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EXHIBIT 10.1
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of July 26, 2000 among CFW COMMUNICATIONS
COMPANY, a Virginia corporation (the "Borrower"), the other entities listed on
the signature pages hereof as the Initial Subsidiary Guarantors, the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "Initial Lenders"), the bank listed on
the signature pages hereof as the Initial Issuing Bank (the "Initial Issuing
Bank"), MORGAN STANLEY SENIOR FUNDING, INC. ("Morgan Stanley"), as lead arranger
and sole book-runner (in such capacity, the "Lead Arranger"), FIRST UNION
NATIONAL BANK, as syndication agent (together with any successor syndication
agent appointed pursuant to Article VII, the "Syndication Agent"), SUNTRUST
BANK, as documentation agent (together with any successor documentation agent
appointed pursuant to Article VII, the "Documentation Agent"), MORGAN STANLEY &
CO. INCORPORATED ("MS&Co."), as collateral agent (together with any successor
collateral agent appointed pursuant to Article VII, the "Collateral Agent"), and
MORGAN STANLEY, as administrative agent (together with any successor
administrative agent appointed pursuant to Article VII, the "Administrative
Agent" and, together with the Collateral Agent, the Syndication Agent and the
Document Agent, the "Agents") for the Lender Parties (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) Pursuant to an asset exchange agreement (the "Exchange Agreement")
entered into by PrimeCo Personal Communications L.P. (the "Seller"), the
Borrower and a wholly owned Subsidiary (as hereinafter defined) of the Borrower
("Acquisition Co."), Acquisition Co. will acquire the PCS assets in the
Richmond-Norfolk Major Trading Area (the "Acquired Properties") of the Seller
for an aggregate price not to exceed $505.75 million, subject to changes in
working capital (the "Acquisition").
(2) Simultaneously with the consummation of the Acquisition, the
Borrower will consummate a recapitalization (the "Recapitalization") of Virginia
PCS Alliance, L.C. (the "VA Alliance") and West Virginia PCS Alliance, L.C. (the
"WV Alliance", and together with the VA Alliance, the "Alliances") so that each
of the VA Alliance and the WV Alliance shall be funded by intercompany loans
from the Borrower which shall be secured by all of the assets of such Alliance
and a pledge of the membership interests in such Alliance.
(3) The Borrower has requested that, immediately upon the consummation
of the Acquisition, the Lender Parties lend to the Borrower up to $325 million
(i) to finance, in part, the Acquisition, (ii) to refinance certain existing
debt of the Borrower and its Subsidiaries, (iii) to finance the
Recapitalization, (iv) to pay transaction costs and expenses associated with the
foregoing and (v) for working capital and other general corporate purposes of
the Borrower and its Subsidiaries and the Alliances.
(4) The Lender Parties have indicated their willingness to lend such
amounts on the terms and conditions of this Agreement.
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Certain Defined Terms. As used in this Agreement, the following terms shall
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have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Acquired Properties" has the meaning specified in the Preliminary
Statements.
"Acquisition" has the meaning specified in the Preliminary Statements.
"Acquisition Co." has the meaning specified in the Preliminary
Statements.
"Adjusted Net Income" means, for any period, the aggregate net income
(or loss) (without duplication) of the Financial Covenants Parties for such
period determined in conformity with GAAP, provided that the following
items shall be excluded in computing Adjusted Net Income (without
duplication):
(5) the net income of any Person that is not a Subsidiary, except to
the extent of the amount of dividends or other distributions actually paid to
the Borrower or any of its Subsidiaries by such Person during such period;
(6) the net income (or loss) of any Person (other than any of the
Financial Covenants Parties) accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with the Borrower or any of its Subsidiaries
or all or substantially all of the property and assets of such Person are
acquired by the Borrower or any of its Subsidiaries;
(7) the net income of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
of such net income is not at the time permitted by the operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to such Subsidiary;
(8) any gains or losses (on an after-tax basis) attributable to any
sale, transfer or other disposition of any asset (other than sales or other
dispositions of inventory, receivables and other current assets); and
(9) all extraordinary gains, extraordinary losses and unusual,
infrequent or special non-recurring items.
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
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"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent as the
Administrative Agent shall specify in writing to the Lender Parties.
"Advance" means a Tranche A Term Advance, a Tranche B Term Advance, a
Tranche C Term Advance, a Working Capital Advance or a Letter of Credit
Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"Aggregate Credit Exposure" at any time means the sum of (i) the
aggregate principal amount of Advances outstanding at such time, (ii) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, (iii) the aggregate Unused Tranche A Term Commitments at such time,
(iv) the aggregate Unused Working Capital Commitments at such time and (v)
the aggregate Unused Tranche C Term Commitments at such time.- .
"Aggregate Service Revenue" means, for any period, (without
duplication) total revenues less revenues from equipment sales of the
Financial Covenants Parties.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to:
(a) in the case of a Hedge Agreement documented pursuant to the Master
Agreement (Multicurrency-Cross Border) published by the International Swap
and Derivatives Association, Inc. (the "Master Agreement"), the amount, if
any, that would be payable by any Loan Party or any of its Subsidiaries to
its counterparty to such Hedge Agreement, as if (i) such Hedge Agreement
was being terminated early on such date of determination, (ii) such Loan
Party or Subsidiary was the sole "Affected Party", and (iii) the
Administrative Agent was the sole party determining such payment amount
(with the Administrative Agent making such determination pursuant to the
provisions of the form of Master Agreement); or (b) in the case of a Hedge
Agreement traded on an exchange, the mark-to-market value of such Hedge
Agreement, which will be the unrealized loss on such Hedge Agreement to the
Loan Party or Subsidiary of a Loan Party party to such Hedge Agreement
determined by the Administrative Agent based on the settlement price of
such Hedge Agreement on such date of determination; or (c) in all other
cases, the mark-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary of
a Loan Party party to such Hedge Agreement determined by the Administrative
Agent as the amount, if any, by which (i) the present value of the future
cash flows to be paid by such Loan Party or
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Subsidiary exceeds (ii) the present value of the future cash flows to be
received by such Loan Party or Subsidiary pursuant to such Hedge Agreement;
capitalized terms used and not otherwise defined in this definition shall
have the respective meanings set forth in the above described Master
Agreement.
"Alliance Guaranty" has the meaning specified in Section 3.01(a)(iii).
"Alliance Notes" means all promissory notes relating to loans made by
the Borrower to the Alliances and all other agreements and documents
relating to such promissory notes, including , without limitation, the
guaranties and pledge agreements of all members in each Alliance.
"Alliances" has the meaning set forth in Preliminary Statements.
"Applicable Lending Office" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"Applicable Margin" means at any time (x) in the case of the Tranche B
Term Loan Facility, 4.00% per annum in the case of Eurodollar Rate Advances
and 3.00% per annum in the case of Base Rate Advances, (y) in the case of
the Tranche C Term Loan Facility, 2.75% per annum in the case of Eurodollar
Rate Advances and 1.75% per annum in the case of Base Rate Advances and (z)
in the case of the Tranche A Term Loan Facility and the Working Capital
Facility, (i) for the first six months after the date hereof, 3.25% per
annum in the case of Eurodollar Rate Advances and 2.25% per annum in the
case of Base Rate Advances and (ii) thereafter, as determined by the
Leverage Ratio as set forth below:
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Term A/ Term A/
------- -------
Working Working
------- -------
Capital Capital
------- -------
Base Rate Eurodollar
Advances Rate Advances
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Level I 0.25%
------- 1.25%
less than 4.0: 1.0
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Level II 0.75%
-------- 1.75%
4.0: 1.0 or greater,
but less than 5.0: 1.0
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Level III 1.00% 2.00%
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5.0:1.0 or greater, but
less than 6.0:1.0
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Level IV 1.25% 2.25%
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6.0:1.0 or greater, but
less than 7.0:1.0
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Level V 1.50% 2.50%
-------
7.0:1.0 or greater, but
less than 8.0 :1.0
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-----------------------------------------------------------------
Level VI 1.75% 2.75%
--------
8.0:1.0 or greater, but
less than 9.0:1.0
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Level VII 2.00% 3.00%
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9.0:1 or greater, but
less than 10.0:1.0
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Level VIII 2.25% 3.25%
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Greater than
10.0:1.0
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The Applicable Margin for each Base Rate Advance shall be determined by
reference to the ratio in effect from time to time and the Applicable
Margin for each Eurodollar Rate Advance shall be determined by reference to
the ratio in effect on the first day of each Interest Period for such
Advance; provided, however, that (A) no change in the Applicable Margin
shall be effective until three Business Days after the date on which the
Administrative Agent receives the financial statements required to be
delivered pursuant to Section 5.03(b) or (c), as the case may be, and a
certificate of the Chief Financial Officer of the Borrower demonstrating
such ratio and (B) the Applicable Margin shall be at Level VIII for so long
as the Borrower has not submitted to the Administrative Agent the
information described in clause (A) of this proviso as and when required
under Section 5.03(b) or (c), as the case may be.
"Applicable Percentage" means with respect to the Tranche A Term
Facility, the Tranche C Term Facility or the Working Capital Facility, (i)
any time that the aggregate Advances then outstanding under such Facility
equal or exceed 66% of such Facility, 0.50% per annum, (ii) any time that
the aggregate Advances then outstanding under such Facility are less than
66% of such Facility but greater than or equal to 33% of such Facility,
0.625% per annum, and (iii) any other time, 0.75% per annum.
"Appropriate Lender" means, at any time, with respect to (a) any of
the Tranche A Term, Tranche B Term, Tranche C Term or Working Capital
Facilities, a Lender that has a Commitment with respect to such Facility at
such time, and (b) the Letter of Credit Facility, (i) the Issuing Bank and
(ii) if the other Working Capital Lenders have made Letter of Credit
Advances pursuant to Section 2.03(c) that are outstanding at such time,
each such other Working Capital Lender.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance in
substantially the form of Exhibit C hereto entered into by a Lender Party
and an Eligible Assignee, and accepted by the Administrative Agent, in
accordance with Section 9.07.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
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"Bankruptcy Law" means any proceeding of the type referred to in
Section 6.01(f) or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank,
N.A. in New York, New York, from time to time, as Citibank N.A.'s
prime or base commercial lending rate (or if not available the prime
or base commercial lending rate of another money center bank, as
acceptable to the Administrative Agent); and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrower's Account" means the account of the Borrower as the Borrower
shall specify in writing to the Administrative Agent.
"Borrowing" means a Tranche A Term Borrowing, a Tranche B Term
Borrowing, a Tranche C Term Borrowing or a Working Capital Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period, the sum
of, without duplication, (a) all expenditures made, directly or indirectly,
by such Person or any of its Subsidiaries during such period for equipment,
fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should be,
in accordance with GAAP, reflected as additions to property, plant or
equipment on a Consolidated balance sheet of such Person or have a useful
life of more than one year plus (b) the aggregate principal amount of all
Debt (including Obligations under Capitalized Leases) assumed or incurred
in connection with any such expenditures. For purposes of this definition,
the purchase price of equipment that is purchased simultaneously with the
trade-in of existing equipment or with insurance proceeds shall be included
in Capital Expenditures only to the extent of the gross amount of such
purchase price less the credit granted by the seller of such equipment for
the equipment being traded in at such time or the amount of such proceeds,
as the case may be.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
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"Carryover Amount" has the meaning specified in Section 5.02 (p).
"Cash Collateral Account" has the meaning specified in the Security
Agreement.
"Cash Equivalents" means any of the following, to the extent owned by
the Borrower or any of its Subsidiaries free and clear of all Liens other
than Liens created under the Collateral Documents and having a maturity of
not greater than 180 days from the date of acquisition thereof: (a) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed
by the full faith and credit of the Government of the United States, (b)
insured certificates of deposit of or time deposits with any commercial
bank that is a Lender Party or a member of the Federal Reserve System,
issues (or the parent of which issues) commercial paper rated as described
in clause (c) below, is organized under the laws of the United States or
any State thereof and has combined capital and surplus of at least $1
billion or (c) commercial paper in an aggregate amount of no more than $2
million per issuer outstanding at any time, issued by any corporation
organized under the laws of any State of the United States and rated at
least "Prime-1" (or the then equivalent grade) by Moody's Investors
Service, Inc. or "A-1" (or the then equivalent grade) by Standard & Poor's,
a division of The McGraw-Hill Companies, Inc.
"Cash Interest Expense" means, for any period, (a) Interest Expense
for such period, minus (b) the aggregate amount of pay-in-kind, accreted or
other Interest Expense for such period not involving any payment in cash
for such period.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"Change of Control" means the occurrence of any of the following: (a)
any Person or two or more Persons acting in concert other than the Equity
Investors shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Interests of the
Borrower (or other securities convertible into such Voting Interests)
representing 30% or more of the combined voting power of all Voting
Interests of the Borrower; or (b) during any period of up to 24 consecutive
months, commencing before or after the date of this Agreement, individuals
who at the beginning of such 24-month period were directors of the Borrower
shall cease for any reason to constitute a majority of the board of
directors of the Borrower; or (c) any Person or two or more Persons acting
in concert other than the Equity Investors shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of control over
Voting Interests of the Borrower (or other securities convertible into such
Voting Interests) representing 30% or more of the combined voting power of
all Voting Interests of the Borrower.
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"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is subject to any Lien in favor of
the Collateral Agent for the benefit of the Secured Parties.
"Collateral Agent" has the meaning specified in the recital of parties
to this Agreement.
"Collateral Documents" means the Security Agreement, the Mortgages,
and any other agreement that creates or purports to create a Lien in favor
of the Collateral Agent for the benefit of the Secured Parties.
"Commitment" means a Tranche A Term Commitment, a Tranche B Term
Commitment, a Tranche C Term Commitment, a Working Capital Commitment or a
Letter of Credit Commitment.
"Communications Act" means the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations and
published policies of the FCC thereunder, all as amended and as the same
may be in effect from time to time.
"Confidential Information" means information that any Loan Party
furnishes to any Agent or any Lender Party in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public other than as a result of a breach by
such Agent or any Lender Party of its obligations hereunder or that is or
becomes available to such Agent or such Lender Party from a source other
than the Loan Parties that is not, to the best of such Agent's or such
Lender Party's knowledge, acting in violation of a confidentiality
agreement with a Loan Party.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, (a)
the direct or indirect guarantee, endorsement (other than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the Obligation of a
primary obligor, (b) the Obligation to make take-or-pay or similar
payments, if required regardless of nonperformance by any other party or
parties to an agreement or (c) any Obligation of such Person, whether or
not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation
or (B) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, assets, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated
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or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the
terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder),
as determined by such Person in good faith.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.09 or 2.10.
"Current Assets" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a
company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a reserve
is proper in accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such Person
except Funded Debt, (b) all amounts of Funded Debt of such Person required
to be paid or prepaid within one year after such date and (c) all other
items (including taxes accrued as estimated) that in accordance with GAAP
would be classified as current liabilities of such Person.
"Debt" of any Person means, without duplication for purposes of
calculating financial ratios, (a) all indebtedness of such Person for
borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such
Person's business), (c) all Obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all Obligations of such
Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such
property), (e) all Obligations of such Person as lessee under Capitalized
Leases, (f) all Obligations of such Person under acceptance, letter of
credit or similar facilities, (g) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect
of any Equity Interests in such Person or any other Person, valued, in the
case of Redeemable Preferred Interests, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, (h)
all Obligations of such Person in respect of Hedge Agreements, valued at
the Agreement Value thereof, (i) all Contingent Obligations of such Person
and (j) all indebtedness and other payment Obligations referred to in
clauses (a) through (i) above of another Person secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person
has not assumed or become liable for the payment of such indebtedness or
other payment Obligations.
"Debt for Borrowed Money" of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a Consolidated
balance sheet of such Person.
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"Debt Service" means, for any period, the sum of (a) Cash Interest
Expense for such period plus (b) scheduled principal amortization of Debt
for Borrowed Money for such period.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to the Borrower pursuant to Section 2.01 or 2.02 at or prior to such time
that has not been made by such Lender Party or by the Administrative Agent
for the account of such Lender Party pursuant to Section 2.02(d) as of such
time. In the event that a portion of a Defaulted Advance shall be deemed
made pursuant to Section 2.15(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to be
made pursuant to Section 2.01 on the same date as the Defaulted Advance so
deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) the Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a
Letter of Credit Advance made by such Issuing Bank, (b) the Administrative
Agent pursuant to Section 2.02(d) to reimburse the Administrative Agent for
the amount of any Advance made by the Administrative Agent for the account
of such Lender Party, (c) any other Lender Party pursuant to Section 2.13
to purchase any participation in Advances owing to such other Lender Party
and (d) any Agent or Issuing Bank pursuant to Section 7.05 to reimburse
such Agent or such Issuing Bank for such Lender Party's ratable share of
any amount required to be paid by the Lender Parties to such Agent or such
Issuing Bank as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the
remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type
described in Section 6.01(f).
"Documentation Agent" has the meaning specified in the recital of
parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such
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Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, for any period, Consolidated Adjusted Net Income plus,
to the extent deducted in computing such Consolidated Adjusted Net Income,
the sum of (a) income or franchise tax expense for such period, (b)
Consolidated Interest Expense, (c) depreciation and amortization expense
and (d) any non-cash charges or non-cash losses, minus, to the extent added
in computing such Consolidated Net Income, (i) any non-cash gains or other
non-cash items and (ii) any income tax credits, all as determined on a
Consolidated basis with respect to the Financial Covenants Parties in
accordance with GAAP; provided that, if any Subsidiary of a Financial
Covenants Party (other than another Financial Covenants Party) is not a
wholly owned Subsidiary of such Financial Covenants Party, EBITDA shall be
reduced (to the extent not otherwise reduced in accordance with GAAP) by an
amount equal to (A) the amount of Consolidated Adjusted Net Income
attributable to such Subsidiary multiplied by (B) the percentage ownership
interest in the income of such Subsidiary not owned on the last day of such
period by such Financial Covenants Party.
"Effective Date" means the first date on which the conditions set
forth in Article III shall have been satisfied.
"Eligible Assignee" means any commercial bank or financial
institution, a finance company, insurance company, cooperative association
or fund (whether a corporation, a partnership, trust or other entity) that
is engaged in making, purchasing or otherwise investing in commercial loans
in the ordinary course of business as approved by the Administrative Agent
and (so long as no Event of Default has occurred and is continuing at the
time of such assignment pursuant to Section 9.07) by the Borrower (such
approvals not to be unreasonably withheld or delayed); provided, however,
that neither any Loan Party nor any affiliate of a Loan Party shall qualify
as an Eligible Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat to
health, safety or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any Federal, state, local statute, law,
ordinance, rule, regulation, code, order, writ, judgment, injunction,
decree or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
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"Environmental Permit" means any permit, approval, license or other
authorization required under any Environmental Law.
"Equity Contribution" means the preferred equity cash contribution
made on the date hereof to the Borrower by the Equity Investors.
"Equity Interests" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase
or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination.
"Equity Investors" means, collectively, WCA&S and MS&Co. and its
Affiliates.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of any Loan Party
or any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of
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<PAGE>
any event or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to
administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period for a period
equal to such Interest Period in an amount comparable to such Borrowing
(provided that, if for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits
in Dollars in an amount comparable to such Borrowing at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all such rates) by (b)
a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
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"Excess Amount" has the meaning specified in Section 5.02 (p).
"Excess Cash Flow" means, for any period,
(a) the sum of
(i) Consolidated Net Income of the Borrower and its
Subsidiaries for such period plus
(ii) the aggregate amount of all non-cash charges deducted in
arriving at such Consolidated Net Income plus
(iii) if there was a net increase in Consolidated Current
Liabilities of the Borrower and its Subsidiaries during such period,
the amount of such net increase plus
(iv) if there was a net decrease in Consolidated Current Assets
(excluding cash and Cash Equivalents) of the Borrower and its
Subsidiaries during such period, the amount of such net decrease less
(b) the sum of:
(i) the aggregate amount of all non-cash credits included in
arriving at such Consolidated Net Income plus
(ii) if there was a net decrease in Consolidated Current
Liabilities of the Borrower and its Subsidiaries during such period,
the amount of such net decrease plus
(iii) if there was a net increase in Consolidated Current Assets
(excluding cash and Cash Equivalents) of the Borrower and its
Subsidiaries during such period, the amount of such net increase plus
(iv) the aggregate amount of Capital Expenditures of the
Borrower and its Subsidiaries paid in cash during such period to the
extent permitted by Section 5.02(p) of this Agreement plus
(v) the aggregate amount of all regularly scheduled principal
payments of Funded Debt made during such period plus
(vi) the aggregate principal amount of all optional prepayments
of Term Advances made during such period pursuant to section 2.06(a)
plus
(vii) the aggregate principal amount of all mandatory
prepayments of Term Advances made during such period pursuant to
Section 2.06(b)(ii)(A) and (D) to the extent, and only to the extent,
that the related Net Cash Proceeds for such mandatory prepayment was
taken into account in determining Consolidated Net Income of the
Borrower and its Subsidiaries for such period.
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<PAGE>
"Exchange Agreement" has the meaning specified in the Preliminary
Statements.
"Existing Debt" means Debt of each Loan Party and its Subsidiaries and
the Alliances outstanding immediately before giving effect to the
consummation of the Acquisition.
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person not in the ordinary course of business,
including, without limitation, tax refunds, pension plan reversions,
proceeds of insurance (other than proceeds of business interruption
insurance to the extent such proceeds constitute compensation for lost
earnings), condemnation awards (and payments in lieu thereof), indemnity
payments and any purchase price adjustment received in connection with any
purchase agreement; provided, however, that an Extraordinary Receipt shall
not include cash receipts received from proceeds of insurance, condemnation
awards (or payments in lieu thereof) or indemnity payments to the extent
that such proceeds, awards or payments (A) in respect of loss or damage to
equipment, fixed assets or real property are applied (or in respect of
which expenditures were previously incurred) to replace or repair the
equipment, fixed assets or real property in respect of which such proceeds
were received in accordance with the terms of the Loan Documents, so long
as such application is made within 12 months after the occurrence of such
damage or loss or (B) are received by any Person in respect of any third
party claim against such Person and applied to pay (or to reimburse such
Person for its prior payment of) such claim and the costs and expenses of
such Person with respect thereto.
"Facility" means the Tranche A Term Facility, the Tranche B Term
Facility, the Tranche C Term Facility, the Working Capital Facility or the
Letter of Credit Facility.
"FCC" means the Federal Communications Commission or any other similar
successor agency of the Federal government administering the Communications
Act.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fee Letter" means the fee letter dated May 17, 2000 between the
Borrower and the Lead Arranger, as amended.
"Financial Covenants Parties" means (x) prior to the R&B Acquisition
Date, the Borrower and its Subsidiaries and each Alliance and its
respective Subsidiaries and (y) after the R&B Acquisition Date, the
Borrower and its Subsidiaries (provided, that (i) each financial covenant
for the first four fiscal quarters shall be calculated on a pro forma basis
15
<PAGE>
as if the Acquisition shall have occurred at the beginning of such period
and (ii) on and after the R&B Acquisition Date, each financial covenant
for the first four fiscal quarters after the R&B Acquisition Date shall be
calculated on a pro forma basis as if R&B had been acquired by the Borrower
at the beginning of such period).
"Fiscal Year" means a fiscal year of the Borrower and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"Fixed Charge Coverage Ratio" means, at any date of determination, the
ratio of (a) Consolidated EBITDA to (b) Debt Service, in each case, of the
Financial Covenants Parties (on a Consolidated basis and without
duplication) during the four consecutive fiscal quarters most recently
ended for which financial statements are required to be delivered to the
Lender Parties pursuant to Section 5.03(b) or (c), as the case may be.
