the event and on each occasion that any Net Proceeds
are received by or on behalf of the Parent, the Borrower or any other Restricted
Subsidiary in respect of any Prepayment Event, the Borrower shall, immediately
after such Net Proceeds are received, prepay Tranche A Term Borrowings in an
aggregate amount equal to such Net Proceeds; provided that, in the case of any
event described in clause (a) or (b) of the definition of the term Prepayment
Event, if no Indebtedness under the Senior Unsecured Facility remains
outstanding at the time of such event and the Parent shall deliver to the
Administrative Agent a certificate of a Financial Officer of the Parent to the
effect that the Parent, the Borrower or any other Restricted Subsidiaries intend
to apply the Net Proceeds from such event (or a portion thereof specified in
such certificate), to acquire within twelve months after receipt of such Net
Proceeds (or 18 months, provided that purchase orders or other binding
agreements with vendors have been entered into for such acquisition within 12
months after such receipt) Telecommunications Assets to be used in the business
of the Parent, the Borrower and the other Restricted Subsidiaries or to repair,
restore or replace Telecommunications Assets affected by a casualty or a taking,
and certifying that no Default has occurred and is continuing, then no
prepayment shall be required pursuant to this paragraph in respect of the Net
Proceeds in respect of such event (or the portion of such Net Proceeds specified
in such certificate, if applicable) except to the extent of any such Net
Proceeds therefrom that have not been so applied by the end of such twelve-month
period (or, if such purchase orders or other agreements with vendors for the
utilization of such Net Proceeds have been entered into during such twelve-month
period, that have not been so applied by the end of such 18-month period), at
which time a prepayment (and/or Tranche A Commitment reduction) shall be
required in an amount equal to such Net Proceeds that have not been so applied
and provided further that no prepayment of Tranche A Term Loans need be made
under this clause (c) until the aggregate amount of Net Proceeds received in
respect of which prepayments are otherwise required to be made equals or exceeds
$5,000,000, at which time a prepayment shall be made in an aggregate amount
equal to all such Net Proceeds in respect of which no such prepayment has yet
been made.
(d) Following the end of each fiscal year of the Parent,
commencing with fiscal year ending December 31, 2004, the Borrower shall prepay
Tranche A Term Loans in an aggregate amount equal to 50% of Excess Cash Flow for
such fiscal year. Each prepayment pursuant to this paragraph shall be made on or
before the date on which financial statements are delivered pursuant to Section
5.01 with
<PAGE> 59
54
respect to the fiscal year for which Excess Cash Flow is being calculated (and
in any event) within 100 days after the end of such fiscal year).
(e) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any optional or mandatory prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of
prepayment and (ii) in the case of prepayment of an ABR Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date, the principal amount of each Borrowing or portion thereof to be
prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a notice of
optional prepayment is given in connection with a conditional notice of
termination of the Revolving Commitments as contemplated by Section 2.07, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.07(d). Promptly following receipt of any
such notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required amount
of a mandatory prepayment. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Commitment Fee Rate on the daily unused amount of
each Revolving Commitment and Tranche A Commitment of such Lender during the
period from and including the date hereof to but excluding the date on which
such Commitment terminates. Accrued commitment fees shall be payable in arrears
on the last day of March, June, September and December of each year and on the
date on which the applicable Commitment terminates, commencing on the first such
date to occur after the date hereof. All commitment fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used
<PAGE> 60
55
to the extent of the outstanding Revolving Loans and LC Exposure of such Lender.
(b) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans on the daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Revolving Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and
(ii) to the Issuing Bank a fronting fee, which shall accrue at the rate or rates
per annum equal to 0.25% per annum (or such other rate as may be separately
agreed upon between the Borrower and the Issuing Bank) on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Revolving Commitments and the date on which there ceases to be any LC Exposure,
as well as the Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Revolving Commitments terminate and
any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent, including
pursuant to the Chase Agreements.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of
<PAGE> 61
56
fees payable to it) for distribution, in the case of commitment fees,
participation fees and prepayment fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after (to the extent
permitted by applicable law) as well as before judgment, at a rate per annum
equal to (i) in the case of overdue principal of any Loan, 2% plus the rate
otherwise applicable to such Loan as provided in the preceding paragraphs of
this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base
<PAGE> 62
57
Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any
such reserve reflected in the Adjusted LIBO Rate) or the Issuing
Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
<PAGE> 63
58
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise) (other than
by virtue of Taxes or amounts related to Taxes, which are subject to Section
2.16 rather than this Section 2.14), then, subject to Section 2.18, the Borrower
will pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then, subject to Section 2.18, from time to
time the Borrower will pay to such Lender or the Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the Borrower of the
<PAGE> 64
59
Change in Law giving rise to such increased costs or reductions and of such
Lender's or the Issuing Bank's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Tranche A Term Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.10(e) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.18, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the LIBO Rate
(excluding any Applicable Margin) that would have been applicable to such Loan,
for the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest which would accrue on such principal
amount for such period at the interest rate which such Lender would bid were it
to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the Eurodollar market. A certificate of
any Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or
<PAGE> 65
60
Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within 15 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender or the Issuing Bank, or by the Administrative Agent
on its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent; provided, however, that in no case
shall the Borrower be required to deliver documentation not normally issued by
such Governmental Authority.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect
<PAGE> 66
61
to payments under this Agreement shall deliver to the Borrower (with a copy to
the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.14,
2.15 or 2.16, or otherwise) by the time expressly required hereunder or under
such other Loan Document for such payment (or, if no such time is expressly
required, prior to 1:00 p.m., New York City time), on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to the Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in
<PAGE> 67
62
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Tranche A Term Loans or participations
in LC Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans, Tranche A Term Loans
and participations in LC Disbursements and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Tranche A Term Loans and participations in LC Disbursements of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans,
Tranche A Term Loans and participations in LC Disbursements; provided that (i)
if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). Each of the Borrower and the Parent consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Loan Parties rights of set-off
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Loan Parties in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the Issuing Bank, as the case may be, the amount due. In such event, if
<PAGE> 68
63
the Borrower has not in fact made such payment, then each of the Lenders or the
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(d) or (e), 2.05(b), 2.17(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
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64
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.19. Incremental Facility. At any time prior to the
Tranche A Maturity Date, the Borrower may, by notice to the Administrative Agent
(which shall promptly deliver a copy to each of the Lenders), request the
addition of a new tranche of term loans (all such Loans, collectively, the
"Incremental Loans"); provided, however, that both at the time of any such
request and at the time of effectiveness of the related Incremental Facility
Amendment, (i) no Default shall exist, (ii) the Borrower shall be in pro forma
compliance (giving effect to any Incremental Loans to be made on or about such
date of effectiveness) with the Financial Covenants, to the extent then
applicable and (iii) the making of the Incremental Loans will not require any
Indebtedness (other than Indebtedness hereunder) to be secured by any
Collateral, on a pari passu basis or otherwise. The Incremental Loans (i) shall
be in an aggregate principal amount of at least $1,000,000 and not in excess of
$100,000,000, (ii) shall rank pari passu in right of payment and of security
(including under the Guarantee Agreement) with the Loans, (iii) shall mature no
sooner than, and have an average weighted life no shorter than, the Tranche A
Term Loans, (iv) will not amortize (other than nominal amortization customary in
the institutional loan market) on a basis more favorable than the proportionate
amortization of Tranche A Loans, (v) shall at no time have an interest rate
spread that exceeds by more than .25% the Applicable Rate with respect to
Tranche A Term Loans (and the Applicable Rate with respect to Tranche A Term
Loans shall be automatically increased from time to time to the extent necessary
to result in it being .25% less than the
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interest rate spread then applicable to Incremental Loans having the largest
interest rate spread), (vi) shall be available only for the purpose of financing
the construction, engineering, acquisition, installation, development or
improvement of Telecommunications Assets or to refinance indebtedness of the
Parent, the Borrower or Restricted Subsidiaries, and (vii) shall otherwise be
treated no more favorably than the Tranche A Term Loans (including with respect
to mandatory and voluntary prepayments); provided that the terms and conditions
applicable to the Incremental Loans may provide for additional or different
financial or other covenants applicable only during periods after the Tranche A
Maturity Date. Such notice shall set forth the requested amount of Incremental
Loans. In the event that existing Lenders provide commitments in an aggregate
amount less than the total amount of the Incremental Loans requested by the
Borrower, the Borrower may arrange for one or more banks, other financial
institutions or (to the extent approved by the Administrative Agent and each
Arranger) vendors of telecommunications equipment (any such bank, other
financial institution or vendor being called an "Additional Lender") to extend
commitments to provide Incremental Loans in an aggregate amount equal to the
unsubscribed amount, provided that each Additional Lender shall be subject to
the approval of the Administrative Agent and each Arranger (which approval shall
not be unreasonably withheld). Commitments in respect of Incremental Loans shall
become Commitments under this Agreement pursuant to an amendment (an
"Incremental Facility Amendment") to this Agreement and, as appropriate, the
other Loan Documents, executed by the Parent, CCI, the Borrower, each Lender
agreeing to provide such Commitment, if any, each Additional Lender, if any, and
the Administrative Agent. The Incremental Facility Amendment may, without the
consent of any other Lenders, effect such amendments to this Agreement and the
other Loan Documents as may be necessary or appropriate, in the opinion of the
Administrative Agent, to effect the provisions of this Section. The
effectiveness of any Incremental Facility Amendment shall be subject to the
satisfaction on the date thereof of each of the conditions set forth in Section
4.02. No Lender shall be obligated to provide any Incremental Loans unless it so
agrees.
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ARTICLE III
Representations and Warranties
Each of the Parent, CCI and the Borrower represents and
warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Parent, CCI,
the Borrower and the other Restricted Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
to be entered into by each Loan Party are within such Loan Party's corporate
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and
delivered by the Parent, CCI and the Borrower and constitutes, and each other
Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of the Parent, CCI and the Borrower or such Loan Party (as the case
may be), enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect and except those set
forth on Schedule 3.03 (the failure of which to be obtained could not reasonably
be expected to result in a Material Adverse Effect) and filings necessary to
perfect Liens created under the Loan Documents, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Parent, CCI, the Borrower or any of their Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default
under any indenture, or any material agreement or other material instrument
binding upon the
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Parent, CCI, the Borrower or any of their Subsidiaries or their assets, or give
rise to a right thereunder to require any payment to be made by the Parent, CCI,
the Borrower or any of their Subsidiaries, and (d) will not result in the
creation or imposition of any Lien on any asset of the Parent, CCI, the Borrower
or any of the other Restricted Subsidiaries, except Liens created under the Loan
Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
The Parent has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal year ended December 31, 1999, reported on by Ernst & Young LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended June 30, 2000, certified by its chief
financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Parent and its consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii) above.
(b) Since December 31, 1999, there has been no material
adverse change in the actual or prospective business, assets, operations or
condition (financial or otherwise) of the Parent, the Borrower and the other
Restricted Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Parent, the Borrower
and the other Restricted Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to the business
(including its Mortgaged Properties) of the Parent, the Borrower and the other
Restricted Subsidiaries taken as a whole, except for exceptions listed in each
title insurance policy relating to any such Mortgaged Property or defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Parent, the Borrower and the other Restricted
Subsidiaries owns, or is licensed to use, all trademarks, trade names,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Parent, the Borrower and the other Restricted
Subsidiaries does not to the knowledge of the Parent or the Borrower infringe
upon the rights of any other Person, except for any such infringements that,
individually or in
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the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) Schedule 3.05 sets forth the address of each real property
that is owned or leased by the Parent, the Borrower or any other Restricted
Subsidiary as of the Effective Date after giving effect to the Transactions and
the Acquisitions.
(d) As of the Effective Date, neither the Parent, the Borrower
nor any of the other Restricted Subsidiaries has received notice of, or has
knowledge of, any pending or contemplated condemnation proceeding affecting any
Mortgaged Property or any sale or disposition thereof in lieu of condemnation.
Neither any Mortgaged Property nor any interest therein is subject to any right
of first refusal, option or other contractual right to purchase such Mortgaged
Property or interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Parent, CCI or the
Borrower, threatened against or affecting the Parent, CCI, the Borrower or any
of the other Restricted Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters) or (ii) that relate
to any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, none of the
Parent, CCI, the Borrower, the other Subsidiaries, (i) has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit, license
or other approval required under any Environmental Law, (ii) has become subject
to any Environmental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
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SECTION 3.07. Compliance with Laws and Agreements. Each of the
Parent, CCI, the Borrower and the other Restricted Subsidiaries is in compliance
with (a) all laws, regulations and orders of any Governmental Authority
applicable to it or its property and (b) all indentures, agreements and other
instruments binding upon it or its property, except, in the case of clause (a)
and clause (b), where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
the Parent, CCI, the Borrower nor any of the other Restricted Subsidiaries is
(a) an "investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Parent, CCI, the Borrower,
the other Restricted Subsidiaries and (to the extent that the Parent, CCI, the
Borrower or any other Restricted Subsidiary may be liable as a result thereof)
the Unrestricted Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or caused to be
paid all material Taxes required to have been paid by it, except any Taxes that
are being contested in good faith by appropriate proceedings and for which the
Parent, CCI, the Borrower or such Subsidiary, as applicable, has set aside on
its books adequate reserves.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan by an amount that could
reasonably be expected to result in a Material Adverse Effect, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of all such
underfunded Plans by an amount that could
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reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure. As of the Effective Date the Parent
has disclosed to the Lenders (a) all material agreements, material instruments
and material corporate or other restrictions to which the Parent, CCI, the
Borrower or any of the other Restricted Subsidiaries is subject and (b) all
other matters known to any of them, that, in the case of this clause (b),
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other documents furnished by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as of the date thereof and as modified or
supplemented by other information so furnished when taken as a whole) contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that, with respect to projected
financial information, the Parent, CCI and the Borrower represent only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.12. Subsidiaries. (a) Schedule 3.12 sets forth the
name of, and the ownership interest of the Parent in, each Subsidiary of the
Parent and identifies each Subsidiary that is a Subsidiary Loan Party, in each
case as of the Effective Date.
(b) All Licenses which are directly or indirectly held by the
Parent, the Borrower or any other Restricted Subsidiary are owned beneficially
and of record by a License Subsidiary, free and clear of all Liens (other than
Liens under the Security Documents or imposed by the Communications Act).
SECTION 3.13. Insurance. Schedule 3.13 sets forth a
description of all material insurance maintained by or on behalf of the Parent,
the Borrower and the Restricted Subsidiaries as of the Effective Date. The
Parent believes that the insurance maintained by or on behalf of the Parent, the
Borrower and the other Restricted Subsidiaries is adequate. All premiums in
respect of any such insurance have been paid to the extent due.
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SECTION 3.14. Labor Matters. As of the Effective Date, there
are no strikes, lockouts or slowdowns against the Parent, CCI, the Borrower or
any other Restricted Subsidiary pending or, to the knowledge of the Parent,
threatened. All significant payments due from the Parent, CCI, the Borrower or
any other Restricted Subsidiary, or for which any claim may be made against the
Parent, CCI, the Borrower or any other Restricted Subsidiary, on account of
wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of the Parent, CCI, the Borrower or
such other Restricted Subsidiary in accordance with GAAP. The consummation of
the Transactions and the Acquisitions will not give rise to any right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Parent, CCI, the Borrower or any
other Restricted Subsidiary is bound.
SECTION 3.15. Security Interests. (a) When executed and
delivered, the Pledge Agreement will be effective to create in favor of the
Agent for the ratable benefit of the Secured Parties a valid and enforceable
security interest in the Collateral (as defined in the Pledge Agreement) and,
when the portion of the Collateral constituting certificated securities (as
defined in the Uniform Commercial Code) is delivered to the Collateral Agent
thereunder together with instruments of transfer duly endorsed in blank, the
Pledge Agreement shall constitute a fully perfected first priority Lien on, and
security interest in, all right, title and interest of the pledgors thereunder
in such Collateral, prior and superior in right to any other Person.
(b) The Security Agreement is effective to create in favor of
the Collateral Agent for the ratable benefit of the Secured Parties a valid and
enforceable security interest in the Collateral, and, when financing statements
in appropriate form are filed in the offices specified in the Perfection
Certificate, the Security Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the grantors
thereunder in such Collateral, to the extent perfection can be obtained by
filing Uniform Commercial Code financing statements, other than the Intellectual
Property (as defined in the Security Agreement), in which a security interest
may be perfected by filing, recording or registering a security agreement,
financing statement or analogous document in the United States Patent and
Trademark Office or the United States Copyright Office, as applicable, in each
case prior and superior in right to any other Person to the extent perfection
can be obtained by filing Uniform Commercial Code
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financing statements, other than with respect to the rights of Persons pursuant
to Liens expressly permitted by Section 6.03.
(c) When the Security Agreement is filed in the United States
Patent and Trademark Office and the United States Copyright Office, the security
interest created thereunder shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Intellectual Property (as defined in the Security Agreement) in which a security
interest may be perfected by filing, recording or registering a security
agreement, financing statement or analogous document in the United States Patent
and Trademark Office or the United States Copyright Office, as applicable, in
each case prior and superior in right to any other Person, other than with
respect to the rights of Persons pursuant to Liens expressly permitted by
Section 6.03 (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on registered trademarks, trademark applications and
copyrights acquired by the Loan Parties after the date hereof).
(d) The Mortgages, if any, entered into after the date hereof,
are effective to create, subject to the exceptions listed in each title
insurance policy covering such Mortgage, in favor of the Agent for the ratable
benefit of the Secured Parties a legal, valid and enforceable Lien on all of the
Loan Parties' right, title and interest in and to the Mortgaged Properties
thereunder and the proceeds thereof, and when filed in the appropriate real
estate filing offices, the Mortgages shall constitute a perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
Mortgaged Properties and the proceeds thereof, in each case prior and superior
in right to any other Person, other than with respect to Permitted Encumbrances.
SECTION 3.16. Regulatory Compliance. (a) The Parent, CCI, the
Borrower and each other Restricted Subsidiary are in compliance with the
Communications Act except where the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
(b) To the knowledge of the Parent, there is no investigation,
notice of apparent liability, violation, forfeiture or other order or complaint
issued by or before the FCC, or of any other proceedings of or before the FCC,
affecting it, CCI, the Borrower or any other Restricted
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Subsidiary which could reasonably be expected to have a Material Adverse Effect.
(c) To the knowledge of the Parent, no event has occurred
which (i) results in, or after notice or lapse of time or both would result in,
revocation, suspension, adverse modifications, non-renewal, impairment,
restriction or termination of, or order of forfeiture with respect to, any
License in any respect which could reasonably be expected to have a Material
Adverse Effect or (ii) affects or could reasonably be expected in the future to
affect any of the rights of the Parent, CCI, the Borrower or any other
Restricted Subsidiary under any License in any respect which could reasonably be
expected to have a Material Adverse Effect.
(d) The Parent, CCI, the Borrower and each other Restricted
Subsidiary have duly filed in a timely manner all material filings, reports,
applications, documents, instruments and information required to be filed by it
under the Communications Act, and all such filings were when made true, correct
and complete in all respects except where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.17. Absence of Non-Permitted Obligations. None of
the License Subsidiaries has any obligations or liabilities other than (a) under
the Guarantee Agreement and the Security Agreement, (b) under the Special
Purpose Subsidiary Funding Agreement and (c) in respect of franchise and
corporate taxes and administrative expenses incurred in the ordinary course in
order for it to continue to maintain its existence.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall
not become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agree-
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ment) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of each of (i) Skadden, Arps, Slate,
Meagher & Flom, LLP, counsel for the Borrower, substantially in the
form of Exhibit B-1, (ii) the general counsel of the Parent,
substantially in the form of Exhibit B-2, (iii) Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., special U.S. communications counsel
for the Parent, substantially in the form of Exhibit B-3, and (iv) an
assistant general counsel and/or local counsel admitted to practice in
Ohio and Michigan substantially in the form of Exhibits B-4 and B-5
and, in the case of each such opinion required by this paragraph,
covering such other matters relating to the Loan Parties, the Loan
Documents or the Transactions as the Required Lenders shall reasonably
request. Each of the Parent, CCI and the Borrower hereby requests such
counsel to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, the Loan
Documents or the Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Parent, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses (including reasonable fees, charges
and disbursements of counsel) required to be reimbursed or paid by any
Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been
satisfied and the Administrative Agent
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shall have received a completed Perfection Certificate dated the
Effective Date and signed by an Executive Officer or Financial Officer
of the Parent, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the Loan Parties in the
jurisdictions contemplated by the Perfection Certificate and copies of
the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Administrative Agent
that the Liens indicated by such financing statements (or similar
documents) are permitted by Section 6.03 or have been released.
(g) The Administrative Agent shall have received evidence that
the insurance required by Section 5.07 and the Security Documents is in
effect.
(h) The Parent shall, on a pro forma basis, be in compliance
with the Financial Covenants.