"Funded Debt" of any Person means Debt in respect of the Advances, in
the case of the Borrower, and all other Debt of such Person that by its
terms matures more than one year after the date of determination or matures
within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year after such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
after such date, including, without limitation, all amounts of Funded Debt
of such Person required to be paid or prepaid within one year after the
date of determination.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section 8.01.
"Guaranties" means the Alliance Guaranty and the Subsidiary Guaranty.
"Guarantors" means the Alliances and the Subsidiary Guarantors.
"Guaranty Supplement" has the meaning specified in Section 8.05.
"Hazardous Materials" means (a) petroleum or petroleum products, by-
products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other
chemicals, materials or substances designated, classified or regulated as
hazardous or toxic or as a pollutant or contaminant under any Environmental
Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other hedging agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a Lender Party
in its capacity as a party to a Secured Hedge Agreement.
"Indemnified Party" has the meaning specified in Section 9.04(b).
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<PAGE>
"Information Memorandum" means the information memorandum dated June
22, 2000 used by the Lead Arranger in connection with the syndication of
the Commitments.
"Initial Extension of Credit" means the earlier to occur of the
initial Borrowing and the initial issuance of a Letter of Credit hereunder.
"Initial Issuing Bank" has the meaning specified in the recital of
parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of parties
to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Coverage Ratio" means, at any date of determination, the
ratio of (a) Consolidated EBITDA to (b) Cash Interest Expense, in each
case, of or by the Financial Covenants Parties (without duplication) during
the four consecutive fiscal quarters most recently ended for which
financial statements are required to be delivered to the Lender Parties
pursuant to Section 5.03(b) or (c), as the case may be.
"Interest Expense" means, for any period, the interest expense of the
Financial Covenants Parties (without duplication) for such period
determined on a Consolidated basis in accordance with GAAP, including but
not limited to the portion of any payments or accruals with respect to
Capitalized Leases that are allocable to interest expense.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided,
however, that:
(c) the Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that ends
after any principal repayment installment date for such Facility
unless, after giving effect to such selection, the aggregate principal
amount of Base Rate Advances and of Eurodollar Rate Advances having
Interest Periods that end on or prior to such principal repayment
installment date for such Facility shall be at least equal to the
aggregate principal amount of Advances under such Facility due and
payable on or prior to such date;
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<PAGE>
(d) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall
be of the same duration;
(e) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day;
(f) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month; and
(g) until the Syndication Date, Interest Periods of one week
shall be available, provided that the Borrower shall reimburse the
Lender Parties for any funding losses resulting from the consummation
of the primary syndication on a day other than the last day of an
Interest Period for any Advances.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Inventory" means all Inventory referred to in Section 1(b) of the
Security Agreement.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or all
of the business of such Person, any capital contribution to such Person or
any other direct or indirect investment in such Person, including, without
limitation, any acquisition by way of a merger or consolidation and any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (i) or (j) of the definition of "Debt" in respect of
such Person.
"Issuing Bank" means the Initial Issuing Bank and any Eligible
Assignee to which the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as the Issuing Bank and notifies the Administrative Agent
of its Applicable Lending Office and the amount of its Letter of Credit
Commitment (which information shall be recorded by the Administrative Agent
in the Register).
"L/C Cash Collateral Account" has the meaning specified in the
Security Agreement.
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<PAGE>
"L/C Related Documents" has the meaning specified in Section
2.04(e)(ii).
"Lead Arranger" has the meaning specified in the recital of parties to
this Agreement.
"Lender Party" means any Lender and the Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall become
a Lender hereunder pursuant to Section 9.07 for so long as such Initial
Lender or Person, as the case may be, shall be a party to this Agreement.
"Letter of Credit Advance" means an advance made by the Issuing Bank
or any Working Capital Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to the Issuing Bank,
at any time, the amount set forth opposite the Issuing Bank's name on
Schedule I hereto under the caption "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
amount of the Issuing Bank's Letter of Credit Commitment at such time, as
such amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letters of Credit" has the meaning specified in Section 2.01(e).
"Leverage Ratio" means, at any date of determination, the ratio of
Consolidated Debt for Borrowed Money of the Financial Covenants Parties
(without duplication) as at the end of the most recently ended fiscal
quarter of the Borrower for which financial statements are required to be
delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as the
case may be, to Consolidated EBITDA of the Financial Covenants Parties
(without duplication) for the four fiscal quarter period ending at the end
of such fiscal quarter.
"License" means any broadband personal communications services license
or cellular license issued by the FCC in connection with the operation of a
System.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means (a) for purposes of this Agreement and the
Notes and any amendment, supplement or modification hereof or thereof, (i)
this Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the Collateral
Documents, (v) the Fee Letter, (vi) each Letter of Credit Agreement and (b)
for purposes of the Guaranties and the Collateral Documents and for all
other purposes other than for purposes of this Agreement and the
19
<PAGE>
Notes, (i) this Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the
Collateral Documents, (v) the Fee Letter, (vi) each Letter of Credit
Agreement, and (vi) each Secured Hedge Agreement, in each case as amended.
"Loan Parties" means the Borrower and the Guarantors.
"Loan Year" means each 365 (or 366, as applicable) day period
following the date hereof.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrowers and its Subsidiaries, taken as a whole, (b) the
rights and remedies of any Agent or any Lender Party under any Transaction
Document or (c) the ability of any Loan Party to perform its Obligations
under any Transaction Document to which it is or is to be a party.
"Material Contract" means, with respect to any Person, each contract
to which such Person is a party involving aggregate consideration payable
to or by such Person of $2 million or more in any year or otherwise
material to the business, condition (financial or otherwise), operations,
performance or properties of such Person.
"Mortgage Policies" has the meaning specified in Section 5.01(q)(B).
"Mortgages" has the meaning specified in Section 5.01(q).
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset or the incurrence or issuance of any Debt
or the sale or issuance of any Equity Interests (including, without
limitation, any capital contribution) by any Person, or any Extraordinary
Receipt received by or paid to or for the account of any Person, the
aggregate amount of cash received from time to time (whether as initial
consideration or through payment or disposition of deferred consideration)
by or on
20
<PAGE>
behalf of such Person in connection with such transaction after deducting
therefrom only (without duplication) (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees, finder's fees and
other similar fees and commissions, (b) the amount of taxes payable in
connection with or as a result of such transaction and (c) the amount of
any Debt secured by a Lien on such asset that, by the terms of the
agreement or instrument governing such Debt, is required to be repaid upon
such disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are, at the time of receipt of such cash, actually
paid to a Person that is not an Affiliate of such Person or any Loan Party
or any Affiliate of any Loan Party and are properly attributable to such
transaction or to the asset that is the subject thereof; provided, however,
that in the case of taxes that are deductible under clause (b) above but
for the fact that, at the time of receipt of such cash, such taxes have not
been actually paid or are not then payable, such Loan Party or such
Subsidiary may deduct an amount (the "Reserved Amount") equal to the amount
reserved in accordance with GAAP for such Loan Party's or such Subsidiary's
reasonable estimate of such taxes, other than taxes for which such Loan
Party or such Subsidiary is indemnified; provided further, however, that,
at the time such taxes are paid, an amount equal to the amount, if any, by
which the Reserved Amount for such taxes exceeds the amount of such taxes
actually paid shall constitute "Net Cash Proceeds" of the type for which
such taxes were reserved for all purposes hereunder; provided further that
Net Cash Proceeds shall not include any such cash receipts to the extent
such cash receipts are reinvested in the business of the Borrower and its
Subsidiaries within 12 months following the date of receipt.
"Net Income" means, for any period, net income or loss of the Borrower
and the 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 Borrower or any of
the Subsidiaries or any director holding qualifying shares in compliance
with applicable law) has a joint interest, except to the extent of the
amount of dividends or other distributions (i) that the Borrower or any of
the Subsidiaries has the power to cause such Person to make to the Borrower
or any Subsidiary during such period and such dividend or other
distribution is not prohibited by the terms of any agreement binding upon
such Person or otherwise or (ii) that, to the extent not already included
in Consolidated Net Income for any period pursuant to clause (i) above,
were actually paid to the Borrower or any of the Subsidiaries by such
Person during such period, (b) any after tax gains or losses attributable
to sales of assets out of the ordinary course of business and (c) (to the
extent not included in clause (a) or (b) above) any extraordinary gains or
extraordinary losses.
"Note" means a Tranche A Term Note, a Tranche B Term Note, a Tranche C
Term Note or a Working Capital Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Renewal" has the meaning specified in Section 2.01(e).
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<PAGE>
"Notice of Termination" has the meaning specified in Section 2.01(e).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the generality
of the foregoing, the Obligations of any Loan Party under the Loan
Documents include (a) the obligation to pay principal, interest, Letter of
Credit commissions, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by such Loan Party
under any Loan Document and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender
Party, in its sole discretion (after demand has been made upon the
Borrower), may elect to pay or advance on behalf of such Loan Party.
"Open Year" has the meaning specified in Section 4.01(r)(iii).
"Other Taxes" has the meaning specified in Section 2.12(b).
"Patronage Capital Distributions" shall mean distributions under
Section 1388 of the Internal Revenue Code of 1986, as amended, including
any comparable successor provision, with respect to the Borrower's
patronage of RTFC.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b); (b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations that are not
overdue for a period of more than 60 days; (c) pledges or deposits to
secure obligations under workers' compensation laws or similar legislation
or to secure public or statutory obligations; (d) Liens incurred or
deposits made to secure the performance of tenders, bids, leases, statutory
or regulatory obligations, bankers' acceptances, surety and appeal
obligations of a similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (e) leases or
subleases granted to others that do not materially interfere with the
ordinary course of business of the Borrower and its Subsidiaries, taken as
a whole; (f) Liens arising from filing Uniform Commercial Code financing
statements regarding leases not prohibited hereunder; (g) Liens in favor of
customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods; and
(h) easements, rights of way and other encumbrances on title to real
property that do not render title to the
22
<PAGE>
property encumbered thereby unmarketable or materially adversely affect the
use of such property for its present purposes.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Debt" has the meaning specified in the Security Agreement.
"Post Petition Interest" has the meaning specified in Section 8.06.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"Pro Rata Share" of any amount means, with respect to any Working
Capital Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Working Capital
Commitment at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, such Lender's Working Capital Commitment
as in effect immediately prior to such termination) and the denominator of
which is the Working Capital Facility at such time (or, if the Commitments
shall have been terminated pursuant to Section 2.05 or 6.01, the Working
Capital Facility as in effect immediately prior to such termination).
"R&B" means R&B Communications Inc.
"R&B Acquisition Date" means the date upon which the Borrower,
directly or indirectly, shall have acquired all of the stock of R&B.
"Recapitalization" has the meaning specified in the Preliminary
Statements.
"Redeemable" means any Equity Interest, Debt, right or Obligation that
(a) the issuer thereof has undertaken to redeem at a fixed or determinable
date or dates, whether by operation of a sinking fund or otherwise, or upon
the occurrence of a condition not solely within the control of such issuer
or (b) is redeemable at the option of the holder.
"Reduction Amount" has the meaning specified in Section 2.06(b)(vi).
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
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<PAGE>
"Related Business" means any business related to, or complementary to,
the ownership, development, operation or acquisition of communications
systems or the provision of communications services, in each case as
determined by the Board of Directors.
"Related Documents" means any intercompany notes issued pursuant to
Section 5.02(b), the Alliance Notes, the documents relating to Equity
Contribution, the Exchange Agreement and, the Stockholders Agreement.
"Required Lenders" means, (x) at any time that Rural Telephone Finance
Cooperative does not own or hold a majority in interest of the Aggregate
Credit Exposure, Lenders owed or holding at least a majority in interest of
the Aggregate Credit Exposure and (y) at any other time, either (1) Rural
Telephone Finance Cooperative and other Lenders owning or at least holding
33 ?% of the Aggregate Credit Exposure or (2) other Lenders owning or
holding at least 66 ?% of the Aggregate Credit Exposure (without taking
into account the credit exposure of RTFC); provided, however, that if any
Lender shall be a Defaulting Lender at such time, there shall be excluded
from the determination of Required Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as a
Lender) and outstanding at such time, (B) such Lender's Pro Rata Share of
the aggregate Available Amount of all Letters of Credit outstanding at such
time, (C) the aggregate Unused Tranche A Term Commitment of such Lender at
such time and (D) the Unused Working Capital Commitment of such Lender at
such time. For purposes of this definition, the aggregate principal amount
of Letter of Credit Advances owing to the Issuing Bank and the Available
Amount of each Letter of Credit shall be considered to be owed to the
Working Capital Lenders ratably in accordance with their respective Working
Capital Commitments.
"Responsible Officer" means any executive officer of the Borrower.
"RTFC" shall mean Rural Telephone Finance Cooperative, a South Dakota
cooperative association.
"RTFC Certificate" shall mean a non-interest bearing, non-amortizing
subordinated capital certificate representing an investment in RTFC to be
purchased by the Borrower at the time of any Tranche C Advance by RTFC.
"Secured Hedge Agreement" means any Hedge Agreement required or
permitted under Article V that is entered into by and between the Borrower
and any Hedge Bank.
"Secured Obligations" has the meaning specified in the Security
Agreement.
"Secured Parties" means the Agents, the Lender Parties and the Hedge
Banks.
"Security Agreement" has the meaning specified in Section 3.01(a)(ii).
"Seller" has the meaning specified in the Preliminary Statement.
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<PAGE>
"Senior Leverage Ratio" means, at any time, the ratio of Consolidated
Debt for Borrowed Money of the Financial Covenants Parties (without
duplication) (other than Subordinated Debt) as of the end of the most
recently completed fiscal quarter of the Borrower for which financial
statements are required to be delivered to the Lender Parties pursuant to
Section 5.03(b) or (c), as the case may be, to Consolidated EBITDA of the
Financial Covenants Parties (without duplication) for the four fiscal
quarter period ending at the end of such fiscal quarter.
"Senior Note Documents" means the Senior Note Purchase Agreement and
all other agreements, indentures and instruments pursuant to which the
Senior Notes are issued.
"Senior Note Purchase Agreement" means the Senior Note Purchase
Agreement dated July 21, 2000 between the Borrower and MS&Co. pursuant to
which the Senior Notes are issued, as amended, to the extent permitted
under the Loan Documents.
"Senior Notes" means the unsecured senior notes of the Borrower in an
aggregate principal amount of $280 million (or, if the Subordinated Notes
are not issued, $375 million) issued by the Borrower pursuant to the Senior
Note Purchase Agreement.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which
any Loan Party or any ERISA Affiliate could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
"Solvent" and (with corollary meaning) "Solvency" mean, with respect
to any Person on a particular date, that on such date (a) the fair value of
the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured,
(c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay such debts
and liabilities as they mature and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
"Stockholders Agreement" means the Stockholders Agreement dated as of
July 11, 2000 among the Borrower and WCA&S, as amended to the extent
permitted under the Loan Documents.
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<PAGE>
"Strategic Telecommunications Investment" means the acquisition by the
Borrower or any of its Subsidiaries of 50% or less of the Equity Interests
in a Related Business (1) over which the Borrower or its Subsidiaries
exerts significant operational or managerial control or influence, (2) of
which the Borrower or its Subsidiaries are direct beneficiaries of services
provided by such Related Business or (3) operating as a joint venture,
consortium or unincorporated association.
"Subscribers" means as of any date, all customers then receiving
Wireless Services from one or more of the Financial Covenants Parties
(without duplication), none of the Subscriber payments (other than those
disputed in good faith by such customer) of which are, as of such date,
past due for more than 60 days.
"Subordinated Debt" means the Subordinated Notes and any other Debt of
the Borrower that is subordinated to the Obligations of the Borrower under
the Loan Documents on, and that otherwise contains, terms and conditions
satisfactory to the Required Lenders.
"Subordinated Debt Documents" means the Subordinated Note Purchase
Agreement and all other agreements, indentures and instruments pursuant to
which Subordinated Debt is issued.
"Subordinated Note Purchase Agreement" means the Note Purchase
Agreement dated July 21, 2000 between the Borrower and WCA&S, pursuant to
which the Subordinated Notes are issued, as amended, to the extent
permitted under the Loan Documents.
"Subordinated Notes" means the subordinated notes of the Borrower in
an aggregate principal amount of $95 million issued pursuant to the
Subordinated Note Purchase Agreement.
"Subordinated Obligations" has the meaning specified in Section 8.06.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such partnership, joint venture or limited liability company or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Subsidiary Guarantors" means the Subsidiaries of the Borrower listed
on Schedule II hereto and each other Subsidiary of the Borrower that shall
be required to execute and deliver a guaranty pursuant to Section 5.01(j).
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<PAGE>
"Subsidiary Guaranty" means the guaranty made by the Subsidiary
Guarantors pursuant to Article VIII.
"Surviving Debt" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before and after giving effect to the transactions
contemplated by the Transaction Documents.
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Syndication Date" means the earlier to occur of (a) the 30th day
following the date hereof and (b) the date upon which the Lead Arranger has
determined in its sole discretion (and has so notified the Borrower) that
the primary syndication of the Facilities has been completed.
"System" means, as to any Person, assets constituting a radio
communications system authorized under the rules for wireless
communications service (including any license and the network, marketing,
distribution, sales, customer interface and operations functions relating
thereto) owned and operated by such Person.
"Tax Certificate" has the meaning specified in Section 5.03(j).
"Taxes" has the meaning specified in Section 2.12(a).
"Term Advance" means a Tranche A Term Advance, a Tranche B Term
Advance or a Tranche C Term Advance.
"Term Borrowing" means Tranche A Term Borrowing, Tranche B Term
Borrowing or a Tranche C Term Borrowing.
"Term Commitment" means a Tranche A Term Commitment, a Tranche B Term
Commitment or a Tranche C Term Commitment.
"Term Facilities" means the Tranche A Term Facility, the Tranche B
Term Facility and the Tranche C Term Facility.
"Term Lenders" means the Tranche A Term Lenders, the Tranche B Term
Lenders and the Tranche C Term Lenders.
"Term Notes" means the Tranche A Term Notes, the Tranche B Term Notes
and the Tranche C Term Notes.
"Termination Date" means the date of termination in whole of the
working Capital Commitments, the Letter of Credit Commitment and the Term
Commitments pursuant to Section 2.05 or 6.01.
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<PAGE>
"Total Capital" means, at any time, the sum of (a) Total Debt of the
Borrower and its Subsidiaries outstanding on such date plus (b)
stockholder's equity in the Borrower on such date (as determined in
accordance with GAAP).
"Total Debt" means, at any time, all Debt of the Borrower and its
Subsidiaries as determined on a Consolidated basis.
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of
Inventory to the Borrower or any of its Subsidiaries to effect payment for
such Inventory.
"Tranche A Reduction Amount" has the meaning specified in Section
2.06(b)(ix).
"Tranche A Term Advance" has the meaning specified in Section 2.01(a).
"Tranche A Term Borrowing" means a borrowing consisting of
simultaneous Tranche A Term Advances of the same Type made by the Tranche A
Term Lenders.
"Tranche A Term Commitment" means, with respect to any Tranche A Term
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Tranche A Term Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances, the
aggregate amount set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(d) as such Lender's
"Tranche A Term Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Tranche A Term Facility" means, at any time, the aggregate amount of
the Tranche A Term Lenders' Tranche A Term Commitments at such time.
"Tranche A Term Lender" means any Lender that has a Tranche A Term
Commitment.
"Tranche A Term Note" means a promissory note of the Borrower payable
to the order of any Tranche A Term Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from the Tranche A Term Advances made by such Lender, as
amended.
"Tranche A Termination Date" means the earlier of (a) July 25, 2007
and (b) the termination in whole of the Tranche A Term Commitments pursuant
to Section 2.05 or 6.01.
"Tranche B Term Advance" has the meaning specified in Section 2.01(b).
"Tranche B Term Borrowing" means a borrowing consisting of
simultaneous Tranche B Term Advances of the same Type made by the Tranche B
Term Lenders.
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<PAGE>
"Tranche B Term Commitment" means, with respect to any Tranche B Term
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Tranche B Term Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances, the
aggregate amount set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(d) as such Lender's
"Tranche B Term Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Tranche B Term Facility" means, at any time, the aggregate amount of
the Tranche B Term Lenders' Tranche B Term Commitments at such time.
"Tranche B Term Lender" means any Lender that has a Tranche B Term
Commitment.
"Tranche B Term Note" means a promissory note of the Borrower payable
to the order of any Tranche B Term Lender, in substantially the form of
Exhibit A-3 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from the Tranche B Term Advance made by such Lender, as
amended.
"Tranche B Termination Date" means, for the Tranche B Term Facility,
the earlier of (a) July 25, 2008 and (b) the termination in whole of the
Tranche B Term Commitments pursuant to Section 2.05 or 6.01.
"Tranche C Term Advance" has the meaning specified in Section 2.01(c).
"Tranche C Term Borrowing" means a borrowing consisting of
simultaneous Tranche C Term Advances of the same Type made by the Tranche C
Term Lenders.
"Tranche C Term Commitment" means, with respect to any Tranche C Term
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Tranche C Term Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances, the
aggregate amount set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(d) as such Lender's
"Tranche C Term Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Tranche C Term Facility" means, at any time, the aggregate amount of
the Tranche C Term Lenders' Tranche C Term Commitments at such time.
"Tranche C Term Lender" means any Lender that has a Tranche C Term
Commitment.
"Tranche C Term Note" means a promissory note of the Borrower payable
to the order of any Tranche C Term Lender, in substantially the form of
Exhibit A-4 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from the Tranche C Term Advance made by such Lender, as
amended.
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"Tranche C Termination Date" means, for the Tranche C Term Facility,
the earlier of (a) July 25, 2008 and (b) the termination in whole of the
Tranche B Term Commitments pursuant to Section 2.05 or 6.01.
"Transaction" means the Exchange, the Recapitalization and the other
transactions contemplated by the Transaction Documents.
"Transaction Documents" means, collectively, the Loan Documents and
the Related Documents.
"Transition Date" means December 31, 2002.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Tranche A Term Commitment" means, with respect to any Tranche
A Term Lender at any time, (a) such Lender's Tranche A Term Commitment at
such time minus (b) the aggregate principal amount of all Tranche A Term
Advances made by such Lender.
"Unused Tranche C Term Commitment" means, with respect to any Tranche
C Lender, at any time (a) such Lender's Tranche C Commitment at such time
minus (b) the aggregate amount of all Tranche C Term Advances made by such
Lender.
"Unused Working Capital Commitment" means, with respect to any Working
Capital Lender at any time, (a) such Lender's Working Capital Commitment at
such time minus (b) the sum of (i) the aggregate principal amount of all
Working Capital Advances and Letter of Credit Advances made by such Lender
(in its capacity as a Lender) and outstanding at such time plus (ii) such
Lender's Pro Rata Share of (A) the aggregate Available Amount of all
Letters of Credit outstanding at such time and (B) the aggregate principal
amount of all Letter of Credit Advances made by the Issuing Bank pursuant
to Section 2.03(c) and outstanding at such time.
"VA Alliance" has the meaning specified in the Preliminary Statements.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
"WCA&S" means Welsh, Carson, Anderson & Stowe and its Affiliates.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could have liability.
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<PAGE>
"Wireless Services" means broadband personal communications services
or cellular services provided in one or more Systems.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
"Working Capital Advance" has the meaning specified in Section
2.01(d).
"Working Capital Borrowing" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the Working
Capital Lenders.