(i) All consents and approvals required to be obtained from
any Governmental Authority or other Person in connection with the
Transactions and the Acquisitions shall have been obtained, and all
applicable waiting periods and appeal periods shall have expired, in
each case without the imposition of any burdensome conditions. The
Acquisitions shall have been, or substantially simultaneously with the
initial funding of Loans on the Effective Date shall be, consummated in
accordance with the Acquisition Documents and applicable law, without
any amendment to or waiver of any material terms or conditions of the
Acquisition Documents not approved by the Required Lenders. The
Administrative Agent shall have received copies of the Acquisition
Documents and all certificates, opinions and other documents delivered
thereunder, certified by a Financial Officer of the Parent as complete
and correct.
(j) The Initial Permitted Financing Condition shall have been
satisfied.
(k) The Lenders shall have received a pro forma consolidated
balance sheet of the Parent as of the Effective Date, reflecting all
pro forma adjustments as if the Transactions, the Initial Permitted
Financings and the Acquisitions had been consummated on such date, and
such pro forma consolidated balance sheet shall be consistent in all
material respects with the information previously provided to the
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Lenders. After giving effect to the Transactions, the Acquisitions and
the Initial Permitted Financing, none of the Parent, CCI, the Borrower
or any of the Restricted Subsidiaries shall have outstanding any shares
of preferred stock or any Indebtedness for borrowed money, other than
(i) Indebtedness incurred under the Loan Documents, (ii) the ATX Note
in a principal amount not in excess of $119,000,000 and on
substantially the terms set forth in Schedule 4.01(k), (iii) the
Indebtedness listed on Schedules 6.01 or 6.02, and (iv) the Non-Cash
Pay Preferred Stock which is part of the Initial Permitted Financing.
The material terms and conditions of the ATX Note shall be as set forth
in Schedule 4.01(k).
(l) The Lenders shall have received a ten-year business plan
of the Parent, with quarterly projections for the two-year period
following the Effective Date, which shall be reasonably satisfactory to
the Lenders.
(m) The Agent shall have received evidence reasonably
satisfactory to it that all existing bank credit facilities of the
Parent, the Borrower and the Restricted Subsidiaries (including ATX and
Voyager) shall have been, or substantially simultaneously with the
initial funding of Loans on the Effective Date shall be, repaid, that
all commitments in connection therewith shall have been, or
substantially simultaneously with the initial funding of Loans on the
Effective Date shall be, terminated and all Liens securing any
Indebtedness thereunder shall have been, or substantially
simultaneously with the initial funding of Loans on the Effective Date
shall be, released.
(n) Each License of the Parent, CCI, the Borrower and any
other Restricted Subsidiary shall have been contributed to, and all
Licenses shall be owned by, one or more License Subsidiaries. Each
License Subsidiary, the Borrower, CCI and the Parent shall have
executed and delivered a Special Purpose Subsidiary Funding Agreement.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to
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5:00 p.m., New York City time, on November 15, 2000 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, except to the extent that any representation or warranty
expressly relates to an earlier date (in which case such representation
shall be correct as of such earlier date); provided, that the
representation in Sections 3.04(b) and 3.06(c) shall not be restated on
the occasion of a Borrowing consisting of a continuation or conversion
of a Borrowing pursuant to Section 2.06 that does not increase the
principal amount of outstanding Loans of any Class.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, (i) no Default shall have occurred and
be continuing and (ii) the Parent shall, on a pro forma basis giving
effect to such Borrowing, issuance, amendment, renewal or extension, be
in compliance with the Financial Covenants.
(c) Any Borrowing or issuance, amendment, renewal or extension
of a Letter of Credit that would result in the aggregate amount of the
Revolving Exposure and Tranche A Term Loans exceeding $75,000,000,
shall not be effected until the General Syndication Date.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
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ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of the Parent, CCI and the
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Parent will furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year of the
Parent, an audited consolidated balance sheet of the Parent, the
Borrower and the other Restricted Subsidiaries and related statements
of income, stockholders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by Ernst & Young LLP or
other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit)
to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations of the Parent, the Borrower and the other Restricted
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Parent, a consolidated
balance sheet of the Parent, the Borrower and the other Restricted
Subsidiaries and related statements of operations, stockholders' equity
and cash flows as of the end of and for such fiscal quarter and the
then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Parent, the Borrower and the other
Restricted Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject
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to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of
the Parent (i) certifying as to whether a Default has occurred and, if
a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with the
Financial Covenants, (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the Parent's audited
financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate, (iv) attaching
statements, certified to be true and correct, of Consolidated Service
Revenue, Active Access Lines and On-Net Access Lines for the period or
periods of, or last days of the period or periods of, such accompanying
financial statements, (v) identifying any Restricted Subsidiary formed
or acquired since the end of the previous fiscal quarter, (vi)
identifying any parcels of real property or improvements thereto with a
value exceeding $250,000 that have been acquired by any Loan Party
since the end of the previous fiscal quarter, (vii) identifying any
changes of the type described in Section 5.03(a) that have not been
previously reported by the Borrower, (viii) identifying any Permitted
Business Acquisition, other acquisitions of going concerns and joint
ventures that have been consummated since the end of the previous
fiscal quarter, including the date on which each such acquisition or
joint venture was consummated and the consideration therefor, (ix)
identifying any material Intellectual Property (as defined in the
Security Agreement) with respect to which a notice is required to be
delivered under the Security Agreement and has not been previously
delivered, and (x) identifying any Prepayment Events that have occurred
since the end of the previous fiscal quarter and setting forth a
reasonably detailed calculation of the Net Proceeds received from
Prepayment Events since the end of such previous fiscal quarter;
(d) concurrently with any delivery of financial statements
under clause (a) above, (i) a certificate of the accounting firm that
reported on such financial
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statements stating whether they obtained knowledge during the course of
their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules
or guidelines) and (ii) forecasted financial statements (on a
consolidated basis for the Parent, CCI, the Borrower and the other
Restricted Subsidiaries) covering the period ending with the Tranche A
Maturity Date;
(e) within 10 Business Days after final approval thereof by
the board of directors, but in any event no later than February 28 of
each fiscal year of the Parent, a detailed consolidated budget for such
fiscal year covering the Parent, the Borrower and the Restricted
Subsidiaries (including a projected consolidated balance sheet for the
Parent, the Borrower and the Restricted Subsidiaries and related
statements of projected operations and cash flow as of the end of and
for such fiscal year and setting forth the assumptions used for
purposes of preparing such budget) and, promptly when available, any
significant revisions of such budget;
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Parent, CCI, the Borrower or any other Restricted
Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or
distributed by the Parent to its shareholders generally, as the case
may be; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Parent, CCI, the Borrower or any other Restricted
Subsidiary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Govern-
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mental Authority against or affecting the Parent, CCI, the Borrower or
any Affiliate thereof as to which there is a reasonable possibility of
an adverse determination and that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect; and
(c) any other development (including any ERISA Event) that
results in, or could reasonably be expected to result in, a Material
Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other Executive Officer of the Borrower or the Parent
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Parent
will furnish to the Collateral Agent prompt written notice of any change (i) in
any Loan Party's corporate name, (ii) in the location of any Loan Party's chief
executive office, its principal place of business, any office in which it
maintains books or records relating to Collateral owned by it or any office or
facility at which Collateral owned by it is located (including the establishment
of any such new office or facility), (iii) in any Loan Party's identity,
corporate structure or jurisdiction of incorporation or formation or (iv) in any
Loan Party's Federal Taxpayer Identification Number. The Parent agrees not to
effect or permit any change referred to in the preceding sentence unless it
shall have given the Collateral Agent 10 days notice of such change and shall
promptly make all filings under the Uniform Commercial Code or otherwise that
are required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. The Parent also agrees promptly to notify the Collateral
Agent if any material portion of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Borrower shall deliver to the Collateral Agent a certificate
of a Financial Officer and a legal officer of the Parent or the Borrower (i)
setting forth and changes in or additions or modifications to the information
required pursuant to Section 2 of the Perfection Certificate or confirming that
there has been no change in such information since the date of the Perfection
Certificate delivered on the Effective
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Date or the date of the most recent certificate delivered pursuant to this
Section and (ii) certifying that all Uniform Commercial Code financing
statements (including fixture filings, as applicable) or other appropriate
filings, recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to
protect and perfect the security interests under the Security Agreement for a
period of not less than 18 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within
such period).
SECTION 5.04. Existence; Conduct of Business. Each of the
Parent, CCI and the Borrower will, and will cause each of the other Restricted
Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and its material rights,
licenses (including the Licenses), permits, privileges, franchises, patents,
copyrights, trademarks and trade names; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.05.
SECTION 5.05. Payment of Obligations. Each of the Parent, CCI
and the Borrower will, and will cause each of the Restricted Subsidiaries to,
pay its material Tax liabilities, before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Parent, CCI, the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP, (c) such contest effectively suspends collection of the
contested obligation and the enforcement of any Lien securing such obligation.
SECTION 5.06. Maintenance of Properties. Each of the Parent,
CCI and the Borrower will, and will cause each of the Restricted Subsidiaries
to, keep and maintain all property material to the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
SECTION 5.07. Insurance. Each of the Parent, CCI and the
Borrower will, and will cause each of the Restricted Subsidiaries to, maintain,
with financially sound and reputable insurance companies (a) insurance in such
amounts (with no greater risk retention) and against such risks as are
customarily maintained by companies of established
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repute engaged in the same or similar businesses operating in the same or
similar locations and (b) all insurance required to be maintained pursuant to
the Security Documents. Each of the Parent, CCI and the Borrower will furnish to
the Lenders, upon request of the Administrative Agent, information in reasonable
detail as to the insurance so maintained.
SECTION 5.08. Casualty and Condemnation. The Parent (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to the Collateral in any material respect or
the commencement of any action or proceeding for the taking of the Collateral in
any material respect under power of eminent domain or by condemnation or similar
proceeding and (b) will ensure that the Net Proceeds of any such event (whether
in the form of insurance proceeds, condemnation awards or otherwise) are
collected and applied in accordance with the applicable provisions hereof and of
the Security Documents.
SECTION 5.09. Books and Records; Inspection and Audit Rights.
Each of the Parent, CCI and the Borrower will, and will cause each of the
Restricted Subsidiaries to, keep proper books of record and account in which
full, true and correct entries are made of all dealings and transactions in
relation to its business and activities. Each of the Parent, CCI and the
Borrower will, and will cause each of the Restricted Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.10. Compliance with Laws. Each of the Parent, CCI
and the Borrower will, and will cause each of the Restricted Subsidiaries to,
comply with all laws (including the Communications Act), rules, regulations and
orders of any Governmental Authority applicable to it or its property (including
obligations under Licenses), except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. The
proceeds of the Loans and the issuance or renewal of Letters of Credit will be
used solely for general corporate purposes of the Borrower and its Restricted
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Subsidiaries, including to finance the Acquisitions and to finance the
construction, engineering, acquisition, installation, development or improvement
by the Borrower or Restricted Subsidiaries of the Borrower of Telecommunications
Assets in the United States (but not elsewhere). No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations U and
X.