"Working Capital Commitment" means, with respect to any Working
Capital Lender at any time, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Working Capital Commitment"
or, if such Lender has entered into one or more Assignment and Acceptances,
set forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Working Capital
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Working Capital Facility" means, at any time, the aggregate amount of
the Working Capital Lenders' Working Capital Commitments at such time.
"Working Capital Lender" means any Lender that has a Working Capital
Commitment.
"Working Capital Note" means a promissory note of the Borrower payable
to the order of any Working Capital Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the Borrower
to such Lender resulting from the Working Capital Advances made by such
Lender, as amended.
"Working Capital Termination Date" means, for the Working Capital
Facility and the Letter of Credit Facility, the earlier of (a) July 25,
2007 and (b) the termination in whole of the Working Capital Commitments
and the Letter of Credit Commitments pursuant to Sections 2.05 or 6.01.
"WV Alliance" has the meaning specified in the Preliminary Statements.
Computation of Time Periods; Other Definitional Provisions. In this
----------------------------------------------------------
Agreement and the other Loan Documents in the computation of periods of time
from a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding".
References in the Loan Documents to any agreement or contract "as amended" shall
mean and be a reference to such agreement or contract as amended, amended and
restated, supplemented or otherwise modified from time to time in accordance
with its terms.
Accounting Terms. All accounting terms not specifically defined herein
----------------
shall be construed in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the financial statements
referred to in Section 4.01(g) ("GAAP").
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
The Advances and the Letters of Credit.
--------------------------------------
(a) The Tranche A Term Advances. Each Tranche A Term Lender severally
---------------------------
agrees, on the terms and conditions hereinafter set forth, to make advances
(each a "Tranche A Term Advance") to the Borrower from time to time on any
Business Day during the period from the date hereof until July 25, 2001 in an
amount for each such Advance not to exceed such Lender's Unused Tranche A Term
Commitment at such time. Each Tranche A Term Borrowing shall be in an aggregate
amount of $10 million or an integral multiple of $5 million in excess thereof
(or, if less, the entire remaining Tranche A Term Commitments) and shall consist
of Tranche A Term Advances made simultaneously by the Tranche A Term Lenders
ratably according to their Tranche A Term Commitments. Amounts borrowed under
this Section 2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Tranche B Term Advances. Each Tranche B Term Lender severally
---------------------------
agrees, on the terms and conditions hereinafter set forth, to make a single
advance (a "Tranche B Term Advance") to the Borrower on the Effective Date in an
amount not to exceed such Lender's Tranche B Term Commitment at such time. The
Tranche B Term Borrowing shall consist of Tranche B Term Advances made
simultaneously by the Tranche B Term Lenders ratably according to their Tranche
B Term Commitments. Amounts borrowed under this Section 2.01(b) and repaid or
prepaid may not be reborrowed.
(c) The Tranche C Term Advances. Each Tranche C Term Lender severally
---------------------------
agrees, on the terms and conditions hereinafter set forth, to make advances
(each a "Tranche C Term Advance") to the Borrower; provided that the first
Tranche C Term Borrowing shall be on the Effective Date in an amount equal to
$50,000,000 and the other Tranche C Term Borrowings shall occur on any Business
Day during the period from the Effective Date through the date that is six
months after the Effective Date in an amount not to exceed the aggregate Unused
Tranche C Term Commitments at such time. Each Tranche C Term Borrowing shall be
in an aggregate amount of $5 million or an integral multiple of $5 million in
excess thereof and shall consist of Tranche C Term Advances made simultaneously
by the Tranche C Term Lenders ratably according to their Tranche C Term
Commitments. Amounts borrowed under this Section 2.01(c) and repaid or prepaid
may not be reborrowed.
(d) The Working Capital Advances. Each Working Capital Lender
----------------------------
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Working Capital Advance") to the Borrower from time to time on
any Business Day during the period from the date hereof until the Working
Capital Termination Date in an amount for each such Advance not to exceed such
Lender's Unused Working Capital Commitment at such time. Each Working Capital
Borrowing shall be in an aggregate amount of $3 million or an integral multiple
of $1 million in excess thereof (other than a Borrowing the proceeds of which
shall be used solely to repay or prepay in full outstanding Letter of Credit
Advances) and shall consist of
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Working Capital Advances made simultaneously by the Working Capital Lenders
ratably according to their Working Capital Commitments. Within the limits of
each Working Capital Lender's Unused Working Capital Commitment in effect from
time to time, the Borrower may borrow under this Section 2.01(d), prepay
pursuant to Section 2.06(a) and reborrow under this Section 2.01(d).
(e) Letters of Credit. The Issuing Bank agrees, on the terms and
-----------------
conditions hereinafter set forth, to issue letters of credit (the "Letters of
Credit") for the account of the Borrower from time to time on any Business Day
during the period from the date hereof until 30 days before the Working Capital
Termination Date in an aggregate Available Amount (i) for all Letters of Credit
not to exceed at any time the lesser of (x) the Letter of Credit Facility at
such time and (y) the Issuing Bank's Letter of Credit Commitment at such time
and (ii) for each such Letter of Credit not to exceed an amount equal to the
Unused Working Capital Commitments of the Working Capital Lenders at such time.
No Letter of Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the earlier of 15
days before the Working Capital Termination Date and (A) in the case of a
Standby Letter of Credit one year after the date of issuance thereof, but may by
its terms be renewable annually upon notice (a "Notice of Renewal") given to the
Issuing Bank and the Administrative Agent on or prior to any date for notice of
renewal set forth in such Letter of Credit but in any event at least three
Business Days prior to the date of the proposed renewal of such Standby Letter
of Credit and upon fulfillment of the applicable conditions set forth in Article
III unless the Issuing Bank has notified the Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of termination set
forth in such Letter of Credit but in any event at least 30 Business Days prior
to the date of automatic renewal of its election not to renew such Standby
Letter of Credit (a "Notice of Termination") and (B) in the case of a Trade
Letter of Credit, 180 days after the date of issuance thereof; provided that the
terms of each Standby Letter of Credit that is automatically renewable annually
shall (x) require the Issuing Bank that issued such Standby Letter of Credit to
give the beneficiary named in such Standby Letter of Credit notice of any Notice
of Termination, (y) permit such beneficiary, upon receipt of such notice, to
draw under such Standby Letter of Credit prior to the date such Standby Letter
of Credit otherwise would have been automatically renewed and (z) not permit the
expiration date (after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date later than 15 days before the
Working Capital Termination Date. If either a Notice of Renewal is not given by
the Borrower or a Notice of Termination is given by the Issuing Bank pursuant to
the immediately preceding sentence, such Standby Letter of Credit shall expire
on the date on which it otherwise would have been automatically renewed. Within
the limits of the Letter of Credit Facility, and subject to the limits referred
to above, the Borrower may request the issuance of Letters of Credit under this
Section 2.01(e), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.03(c) and request the issuance of additional
Letters of Credit under this Section 2.01(e).
Making the Advances. Except as otherwise provided in Section 2.03, each
-------------------
Borrowing shall be made on notice, given not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed Borrowing
in the case of a Borrowing consisting of Eurodollar Rate Advances, or the first
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Base Rate Advances, by the Borrower to the
Administrative Agent, which shall give to each Appropriate Lender prompt notice
thereof by
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telex or telecopier. Each such notice of a Borrowing (a "Notice of Borrowing")
shall be by telephone, confirmed immediately in writing, or telex or telecopier,
in substantially the form of Exhibit B hereto, specifying therein the requested
(i) date of such Borrowing, (ii) Facility under which such Borrowing is to be
made, (iii) Type of Advances comprising such Borrowing, (iv) aggregate amount of
such Borrowing and (v) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for such Advances. Each Appropriate Lender
shall, before 11:00 A.M. (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower by
crediting the Borrower's Account; provided, however, that, in the case of any
Working Capital Borrowing, the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Letter of Credit
Advances made by the Issuing Bank, as the case may be, and by any other Working
Capital Lender and outstanding on the date of such Working Capital Borrowing,
plus interest accrued and unpaid thereon to and as of such date, available to
the Issuing Bank, as the case may be, and such other Working Capital Lenders for
repayment of such Letter of Credit Advances.
(a) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances if the aggregate amount
of such Borrowing is less than $3 million or if the obligation of the
Appropriate Lenders to make Eurodollar Rate Advances shall then be suspended
pursuant to Section 2.09 or 2.10 and (ii) the Term Advances may not be
outstanding as part of more than in the aggregate 12 separate Borrowings and the
Working Capital Advances may not be outstanding as part of more than 6 separate
Borrowings.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Appropriate Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(c) Unless the Administrative Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to
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repay or pay to the Administrative Agent forthwith on demand such corresponding
amount and to pay interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid or paid to
the Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender's Advance as part of such Borrowing for all
purposes.
(d) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
Issuance of and Drawings and Reimbursement Under Letters of Credit. (a)
------------------------------------------------------------------
Request for Issuance. Each Letter of Credit shall be issued upon notice, given
--------------------
not later than 11:00 A.M. (New York City time) on the fifth Business Day prior
to the date of the proposed issuance of such Letter of Credit, by the Borrower
to the Issuing Bank, which shall give to the Administrative Agent and each
Working Capital Lender prompt notice thereof by telex or telecopier. Each such
notice of issuance of a Letter of Credit (a "Notice of Issuance") shall be by
telephone, confirmed immediately in writing, or telex or telecopier, specifying
therein the requested (A) date of such issuance (which shall be a Business Day),
(B) Available Amount of such Letter of Credit, (C) expiration date of such
Letter of Credit, (D) name and address of the beneficiary of such Letter of
Credit and (E) form of such Letter of Credit, and shall be accompanied by such
application and agreement for letter of credit as the Issuing Bank may specify
to the Borrower for use in connection with such requested Letter of Credit (a
"Letter of Credit Agreement"). If (x) the requested form of such Letter of
Credit is acceptable to the Issuing Bank in its sole discretion and (y) it has
not received notice of objection to such issuance from Lenders holding at least
a majority of the Working Capital Commitments, the Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make such
Letter of Credit available to the Borrower at its office referred to in Section
9.02 or as otherwise agreed with the Borrower in connection with such issuance.
In the event and to the extent that the provisions of any Letter of Credit
Agreement shall conflict with this Agreement, the provisions of this Agreement
shall govern.
(a) Letter of Credit Reports. The Issuing Bank shall furnish (A) to
------------------------
the Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued by the
Issuing Bank during the previous week and drawings during such week under all
Letters of Credit issued by such Issuing Bank, (B) to each Working Capital
Lender on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit issued by the Issuing Bank
during the preceding month and drawings during such month under all Letters of
Credit issued by the Issuing Bank and (C) to the Administrative Agent and each
Working Capital Lender on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by the Issuing
Bank.
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<PAGE>
(b) Drawing and Reimbursement. The payment by the Issuing Bank of a
-------------------------
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft. Upon written demand
by the Issuing Bank with an outstanding Letter of Credit Advance, with a copy of
such demand to the Administrative Agent, each Working Capital Lender shall
purchase from the Issuing Bank, and the Issuing Bank shall sell and assign to
each such Working Capital Lender, such Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such purchase, by making
available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Issuing Bank, by deposit to the Administrative
Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Letter of Credit Advance to be purchased by
such Lender. Promptly after receipt thereof, the Administrative Agent shall
transfer such funds to the Issuing Bank. The Borrower hereby agrees to each such
sale and assignment. Each Working Capital Lender agrees to purchase its Pro Rata
Share of an outstanding Letter of Credit Advance on (i) the Business Day on
which demand therefor is made by the Issuing Bank which made such Advance,
provided that notice of such demand is given not later than 11:00 A.M. (New York
City time) on such Business Day, or (ii) the first Business Day next succeeding
such demand if notice of such demand is given after such time. Upon any such
assignment by the Issuing Bank to any Working Capital Lender of a portion of a
Letter of Credit Advance, the Issuing Bank represents and warrants to such other
Lender that the Issuing Bank is the legal and beneficial owner of such interest
being assigned by it, free and clear of any liens, but makes no other
representation or warranty and assumes no responsibility with respect to such
Letter of Credit Advance, the Loan Documents or any Loan Party. If and to the
extent that any Working Capital Lender shall not have so made the amount of such
Letter of Credit Advance available to the Administrative Agent, such Working
Capital Lender agrees to pay to the Administrative Agent forthwith on demand
such amount together with interest thereon, for each day from the date of demand
by the Issuing Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate for its account or the account of the Issuing
Bank, as applicable. If such Lender shall pay to the Administrative Agent such
amount for the account of the Issuing Bank on any Business Day, such amount so
paid in respect of principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Letter of Credit Advance made by the Issuing
Bank shall be reduced by such amount on such Business Day.
(c) Failure to Make Letter of Credit Advances. The failure of any
-----------------------------------------
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
Repayment of Advances. Tranche A Term Advances. On the last Business Day of
--------------------- -----------------------
each calendar quarter (commencing on September 30, 2003) for the Loan Years
specified below, the Borrower shall repay to the Administrative Agent for the
ratable account of the Tranche A Term Lenders equal quarterly amounts for each
such Loan Year such that the aggregate outstanding principal amount of the
Tranche A Term Advances is paid for each Loan Year as set forth below:
36
<PAGE>
Loan Year Amount
--------- ------
4 $ 5,000,000
5 $10,000,000
6 $15,000,000
7 $20,000,000
provided, however, that the final principal installment shall be repaid on the
Tranche A Termination Date and in any event shall be in an amount equal to the
aggregate principal amount of the Tranche A Term Advances outstanding on such
date.
(a) Tranche B Term Advances. On the last Business Day of each
-----------------------
calendar quarter beginning in the third Loan Year, the Borrower shall repay to
the Administrative Agent for the ratable account of the Tranche B Term Lenders
an amount such that the aggregate outstanding principal amount of the Tranche B
Term Advances is reduced by 1% for each such Loan Year, provided, however, that
the final principal installment shall be repaid on the Tranche B Termination
Date and in any event shall be in an amount equal to the aggregate principal
amount of the Tranche B Term Advances outstanding on such date.
(b) Tranche C Term Advances. The Borrower shall repay to the
-----------------------
Administrative Agent for the ratable account of the Tranche C Term Lenders on
the Tranche C Term Termination Date the aggregate principal amount of the
Tranche C Term Advances then outstanding.
(c) Working Capital Advances. The Borrower shall repay to the
------------------------
Administrative Agent for the ratable account of the Working Capital Lenders on
the Working Capital Termination Date the aggregate principal amount of the
Working Capital Advances then outstanding.
(d) Letter of Credit Advances. The Borrower shall repay to the
-------------------------
Administrative Agent for the account of the Issuing Bank and each other Working
Capital Lender that has made a Letter of Credit Advance on the earlier of the
7th day after the date on which such Advance was made and the Working Capital
Termination Date the outstanding principal amount of each Letter of Credit
Advance made by each of them.
(i) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances (it being understood
that any such payment by the Borrower is without prejudice to, and does not
constitute a waiver of, any rights the Borrower might have or might acquire as a
result of the payment by the Issuing Bank of any draft or the reimbursement by
the Borrower thereof):
(A) any lack of validity or enforceability of any Loan Document,
any Letter of Credit Agreement, any Letter of Credit or any other
agreement or
37
<PAGE>
instrument relating thereto (all of the foregoing being, collectively,
the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver
of or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any statement or any other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent
to departure from the Guaranties or any other guarantee, for all or
any of the Obligations of the Borrower in respect of the L/C Related
Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation,
any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or a guarantor.
Termination or Reduction of the Commitments. Optional. The Borrower may,
------------------------------------------- --------
upon at least five Business Days' notice to the Administrative Agent, terminate
in whole or reduce in part the unused portions of the Term Commitments and the
Letter of Credit Facility and the Unused Working Capital Commitments; provided,
however, that each partial reduction of a Facility (i) shall be in an aggregate
amount of $10 million or an integral multiple of $1 million in excess thereof
(or any lesser amount equal to the remaining unused portion of the Term
Commitments and the Letter of Credit Facility and the Unused Working Capital
Commitments, as the case may be) and (ii) shall be made ratably among the
Appropriate Lenders in accordance with their Commitments with respect to such
Facility.
(a) Mandatory. The Tranche A Term facility shall be automatically
---------
and permanently reduced, on a pro rata basis, on each date on which prepayment
thereof is required to be made pursuant to Section 2.06(b)(i) or (ii) in an
amount equal to the applicable Tranche A Reduction Amount, provided that each
such reduction shall be made ratably among the Tranche A Term Lenders in
accordance with their Tranche A Term Commitments.
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<PAGE>
(i) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Working Capital Facility by
the amount, if any, by which the amount of the Letter of Credit Facility exceeds
the Working Capital Facility after giving effect to such reduction of the
Working Capital Facility.
(ii) The Working Capital Facility shall be automatically and
permanently reduced, on a pro rata basis, on each date on which prepayment
thereof is required to be made pursuant to Section 2.06(b)(i) or (ii) in an
amount equal to the applicable Reduction Amount, provided that each such
reduction of the Working Capital Facility shall be made ratably among the
Working Capital Lenders in accordance with their Working Capital Commitments.
Prepayments. Optional. The Borrower may, upon at least one Business Day's
----------- --------
notice in the case of Base Rate Advances and three Business Days' notice in the
case of Eurodollar Rate Advances, in each case to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding aggregate
principal amount of the Advances comprising part of the same Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the aggregate principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of
$2,000,000 or an integral multiple of $500,000 in excess thereof and (y) if any
prepayment of a Eurodollar Rate Advance is made on a date other than the last
day of an Interest Period for such Advance, the Borrower shall also pay any
amounts owing pursuant to Section 9.04(c). Each such prepayment of any Term
Advances shall be applied ratably to the installments; provided further that (i)
on or before the first anniversary of the Effective Date, any prepayment of Term
B Advances pursuant to this Section 2.06(a) shall be made at 102% of par, (ii)
on or before the second anniversary of the Term B Facility, any prepayment of
Term B Advances pursuant to this Section 2.06(a) shall be made at 101% of par
and (iii) thereafter, any prepayment of Term B Advances shall be made at par.
(a) Mandatory. The Borrower shall, on the 90th day following the
---------
end of each Fiscal Year commencing with the fiscal year ending December 31,
2002, prepay an aggregate principal amount of the Advances comprising part of
the same Borrowings and deposit an amount in the L/C Cash Collateral Account in
an aggregate amount equal to 50% of Excess Cash Flow for such Fiscal Year. Each
such prepayment shall be applied ratably first to each of the Term Facilities on
a pro rata basis and to the installments thereof pro rata (provided that any
such prepayments of the Tranche A Term Facility shall be as set forth in clause
(vi) below) and second to the Working Capital Facility as set forth in clause
(v) below; provided, however, that any such Tranche B Term Lender or Tranche C
Term Lender, as the case may be, may, to the extent that there are Tranche A
Term Advances outstanding and Unused Tranche A Term Commitments elect to refuse
such prepayment and such prepayment shall be applied to the Tranche A Term
Facility as set forth above.
(i) The Borrower shall, on the date of receipt of the Net Cash
Proceeds by the Borrower or any of its Subsidiaries from (A) the sale, lease,
transfer or other disposition of any assets of the Borrower or any of its
Subsidiaries (other than any sale, lease, transfer or other disposition of
assets pursuant to clause (i) or (ii) of Section 5.02(e)) and (B) any
Extraordinary Receipt received by or paid to or for the account of the Borrower
or any of its Subsidiaries and not otherwise included in clause (A) or (B)
above, prepay an aggregate principal
39
<PAGE>
amount of the Advances comprising part of the same Borrowings in an amount equal
to the amount of such Net Cash Proceeds. Each such prepayment shall be applied
ratably first to each of the Term Facilities on a pro rata basis and to the
installments thereof pro rata and (provided that any such prepayments of the
Tranche A Term Facility shall be as set forth in clause (ix) below), and second
to the Working Capital Facility as set forth in clause (vi) below, provided,
however, that any such Tranche B Term Lender or Tranche C Term Lender may, to
the extent that there are Tranche A Term Advances outstanding and Unused Tranche
A Term Commitments elect to refuse such prepayment and such prepayment shall be
applied to the Tranche A Term Facility as set forth above.
(ii) The Borrower shall, on the date of receipt of the Net Cash
Proceeds by the Borrower or any of its Subsidiaries from (A) the issuance after
the Effective Date by the Borrower or any of its Subsidiaries of any Equity
Interests, (including, without limitation, receipt of any capital contribution)
or (B) the incurrence or issuance after the Effective Date by the Borrower or
any of its Subsidiaries of any Debt (other than Debt incurred or issued pursuant
to Section 5.02(b)) prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings in an amount equal to (A) if the Leverage
Ratio at such time is greater than 10.0: 1.0, 75% of such Net Cash Proceeds (B)
if the Leverage Ratio at such time is greater than 6.0:1.0 but is less than or
equal to 10.0:1.0, 50% of such Net Cash Proceeds, (C) if the Leverage Ratio is
greater than 4.0:1.0 but less than or equal to 6.0:1.0, 25% of such Net Cash
Proceeds and (D) at any other time, 0% of such Net Cash Proceeds. Each such
prepayment shall be applied ratably first to each of the Term Facilities on a
pro rata basis and to the installments thereof pro rata and (provided that any
such prepayments of the Tranche A Term Facility shall be as set forth in clause
(ix) below), and second to the Working Capital Facility as set forth in clause
(vi) below, provided, however, that any such Tranche B Term Lender or Tranche C
Term Lender, as the case may be, may, to the extent that there are Tranche A
Term Advances outstanding and Unused Tranche A Term Commitments elect to refuse
such prepayment and such prepayment shall be applied to the Tranche A Term
Facility as set forth above.
(iii) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Working Capital Advances comprising part of the same
Borrowings, the Letter of Credit Advances and deposit an amount in the L/C Cash
Collateral Account in an aggregate amount equal to the amount by which (A) the
sum of the aggregate principal amount of (x) the Working Capital Advances and
(y) the Letter of Credit Advances plus the aggregate Available Amount of all
Letters of Credit then outstanding exceeds (B) the Working Capital Facility on
such Business Day.
(iv) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral
Account to equal the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility on such
Business Day.
(v) Prepayments of the Working Capital Facility made pursuant to
clause (i), (ii), (iii) or (iv) shall be first applied to prepay Letter of
Credit Advances then outstanding until such Advances are paid in full, second
applied to prepay Working Capital Advances then outstanding comprising part of
the same Borrowings until such Advances are paid
40
<PAGE>
in full and third deposited in the L/C Cash Collateral Account to cash
collateralize 100% of the Available Amount of the Letters of Credit then
outstanding; and, in the case of prepayments of the Working Capital Facility
required pursuant to clause (i) or (ii) above, the amount remaining (if any)
after the prepayment in full of the Advances then outstanding and the 100% cash
collateralization of the aggregate Available Amount of Letters of Credit then
outstanding (the sum of such prepayment amounts and cash collateralization
amounts and remaining amount being referred to herein as the "Reduction Amount")
may be retained by the Borrower and the Working Capital Facility shall be
permanently reduced as set forth in Section 2.05(b)(iv). Upon the drawing of any
Letter of Credit for which funds are on deposit in the L/C Cash Collateral
Account, such funds shall be applied to reimburse the Issuing Bank or Working
Capital Lenders, as applicable.