SECTION 5.12. Additional Subsidiaries. If any additional
Subsidiary is formed or acquired (and such Subsidiary has assets in excess of
$50,000 or acquires assets in excess of $50,000) after the Effective Date, the
Parent, CCI and the Borrower will, within three Business Days after such
Subsidiary is formed or acquired, notify the Administrative Agent and the
Lenders thereof and promptly cause the Collateral and Guarantee Requirement to
be satisfied with respect to such Subsidiary (if it is a Subsidiary Loan Party)
and with respect to any Equity Interest in or Indebtedness of such Subsidiary
owned by or on behalf of any Loan Party.
SECTION 5.13. Further Assurances. (a) The Parent, CCI and the
Borrower will, and will cause each Subsidiary Loan Party to, execute any and all
further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any applicable law, or which the Agent or the
Required Lenders may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the expense of the Loan Parties;
provided, that the Collateral and Guarantee Requirement need not be satisfied
with respect to real properties owned by the Parent, CCI, the Borrower or any
other Restricted Subsidiary with an individual fair market value (including
fixtures and improvements) that is less than $500,000. Each of the Parent, CCI
and the Borrower also agrees to provide to the Agent, from time to time upon
request, evidence reasonably satisfactory to the Agent as to the perfection and
priority of the Liens created or intended to be created by the Security
Documents.
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by Parent, CCI, the
Borrower or any Subsidiary Loan Party after the Effective Date (other than
assets constituting Collateral under the Security Documents that become subject
to the Lien of the Security Documents upon
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acquisition thereof), the Parent will notify the Agent and the Lenders thereof,
and, if requested by the Agent or the Required Lenders, the Parent will cause
such assets to be subjected to a Lien securing the Obligations and will take,
and cause the Subsidiary Loan Parties to take, such actions as shall be
necessary or reasonably requested by the Agent to grant and perfect such Liens,
including actions described in paragraph (a) of this Section, all at the expense
of the Loan Parties; provided, that the Collateral and Guarantee Requirement
need not be satisfied with respect to real properties owned by the Parent, CCI,
the Borrower or any other Restricted Subsidiary with an individual fair market
value (including fixtures and improvements) that is less than $500,000.
(c) As promptly as practicable, and in any event within 30
days after the acquisition or grant thereof, the Parent shall cause all Licenses
that are issued by the FCC and that are acquired by the Parent, CCI, the
Borrower or any other Restricted Subsidiary, to be transferred to a License
Subsidiary, free and clear of all Liens (other than Liens under the Security
Documents and those imposed by the Communications Act). The Borrower shall use
its reasonable commercial efforts to cause all Licenses, other than Licenses
subject to the preceding sentence, acquired by the Parent, CCI, the Borrower or
any other Restricted Subsidiary to be transferred as soon as practicable to a
License Subsidiary, free and clear of all Liens.
SECTION 5.14. Interest Rate Protection. Within 90 days after
the Effective Date, the Borrower, if necessary to satisfy the requirements set
forth in this Section 5.14, will enter into, and thereafter will maintain in
effect, one or more interest rate protection agreements on such terms and with
such parties as shall be reasonably satisfactory to the Administrative Agent,
the effect of which (when taken together with any fixed rate debt and interest
rate protection agreements) shall be to fix or limit the interest cost with
respect to at least 50% of the Parent's, the Borrower's and the other Restricted
Subsidiaries' outstanding Total Debt.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of
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Credit have expired or terminated and all LC Disbursements shall have been
reimbursed, each of the Parent, CCI and the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. Indebtedness of the Parent and CCI; Certain
Equity Securities. (a) Neither the Parent nor CCI will create, incur, assume or
permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents (including
under Section 2.19);
(ii) Indebtedness existing on the date hereof and set forth in
Schedule 6.01;
(iii) Indebtedness of the Parent or CCI to any Restricted
Subsidiary;
(iv) Guarantees by the Parent or CCI of Indebtedness of any
Restricted Subsidiary; provided that Guarantees by the Parent or CCI of
Indebtedness of any Restricted Subsidiary that is not a Loan Party
shall be subject to Section 6.06;
(v) Indebtedness of the Parent or CCI pursuant to Hedging
Agreements entered into to manage the effective rate of interest on the
Loans or other Indebtedness or manage foreign currency exposures,
provided such transactions are entered into to manage interest rate or
currency exposures and not for the purpose of speculation;
(vi) (x) Permitted Parent Indebtedness incurred to refinance
the ATX Note, the Senior Unsecured Facility and the Parent Convertible
Notes and (y) Indebtedness incurred to refinance Indebtedness (other
than the ATX Note, the Senior Unsecured Facility and the Parent
Convertible Notes) permitted under clause (ii) of this Section 6.01(a);
provided that (a) such refinancing Indebtedness (i) shall not have a
greater outstanding principal amount (except to the extent necessary to
pay fees, expenses, underwriting discounts, accreted discount and
accrued interest and prepayment premiums in connection therewith), an
earlier maturity date or a decreased weighted average life than the
Indebtedness refinanced and (ii) shall be subordinated to the
Indebtedness created under the Loan Documents to at least the extent
(if any) of, and shall otherwise be issued on terms no less favorable
in any material respect to the Lenders than, the Indebtedness
refinanced, (b) the proceeds of such Indebtedness
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shall be used solely to repay the Indebtedness refinanced thereby and
fees, expenses, underwriting discounts, accreted discount and accrued
interest and prepayment premiums in connection therewith and (c) such
refinancing Indebtedness is not Guaranteed by any Restricted Subsidiary
(other than CCI);
(vii) surety, performance and other similar bonds incurred in
the ordinary course of business not securing Indebtedness for borrowed
money;
(viii) other (x) Permitted Parent Indebtedness or (y)
unsecured Indebtedness not in excess of $5,000,000 at any time
outstanding, provided that in the case of Indebtedness incurred under
clause (x) or (y) hereof, the Parent and the Restricted Subsidiaries
are in compliance, on a pro forma basis after giving effect to the
incurrence of such Indebtedness, with the Financial Covenants, to the
extent then applicable;
(ix) Guarantees in the ordinary course of business of the
obligations of suppliers, landlords, customers, franchisees and
licensees of the Parent, the Borrower or any Restricted Subsidiary and
Guarantees in respect of customary indemnification and purchase price
adjustment obligations incurred in connection with asset sales
permitted by Section 6.07 or Permitted Business Acquisitions; and
(x) Indebtedness of CCI permitted under Section 6.02.
(b) The Parent and CCI will not, and will not permit any
Restricted Subsidiary to, issue any preferred stock; provided, that the Parent
may issue Non-Cash Pay Preferred Stock and New Preferred Stock so long as the
Parent and the Restricted Subsidiaries are in compliance, on a pro forma basis
after giving effect to the issuance of such preferred stock, with the Financial
Covenants, to the extent then applicable.
SECTION 6.02. Indebtedness of Restricted Subsidiaries. The
Parent, CCI and the Borrower will not permit the Borrower or any other
Restricted Subsidiary to create, incur, assume or permit to exist any
Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in
Schedule 6.02.
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(iii) Indebtedness of any Restricted Subsidiary to the Parent
or any other Restricted Subsidiary; provided that Indebtedness of any
Restricted Subsidiary that is not a Loan Party to the Parent or any
other Loan Party shall be subject to Section 6.06;
(iv) Guarantees by any Restricted Subsidiary of Indebtedness
of any other Restricted Subsidiary other than CCI; provided that
Guarantees by any Subsidiary Loan Party of Indebtedness of any
Subsidiary that is not a Loan Party shall be subject to Section 6.06;
(v) Indebtedness of any Person that becomes a Restricted
Subsidiary after the date hereof; provided that (A) such Indebtedness
exists at the time such Person becomes a Restricted Subsidiary and is
not created in contemplation of or in connection with such Person
becoming a Restricted Subsidiary, (B) the Parent and the Restricted
Subsidiaries are in compliance, on a pro forma basis after giving
effect to the incurrence of such Indebtedness, with the Financial
Covenants, to the extent then applicable and (C) the aggregate
principal amount of Indebtedness permitted under this clause (v),
together with any refinancing Indebtedness relating to Indebtedness
incurred pursuant to this clause (v) shall not exceed $10,000,000 at
any time outstanding; provided, further, that any such Indebtedness may
be permitted by this clause (v) only until such time as such Person
merges or consolidates with the Borrower or another Person that is a
Loan Party;
(vi) surety, performance and other similar bonds incurred in
the ordinary course of business not securing Indebtedness for borrowed
money;
(vii) Indebtedness of the Borrower pursuant to Hedging
Agreements entered into to manage the effective rate of interest on the
Loans or other Indebtedness or to manage foreign currency exposures,
provided such transactions are entered into to manage actual interest
rate or currency exposures and not for the purpose of speculation;
(viii) Indebtedness incurred to refinance Indebtedness
incurred pursuant to Section 6.02(v); provided that (a) such
refinancing Indebtedness (i) shall not have a greater outstanding
principal amount (except to the extent necessary to pay fees, expenses,
underwriting discounts, accreted discount and accrued interest and
prepayment premiums in
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connection therewith), an earlier maturity date or a decreased weighted
average life than the Indebtedness refinanced and (ii) shall be
subordinated (structurally or otherwise) to the Indebtedness created
under the Loan Documents to at least the extent (if any) of, and shall
otherwise be issued on terms no less favorable in any material respect
to the Lenders than, the Indebtedness refinanced, (b) the proceeds of
such Indebtedness shall be used solely to repay the Indebtedness
refinanced thereby and fees, expenses, underwriting discounts, accreted
discount and accrued interest and prepayment premiums in connection
therewith, (c) such refinancing Indebtedness is not Guaranteed by any
Restricted Subsidiary other than CCI and (d) any such refinancing
Indebtedness shall be permitted only until such time as the relevant
acquired Person merges or consolidates with the Borrower or another
Loan Party;
(ix) Guarantees in the ordinary course of business of the
obligations of suppliers, landlords, customer, franchisees and
licensees of the Parent, the Borrower or any Restricted Subsidiary and
Guarantees in respect of customary indemnification and purchase price
adjustment obligations incurred in connection with asset sales
permitted by Section 6.07 or Permitted Business Acquisitions;
(x) Capital Lease Obligations in aggregate principal amount,
together with the aggregate principal amount of Capital Lease
Obligations permitted under Section 6.02(ii), not to exceed $35,000,000
at anytime outstanding; and
(xi) Indebtedness (other than Indebtedness described in (x)
above) incurred to finance the acquisition, construction or improvement
of any fixed or capital assets and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien
on any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted
average life thereof; provided that such Indebtedness is incurred prior
to or within 180 days after such acquisition or the completion of such
construction or improvement and shall not exceed $3,000,000 in
aggregate principal amount at any time outstanding.
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SECTION 6.03. Liens. The Parent, CCI and the Borrower will
not, and will not permit any Restricted Subsidiary to, create, incur, assume or
permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Parent, CCI,
the Borrower or any other Restricted Subsidiary existing on
the date hereof and set forth in Schedule 6.03; provided that
(i) such Lien shall not apply to any other property or asset
of the Parent, CCI, the Borrower or any other Restricted
Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and any
extension, renewal, refinancing, refunding or replacement
thereof that does not (except as permitted by Section
6.01(a)(vi) or Section 6.02(ix)) increase the outstanding
principal amount thereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Parent or any Restricted Subsidiary
or existing on any property or asset of any Person that
becomes a Restricted Subsidiary after the date hereof prior to
the time such Person becomes a Restricted Subsidiary; provided
that (A) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a
Restricted Subsidiary, as the case may be, (B) such Lien shall
not apply to any other property or assets of the Parent or any
Restricted Subsidiary and (C) such Lien shall secure only
those obligations which it secures on the date of such
acquisition or the date such Person becomes a Restricted
Subsidiary, as the case may be and any extension, renewal,
refinancing, refunding or replacement (or successive
extensions, renewals, refinancings, refundings and
replacements) thereof that does not increase the outstanding
principal amount thereof (except as permitted by Section
6.01(a)(vi) or Section 6.02(ix));
(v) Liens securing Indebtedness of any Restricted Subsidiary
to any Subsidiary Loan Party;
(vi) Liens securing Indebtedness permitted by Section 6.02(v)
or 6.02(viii); provided that for any
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Indebtedness permitted by Section 6.02(v) or 6.02(viii), such Liens
shall extend only to the property or assets that secured the
Indebtedness being refinanced with such Indebtedness permitted by
Section 6.02(viii);
(vii) other Liens securing Indebtedness or other obligations
not at any time in excess of $2,000,000; and
(viii) Liens on fixed or capital assets acquired, constructed
or improved by the Borrower or any Restricted Subsidiary;
provided that (A) such security interests secure Indebtedness
permitted by clause (xi) of Section 6.02, (B) such security
interests and the Indebtedness secured thereby are incurred
prior to or within 180 days after such acquisition or the
completion of such construction or improvement, (C) the
Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital
assets and (D) such security interests shall not apply to any
other property or assets of the Parent, CCI, the Borrower or
any other Restricted Subsidiary.
SECTION 6.04. Sale and Lease-Back Transactions. The Parent,
CCI and the Borrower will not, nor will it permit the Borrower or any other
Restricted Subsidiary to, enter into any arrangement, directly or indirectly,
with any Person whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which it
intends to use for substantially the same purpose as the property being sold or
transferred.
SECTION 6.05. Fundamental Changes. (a) The Parent, CCI and the
Borrower will not, nor will they permit any Restricted Subsidiary to, merge into
or consolidate with any other Person, or permit any other Person to merge into
or consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing, (i) any Person (other than the Borrower or CCI) may
merge into or amalgamate or consolidate with the Parent in a transaction in
which the Parent is the surviving corporation, (ii) any Person (other than the
Parent) may merge into or amalgamate or consolidate with the Borrower in a
transaction in which the Borrower is the surviving corporation and continues to
be organized under the laws of the United States or a state thereof and no
Change of
<PAGE> 97
92
Control results, (iii) any Person may merge into or amalgamate or consolidate
with any Restricted Subsidiary in a transaction in which the surviving entity is
a Wholly Owned Restricted Subsidiary and (if any party to such merger is a
Subsidiary Loan Party) is a Subsidiary Loan Party and (iv) any Subsidiary (other
than the Borrower) may liquidate or dissolve if the Parent determines in good
faith that such liquidation or dissolution is in the best interests of the
Parent and is not materially disadvantageous to the Lenders; provided that any
such merger involving a Person that is not a Wholly Owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
6.06.
(b) The Parent will not, and will not permit the Borrower or any other
Restricted Subsidiaries to, engage to any material extent in any business other
than Telecommunications Business or any businesses of the type conducted by the
Parent and the Restricted Subsidiaries on the date of execution of this
Agreement and businesses reasonably related thereto.
(c) The Parent will not permit any Wholly Owned Restricted Subsidiary
to merge, amalgamate or consolidate with any other Person other than the
Borrower, or another Wholly Owned Restricted Subsidiary, issue or sell shares of
its Capital Stock or take any other action if as a result thereof such
Restricted Subsidiary would cease to be a Wholly Owned Restricted Subsidiary of
the Borrower, unless such merger, amalgamation or consolidation is designated as
an Investment made in such non-Wholly Owned Restricted Subsidiary pursuant to
Section 6.06.
SECTION 6.06. Investments, Loans, Advances, Guarantees and
Acquisitions. The Parent and the Borrower will not, and will not permit any of
the Restricted Subsidiaries to, make or permit to exist any Investment in any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business unit,
except:
(a) Permitted Investments;
(b) Investments existing on the date hereof and set forth on
Schedule 6.06;
(c) Investments by the Parent and the Restricted Subsidiaries
in the Capital Stock of Restricted Subsidiaries that are Loan Parties;
provided that such shares of Capital Stock shall be pledged pursuant to
the Pledge Agreement;
<PAGE> 98
93
(d) loans or advances made by the Parent to any Restricted
Subsidiary and made by any Restricted Subsidiary to any other
Restricted Subsidiary; provided that (i) any such loans and advances
made by a Loan Party shall if evidenced by a promissory note, be
pledged pursuant to the Pledge Agreement and (ii) the amount of such
loans and advances made by Loan Parties to Restricted Subsidiaries that
are not Loan Parties shall be subject to the limitation set forth in
clause (l) below;
(e) Permitted Business Acquisitions effected for consideration
consisting solely of common stock of the Parent, Equity Proceeds,
Conversion Proceeds or a combination thereof;
(f) the Acquisitions;
(g) Guarantees constituting Indebtedness permitted by Sections
6.01 or 6.02, provided that any Guarantee by a Loan Party of any
obligation of a Subsidiary that is not a Loan Party shall be subject to
the limitation set forth in clause (l) below;
(h) Investments received in satisfaction of judgments or in
connection with the bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with, customers and suppliers, in each
case in the ordinary course of business;
(i) loans, advances or extensions of credit to employees and
directors made in the ordinary course of business;
(j) negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar
deposits in the ordinary course of business;
(k) Investments in Hedging Agreements permitted by Section
6.08;
(l) other Investments in Unrestricted Subsidiaries, Restricted
Subsidiaries that are not Loan Parties or other Persons in an aggregate
amount, together with Investments in such entities permitted by clauses
(d) or (g) at this Section 6.06, at any time outstanding not to exceed
$5,000,000 plus Equity Proceeds and Conversion Proceeds received after
the date hereof and within 90 days of the date such other
<PAGE> 99
94
Investment is made and not applied to any other Designated Equity
Proceeds Use; and
(m) promissory notes and other non-cash consideration received
in connection with any asset sale permitted by Section 6.07.
SECTION 6.07. Asset Sales. The Parent, CCI and the Borrower will not,
and will not permit any of the Restricted Subsidiaries to, sell, transfer, lease
or otherwise dispose of any asset, including any Capital Stock owned by it, nor
will the Parent, CCI or the Borrower permit any of the Restricted Subsidiaries
to issue any additional shares of its Capital Stock or other ownership interests
in such Restricted Subsidiary, except:
(a) sales of inventory, used or surplus equipment and
Permitted Investments in each case in the ordinary course of business
and sales of the LMDS Licenses;
(b) sales, transfers and dispositions to the Parent or a
Restricted Subsidiary; provided that any such sales, transfers or
dispositions involving a Restricted Subsidiary that is not a Loan Party
shall be made in compliance with Section 6.10;
(c) sales, transfers and other dispositions of assets
(excluding Capital Stock of Restricted Subsidiaries) that are not
permitted by any other clause of this Section; provided that the
aggregate fair market value of all assets sold, transferred or
otherwise disposed of in reliance on this clause (c) shall not exceed
$5,000,000 in any fiscal year; and
(d) the issuance by Fiberstream of additional shares, or
warrants or options to purchase additional shares, of its Capital Stock
to its employees under stock option plans; provided that (A) the
aggregate number of such additional shares issued or under option or
warrant shall at no time represent more than 30% of the outstanding
Capital Stock of Fiberstream and (B) the recipients of such shares,
options or warrants are provided notice of Fiberstream's guarantee of
the Indebtedness hereunder and its grant of security interests under
the Loan Documents;
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (b) and (d) above) shall be made
for fair value and not less than 80% of the consideration therefor shall
<PAGE> 100
95
consist of cash payable upon consummation of such transaction.
SECTION 6.08. Hedging Agreements. The Parent, CCI and the Borrower will
not, and will not permit any of the Restricted Subsidiaries to, enter into any
Hedging Agreement, other than (a) Hedging Agreements required by Section 5.14
and (b) Hedging Agreements entered into in the ordinary course of business to
hedge, manage or mitigate risks to which the Parent or any Restricted Subsidiary
is exposed in the conduct of its business or the management of its liabilities.
SECTION 6.09. Restricted Payments; Certain Payments of Indebtedness.
(a) The Parent, CCI and the Borrower will not, nor will they permit any
Restricted Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except (i) the Parent may declare and pay dividends with
respect to its Capital Stock payable solely in additional shares of its common
stock or Non-Cash Pay Preferred Stock, (ii) Restricted Subsidiaries (other than
the Borrower and CCI) may declare and pay dividends and make distributions
ratably with respect to any Class of their Capital Stock, (iii) the Parent may
make Restricted Payments, pursuant to and in accordance with stock option plans
or other benefit plans for directors, management or employees of the Parent and
the Restricted Subsidiaries, in an aggregate amount not in excess of (A) Equity
Proceeds and Conversion Proceeds received after the date hereof and within 90
days of such Restricted Payment and not applied to any other Designated Equity
Proceeds Use plus (B) to the extent not made with such Equity Proceeds or
Conversion Proceeds, $2,000,000 during any fiscal year, (iv) so long as no Event
of Default exists or would result therefrom, the Parent may pay regular required
cash dividends on New Preferred Stock and (v) so long as no Default exists or
would result therefrom, the Borrower may pay cash dividends to CCI, and CCI may
pay cash dividends to the Parent, at such times and in such amounts as may be
necessary to permit the Parent to make payment of regular required cash
dividends on New Preferred Stock and the Parent and CCI to service their
Indebtedness permitted hereunder and pay their other liabilities incurred in the
ordinary course of business.