(vi) The Borrower shall, on the date of receipt by the Borrower or
any of its Subsidiaries of any payment or prepayment of principal in respect of
an Alliance Note, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings in an amount equal to the amount so
received. Each such prepayment shall be applied ratably first to each of the
Term Facilities on a pro rata basis and to the installments thereof pro rata and
(provided that any such prepayments of the Tranche A Term Facility shall be as
set forth in clause (viii) below), and second to the Working Capital Facility as
set forth in clause (v) below, provided, however, that any such Tranche B Term
Lender may, to the extent that there are Tranche A Term Advances outstanding and
Unused Tranche A Term Commitments elect to refuse such prepayment and such
prepayment shall be applied to the Tranche A Term Facility as set forth above.
(vii) Prepayments of any Facility shall be applied first to prepay
Base Rate Advances comprising part of the same Borrowings and second to prepay
Eurodollar Rate Advances comprising part of the same Borrowings.
(viii) Prepayments of the Tranche A Term Facility made pursuant to
clause (i), (ii), (iii) or (vi) shall be first applied to reduce the aggregate
Unused Tranche A Term Commitments on a pro rata basis and second applied to
prepay Tranche A Term Advances on a pro rata basis (the sum of such commitment
reductions and prepayment amounts being referred to herein as the "Tranche A
Reduction Amount").
Interest. Scheduled Interest. The Borrower shall pay interest on the unpaid
-------- ------------------
principal amount of each Advance owing to each Lender from the date of such
Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
------------------
Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time plus (B) the Applicable
Margin in effect from time to time, payable in arrears quarterly on
the last day of each quarter during such periods and on the date such
Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
------------------------
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each
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<PAGE>
Interest Period for such Advance to the sum of (A) the Eurodollar Rate
for such Interest Period for such Advance plus (B) the Applicable
Margin in effect on the first day of such Interest Period, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(a) Default Interest. Upon the occurrence and during the continuance
----------------
of an Event of Default, the Borrower shall, at the request of the Required
Lenders, pay interest on (i) the unpaid principal amount of each Advance owing
to each Lender, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on such Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable under the Loan Documents
that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid, in the case of interest, on
the Type of Advance on which such interest has accrued pursuant to clause (a)(i)
or (a)(ii) above and, in all other cases, on Base Rate Advances pursuant to
clause (a)(i) above.
(b) Notice of Interest Period and Interest Rate. Promptly after
-------------------------------------------
receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.09 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the Borrower and each Appropriate
Lender of the applicable Interest Period and the applicable interest rate
determined by the Administrative Agent for purposes of clause (a)(i) or (a)(ii)
above.
Fees. Commitment Fee. The Borrower shall pay to the Administrative Agent
---- --------------
for the account of the Lenders a commitment fee, from the date hereof in the
case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender until the later of the Tranche A Termination Date and the
Working Capital Termination Date, payable in arrears on the date of the initial
Borrowing hereunder, thereafter quarterly on the last day of each quarter and on
the later of the Tranche A Termination Date and the Working Capital Termination
Date, at a rate per annum equal to the Applicable Percentage on the sum of each
Lender's average daily Unused Tranche A Term Commitment and average daily Unused
Working Capital Commitment of such Lender during such quarter; provided,
however, that any commitment fee accrued with respect to any of the Commitments
of a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrower
so long as such Lender shall be a Defaulting Lender except to the extent that
such commitment fee shall otherwise have been due and payable by the Borrower
prior to such time and the Borrower shall pay to the Administrative Agent for
the account of the Lenders a commitment fee, from the date hereof in the case of
each Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Tranche C Termination Date, payable in arrears on the date of the
initial Borrowing hereunder, thereafter quarterly on the last day of each
quarter and on the Tranche C Termination Date, at a
42
<PAGE>
rate per annum equal to the Applicable Percentage on the sum of each Lender's
average daily Unused Tranche C Term Commitment; and provided further that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
(a) Letter of Credit Fees, Etc. The Borrower shall pay to the
-----------------------
Administrative Agent for the account of each Working Capital Lender a
commission, payable in arrears quarterly on the last day of each quarter,
commencing September 30, 2000, and on the Working Capital Termination Date, on
such Lender's Pro Rata Share of the average daily aggregate Available Amount
during such quarter of all Letters of Credit outstanding from time to time at a
rate equal to the Applicable Margin for Eurodollar Advances under the Working
Capital Facility.
(i) The Borrower shall pay to the Issuing Bank, for its own
account, (A) an issuance fee for each Letter of Credit in an amount
equal to 1/4 of 1% of the Available Amount of such Letter of Credit on
the date of issuance of such Letter of Credit, payable on such date
and (B) such other transfer fees and other fees and charges in
connection with the issuance or administration of each Letter of
Credit as the Borrower and the Issuing Bank shall agree.
(b) Agents' and Lead Arranger's Fees. The Borrower shall pay to each
--------------------------------
Agent and the Lead Arranger for its own account such fees as may from time to
time be agreed between the Borrower and such Agent or Lead Arranger.
Conversion of Advances. Optional. The Borrower may on any Business Day,
---------------------- --------
upon notice given to the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Section 2.10, Convert all or any
portion of the Advances of one Type comprising the same Borrowing into Advances
of the other Type; provided, however, that any Conversion of Eurodollar Rate
Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b), no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(b) and each
Conversion of Advances comprising part of the same Borrowing under any Facility
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments under such Facility. Each such notice of Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii)
the Advances to be Converted and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for such Advances.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
(a) Mandatory. On the date on which the aggregate unpaid principal
---------
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $3 million, such Advances shall
automatically Convert into Base Rate Advances.
(i) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with
the provisions
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contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the
Appropriate Lenders, whereupon the Interest Period for such Eurodollar
Rate Advances will automatically be one month.
(ii) Upon the occurrence and during the continuance of any Event
of Default, (x) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance and (y) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
Increased Costs, Etc. If, due to either (i) the introduction of or any
---------------------
change (other than any change by way of imposition or increase of reserve
requirements included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender Party of agreeing to make or of making, funding or
maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or
maintaining or participating in Letters of Credit or of agreeing to make or of
making or maintaining Letter of Credit Advances (excluding, for purposes of this
Section 2.10, any such increased costs resulting from changes in the basis of
taxation of net income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender Party is organized or has its
Applicable Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party additional amounts sufficient to compensate
such Lender Party for such increased cost; provided, however, that a Lender
Party claiming additional amounts under this Section 2.10(a) agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to provide appropriate certificates or other documentation and
designate a different Applicable Lending Office if such certificate, other
documentation or the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue and would
not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. A certificate as to the amount of such
increased cost, submitted to the Borrower by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(a) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or expected to be maintained by any Lender Party or
any corporation controlling such Lender Party as a result of or based upon the
existence of such Lender Party's commitment to lend or to issue or participate
in Letters of Credit hereunder and other commitments of such type or the
issuance or maintenance of or participation in the Letters of Credit (or similar
contingent obligations), then, upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to the Administrative Agent for the account of such Lender
Party, from time to time as specified by such Lender Party, additional amounts
sufficient to compensate such Lender Party in the light of such circumstances,
to the extent that such Lender Party reasonably determines such increase in
44
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capital to be allocable to the existence of such Lender Party's commitment to
lend or to issue or participate in Letters of Credit hereunder or to the
issuance or maintenance of or participation in any Letters of Credit. A
certificate as to such amounts submitted to the Borrower by such Lender Party
shall be conclusive and binding for all purposes, absent manifest error.
(b) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least a majority of the then aggregate unpaid
principal amount thereof notify the Administrative Agent that the Eurodollar
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Lenders of making, funding or maintaining their Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Appropriate Lenders, whereupon (i) each such
Eurodollar Rate Advance under such Facility will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance
and (ii) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
(d) In the event that any Lender Party demands payment of costs or
additional amounts pursuant to Section 2.10 or Section 2.12 or asserts, pursuant
to Section 2.10(d), that it is unlawful for such Lender Party to make Eurodollar
Rate Advances or become a Defaulting Lender, then (subject to such Lender
Party's right to rescind such demand or assertion within 10 days after the
notice from the Borrower referred to below) the Borrower may, upon 20 days'
prior written notice to such Lender Party and the Administrative Agent, elect to
cause such Lender Party to assign its Advances and Commitments in full to one or
more Persons selected by the Borrower so long as (a) each such Person satisfies
criteria of an Eligible Assignee and is reasonably satisfactory to the
Administrative Agent, (b) such Lender Party receives payment in full in cash of
the outstanding principal amount of all Advances made by it and all accrued and
unpaid interest thereon and all other amounts due and payable to such Lender
Party as of the date of such assignment (including, without limitation, amounts
owing pursuant to Sections 2.10,
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2.12, 2.15 and 9.04) and (c) each such Lender Party assignee agrees to accept
such assignment and to assume all obligations of such Lender Party hereunder, in
accordance with Section 9.07.
Payments and Computations. The Borrower shall make each payment hereunder
-------------------------
and under the Notes, irrespective of any right of counterclaim or set-off
(except as otherwise provided in Section 2.15), not later than 11:00 A.M. (New
York City time) on the day when due in U.S. dollars to the Administrative Agent
at the Administrative Agent's Account in same day funds, with payments being
received by the Administrative Agent after such time being deemed (other than
for purposes of Section 6.01(a) if received on the day when due) to have been
received on the next succeeding Business Day. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if such payment by
the Borrower is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender
Party, to such Lender Parties for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment by the
Borrower is in respect of any Obligation then payable hereunder to one Lender
Party, to such Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(a) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in
the case of a Lender, under the Note held by such Lender, to charge from time to
time against any or all of the Borrower's accounts with such Lender Party any
amount so due.
(b) All computations of interest based on the Base Rate or the Federal
Funds Rate shall be made by the Administrative Agent on the basis of a year of
365 or 366 days, as the case may be, and all computations of interest based on
the Eurodollar Rate and of fees and Letter of Credit commissions shall be made
by the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate,
fee or commission hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
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(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(e) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances and the Available Amount of all Letters of Credit
then outstanding, in repayment or prepayment of such of the outstanding Advances
or other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
Taxes. Any and all payments made by or on behalf of any Loan Party
-----
hereunder, or under the Notes or any other Loan Document, shall be made, in
accordance with Section 2.11, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities, interest, penalties and additions to tax with
respect thereto (excluding any amount resulting from the gross negligence or
willful misconduct of a Lender Party or an Agent), excluding, in the case of
each Lender Party and each Agent, taxes that are imposed on its net income by
the United States and taxes that are imposed on its net income (and franchise
taxes imposed in lieu thereof) by the state or foreign jurisdiction under the
laws of which such Lender Party or such Agent, as the case may be, is organized
or any political subdivision thereof and, in the case of each Lender Party,
taxes that are imposed on its net income (and franchise taxes imposed in lieu
thereof) by the state or foreign jurisdiction of such Lender Party's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder, or under any Note or any other Loan
Document, to any Lender Party or any Agent, (i) the sum payable by the Borrower
shall be increased as may be necessary so that after the Borrower and the
Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such Lender Party
or such Agent, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make all
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law; provided, however, that a Lender Party claiming additional amounts under
this Section 2.12(a) or 2.12 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to provide
appropriate certificates or other
47
<PAGE>
documentation (except to the extent the Lender Party considers any such required
information confidential and such certificates or documentation are materially
more burdensome than Internal Revenue Service Form W-8BEN) and designate a
different Applicable Lending Office if the providing of such certificates or
documentation or the making of such a designation would avoid the need for, or
reduce the amount of, such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party.
(a) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder, or under the Notes or any other Loan Documents,
or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement, the Notes or any other Loan Document,
(hereinafter referred to as "Other Taxes").
(b) The Borrower shall indemnify each Lender Party and each Agent for
and hold them harmless against the full amount of Taxes and Other Taxes, and for
the full amount of taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.12, imposed on or paid by such Lender Party or such
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses, but excluding any amount resulting from the gross
negligence or willful misconduct of a Lender Party or an Agent) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender Party or such Agent (as the case may be) makes
written demand therefor. Each Agent and each Lender Party claiming
indemnification pursuant to this Section 2.12(c) shall make written demand
therefor no later than 120 days after the date on which such Agent or Lender
Party makes payment of such Taxes or Other Taxes. However, nothing contained in
this Section 2.12(c) shall compromise the right of any Agent or Lender Party to
be indemnified pursuant to this Agreement.
(c) Within 30 days after the date of any payment of Taxes by or on
behalf of any Loan Party, the Borrower shall furnish to the Administrative
Agent, at its address referred to in Section 9.02, the original or a certified
copy of a receipt evidencing such payment (or if such receipt has not been
received by the Borrower by such time within 30 days after such receipt by the
Borrower) (or, if no such receipt will be forthcoming, such other written
documentation reasonably satisfactory to the Administrative Agent). In the case
of any payment hereunder, or under the Notes or any other Loan Document, by or
on behalf of the Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof,
the Borrower shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this Section 2.12, the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(d) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender or Initial Issuing
Bank, as the case may be, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender Party in the case of each
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other Lender Party, and from time to time thereafter as reasonably requested in
writing by the Borrower (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide each of the Administrative Agent and
the Borrower with either (i) two properly completed original Internal Revenue
Service forms W-8ECI or W-8BEN (or any applicable successor forms), certifying
that such Lender Party is exempt from or entitled to a reduced rate of United
States federal withholding tax on payments pursuant to this Agreement or under
the Notes (by reason of such payments being effectively connected to a United
States trade or business of such Lender Party, or by reason of such Lender Party
being eligible for the benefits of a current United States income tax treaty
with respect to such payments), or (ii) two properly completed original Internal
Revenue Service forms W-8BEN (or any applicable successor forms), certifying
that such Lender Party is a foreign corporation, foreign partnership, or foreign
estate or trust, along with a certificate representing that such Lender Party is
not a "bank" for purposes of Section 881(c) of the Internal Revenue Code, is not
a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code), as appropriate. If the forms provided by a Lender
Party at the time such Lender Party first becomes a party to this Agreement
indicate a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender Party provides the appropriate forms certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms; provided,
however, that if, at the effective date of the Assignment and Acceptance
pursuant to which a Lender Party becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) of this Section
2.12 in respect of United States withholding tax with respect to interest paid
at such date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender Party assignee on such date. If any form or document
referred to in this subsection (e) requires the disclosure of information, other
than information necessary to compute the tax payable and information required
on the date hereof by Internal Revenue Service form W-8BEN or W-8ECI (or the
related certificate described above), that the Lender Party reasonably considers
to be confidential, the Lender Party shall give notice thereof to the Borrower
and shall not be obligated to include in such form or document such confidential
information.
(e) For any period with respect to which a Lender Party has failed to
provide the Borrower with the appropriate form described in subsection (e) above
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e) above), such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) of this Section 2.12
with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because of
its failure to deliver a form required hereunder, the Borrower shall take
(solely at such Lender Party's expense) such steps as such Lender Party shall
reasonably request to assist such Lender Party to recover such Taxes.
(f) If a Lender Party or an Agent files a claim for refund and such
party determines in its sole discretion that such claim for refund is in respect
of Taxes or Other Taxes as to which it has been indemnified by the Borrower, or
with respect to which any Loan Party
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<PAGE>
has made payments pursuant to this Section 2.12, such Lender Party or Agent
shall promptly notify the Borrower in writing of the availability of such refund
claim. If a Lender Party or an Agent receives a refund and determines in its
sole discretion that such refund is in respect of any such Taxes or Other Taxes,
such Lender Party or Agent shall within 45 days from the date of such receipt or
realization pay over the amount of such refund to the Borrower (but only to the
extent of indemnity payments made or other amounts paid by the Borrower or other
Loan Party under this Section 2.12 with respect to such Taxes or Other Taxes),
net of all reasonable out-of-pocket expenses of such Lender Party or Agent and
without interest; provided that the Borrower (upon written request of such
Lender Party or Agent) agrees to repay the amount paid over to the Borrower to
such Lender Party or Agent in the event such Lender Party or Agent is required
to repay such refund to such governmental authority.
Sharing of Payments, Etc. If any Lender Party shall obtain at any time any
-------------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise, other than as a result of an assignment pursuant to
Section 9.07) (a) on account of Obligations due and payable to such Lender Party
hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations due and
payable to such Lender Party at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time) of payments on account of the Obligations due and payable to all
Lender Parties hereunder and under the Notes at such time obtained by all the
Lender Parties at such time or (b) on account of Obligations owing (but not due
and payable) to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations owing to such Lender Party at such time to (ii) the aggregate
amount of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations owing (but not due and payable) to all Lender Parties hereunder and
under the Notes at such time obtained by all of the Lender Parties at such time,
such Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered ; provided
further that, so long as the Obligations under the Loan Documents shall not have
been accelerated, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with other Appropriate Lenders. The Borrower
agrees that any Lender Party so purchasing an interest or participating interest
from another Lender Party pursuant to this Section 2.13 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such interest or participating interest, as the case
may be, as fully as if such Lender Party were the direct creditor of the
Borrower in the amount of such interest or participating interest, as the case
may be.
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Use of Proceeds. The proceeds of the Term Advances shall be available (and
---------------
the Borrower agrees that it shall use such proceeds) for the following: (i) to
finance in part the Recapitalization and the Acquisition, (ii) to refinance
certain existing debt of the Borrower and its Subsidiaries and the Alliances,
and (iii) to pay transaction costs and expenses associated with the foregoing.
The proceeds of the Working Capital Advances and the Term Advances and issuances
of Letters of Credit shall be available (and the Borrower agrees that it shall
use such proceeds and Letters of Credit) solely for working capital, capital
expenditures and other general corporate purposes of the Borrower and its
Subsidiaries and the Alliances.
Defaulting Lenders. In the event that, at any time, (i) any Lender Party
------------------
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Advance to the Borrower and (iii) the Borrower shall be required to make any
payment hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower may, so long as no Default shall occur or
be continuing at such time and to the fullest extent permitted by applicable
law, set off and otherwise apply the Obligation of the Borrower to make such
payment to or for the account of such Defaulting Lender against the obligation
of such Defaulting Lender to make such Defaulted Advance. In the event that, on
any date, the Borrower shall so set off and otherwise apply its obligation to
make any such payment against the obligation of such Defaulting Lender to make
any such Defaulted Advance on or prior to such date, the amount so set off and
otherwise applied by the Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender made
on the date of such setoff under the Facility pursuant to which such Defaulted
Advance was originally required to have been made pursuant to Section 2.01. Such
Advance shall be considered, for all purposes of this Agreement, to comprise
part of the Borrowing in connection with which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01, even if the
other Advances comprising such Borrowing shall be Eurodollar Rate Advances on
the date such Advance is deemed to be made pursuant to this subsection (a). The
Borrower shall notify the Administrative Agent at any time the Borrower
exercises its right of set-off pursuant to this subsection (a) and shall set
forth in such notice (A) the name of the Defaulting Lender and the Defaulted
Advance required to be made by such Defaulting Lender and (B) the amount set off
and otherwise applied in respect of such Defaulted Advance pursuant to this
subsection (a). Any portion of such payment otherwise required to be made by the
Borrower to or for the account of such Defaulting Lender which is paid by the
Borrower, after giving effect to the amount set off and otherwise applied by the
Borrower pursuant to this subsection (a), shall be applied by the Administrative
Agent as specified in subsection (b) or (c) of this Section 2.15.
(a) In the event that, at any time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lender Parties and (iii) the Borrower shall make
any payment hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the Administrative Agent
may, on its behalf or on behalf of such other Agents or such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such
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Defaulted Amount on such date. Any such amount so applied by the Administrative
Agent shall be retained by the Administrative Agent or distributed by the
Administrative Agent to such other Agents or such other Lender Parties, ratably
in accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent, such other Agents and such other Lender
Parties and, if the amount of such payment made by the Borrower shall at such
time be insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent, such other Agents and such other Lender Parties, in the
following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing
to the Agents, ratably in accordance with such respective Defaulted
Amounts then owing to the Agents;
(ii) second, to the Issuing Bank for any Defaulted Amounts then
owing to it, in its capacity as such, ratably in accordance with such
respective Defaulted Amounts then owing to such Issuing Bank; and
(iii) third, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(b) In the event that, at any time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrower, any Agent or any other Lender
Party shall be required to pay or distribute any amount hereunder or under any
other Loan Document to or for the account of such Defaulting Lender, then the
Borrower or such Agent or such other Lender Party shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow
under this subsection (c) shall be deposited by the Administrative Agent in an
account with MS&Co., in the name and under the control of the Administrative
Agent, but subject to the provisions of this subsection (c). The terms
applicable to such account, including the rate of interest payable with respect
to the credit balance of such account from time to time, shall be MS&Co.'s
standard terms applicable to escrow accounts maintained with it. Any interest
credited to such account from time to time shall be held by the Administrative
Agent in escrow under, and applied by the Administrative Agent from time to time
in accordance with the provisions of, this subsection (c). The Administrative
Agent shall, to the fullest extent permitted by applicable law, apply all funds
so held in escrow from time to time to the extent necessary to make any Advances
required to be made by such Defaulting Lender and to pay any amount payable by
such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time
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be insufficient to make and pay all such Advances and amounts required to be
made or paid at such time, in the following order of priority:
(i) first, to the Agents for any amounts then due and payable
by such Defaulting Lender to the Agents hereunder, ratably in
accordance with such amounts then due and payable to the Agents;
(ii) second, to the Issuing Bank for any amounts then due and
payable to them hereunder, in their capacities as such, by such
Defaulting Lender, ratably in accordance with such amounts then due
and payable to such Issuing Banks;
(iii) third, to any other Lender Parties for any amount then due
and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(c) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that any Agent or any Lender Party may have against such Defaulting Lender with
respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
Conditions Precedent to Initial Extension of Credit. The obligation of
---------------------------------------------------
each Lender to make an Advance or of the Issuing Bank to issue a Letter of
Credit on the occasion of the Initial Extension of Credit hereunder is subject
to the satisfaction of the following conditions precedent before or concurrently
with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day
of the Initial Extension of Credit the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Lender Parties
(unless otherwise specified) and (except for the Notes) in sufficient copies for
each Lender Party:
(i) The Notes payable to the order of the Lenders.
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(ii) A security agreement in substantially the form of Exhibit D
hereto (together with each other security agreement and security
agreement supplement delivered pursuant to Section 5.01(j), in each
case as amended, the "Security Agreement"), duly executed by each Loan
Party, together with:
(A) certificates representing the Pledged Shares referred to
therein accompanied by undated stock powers executed in blank and
instruments evidencing the Pledged Debt indorsed in blank,
(B) executed copies of proper financing statements, to be filed
under the Uniform Commercial Code of all jurisdictions that the
Administrative Agent may reasonably deem necessary or desirable in
order to perfect and protect the first priority liens and security
interests created under the Security Agreement, covering the
Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the
date of the Initial Extension of Credit, listing all effective
financing statements filed in the jurisdictions referred to in clause
(B) above that name any Loan Party as debtor, together with copies of
such financing statements,
(D) evidence of the completion of all other recordings and
filings of or with respect to the Security Agreement that the
Administrative Agent may reasonably deem necessary or desirable in
order to perfect and protect the Liens created thereby,
(E) evidence of the insurance required by the terms of the
Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security
Agreement, together with a consent to such assignment, in
substantially the form of Exhibit B to the Security Agreement, duly
executed by each party to such Assigned Agreements other than the Loan
Parties,
(G) the Pledged Account Letters referred to in the Security
Agreement, duly executed by each Pledged Account Bank referred to in
the Security Agreement, and
(H) evidence that all other action that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the
first priority liens and security interests created under the Security
Agreement has been taken (including, without limitation, receipt of
duly executed payoff letters, UCC-3 termination statements and
landlords' and bailees' waiver and consent agreements).
(iii) A guaranty in substantially the form of Exhibit E hereto
as amended, the "Alliance Guaranty"), duly executed by each Alliance.
(iv) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving the Acquisition and the other
transactions contemplated by
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the Transaction Documents and each Transaction Document to which it is
or is to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party approvals and
consents, if any, with respect to the Acquisition and the other
transactions contemplated by the Transaction Documents and each
Transaction Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation of each Loan Party, dated reasonably
near the date of the Initial Extension of Credit, certifying (A) as to
a true and correct copy of the charter of such Loan Party and each
amendment thereto on file in such Secretary's office and (B) that (1)
such amendments are the only amendments to such Loan Party's charter
on file in such Secretary's office, (2) such Loan Party has paid all
franchise taxes to the date of such certificate and (C) such Loan
Party is duly incorporated and in good standing or presently
subsisting under the laws of the State of the jurisdiction of its
incorporation.
(vi) A certificate of each Loan Party signed on behalf of such
Loan Party by its President or a Vice President and its Secretary or
any Assistant Secretary, dated the date of the Initial Extension of
Credit (the statements made in which certificate shall be true on and
as of the date of the Initial Extension of Credit), certifying as to
(A) the absence of any amendments to the charter of such Loan Party
since the date of the Secretary of State's certificate referred to in
Section 3.01(a)(v), (B) a true and correct copy of the bylaws of such
Loan Party as in effect on the date on which the resolutions referred
to in Section 3.01(a)(iv) were adopted and on the date of the Initial
Extension of Credit, (C) the due incorporation and good standing or
valid existence of such Loan Party as a corporation organized under
the laws of the jurisdiction of its incorporation, and the absence of
any proceeding for the dissolution or liquidation of such Loan Party,
(D) the truth of the representations and warranties contained in the
Loan Documents as though made on and as of the date of the Initial
Extension of Credit and (E) the absence of any event occurring and
continuing, or resulting from the Initial Extension of Credit, that
constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Transaction
Document to which it is or is to be a party and the other documents to
be delivered hereunder and thereunder.
(viii) Certified copies of each of the Related Documents, duly
executed by the parties thereto and in form and substance satisfactory
to the Lender Parties, together with all agreements, instruments and
other documents delivered in connection therewith as the
Administrative Agent shall request, including without limitation all
leases and/or subleases related to the Acquisition.
(ix) Certificates, in substantially the form of Exhibit F
hereto, attesting to the Solvency of each Loan Party before and after
giving effect to the
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Acquisition and the other transactions contemplated by the Transaction
Documents, from its Chief Financial Officer.
(x) Such financial, business and other information regarding
each Loan Party and its Subsidiaries as the Lender Parties shall have
requested, including, without limitation, information as to possible
contingent liabilities, tax matters, environmental matters,
obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements dated December 31,
1999, interim financial statements dated the end of the most recent
fiscal quarter for which financial statements are available (or, in
the event the Lender Parties' due diligence review reveals material
changes since such financial statements, as of a later date within 45
days of the day of the Initial Extension of Credit), pro forma
financial statements as to the Borrower and forecasts prepared by
management of the Borrower, in form and substance satisfactory to the
Lender Parties, of balance sheets, income statements and cash flow
statements on a quarterly basis for the first three years following
the day of the Initial Extension of Credit and on an annual basis for
each year thereafter until the Tranche B Termination Date.
(xi) Evidence of insurance naming the Collateral Agent as
additional insured and loss payee with such responsible and reputable
insurance companies or associations, and in such amounts and covering
such risks, as is satisfactory to the Administrative Agent, including,
without limitation, business interruption insurance.
(xii) Certified copies of all Material Contracts of each Loan
Party and its Subsidiaries.
(xiii) A favorable opinion of Hunton & Williams, counsel for the
Loan Parties, in substantially the form of Exhibit G hereto and as to
such other matters as any Lender Party through the Administrative
Agent may reasonably request.
(xiv) A favorable opinion of Wiley Rein, regulatory counsel to
the Loan Parties, in a form satisfactory to the Lender Parties.
(b) The Lender Parties shall be satisfied with the corporate and legal
structure and capitalization of each Loan Party and each of its Subsidiaries the
Equity Interests in which Subsidiaries is being pledged pursuant to the Loan
Documents, including the terms and conditions of the charter, bylaws and each
class of Equity Interest in each Loan Party and each such Subsidiary and of each
agreement or instrument relating to such structure or capitalization.
(c) The Lender Parties shall be satisfied that all Existing Debt,
other than Surviving Debt, has been or is simultaneously being prepaid, redeemed
or defeased in full or otherwise satisfied and extinguished and that all
Surviving Debt shall be on terms and conditions satisfactory to the Lender
Parties.
(d) Before giving effect to the transactions contemplated by the
Transaction Documents, there shall have occurred no (i) Material Adverse Change
since December 31, 1999
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and (ii) no material adverse change in the business, condition (financial or
otherwise), operations, performance or properties of the Acquired Properties
since December 31, 1999.
(e) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i) could be
reasonably be expected to have a (A) Material Adverse Effect or (B) material
adverse effect on the business, condition (financial or otherwise), operations,
performance or properties of the Acquired Properties or (ii) purports to affect
the legality, validity or enforceability of any Transaction Document or the
consummation of the Acquisition or the other transactions contemplated by the
Transaction Documents.
(f) All governmental and third party consents and approvals necessary
in connection with the Acquisition and the other transactions contemplated by
the Transaction Documents shall have been obtained (including any consents and
approvals necessary to permit the Alliances to enter into security, guarantee
and other arrangements required by the terms of the Transaction Documents)
(without the imposition of any conditions that are not acceptable to the Lender
Parties) and shall remain in effect (other than as set forth on Schedule
4.01(d)); all applicable waiting periods in connection with the Acquisition and
the other transactions contemplated by the Transaction Documents shall have
expired without any action being taken by any competent authority, and no law or
regulation shall be applicable in the judgment of the Lender Parties, in each
case that restrains, prevents or imposes materially adverse conditions upon the
Acquisition or the other transactions contemplated by the Transaction Documents
or the rights of the Loan Parties or their Subsidiaries freely to transfer or
otherwise dispose of, or to create any Lien on, any properties now owned or
hereafter acquired by any of them.
(g) The Borrower shall have paid all accrued fees of the Agents and
the Lender Parties and all accrued expenses of the Agents (including the accrued
fees and expenses of counsel to the Administrative Agent and local counsel to
the Lender Parties).
(h) The Lender Parties shall be satisfied with the terms and
conditions of the Equity Contribution, the Senior Notes and the Subordinated
Notes, if any. The Borrower shall have received at least $225 million in gross
cash proceeds from the Equity Contribution and at least $276 million (or, if the
Subordinated Notes are not issued, at least $375 million) in gross cash proceeds
from the sale of the Senior Notes and $95 million in gross cash proceeds from
the sale of the Subordinated Notes, and all such proceeds (other than the $112.5
million portion of such Equity Contribution made prior to the date hereof) shall
have been used or shall be used simultaneously with the Initial Extension of
Credit by the Borrower to finance the transactions contemplated in the
preliminary statements to this Agreement.
Conditions Precedent to Each Borrowing and Issuance and Renewal The
---------------------------------------------------------------
obligation of each Appropriate Lender to make an Advance (other than a Letter of
Credit Advance made by the Issuing Bank or a Working Capital Lender pursuant to
Section 2.03(c)) on the occasion of each Borrowing (including the initial
Borrowing), and the obligation of the Issuing Bank to issue a Letter of Credit
(including the initial issuance) or renew a Letter of Credit, shall be subject
to the further conditions precedent that on the date of such Borrowing or
issuance or renewal (a) the following statements shall be true and the
Administrative Agent shall have received for the account of such Lender or the
Issuing Bank a certificate signed by a duly authorized officer of
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the Borrower, dated the date of such Borrowing or issuance or renewal, stating
that (and each of the giving of the applicable Notice of Borrowing, or Notice of
Issuance or Notice of Renewal and the acceptance by the Borrower of the proceeds
of such Borrowing or of such Letter of Credit or the renewal of such Letter of
Credit shall constitute a representation and warranty by the Borrower that both
on the date of such notice and on the date of such Borrowing or issuance or
renewal such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing or issuance or
renewal and to the application of the proceeds therefrom, as though
made on and as of such date, other than any such representations or
warranties that, by their terms, refer to a specific date other than
the date of such Borrowing or issuance or renewal, in which case as of
such specific date; and
(ii) no Default has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of
the proceeds therefrom;
(a) Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request and (c) in the case of any Tranche C Term Borrowing, the
Borrower shall have purchased an RTFC Certificate in an amount equal to 10% of
such Tranche C Term Borrowing.
Determinations Under Section 3.01. For purposes of determining compliance
---------------------------------
with the conditions specified in Section 3.01, each Lender Party shall be deemed
to have consented to, approved or accepted or to be satisfied with each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lender Parties unless an officer of the
Administrative Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender Party prior to the Initial
Extension of Credit specifying its objection thereto and, if the Initial
Extension of Credit consists of a Borrowing, such Lender Party shall not have
made available to the Administrative Agent such Lender Party's ratable portion
of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Representations and Warranties of the Borrower. The Borrower represents
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and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it
to so qualify or be licensed except where the failure to so qualify or
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be licensed could not be reasonably likely to have a Material Adverse
Effect and (iii) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted after
consummation of the Acquisition (as set forth in the Information
Memorandum).
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party, showing as of the date hereof
(as to each such Subsidiary) the jurisdiction of its incorporation, the
number of shares of each class of its Equity Interests authorized, and the
number outstanding, on the date hereof and the percentage of each such
class of its Equity Interests owned (directly or indirectly) by such Loan
Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof. All of the outstanding Equity Interests in each Loan Party's
Subsidiaries has been validly issued, are fully paid and non-assessable and
are owned by such Loan Party or one or more of its Subsidiaries free and
clear of all Liens, except those created under the Collateral Documents.
(c) The execution, delivery and performance by each Loan Party of each
Transaction Document to which it is or is to be a party, and the
consummation of the Acquisition and the other transactions contemplated by
the Transaction Documents, are within such Loan Party's corporate powers,
have been duly authorized by all necessary corporate action, and do not (i)
contravene such Loan Party's charter or bylaws, (ii) violate any law, rule,
regulation (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or result
in the breach of, or constitute a default under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting any Loan Party, any of its Subsidiaries or any of
their properties or (iv) except for the Liens created under the Loan
Documents, result in or require the creation or imposition of any Lien upon
or with respect to any of the properties of any Loan Party or any of its
Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of
any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which could be reasonably likely to have a Material
Adverse Effect.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for (i) the due execution, delivery, recordation,
filing or performance by any Loan Party of any Transaction Document to
which it is or is to be a party, or for the consummation of the Acquisition
or the other transactions contemplated by the Transaction Documents, (ii)
the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (iii) the perfection or maintenance of the Liens
created under the Collateral Documents (including the first priority nature
thereof) or (iv) the exercise by any Agent or any Lender Party of its
rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents , except for the
authorizations, approvals, actions, notices and filings listed on Schedule
4.01(d) hereto, all of which (other than as set forth on such Schedule)
have been duly obtained, taken, given or made
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and are in full force and effect. All applicable waiting periods in
connection with the Acquisition and the other transactions contemplated by
the Transaction Documents have expired without any action having been taken
by any competent authority restraining, preventing or imposing materially
adverse conditions upon the Acquisition or the rights of the Loan Parties
or their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any
of them. The Acquisition has been consummated in accordance with the
Purchase Agreement and applicable law.
(e) This Agreement has been, and each other Transaction Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party party thereto. This Agreement is, and each other Transaction
Document when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan
Party in accordance with its terms.
(f) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or, to the knowledge of the Borrower or its
Subsidiaries, threatened before any court, governmental agency or
arbitrator that (i) could be reasonably likely to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability
of any Transaction Document or the consummation of the Acquisition or the
other transactions contemplated by the Transaction Documents.
(g) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1999, and the related Consolidated
statement of income and Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, accompanied
by an unqualified opinion of McGladdrey & Pullen LLP, independent public
accountants, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 2000, and the related Consolidated statement
of income and Consolidated statement of cash flows of the Borrower and its
Subsidiaries for the three months then ended, duly certified by the Chief
Financial Officer of the Borrower, copies of which have been furnished to
each Lender Party, fairly present, subject, in the case of said balance
sheet as at March 31, 2000, and said statements of income and cash flows
for the three months then ended, to year-end audit adjustments and the
absence of notes, the Consolidated financial condition of the Borrower and
its Subsidiaries as at such dates and the Consolidated results of
operations of the Borrower and its Subsidiaries for the periods ended on
such dates, all in accordance with generally accepted accounting principles
applied on a consistent basis, and since December 31, 1999, there has been
no Material Adverse Change.
(h) The Consolidated pro forma balance sheet of the Borrower and its
Subsidiaries as at March 31, 2000, and the related Consolidated pro forma
statement of operations of the Borrower and its Subsidiaries for the three
months and twelve months then ended, certified by the Chief Financial
Officer of the Borrower, copies of which have been furnished to each Lender
Party, fairly present the Consolidated pro forma financial condition of the
Borrower and its Subsidiaries as at such date and the Consolidated pro
forma results of operations of the Borrower and its Subsidiaries for the
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period ended on such date, in each case giving effect to the Acquisition
and the other transactions contemplated by the Transaction Documents , all
in accordance with GAAP.
(i) The Consolidated forecasted balance sheet, statement of operations
and projected cash flow of the Borrower and its Subsidiaries delivered to
the Lender Parties pursuant to Section 3.01(a)(x) or 5.03 were prepared in
good faith on the basis of the assumptions stated therein, which
assumptions were fair in light of the conditions existing at the time of
delivery of such forecasts, and represented, at the time of delivery, the
Borrower's reasonable estimate of its future financial performance.
(j) Neither the Information Memorandum nor any other information,
exhibit or report furnished by or on behalf of any Loan Party to any Agent
or any Lender Party in connection with the negotiation and syndication of
the Loan Documents or pursuant to the terms of the Loan Documents contained
when furnished any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements made therein in light of
the circumstances under which they were made not misleading.
(k) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance or drawings under any Letter of Credit will be used to purchase
or carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.
(l) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the issuance of any Letters of Credit, nor the
application of the proceeds or repayment thereof by the Borrower, nor the
consummation of the other transactions contemplated by the Transaction
Documents, will violate any provision of such Act or any rule, regulation
or order of the Securities and Exchange Commission thereunder.
(m) Neither any Loan Party nor any of its Subsidiaries is a party to
any indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction the
compliance with the terms of which could reasonably be expected to have a
Material Adverse Effect.
(n) The Collateral Documents create a valid and perfected first
priority security interest in the Collateral, securing the payment of the
Secured Obligations, and, upon taking all actions that are contemplated by
the Collateral Documents (including the satisfaction of the conditions
subsequent in 5.01(q)(i)(A) through (G)), all filings and other actions
necessary or desirable to perfect and protect such security interest will
have been duly taken. The Loan Parties are the legal and beneficial owners
of the Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.
(o) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
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(p) Set forth on Schedule 4.01(p) hereto is a complete and accurate
list of all Plans, Multiemployer Plans and Welfare Plans.
(i) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that has resulted in or is reasonably
expected to result in a material liability of any Loan Party or any
ERISA Affiliate.
(ii) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan for which a Schedule B
must be prepared, copies of which have been filed with the Internal
Revenue Service and furnished to the Lender Parties, is complete and
accurate and fairly presents the funding status of such Plan, and
since the date of such Schedule B there has been no material adverse
change in such funding status.
(iii) Neither any Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability
to any Multiemployer Plan.
(iv) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated,
within the meaning of Title IV of ERISA.
(q) The operations and properties of each Loan Party and each of its
Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with
such Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that could be
reasonably likely to (A) form the basis of an Environmental Action against
any Loan Party or any of its Subsidiaries or any of their properties that
could have a Material Adverse Effect or (B) cause any such property to be
subject to any material restrictions on ownership, occupancy, use or
transferability under any Environmental Law.
(i) None of the properties currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries is listed or, to
the knowledge of the Borrower or its Subsidiaries, proposed for
listing on the NPL or on the CERCLIS or any analogous, state or local
list, to the knowledge of the Borrower or its Subsidiaries, or is
adjacent to any such property; there are no and, to the knowledge of
the Borrower or its Subsidiaries, never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks,
pits, sumps or lagoons in which Hazardous Materials are being or have
been treated, stored or disposed on any property currently owned or
operated by any Loan Party or any of its Subsidiaries or, to the best
of its knowledge, on any property formerly owned or operated by any
Loan Party or any of its Subsidiaries; there is no asbestos or
asbestos-containing material on any property currently owned or
operated by any Loan Party or any of its Subsidiaries; and Hazardous
Materials
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have not been released, discharged or disposed of on any property
currently or, to the knowledge of the Borrower or its Subsidiaries,
formerly owned or operated by any Loan Party or any of its
Subsidiaries.
(ii) Neither any Loan Party nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together
with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at
any site, location or operation, either voluntarily or pursuant to the
order of any governmental or regulatory authority or the requirements
of any Environmental Law; and all Hazardous Materials generated, used,
treated, handled or stored at, or, to the knowledge of the Borrower or
its Subsidiaries, transported to or from, any property currently or
formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner not reasonably expected
to result in a Material Adverse Effect.
(r) Neither any Loan Party nor any of its Subsidiaries is party to any
tax sharing agreement other than a tax sharing agreement approved by the
Required Lenders.
(i) (x) All material tax returns, statements, reports and
forms (including estimated tax or information returns) (collectively,
the "Tax Returns") required to be filed with any taxing authority by,
or with respect to, each Loan Party and its Subsidiaries have been
timely filed in accordance with all applicable laws and, as of the
time of filing, each Tax Return was in all material respects accurate
and complete and correctly in all material respects -reflected the
facts regarding income, business, assets, operations and the status of
each Loan Party and its Subsidiaries; (y) each Loan Party and its
Subsidiaries have timely paid or made adequate provision in accordance
with GAAP for payment of all taxes that are shown as due and payable
on Tax Returns that have been so filed or that are otherwise required
to be paid, including without limitation, assessments, interest and
penalties (other than taxes which are being contested in good faith
and for which adequate reserves in accordance with GAAP are reflected
on the financial statements delivered hereunder) and (z) each Loan
Party and its Subsidiaries have made adequate provision in accordance
with GAAP for all taxes payable by such Loan Party and its
Subsidiaries for which no Tax Return has yet been filed or which are
otherwise due.
(ii) Set forth on Part I of Schedule 4.01(r) hereto is a
complete and accurate list, as of the date hereof, of each taxable
year of each Loan Party and each of its Subsidiaries for which Federal
income tax returns have been filed and for which the expiration of the
applicable statute of limitations for assessment or collection has not
occurred by reason of extension or otherwise (an "Open Year").
(iii) There are no open audits , of which any Loan Party is
aware or should be aware of, being conducted by any Federal, state,
local or foreign taxing authority with respect to any Loan Party or
any of its Subsidiaries and no Loan Party nor any of its Subsidiaries
has received notice of any pending audits.
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(iv) Except for American Quality Cable, Inc. and NetAccess,
Inc. no "ownership change" as defined in Section 382(g) of the
Internal Revenue Code, and no event that would result in the
application of the "separate return limitation year" or "consolidated
return change of ownership" limitations under the Federal income tax
consolidated return regulations, has occurred with respect to any Loan
Party.
(s) Neither the business nor the properties of any Loan Party or any
of its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo,
act of God or of the public enemy or other casualty (whether or not covered
by insurance) that could be reasonably likely to have a Material Adverse
Effect.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate
list as of the date hereof of all Existing Debt (other than Surviving
Debt), showing the obligor and the principal amount outstanding thereunder.
(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate
list as of the date hereof of all Surviving Debt, showing the obligor and
the principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule therefor.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list as of the date hereof of all Liens on the property or assets of any
Loan Party or any of its Subsidiaries, showing the lienholder thereof, the
principal amount of the obligations secured thereby and the property or
assets of such Loan Party or such Subsidiary subject thereto.
(w) Set forth on Schedule 4.01(w) hereto is a complete and accurate
list of all real property having a capitalized cost on the books of the
Borrower in excess of $100,000 which are owned by any Loan Party or any of
its Subsidiaries, showing as of the date hereof the street address, county
or other relevant jurisdiction, state, record owner and the capitalized
cost thereof. Each Loan Party or such Subsidiary has good, marketable and
insurable fee simple title to such real property, free and clear of all
Liens, other than Permitted Liens and Liens created or permitted by the
Loan Documents.
(x) Set forth on Schedule 4.01(x) hereto is a complete and accurate
list as of the date hereof of all leases of real property under which any
Loan Party or any of its Subsidiaries is the lessee and under which the
lessee is obligated to pay annual rent in excess of $25,000 per year as of
the date of this Agreement, showing the street address, county or other
relevant jurisdiction, state, lessor, lessee, expiration date and annual
rental cost thereof. Each such lease is the legal, valid and binding
obligation of the lessor thereof, enforceable in accordance with its terms.
(y) Set forth on Schedule 4.01(y) hereto is a complete and accurate
list of all Investments held by any Loan Party or any of its Subsidiaries
on the date hereof, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
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(z) Set forth on Schedule 4.01(z) hereto is a complete and accurate
list as of the date hereof of all patents, trademarks, trade names, service
marks and copyrights, and all applications therefor and licenses thereof,
of each Loan Party or any of its Subsidiaries, showing the jurisdiction in
which registered, the registration number, the date of registration and the
expiration date.
(aa) Set forth on Schedule 4.01(aa) hereto is a complete and accurate
list as of the date hereof of all Material Contracts of each Loan Party and
its Subsidiaries, showing the parties, subject matter and term thereof.
Each such Material Contract has been duly authorized, executed and
delivered by all parties thereto, has not been amended or otherwise
modified (except as set forth on Schedule 4.01(aa)), is in full force and
effect and is binding upon and enforceable against all parties thereto in
accordance with its terms, and there exists no default by a Loan Party or,
to the Borrower's knowledge, any other party thereto under any Material
Contract.
ARTICLE V
COVENANTS OF THE BORROWER
Affirmative Covenants. So long as any Advance or any other Obligation of
---------------------
any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit
shall be outstanding or any Lender Party shall have any Commitment hereunder,
the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
-------------------------
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all material taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien (other than a Permitted Lien) upon its property; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be required
to pay or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained in accordance with GAAP, unless and until any Lien
(other than a Permitted Lien) resulting therefrom attaches to its property and
becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of its
----------------------------------
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause each of
its Subsidiaries to obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its Subsidiaries to
conduct, any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action; provided, however, that neither the
Borrower nor any of its Subsidiaries
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shall be required to undertake any such cleanup, removal, remedial or other
action to the extent that its obligation to do so is being contested in good
faith and appropriate reserves are being maintained with respect to such
circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
------------------------
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
----------------------------------------
and cause each of its Subsidiaries to preserve and maintain, its existence,
legal structure, legal name, rights (charter and statutory), permits, licenses,
approvals, privileges and franchises; provided, however, that the Borrower and
its Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(d) and provided further neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right, permit, license, approval,
privilege or franchise if the Board of Directors of the Borrower or such
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Borrower or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any material respect
to the Borrower, such Subsidiary or the Lender Parties.
(f) Visitation Rights. Upon reasonable notice (so long as no Event of
-----------------
Default exists) from time to time during customary business hours, permit any of
the Agents or any of the Lender Parties, or any agents or representatives
thereof at their own expense (so long as no Event of Default exists), to examine
and make copies of and abstracts from the records and books of account of, and
visit the properties of, the Borrower and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their executive officers or directors and with their
independent certified public accountants. The Lender Parties and the Agents
shall make reasonable efforts to coordinate such visits so as to minimize
disruption of the Loan Parties' business.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
----------------
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
------------------------------
each of its Subsidiaries to maintain and preserve, all of its properties that
are used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of its
----------------------------
Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
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(j) Covenant to Guarantee Obligations and Give Security. Upon (x) the
---------------------------------------------------
request of the Collateral Agent following the occurrence and during the
continuance of an Event of Default, (y) the formation or acquisition of any new
direct or indirect Subsidiaries by any Loan Party or (z) the acquisition of any
property by any Loan Party, and such property, in the judgment of the Collateral
Agent, shall not already be subject to a perfected first priority security
interest in favor of the Collateral Agent for the benefit of the Secured
Parties, then the Borrower shall, in each case at the Borrower's expense:
(i) in connection with the formation or acquisition of a
Subsidiary, within 30 days after such formation or acquisition, cause
each such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (if it has not already done so), to duly execute and
deliver to the Collateral Agent a guaranty or guaranty supplement, in
form and substance satisfactory to the Collateral Agent, guaranteeing
the other Loan Parties' obligations under the Loan Documents,
(ii) within 30 days after such request, formation or
acquisition, furnish to the Collateral Agent a description of the real
and personal properties of the Loan Parties and their respective
Subsidiaries in detail satisfactory to the Collateral Agent,
(iii) within 30 days after such request, formation or
acquisition, duly execute and deliver, and cause each such Subsidiary
and each direct and indirect parent of such Subsidiary (if it has not
already done so) to duly execute and deliver, to the Collateral Agent
mortgages, pledges, assignments, security agreement supplements and
other security agreements, as specified by and in form and substance
satisfactory to the Collateral Agent, securing payment of all the
Obligations of the applicable Loan Party, such Subsidiary or such
parent, as the case may be, under the Loan Documents and constituting
Liens on all such properties,
(iv) within 30 days after such request, formation or
acquisition, take, and cause such Subsidiary or such parent to take,
whatever action (including, without limitation, the recording of
mortgages, the filing of Uniform Commercial Code financing statements,
the giving of notices and the endorsement of notices on title
documents) may be necessary or advisable in the opinion of the
Collateral Agent to vest in the Collateral Agent (or in any
representative of the Collateral Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the
mortgages, pledges, assignments, security agreement supplements and
security agreements delivered pursuant to this Section 5.01(j),
enforceable against all third parties in accordance with their terms,
(v) within 60 days after such request, formation or
acquisition, deliver to the Collateral Agent, upon the request of the
Collateral Agent in its sole discretion, a signed copy of a favorable
opinion, addressed to the Collateral Agent and the other Secured
Parties, of counsel for the Loan Parties acceptable to the Collateral
Agent as to the matters contained in clauses (i), (iii) and (iv)
above, as to such guaranties, guaranty supplements, mortgages,
pledges, assignments,
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security agreement supplements and security agreements being legal,
valid and binding obligations of each Loan Party party thereto
enforceable in accordance with their terms, as to the matters
contained in clause (iv) above, as to such recordings, filings,
notices, endorsements and other actions being sufficient to create
valid perfected Liens on such properties, and as to such other matters
as the Collateral Agent may reasonably request,
(vi) as promptly as practicable after such request, formation
or acquisition, deliver, upon the request of the Collateral Agent in
its sole discretion, to the Collateral Agent with respect to each
parcel of real property owned or held by the entity that is the
subject of such request, formation or acquisition title reports,
surveys and engineering, soils and other reports, and environmental
assessment reports, each in scope, form and substance satisfactory to
the Collateral Agent in its reasonable judgment, provided, however,
that to the extent that any Loan Party or any of its Subsidiaries
shall have otherwise received any of the foregoing items with respect
to such real property, such items shall, promptly after the receipt
thereof, be delivered to the Collateral Agent, and
(vii) as promptly as practicable after such request, cause to
be deposited any and all cash dividends paid or payable to it or any
of its Subsidiaries from any of its Subsidiaries from time to time
into the Cash Collateral Account, and with respect to all other
dividends paid or payable to it or any of its Subsidiaries from time
to time, promptly execute and deliver, or cause such Subsidiary to
promptly execute and deliver, as the case may be, any and all further
instruments and take or cause such Subsidiary to take, as the case may
be, all such other action as the Collateral Agent may deem necessary
or desirable in order to obtain and maintain from and after the time
such dividend is paid or payable a perfected, first priority lien on
and security interest in such dividends.
(k) Further Assurances. Promptly upon request by any Agent, or any
------------------
Lender Party through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all
such further acts, deeds, conveyances, pledge agreements, mortgages, deeds of
trust, trust deeds, assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as any Agent, or any Lender Party through the
Administrative Agent, may reasonably require from time to time in order to (A)
carry out more effectively the purposes of the Loan Documents, (B) to the
fullest extent permitted by applicable law, subject any Loan Party's or any of
its Subsidiaries' properties, assets, rights or interests to the Liens now or
hereafter intended to be covered by any of the Collateral Documents, (C) perfect
and maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created thereunder and (D) assure,
convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which any Loan Party
or any of its Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.
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(l) Performance of Related Documents. Perform and observe, and cause
--------------------------------
each of its Subsidiaries to perform and observe, all of the terms and provisions
of each Related Document to be performed or observed by it, maintain each such
Related Document in full force and effect, enforce such Related Document in
accordance with its terms, take all such action to such end as may be from time
to time reasonably requested by the Administrative Agent and, upon request of
the Administrative Agent, make to each other party to each such Related Document
such demands and requests for information and reports or for action as any Loan
Party or any of its Subsidiaries is entitled to make under such Related
Document.
(m) Preparation of Environmental Reports. At the request of the
------------------------------------
Administrative Agent or the Collateral Agent at any time after a notice of
violation or alleged violation of any applicable Environmental Law (including
any "PRP Letter") has been received by a Loan Party and not finally resolved
pursuant to which the Loan Party is reasonably likely to incur liability in
excess of $100,000, provide to the Lender Parties within 60 days after such
request, at the expense of the Borrower, an environmental site assessment report
for any of its or its Subsidiaries' properties described in such request,
prepared by an environmental consulting firm acceptable to the Administrative
Agent or the Collateral Agent, indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance, removal or remedial action
in connection with any Hazardous Materials on such properties; without limiting
the generality of the foregoing, if the Administrative Agent or the Collateral
Agent determines at any time that a material risk exists that any such report
will not be provided within the time referred to above, the Administrative Agent
or the Collateral Agent may retain an environmental consulting firm to prepare
such report at the expense of the Borrower, and the Borrower hereby grants and
agrees to cause any Subsidiary that owns any property described in such request
to grant at the time of such request to the Agents, the Lender Parties, such
firm and any agents or representatives thereof an irrevocable non-exclusive
license, subject to the rights of tenants, to enter onto their respective
properties to undertake such an assessment.
(n) Compliance with Terms of Leaseholds. Make all payments and
-----------------------------------
otherwise perform all obligations in respect of all leases of real property to
which the Borrower or any of its Subsidiaries is a party, keep such leases in
full force and effect and not allow such leases to lapse or be terminated or any
rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such leases and
cooperate with the Administrative Agent in all respects to cure any such
default, and cause each of its Subsidiaries to do so, except, in any case, where
the failure to do so, either individually or in the aggregate, could not be
reasonably likely to have a Material Adverse Effect.
(o) Interest Rate Hedging. Enter into within 60 days following the
---------------------
date hereof and maintain for three years thereafter, interest rate Hedge
Agreements with Persons acceptable to the Administrative Agent, covering a
notional amount of not less than 50% of the Commitments under all of the
Facilities and providing for such Persons to make payments thereunder for a
period of no less than 3 years to the extent of increases in interest rates
greater than 1.0% above the weighted average Eurodollar Rate for an Interest
Period of one month on the date hereof.
(p) Performance of Material Contracts. Perform and observe all the
---------------------------------
terms and provisions of each Material Contract to be performed or observed by
it, maintain each such
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Material Contract in full force and effect, enforce each such Material Contract
in accordance with its terms, take all such action to such end as may be from
time to time requested by the Administrative Agent and, upon request of the
Administrative Agent, make upon each other party to each such Material Contract
such demands and requests for information and reports or for action as any Loan
Party or any of its Subsidiaries is entitled to make under such Material
Contract, and cause each of its Subsidiaries to do so, except, in any case,
where the failure to do so, either individually or in the aggregate, could not
be reasonably likely to have a Material Adverse Effect.
(q) Conditions Subsequent. (i) Deliver to the Administrative Agent on
---------------------
or before the 90/th/ day after the Effective Date (or as provided below), the
following, each dated such day (unless otherwise specified) in form and
substance satisfactory to the Lenders: Deeds of trust, trust deeds, mortgages,
covering the properties listed on Schedules 4.01(w) hereto (together with the
Assignments of Leases and Rents referred to therein and each other mortgage
delivered pursuant to Section 5.01(j), in each case as amended, the
"Mortgages"), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly
recorded in all filing or recording offices that the Administrative
Agent may deem necessary or desirable in order to create a valid first
and subsisting Lien on the property described therein in favor of the
Collateral Agent for the benefit of the Secured Parties and that all
filing and recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender's Extended
Coverage title insurance policies (the "Mortgage Policies") in form
and substance, with endorsements and in amount acceptable to the
Administrative Agent, issued, coinsured and reinsured by title
insurers acceptable to the Administrative Agent, insuring the
Mortgages to be valid first and subsisting Liens on the property
described therein, free and clear of all defects (including, but not
limited to, mechanics' and materialmen's Liens) and encumbrances,
excepting only Permitted Liens, and providing for such other
affirmative insurance (including endorsements for future advances
under the Loan Documents and for mechanics' and materialmen's Liens)
and such coinsurance and direct access reinsurance as the
Administrative Agent may deem necessary or desirable,
(C) American Land Title Association form surveys certified to the
Administrative Agent and the issuer of the Mortgage Policies in a
manner reasonably satisfactory to the Administrative Agent by a land
surveyor duly registered and licensed in the States in which the
property described in such surveys is located and acceptable to the
Administrative Agent, showing all buildings and other improvements,
any off-site improvements, the location of any easements, parking
spaces, rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such
improvements or on to such property, and other defects, other than
encroachments and other defects reasonably acceptable to the
Administrative Agent,
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(D) the Assignments of Leases and Rents referred to in the
Mortgages, duly executed by the appropriate Loan Party,
(E) such consents and agreements of lessors and other third
parties, and such estoppel letters and other confirmations, as the
Administrative Agent may reasonably deem necessary or desirable,
(F) evidence of the insurance required by the terms of the
Mortgages, and
(G) evidence that all other action that the Administrative Agent
may reasonably deem necessary or desirable in order to create valid
first and subsisting Liens on the property described in the Mortgages
has been taken.
(i) cause CFW Telephone Inc. to deliver a Guaranty Supplement and security
agreement supplement together with evidence that all necessary governmental,
regulatory or other approval has been obtained on or prior to September 15,
2000.
(ii) on or before the 30/th/ day after the Effective Date, cause North
River Communications LLC and AEP Communications LLC to each deliver a pledge
agreement in connection with the Alliance Notes and cause North River Telephone
Cooperative and American Electric Power Company to each deliver a guaranty in
connection with the Alliance Notes.
Negative Covenants. So long as any Advance or any other Obligation of any
------------------
Loan Party under any Loan Document shall remain unpaid, any Letter of Credit
shall be outstanding or any Lender Party shall have any Commitment hereunder,
the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
----------
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names the
Borrower or any of its Subsidiaries as debtor, or sign or suffer to exist,
or permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on
Schedule 4.01(v) hereto;
(iv) purchase money Liens upon or in real property or equipment
acquired or held by the Borrower or any of its Subsidiaries in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition,
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construction or improvement of any such property or equipment to be
subject to such Liens, or Liens existing on any such property or
equipment at the time of acquisition (other than any such Liens
created in contemplation of such acquisition that do not secure the
purchase price), or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; provided, however, that no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved, and no
such extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended, renewed
or replaced; and provided further that the aggregate principal amount
of the Debt secured by Liens permitted by this clause (iv) shall not
exceed the amount permitted under Section 5.02(b)(iii)(B) at any time
outstanding; and
(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii)(B); provided that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases;
(vi) other Liens affecting property with an aggregate fair value
not to exceed $10 million, provided that no such Lien shall extend to
or cover any Collateral; and
(vii) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property therefore
subject thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor)
of the Debt secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
----
its Subsidiaries to create, incur, assume or suffer to exist, any Debt,
except:
(i) in the case of the Borrower,
(A) Debt in respect of Hedge Agreements designed to hedge against
fluctuations in interest rates incurred in the ordinary course of
business and consistent with prudent business practice,
(B) Subordinated Debt evidenced by the Subordinated Notes not to
exceed in the aggregate $95 million at any time outstanding, and
(C) Debt evidenced by the Senior Notes not to exceed in the
aggregate (1) if the Subordinated Notes are outstanding, $280 million
at any time outstanding and (2) if the Subordinated Notes are not
outstanding, $375 million at any time outstanding,
(ii) in the case of any Subsidiary of the Borrower or the
Alliances, Debt owed to the Borrower or to a Subsidiary of the Borrower or
the Alliances, provided that, in each case, such Debt (x) shall, in the
case of Debt owed to a Loan Party, constitute Pledged Debt and (y) shall be
evidenced by promissory notes in form and
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substance satisfactory to the Administrative Agent, and provided further
that Debt owed to the Borrower by the Alliances shall not exceed $250
million at any time outstanding;
(iii) in the case of the Borrower and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) (x) Capitalized Leases entered into after the Effective Date
not to exceed in the aggregate (together with any outstanding
principal amount of Debt permitted under clause (C) and (E) below) $50
million at any time outstanding, and (y) in the case of Capitalized
Leases to which any Subsidiary of the Borrower is a party, Debt of the
Borrower of the type described in clause (i) of the definition of
"Debt" guaranteeing the Obligations of such Subsidiary under such
Capitalized Leases,
(C) Debt secured by Liens permitted by Section 5.02(a)(iv) not to
exceed in the aggregate (together with any Capitalized Leases
permitted under Clause B above and any outstanding principal amount of
Debt permitted under clause E below) $50 million at any time
outstanding,
(D) the Surviving Debt,
(E) unsecured Debt aggregating (together with any outstanding
Capitalized Leases permitted under Clause (B) above and any
outstanding principal amount of Debt permitted under clause (C)
above), on a Consolidated basis, not more than $50 million at any one
time outstanding, and
(F) Debt incurred to finance the acquisition of licenses in
auctions held by the FCC in an aggregate principal amount not to
exceed $15 million at any time outstanding.
(c) Change in Nature of Business. Engage, or permit any of its
----------------------------
Subsidiaries to engage, in any business other than a Related Business.
(d) Mergers, Etc. Merge into or consolidate with any Person or
------------
permit any Person to merge into it, or permit any of its Subsidiaries to do
so, except that:
(i) any Subsidiary of the Borrower may merge into or
consolidate with any other Subsidiary of the Borrower, provided that,
in the case of any such merger or consolidation, the Person formed by
such merger or consolidation shall be a wholly owned Subsidiary of the
Borrower, provided further that, in the case of any such merger or
consolidation to which a Subsidiary Guarantor is a party, the Person
formed by such merger or consolidation shall be a Subsidiary
Guarantor;
(ii) in connection with any acquisition permitted under Section
5.02(f), any Subsidiary of the Borrower may merge into or consolidate
with any other Person or permit any other Person to merge into or
consolidate with it; provided
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that the Person surviving such merger shall be a wholly owned
Subsidiary of the Borrower;
(iii) in connection with any sale or other disposition permitted
under Section 5.02(e) (other than clause (ii) thereof), any Subsidiary
of the Borrower may merge into or consolidate with any other Person or
permit any other Person to merge into or consolidate with it; and
(iv) any of the Borrower's Subsidiaries may merge into the
Borrower.
provided, however, that in each case, immediately after giving effect
thereto, no event shall occur and be continuing that constitutes a Default
and, in the case of any such merger to which the Borrower is a party, the
Borrower is the surviving corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
----------------------
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, or grant any option or other right to
purchase, lease or otherwise acquire any assets other than Inventory to be sold
in the ordinary course of its business, except:
(i) sales of Inventory in the ordinary course of its business;
(ii) in a transaction authorized by Section 5.02(d) (other than
subsection (iii) thereof);
(iii) sales of assets for fair value in an aggregate amount not
to exceed $50 million, provided that at least 75% of the consideration
for each such sale shall be in cash;
(iv) sales of assets identified on Schedule 5.02(e) hereto for
cash (except as specified on Schedule 5.02(e) hereto); and
(v) dispositions of fibre or capacity in exchange for an
Investment permitted pursuant to Section 5.02(f);
provided that, in the case of sales of assets pursuant to clause (iii),
(iv) or (v) above, the Borrower shall, on the date of receipt by any Loan
Party or any of its Subsidiaries of the Net Cash Proceeds from such sale,
prepay the Advances pursuant to, and in the amount and order of priority
set forth in, Section 2.06(b)(ii), as specified therein.
(f) Investments in Other Persons. Make or hold, or permit any of its
----------------------------
Subsidiaries to make or hold, any Investment in any Person, except:
(i) Investments by the Borrower and its Subsidiaries in their
Subsidiaries outstanding on the date hereof and additional investments
in Loan Parties;
(ii) loans and advances to and guarantees of third-party loans
or advances to employees in the ordinary course of the business of the
Borrower and
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its Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $5 million at any time outstanding;
(iii) Investments by the Borrower and its Subsidiaries in Cash
Equivalents;
(iv) Investments existing on the date hereof and described on
Schedule 4.01(y) hereto;
(v) Investments by the Borrower in Hedge Agreements permitted
under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt permitted
under Section 5.02(b);
(vii) Investments in the Alliance Notes, provided that the
aggregate amount of such Investments shall not exceed $250 million at
any time outstanding;
(viii) acquisitions of Equity Interests in RSA 6;
(ix) acquisitions of Equity Interests in the Alliances;
(x) the repurchase or redemption of the Series A Preferred
Membership Interests (as defined in the Operating Agreement of the VA
Alliance) in the VA Alliance;
(xi) acquisition of Equity Interests in R&B;
(xii) Strategic Telecom Investments in an aggregate principal
amount not to exceed $15 million at any time outstanding;
(xiii) Other Strategic Telecom Investments the consideration for
which is solely common stock of the Borrower having an aggregate
purchase price not greater than $50 million; and
(xiv) An Investment in RTFC Certificates in an aggregate
principal amount not to exceed $10 million at any time outstanding.
(g) Restricted Payments. Declare or pay any dividends, purchase,
-------------------
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its stockholders,
partners or members (or the equivalent Persons thereof) as such, make any
distribution of assets, Equity Interests, obligations or securities to its
stockholders, partners or members (or the equivalent Persons thereof) as such or
issue or sell any Equity Interests or accept any capital contributions, or
permit any of its Subsidiaries to do any of the foregoing, or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value
any Equity Interests in the Borrower or to issue or sell any Equity Interests
75
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therein, except that, so long as no Default shall have occurred and be
continuing at the time of any action described in clause (i) or (ii) below or
would result therefrom:
(i) the Borrower may (A) declare and pay dividends and
distributions payable only in common stock of the Borrower and (B) pay
not more than $250,000 to shareholders in lieu of the issuance of
fractional shares of common stock of the Borrower,
(ii) any Subsidiary of the Borrower may (A) declare and pay cash
dividends to the Borrower, (B) declare and pay cash dividends to any
other Loan Party of which it is a Subsidiary and (C) accept capital
contributions from its parent to the extent permitted under Section
5.02(f)(i), and
(iii) the Borrower and its Subsidiaries may make the Investments
permitted pursuant to Section 5.02(f).
(h) Lease Obligations. Create, incur, assume or suffer to exist, or
-----------------
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
obligations as lessee (i) for the rental or hire of real or personal property in
connection with any sale and leaseback transaction, or (ii) for the rental or
hire of other real or personal property of any kind under leases or agreements
to lease (including, without limitation, Capitalized Leases) having an original
term of one year or more that would cause the direct and contingent liabilities
of the Borrower and its Subsidiaries, on a Consolidated basis, in respect of all
such obligations to exceed $35 million payable in any period of 12 consecutive
months.
(i) Amendments of Constitutive Documents. Amend, or permit any of its
------------------------------------
Subsidiaries to amend, its certificate of incorporation or bylaws or other
constitutive documents.
(j) Accounting Changes. Make or permit, or permit any of its
------------------
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required by generally accepted accounting
principles, or (ii) its Fiscal Year.
(k) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease or
--------------------------
otherwise satisfy prior to the scheduled maturity thereof in any manner, or make
any payment in violation of any subordination terms of, any Debt, except (i) the
prepayment of the Advances in accordance with the terms of this Agreement and
(ii) regularly scheduled or required repayments or redemptions of Surviving
Debt, or amend, modify or change in any manner any term or condition of any
Surviving Debt or Subordinated Debt, or permit any of its Subsidiaries to do any
of the foregoing other than to prepay any Debt payable to the Borrower.
(l) Amendment, Etc., of Related Documents. Cancel or terminate any
-------------------------------------
Related Document or consent to or accept any cancellation or termination thereof
(except for repayments in full), amend, modify or change in any manner any term
or condition of any Related Document or give any consent, waiver or approval
thereunder, waive any default under or any breach of any term or condition of
any Related Document, agree in any manner to any other amendment, modification
or change of any term or condition of any Related Document or take any other
action in connection with any Related Document, in each case that would impair
the value of the
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interest or rights of any Loan Party thereunder or that would impair the rights
or interests of any Agent or any Lender Party, or permit any of its Subsidiaries
to do any of the foregoing.
(m) Negative Pledge. Enter into or suffer to exist, or permit any of
---------------
its Subsidiaries to enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien upon any of its property or
assets except (i) under the Loan Documents or (ii) in connection with (A) any
Surviving Debt, (B) any purchase money Debt permitted by Section 5.02(b)(iii)(C)
solely to the extent that the agreement or instrument governing such Debt
prohibits a Lien on the property acquired with the proceeds of such Debt, or (C)
any Capitalized Lease permitted by Section 5.02(b)(iii)(B) solely to the extent
that such Capitalized Lease prohibits a Lien on the property subject thereto.
(n) Partnerships, Etc. Become a general partner in any general or
-----------------
limited partnership or joint venture, or permit any of its Subsidiaries to do
so, other than any Subsidiary the sole assets of which consist of its interest
in such partnership or joint venture.
(o) Speculative Transactions. Engage, or permit any of its
------------------------
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any similar speculative transactions.
(p) Capital Expenditures. Make, or permit any of its Subsidiaries to
--------------------
make, any Capital Expenditures that would cause the aggregate of all such
Capital Expenditures made by the Borrower and its Subsidiaries (on a
Consolidated basis) in any period set forth below to exceed the amount set forth
below for such period:
Year Ending In Amount
12/31/00 $115 million
12/31/01 $105 million
12/31/02 $ 65 million
12/31/03 $ 60 million
12/31/04 $ 60 million
12/31/05 $ 60 million
12/31/06 $ 60 million
12/31/07 $ 60 million
12/31/08 $ 60 million
provided, however, that if, for any Fiscal Year set forth above, the amount
specified above for such Fiscal Year exceeds the difference between (i) the
aggregate amount of Capital Expenditures made by the Borrower and its
Subsidiaries during such Fiscal Year and (ii) the Carryover Amount carried into
such Fiscal Year (the amount of such excess being the "Excess Amount"), the
Borrower and its Subsidiaries shall be entitled to make additional Capital
Expenditures in the immediately succeeding Fiscal Year in an amount (such amount
being referred to herein as the "Carryover Amount") equal to the lesser of (i)
the Excess Amount and (ii) 50% of the amount specified above for such
immediately preceding Fiscal Year; provided further that each amount above shall
be reduced by 10% until the R&B Acquisition Date shall occur; provided further
that the Borrower and its Subsidiaries shall be entitled to make additional
Capital Expenditures over the term of the Facilities in an aggregate amount
equal to $15 million
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<PAGE>
solely in connection with the purchases of licenses; provided further still that
the Borrower and its Subsidiaries shall be entitled to make additional Capital
Expenditures in the year ending December 31, 2001 in an aggregate amount equal
to $25 million and that 100% of such amount if not expended in that year may be
expended in the year ending December 31, 2002.
(q) Formation of Subsidiaries. Organize or invest, or permit any
-------------------------
Subsidiary to organize or invest, in any new Subsidiary except as permitted
under Section 5.02(f)(i), (xii) or (xiii).
(r) Payment Restrictions Affecting Subsidiaries. Directly or
-------------------------------------------
indirectly, enter into or suffer to exist, or permit any of its Subsidiaries to
enter into or suffer to exist, any agreement or arrangement limiting the ability
of any of its Subsidiaries to declare or pay dividends or other distributions in
respect of its Equity Interests or repay or prepay any Debt owed to, make loans
or advances to, or otherwise transfer assets to or invest in, the Borrower or
any Subsidiary of the Borrower (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant or
otherwise), except (i) the Loan Documents and (ii) any agreement or instrument
evidencing Surviving Debt.
(s) Amendment, Etc., of Material Contracts. Cancel or terminate any
--------------------------------------
Material Contract or consent to or accept any cancellation or termination
thereof, amend or otherwise modify any Material Contract or give any consent,
waiver or approval thereunder, waive any default under or breach of any Material
Contract, agree in any manner to any other amendment, modification or change of
any term or condition of any Material Contract or take any other action in
connection with any Material Contract, in each case that would impair in any
material respect the value of the interest or rights of any Loan Party
thereunder or that would impair in any material respect the interest or rights
of any Agent or any Lender Party, or permit any of its Subsidiaries to do any of
the foregoing.
(t) Distributions by Alliances. (i) Permit either of the Alliances
--------------------------
to make any distribution to its members (other than to redeem Series A Preferred
Membership Interests in the VA Alliance) at any time that the Leverage Ratio is
greater than or equal to 6.0:1.0 and (ii) permit either of the Alliances to make
any distribution to its members (other than to redeem series A Preferred
Membership Interests in the VA Alliance) in excess of 25% of the net income of
such Alliance (determined in accordance with GAAP) at any time that the Leverage
Ratio is less than 6.0:1.0.
Reporting Requirements. So long as any Advance or any other Obligation of
----------------------
any Loan Party under any Loan Document shall remain unpaid, any Letter of Credit
shall be outstanding or any Lender Party shall have any Commitment hereunder,
the Borrower will furnish to the Agents and the Lender Parties:
(a) Default Notice. As soon as possible and in any event within two
--------------
days after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Borrower setting
forth details of such Default and the action that the Borrower has taken and
proposes to take with respect thereto.
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(b) Annual Financials. As soon as available and in any event within
-----------------
90 days after the end of each Fiscal Year, a copy of the annual audit report for
such year for the Financial Covenants Parties, including therein Consolidated
and consolidating balance sheets of the Financial Covenants Parties as of the
end of such Fiscal Year and Consolidated and consolidating statements of income
and a Consolidated statement of cash flows of the Financial Covenants Parties
for such Fiscal Year, in each case accompanied by an opinion acceptable to the
Required Lenders of independent public accountants of recognized standing
acceptable to the Required Lenders in their reasonable judgment (provided that
consolidating financial statements shall not be audited), together with (i) a
certificate of such accounting firm to the Lender Parties stating that in the
course of the regular audit of the business of the Financial Covenants Parties,
which audit was conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no knowledge that
a Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement as to the
nature thereof, (ii) a schedule in form satisfactory to the Administrative Agent
of the computations used by such accountants in determining, as of the end of
such Fiscal Year, compliance with the covenants contained in Section 5.04,
provided that, in the event of any change in GAAP used in the preparation of
such financial statements, the applicable Financial Covenants Party shall also
provide, if necessary for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements to GAAP and
(iii) a certificate of the Chief Financial Officer of the applicable Financial
Covenants Party stating that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature thereof and
the action that the applicable Financial Covenants Party has taken and proposes
to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event
--------------------
within 45 days after the end of each of the first three quarters of each Fiscal
Year, Consolidated and consolidating balance sheets of the Financial Covenants
Parties as of the end of such quarter and Consolidated and consolidating
statements of income and a Consolidated statement of cash flows of the Financial
Covenants Parties for the period commencing at the end of the previous fiscal
quarter and ending with the end of such fiscal quarter and Consolidated and
consolidating statements of income and a Consolidated statement of cash flows of
the Financial Covenants Parties for the period commencing at the end of the
previous Fiscal Year and ending with the end of such quarter, setting forth in
each case in comparative form the corresponding figures for the corresponding
date or period of the preceding Fiscal Year, all in reasonable detail and duly
certified (subject to normal year-end audit adjustments) by the Chief Financial
Officer of the applicable Financial Covenants Party as having been prepared in
accordance with GAAP, together with (i) a certificate of said officer stating
that no Default has occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the action that the
Borrower has taken and proposes to take with respect thereto and (ii) a schedule
in form satisfactory to the Administrative Agent of the computations used by the
Financial Covenants Parties in determining compliance with the covenants
contained in Section 5.04, provided that, in the event of any change in GAAP
used in the preparation of such financial statements, the Financial Covenants
Parties shall also provide, if necessary for the determination of compliance
with Section 5.04, a statement of reconciliation conforming such financial
statements to GAAP.
(d) Annual Forecasts. As soon as available and in any event no later
----------------
than 45 days after the first day of each Fiscal Year, forecasts prepared by
management of the Borrower, in
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form satisfactory to the Administrative Agent, of balance sheets, income
statements and cash flow statements on a monthly basis for such Fiscal Year and
on an annual basis for each Fiscal Year thereafter until the Tranche B
Termination Date.
(e) Litigation. Promptly after the commencement thereof, notice of
----------
all actions, suits, investigations, litigation and proceedings before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of its
Subsidiaries of the type described in Section 4.01(f).
(f) Securities Reports. Promptly after the sending or filing thereof,
------------------
copies of all proxy statements, financial statements and reports that any Loan
Party or any of its Subsidiaries sends to its stockholders, and copies of all
regular, periodic and special reports, and all registration statements, that any
Loan Party or any of its Subsidiaries files with the Securities and Exchange
Commission or any governmental authority that may be substituted therefor, or
with any national securities exchange.
(g) Creditor Reports. Promptly after the furnishing thereof, copies
----------------
of any statement or report furnished to any holder of Debt securities of any
Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture,
loan or credit or similar agreement and not otherwise required to be furnished
to the Lender Parties pursuant to any other clause of this Section 5.03.
(h) Agreement Notices. Promptly upon receipt thereof, copies of all
-----------------
notices, requests and other documents received by any Loan Party or any of its
Subsidiaries under or pursuant to any Related Document or Material Contract or
instrument, indenture, loan or credit or similar agreement regarding or related
to any breach or default by any party thereto or any other event that could
materially impair the value of the interests or the rights of any Loan Party or
otherwise have a Material Adverse Effect and copies of any amendment,
modification or waiver of any provision of any Related Document or Material
Contract or instrument, indenture, loan or credit or similar agreement and, from
time to time upon request by the Administrative Agent, such information and
reports regarding the Related Documents, the Material Contracts and such
instruments, indentures and loan and credit and similar agreements as the
Administrative Agent may reasonably request.
(i) Revenue Agent Reports. Within 10 Business Days after receipt,
---------------------
copies of all Revenue Agent Reports (including Internal Revenue Service Forms
4549 and 886A, if received), or other written proposals of the Internal Revenue
Service, that propose, determine or otherwise set forth positive adjustments to
the Federal income tax liability of the affiliated group (within the meaning of
Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower is a
member aggregating $1,000,000 or more, provided that the Borrower shall not be
obligated to disclose any information that the Borrower reasonably deems
confidential.
(j) Tax Certificates. Promptly, and in any event within ten Business
----------------
Days after the due date (with extensions) for filing the final Federal income
tax return in respect of each taxable year, a certificate (a "Tax Certificate"),
signed by the President or the Chief Financial Officer of the Borrower, stating
that the Borrower and its Subsidiaries have paid to the Internal
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Revenue Service or other taxing authority, the full amount that is shown on such
return as being required to be paid in respect of Federal income tax for such
year.
ERISA. ERISA Events and ERISA Reports. (A) Promptly and in any
----- ------------------------------
event within 10 days after any Loan Party or any ERISA Affiliate knows or
has reason to know that any ERISA Event has occurred, a statement of the
Chief Financial Officer of the Borrower describing such ERISA Event and the
action, if any, that such Loan Party or such ERISA Affiliate has taken and
proposes to take with respect thereto and (B) on the date any records,
documents or other information must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information.
(i) Plan Terminations. Promptly and in any event within two
-----------------
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
involuntarily to terminate any Plan or to have a trustee appointed to
administer any Plan.
(ii) Plan Annual Reports. Promptly and in any event within 30
-------------------
days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information), if any, required to
be attached to the annual report (Form 5500 Series) with respect to
each Plan.
(iii) Multiemployer Plan Notices. Promptly and in any event
--------------------------
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies
of each notice concerning (A) the imposition of Withdrawal Liability
by any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (C) the amount of liability incurred, or that may be incurred,
by such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(l) Environmental Conditions. Promptly after the assertion or
------------------------
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be expected
to have a Material Adverse Effect or (ii) cause any property described in the
Mortgages to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that would interfere in the use of
such property for its current purposes.
(m) Real Property. As soon as available and in any event within 30
-------------
days after the end of each Fiscal Year, a report supplementing Schedules 4.01(w)
and 4.01(x) hereto, including an identification of all owned and leased real
property disposed of by the Borrower or any of its Subsidiaries during such
Fiscal Year, a list and description (including the street address, county or
other relevant jurisdiction, state, record owner, book value thereof and, in the
case of leases of property, lessor, lessee, expiration date and annual rental
cost thereof) of all real property acquired or leased during such Fiscal Year
and a description of such other changes in the
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<PAGE>
information included in such Schedules as may be necessary for such Schedules to
be accurate and complete.
(n) Insurance. As soon as available and in any event within 30 days
---------
after the end of each Fiscal Year, a report summarizing the insurance coverage
(specifying type, amount and carrier) in effect for each Loan Party and its
Subsidiaries and containing such additional information as any Agent, or any
Lender Party through the Administrative Agent, may reasonably specify.
(o) Other Information. Such other information respecting the
-----------------
business, condition (financial or otherwise), operations, performance or
properties of any Loan Party or any of its Subsidiaries as any Agent, or any
Lender Party through the Administrative Agent, may from time to time reasonably
request.
Financial Covenants. So long as any Advance or any other Obligation of any
-------------------
Loan Party under any Loan Document shall remain unpaid, any Letter of Credit
shall be outstanding or any Lender Party shall have any Commitment hereunder:
(a) Until the Transition Date:
(i) Senior Debt to Total Capital. The Borrower will not permit
----------------------------
the ratio of Consolidated Debt for Borrowed Money of the Borrower and
its Subsidiaries (other than Subordinated Debt) to Total Capital in
each case on any day on which a Borrowing occurs and the last day of
each fiscal quarter of the Borrower to exceed 35%.
(ii) Total Debt to Total Capital. The Borrower will not permit
---------------------------
the ratio of Total Debt to Total Capital in each case on any day on
which a Borrowing occurs and the last day of each fiscal quarter of
the Borrower to exceed 75%.
(iii) Aggregate Service Revenue. The Borrower will not permit
-------------------------
Aggregate Service Revenue for the four fiscal quarter period ending at
the end of each fiscal quarter of the Borrower set forth below to be
less than Aggregate Service Revenue set forth opposite such date
(provided that (x) until the R&B Acquisition Date occurs, each amount
below shall be reduced by $15 million, and (y) compliance for the
quarter ending 9/30/00 shall be determined based on the product of
Aggregate Service Revenue for the two fiscal quarter period ended on
9/30/00 multiplied by two, and compliance for the quarter ended
12/31/00 shall be determined based on the product of Aggregate Service
Revenue for the three fiscal quarter period ended on 12/31/00
multiplied by 4/3):
Quarter Ending Minimum Aggregate
Service Revenue
9/30/00 $117 million
12/31/00 $130 million
3/31/01 $139 million
6/30/01 $160 million
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9/30/01 $172 million
12/31/01 $186 million
3/31/02 $198 million
6/30/02 $211 million
9/30/02 $223 million
12/31/02 $236 million
(iv) Subscribers. The Borrower will not permit the number of
-----------
Subscribers for the fiscal quarter of the Borrower ending on the date
set forth below to be less than the number of Subscribers set forth
opposite such date:
Date Minimum
Subscribers
9/30/00 121 thousand
12/31/00 133 thousand
3/31/01 146 thousand
6/30/01 157 thousand
9/30/01 171 thousand
12/31/01 187 thousand
3/31/02 201 thousand
6/30/02 212 thousand
9/30/02 224 thousand
12/31/02 241 thousand
(v) Minimum EBITDA. The Borrower will not permit EBITDA for the
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four fiscal quarter period ending at the end of each fiscal quarter of
the Borrower set forth below to be less than EBITDA set forth opposite
such date (provided that (x) until the R&B Acquisition Date occurs,
each amount below shall be reduced by $8 million, and (y) compliance
for the quarter ending 9/30/00 shall be determined based on the
product of EBITDA for the two fiscal quarter period ended on 9/30/00
multiplied by two, and compliance for the quarter ended 12/31/00 shall
be determined based on the product of EBITDA for the three fiscal
quarter period ended on 12/31/00 multiplied by 4/3):
Date Minimum
EBITDA
9/30/00 $ 0 million
12/31/00 $ 0 million
3/31/01 $ 8 million
6/30/01 $10 million
9/30/01 $14 million
12/31/01 $17 million
3/31/02 $35 million
6/30/02 $43 million
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9/30/02 $51 million
12/31/02 $57 million
(b) After the Transition Date, the Borrower will:
(i) Leverage Ratio. Maintain at the end of each fiscal quarter
--------------
of the Borrower ending during the year set forth below, a Leverage
Ratio of not more than the ratio for such year set forth below:
Year Ending Ratio
12/31/03 7.00x
12/31/04 5.00x
12/31/05 3.75x
12/31/06 3.75x
12/31/07 3.75x
12/31/08 3.75x
(ii) Senior Leverage Ratio. Maintain at the end of each fiscal
---------------------
quarter of the Borrower ending during the year set forth below, a
Senior Leverage Ratio of not more than the ratio for such year set
forth below:
Year Ending Ratio
12/31/03 3.00x
12/31/04 2.50x
12/31/05 2.50x
12/31/06 2.50x
12/31/07 2.50x
12/31/08 2.50x
(iii) Interest Coverage Ratio. Maintain at the end of each
-----------------------
fiscal quarter of the Borrower ending during the year set forth below,
an Interest Coverage Ratio of not less than the ratio for such year
set forth below:
Year Ending Ratio
12/31/03 1.25x
12/31/04 1.50x
12/31/05 2.00x
12/31/06 2.50x
12/31/07 2.50x
12/31/08 2.50x
(iv) Fixed Charge Coverage Ratio. Maintain at the end of each
---------------------------
fiscal quarter of the Borrower ending during the year set forth below,
a Fixed Charge Coverage Ratio of not less than the ratio for such year
set forth below:
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Year Ending Ratio
12/31/03 1.25x
12/31/04 1.50x
12/31/05 1.75x
12/31/06 2.25x
12/31/07 2.50x
12/31/08 2.50x
ARTICLE VI
EVENTS OF DEFAULT
Events of Default. If any of the following events ("Events of Default")
-----------------
shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) the Borrower shall fail to
pay any interest on any Advance, or any Loan Party shall fail to make any other
payment under any Loan Document, in each case under this clause (ii) within
three Business Days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to have
been incorrect in any material respect when made; or
(c) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 2.14, 5.01(e), (f), (i), (j), (m) (p) or (q),
5.02, 5.03 or 5.04; or
(d) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be performed
or observed if such failure shall remain unremedied for 20 days after the
earlier of the date on which (i) a Responsible Officer becomes aware of such
failure or (ii) written notice thereof shall have been given to the Borrower by
any Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on any Debt that is outstanding in a principal
amount (or, in the case of any Hedge Agreement, an Agreement Value) of at least
$5 million either individually or in the aggregate (but excluding Debt
outstanding hereunder) of such Loan Party or such Subsidiary (as the case may
be), when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit
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the acceleration of, the maturity of such Debt or otherwise to cause, or to
permit the holder thereof to cause, such Debt to mature; or any such Debt shall
be declared to be due and payable or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Loan Party or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it)
that is being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or any Loan Party or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
subsection (f); or
(g) any judgment or order for the payment of money in excess of
$5,000,000 shall be rendered against any Loan Party or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could be reasonably likely to have a
Material Adverse Effect, and there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(i) any material provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be valid and
binding on or enforceable against any Loan Party party to it, or any such Loan
Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to Section
3.01 or 5.01(j) shall for any reason (other than pursuant to the terms thereof)
cease to create a valid and perfected first priority lien (except as permitted
by the Loan Documents) on and security interest in the Collateral purported to
be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have
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occurred and then exist (or the liability of the Loan Parties and the ERISA
Affiliates related to such ERISA Event) exceeds $5 million and is not corrected
within 30 days of the occurrence of the ERISA Event; or
(m) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Loan Parties and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $5 million or requires payments exceeding $1.25 million
per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $1.25 million;
or
(o) an "Event of Default" (as defined in any Mortgage) shall have
occurred and be continuing;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by the Issuing Bank
or a Working Capital Lender pursuant to Section 2.03(c)) and of the Issuing Bank
to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that, in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (x) the Commitments of each Lender
Party and the obligation of each Lender Party to make Advances (other than
Letter of Credit Advances by the Issuing Bank or a Working Capital Lender
pursuant to Section 2.03(c), and of the Issuing Bank to issue Letters of Credit
shall automatically be terminated and (y) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
Actions in Respect of the Letters of Credit upon Default. If any Event of
--------------------------------------------------------
Default shall have occurred and be continuing, the Administrative Agent may, or
shall at the request of the Required Lenders, irrespective of whether it is
taking any of the actions described in Section 6.01 or otherwise, make demand
upon the Borrower to, and forthwith upon such demand the Borrower will, pay to
the Collateral Agent on behalf of the Lender Parties in same day funds at
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the Collateral Agent's office designated in such demand, for deposit in the L/C
Cash Collateral Account, an amount equal to the aggregate Available Amount of
all Letters of Credit then outstanding. If at any time the Administrative Agent
or the Collateral Agent determines that any funds held in the L/C Cash
Collateral Account are subject to any right or claim of any Person other than
the Agents and the Lender Parties or that the total amount of such funds is less
than the aggregate Available Amount of all Letters of Credit, the Borrower will,
forthwith upon demand by the Administrative Agent or the Collateral Agent, pay
to the Collateral Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent or the Collateral
Agent, as the case may be, determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
in the L/C Cash Collateral Account, such funds shall be applied to reimburse the
Issuing Bank or Working Capital Lenders, as applicable, to the extent permitted
by applicable law.
ARTICLE VII
THE AGENTS
Authorization and Action. Each Lender Party (in its capacities as a
------------------------
Lender, the Issuing Bank (if applicable) and on behalf of itself and its
Affiliates as potential Hedge Banks) hereby appoints and authorizes each Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Notes), no Agent shall be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lender Parties and all holders of Notes; provided, however,
that no Agent shall be required to take any action that exposes such Agent to
personal liability or that is contrary to this Agreement or applicable law. Each
Agent agrees to give to each Lender Party prompt notice of each notice given to
it by the Borrower pursuant to the terms of this Agreement.
Agents' Reliance, Etc. Neither any Agent nor any of their respective
----------------------
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each Agent: (a) may treat
the payee of any Note as the holder thereof until, in the case of the
Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it with reasonable care and shall
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not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender Party and shall not be responsible to
any Lender Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Loan Document on the part of
any Loan Party or to inspect the property (including the books and records) of
any Loan Party; (e) shall not be responsible to any Lender Party for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
Morgan Stanley and Affiliates. With respect to its Commitments, the
-----------------------------
Advances made by it and the Notes issued to it, Morgan Stanley shall have the
same rights and powers under the Loan Documents as any other Lender Party and
may exercise the same as though it were not an Agent; and the term "Lender
Party" or "Lender Parties" shall, unless otherwise expressly indicated, include
Morgan Stanley in its individual capacities. Morgan Stanley and its respective
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person that may do business with or own securities of any Loan Party or any such
Subsidiary, all as if Morgan Stanley was not an Agent and without any duty to
account therefor to the Lender Parties.
Lender Party Credit Decision. Each Lender Party acknowledges that it has,
----------------------------
independently and without reliance upon any Agent or any other Lender Party and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender Party also
acknowledges that it will, independently and without reliance upon any Agent or
any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
Indemnification. Each Lender Party severally agrees to indemnify each
---------------
Agent (to the extent not promptly reimbursed by the Borrower) from and against
such Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against such Agent in any way relating to
or arising out of the Loan Documents or any action taken or omitted by such
Agent under the Loan Documents; provided, however, that no Lender Party shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Agent's gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. Without limitation
of the foregoing, each Lender Party agrees to reimburse each Agent promptly upon
demand for its ratable share of any costs and expenses (including, without
limitation, reasonable
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fees and expenses of counsel) payable by the Borrower under Section 9.04, to the
extent that such Agent is not promptly reimbursed for such costs and expenses by
the Borrower.
(a) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Issuing Bank under the Loan Documents; provided, however, that no Lender
Party shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Issuing Bank's gross negligence or willful misconduct as
found in a final, non-appealable judgment by a court of competent jurisdiction.
Without limitation of the foregoing, each Lender Party agrees to reimburse the
Issuing Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) payable by the Borrower under Section 9.04, to the extent that the
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Borrower.
(b) For purposes of this Section 7.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties, (ii) their respective Pro Rata
Shares of the aggregate Available Amount of all Letters of Credit outstanding at
such time and (iii) their respective Unused Tranche A Term Commitments, Unused
Tranche C Term Commitments and Unused Working Capital Commitments at such time;
provided that the aggregate principal amount of Letter of Credit Advances owing
to the Issuing Bank shall be considered to be owed to the Working Capital
Lenders ratably in accordance with their respective Working Capital Commitments.
The failure of any Lender Party to reimburse any Agent or the Issuing Bank, as
the case may be, promptly upon demand for its ratable share of any amount
required to be paid by the Lender Parties to such Agent or the Issuing Bank, as
the case may be, as provided herein shall not relieve any other Lender Party of
its obligation hereunder to reimburse such Agent or the Issuing Bank, as the
case may be, for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such Agent or
the Issuing Bank, as the case may be, for such other Lender Party's ratable
share of such amount. Without prejudice to the survival of any other agreement
of any Lender Party hereunder, the agreement and obligations of each Lender
Party contained in this Section 7.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
Successor Agents. Any Agent may resign as to all of the Facilities at any
----------------
time by giving written notice thereof to the Lender Parties and the Borrower and
may be removed as to all of the Facilities at any time with or without cause by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Agent (subject to the Borrower's
approval (at any time when no Event of Default has occurred and is continuing),
which shall not be unreasonably withheld or delayed). If no successor Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the
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retiring Agent, then the retiring Agent may, on behalf of the Lender Parties
(subject to the Borrower's approval (at any time when no Event of Default has
occurred and is continuing), which shall not be unreasonably withheld or
delayed), appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States or of any State thereof and having a
combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent as to all of the
Facilities and, in the case of a successor Collateral Agent, upon the execution
and filing or recording of such financing statements, or amendments thereto, and
such amendments or supplements to the Mortgages, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Agent shall succeed to
and become vested with all the rights, powers, discretion, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under the Loan Documents. If within 45 days after written
notice is given of the retiring Agent's resignation or removal under this
Section 7.06 no successor Agent shall have been appointed and shall have
accepted such appointment, then on such 45th day (i) the retiring Agent's
resignation or removal shall become effective, (ii) the retiring Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Agent under the Loan Documents until such time, if any, as the Required
Lenders appoint a successor Agent as provided above. After any retiring Agent's
resignation or removal hereunder as Agent as to any of the Facilities shall have
become effective, the provisions of this Article VII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent as to
such Facilities under this Agreement.
ARTICLE VIII
GUARANTY
Guaranty; Limitation of Liability. (a) Each Guarantor, jointly and
---------------------------------
severally, hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all Obligations
of each other Loan Party now or hereafter existing under or in respect of the
Loan Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any other Secured Party in enforcing any rights under
this Guaranty or any other Loan Document. Without limiting the generality of the
foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
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(a) Each Guarantor, and by its acceptance of this Guaranty, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Guaranty and the Obligations of each
Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Guaranty and the Obligations of each Guarantor
hereunder. To effectuate the foregoing intention, the Administrative Agent, the
other Secured Parties and the Guarantors hereby irrevocably agree that the
Obligations of each Subsidiary Guarantor under this Guaranty at any time shall
be limited to the maximum amount as will result in the Obligations of such
Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance.
(b) Each Guarantor hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to any Secured Party under
this Guaranty or any other guaranty, such Guarantor will contribute, to the
maximum extent permitted by law and the foregoing subsection (b), such amounts
to each other Guarantor and each other guarantor of Obligations so as to
maximize the aggregate amount paid to the Secured Parties under or in respect of
the Loan Documents.
Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
-----------------
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Secured
Party with respect thereto. The Obligations of each Guarantor under or in
respect of this Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against the Borrower or any other Loan Party or whether the
Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to
any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral
or any other collateral, or any taking, release or amendment or waiver of,
or consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other
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disposition of any Collateral or any other collateral for all or any of the
Guaranteed Obligations or any other Obligations of any Loan Party under the
Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party
now or hereafter known to such Secured Party (each Guarantor waiving any
duty on the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other guarantor or
surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
any Secured Party that might otherwise constitute a defense available to,
or a discharge of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally
---------------------------
and irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of nonperformance, default, acceleration, protest
or dishonor and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that any Secured Party
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against any Loan Party or any other Person
or any Collateral.
(a) Each Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in
the future.
(b) Each Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any Collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the Obligations of such
Guarantor hereunder.
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(c) Each Guarantor acknowledges that the Collateral Agent may, without
notice to or demand upon such Guarantor and without affecting the liability of
such Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial
sale, and each Guarantor hereby waives any defense to the recovery by the
Collateral Agent and the other Secured Parties against such Guarantor of any
deficiency after such nonjudicial sale and any defense or benefits that may be
afforded by applicable law.
(d) Each Guarantor hereby unconditionally and irrevocably waives any
duty on the part of any Secured Party to disclose to such Guarantor any matter,
fact or thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party or any
of its Subsidiaries now or hereafter known by such Secured Party.
(e) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in Section 8.02 and this Section
8.03 are knowingly made in contemplation of such benefits.
Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees
-----------
not to exercise any rights that it may now have or hereafter acquire against the
Borrower, any other Loan Party or any other insider guarantor that arise from
the existence, payment, performance or enforcement of such Guarantor's
Obligations under or in respect of this Guaranty or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of any Secured Party against the Borrower, any other Loan Party
or any other insider guarantor or any Collateral, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law,
including, without limitation, the right to take or receive from the Borrower,
any other Loan Party or any other insider guarantor, directly or indirectly, in
cash or other property or by set-off or in any other manner, payment or security
on account of such claim, remedy or right, unless and until all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
have been paid in full in cash, all Letters of Credit and all Secured Hedge
Agreements shall have expired or been terminated and the Commitments shall have
expired or been terminated. If any amount shall be paid to any Guarantor in
violation of the immediately preceding sentence at any time prior to the latest
of (a) the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty, (b) the Termination Date and (c) the latest
date of expiration or termination of all Letters of Credit and all Secured Hedge
Agreements, such amount shall be received and held in trust for the benefit of
the Secured Parties, shall be segregated from other property and funds of such
Guarantor and shall forthwith be paid or delivered to the Administrative Agent
in the same form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(i) any Guarantor shall make payment to any Secured Party of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash, (iii)
the Termination Date shall have occurred and (iv) all Letters of Credit and all
Secured Hedge Agreements shall have expired or been terminated, the Secured
Parties will, at such Guarantor's request and expense, execute and
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deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Guarantor of an interest in the Guaranteed Obligations and the Collateral
resulting from such payment made by such Guarantor pursuant to this Guaranty.
Guaranty Supplements. Upon the execution and delivery by any Person of a
--------------------
guaranty supplement in substantially the form of Exhibit H hereto (each, a
"Guaranty Supplement"), (a) such Person shall be referred to as an "Additional
Guarantor" and shall become and be a Guarantor hereunder, and each reference in
this Guaranty to a "Guarantor" shall also mean and be a reference to such
Additional Guarantor, and each reference in any other Loan Document to a
"Subsidiary Guarantor" shall also mean and be a reference to such Additional
Guarantor, and (b) each reference herein to "this Guaranty", "hereunder",
"hereof" or words of like import referring to this Guaranty, and each reference
in any other Loan Document to the "Guaranty", "thereunder", "thereof" or words
of like import referring to this Guaranty, shall mean and be a reference to this
Guaranty as supplemented by such Guaranty Supplement.
Subordination. Each Guarantor hereby subordinates any and all debts,
-------------
liabilities and other Obligations owed to such Guarantor by each other Loan
Party (the "Subordinated Obligations") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 8.06:
(a) Prohibited Payments, Etc. Except during the continuance of a
------------------------
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), each Guarantor may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance of
any Default (including the commencement and continuation of any proceeding under
any Bankruptcy Law relating to any other Loan Party), however, unless the
Required Lenders otherwise agree, no Guarantor shall demand, accept or take any
action to collect any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
---------------------------------------
any Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that
the Secured Parties shall be entitled to receive payment in full in cash of all
Guaranteed Obligations (including all interest and expenses accruing after the
commencement of a proceeding under any Bankruptcy Law, whether or not
constituting an allowed claim in such proceeding ("Post Petition Interest"))
before such Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
---------
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), each Guarantor shall, if the
Administrative Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Secured Parties and
deliver such payments to the Administrative Agent for application to the
Guaranteed Obligations (including all Post Petition Interest), together with any
necessary endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of such Guarantor under the other
provisions of this Guaranty.
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(d) Administrative Agent Authorization. After the occurrence and
----------------------------------
during the continuance of any Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to any other
Loan Party), the Administrative Agent is authorized and empowered (but without
any obligation to so do), in its discretion, (i) in the name of each Guarantor,
to collect and enforce, and, if such Guarantor fails to do so, to submit claims
in respect of, Subordinated Obligations and to apply any amounts received
thereon to the Guaranteed Obligations (including any and all Post Petition
Interest), and (ii) to require each Guarantor (A) to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and (B) to pay any amounts
received on such obligations to the Administrative Agent for application to the
Guaranteed Obligations (including any and all Post Petition Interest).
Continuing Guaranty; Assignments. This Guaranty is a continuing guaranty
--------------------------------
and shall (a) remain in full force and effect until the latest of (i) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (ii) the Termination Date and (iii) the latest date
of expiration or termination of all Letters of Credit and all Secured Hedge
Agreements, (b) be binding upon the Guarantor, its successors and assigns and
(c) inure to the benefit of and be enforceable by the Secured Parties and their
successors, transferees and assigns. Without limiting the generality of clause
(c) of the immediately preceding sentence, any Secured Party may assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of its Commitments,
the Advances owing to it and the Note or Notes held by it) to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Secured Party herein or otherwise, in each case
as and to the extent provided in Section 9.07. No Guarantor shall have the right
to assign its rights hereunder or any interest herein without the prior written
consent of the Secured Parties.
ARTICLE IX
MISCELLANEOUS
Amendments, Etc. No amendment or waiver of any provision of this Agreement
---------------
or the Notes or any other Loan Document, nor consent to any departure by any
Loan Party therefrom, shall in any event be effective unless the same shall be
in writing and signed (or, in the case of the Collateral Documents, consented
to) by the Required Lenders and, in the case of an amendment, by the Borrower,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that (a) no
amendment, waiver or consent shall, unless in writing and signed by all of the
Lenders (other than any Lender Party that is, at such time, a Defaulting
Lender), do any of the following at any time: (i) waive any of the conditions
specified in Section 3.01 or, in the case of the Initial Extension of Credit,
Section 3.02, (ii) change the number of Lenders or the percentage of (x) the
Commitments, (y) the aggregate unpaid principal amount of the Advances or (z)
the aggregate Available Amount of outstanding Letters of Credit that, in each
case, shall be required for the Lenders or any of them to take any action
hereunder, (iii) reduce or limit the obligations of any Guarantor under Section
8.01 or reduce or limit the obligations of either Alliance under Section 1 of
the Alliance Guaranty or release any Guarantor or otherwise limit any
Guarantor's liability
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with respect to the Obligations owing to the Agents and the Lender Parties
(other than, to the extent permitted under the Subsidiary Guaranty), (iv)
release all or substantially all of the Collateral in any transaction or series
of related transactions or permit the creation, incurrence, assumption or
existence of any Lien on all or substantially all of the Collateral in any
transaction or series of related transactions to secure any Obligations other
than Obligations owing to the Secured Parties under the Loan Documents, or (v)
amend this Section 9.01 and (b) no amendment, waiver or consent shall, unless in
writing and signed by the Required Lenders and each Lender (other than any
Lender that is, at such time, a Defaulting Lender) that has a Commitment under
either Term Facility or Working Capital Facility if such Lender is directly
affected by such amendment, waiver or consent, (i) increase the Commitments of
such Lender or subject such Lender to any additional obligations, (ii) reduce
the principal of, or interest on, the Notes held by such Lender or any fees or
other amounts payable hereunder to such Lender, (iii) postpone any date fixed
for any payment of principal of, or interest on, the Notes held by such Lender
or any fees or other amounts payable hereunder to such Lender or (iv) change the
order of application of any prepayment set forth in Section 2.06 in any manner
that materially affects such Lender; provided further that no amendment, waiver
or consent shall, unless in writing and signed by the Issuing Bank in addition
to the Lenders required above to take such action, affect the rights or
obligations of the Issuing Bank under this Agreement; and provided further that
no amendment, waiver or consent shall, unless in writing and signed by an Agent
in addition to the Lenders required above to take such action, affect the rights
or duties of such Agent under this Agreement or the other Loan Documents;
provided further that this Agreement may be amended and restated with the
consent of the Borrower and the Administrative Agent to include a $5 million
swing line facility on customary terms and conditions (including, without
limitation, the purchase by each Working Capital Lender of its pro rata share of
an outstanding advance under the swing line facility).
Notices, Etc. All notices and other communications provided for hereunder
-------------
shall be in writing (including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to the Borrower, at
its address at 401 Spring Lane, Suite 300, Waynesboro, VA 22980, Attention:
Michael Moneymaker; if to any Initial Lender or the Initial Issuing Bank, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender Party, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; if to the
Collateral Agent or Administrative Agent, at its address at 1585 Broadway, New
York, NY 10036, Attention: James Morgan; or, as to any party, at such other
address as shall be designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed, telegraphed,
telecopied or telexed, be effective three Business Days after being deposited in
the U.S. mails, when delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively, except that notices
and communications to any Agent pursuant to Article II, III or VII shall not be
effective until received by such Agent. Manual delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of an original executed counterpart
thereof.
No Waiver; Remedies. No failure on the part of any Lender Party or any
-------------------
Agent to exercise, and no delay in exercising, any right hereunder or under any
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or
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further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Costs and Expenses. The Borrower agrees to pay on demand (i) all costs
------------------
and expenses of the Administrative Agent incurred in good faith in connection
with the preparation, execution, delivery, administration, modification and
amendment of the Loan Documents (including, without limitation, (A) all due
diligence, collateral review, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of counsel
for the Administrative Agent with respect thereto, with respect to advising such
Agent as to its rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under the Loan Documents, with respect to
negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto of which any Loan Party is the subject), (ii)
reasonable review costs (including reasonable fees and expenses of counsel) of
the other Agents in connection with this Agreement and each amendment,
modification or waiver hereunder and (iii) all costs and expenses of each Agent
and each Lender Party in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation, or any bankruptcy, insolvency or
other similar proceeding affecting creditors' rights generally (including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent and each Lender Party with respect thereto).
(a) The Borrower agrees to indemnify and hold harmless each Agent,
each Lender Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Facilities, the actual
or proposed use of the proceeds of the Advances or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated thereby,
including, without limitation, any acquisition or proposed acquisition
(including, without limitation, the Acquisition and any of the other
transactions contemplated by the Transaction Documents) by the Borrower or any
of its Subsidiaries or Affiliates of all or any portion of the Equity Interests
in or Debt securities or substantially all of the Acquired Properties or (ii)
the actual or alleged presence of Hazardous Materials on any property of any
Loan Party or any of its Subsidiaries or any Environmental Action relating in
any way to any Loan Party or any of its Subsidiaries, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnified Party or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated by the Transaction Documents are consummated. The Borrower also
agrees not to assert any
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claim against any Agent, any Lender Party or any of their Affiliates, or any of
their respective officers, directors, employees, attorneys and agents, on any
theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Facilities, the actual or proposed
use of the proceeds of the Advances or the Letters of Credit, the Transaction
Documents or any of the transactions contemplated by the Transaction Documents.
(b) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender Party other than on the
last day of the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Borrower pursuant to Section 9.07(a), or if the Borrower fails to
make any payment or prepayment of an Advance for which a notice of prepayment
has been given or that is otherwise required to be made, whether pursuant to
Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon demand by such
Lender Party (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender Party any amounts
required to compensate such Lender Party for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or Conversion
or such failure to pay or prepay, as the case may be, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance.
(c) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(d) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
9.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
Right of Set-off. Upon (a) the occurrence and during the continuance of
----------------
any Event of Default and (b) the making of the request or the granting of the
consent specified by Section 6.01 to authorize the Administrative Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Agent and each Lender Party and each of their respective Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and otherwise apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Agent, such Lender Party or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the Obligations of the Borrower now or hereafter existing under the Loan
Documents, irrespective of whether such Agent or such Lender Party shall have
made any demand under this Agreement or such Note or Notes and although such
obligations may be unmatured. Each Agent and each Lender Party agrees promptly
to notify the Borrower after any such set-off and
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application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Agent
and each Lender Party and their respective Affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Agent, such Lender Party and their respective
Affiliates may have.
Binding Effect. This Agreement shall become effective when it shall have
--------------
been executed by the Borrower and each Agent and the Administrative Agent shall
have been notified by each Initial Lender and the Initial Issuing Bank that such
Initial Lender and the Initial Issuing Bank has executed it and thereafter shall
be binding upon and inure to the benefit of the Borrower, each Agent and each
Lender Party and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lender Parties.
Assignments and Participations. Each Lender may and, so long as no Event
------------------------------
of Default shall have occurred and be continuing, if demanded by the Borrower
(following a demand by such Lender pursuant to Section 2.10 or 2.12) upon at
least five Business Days' notice to such Lender and the Administrative Agent,
will assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under
and in respect of one or more of the Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to such Eligible Assignee pursuant to
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1 million, (iii)
each such assignment shall be to an Eligible Assignee, and (iv) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note or Notes subject to such assignment.
(a) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's or
Issuing Bank's rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and
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the other parties thereto and hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
(ii) such assigning Lender Party makes no representation or warranty and assumes
no responsibility with respect to the financial condition of any Loan Party or
the performance or observance by any Loan Party of any of its obligations under
any Loan Document or any other instrument or document furnished pursuant
thereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon any Agent, such assigning Lender Party or any other Lender Party
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender or Issuing Bank, as the case may be.
(c) The Administrative Agent, acting for this purpose (but only for
this purpose) as the agent of the Borrower, shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under each Facility of, and
principal amount of the Advances owing under each Facility to, each Lender Party
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lender Parties shall treat each Person whose name
is recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Agent or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender,
within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for the surrendered Note or Notes a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it under each Facility
pursuant to such Assignment and Acceptance and, if any assigning Lender has
retained a Commitment hereunder under such Facility, a new Note to the order of
such assigning
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Lender in an amount equal to the Commitment retained by it hereunder. Such new
Note or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit A-1, A-2 or A-3 hereto, as the case may be.
(e) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) each such assignment shall
be to an Eligible Assignee and (ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance.
(f) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender
Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral.
(g) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
Execution in Counterparts. This Agreement may be executed in any number of
-------------------------
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one
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and the same agreement. Manual delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery of
an original executed counterpart of this Agreement.
No Liability of the Issuing Bank. The Borrower assumes all risks of the
--------------------------------
acts or omissions of any beneficiary or transferee of any Letter of Credit with
respect to its use of such Letter of Credit. Neither the Issuing Bank nor any of
its officers or directors shall be liable or responsible for: (a) the use that
may be made of any Letter of Credit or any acts or omissions of any beneficiary
or transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by the Issuing Bank against presentation of documents that
do not comply with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of Credit;
or (d) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except that the Borrower shall have a claim against
the Issuing Bank, and the Issuing Bank shall be liable to the Borrower, to the
extent of any direct, but not consequential, damages suffered by the Borrower
that the Borrower proves were caused by (i) the Issuing Bank's willful
misconduct or gross negligence as determined in a final, non-appealable judgment
by a court of competent jurisdiction in determining whether documents presented
under any Letter of Credit comply with the terms of the Letter of Credit or (ii)
the Issuing Bank's willful failure to make lawful payment under a Letter of
Credit after the presentation to it of a draft and certificates strictly
complying with the terms and conditions of the Letter of Credit. In furtherance
and not in limitation of the foregoing, the Issuing Bank may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
Confidentiality. Neither any Agent nor any Lender Party shall disclose any
---------------
Confidential Information to any Person without the consent of the Borrower,
other than (a) to such Agent's or such Lender Party's Affiliates and their
officers, directors, employees, agents and advisors, (b) to actual or
prospective Eligible Assignees and participants, and then only on a confidential
basis, (c) as required by any law, rule or regulation or judicial process, (d)
as requested or required by any state, Federal or foreign authority or examiner
regulating such Lender Party and (e) to any rating agency when required by it,
provided that, prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information relating to the
Loan Parties received by it from such Lender Party.
RTFC Special Provisions. (a) On the date of any Tranche C Term Advance by
------------------------
RTFC, the Borrower shall purchase from RTFC, with the Borrower's general funds,
RTFC Certificates in the principal amount of ten percent (10%) of any such
Tranche C Term Advance. RTFC Certificates shall bear no interest, be non-
amortizing, shall mature and be redeemed in full on the date RTFC, and any
Eligible Assignee of RTFC, is repaid in full for all amounts due under this
Agreement, including all principal, interest, fees and any other amounts due to
RTFC, or any Eligible Assignee, with respect to any Borrowings, and the Borrower
has no further right to any RTFC Advance under this Credit Agreement.
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(b) No Patronage Capital distributions shall be made to the Borrower
with respect to the Borrowings in which RTFC participates. The Borrower hereby
waives any right it may have to claim or receive any such Patronage Capital
Distributions.
Release of Collateral. Upon the sale, lease, transfer or other disposition
---------------------
of any item of Collateral of any Loan Party (including, without limitation, as a
result of the sale, in accordance with the terms of the Loan Documents, of the
Loan Party that owns such Collateral) in accordance with the terms of the Loan
Documents, the Collateral Agent will, at the Borrower's expense, execute and
deliver to such Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment
and security interest granted under the Collateral Documents in accordance with
the terms of the Loan Documents.
Jurisdiction, Etc. Each of the parties hereto hereby irrevocably and
------------------
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or any
of the other Loan Documents to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Loan Documents in the courts of
any jurisdiction.
(a) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party in any New York State or Federal court. Each
of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
Governing Law. This Agreement and the Notes shall be governed by, and
-------------
construed in accordance with, the laws of the State of New York.
Waiver of Jury Trial. Each of the Borrower, the Agents and the Lender
--------------------
Parties irrevocably waives all right to trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to any of the Loan Documents, the Advances or the actions of any Agent
or any Lender Party in the negotiation, administration, performance or
enforcement thereof.
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105
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CFW COMMUNICATIONS COMPANY
as Borrower
By_____________________________________
Title:
CFW CABLE INC.
as Subsidiary Guarantor
By_____________________________________
Title:
CFW CABLE OF VIRGINIA INC.
as Subsidiary Guarantor
By_____________________________________
Title:
CFW CORNERSTONE, INC.
as Subsidiary Guarantor
By_____________________________________
Title:
<PAGE>
CFW COMMUNICATIONS SERVICES INC.
as Subsidiary Guarantor
By_____________________________________
Title:
CFW LICENSES INC.
as Subsidiary Guarantor
By_____________________________________
Title:
CFW PCS INC.
as Subsidiary Guarantor
By_____________________________________
Title:
CFW WIRELESS INC.
as Subsidiary Guarantor
By_____________________________________
Title:
CFW NETWORK INC.
as Subsidiary Guarantor
By_____________________________________
Title:
107
<PAGE>
CFW TELEPHONE INC.
as Subsidiary Guarantor
By_____________________________________
Title:
NA COMMUNICATIONS, INC.
as Subsidiary Guarantor
By_____________________________________
Title:
NETACCESS, INC.
as Subsidiary Guarantor
By_____________________________________
Title:
VIRGINIA RSA 6 CELLULAR LIMITED
PARTNERSHIP
as Subsidiary Guarantor
By_____________________________________
Title:
MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent
By_____________________________________
Title:
108
<PAGE>
MORGAN STANLEY & CO. INCORPORATED,
as Collateral Agent
By_____________________________________
Title:
Initial Issuing Bank
MORGAN STANLEY SENIOR FUNDING, INC.
By_____________________________________
Title:
Initial Lenders
MORGAN STANLEY SENIOR FUNDING, INC.
By_____________________________________
Title:
FIRST UNION NATIONAL BANK
By_____________________________________
Title:
SUNTRUST BANK
By_____________________________________
Title:
BANK OF AMERICA, N.A.
109
<PAGE>
By_____________________________________
Title:
BRANCH BANKING AND TRUST COMPANY
By_____________________________________
Title:
RURAL TELEPHONE FINANCE
COOPERATIVE
By_____________________________________
Title:
IBM CREDIT CORPORATION
By_____________________________________
Title:
FOOTHILL INCOME TRUST II, L.P.
By_____________________________________
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By_____________________________________
Title:
110