(b) The Parent, CCI and the Borrower will not, nor will they permit any
Restricted Subsidiary to, make or agree to pay or make, directly or indirectly,
any payment or other distribution (whether in cash, securities or other
property) of or in respect of principal of or interest on
<PAGE> 101
96
any Indebtedness, or any payment or other distribution (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness, other than
payments in respect of subordinated debt prohibited by the
subordination provisions thereof, provided that any payment of interest
accruing under the ATX Note shall be made only with common stock of the
Parent;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01 and 6.02;
(iv) payment of secured Indebtedness that becomes due as a
result of the casualty, condemnation, voluntary sale or transfer of the
property or assets securing such Indebtedness;
(v) payment of Indebtedness with Equity Proceeds received
after the date hereof and within 90 days of such payment and not
applied to any other Designated Equity Proceeds Use;
(vi) payment of intercompany Indebtedness among the Loan
Parties; and
(vii) payment of Indebtedness under Hedging Agreements in
connection with the termination (including early termination) of such
Hedging Agreements by the Parent, the Borrower or a Restricted
Subsidiary in the ordinary course of business.
(c) The Parent, CCI and the Borrower will not, nor will they
permit any Restricted Subsidiary to, enter into or be party to, or make any
payment under, any Synthetic Purchase Agreement unless (i) in the case of any
Synthetic Purchase Agreement related to any Equity Interest, the payments
required to be made by the Parent, CCI, the Borrower or the Restricted
Subsidiaries thereunder are limited to amounts permitted to be paid as
Restricted Payments under paragraph (a) of this Section 6.09, (ii) in the case
of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the
payments required to be made by the Parent, CCI, the Borrower or the Restricted
Subsidiaries
<PAGE> 102
97
thereunder are limited to the amount permitted under paragraph (b) of this
Section 6.09 and (iii) in the case of any Synthetic Purchase Agreement, the
obligations of the Parent, CCI, the Borrower and the Restricted Subsidiaries
thereunder are subordinated to the Obligations on terms satisfactory to the
Administrative Agent.
(d) The Parent, CCI and the Borrower will not, nor will they
permit any Restricted Subsidiary to, make any payment of Indebtedness under the
Senior Unsecured Facility other than with Equity Proceeds or the proceeds of a
Permitted Parent Financing.
(e) Unless there is no outstanding Indebtedness under the
Senior Unsecured Facility at such time, the Parent and the Borrower will prepay
all Indebtedness under the ATX Note not later than the date that is 270 days
prior to the stated maturity of the ATX Note.
(f) Promptly after receiving any Net Proceeds from borrowings
under the Senior Unsecured Facility or from any other component of the Initial
Permitted Financing, the Parent and CCI shall either contribute such Net
Proceeds to the common equity of the Borrower and/or loan such Net Proceeds to
the Borrower on a subordinated basis evidenced by a promissory note pledged
pursuant to the Pledge Agreement.
SECTION 6.10. Transactions with Affiliates. The Parent, CCI and the
Borrower will not, nor will they permit any Restricted Subsidiary to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that are at prices and on terms and conditions not
less favorable to the Parent, CCI, the Borrower or such other Restricted
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the Parent, CCI, the Borrower and the
Subsidiary Loan Parties not involving any other Affiliate, (c) any Restricted
Payment permitted by Section 6.09, and (d) transactions pursuant to any
agreement or arrangement existing on the date hereof and set forth in Schedule
6.10.
SECTION 6.11. Restrictive Agreements. The Parent, CCI and the Borrower
will not, nor will they permit any Restricted Subsidiary to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any
<PAGE> 103
98
condition upon (a) the ability of the Parent, CCI, the Borrower or any other
Restricted Subsidiary to create, incur or permit to exist any Lien upon any of
its property or assets or (b) the ability of any Restricted Subsidiary to pay
dividends or other distributions with respect to any shares of its Capital Stock
or to make or repay loans or advances to the Parent, CCI, the Borrower or any
other Restricted Subsidiary or to Guarantee Indebtedness of the Parent, CCI, the
Borrower or any other Restricted Subsidiary; provided that (i) the foregoing
shall not apply to restrictions and conditions imposed by law or by any Loan
Document, (ii) the foregoing shall not apply to restrictions and conditions
under (A) agreements existing on the date hereof identified on Schedule 6.11
(but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition) and (B)
the definitive documentation for the Senior Unsecured Facility, so long as the
restrictions and conditions under such documentation are substantially similar
to those described in the Commitment Letter referred to in the definition of
Senior Unsecured Facility, (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Restricted Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Restricted Subsidiary that is to be sold or its
immediate parent and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness, (v) clause (a) of the foregoing shall not apply to customary
provisions restricting the assignment thereof.
SECTION 6.12. Amendment of Material Documents. The Parent, CCI and the
Borrower will not, nor will they permit any Restricted Subsidiary to, amend,
modify or waive any of its rights under (a) its certificate of incorporation,
by-laws or other organizational documents or (b) the ATX Note or the Senior
Unsecured Facility in each case in a manner that is adverse in any significant
respect to the Lenders.
<PAGE> 104
99
SECTION 6.13. Minimum Active Access Lines. The Borrower, CCI and the
Parent will not permit the number of Active Access Lines, on the last day of any
fiscal quarter, to be less than the number indicated below for such date:
<TABLE>
<CAPTION>
Date Minimum Active Access Lines
---- ---------------------------
<S> <C>
December 31, 2000 192,000
March 31, 2001 207,000
June 30, 2001 223,000
September 30, 2001 239,000
December 31, 2001 256,000
March 31, 2002 277,000
June 30, 2002 298,000
September 30, 2002 317,000
December 31, 2002 337,000
March 31, 2003 359,000
June 30, 2003 381,000
September 30, 2003 403,000
</TABLE>
SECTION 6.14. Minimum On-Net Access Lines. The Borrower, CCI and the
Parent will not permit the number of On-Net Access Lines, on the last day of any
fiscal quarter, to be less than the number indicated below for such date:
<TABLE>
<CAPTION>
Date Minimum On-Net Access Lines
---- ---------------------------
<S> <C>
December 31, 2000 45,000
March 31, 2001 59,000
June 30, 2001 74,000
September 30, 2001 91,000
December 31, 2001 108,000
March 31, 2002 127,000
June 30, 2002 146,000
September 30, 2002 163,000
December 31, 2002 180,000
March 31, 2003 197,000
June 30, 2003 212,000
September 30, 2003 227,000
</TABLE>
SECTION 6.15. Minimum Consolidated Service Revenues. The Borrower, CCI
and the Parent will not permit Consolidated Service Revenue for any fiscal
quarter ending
<PAGE> 105
100
on a date set forth below to be less than the amount set forth opposite such
date below:
<TABLE>
<CAPTION>
Minimum Consolidated
Fiscal Quarter Ending Service Revenue
--------------------- ---------------
<S> <C>
December 31, 2000 65,000,000
March 31, 2001 67,000,000
June 30, 2001 70,000,000
September 30, 2001 75,000,000
December 31, 2001 80,000,000
March 31, 2002 82,000,000
June 30, 2002 87,000,000
September 30, 2002 92,000,000
December 31, 2002 97,000,000
March 31, 2003 99,000,000
June 30, 2003 105,000,000
September 30, 2003 110,000,000
</TABLE>
SECTION 6.16. Secured Debt to Total Capital. During the period from the
Effective Date through and including September 30, 2003, the Borrower, CCI and
the Parent will not permit the ratio of (a) Secured Debt to (b) Total Capital,
as of the last day of any fiscal quarter, to be greater than 0.25 to 1.00.
SECTION 6.17. Total Debt to Total Capital. During the period from the
Effective Date through and including September 30, 2003, the Borrower, CCI and
the Parent will not permit the ratio of (a) Total Debt to (b) Total Capital, as
of the last day of any fiscal quarter, to be greater than 0.55 to 1.00.
SECTION 6.18. Positive EBITDA. The Borrower, CCI and the Parent will
not permit Consolidated EBITDA for any fiscal quarter ending on or after March
31, 2003 to be negative.
SECTION 6.19. Maximum Secured Debt to Annualized EBITDA. The Borrower,
CCI and the Parent will not permit the ratio of (i) Secured Debt outstanding on
any date during the periods set forth below to (ii) Annualized EBITDA in respect
of the fiscal quarter most recently ended on or prior to such date, to exceed
the ratio set forth below opposite the period below that includes the last day
of such fiscal quarter:
<PAGE> 106
101
<TABLE>
<CAPTION>
Period Maximum Ratio
------ -------------
<S> <C>
December 31, 2003 through
June 29, 2004 5.00 to 1.00
June 30, 2004 through
December 30, 2004 4.00 to 1.00
December 31, 2004 through
December 30, 2005 3.00 to 1.00
December 31, 2005 and thereafter 2.00 to 1.00
</TABLE>
SECTION 6.20. Maximum Total Debt to Annualized EBITDA. The Borrower,
CCI and the Parent will not permit the ratio of (i) Total Debt outstanding on
any date during the periods set forth below to (ii) Annualized EBITDA in respect
of the fiscal quarter most recently ended on or prior to such date to exceed the
ratio set forth below opposite the period that includes the last day of such
fiscal quarter:
<TABLE>
<CAPTION>
Period Maximum Ratio
------ -------------
<S> <C>
December 31, 2003 through
June 29, 2004 7.00 to 1.00
June 30, 2004 through
September 29, 2004 6.50 to 1.00
September 30, 2004 through
December 30, 2004 6.00 to 1.00
December 31, 2004 through
September 29, 2005 5.00 to 1.00
September 30, 2005 through
December 30, 2005 4.00 to 1.00
December 31, 2005 and thereafter 3.00 to 1.00
</TABLE>
SECTION 6.21. Minimum Consolidated EBITDA to Cash Interest Expense. The
Borrower, CCI and the Parent will not permit the ratio of Consolidated EBITDA to
Consolidated Cash Interest Expense for any period of four consecutive fiscal
quarters ending during a period set forth below to be less than the ratio set
forth below opposite such period:
<TABLE>
<CAPTION>
Period Minimum Ratio
------ -------------
<S> <C>
December 31, 2003 through
December 30, 2004 1.50 to 1.00
December 31, 2004 through
March 30, 2006 2.50 to 1.00
March 31, 2006 and thereafter 3.00 to 1.00
</TABLE>
<PAGE> 107
102
SECTION 6.22. Minimum Consolidated EBITDA to Consolidated Fixed
Charges. The Borrower, CCI and the Parent will not permit the ratio of (i)
Consolidated EBITDA to (ii) Consolidated Fixed Charges for any period of four
consecutive fiscal quarters ending on or after December 31, 2003 to be less than
1.10 to 1.00.
SECTION 6.23. Maximum Capital Expenditures. The Borrower, CCI and the
Parent will not permit Capital Expenditures of the Parent, CCI, the Borrower and
the other Restricted Subsidiaries to exceed the sum of (a) Excess Capital, if
any, received by the Parent or CCI during such year and used to finance Capital
Expenditures plus (b) the amount set forth below opposite such year:
<TABLE>
<CAPTION>
Maximum Capital
Fiscal Year Ending Expenditures
------------------ ------------
<S> <C>
December 31, 2001 $66,000,000
December 31, 2002 32,000,000
December 31, 2003 32,000,000
December 31, 2004 33,000,000
December 31, 2005 38,000,000
December 31, 2006 42,000,000
December 31, 2007 41,000,000
December 31, 2008 39,000,000
December 31, 2009 33,000,000
</TABLE>
;provided, however, that the amount of Capital Expenditures in any fiscal year
permitted to be incurred pursuant to the table above shall be increased by an
amount equal to the lesser of (i) the unused Capital Expenditures permitted
pursuant to the table above for the fiscal year immediately preceding such
fiscal year and (ii) 20% of the amount of Capital Expenditures permitted to be
incurred pursuant to the table above for such fiscal year.
SECTION 6.24. Designation of Unrestricted Subsidiaries. (a) The Parent
may not designate any Restricted Subsidiary as an Unrestricted Subsidiary and
may hereafter designate any other Subsidiary as an Unrestricted Subsidiary under
this Agreement (a "Designation") only if:
(i) such Subsidiary does not own any Capital Stock of any
Restricted Subsidiary;
(ii) no Event of Default shall have occurred and be continuing
at the time of or after giving effect to such Designation;
<PAGE> 108
103
(iii) after giving effect to such Designation and any related
Investment to be made in such designated Subsidiary by the Parent, CCI,
the Borrower or any other Restricted Subsidiary (which shall in any
event include the existing Investment in such Subsidiary at the time it
is designated as an Unrestricted Subsidiary), (A) any such existing
Investment and related Investment would comply with Section 6.06 and
(B) the Parent, CCI and the Borrower would be in compliance with each
of the Financial Covenants, calculated on a pro forma basis as if such
Designation and Investment had occurred immediately prior to the first
day of the period of four consecutive fiscal quarters most recently
ended in respect of which financial statements have been delivered by
the Parent pursuant to Section 5.01(a) or (b); and
(iv) the Parent has delivered to the Administrative Agent (x)
written notice of such Designation and (y) a certificate, dated the
effective date of such Designation, of a Financial Officer of the
Parent stating that no Event of Default has occurred and is continuing
and setting forth reasonably detailed calculations demonstrating pro
forma compliance with the Financial Covenants in accordance with
paragraph (iii) above.
(b) The Parent may designate any Unrestricted Subsidiary as a
Restricted Subsidiary under this Agreement (an "RS Designation") only if:
(i) such Subsidiary is predominantly engaged in one or more
Telecommunications Businesses in the United States;
(ii) no Event of Default shall have occurred and be continuing
at the time of or after giving effect to such RS Designation, and after
giving effect thereto, the Parent, CCI and the Borrower would be in
compliance with each of the Financial Covenants, calculated on a pro
forma basis as if such RS Designation had occurred immediately prior to
the first day of the period of four consecutive fiscal quarters most
recently ended in respect of which financial statements have been
delivered by the Parent pursuant to Section 5.01(a) or (b); and
(iii) all Liens on assets of such Unrestricted Subsidiary and
all Indebtedness of such Unrestricted Subsidiary outstanding
immediately following the RS Designation would have been permitted to
be incurred
<PAGE> 109
104
pursuant to Sections 6.02 and 6.03 (without reliance on Section 6.02(v)
or Section 6.03(iv)) if such Unrestricted Subsidiary had been a
Restricted Subsidiary at the time of incurrence of such Indebtedness or
Liens.
Upon any such RS Designation with respect to an Unrestricted
Subsidiary (i) the Parent, CCI, the Borrower and the other Restricted
Subsidiaries shall be deemed to have received a return of their Investment in
such Unrestricted Subsidiary equal to the lesser of (x) the amount of such
Investment immediately prior to such RS Designation and (y) the fair market
value (as reasonably determined by the Parent) of the net assets of such
Subsidiary at the time of such RS Designation and (ii) the Parent, the Borrower
and the other Restricted Subsidiaries shall be deemed to have a permanent
Investment in an Unrestricted Subsidiary equal to the excess, if positive, of
the amount referred to in clause (i)(x) above over the amount referred to in
clause (i)(y) above.
(c) Neither the Parent, CCI, the Borrower nor any other
Restricted Subsidiary shall at any time (x) provide a Guarantee of any
Indebtedness of any Unrestricted Subsidiary, (y) be directly or indirectly
liable for any Indebtedness of any Unrestricted Subsidiary or (z) be directly or
indirectly liable for any other Indebtedness which provides that the holder
thereof may (upon notice, lapse of time or both) declare a default thereon (or
cause such Indebtedness or the payment thereof to be accelerated, payable or
subject to repurchase prior to its final scheduled maturity) upon the occurrence
of a default with respect to any other Indebtedness that is Indebtedness of an
Unrestricted Subsidiary, except in the case of clause (x) or (y) to the extent
permitted under Section 6.01 and Section 6.06 hereof. Except as provided in
clause (b) above, each Designation shall be irrevocable, and no Unrestricted
Subsidiary may become a Restricted Subsidiary, be merged with or into the
Parent, CCI, the Borrower or any other Restricted Subsidiary or liquidate into
or transfer substantially all its assets to the Parent, CCI, the Borrower or any
other Restricted Subsidiary.
SECTION 6.25. License Subsidiaries. The Parent, CCI and the Borrower
will not permit any License Subsidiary (a) to incur, assume or permit to exist
any Indebtedness or other liabilities (other than under the Guarantee Agreement
and the Security Documents and the Communications Act and taxes and other
liabilities incurred in the ordinary course in order to maintain its existence
or (b) to engage in any business or activities other than the holding of
Licenses.
<PAGE> 110
105
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement or any
other Loan Document, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period
of five days;
(c) any representation or warranty made or deemed made by or
on behalf of the Parent, CCI, the Borrower or any other Restricted
Subsidiary in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any
report, certificate, financial statement or other document
furnished pursuant to or in connection with any Loan Document or
any amendment or modification thereof or waiver thereunder, shall
prove to have been incorrect in any material respect when made or
deemed made;
(d) the Parent, CCI or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section
5.02, 5.04 (with respect to the existence of the Parent, CCI and
the Borrower) or 5.11 or in Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document
(other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period
of 30 days after notice thereof from the Administrative Agent to
the Borrower (which notice will be given at the request of any
Lender);
<PAGE> 111
106
(f) the Parent, CCI, the Borrower or any other Restricted
Subsidiary shall fail to make any payment (whether of principal or
interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable (after
giving effect to any applicable period of grace provided for in the
instrument governing such Indebtedness);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Parent, CCI, the
Borrower or any other Restricted Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent, the
Borrower or any other Restricted Subsidiary or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Parent, CCI, the Borrower or any other Restricted
Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii)
apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator,
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conservator or similar official for the Parent, the Borrower or any
other Restricted Subsidiary or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Parent, CCI, the Borrower or any other Restricted
Subsidiary shall become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments (other than to the extent covered by
insurance as to which the insurance company has acknowledged coverage
in writing) for the payment of money in an aggregate amount in excess
of $10,000,000 shall be rendered against the Parent, CCI, the Borrower,
any other Restricted Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets
of the Parent, CCI, the Borrower or any other Restricted Subsidiary to
enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not
to be, a valid and perfected Lien on any Collateral (other than
immaterial portions of the Collateral), with the priority required by
the applicable Security Document, except (i) as a result of the sale or
other disposition of the applicable Collateral in a transaction
permitted under the Loan Documents or (ii) as a result of the Agent's
failure to maintain possession of any stock certificates, promissory
notes or other instruments delivered to it under the Pledge Agreement;
or the Guarantee Agreement shall cease to be, or shall be asserted by
any Loan Party not to be, valid and enforceable;
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108
(n) any termination, revocation or nonrenewal by the FCC of
one or more Licenses (other than any immaterial Licences) of the
Parent, CCI, the Borrower or any Restricted Subsidiary; or
(o) a Change of Control shall occur;
then, and in every such event (other than an event with respect to the Parent,
CCI or the Borrower described in clause (h) or (i) of this Article), and at any
time thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the
Parent, CCI or the Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Agent as its agent and authorizes the Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Agent by the terms of
the Loan Documents, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Agent, and such bank and its Affiliates may accept
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109
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not the
Agent hereunder.
The Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), and (c) except as expressly set forth in the Loan Documents, the
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Parent, the Borrower or any
of their Subsidiaries that is communicated to or obtained by the bank serving as
Agent or any of its Affiliate s in any capacity. The Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or wilful misconduct. The Agent shall be
deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Agent by the Borrower or a Lender, and the Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Agent.
The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agent
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110
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Agent may consult with legal counsel (who may be counsel
for the Borrower), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.
The Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the Agent. The
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, the Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, with, so long as no Default or Event of
Default shall have occurred and be continuing, the consent of the Borrower
(which consent shall not be unreasonably withheld or delayed), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Agent which shall be a bank
with an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations hereunder. The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Agent.
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111
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or related agreement
or any document furnished hereunder or thereunder.
None of the Lenders identified on the facing page of, or elsewhere in,
this Agreement or in any other Loan Document as a "syndication agent" or a
"co-documentation agent", shall have any right, power, obligation, liability,
responsibility or duty under this Agreement or the other Loan Documents other
than those applicable to all of the Lenders as such. Without limiting the
foregoing, none of the Lenders so identified shall have or be deemed to have any
fiduciary relationship with any Lender.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, CCI or the Parent, to it at 110 East
59th Street, New York, NY 10022, Attention of Jared Gurfein, (Telecopy
No. 212-906-8489);
(b) if to the Agent or the Issuing Bank, to The Chase
Manhattan Bank, Loan and Agency Services Group, One Chase Manhattan
Plaza, 8th Floor, New York, New York 10081, Attention of Ms. Gloria
Javier (Telecopy No. (212) 552-5658), with a copy to The Chase
Manhattan Bank, 270 Park Avenue, New York, New York 10017, Attention of
William Rottino (Telecopy No. (212) 270-1204); and
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112
(c) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Each of the Parent and CCI hereby irrevocably appoints and authorizes the
Borrower to give and receive any notices hereunder on its behalf and any notice
given or received by the Borrower shall be effective as notice given or received
by CCI or the Parent. Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agent, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality
of the foregoing, the making of a Loan or issuance of a Letter of Credit shall
not be construed as a waiver of any Default, regardless of whether the Agent,
any Lender or the Issuing Bank may have had notice or knowledge of such Default
at the time.
(b) Except as provided in Section 2.19 with respect to an
Incremental Facility Amendment, neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements in
writing entered into by the Parent, CCI, the Borrower and the Required Lenders
or, in the case of any other Loan Document, pursuant to an agreement or
agreements in writing entered into by the Administrative Agent and the Loan
Party or Loan Parties that are parties thereto, in each case with the consent of
the Required Lenders; provided that
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113
no such agreement shall (i) increase the Commitment or extend the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the maturity of any Loan, or any scheduled date
of payment of the principal amount of any Term Loan under Section 2.09, or the
required date of reimbursement of any LC Disbursement, or any date for the
payment of any interest or fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
or reduction of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.17(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
percentage set forth in the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be), (vi) release any Loan Party from its Guarantee under the Guarantee
Agreement (except as expressly provided in Section 9.15), or limit its liability
in respect of such Guarantee, without the written consent of each Lender, (vii)
release all or any substantial portion of the Collateral from the Liens of the
Security Documents, without the written consent of each Lender, in each case
other than in connection with any sale of Collateral permitted by this Agreement
or (viii) change any provisions of any Loan Document in a manner that by its
terms adversely affects the rights in respect of payments due to Lenders holding
Loans of any Class differently than those holding Loans of any other Class,
without the written consent of Lenders holding a majority in interest of the
outstanding Loans and unused Commitments of each affected Class; provided
further that (A) no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent or the Issuing Bank without the
prior written consent of the Administrative Agent or the Issuing Bank, as the
case may be, (B) any waiver, amendment or modification of this Agreement that by
its terms affects only the rights or duties under this Agreement of a particular
Class of Lenders may be effected by an agreement or agreements in writing
entered into by the Borrower and requisite percentage in interest of the
affected Class of Lenders that would be required to consent thereto under this
Section if such Class of Lenders were the only Class of
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Lenders hereunder at the time and (C) any amendment to Section 9.14 is subject
to Section 9.14(e). Notwithstanding the foregoing, any provision of this
Agreement may be amended by an agreement in writing entered into by the Parent,
CCI, the Borrower, the Required Lenders and the Administrative Agent (and, if
its rights or obligations are affected thereby, the Issuing Bank) if (i) by the
terms of such agreement the Commitment of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by
the Administrative Agent, the Issuing Bank or any Lender, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a
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result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties to
the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions, the Acquisitions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any Mortgaged Property or any other property currently or formerly
owned or operated by the Parent or any of its Subsidiaries, or any Environmental
Liability related in any way to the Parent or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses resulted from
the bad faith, gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to
be paid by it to the Administrative Agent or the Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Issuing Bank, as the case may be, such Lender's pro
rata share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent or the Issuing Bank in its capacity as such. For purposes
hereof, a Lender's "pro rata share" shall be determined based upon its share of
the sum of the total Revolving Exposures, outstanding Tranche A Term Loans and
unused Commitments at the time.
(d) To the extent permitted by applicable law, each of the Parent, CCI
and the Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, the Acquisitions, any Loan or
Letter of Credit or the use of the proceeds thereof.
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(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that the
Parent, CCI and the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment to a Lender, a Lender Affiliate or a Related Fund
of a Lender, each of the Borrower and the Administrative Agent (and, in the case
of an assignment of all or a portion of a Revolving Commitment or any Lender's
obligations in respect of its LC Exposure, the Issuing Bank) must give its prior
written consent to such assignment (which consent shall not be unreasonably
withheld or delayed), (ii) except in the case of an assignment to a Lender or an
Affiliate of a Lender or a Related Fund of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment or Loans, the
amount of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (iii) shall not be construed to
prohibit the assignment of a proportionate part of all the assigning Lender's
rights and obligations in respect of one Class of Commitments or Loans, (iv) the
parties to each assignment
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shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, and (v)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; and provided further that any consent of
the Borrower otherwise required under this paragraph shall not be required if an
Event of Default under clause (h) or (i) of Article VII has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Parent, the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Parent, the
Borrower, the Issuing Bank and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
here-
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under), the processing and recordation fee referred to in paragraph (b) of this
Section and any written consent to such assignment required by paragraph (b) of
this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce the Loan Documents and to approve any amendment, modification or waiver
of any provision of the Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Parent, CCI and the Borrower agree that each
Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower
is notified of the participation sold to such
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Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including, without limitation, any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents and the Chase Agreements constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject
<PAGE> 125
120
matter hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower, CCI, the Parent or any other Loan Party against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of the Parent, CCI and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from
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any thereof, in any action or proceeding arising out of or relating to any Loan
Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or
any other Loan Document shall affect any right that the Administrative Agent,
the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the
Parent, CCI, the Borrower or their properties in the courts of any jurisdiction.
(c) Each of the Parent, CCI and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process by registered or certified mail, return receipt requested, sent to its
address provided for notices in Section 9.01. Nothing in this Agreement or any
other Loan Document will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
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ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section (in the
case of the following clauses (i) and (ii)), (i) to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (ii) to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provisions of
this Section 9.12) or (iii) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender, (g) with the
consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Agent, the Issuing Bank or any Lender on a nonconf
idential basis from a source other than the Loan Parties. For the purposes of
this Section, "Information" means all information received from the Loan Parties
relating to the Parent, CCI, the Borrower or their business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by the Loan
<PAGE> 128
123
Parties. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Special Funding Option. (a) Notwithstanding anything to
the contrary contained herein, any Lender (for the purposes of this Section
9.16, a "Granting Lender") may grant to a special purpose funding vehicle (for
the purposes of this Section 9.16, an "SPC") the option to make, on behalf of
such Granting Lender, all or a portion of the Loans which such Granting Lender
is obligated to make (a "Funding Obligation") under the Revolving Credit
Facility, such option to be exercisable in the sole discretion of the SPC,
provided, however, that
(i) such Granting Lender's obligations under this Agreement
and the Loan Documents shall remain unchanged, including without
limitation the indemnification obligations of the Granting Lender
pursuant to Section 9.03 hereof;
(ii) such Granting Lender shall remain solely responsible to
the other parties hereto for the performance of all Funding
Obligations;
(iii) the Borrower and the Lenders shall continue to deal
solely and directly with such Granting Lender in
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connection with such Granting Lender's rights and obligations under this
Agreement; the Agent shall continue to deal directly with the Granting Lender as
agent for the SPC with respect to distribution of payment of principal; interest
and fees, notices of Conversion and Continuation and all other matters;
(iv) such Granting Lender shall retain the sole right to
enforce the obligations of the Borrower relating to its Loans and its
Notes and to approve any amendment, modification, or waiver of any
provisions of this Agreement, each of which may, if so agreed in
writing between the Granting Lender and the SPC, require the prior
consent of any such SPC which has exercised the option to undertake the
Funding Obligation in connection with such Granting Lender's
Commitments and Obligations owing thereto before the Granting Lender
approves any such amendment, modification or waiver;
(v) the granting of such option shall not constitute an
assignment to or participation of such SPC of or in the Granting
Lender's Commitments and Obligations owing thereto;
(vi) such SPC shall not become a Lender hereunder as a result
of the granting of such option;
(vii) such SPC shall not become obligated or committed to make
Loans as a result of the granting of such option;
(viii) if such SPC elects not to exercise such option or
otherwise fails to make all or any part of a Loan, the Granting Lender
shall retain its Funding Obligation and be obligated to make the entire
Loan or any portion of such Loan not made by such SPC; and
(ix) any SPC may, with notice to, but without the prior
written consent of, the Borrowers and the Agent and without paying any
processing fee therefor, assign all or a portion of its interests as a
participant or subparticipant in any Loans to the Granting Bank or to
any financial institutions (consented to by the Borrowers and Agent)
providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Loans.
(b) Loans made by an SPC hereunder shall be deemed to satisfy
the Funding Obligation and utilize the Revolving Credit Commitment of the
Granting Lender as if,
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125
and to the same extent, such Loans were made by such Granting Lender.
(c) Each party hereto agrees that no SPC shall be liable for
any indemnity or payment under this Agreement for which a Granting Lender would
otherwise be liable so long as, and to the extent that, the Granting Lender
provides such indemnity or makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
Indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof arising out of or relating to transactions under this Agreement or
the other Loan Documents.
(d) Notwithstanding anything to the contrary contained in this
Agreement, an SPC may disclose on a confidential basis any nonpublic information
relating to Loans made by such SPC hereunder to any rating agency, commercial
paper dealer or provider of any surety or guarantee to such SPC.
(e) This Section 9.14 may not be amended without the prior
written consent of the Granting Lenders on behalf of which each SPC has made all
or any part of its Loans which remain outstanding at the time of such amendment.
SECTION 9.15. Release of Subsidiaries. (a) If (i) the Agent receives a
certificate from an Executive Officer of the Parent certifying as of the date of
that certificate that, after the consummation of the transaction or series of
transactions described in reasonable detail satisfactory to the Agent in such
certificate on such date, the Subsidiary Loan Party identified in such
certificate will no longer be a subsidiary of the Parent and (ii) such
transactions are consummated on such date in accordance with and without
violating the provisions of this Agreement or any other Loan Document, the such
Subsidiary's guarantee under the Guarantee Agreement shall automatically
terminate and such Subsidiary shall cease to be a party to any Loan Document.
(b) No such termination or cessation shall release, reduce, or
otherwise adversely affect the obligations of any other Loan Party under this
Agreement, any other guarantee, or any other Loan Document, all of which
obligations will remain in full force and effect.
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126
(c) The Agent shall, at the Parent's expense, executive such
documents as the Parent may reasonably request to evidence such termination or
cessation, as the case may be.
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127
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
CORECOMM COMMUNICATIONS, INC.,
by
----------------------------
Name:
Title:
CORECOMM, INC.,
by
----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Agent,
by
----------------------------
Name:
Title:
[OTHER LENDERS],
by
----------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
CORECOMM COMMUNICATIONS, INC.,
by
----------------------------
Name:
Title:
CORECOMM LIMITED,
by
----------------------------
Name:
Title:
CORECOMM HOLDCO, INC.,
by
----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Agent,
by
----------------------------
Name:
Title:
