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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1999
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to ______
Commission file number 1-4166
FRONTIER CORPORATION
(Exact name of registrant as specified in its charter)
New York 16-0613330
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
180 South Clinton Avenue, Rochester, NY 14646-0700
(Address of principal executive offices) (Zip Code)
(716) 777-1000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has
filed all reports required to be filed by Section 13 or
15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90
days. Yes X No
Indicate the number of shares outstanding of each of
the issuer's classes of common stock, as of the latest
practicable date.
$1.00 Par Value Common Stock 173,178,215 shares as
of April 30, 1999
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FRONTIER CORPORATION
Form 10-Q
Index
Page Number
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
Business Segment Information for the three
months ended March 31, 1999 and 1998 3
Consolidated Statements of Income for the
three months ended March 31, 1999 and 1998 4
Consolidated Balance Sheets as of March 31, 1999
and December 31, 1998 5
Consolidated Statements of Cash Flows for the
three months ended March 31, 1999 and 1998 6
Notes to Consolidated Financial Statements 7-11
Item 2. Management's Discussion of Results of Operations
and Analysis of Financial Condition 12-22
Part II. OTHER INFORMATION
Item 1. Legal Proceedings 22-23
Item 4. Submission of Matters to a Vote of Security
Holders 24
Item 5. Other Information 24-25
Item 6. Exhibits and Reports on Form 8-K 25
Signature 26
Index to Exhibits 27-28
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FRONTIER CORPORATION
Business Segment Information
(Unaudited)
<CAPTION>
3 Months Ended March 31,
In thousands of dollars 1999 1998
- ---------------------------------------------------------
<S> <C> <C>
Integrated Services
Revenue
Commercial $ 249,468 $ 242,239
Consumer 50,365 68,657
Carrier 190,803 138,650
- --------------------------------------------------------
Total Revenue $ 490,636 $ 449,546
Cost of Access 311,959 286,787
- --------------------------------------------------------
Gross Margin 178,677 162,759
Selling, General and 117,104 120,631
Administrative Expense
Depreciation and
Amortization 32,307 25,935
Operating Income:
Operating Income Before
Other Charges 29,266 16,193
Other Charges - (6,528)
- --------------------------------------------------------
Total Operating Income $ 29,266 $ 9,665
Capital Expenditures $ 189,095 $ 55,285
Total Assets $ 1,905,951 $ 1,393,897
========================================================
Local Communications Services
Revenue $ 179,236 $ 173,098
Costs and Expenses 84,046 81,162
Depreciation and
Amortization 29,674 28,344
- --------------------------------------------------------
Operating Income $ 65,516 $ 63,592
Capital Expenditures $ 37,535 $ 22,969
Total Assets $ 1,039,236 $ 946,520
========================================================
Corporate Operations and Other
Revenue $ 4,960 $ 9,354
Costs and Expenses 11,478 13,636
Depreciation and
Amortization 563 961
- --------------------------------------------------------
Operating Income:
Operating Loss Before
Other Charges (7,081) (5,243)
Other Charges (7,520) -
- --------------------------------------------------------
Total Operating Loss $ (14,601) $ (5,243)
Capital Expenditures $ 4,065 $ 7,251
Total Assets $ 303,278 $ 244,409
========================================================
Consolidated
Revenue $ 674,832 $ 631,998
Costs and Expenses 524,587 502,216
Depreciation and
Amortization 62,544 55,240
Operating Income:
Operating Income Before
Other Charges $ 87,701 $ 74,542
Other Charges (7,520) (6,528)
- --------------------------------------------------------
Total Operating Income $ 80,181 $ 68,014
Capital Expenditures $ 230,695 $ 85,505
Total Assets $ 3,248,465 $ 2,584,826
========================================================
See accompanying Notes to Consolidated Financial Statements.
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<TABLE>
FRONTIER CORPORATION
Consolidated Statements of Income
(Unaudited)
<CAPTION>
In thousands of dollars, 3 Months Ended March 31,
except per share data 1999 1998
- --------------------------------------------------------
<S> <C> <C>
Revenue
Integrated Services $490,636 $449,546
Local Communications 179,236 173,098
Corporate Operations and Other 4,960 9,354
- --------------------------------------------------------
Total Revenue 674,832 631,998
Costs and Expenses
Operating expenses 511,131 485,734
Depreciation and amortization 62,544 55,240
Taxes other than income taxes 13,456 16,482
Other Charges 7,520 6,528
- --------------------------------------------------------
Total Costs and Expenses 594,651 563,984
- --------------------------------------------------------
Operating Income 80,181 68,014
Interest expense 15,219 13,431
Other income:
Equity earnings from
unconsolidated wireless interests 4,241 2,458
Interest income 1,652 1,198
Other income 8 892
- --------------------------------------------------------
Income Before Taxes 70,863 59,131
Income tax expense 30,961 25,217
- --------------------------------------------------------
Consolidated Net Income 39,902 33,914
Dividends on preferred stock 251 251
- --------------------------------------------------------
Basic Income Applicable to
Common Stock $ 39,651 $ 33,663
Diluted earnings adjustment 90 90
- --------------------------------------------------------
Diluted Income Applicable to
Common Stock $ 39,741 $ 33,753
========================================================
Basic Earnings Per Common Share $ 0.23 $ 0.20
Average Shares Outstanding 171,548 170,071
========================================================
Diluted Earnings Per Common
Share $ 0.23 $ 0.20
Average Shares Outstanding 175,437 172,804
========================================================
See accompanying Notes to Consolidated Financial Statements.
</TABLE>
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<TABLE>
FRONTIER CORPORATION
Consolidated Balance Sheets
<CAPTION>
In thousands of dollars, March 31, December 31,
except share data (Unaudited) 1999 1998
- --------------------------------------------------------
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $ 97,286 $ 85,143
Accounts receivable, (less
allowance for uncollectibles of
$45,787 and $37,956, respectively) 437,802 422,724
Materials and supplies 9,772 9,924
Deferred income taxes 13,080 13,320
Prepayments and other 32,009 35,563
- --------------------------------------------------------
Total Current Assets 589,949 566,674
Property, plant and equipment, net 1,833,276 1,677,559
Goodwill and customer base, net 475,493 484,015
Deferred and other assets 349,747 330,495
Total Assets $3,248,465 $3,058,743
=========================================================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Accounts payable $ 467,220 $ 449,041
Dividends payable 8,894 38,508
Debt due within one year 9,245 9,466
Taxes accrued 41,767 26,128
Other liabilities 52,915 44,554
- ---------------------------------------------------------
Total Current Liabilities 580,041 567,697
Long-term debt 1,463,612 1,350,821
Deferred income taxes 48,500 40,046
Deferred employee benefits
obligation 84,879 81,925
- ---------------------------------------------------------
Total Liabilities 2,177,032 2,040,489
- ---------------------------------------------------------
Shareholders' Equity
Preferred stock 18,286 18,770
Common stock, par value $1.00,
authorized 300,000,000
shares; 172,573,576 shares and
171,635,518 shares
issued in 1999 and 1998,
respectively 172,574 171,636
Capital in excess of par value 615,340 578,946
Retained earnings 305,875 274,870
Accumulated other comprehensive
income:
Minimum pension liability
adjustment and other (4,148) (4,249)
- ----------------------------------------------------------
1,107,927 1,039,973
Less -
Treasury stock, 10,849 shares in
1999 and 1998, at cost 231 231
Unearned compensation -
restricted stock plan 36,263 21,488
- ---------------------------------------------------------
Total Shareholders' Equity 1,071,433 1,018,254
- ---------------------------------------------------------
Total Liabilities and
Shareholders' Equity $3,248,465 $3,058,743
=========================================================
See accompanying Notes to Consolidated Financial Statements.
</TABLE>
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<TABLE>
FRONTIER CORPORATION
Consolidated Statements of Cash Flows
(Unaudited)
<CAPTION>
3 Months Ended March 31,
In thousands of dollars 1999 1998
- -------------------------------------------------------------------------
<S> <C> <C>
Operating Activities
Net Income $ 39,902 $ 33,914
Adjustments to reconcile net income to net cash
provided by operating activities:
Other charges 7,520 6,528
Depreciation and amortization 62,544 55,240
Equity earnings from unconsolidated
wireless interests (4,241) (2,458)
Other, net 2,074 447
Changes in operating assets and liabilities, exclusive
of impacts of dispositions and acquisitions:
Increase in accounts receivable (15,078) (30,819)
(Decrease) increase in materials
and supplies 152 (1,482)
Decrease in prepayments and other
current assets 3,554 5,035
Increase in deferred and other assets (4,625) (8,434)
Increase in accounts payable 15,889 10,617
Increase in taxes accrued and other
current liabilities 25,013 12,399
Increase in deferred income taxes 8,694 25,397
Increase (decrease) in deferred employee
benefits obligation 2,954 (191)
- ------------------------------------------------------------------------
Total Adjustments 104,450 72,279
- ------------------------------------------------------------------------
Net Cash Provided by Operating Activities 144,352 106,193
- ------------------------------------------------------------------------
Investing Activities
Expenditures for property,
plant and equipment (310,839) (20,209)
Deposit for capital projects (19,710) (64,036)
Other investing activities - (798)
- ------------------------------------------------------------------------
Net Cash Used in Investing Activities (330,549) (85,043)
- ------------------------------------------------------------------------
Financing Activities
Proceeds from issuance of long-term debt 225,093 55,656
Repayments of debt (2,099) (8,051)
Dividends paid (38,511) (36,746)
Issuance of common stock 14,358 1,003
Other financing activities (501) (12)
Net Cash Provided by Financing Activities 198,340 11,850
- ------------------------------------------------------------------------
Net Increase in Cash and Cash Equivalents 12,143 33,000
Cash and Cash Equivalents at Beginning of Period 85,143 26,302
- ------------------------------------------------------------------------
Cash and Cash Equivalents at End of Period $ 97,286 $ 59,302
========================================================================
See accompanying Notes to Consolidated Financial Statements.
</TABLE>
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FRONTIER CORPORATION
Notes to Consolidated Financial Statements
(Unaudited)
Note 1: Consolidation
The consolidated financial statements of Frontier
Corporation (the "Company" or "Frontier") included herein,
are unaudited and have been prepared in accordance with
generally accepted accounting principles for interim
financial reporting and Securities and Exchange Commission
regulations. Certain information and footnote disclosures
normally included in financial statements prepared in
accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and
regulations. In the opinion of management, the financial
statements reflect all adjustments (of a normal and
recurring nature) which are necessary to present fairly the
financial position, results of operations and cash flows for
the interim periods. These financial statements should be
read in conjunction with the Annual Report of the Company on
Form 10-K for the year ended December 31, 1998 and the
reports on Form 8-K filed with the Securities and Exchange
Commission as follows:
SEC Filing Date Matter
- ------------------------------------------------------------
6/17/98 Pooling of Interests Merger
with GlobalCenter Inc.
1/26/99 Dividend Restructuring
1/26/99 Filing of Management's Discussion and Analysis,
Consolidated Financial Statements
and Notes for 1998, 1997 and 1996
3/19/99 Merger Agreement with Global Crossing Ltd.
The consolidated financial information includes the
accounts of Frontier Corporation and its majority-owned
subsidiaries after elimination of all significant
intercompany transactions. Investments in entities in which
the Company does not have a controlling interest are
accounted for using the equity method.
Preparation of financial statements in conformity with
generally accepted accounting principles requires management
to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the
financial statements, and the reported amounts of revenues
and expenses during the reporting period. Actual results
could differ from those estimates.
Certain prior year amounts have been reclassified to
conform with current year presentation.
Note 2: Merger with Global Crossing
On March 17, 1999, the Company announced a definitive
merger agreement to be acquired by Global Crossing Ltd.
("Global Crossing"), the owner and operator of the world's
first independent global fiber-optic network. The
transaction is valued at $11.2 billion based on the March
16, 1999 closing price of Global Crossing shares. The
combination of the two companies will create a global
Internet Protocol-based fiber-optic network able to provide
customers with global voice, web hosting, private line, ATM
and Internet services. Based on already announced networks,
the combination will have 71,000 route miles, over 1 million
fiber miles, and offer ultra-high bandwidth to 159 cities in
20 countries.
Under the terms of the transaction, which has been
unanimously approved by the Boards of Directors of both
companies, Frontier shareholders will receive Global
Crossing common shares valued at $62 per Frontier share, as
long as Global Crossing shares trade within a range of
$34.56 to $56.78 per share (the "collar") during a price
period prior to closing. Outside the collar, Frontier
shareholders will receive a fixed number of Global Crossing
shares, 1.0919 shares at the top end of the collar and
1.7939 at the bottom of the collar. In connection with the
transaction, Frontier has granted Global Crossing an option
to acquire up to 19.9% of its outstanding shares at $62 per
share as well as a break-up fee if the merger is terminated
for certain reasons.
Based on market prices as of March 16, 1999, the merged
company will be approximately two-thirds owned by current
Global Crossing shareholders and one-third owned by current
Frontier shareholders. The transaction is expected to
qualify as a tax-free reorganization to the Frontier
shareholders and is anticipated to be accounted for as a
purchase. This transaction is subject to approval by
shareholders of both companies, the Federal Communications
Commission, state and other regulatory authorities. It is
expected that the transaction will be completed in the third
quarter of 1999.
Note 3: Acquisitions
On February 27, 1998, the Company acquired GlobalCenter,
Inc. ("Frontier GlobalCenter, Inc." or "GlobalCenter"), a
leading provider in digital distribution, Internet and data
services headquartered in Sunnyvale, California. Under the
terms of the merger agreement, the Company acquired all of
the outstanding shares of GlobalCenter. The total shares
issued by the Company to effect the merger were 6.4 million.
At the time of the merger, GlobalCenter had approximately
1.1 million stock options and warrants outstanding as
converted into Frontier equivalents. This transaction was
accounted for using the pooling of interests method of
accounting and, accordingly, historical information has been
restated to include GlobalCenter.
Note 4: Other Charges
In the first quarter of 1999, the Company recorded a $7.5
million charge, or $.04 per diluted share, for costs related
to the merger with Global Crossing. These charges primarily
included investment banker fees, legal fees and other direct
costs.
In the first quarter of 1998, the Company recorded a pre-
tax charge of $6.5 million associated with the acquisition
of GlobalCenter which included investment banker, legal and
other direct costs.
Note 5: Earnings Per Share
The Company follows the provisions of Financial Accounting
Standards Board Statement ("FAS") No. 128, "Earnings Per
Share" ("EPS"). Basic EPS are based on the weighted average
number of shares of common stock outstanding during the
period. Diluted EPS are based on the weighted average
number of shares of common stock and common stock
equivalents (options, warrants and convertible debentures)
outstanding during the period, computed in accordance with
the treasury stock method.
The following is a reconciliation of the denominator used
in the computation of diluted earnings per share:
3 Months Ended
March 31,
In thousands 1999 1998
- ----------------------------------------------------------------
Weighted Average Shares Outstanding - Basic $171,548 $170,071
Stock Options and Warrants 3,386 2,230
Convertible Debentures 503 503
- ----------------------------------------------------------------
Weighted Average Shares Outstanding - Diluted $175,437 $172,804
================================================================
Note 6: Comprehensive Income
The Company adopted the provisions of FAS No. 130, "Reporting
Comprehensive Income" as of January 1, 1998. This statement
establishes standards for reporting and display of
comprehensive income and its components. This statement
requires reporting, by major components and as a single
total, the change in net assets during the period from
nonshareholder sources. Adoption of this standard did not
materially impact the Company's consolidated financial
position, results of operations or cash flow. The
reconciliation of net income to comprehensive net income is
as follows:
3 Months Ended March 31,
In thousands of dollars 1999 1998
- -------------------------------------------------------------
Net income $39,902 $33,914
Foreign currency translation adjustment (101) 445
- -------------------------------------------------------------
Total comprehensive income $39,801 $34,359
=============================================================
At March 31, 1999 and December 31, 1998, "Accumulated
other comprehensive income," as reflected in the
Consolidated Balance Sheets is comprised of the following:
March 31, December 31,
1999 1998
-----------------------
Foreign currency translation adjustment $ 487 $ 588
Minimum pension liability 3,661 3,661
-----------------------
Accumulated other comprehensive income $4,148 $4,249
=======================
Note 7: Dividend Restructuring
On January 25, 1999, the Company's Board of Directors
approved a dividend restructuring plan which reduces the
annualized common stock dividend from $0.89 to $0.20 per
share. This change in dividend policy will be effective
with the payment of the common stock cash dividend declared
on March 22, 1999 and payable on May 3, 1999 to shareholders
of record as of April 15, 1999. The reduction had no effect
on the common stock dividend paid February 1, 1999 to
shareholders of record on January 15, 1999, nor on any
outstanding issues of the Company's preferred stock. This
dividend restructuring was approved in order to place the
Company's dividend payments more in line with growth-
oriented integrated telecommunication services companies, to
allow the Company to invest more heavily in its growth
businesses.
Note 8: New Accounting Pronouncements
Effective January 1, 1999, the Company adopted the
American Institute of Public Accountants Statement of
Position ("SOP") 98-1 "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use". Adoption
of this statement did not have a material impact on the
financial position or results of operations of the Company
for the quarter ended March 31, 1999.
On June 17, 1998, the Financial Accounting Standards board
issued FAS No. 133, "Accounting for Derivative Instruments and
Hedging Activities" effective for fiscal years beginning
after June 15, 1999. This statement standardizes the
accounting for derivatives and hedging activities and
requires that all derivatives be recognized in the statement
of financial position as either assets or liabilities at
fair value. Changes in the fair value of derivatives that
do not meet the hedge accounting criteria are to be reported
in earnings. Adoption of this standard is not expected to
have a material effect on the Company's financial position,
results of operations or cash flows.
Note 9: Cash Flows
For purposes of the Statements of Cash Flows, the Company
considers all highly liquid investments with an original
maturity of three months or less to be cash equivalents.
Actual interest paid was $23.6 million and $12.9 million
for the quarters ended March 31, 1999 and 1998,
respectively. Income taxes paid totaled $4.9 million and
$11.5 million for the quarters ended March 31, 1999 and
1998, respectively. Interest costs associated with the
construction of capital assets, including the Optronics
network, are capitalized. Total amounts capitalized for the
first three months of 1999 and 1998 totaled $7.7 million and
$3.7 million, respectively.
Note 10: Commitments and Contingencies
In connection with the Company's capital program, certain
commitments have been made for the purchase of materials and
equipment. Total capital expenditures for 1999 are
currently projected to be approximately $900 million.
At March 31, 1999 and December 31, 1998,
respectively, $125.5 million and $114.0 million of deposits
for the Company's Optronics network build are included in
the "Deferred and other assets" caption in the Consolidated
Balance Sheets.
Note 11: Subsequent Events
On April 15, 1999, the Company sold Frontier Network
Systems Corp. ("FNSC") for $12.4 million, including cash of
$7.9 million and a long-term note for $4.5 million. FNSC
markets and installs telecommunications systems and
equipment. The Company does not anticipate that the after
tax gain on the sale will be material to the financial
statements.
Effective April 29, 1999, the Company obtained a $250
million, 364 day credit facility with interest based on
LIBOR.
Effective April 29, 1999, the Company approved the
redemption of all outstanding shares of Cumulative Preferred
Stock, 4.60% Series, 5.00% Series, 5.00% Second Series, and
5.65% Series as of July 1, 1999 pursuant to the original
terms.
Item 2 - Management's Discussion of Results of Operations
and Analysis of Financial Condition
For the Three Months Ended March 31, 1999 and 1998
The matters discussed throughout this Form 10-Q, except
for historical financial results contained herein, may be
forward-looking in nature or "forward-looking statements."
Actual results may differ materially from the forecasts or
projections presented. Forward-looking statements are
identified by such words as "expects," "anticipates,"
"believes," "intends," "plans" and variations of such words
and similar expressions. The Company believes that its
primary risk factors include, but are not limited to:
changes in the overall economy, the nature and pace of
technological change, the number and size of competitors in
the Company's market, changes in law and regulatory policy
and the mix of products and services offered in the
Company's markets. Any forward-looking statements in this
March 31, 1999 Form 10-Q should be evaluated in light of
these important risk factors. For additional disclosure
regarding risk factors refer to the Company's Annual Report
on Form 10-K for the year ended December 31, 1998 and the
reports on Form 8-K filed with the Securities and Exchange
Commission as follows:
SEC Filing Date Matter
- ------------------------------------------------------------
6/17/98 Pooling of Interests Merger
with GlobalCenter Inc.
1/26/99 Dividend Restructuring
1/26/99 Filing of Management's Discussion and Analysis,
Consolidated Financial Statements
and Notes for 1998, 1997 and 1996
3/19/99 Merger Agreement with Global Crossing Ltd.
DESCRIPTION OF BUSINESS
Frontier Corporation (the "Company" or "Frontier")
provides integrated telecommunications services including
Internet, IP and data applications, long distance, local
telephone and enhanced services to business, carrier, web-
centric and targeted residential customers nationwide and in
certain international countries.
RESULTS OF OPERATIONS
Consolidated revenues for the first quarter of 1999 were
$674.8 million, representing an increase of $42.8 million or
6.8% over the first quarter of 1998. Consolidated operating
income was $80.2 million and $68.0 million for the quarters
ended March 31, 1999 and 1998, respectively, representing a
17.9% increase on a year over year basis. Excluding $7.5
million in nonrecurring items, operating income was $87.7
million for the quarter ended March 31, 1999 and $74.5
million for the quarter ended March 31, 1998, representing a
17.7% increase. Operating results continue to be positively
impacted by revenue growth in Data, Carrier Services and
Competitive Local Exchange Carrier ("CLEC") services. Data
revenue grew $24.0 million, or 131.5% over the first quarter
of 1998, driven by a 268% increase in frame relay, a 231%
increase in dedicated Internet and a 129% increase in
content distribution revenue on a year over year basis.
Carrier Services revenues grew $52.2 million or 37.6% over
the first quarter of 1998. The growth in Carrier Services
reflects a growing base of new customers.
Normalized for other charges, costs and expenses grew
$29.7 million or 5.3% over the same prior year quarter
compared to consolidated revenue growth of 6.8%. Expenses
were driven primarily by higher cost of access in the
Integrated Services segment due to growth in Carrier
Services volumes. These increases are offset by
improvements in selling, general and administrative expenses
as a percent of revenue as a result of the Company's efforts
to effectively manage expenses.
In the first quarter of 1999, the Company recorded a $7.5
million charge, or $.04 per diluted share, for costs related
to the merger with Global Crossing. These charges primarily
included investment banker fees, legal fees and other direct
costs.
During the first quarter of 1998, the Company recorded an
after-tax charge of $5.8 million (net of taxes of $0.7
million) associated with the acquisition of GlobalCenter
Inc. ("GlobalCenter") a leading provider of digital
distribution, Internet and data services. These charges
included investment banker fees, legal fees and other direct
costs.
Diluted earnings per share were $0.23 and $0.20 for the
quarters ended March 31, 1999 and 1998, respectively,
representing a 15.0% increase. Excluding nonrecurring
charges, diluted earnings per share for the quarter ended
March 31, 1999 were $0.27, as compared to $0.23 for the
first quarter of 1998. Consolidated net income for the same
period was $47.4 million compared to $39.7 million in 1998,
normalized for nonrecurring items.
Integrated Services
Through its Integrated Services segment, the Company is
one of the nation's largest long distance companies. The
Integrated Services segment provides domestic and
international voice, data products, video and audio
communications, digital distribution services, Internet
service and other communications products to primarily small
to mid-size business customers, carrier customers, web-
centric customers and targeted consumer markets. Results
for this segment also include CLEC services, currently
available in 32 states plus Washington D.C., providing
Frontier the ability to offer integrated local and long
distance telephone service to approximately 70% of the
United States.
Integrated Services revenue totaled $490.6 million in the
first quarter of 1999, an increase of $41.1 million or 9.1%
as compared to the first quarter of 1998. The increase in
revenue is attributed to a growing base of carrier
customers, CLEC services and data revenue. Revenue
increases are being offset by the de-emphasis of selected
consumer programs and continuing competition in the consumer
sector. Consistent with industry trends, the Company is
experiencing declines in revenue per minute for voice
products.
Data Services revenue reached $42.3 million in the first
quarter of 1999, an increase of $24.0 million, or 131.5%
over the first quarter of 1998. Data Services growth is
driven by a 268% increase in frame relay, a 231% increase in
dedicated Internet and a 129% increase in content
distribution revenue on a year over year basis.
During the quarter ended March 31, 1999, Carrier Services
revenue grew $52.2 million to $190.8 million, representing a
37.6% increase over the same prior year period. These
increases are driven by both an increase in the customer
base as well as higher levels of switched and dedicated
traffic. As the Optronics network is completed, the Company
anticipates further fiber capacity sales, swaps and
exchanges.
Frontier provides local service as a CLEC on both a resale
and facility basis with a focus on providing integrated
local, long distance and data services. Initially, most
coverage was provided via resale of the incumbent local
exchange carriers. Within that footprint, CLEC service was
initially provided from Frontier's own switches in New York,
Boston and Minneapolis. As of March 31, 1999, Frontier has
expanded its coverage to 32 states plus Washington, D. C.
for local resale and to 22 top business markets for other
facilities-based local service, cumulatively reaching 70% of
the U. S. business population. Facilities-based service is
being offered in cities that are on the Company's Optronics
network, which will provide Frontier with the opportunity to
expand its offerings of combined local and long distance
services into additional markets and leverage the Optronics
network. CLEC revenue growth was 82% and CLEC line growth
was 52% over the first quarter of 1998.
Cost of access represented 63.6% of total Integrated
Services revenue for the first quarter of 1999 as compared
to 63.8% for the same period in 1998. The lower cost of
access percentage is primarily driven by increased
utilization of the Optronics network, offset by growth in
generally lower margin Carrier Services revenue.
Delays in the completion of a small number of segments
have moved the expected completion date of all portions of
the original Optronics network into the first half of 1999.
Cost benefits are expected to be realized as the SONET rings
are closed, traffic is migrated and redundant leased costs
are eliminated. The Company has further enhanced its
Optronics network by expanding its geographic coverage.
Through swap agreements with Enron and WTCI, Frontier will
add approximately 4,000 route miles in the western United
States. These agreements will also provide the Company with
additional SONET rings, further enhancing the reliability
and performance of the network. In addition, in July 1998,
Frontier entered into an agreement with Williams
Communications to construct an extension into the southeast
United States. In aggregate, the Company's Optronics
network will have 20,000 route miles. As of March 31, 1999,
approximately 65% of the total Optronics network is carrying
traffic. Construction of the Optronics network and
continuing integration efforts are expected to reduce future
network costs as well as provide new revenue opportunities
for the Company.
SG&A expense represented 23.9% of the total Integrated
Services' revenue for the first quarter of 1999 as compared
to 26.8% for the same period in 1998. The lower SG&A
percentage is driven primarily by cost controls and a change
in revenue mix away from the consumer business to the Carrier
Services business. The consumer business historically has
higher SG&A expense as a percentage of revenue than the Carrier
Services business.
Depreciation and amortization expense increased $6.4
million or 24.6% on a year over year basis driven primarily
by depreciation of the Optronics network and an overall
increase in capital expenditures.
Operating income for the first quarter of 1999 was $29.3
million, an increase of 202.8% over the first quarter of
1998. Operating margin as a percent of revenue for the
three months ended March 31 1999, increased from 2.1% in the
first quarter of 1998 to 6.0% in the first quarter of 1999.
Excluding nonrecurring items, operating income increased
80.7% and operating income as a percent of revenue increased
from 3.6% to 6.0% during the first quarter of 1999 compared
to the first quarter of 1998. The increase in operating
margin is attributed to higher revenue and migration to the
lower cost Optronics network.
Local Communications Services
The Company's Local Communications Services operation is
one of the largest local exchange service providers in the
United States. Local Communications Services includes the
Company's local telephone operations, consisting of 34
telephone operating subsidiaries in 13 states. Also
included in this segment are the revenues and expenses of
Frontier Communications of Rochester Inc., a competitive
telecommunications company formed January 1, 1995 that
provides an array of services on a retail basis in the
Rochester, New York marketplace. Consequently, the Local
Communications Services segment includes both wholesale and
retail local service provided in the Rochester, New York
market.
Revenues for Local Communications Services were $179.2
million in the three month period ended March 31, 1999, an
increase of $6.1 million or 3.5% over the comparable period
in 1998. Access lines increased 3.4% over the prior year to
1,033,000 and access minutes of use increased 3.9% over the
same prior year period. Minutes of use increased 3.2% over
the comparable 1998 period. Revenue growth during the first
quarter of 1999 is also influenced by an increased demand
for Internet services and dedicated traffic growth.
Costs and expenses in the first quarter of 1999 for Local
Communications Services were $113.7 million, an increase of
$4.2 million or 3.8% over the first quarter of 1998. The
increase in costs and expenses is attributable to service
quality improvements during the quarter, increased
depreciation expense, and an increase in customer service
costs due to access line growth.
Operating income was $65.5 million for the quarter ended
March 31, 1999, representing an increase of $1.9 million or
3.0% over the comparable quarter in the prior year.
Operating margins for the quarter ended March 31, 1999 were
relatively consistent with the prior year.
Corporate Operations and Other
Corporate Operations is comprised of expenses
traditionally associated with a holding company, including
executive and board of directors' expenses, corporate
finance and treasury, investor relations, corporate
planning, legal services and business development. The Other
category includes FNSC, which was sold on April 15, 1999.
FNSC markets and installs telecommunications systems and
equipment. This segment also includes wireless operations
of Minnesota RSA No. 10 which was sold on April 30, 1998.
The change in results for this segment are influenced by
the sale of the Company's wireless operations and diminished
revenue from FNSC prior to its sale in April 1999.
Other Income Statement Items
Interest Expense
Interest expense was $15.2 million for the quarter ending
March 31, 1999, representing an increase of $1.8 million or
13.3% over the prior year quarter. The overall increase in
interest expense is the result of higher levels of debt
outstanding and is partially offset by an increase in
capitalized interest of $4.0 million over 1998. The increase
in capitalized interest and levels of debt outstanding is
primarily attributable to the Company's capital program
driven by the Optronics network and an overall increase in
capital expenditures.
Equity Earnings from Unconsolidated Wireless Interests
The Company's minority interests in wireless operations
and its 50% interest in the Frontier Cellular joint venture
with Bell Atlantic are reported using the equity method of
accounting, which results in the Company's proportionate
share of earnings being reflected in a single line item
below operating income.
Equity earnings from the Company's unconsolidated wireless
interests, including Frontier Cellular, the 50/50 joint
venture of Frontier and Bell Atlantic currently managed by
Frontier, were $4.2 million in the first quarter, a 72.5%
increase over the $2.5 million reported in the year-ago
quarter. Customers increased to more than 403,000, or 21
percent more than the year-ago quarter. The increase in
equity earnings is attributable to continued operating
efficiencies as well as an increase in the number of
customers.
Income Taxes
The effective income tax rate (normalized for nonrecurring
items) was 39.5% for the quarters ended March 31, 1999 and
1998.
Effective income tax rates as reported are impacted by
certain nonrecurring items for the quarters ended March 31,
1999 and 1998. During 1999 and 1998, the effective rates
were primarily impacted by transaction costs associated with
the Global Crossing merger and the GlobalCenter acquisition.
FINANCIAL CONDITION
Review of Cash Flow Activity
Earnings before interest, taxes, depreciation and
amortization ("EBITDA") is a common measurement of a
company's ability to generate cash flow from operations.
EBITDA should be used as a supplement to, and not in place
of, cash flow from operating activities. The Company's
EBITDA before nonrecurring charges was $150.2 million, or
15.8% higher than the year-ago amount of $129.8 million.
The increase in EBITDA corresponds with the improved
operating results of the Company.
Cash provided from operations for the quarter ended March
31, 1999 increased $38.2 million to $104.5 million as a
result of improved operating results as compared to the same
prior year period. Changes in working capital include an
increase in accounts receivable, accounts payable, taxes
accrued and other liabilities, and deferred income taxes.
These increases are primarily driven by the growth of the
business.
Cash used for investing activities increased to $330.5
million, or 288.7% higher than the prior year quarter driven
by an increase in cash expenditures for capital projects
principally due to the Optronics network.
Cash provided from financing activities increased $186.5
million during the quarter as compared to the same period in
1998. This net inflow of cash is primarily attributable to
new borrowings on long term debt driven by the Company's
capital program and proceeds from the issuance of common
stock resulting from the exercise of stock options.
Debt
The Company's total debt amounted to $1,472.9 million at
March 31, 1999, an increase of $112.6 million from December
31, 1998. This higher debt level is driven by the Company's
capital program, including the Optronics network as well as
the temporary restriction on dividend payments from Frontier
Telephone of Rochester.
Debt Ratio and Interest Coverage
The Company's debt ratio (total debt as a percentage of
total capitalization) was 57.9% at March 31, 1999, as
compared with 57.2% at December 31, 1998. Pre-tax interest
coverage, excluding nonrecurring charges, was 4.1 times for
the quarter ended March 31, 1999, as compared with 4.6 times
for the same period in 1998.
Capital Spending
Through March 1999, gross capital expenditures amounted to
approximately $230.7 million, as compared to $85.5 million
in the prior year. The Company currently projects its 1999
capital expenditures to be approximately $900 million.
The Company anticipates financing its capital
program through a combination of internally generated cash
from operations as well as external financing.
Year 2000 Issues
The Company's Year 2000 ("Year 2K") project is intended
to address potential processing errors in computer programs
that use two digits (rather than four) to define the
applicable year. The Company's assessment of Year 2K issues
is essentially complete. Disclosure is warranted because
the issues, if unresolved by the Company and by the many
unaffiliated carriers and other firms with whom the Company
interconnects its networks or does business, could have
impacts that are material. The Company addresses Year 2K
issues in four areas:
State of Readiness. Frontier has developed plans to
assess and remediate key internally-developed computer
systems so they will be Year 2K compliant in advance of
December 31, 1999 and has implemented those plans to a
significant degree. The plans encompass all operating
properties as well as Frontier's corporate headquarters.
These include both information technology ("IT") and non-IT
compliance. The plans cover the review, and either
modification or replacement where necessary, of portions of
the Company's computer applications, telecommunications
networks, telecommunications equipment and building facility
equipment that directly connect the Company's business with
customers, suppliers and service providers. Implementation
of the plan began in 1996 and the Company believes that
substantially all of its internally-developed IT systems are
now compliant. Final assessments and remediation are
expected to be substantially complete by midyear 1999, or
shortly thereafter, leaving the remainder of 1999 for
additional system testing, carrier interoperability testing
and other remediation. These plans involve capital
expenditures for new software and hardware, as well as costs
to modify existing software. This will include replacement
of individual end user equipment, such as personal computers
that are not compliant. Initially, work with IT systems was
given priority over work with non-IT systems, but the
Company is comprehensively reviewing its non-IT Year 2K
readiness as well, including communications with third
parties who supply or maintain non-IT systems or significant
non-IT subsystems.
The Company has given special attention to the Year 2K
issues involved in its network, switches and billing
systems, and will continue to dedicate significant resources
to these areas as a priority. The Company has also
increased its resources in areas in which assessment and
remediation has not yet reached a point where management is
satisfied with progress. To date, Year 2K readiness is
progressing at a pace that is acceptable to management and
management maintains continuous contact with the Year 2K
team to receive progress reports and to address issues.
Costs. The Company has recently performed a detailed update
of Year 2K costs. Costs to date that are directly attributable
to Year 2K issues are $17.5 million, and the Company now anticipates
spending an additional $20.1 to $20.8 million during the
remainder of 1999. This includes costs directly related to
Year 2K assessment and remediation and the replacement of
non-compliant systems and end user equipment, including acceleration
of replacement of non-compliant systems and end user equipment
due to Year 2K issues. A substantial portion of the total
amount has been used for third party assistance in assessment and
remediation. The source of these funds is cash generated from
operations. The Year 2K projects have not caused the
Company to forego or defer, to any material degree, other
critical IT projects. To date, the costs of addressing
potential Year 2K problems are not considered material to
the Company's financial condition, results of operations or
cash flows and have been consistent with planned
expenditures, and future costs are not expected to be
material in such respects.
Risks. The Company is engaged primarily in
telecommunications lines of business, and therefore connects
directly and indirectly with thousands of other carriers,
inside and outside the United States. These connections are
made through switching offices of the Company and the other
carriers. The switching offices were manufactured by and
often maintained by third parties. While many other
carriers have announced plans to engage independently in
Year 2K assessment and remediation for their networks, there
is a risk that some carriers (particularly smaller carriers
and carriers outside the United States) will not address or
resolve Year 2K issues, and that telecommunications may
therefore be affected. If this were to occur, it is likely
that the Company would be affected only to the same degree
as the other carriers in the telecommunications industry. A
Year 2K failure in the network of smaller carriers would not
be likely to have a significant impact on telecommunications
generally, or on the Company. However, addressing these
risks to the telecommunications industry in general is
outside the Company's control. In addition, the Company is
unable at this time to assess the degree to which the
manufacturers of switches and similar equipment have
completed their assessment and remediation of such equipment
and its associated software with respect to any other
carriers. Nevertheless, the Company has initiated an
inquiry with its primary vendors and continues to engage in
discussions related to Year 2K compliance with many of them.
If the Company concludes that a manufacturer or other vendor
is unable to complete remediation in time, the Company has
the option of system or equipment replacement, an option
that is also available to the Company with respect to its
own systems and equipment. The Company has replaced some
equipment and systems, and may continue to do so in
appropriate circumstances.
Another risk to the Company arises with respect to the
timely completion of Year 2K remediation for the processing
that occurs in the Company's IT and non-IT systems,
including billing systems. If the Company or its vendors
are unable to resolve such processing issues in a timely
manner, it could pose independent risks to the Company's
business that could be material. Accordingly, the Company
has devoted resources it believes to be adequate to resolve
all significant identified Year 2K issues in a timely
manner, and has undertaken plans to make information
available to customers and others related to its Year 2K
activities. Consistent with the practice of other carriers,
the Company generally has declined to provide Year 2K
compliance warranties or other Year 2K-related contractual
promises to customers or other persons. In addition, the
Company is engaged in communications with third party
equipment and software vendors and suppliers of services to
verify their Year 2K readiness, and plans to engage in
internetwork testing with other carriers during 1999. Since
the Company's own Optronics NetworkSM, including the
recently announced southeast expansion, is expected to be
substantially deployed before December 31, 1999, the Company
anticipates that the impact of other carriers who may
experience business interruptions would be lessened, and
such interruptions are not currently expected to have
material adverse impacts on the Company.
Contingency Plans. The Company consistently monitors
the progress of its Year 2K program. The Company currently
anticipates that it will resolve its Year 2K issues before
the end of 1999, with the exception of any issues that
involve other carriers or suppliers and that are outside of
its control. During 1999, the Company will continue to
monitor efforts undertaken through regulatory agencies and
industry groups to assure that Year 2K preparations are
completed in a timely manner.
The Company has identified areas on a preliminary basis in
which it expects to develop contingency plans. Contingency
planning does not mean that a facility or system will fail.
It may be merited because of many different factors,
including the inherent importance of a system or facility,
the response or lack of response from a third party vendor,
or the results of the Company's review and evaluation. The
following areas have been identified as areas in which
contingency planning is or may be required: SS7 Network
arrangements internally and with third parties, power
availability, certain OSS and CARS operating systems,
network operations and call centers, EDI and credit and
collections systems, lockbox arrangements and internal
telephone systems. In all of these areas it is the
potential impact of a failure rather than the probability of
a failure that has led the Company to identify it as an area
for contingency planning. To date, the Company has not
identified contingency planning requirements relative to its
Internet operations. Plans will be developed and tested as
necessary and closely monitored by the Company's Internal
Audit department and the Year 2K Executive Steering
Committee. Because of its prior use of multiple billing
systems, the Company has experience in manual billing
consolidation for its carrier customers, and will always
have manual processes available to it. The costs of
contingency planning are not expected to be material to the
Company.
Dividends
On March 22, 1999, the Board of Directors declared the
first quarter 1999 dividend of $0.05 cents per share on the
Company's common stock, payable May 3, 1999 to shareholders
of record on April 15, 1999.
The dividend reflects an adjustment to Frontier's annualized
common stock dividend which was reduced from $0.89 per share
to $0.20 per share by the Company's Board of
Directors on January 25, 1999.
New Accounting Pronouncements
On June 17, 1998, the Financial Accounting Standards board
issued FAS No. 133, "Accounting for Derivative Instruments and
Hedging Activities" effective for fiscal years beginning
after June 15, 1999. This statement standardizes the
accounting for derivatives and hedging activities and
requires that all derivatives be recognized in the statement
of financial position as either assets or liabilities at
fair value. Changes in the fair value of derivatives that
do not meet the hedge accounting criteria are to be reported
in earnings. Adoption of this standard is not expected to
have a material effect on the Company's financial position,
results of operations or cash flows.
OTHER ITEMS
Open Market Plan
Open Market Plan. The Company began its fifth year of
operations under the Open Market Plan in January 1999. The
Open Market Plan promotes telecommunications competition in
the Rochester, New York marketplace by providing for (1)
interconnection of competing local networks including
reciprocal compensation for terminating traffic, (2) equal
access to network databases, (3) access to local telephone
numbers, (4) service provider telephone number portability,
and (5) certain wholesale discounts to resellers of local
services. Results since implementation of the Open Market
Plan are considered to have been constructive for the
Company as a whole.
During the seven year period of the Open Market Plan, the
Company will not be regulated by rate-of-return regulation,
but instead, will be regulated under pure price cap
regulation. Over this period, planned rate reductions of
$21.0 million (the "Rate Stabilization Plan") will be
implemented for Rochester area consumers, including $16.5
million of which occurred through 1998, and an additional
$1.5 million which commenced in January 1999. Rates charged
for basic residential and business telephone service may not
be increased during the seven year period of the Plan. The
Company is allowed to raise prices on certain enhanced
products such as Caller ID and call forwarding.
The New York State Public Service Commission ("NYSPSC") has
issued a Notice Inviting Comments in which it has proposed to
make further changes in pricing under the Open Market Plan.
These pricing changes could reduce some prices to competitors
for network elements and other offerings, but could also
reduce the amount paid by the Company for reciprocal
compensation. The issues being addressed by the NYSPSC have
been under consideration since 1995. The Company cannot
predict the ultimate impact of any NYSPSC action in this
proceeding, although it is not expected to be material. The
NYSPSC has also issued orders on other regulatory issues over
time, related to service quality, staff allocations,
provisioning and relations with other carriers.
Management believes there continues to be significant
market and business opportunities, as well as uncertainties,
associated with the Company's Open Market Plan. There can
be no assurance that the changing regulatory environment
will positively impact the Company.
Dividend Policy
The Open Market Plan prohibits the payment of dividends by
the Company's subsidiary, Frontier Telephone of Rochester,
Inc. ("FTR"), to Frontier if (i) FTR's senior debt is
downgraded to "BBB" by Standard & Poor's ("S&P"), or the
equivalent rating by other rating agencies, or is placed on
credit watch for such a downgrade, or (ii) a service quality
penalty is imposed under the Open Market Plan. Dividend
payments to Frontier also require FTR's directors to certify
that such dividends will not impair FTR's service quality or
its ability to finance its short and long-term capital needs
on reasonable terms while maintaining an S&P debt rating
target of "A".
In 1996, FTR failed to achieve the service quality levels
required by the Open Market Plan. FTR requested a waiver,
but was denied. The NYSPSC's ruling resulted in a
restriction on the flow of cash dividends from FTR to
Frontier. On October 22, 1997, the NYSPSC adopted an order
requiring FTR to issue refunds of approximately $0.9
million, or $2.60 per customer. Reserves sufficient to
cover the refund were established in 1996. These refunds
have been issued.
On October 15, 1998, the NYSPSC approved a proposal by FTR
for revision of its service incentive plan that:
- required a rebate of $8.00 per customer to resolve all
service penalties for 1997 and 1998, such rebates have
been issued,
- established a rebate/client program for missed
appointments, and
- increased the amounts at risk for the period 1999-2001
should FTR fail to meet required service levels.
In 1998, the Company completed its commitment to the
NYSPSC to increase capital expenditures to a minimum of
$80.0 million and add employees in service-affecting areas.
The temporary restriction of dividend payments to Frontier
will remain in place until the NYSPSC is satisfied that FTR's
service levels demonstrate that FTR has rectified the service
deficiency.
Part II - Other Information
Item 1. Legal Proceedings
On June 11, 1992, a group of corporate plaintiffs
consisting of Cooper Industries, Inc.; Keystone Consolidated
Industries, Inc.; The Monarch Machine Tool Company; Niagara
Mohawk Corporation and Overhead Door Corporation commenced
an action in the United States District Court for the
Northern District of New York seeking contribution from
fifteen corporate defendants, including Rotelcom Inc., a
wholly-owned subsidiary of the registrant held through
intervening subsidiaries (now named FNS). The plaintiffs
seek environmental response costs incurred by the plaintiffs
pursuant to a consent decree entered into by plaintiffs
with the United States EPA. Two additional defendants were
named in 1994. In addition to FNS, the current defendants
are: Agway, Inc.; BMC Industries, Inc.; Borg-Warner
Corporation; Elf Atochem North America, Inc.; Mack Trucks,
Inc.; Motor Transportation Services, Inc.; Pall Trinity
Micro Corporation; The Raymond Corporation; Redding-Hunter,
Inc.; Smith Corona Corporation; Sola Basic Industries, Inc.;
Wilson Sporting Goods Company; Phillip A. Rosen; Harvey M.
Rosen; City of Cortland and New York State Electric & Gas
Corporation.
The consent decree concerned the clean-up of an
environmental Superfund site located in Cortland, New York.
It is alleged that the corporate defendants disposed of
hazardous substances at the site and are therefore liable
under the Comprehensive Environmental Response, Compensation
and Liability Act. On November 21, 1997, the EPA issued a
Proposed Remedial Action Plan" ("PRAP"). In the PRAP, the
EPA outlined four alternative plans for remediating the
site. A number of parties, excluding the Company, have
reached agreements with the EPA to fund certain future
remedy costs at the site consistent with the PRAP. There
has been no allocation of liability by the Court as among or
between the plaintiffs or defendants.
Since February 1994, a significant number of former
American Sharecom, Inc. ("ASI") shareholders have filed and
amended several and various complaints in Hennepin County
(Minnesota) District Court. Included among the defendants
are ASI, its former principal shareholders, Steven Simon and
James Weinert, and Frontier. These suits allege generally
that Simon and Weinert, with and through ASI, embarked upon
a scheme to gain control of ASI and acquire all of its stock
through common law fraud, breach of fiduciary duty and
certain violations of the Minnesota Business Corporation
Act. This Act requires shareholders in a closely held
corporation to act fairly toward one another and refrain
from misappropriation. Another action by a few former ASI
shareholders who dissented from the cashout merger that
finally took ASI private was recently dismissed by the
federal court in Minnesota. The claims against Frontier
maintain only that Frontier controls the disposition of the
restricted Frontier stock which was issued to Simon and
Weinert in connection with the acquisition of ASI and that
such stock should be held in trust for the benefit of the
plaintiffs. At this time Simon and Weinert have either
negotiated settlements with the majority of former ASI
shareholders who had asserted claims or have succeeded in
obtaining dismissal of many of the lawsuits.
Although it is too early to determine the outcome of the
remaining lawsuits, Frontier, ASI and the other defendants
each are contesting the claims. In connection with the
acquisition of ASI by Frontier, Simon and Weinert agreed to
indemnify and defend the Company for these claims.
On April 10, 1997, Jeff Thompson filed a purported class
action on behalf of himself and all other similarly-situated
persons in Circuit Court for Marengo County Alabama. Named
as defendants are Frontier Corporation, Frontier Subsidiary
Telco, Inc. and Frontier Communications of the South, Inc.
("defendants"). The complaint also reserves the right to
add additional defendants and identifies all of Frontier's
telephone subsidiaries. Concomitant with filing the
complaint, plaintiff also filed an ex parte motion for
conditional class certification which the Court granted. It
conditionally certified a class consisting of "All persons
or entities in the United States who have been charged by
defendants or their subsidiaries or affiliates a fee for
`inside wire maintenance' without having given their
affirmative acceptance to a repair service contract;
specifically excluded from this class, however, are all
employees, agents, officers, directors and affiliates of any
of the Defendants and all persons or entities who have
pending and/or previously filed individual (non-class)
lawsuits against any of the defendants for the same claims
set forth in the Complaint." On January 30, 1998, the
Supreme Court of Alabama issued a writ of mandamus to the
trial court ordering it to vacate its conditional class
certification. In light of the decision of the Alabama
Supreme Court, plaintiffs have agreed voluntarily to dismiss
this action with prejudice. A stipulation of dismissal with
prejudice was entered by the trial court on February 19,
1999.
The Open Market Plan discussion in the Management's
Discussion and Analysis of Financial Condition and Results
of Operations, Part I, Item 2 of this document is
incorporated by reference.
Item 4. Submission of Matters to a Vote of Security Holders
The Annual Meeting of Shareholders was held on April 29,
1999 for the purpose of electing a board of directors and
approving the ratification of auditors.
All of management's nominees for directors as listed in
the proxy statement were elected with the following vote:
Number of Shares/Votes
Name For Authority Withheld
- -----------------------------------------------------------
Patricia C. Barron 147,045,823 1,070,424
Raul E. Cesan 147,129,464 986,783
Joseph P. Clayton 147,103,758 1,012,489
Brenda E. Edgerton 147,070,605 1,045,642
Jairo A. Estrada 147,071,648 1,044,599
Michael E. Faherty 147,086,804 1,029,443
Alan C. Hasselwander 147,020,471 1,095,776
Eric Hippeau 147,072,138 1,044,109
Robert Holland, Jr. 147,059,024 1,057,223
Douglas H. McCorkindale 147,127,551 988,696
James F. McDonald 147,090,361 1,025,886
Leo J. Thomas 147,114,818 1,001,429
The ratification of PricewaterhouseCoopers LLP as Public
Accountant for the fiscal year 1999 was approved with the
following vote:
For 147,085,666
Against 559,006
Abstain 471,575
Item 5. Other Information
On October 9, 1997, the FCC ordered carriers that receive
"dial around" calls from payphones (certain calls sent
without coins, such as 800 or other calls, with special
access codes) to compensate payphone owners at the rate of
28.4 cents per completed call. The Court of Appeals for the
District of Columbia Circuit found that the FCC had failed
to justify this rate and sent the matter back to the FCC for
further consideration. On February 4, 1999, the FCC set the
"dial around" compensation rate at 24 cents per completed
call retroactive to October 7, 1997. This decision is
subject to reconsideration and appeal.
The FCC has yet to determine how to address the payphone
compensation obligation for the period from November 7, 1996
through October 6, 1997. On April 2, 1999, the Company
moved to intervene in a proceeding with U.S. Court of
Appeals in the District of Columbia challenging the FCC's
order. On July 15, 1998, an administrative complaint was
filed by Bell Atlantic Corp. seeking $3.2 million in
compensation for use of its payphones since October 7, 1997.
On August 17, 1998, an administrative complaint was filed by
Ameritech Corp. with the FCC seeking $1.9 million in
compensation for the use of its payphones since October 7,
1997. On September 1, 1998, SBC Communications Inc. filed
an administrative complaint with the FCC seeking $3.3
million in compensation for the use of its payphones since
October 7, 1997. On November 24, 1998, U S West
Communication Group filed an administrative complaint
seeking $2.5 million in compensation for the use of its
payphones since October 7, 1997. On April 30, 1999, the
Company and U S West executed a settlement and on May 5,
1999, the parties filed a joint motion to dismiss U S West's
complaint. The filing of the complaints has had no effect
upon the position of the Company with respect to payphone
compensation. The Company cannot predict the ultimate
outcome of any of these FCC proceedings.
Item 6. Exhibits and Reports on Form 8-K
(a) See Index to Exhibits for exhibits required by Item 601
of Regulation S-K.
The Registrant hereby agrees to furnish the Commission a
copy of each of the Indentures or other instruments defining
the rights of security holders of the long-term debt
securities of the Registrant and any of its subsidiaries for
which consolidated or unconsolidated financial statements
are required to be filed.
(b) Reports on Form 8-K.
The following reports on Form 8-K were filed during the
quarter ended March 31, 1999.
SEC Filing Date Item No. Financial Statements
-----------------------------------------------------------
1/26/99 5 Yes
1/26/99 5 Yes
3/19/99 5,7 No
No reports on Form 8-K were filed subsequent to the
quarter ended March 31, 1999.
<PAGE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly
authorized.
FRONTIER CORPORATION
-------------------------------------
(Registrant)
Dated: May 13, 1999 /s/ Rolla P. Huff
By: ---------------
Rolla P. Huff
President and
Chief Operating Officer
(principal accounting officer)
<PAGE>
<PAGE>
FRONTIER CORPORATION
INDEX TO EXHIBITS
Exhibit
Number Description Reference
- ------------------------------------------------------------------
3.1 Restated Certificate of Incorporation Incorporated by reference to
dated January 24, 1995 Exhibit 3.1 to Form 10-K
for the year ended
December 31, 1995
3.2 Amendment to Restated Certificate Incorporated by reference to
of Incorporation dated April 9, 1995 Exhibit 3.2 to Form 10-K
for the year ended
December 31, 1995
3.3 By-laws Incorporated by reference to
Exhibit 3.3 to Form 10-K
for the year ended
December 31, 1998
4.1 Indenture between the Company and Incorporated by reference to
Manufacturers Hanover Trust Company, Exhibit 4.12 to Form 10-K
Trustee, dated September 1, 1986 for the year ended
December 31, 1986
4.2 First Supplemental Indenture to said Incorporated by reference to
Indenture with Manufacturers Hanover Exhibit 4(b) to Registration
Trust Company, Trustee, dated Statement 33-32035
December 1, 1989
4.3 10.46% Non-Negotiable Convertible Incorporated by reference to
Debenture due October 27, 2008 from Exhibit 4.14 to Form 10-K
the Company to The Walters Trust for the year ended
December 31, 1988
4.4 9% Debenture due August 15, 2021 Incorporated by reference to
Exhibit 4.16 to Form 10-K
for the year ended
December 31, 1991
4.5 Indenture between the Company and Incorporated by reference to
Chase Manhattan Bank, N.A., Trustee, Exhibit 4.1 to Form 8-K
dated May 21, 1997, $300M 7.25% dated May 23, 1997.
Notes due May 15, 2004.
4.6 Supplemental Indenture between the Incorporated by reference to
Company and Chase Manhattan Bank, Exhibit 4.7 to Form 10-K
N.A. as Trustee, dated December 8, 1997, for the year ended
$100M 6.25% Notes due December 15, December 31, 1997.
2009.
4.7 $200 Million Credit Agreement Incorporated by reference to
dated November 10, 1998 with Exhibit 4.8 to Form 10-K
Chase Manhattan Bank, Fleet Bank, for the year ended
Marine Midland Bank December 31, 1998
4.8 $275 Million Credit Agreement Incorporated by reference to
dated November 10, 1998 with Exhibit 4.9 to Form 10-K
Chase Manhattan Bank, Fleet Bank, for the year ended
Marine Midland Bank December 31, 1998
4.9 $250 Million Credit Agreement Filed herewith
dated April 29, 1999 with Morgan
Stanley, First National Bank of Chicago,
and Fleet National Bank, et al.
10.1 Amendment No. 1 to Directors Common Filed herewith
Stock Deferred Growth Plan
10.2 Amendment No. 1 to Plan for the Filed herewith
Deferral of Directors Fees
10.3 Amendment No. 1 to Directors Filed herewith
Stock Incentive Plan
10.4 Amendment No. 4 to Management Filed herewith
Stock Incentive Plan
10.5 Amendment No. 2 to Employees' Filed herewith
Stock Option Plan
10.6 Amendment No. 1 to Omnibus Filed herewith
Incentive Plan
11 Statement re: Computation of Diluted Filed herewith
Earnings Per Common Share (Unaudited)
27 Financial Data Schedule Filed herewith
$250,000,000
CREDIT AGREEMENT
dated as of
April 29, 1999
among
FRONTIER CORPORATION
The Lenders Party Hereto
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Administrative Agent
THE FIRST NATIONAL BANK OF CHICAGO
as Syndication Agent
MORGAN STANLEY SENIOR FUNDING, INC.
as Lead Arranger and Book Manager
FLEET NATIONAL BANK
as Documentation Agent
<PAGE>
TABLE OF CONTENTS
ARTICLE I Definitions
SECTION 1.01. Defined Terms 1
SECTION 1.02. Classification of Loans and Borrowings 14
SECTION 1.03. Terms Generally 14
SECTION 1.04. Accounting Terms; GAAP 15
ARTICLE II The Credits
SECTION 2.01. Commitments 15
SECTION 2.02. Loans and Borrowings 15
SECTION 2.03. Requests for Borrowings 16
SECTION 2.04. Notice of Borrowing Request 16
SECTION 2.05. Funding of Borrowings 16
SECTION 2.06. Interest Elections 17
SECTION 2.07. Termination and Reduction of
Commitments 18
SECTION 2.08. Repayment of Loans; Evidence of Debt 19
SECTION 2.09. Prepayment of Loans 19
SECTION 2.10. Fees 20
SECTION 2.11. Interest 20
SECTION 2.12. Alternate Rate of Interest -
Eurodollar Borrowings 21
SECTION 2.13. Increased Costs 22
SECTION 2.14. Break Funding Payments 22
SECTION 2.15. Taxes 23
SECTION 2.16. Payments Generally; Pro Rata
Treatment; Sharing of Set-offs 24
SECTION 2.17 Mitigation Obligations; Replacement
of Lenders 25
ARTICLE III Representations and Warranties
SECTION 3.01. Organization; Powers 26
SECTION 3.02. Authorization, Enforceability 27
SECTION 3.03. Governmental Approvals; No Conflicts 27
SECTION 3.04. Financial Condition; No Material
Adverse Change 27
SECTION 3.05. Properties 27
SECTION 3.06. Litigation and Environmental Matters 28
SECTION 3.07. Compliance with Laws and Agreements 28
SECTION 3.08. Investment and Holding Company Status 28
SECTION 3.09. Taxes 28
SECTION 3.10. ERISA 29
SECTION 3.11. Disclosure 29
SECTION 3.12. Year 2000 29
SECTION 3.13. Significant Subsidiaries 29
SECTION 3.14. Borrower's Funded Debt 29
ARTICLE IV Conditions
SECTION 4.01. Effective Date 30
SECTION 4.02. Each Borrowing 31
ARTICLE V Affirmative Covenants
SECTION 5.01. Financial Statements and Other
Information 31
SECTION 5.02. Notices of Material Events 33
SECTION 5.03. Existence; Conduct of Business 33
SECTION 5.04. Payment of Obligations 34
SECTION 5.05. Maintenance of Properties; Insurance 34
SECTION 5.06. Books and Records Inspection Rights 34
SECTION 5.07. Compliance with Laws 34
SECTION 5.08. Use of Proceeds 34
SECTION 5.09. Other Funded Debt of Borrower 34
ARTICLE VI Negative Covenants
SECTION 6.01. Indebtedness of Subsidiaries 35
SECTION 6.02. Liens 35
SECTION 6.03. Fundamental Changes 36
SECTION 6.04. Transactions with Affiliates 37
SECTION 6.05. Restrictive Agreements 37
SECTION 6.06. Interest Coverage 38
ARTICLE VII Events of Default
ARTICLE VIII The Administrative Agent
ARTICLE IX Miscellaneous
SECTION 9.01. Notices 43
SECTION 9.02. Waivers; Amendments 43
SECTION 9.03. Expenses; Indemnity; Damage Waiver 44
SECTION 9.04. Successors and Assigns 45
SECTION 9.05. Survival 48
SECTION 9.06. Counterparts; Integration;
Effectiveness 48
SECTION 9.07. Severability 49
SECTION 9.08. Right of Setoff 49
SECTION 9.09. Governing Law; Jurisdiction;
Consent to Service of Process 49
SECTION 9.10. WAIVER OF JURY TRIAL 50
SECTION 9.11. Headings 50
SECTION 9.12. Confidentiality 50
SECTION 9.13. Interest Rate Limitation 51
SCHEDULE 1 Commitments and Lending Offices
EXHIBIT 1.01.1 Assignment and Acceptance
EXHIBIT 1.01.2 Borrowing Request
EXHIBIT 1.01.3 Disclosure Schedule
EXHIBIT 2.08 Promissory Note
EXHIBIT 3.13 Significant Subsidiaries
EXHIBIT 3.14 Funded Debt
EXHIBIT 4.01(b) Form
of legal opinion of Borrower's counsel
EXHIBIT 4.01(f) Form
of Global Crossing Consent
EXHIBIT 6.01 Indebtedness of RTMC Holdings, Inc.
EXHIBIT 6.02 Existing Liens
EXHIBIT 6.05 Existing restrictions on creation of liens, etc.
<PAGE>
CREDIT AGREEMENT dated as of April 29, 1999, among
FRONTIER CORPORATION, the LENDERS from time to time party hereto,
MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent for
the Lenders (in this capacity, the "Administrative Agent"), THE
FIRST NATIONAL BANK OF CHICAGO as syndication agent (in this
capacity, the "Syndication Agent"), MORGAN STANLEY SENIOR
FUNDING, INC., as lead arranger and book manager (in this
capacity, the "Arranger") and FLEET NATIONAL BANK, as
documentation agent (in this capacity, the "Documentation
Agent").
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
Borrowing, is bearing interest at a rate determined by
reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any
Eurodollar Borrowing for any Interest Period, an interest
rate per annum (rounded upwards, if necessary, to the next
1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative
Agent.
"Affiliate" means, with respect to a specified Person,
another Person who directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is
under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per
annum equal to the greatest of (a) the Prime Rate in effect
on such day, (b) the Base CD Rate in effect on such day plus
1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Base CD Rate or
the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Margin" means 0.50% per annum.
"Applicable Percentage" means, with respect to any
Lender, the percentage of the total Commitments represented
by such Lender's Commitment. If the Commitments have
terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in
effect, giving effect to any assignments.
"Arranger" has the meaning specified in the recital of
parties to this agreement.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with
the consent of any party whose consent is required by
Section 9.04), and accepted by the Administrative Agent,
substantially in the form of Exhibit 1.01.1 or any other
form approved by the Administrative Agent.
"Availability Period" means the period from and
including the Effective Date to but excluding the earlier of
the date falling (a) seven days after the Effective Date (or
if such date is not a Business Day, the first Business Day
to occur after such date) and (b) the date of termination by
the Borrower of the Commitments pursuant to Section 2.07
(b).
"Base CD Rate" means the sum of (a) the Three-Month
Secondary CD Rate multiplied by the Statutory Reserve Rate
plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrower" means Frontier Corporation, a New York
corporation.
"Borrowing" means Loans of the same Type, made,
converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in
effect.
"Borrowing Request" means a request by the Borrower for
a Borrowing in accordance with Section 2.03, substantially
in the form of Exhibit 1.01.2 to this Agreement.
"Bridge Credit Facility" means the $50,000,000 loan
facility made available to the Borrower under a Credit
Agreement dated as of April 14, 1999 made between the
Borrower, the lenders described therein and Morgan Stanley
Senior Funding, Inc., as administrative agent, lead arranger
and book arranger.
"Business Day" means any day that is not a Saturday,
Sunday or other day on which commercial banks in New York
City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in
the London interbank market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right
to use) real or personal property, or a combination thereof,
which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall
be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" means (a) the acquisition of
ownership, directly or indirectly, beneficially or of
record; by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect
on the date hereof), of shares representing more than 30% of
the aggregate ordinary voting power represented by the
issued and outstanding capital stock of the Borrower;
(b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons
who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated;
or (c) the acquisition of direct or indirect Control of the
Borrower by any Person or group; provided that a Change in
Control shall be deemed to have occurred on consummation of
the transactions contemplated by the Global Crossing
Transaction.
"Change in Law" means (a) the adoption of any law, rule
or regulation after the date of this Agreement, (b) any
change in law, rule or regulation or in the interpretation
or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender
(or, for purposes of Section 2.13(b), by any lending office
of such Lender or by such Lender's holding company, if any)
with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made
or issued after the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Loans hereunder, expressed
as an amount representing the maximum aggregate amount of
such Lender's Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to
Section 2.07 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's
Commitment is set forth on Schedule 1, or in the Assignment
and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is
$250,000,000.
"Consolidated Interest Expense" means for any period
for which such amount is being determined, the interest
expense of the Borrower and its Consolidated Subsidiaries
for such period, as reported on the relevant financial
statements delivered pursuant to Sections 5.01(a) and
5.01(b).
"Consolidated Net Income" means the net income of the
Borrower and its Consolidated Subsidiaries, after taxes and
after extraordinary items, as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Worth" means the Net Worth of the
Borrower and its Consolidated Subsidiaries, as determined on
a consolidated basis in accordance with GAAP. For this
purpose, "Net Worth" of a Person means, at any date of
determination thereof, the excess of total assets of the
Person over total liabilities of the Person, determined in
accordance with GAAP.
"Consolidated Tangible Net Worth" means the Tangible
Net Worth of the Borrower and its Consolidated Subsidiaries,
as determined on a consolidated basis in accordance with
GAAP. For this purpose, "Tangible Net Worth" of a Person
means, at any date of determination thereof, the excess of
total Tangible Assets of the Person over total liabilities
of the Person, determined in accordance with GAAP.
"Consolidated Subsidiary" means any Subsidiary whose
accounts are or are required to be consolidated with the
accounts of the Borrower in accordance with GAAP.
"Control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the
management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative
thereto.
"Credit Exposure" means, with respect to any Lender at
any time, the sum of the outstanding principal amounts of
such Lender's Loans at such time.
"Default" means any event or condition which
(a) constitutes an Event of Default, (b) upon notice, lapse
of time or both would, unless cured or waived, become an
Event of Default, or (c) constitutes a "Default", as such
term is defined in the $200,000,000 Credit Agreement or the
$275,000,000 Credit Agreement.
"Disclosed Matters" means the actions, suits and
proceedings and the environmental matters disclosed in
Exhibit 1.01.3.
"dollars" or "$" refers to lawful money of the United
States of America.
"EBITDA" means the sum of the following items measured
for the twelve month period ending on the last day of each
fiscal quarter: (a) Consolidated Net Income calculated
after eliminating extraordinary and/or non-recurring items,
to the extent included in the determination of Consolidated
Net Income, plus (b) depreciation, amortization, and all
other non-cash charges included in the determination of
Consolidated Net Income, plus (c) income taxes to the extent
that they reduce Consolidated Net Income, plus
(d) Consolidated Interest Expense.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in
accordance with Section 9.02).
"Environmental Laws" means all laws, rules,
regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or
threatened release of any Hazardous Material or to health
and safety matters.
"Environmental Liability" means any liability,
contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release
of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant
to which liability is assumed or imposed with respect to any
of the foregoing.
"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 trade or business (whether
or not incorporated) that, together with the Borrower, is
treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer
under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of
any Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan;
(f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal
or partial withdrawal from any Plan or Multiemployer Plan;
or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from
the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such
term in Article VII.
"Excluded Taxes" means, with respect to the
Administrative Agent, any Lender or any other recipient of
any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which the
Borrower is located and (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the
Borrower under Section 2.17(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with
Section 2.15(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time
of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.15(a).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the
Borrower.
"Foreign Lender" means any Lender that is organized
under the laws of a jurisdiction other than that in which
the Borrower is located. For purposes of this definition,
the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
"Funded Debt" means, with respect to any Person, all
Indebtedness of such Person (including current maturities),
for money borrowed (including Capital Leases), which by its
terms matures more than one year from the date as of which
such Funded Debt is incurred, and any such Indebtedness of
such Person maturing within one year from such date which is
renewable or extendable at the option of the obligor to a
date beyond one year from such date (whether or not
theretofore renewed or extended), including any such
Indebtedness renewable or extendable at the option of the
obligor under, or payable from the proceeds of other
Indebtedness which may be incurred pursuant to, the
provisions of any revolving credit agreement or other
similar agreement.
"GAAP" means generally accepted accounting principles
in the United States of America.
"Global Crossing Transaction" means the merger
contemplated by the Agreement and Plan of Merger, dated as
of March 16, 1999, among Global Crossing Ltd., GCF
Acquisition Corp. and the Borrower.
"Governmental Authority" means the government of the
United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Granting Lender" has the meaning set forth in Section
9.04(g).
"Guarantee" of or by any Person (the "guarantor") means
any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect or guaranteeing
any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor,
direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security
for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner
of such Indebtedness or other obligation of the payment
thereof, (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account
party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary
course of business.
"Hazardous Materials" means all explosive or
radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity
price protection agreement or other interest or currency
exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without
duplication, (a) all obligations of such Person for borrowed
money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are
customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements
relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred
purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not
the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of
guaranty and (j) all obligations, contingent or otherwise,
of such Person in respect of banker's acceptances. The
Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is
liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded
Taxes.
"Index Debt" means senior, unsecured, long-term
indebtedness for borrowed money of the Borrower that is not
guaranteed by any other Person or subject to any other
credit enhancement.
"Information Memorandum" means the Confidential
Information Memorandum dated April 1999 relating to the
Borrower and the Transactions.
"Interest Election Request" means a request by the
Borrower to convert or continue a Borrowing or to select
Interest Periods in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any
ABR Loan, the last day of each March, June, September and
December and (b) with respect to any Eurodollar Loan, the
last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and in the case of a Eurodollar
Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided that (i) if
any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business
Day would fall in the next calendar month, in which case
such Interest Period shall end on the immediately preceding
Business Day and (ii) any Interest Period that commences on
the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such
Borrowing is made.
"Lenders" means the Persons listed on Schedule 1 and
any other Person that shall have become a party hereto
pursuant to an Assignment and Acceptance, other than any
such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on
Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such
Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest
rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity
comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate 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 U.S. Dollars at approximately 11:00
a.m., London time, two Business Days prior to the
commencement of such Interest Period for a term comparable
to such Interest Period.
"Lien" means, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, hypothecation,
encumbrance, charge or security interest in, on or of such
asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the
same economic effect as any of the foregoing) relating to
such asset and (c) in the case of securities, any purchase
option, call or similar right of a third party with respect
to such securities.
"Loan" means a loan made by the Lenders to the Borrower
pursuant to this Agreement.
"Material Adverse Effect" means a material adverse
effect on (a) the business, assets, operations, prospects or
condition, financial or otherwise, of the Borrower and the
Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform any of its obligations under this
Agreement or (c) the rights of or benefits available to the
Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than
the Loans) or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its
Significant Subsidiaries in an aggregate principal amount
exceeding $10,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of
the Borrower or any Significant Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the
Borrower or such Significant Subsidiary would be required to
pay if such Hedging Agreement were terminated at such time.
"Maturity Date" means the earlier to occur of:
(a) April 27, 2000; and
(b) the date of occurrence of a Change in
Control.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Note" has the meaning set forth in Section 2.08(e) of
this Agreement.
"Other Taxes" means any and all present or future stamp
or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of,
or otherwise with respect to, this Agreement.
"Participant" has the meaning set forth in Section
9.04(e).
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity
performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not
yet due or are being contested in compliance with
Section 5.04;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed
by law, arising in the ordinary course of business and
securing obligations that are not overdue by more than
30 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary
course of business in compliance with workers'
compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids,
trade contracts, leases, statutory obligations, surety
and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the
ordinary course of business;
(e) judgment liens in respect of judgments that
do not constitute an Event of Default under clause (k)
of Article VII; and
(f) easements, zoning restrictions, rights-of-way
and similar encumbrances on real property imposed by
law or arising in the ordinary course of business that
do not secure any monetary obligations and do not
materially detract from the value of the affected
property or interfere with the ordinary conduct of
business of the Borrower or any Subsidiary,
provided that the term "Permitted Encumbrances" shall not
include any Lien securing Indebtedness.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other
entity.
"Plan" means any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA or Section 412 of the Code or Section 302
of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum
publicly announced from time to time by The Chase Manhattan
Bank as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be
effective from and including the date such change is
publicly announced as being effective.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective
directors, officers, employees, agents and advisors of such
Person and such Person's Affiliates.
"Required Lenders" means, during the Availability
Period, Lenders having Credit Exposures and unused
Commitments representing more than 50% of the sum of the
total Credit Exposures and unused Commitments at such time
and, thereafter, Lenders having Credit Exposures
representing more than 50% of the total Credit Exposures at
such time.
"Significant Subsidiary" means at any time any
Subsidiary of the Borrower (i) whose total assets
constituted 10% or more of Consolidated Tangible Net Worth
as of the end of the most recent fiscal quarter or (ii)
whose "attributable" net income contributed 10% or more of
Consolidated Net Income for the fiscal year most recently
ended. The percentage of any Subsidiary's net income
"attributable" to such Subsidiary for purposes of such
computation shall be the same percentage of such
Subsidiary's net income as is included in Consolidated Net
Income.
"Statutory Reserve Rate" means a fraction (expressed as
a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate
of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a
decimal established by the Board to which the Administrative
Agent is subject (a) with respect to the Base CD Rate, for
new negotiable nonpersonal time deposits in dollars of over
$100,000 with maturities approximately equal to three
months, and (b) with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from
time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the
"parent") at any date, any corporation, limited liability
company, partnership, association or other entity the
accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with
GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as
of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Tangible Assets" means, at any date of determination
thereof, in each case to the extent included in Consolidated
Net Worth, total assets minus any share capital discount and
expense, any unamortized discount and expense on
Indebtedness, any write-up of assets, any excess of cost
over market value of investments, any development,
pre-operating, pre-production, and start-up expenses, any
good will, and any other intangible assets.
"Taxes" means any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such
day is not a Business Day, the next preceding Business Day)
by the Board through the public information telephone line
of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in
Federal Reserve Statistical Release II.15(519) during the
week following such day) or, if such rate is not so reported
on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month
certificates of deposit of major money center banks in New
York City received at approximately 10:00 a.m., New York
City time, on such day (or, if such day is not a Business
Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of
deposit dealers of recognized standing selected by it.
"Transactions" means the execution, delivery and
performance by the Borrower of this Agreement, the borrowing
of Loans, and the use of proceeds thereof.
"$200,000,000 Credit Agreement" means the $200,000,000,
364 day Credit Agreement, dated as of November 10, 1998,
among the Borrower, The Chase Manhattan Bank, as
administrative agent, and the lenders party thereto.
"$275,000,000 Credit Agreement" means the $275,000,000
Credit Agreement, dated as of November 10, 1998, among the
Borrower, The Chase Manhattan Bank, as administrative agent,
Fleet Bank, as syndication agent, Marine Midland Bank, as
documentation agent, Chase Securities, Inc., as lead
arranger and book manager, and the lenders party thereto.
"Type", when used in reference to any Loan or
Borrowing, refers to whether the rate of interest on such
Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and
referred to by Type (e.g. a "Eurodollar Loan" or an "ABR Loan").
Borrowings also may be classified and referred to by Type (e.g.,
a "Eurodollar Borrowing" or an "ABR Borrowing").
SECTION 1.03. Terms Generally. The definitions of
terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and
neuter forms. The world "include", "includes" and "including"
shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context
requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed
as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any references herein to any
Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections and
Exhibits shall be construed to refer to Articles and Sections of,
and Exhibits to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contact
rights.
SECTION 1.04. Accounting Terms; GAAP. Except as
otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; provided that, if the Borrower
notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required
Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before
or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have
become effective until such notice shall have been withdrawn or
such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Loans to
the Borrower from time to time during the Availability Period in
an aggregate principal amount that will not result in such
Lender's Credit Exposure exceeding such Lender's Commitment.
Amounts borrowed under this Section 2.01 and repaid or prepaid
may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan
shall be made as part of a Borrowing consisting of Loans made by
the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required
to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments and all
other rights and obligations of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.12, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its
option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) Each Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than
$10,000,000.
SECTION 2.03. Requests for Borrowings. To request a
Borrowing, the Borrower shall notify the Administrative Agent of
such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing and (b)
in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing
Request signed by the Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with
the requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration.
SECTION 2.04. Notice of Borrowing Request. Promptly
following receipt of a Borrowing Request in accordance with
Section 2.03, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to
be made as part of the requested Borrowing.
SECTION 2.05. Funding of Borrowings. (a) Each Lender
shall make each Loan to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the
Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting
the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing
Request.
(b) Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding
amount, with interest thereon for each day from and including the
date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i)
in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Borrowing
initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing
and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower
may, subject to the provisions of Section 2.02(c), elect
different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising
such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election
by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a
Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election
Request shall specify the following information in compliance
with Section 2.02:
(i) the Borrowing to which such Interest Election
Request applies and, if different options are being elected
with respect to different portions thereof, the portions
thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant
to such Interest Election Request, which shall be a Business
Day;
(iii) whether the resulting Borrowing is to be an
ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto
after giving effect to such election, which shall be a
period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then the
Borrower shall be deemed to have selected an Interest Period of
one month's duration. The Borrower shall not be entitled to
select an Interest Period which would end after April 27, 2000.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the
details thereof and of such Lender's portion of each resulting
Borrowing.
SECTION 2.07. Termination and Reduction of
Commitments. (a) Unless previously terminated, the Commitments
shall terminate on the last day of the Availability Period.
(b) The Borrower may at any time during the
Availability Period terminate, or reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in
an amount that is an integral multiple of $1,000,000 and not less
than $10,000,000 and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.09, the sum
of the Credit Exposures would exceed the total Commitments.
(c) The Commitments shall automatically be reduced on
prepayment of a Borrowing under Section 2.09 in an aggregate
amount equal to such prepayment.
(d) The Borrower shall notify the Administrative Agent
of any election to terminate or reduce the Commitments under
paragraph (b) of this Section at least three Business Days prior
to the effective date of such termination or reduction,
specifying such election and the effective date thereof.
Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall
be irrevocable. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be
made ratably among the Lenders in accordance with their
respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then
unpaid principal amount of each Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness
of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts
in which it shall record (i) the amount of each Loan made
hereunder, the Type thereof and (in the case of each Eurodollar
Loan) the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained
pursuant to paragraph (b) or (c) of this Section shall be prima
facie evidence of the existence and amounts of the obligations
recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans made by it be
evidenced by a promissory note (each a "Note"). In such event,
the Borrower shall prepare, execute and deliver to such Lender a
Note payable to the order of such Lender (or, if requested by
such Lender, to such Lender and its registered assigns)
substantially in the form of Exhibit 2.08 to this Agreement.
Thereafter, the Loans evidenced by such Notes and interest
thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more Notes in such form
payable to the order of the payee named therein (or, if such Note
is a registered Note, to such payee and its registered assigns).
SECTION 2.09. Prepayment of Loans. (a) The Borrower
shall have the right at any time and from time to time to prepay
any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent
by telephone (confirmed by telecopy) of any prepayment hereunder
(i) in the case of prepayment of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, three Business Days
before the date of prepayment or (ii) in the case of prepayment
of an ABR Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date
and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that such notice may state that such notice
is conditioned upon the effectiveness of other credit facilities,
in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified
date of prepayment) if such condition is not satisfied.
Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section
2.02. Each prepayment of a Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required
by Section 2.11 and, in the case of prepayment of any Eurodollar
Loan, any amount due in respect of such prepayment under Section
2.14.
SECTION 2.10. Fees. (a) The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, an up-front
fee in an amount equal to 0.025% of the total Commitments of
$250,000,000. The up-front fee is payable on the date of the
initial Borrowing hereunder, and the Borrower hereby authorizes
the Administrative Agent to withhold the amount of such up-front
fee from the amount of the initial Borrowing.
(b) The Borrower agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the
Administrative Agent.
(c) The Borrower agrees to pay to the Arranger, for
its own account, an underwriting fee in the amount and at the
time separately agreed upon by the Borrower and the Arranger.
(d) All fees payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative
Agent for distribution, in the case of the up-front fee to the
Lenders, in the proportions agreed between the Arranger and the
Lenders and, in the case of the underwriting fee, to the
Arranger. Fees paid shall not be refundable under any
circumstances.
SECTION 2.11. Interest. (a) The Loans comprising
each ABR Borrowing shall bear interest at the Alternate Base
Rate.
(b) The Loans comprising each Eurodollar Borrowing
shall bear interest at the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of
or interest on any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any
Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, 2% plus the rate applicable to ABR
Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan is payable in
arrears on each Interest Payment Date for such Loan and on the
Maturity Date; provided that (A) interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand, (B) in
the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (C) in
the event of any conversion of any Loan, accrued interest on such
Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the
basis of a year of 360 days, except that interest computed by
reference to the Alternate Base Rate at times when the Alternate
Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The
applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest - Eurodollar
Borrowings. If prior to the commencement of any Interest Period
for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which
determination shall be conclusive absent manifest error)
that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate for such Interest
Period; or
(b) the Administrative Agent is advised by the
Required Lenders that the Adjusted LIBO Rate for such
Interest Period will not adequately and fairly reflect the
cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period,
then the Administrative Agent shall give notice thereof to the
Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing
to, or continuation of any Borrowing as, a Eurodollar Borrowing
shall be ineffective and (ii) if any Borrowing Request requests a
Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing.
SECTION 2.13. Increased Costs. (a) If any Change in
Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank
market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurodollar Loan
(or of maintaining its obligation to make any such Loan) or to
reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise),
then the Borrower will pay to such Lender such additional amount
or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law
regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the
capital of such Lender's holding company, if any, as a
consequence of this Agreement or the Loans made by such Lender to
a level below that which such Lender or such Lender's holding
company could have achieved but for such Change in Law (taking
into consideration such Lender's policies and the policies of
such Lender's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender or
such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount
or amounts necessary to compensate such Lender or its holding
company, as the case may be, as specified in paragraph (a) or (b)
of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such
Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender to
demand compensation pursuant to this Section shall not constitute
a waiver of such Lender's right to demand such compensation;
provided that the Borrower shall not be required to compensate a
Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that
such Lender notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's
intention to claim compensation therefor; provided further that,
if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 270-day period referred to
above shall be extended to include the period of retroactive
effect thereof.
SECTION 2.14. Break Funding Payments. In the event of
(a) the payment of any principal of any Eurodollar Loan other
than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of
the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Loan on the date
specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.09(b) and is
revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period
applicable thereto as a result of a request by the Borrower
pursuant to Section 2.17, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan,
such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if
any, of (i) the amount of interest which would have accrued on
the principal amount of such Loan had such event not occurred, at
the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day
of the then current Interest Period therefor (or, in the case of
a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount
for such period at the interest rate which such Lender would bid
were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in
the eurodollar market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall
pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or
on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section) the Administrative Agent or each Lender (as the case may
be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any Other
Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) The Borrower shall indemnify the Administrative
Agent and each Lender, within 10 days after written demand
therefor for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent or such Lender, as the
case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a
Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Any Foreign Lender that is entitled to an
exemption from the reduction of withholding tax under the law of
the jurisdiction in which the Borrower is located, or any treaty
to which such jurisdiction is a party, with respect to payments
under this Agreement shall deliver to the Borrower (with a copy
to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) The Borrower shall make each payment
required to be made by it hereunder (whether of principal,
interest or fees or of amounts payable under Section 2.13, 2.14
or 2.15, or otherwise) prior to 12:00 noon, New York City time,
on the date when due, in immediately available funds, without set-
off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day
for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at its
account held with Citibank, N.A., ABA no. 021 000 089, for the
account of Morgan Stanley Senior Funding, Inc., account no.
40699776, reference Frontier Corporation, attention L.
Frattaroli, except that payments pursuant to Sections 213, 2.14,
2.15 and 9.03 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to
the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by
and available to the Administrative Agent to pay fully all
amounts of principal, interest and fees then due hereunder, such
funds shall be applied (i) first, towards payment of interest and
fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then
due to such parties, and (ii) second, towards payment of
principal then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal then due to
such parties.
(c) If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect
of any principal of or interest on any of its Loans resulting in
such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and accrued interest thereon than
the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at
face value) participations in the Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective
Loans; provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant
to and in accordance with the express terms of this Agreement or
to any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to
any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of
this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent if may effectively do so
under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the
Lenders hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the
amount due. In such event, if the Borrower has not in fact made
such payment, then each of the Lenders severally agrees to repay
to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day
from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at
the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.05(b) or 2.16(d),
then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the
account of such lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.17. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender requests compensation under
Section 2.13, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 2.13 or 2.15, as the
case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment. Nothing
herein shall be construed so as to prevent a Lender from
organizing its activities as such Lender in its sole discretion
thinks fit.
(b) If any Lender requests compensation under
Section 2.13, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.15, or if any
Lender defaults in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its
interests, rights and obligations under this Agreement to an
assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided
that (i) the Borrower shall have received the prior written
consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for
compensation under Section 2.13 or payment required to be made
pursuant to Section 2.15, such assignment will result in a
reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders
that:
SECTION 3.01. Organization; Powers. Each of the
Borrower and its Significant Subsidiaries is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except
where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing
in, every jurisdiction where such qualification is required.
SECTION 3.02. Authorization, Enforceability. The
Transactions are within the Borrower's corporate powers and have
been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors'
rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at
law.
SECTION 3.03. Governmental Approvals; No Conflicts.
The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made
and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its
Subsidiaries or any order of any Governmental Authority, (c) will
not violate or result in a default under any indenture, agreement
or other instrument binding upon the Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse
Change. (a) The Borrower had heretofore furnished to the
Lenders its (i) consolidated balance sheet and statements of
income, stockholders equity and cash flows as of and for the
fiscal year ended December 31, 1998, reported on by
Pricewaterhouse Coopers, LLP, independent public accounts, and
(ii) its consolidated statements of income as of and for the
fiscal quarter and the portion of the fiscal year ended March 31,
1999, certified by its chief financial officer or treasurer.
Such financial statements present fairly, in all material
respects, the financial position and results of operations and
cash flows of the Borrower and its consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause
(ii) above.
(b) Since December 31, 1998, there has been no
material adverse change in the business, assets, performance,
operations, properties, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole
(other than any such change or changes as at the date of this
Agreement disclosed or relating to disclosures contained in the
filings, since December 31, 1998, of the Borrower with the
Securities and Exchange Commission).
SECTION 3.05. Properties. (a) Each of the Borrower
and its Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted
or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or
is licensed to use, all trademarks, tradenames, copyrights,
patents and other intellectual property material to its business,
and the use thereof by the Borrower and its Subsidiaries does not
infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the
Borrower or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect
(other than the Disclosed Matters) or (ii) that involve this
Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with
respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a
Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability
or (iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been
no change in the status of the Disclosed Matters that,
individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements.
Each of the Borrower and its Subsidiaries is in compliance with
all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements
and other instruments binding upon it or its property, except
where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status.
Neither the Borrower nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940 or (b) a "holding
company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its
Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such
Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or
is reasonably expected to occur that, when taken together with
all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.11. Disclosure. The Borrower has disclosed
to the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect. Neither the Information Memorandum nor any of
the other reports, financial statements, certificates or other
information furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified
or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided that, with respect to projected financial information,
the Borrower represents only that such information was prepared
in good faith based upon assumptions believed to be reasonable at
the time.
SECTION 3.12. Year 2000. The Borrower reasonably
expects to complete any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) the
Borrower's and its Subsidiaries' computer systems and
(ii) equipment containing embedded microchips (including systems
and equipment supplied by others to the Borrower) either or both
of which the Borrower and its Subsidiaries plan to utilize in and
following the year 2000, and the testing of all such systems and
equipment, as so reprogrammed. The cost to the Borrower and its
Subsidiaries of such reprogramming and testing and reasonably
foreseeable remediation is not expected to result in a Default or
a Material Adverse Effect. Except for remediation referred to in
the preceding sentence, the computer and management information
system of the Borrower and its Subsidiaries are expected to
continue for the term of this Agreement to be sufficient to
permit the Borrower to conduct its business without Material
Adverse Effect.
SECTION 3.13. Significant Subsidiaries. Exhibit 3.13
lists the name, address and state of incorporation of each
Subsidiary that constitutes a Significant Subsidiary as of the
date of this Agreement, along with the computation by which the
Borrower has made such determination. Such Exhibit also
describes the Indebtedness of each Significant Subsidiary, and
each Lien to which any of the assets of each Significant
Subsidiary are subject, on the date hereof.
SECTION 3.14. Borrower's Funded Debt. Exhibit 3.14
describes all Funded Debt of the Borrower as of the date hereof,
and no agreement, promissory note or other instrument related to
or evidencing such Funded Debt contains any covenant or event of
default that is more favorable to the lenders of such Funded Debt
than are the covenants and Events of Default in this Agreement to
the Lenders.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the
Lenders to make Loans hereunder shall not become effective until
the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall
have received from each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party
or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed
a counterpart of this Agreement.
(b) The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative
Agent and the Lenders and dated the Effective Date) of
Martin T. McCue, Esq., Senior Vice President and General
Counsel of the Borrower, as counsel for the Borrower,
substantially in the form of Exhibit 4.01(b), which opinion
shall also cover such other matters relating to the
Borrower, this Agreement or the Transactions as the Required
Lenders shall reasonably request. The Borrower hereby
requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or
its counsel may reasonably request relating to the
organization, existence and good standing of the Borrower,
the authorization of the Transactions and any other legal
matters relating to the Borrower, this Agreement or the
Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by a Vice
President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a)
and (b) of Section 4.02.
(e) The Administrative Agent shall have received all
fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
(f) The Administrative Agent shall have received a
copy of a consent duly signed by Global Crossing Ltd.,
substantially in the form of Exhibit 4.01(f).
(g) The Administrative Agent shall have received a
copy of a prepayment notice of the Bridge Credit Facility in
full, duly signed by the Borrower.
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be
conclusive and binding. Notwithstanding the foregoing, the
obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or prior to
3:00 p.m., New York City time, on April 29, 1999 (and, in the
event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Each Borrowing. The obligation of each
Lender to make a Loan on the occasion of any Borrowing, is
subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower
set forth in this Agreement shall be true and correct and as
of the date of such Borrowing.
(b) At the time of and immediately after giving effect
to such Borrowing, no Default shall have occurred and be
continuing.
Each Borrowing shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated
and the principal of and interest on each Loan and all fees
payable hereunder shall have been paid in full, the Borrower
covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other
Information. The Borrower will furnish to the Administrative
Agent and each Lender:
(a) as soon as available and in any event within 100
days after the end of each fiscal year of the Borrower, its
audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the
end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year,
all reported on by PricewaterhouseCoopers, LLP or other
independent public accountants of recognized national
standing selected by Borrower (without a "going concern" or
like qualification or exception and without any
qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements
present fairly in all material respects the financial
condition and results of operations of the Borrower and its
Consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) as soon as available and in any event within 55
days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its
consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by one of
its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations
of the Borrower and its Consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with any delivery of financial
statements under clause (a) or (b) above, a certificate of a
Financial Officer of the Borrower (i) certifying as to
whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations demonstrating
compliance with Section 6.06 and (iii) stating whether any
change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred
to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial
statements under clause (a) above, a certificate of the
accounting firm that reported on such financial statements
stating whether they obtained knowledge during the course of
their examination of such financial statements of any
Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements
and other materials filed by the Borrower or any Subsidiary
with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be;
(f) promptly following any request therefor, such
other information regarding the operations, business affairs
and financial condition of the Borrower or any Subsidiary,
or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request;
and
(g) with each financial report submitted pursuant to
Sections 5.01(a) and 5.01(b), a separate report describing
(i) the names of each Significant Subsidiary as of the date
of the balance sheet set forth in such report and of each
Subsidiary (or former Subsidiary) listed on the last such
report but not on the current report, along with the
computation by which Borrower determined that each such
Subsidiary (or former Subsidiary) did or did not constitute
a Significant Subsidiary, (ii) the name, address, form and
state of organization of each Subsidiary that became a
Significant Subsidiary since the date of Borrower's latest
such report, (iii) the Indebtedness of each Significant
Subsidiary listed on such report, and each Lien to which any
of the assets of each such Significant Subsidiary were
subject, as of the date of such report, and (iv) as of the
date of such report, the total outstanding Indebtedness of
Borrower's Subsidiaries.
SECTION 5.02. Notices of Material Events. The
Borrower will furnish to the Administrative Agent and each Lender
prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental
Authority against or affecting the Borrower or any Affiliate
thereof that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred,
could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount
exceeding $10,000,000; and
(d) any other development that results in, or could
reasonably be expected to result in, a Material Adverse
Effect.
Each notice delivered under this Section shall be accompanied by
a statement of a Financial Officer or other executive officer of
the Borrower setting forth the details of the event or
development requiring such notice and any action taken or
proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The
Borrower will, and will cause each of its Significant
Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that
the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Borrower
will, and will cause each of its Subsidiaries to, pay its
obligations, including Tax liabilities, that, if not paid, could
result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance.
The Borrower will, and will cause each of its Significant
Subsidiaries to, (a) keep and maintain all property material to
the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with
financially sound and reputable insurance companies, insurance in
such amounts and against such risks as are customarily maintained
by companies engaged in the same or similar businesses operating
in the same or similar locations.
SECTION 5.06. Books and Records Inspection Rights.
The Borrower will, and will cause each of its Subsidiaries to,
keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in
relation to its business and activities in accordance with GAAP.
The Borrower will, and will cause each of its Significant
Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower
will, and will cause each of its Subsidiaries to, comply with all
laws, rules, regulations and orders of any Governmental Authority
(including, without limitation, all Environmental Laws and ERISA)
applicable to it or its property, except where the failure to do
so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the
Loans will be used only for refinancing the Bridge Credit
Facility and for the working capital and general corporate
purposes of the Borrower and its Subsidiaries. No part of the
proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of
the Regulations of the Board, including Regulations G, U and X.
SECTION 5.09. Other Funded Debt of Borrower. If after
the date of this Agreement, Borrower either incurs new Funded
Debt (other than pursuant to this Agreement and other than that
described in Exhibit 3.14) or amends any document related to any
Funded Debt (other than pursuant to this Agreement) or pursuant
to which Borrower has the right to borrow Funded Debt, and if any
of the covenants or events of default, contained in any document,
agreement or instrument from time to time entered into by the
Borrower in respect of such Funded Debt is more favorable to the
lenders of such Funded Debt, than are the terms of this Agreement
to the Lenders, (i) the Borrower shall promptly notify the
Administrative Agent of such incurrence or amendment, (ii) the
Administrative Agent shall, in turn, so notify each Lender, and
(ii) this Agreement shall be amended to contain each such more
favorable covenant or event of default, and the Borrower hereby
agrees to so amend this Agreement and to execute and deliver all
such documents requested by the Required Lenders to reflect such
Amendment. Prior to the execution and delivery of such documents
by the Borrower, this Agreement shall be deemed to contain each
such more favorable covenant or event of default for purposes of
determining the rights and obligations hereunder.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and
the principal of and interest on each Loan and all fees payable
hereunder have been paid in full the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Indebtedness of Subsidiaries. Borrower
shall not permit any of its Subsidiaries to create, incur, assume
or suffer to exist any Indebtedness if at the time or as a result
thereof the outstanding principal amount of all Subsidiary
Indebtedness aggregates or would aggregate more than
$500,000,000. For purposes of the foregoing sentence, the
Indebtedness of RTMC Holdings, Inc. described in Exhibit 6.01
shall be subject to the $500,000,000 maximum only to the extent
that the Indebtedness of Upstate Cellular Network underlying such
Indebtedness of RTMC Holdings, Inc. has become due and payable by
RTMC Holdings, Inc.
SECTION 6.02. Liens. The Borrower will not, and will
not permit any Significant Subsidiary to, create, incur, assume
or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or gifts in respect of
any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower
or any Significant Subsidiary existing on the date hereof
and set forth in Exhibit 6.02; provided that (i) such Lien
shall not apply to any other property or asset of the
Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof
and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(c) Liens securing obligations of a Significant
Subsidiary to Borrower or to another Significant Subsidiary;
(d) purchase money Liens on any property hereafter
acquired by Significant Subsidiaries that are regulated
public utilities, or the assumption by such Subsidiaries of
Liens on property existing at the time of such acquisition,
or Liens incurred by such Subsidiaries in connection with
any conditional sale or other title retention agreements or
Capital Leases; and purchase money Liens on transmission
equipment hereafter acquired by Significant Subsidiaries
that are not regulated public utilities, or the assumption
by such Subsidiaries of Liens on transmission equipment
existing at the time of such acquisition, or Liens incurred
by such Subsidiaries in connection with any acquisition of
transmission equipment pursuant to any conditional sale or
other title retention agreements or Capital Leases; and
Liens attaching to the assets of businesses acquired by the
Borrower or any Significant Subsidiary by merger,
consolidation or the purchase of stock, which Liens existed
at the time of such acquisition; provided, in each case,
that:
(i) any property subject to any of the foregoing
is acquired by Borrower or any such Subsidiary in the
ordinary course of its business and the Lien on any
such property is created prior to or contemporaneously
with such acquisition;
(ii) the obligation secured by any Lien so
created, assumed or existing shall not exceed 100% of
the lesser of cost or fair market value as of the time
of acquisition of the property covered thereby to
Borrower or such Subsidiary acquiring the same; and
(iii) each such Lien shall attach only to the
property so acquired and fixed improvements thereon,
and shall secure only those obligations which it
secures on the date of such acquisition, and
extensions, renewals or replacements thereof that do
not increase the outstanding principal amount thereof.
SECTION 6.03. Fundamental Changes. (a) The Borrower
will not merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction
or in a series of transactions) all or substantially all of its
assets, (in each case, whether now owned or hereafter acquired),
or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have
occurred and be continuing, any Person may merge into the
Borrower in a transaction in which the Borrower is the surviving
corporation.
(b) The Borrower shall not
(i) permit any Significant Subsidiary to merge or
consolidate with, or sell, transfer, lease or otherwise
dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to any Person
(or enter into any agreement to do any of the
foregoing), except that (x) any Significant Subsidiary
may merge into or transfer assets to the Borrower; and
(xx) any Significant Subsidiary may merge into or
consolidate with or transfer assets to any other
Subsidiary of the Borrower; or
(ii) sell or dispose of any equity or voting
interest in any Significant Subsidiary, except that
Borrower shall be permitted to sell or dispose of such
equity or voting interest as long as the purchaser or
transferee is an entity in which Borrower owns an
equity interest;
provided, however, that the transactions prohibited in clauses
(i) and (ii) above shall be permitted as long as (x) the proceeds
thereof are received entirely in cash by the Borrower or a
Significant Subsidiary, as the case may be, and (xx) unless
waived by all the Lenders, upon completion of any such
transaction, the Borrower prepays Loans in an amount that is not
less than the amount determined in accordance with the next
sentence. The amount by which Loans shall be prepaid pursuant to
the preceding sentence shall be not less than (z) the amount of
the cash proceeds received in the transaction less the expenses
of, and any income and other taxes estimated to be due as a
result of, the transaction, times (zz) a fraction whose numerator
is the total amount of the outstanding Loans prior to such
reduction and whose denominator is the sum of such total
outstanding Loans and the total amount of the available
commitments and the aggregate principal amount of the loans
outstanding immediately prior to the transaction, under the
$200,000,000 Credit Agreement and the $275,000,000 Credit
Agreement.
SECTION 6.04. Transactions with Affiliates. The
Borrower will not, and will not permit any of its Significant
Subsidiaries to sell, lease or otherwise transfer any property or
assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions
with, any of its Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable
to the Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (b) transactions
between or among the Borrower and its Subsidiaries not involving
any other Affiliate.
SECTION 6.05. Restrictive Agreements. The Borrower
will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any
Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets, or (b) the ability of any Significant
Subsidiary to pay dividends or other distribution with respect to
any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Subsidiary; provided
that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Agreement, (ii) the
foregoing shall not apply to restrictions and conditions existing
on the date hereof identified on Exhibit 6.05 (but shall apply to
any amendment or modification expanding the scope of any such
restriction or condition), (iii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary
that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions
or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such
Indebtedness, (v) clause (a) of the foregoing shall not apply to
customary provisions in leases and other contracts restricting
the assignment thereof, (vi) clause (b) of the foregoing shall
not apply to Subsidiaries that are regulated public utilities, to
the extent that the agencies charged with regulating them (as
public utilities) may specifically prohibit or limit dividend
payments, (vii) the foregoing shall not apply to restrictions
that apply to Significant Subsidiaries that were acquired as
Subsidiaries after the date hereof, if such Significant
Subsidiaries were subject to such restrictions at the time of
acquisition and if such restrictions do not extend to Borrower or
any other Significant Subsidiary, and (viii) clause (b) of the
foregoing shall not apply to the existence and operation of
financial covenants, such as maximum debt to net worth or minimum
working capital ratios, as long as they do not specifically
prohibit or restrict dividend payments or other distributions.
SECTION 6.06. Interest Coverage. The Borrower will
not permit the ratio of EBITDA to Consolidated Interest Expense
to be less than 4.50 to 1 for each twelve month period ending on
the last day of each fiscal quarter.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default")
shall occur:
(a) the Borrower shall fail to pay any principal of
any Loan when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) the Borrower shall fail to pay (i) any interest on
any Loan or any facility fee payable under this Agreement,
when and as the same shall become due and payable and such
failure shall continue unremedied for a period of five days,
or (ii) any other fee or any other amount payable under this
Agreement (other than an amount referred to in clause (a) or
clause (b)(i) of this Article), when and as the same shall
become due and payable, and such failure shall continue
unremedied for a period of ten days after notice to the
Borrower from the Administrative Agent or from the Lender to
which such amount is payable;
(c) any representation or warranty made or deemed made
by or on behalf of the Borrower or any Subsidiary in or in
connection with this Agreement or any amendment or
modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, shall
prove to have been incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02,
5.03 (with respect to the Borrower's existence only) or 5.08
or in Article VI;
(e) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement
(other than those specified in clause (a), (b) or (d) of
this Article), and such failure shall continue unremedied
for a period of 30 days;
(f) the Borrower or any Significant Subsidiary shall
fail to make any payment (whether of principal or interest
and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled
maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or
holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its schedule
maturity; provided that this clause shall not apply to
secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets
securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or
any Significant Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Significant Subsidiary or
for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for
30 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(i) the Borrower or any Significant Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii)
consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for
the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Borrower or any Significant Subsidiary shall
become unable, admit in writing its inability or fail
generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in
an aggregate amount in excess of $10,000,000 shall be
rendered against the Borrower, any Significant Subsidiary or
any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to
attach or levy upon any assets of the Borrower or any
Significant Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the
opinion of the Required Lenders, when taken together with
all other ERISA Events that have occurred, could reasonably
be expected to result in a Material Adverse Effect; or
(m) the occurrence of an "Event of Default", as such
term is defined in the $200,000,000 Credit Agreement or the
$275,000,000 Credit Agreement.
then, and in every such event (other than an event with respect
to the Borrower described in clause (h) or (i) of this Article),
and at any time thereafter during the continuance of such event,
the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments
shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments
shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender
as any other Lender and may exercise the same as though it were
not the Administrative Agent, and such bank and its Affiliates
may accept deposits from, lend money to and generally engage in
any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent
hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without
limiting the generality of the foregoing, (a) the Administrative
Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as
expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at
the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of
its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement,
(ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to
have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel
(who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
The Administrative Agent may perform any and all of its
duties and exercise its rights and powers by or through any one
or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and
all of its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of
the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of the Administrative Agent and any such sub-
agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph, the
Administrative Agent may at any time and, upon request by the
Required Lenders, shall forthwith, resign by notifying the
Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank.
Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation
hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by
any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices
and other communications expressly permitted to be given by
telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail
or sent by telecopy, as follows:
(a) if to the Borrower, to it at 180 South Clinton
Avenue, Rochester, New York 14646, Attention of Treasurer
(Telecopy No. (716) 325-7638), with a copy to 180 South
Clinton Avenue, Rochester, New York 14646, Attention of
Corporate Counsel (Telecopy No. (716) 324-7639);
(b) if to the Administrative Agent, to Morgan Stanley
Senior Funding, Inc., 1585 Broadway, New York, New York
10036, Attention of Jim Morgan (Telecopy No. 212 761-0592);
and
(c) if to any Lender, to it at its address (or
telecopy number, set forth in its Administrative
Questionnaire.
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to
any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of
receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or
delay by the Administrative Agent or any Lender in exercising any
right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and
remedies of the Administrative Agent and the Lenders hereunder
are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting
the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether
the Administrative Agent or any Lender may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower
and the Required Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender without the written
consent of such Lender,(ii) reduce the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of
the principal amount of any Loan, or any interest thereon, or any
fees payable hereunder or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of
any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.16(b) or (c) in a manner
that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) amend
Section 9.04(g) without the written consent of each Granting
Lender or (vi) change any of the provisions of this Section or
the definition of "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written
consent of each Lender; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent hereunder without the prior written
consent of the Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a)
The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Arranger, the
Syndication Agent, the Documentation Agent and their respective
Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in
connection with (A) all due diligence, (B) syndication of the
credit facilities provided for herein (including printing,
distribution and bank meetings), (C) transportation, computer,
duplication, appraisal, consultant, audit, insurance, search
filing and recording expenses and fees and (D) the preparation
and administration of this Agreement, the Notes and any other
agreement or instrument contemplated hereby, or any amendments,
modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby
shall be consummated) and (ii) all out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the
fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section, or in
connection with the Loans made issued hereunder, including all
such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative
Agent and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for
any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, the Notes or any other
agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or
the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any
amount required to be paid by it to the Administrative Agent
under paragraph (a) or (b) of this Section, each Lender severally
agrees to pay to the Administrative Agent such Lender's
Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the
Administrative Agent, in its capacity as such, and, provided,
further, that such expense, loss, claim, damage, liability or
related expense was not caused by the Administrative Agent's
gross negligence or willful misconduct.
(d) To the extent permitted by applicable law, the
Borrower shall not assert, and hereby waives, any claim against
any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be
payable promptly after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that the Borrower may not
assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by the Borrower without such
consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all
or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at
the time owing to it and any Notes held by it); provided that (i)
except in the case of an assignment to a Lender or an Affiliate
of a Lender, each of the Borrower and the Administrative Agent
must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld), (ii) except in the
case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this
Agreement, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500 with
respect to each assignment other than an assignment by a Lender
to one of its Affiliates, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; and provided further that any
consent of the Borrower otherwise required under this paragraph
shall not be required if an Event of Default under clause (h) or
(i) of Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of
this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of
Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that
does not comply with this paragraph shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose
as an agent of the Borrower, shall maintain at one of its offices
in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans owing to, each Lender pursuant to
the terms hereof from time to time (the "Register"). The entries
in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment
and Acceptance executed by an assigning Lender and an assignee,
the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b)
of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Any Lender may, without the consent of the
Borrower or the Administrative Agent, sell participations to one
or more banks or other entities (a "Participant") in all or a
portion of such Lender's rights and obligations under this
Agreement (including all or a portion of its Commitment and the
Loans owing to it and any Notes held by it); provided that (i)
such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations,
(iv) such Lender shall remain the holder of any such Note for all
purposes of this Agreement and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the
sole right to enforce this Agreement or any such Note and to
approve any amendment, modification or waiver of any provision of
this Agreement or any such Note; provided that such agreement or
instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification
or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the
same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled
to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.16(c)
as though it were a Lender.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.13 or 2.15 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's
prior written consent. A participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits
of Section 2.15 unless the Borrower is notified of the
participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section
2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained
herein, any Lender, (a"Granting Lender") may grant to a special
purpose funding vehicle (an "SPC") the option to fund all or any
part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by
any SPC to make any Loan, and (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by
an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Each party hereto hereby agrees that no SPC
shall be liable for any indemnity or payment under this Agreement
for which a Lender would otherwise be liable for so long as, and
to the extent, the Granting Lender provides such indemnity or
makes such payment. Notwithstanding anything to the contrary
contained in this Agreement, any SPC may disclose on a
confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to
such SPC. This Section 9.04(g) may not be amended without the
written consent of the Granting Lender.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in
the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have
been relied upon by the other parties hereto and shall survive
the execution and delivery of this Agreement and the making of
any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue
in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and so long as the
Commitments have not expired or terminated. The provisions of
Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision
hereof.
SECTION 9.06. Counterparts; Integration;
Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This
Agreement and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof
and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of
an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this
Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default
shall have occurred and be continuing, each Lender and each of
its Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit
or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may
have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process. (a) This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States
District Court for the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition
or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative
Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its
properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now of hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in
Section 9.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner
permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings
and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in
interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the
Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Borrower or (h)
to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent or any Lender on a
nonconfidentiality basis from a source other than the Borrower.
For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower
or its business, other than any such information that is
available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the
Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential
information.
SECTION 9.13. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time
the interest rate applicable to any Loan, together with all fees,
charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by the
Lender holding such Loan in accordance with applicable law, the
rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of
such Loan but were not payable as a result of the operation of
this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall
be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal
Funds Effective Rate to the date of repayment, shall have been
received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
S-1
FRONTIER CORPORATION
By________________________________
Name:
Title:
S-2
MORGAN STANLEY SENIOR FUNDING,INC.,
as Administrative Agent, Arranger and Lender
By ________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO as
Syndication Agent and Lender
By ________________________________
Name:
Title:
FLEET NATIONAL BANK
as Documentation Agent and Lender
By __________________________________
Name:
Title:
BANCO DI NAPOLI S.P.A.
as Lender
By __________________________________
Name:
Title:
BANK HAPOALIM B.M.,
as Lender
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
as Lender
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
BANK OF MONTREAL
as Lender
By __________________________________
Name:
Title:
BANCA NAZIONALE DEL LAVORO S.p.A.
- New York Branch as Lender
By __________________________________
Name:
Title:
BANCO SANTANDER CENTRAL HISPANOS.A.
as Lender
By __________________________________
Name:
Title:
CoBANK, ACB
as Lender
By __________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
as Lender
By __________________________________
Name:
Title:
FIFTH THIRD BANK
as Lender
By __________________________________
Name:
Title:
NATIONAL BANK OF KUWAIT,
S.A.K., GRAND CAYMAN BRANCH
as Lender
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
MELLON BANK, N.A.
as Lender
By __________________________________
Name:
Title:
MERITA BANK PLC
as Lender
By __________________________________
Name:
Title:
CARIPLO-CASSA DI RISPARMIO DELLE
PROVINCIE LOMBARDE SpA
as Lender
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
VIA BANQUE
as Lender
By __________________________________
Name:
Title:
LANDESBANK SCHLESWIG-HOLSTEIN
GIROZENTRALE
By __________________________________
Name:
Title:
<PAGE>
SCHEDULE I
COMMITMENTS AND LENDING OFFICES
Print this table without graphics.
Domestic Eurodollar
Term Lending Lending
Name of Initial Commitment Office Office
Lender
Morgan Stanley $5,000,000 Morgan Stanley Morgan Stanley
Senior Funding, Senior Funding, Senior Funding,
Inc. Inc. Inc.
1585 Broadway 1585 Broadway
10th Floor 10th Floor
New York, NY New York, NY
10036 10036
Attn: Jim Morgan Attn: Jim Morgan
T: (212) 761-4866 T: (212) 761-4866
F: (212) 761-0592 F: (212) 761-0592
The First $24,000,000 The First The First
National Bank National Bank of National Bank of
of Chicago Chicago Chicago
IFNP ILI-0634 IFNP ILI-0634
Chicago, IL Chicago, IL
60670 60670
Attn: John Attn: John
Beirne Beirne
T:(312) 732-3659 T: (312) 732-3659
F:(312) 732-4840 F: (312) 732-4840
Fleet National $24,000,000 Fleet National Fleet National
Bank Bank Bank
1 East Avenue 1 East Avenue
NYRO3016 NYRO3016
Rochester, NY Rochester, NY
14534 14534
Attn: Sheila Attn: Sheila
Hanley Hanley
T:(716) 546-9020 T:(716) 546-9020
F:(716) 546-9800 F:(716) 546-9800
Banco di Napoli $19,000,000 Banco di Napoli Banco di Napoli
S.P.A. S.P.A. S.P.A.
4 East 54th 4 East 54th
Street Street
New York, NY New York, NY
10022 10022
Attn: Vincenzo Attn: Vincenzo
Orlando Orlando
T:(212) 872-2427 T:(212) 872-2427
F:(212) 872-2426 F:(212) 872-2426
Bank Hapoalim $19,000,000 Bank Hapoalim Bank Hapoalim
B.M. B.M. B.M.
1177 Avenue of 1177 Avenue of
the Americas the Americas
New York, NY New York, NY
10036-2790 10036-2790
Attn: Donna Attn: Donna
Gindoff Gindoff
T:(212) 782-2179 T:(212) 782-2179
F:(212) 782-2187 F: (212) 782-2187
Bayerische Hypo- $19,000,000 Bayerische Hypo- Bayerische Hypo-
und Vereinsbank and Vereinsbank and Vereinsbank
AG, New York AG, New York AG, Grand Cayman
Branch Branch Branch c/o
150 East 42nd Bayerische Hypo-
Street and Vereinsbank AG
New York, NY 150 East 42nd St
10017 New York, NY 10017
Attn: Christian Attn: Christian
Walter Walter
T:(212) 672-5460 T:(212) 672-5460
F:(212) 672-5540 F: (212) 672-5530
Bank of $17,000,00 Bank of Montreal Bank of Montreal
Montreal 115 South LaSalle 115 South LaSalle
Street Street
Chicago, IL Chicago, IL
60603 60603
Attn: Josie Attn: Josie
Nichols Nichols
T:(312) 750-3748 T: (312) 750-3748
F:(312) 750-6061 F: (312) 750-6061
Banca Nazionale $17,000,00 Banca Nazionale Banca Nazionale
del Lavoro del Lavoro S.p.A. del Lavoro S.p.A.
S.p.A. - New - New York Branch - New York Branch
York Branch 25 West 51st 25 West 51st
Street Street
New York, NY New York, NY
10019 10019
Attn: Giulio Attn: Giulio
Giovine Giovine
T:(212) 314-0239 T: (212) 314-0239
F:(212) 765-2978 F: (212) 765-2978
Banco Santander $17,000,000 Banco Santander Banco Santander
Central Hispano Central Hispano Central Hispano
S.A. S.A. - New York S.A. - New York
Branch Branch
50 Broadway 50 Broadway
New York, NY New York, NY
10004 10004
Attn: Jesus Attn: Jesus
Lopez Lopez
T:(212) 361-5143 T: (212) 361-5143
F:(212) 361-5149 F: (212) 361-5149
CoBank, ACB $17,000,000 CoBank, ACB CoBank, ACB
5500 S. Quebec 5500 S. Quebec
St. St.
Englewood, CO Englewood, CO
80111 80111
Attn: Deanne Attn: Deanne
Sullivan Sullivan
T:(303) 740-4315 T: (303) 740-4315
The Industrial $17,000,000 The Industrial The Industrial
Bank of Japan, Bank of Japan, Bank of Japan,
Limited Limited Limited
New York Branch New York Branch
1251 Avenue of 1251 Avenue of
the Americas the Americas
New York, NY New York, NY
10020-1104 10020-11104
Attn: Richard Attn: Richard
Emmich Emmich
T:(212) 282-4067 T:(212) 282-4067
F:(212) 282-4480 F:(212) 282-4480
Fifth Third $13,000,000 Fifth Third Bank Fifth Third Bank
Bank 38 Fountain 38 Fountain
Square Plaza Square Plaza
MD 109054 MD 109054
Cincinnati, OH Cincinnati, OH
45262 45262
Attn: Jennifer Attn: Jennifer
Pund Pund
T:(513) 579-5389 T: (513) 579-5389
F:(513) 579-5226 F: (513) 579-5226
National Bank $13,000,000 National Bank of National Bank of
of Kuwait, Kuwait, S.A.K., Kuwait, S.A.K.,
S.A.K., Grand Grand Cayman Grand Cayman
Cayman Branch Branch Branch
299 Park Avenue 299 Park Avenue
New York, NY New York, NY
10171-0023 10171-0023
Attn: Ms. Thelma Attn: Ms. Thelma
Chaudry Chaudry
T:(212) 303-9821 T: (212) 303-9821
F:(212) 319-8269 F: (212) 319-8269
Mellon Bank, $7,000,000 Mellon Bank, N.A. Mellon Bank, N.A.
N.A. 3 Mellon Bank 3 Mellon Bank
Center Center
Rm. 1203 Rm. 1203
Pittsburgh, PA Pittsburgh, PA
15259 15259
Attn: Genie Attn: Genie
McCreary McCreary
T:(412) 234-4749 T: (412) 234-4749
F:(412) 209-6129 F: (412) 209-6129
Merita Bank Plc $7,000,000 Merita Bank Plc Merita Bank Plc
437 Madison 437 Madison
Avenue Avenue
21st Floor 21st Floor
New York, NY New York, NY
10022 10022
Attn: Thelma Attn: Thelma
Dongallo Dongallo
T:(212) 318-9348 T: (212) 318-9348
F:(212) 421-4420 F: (212) 421-4420
CARIPLO-Cassa $5,000,000 CARIPLO-Cassa di CARIPLO-Cassa di
di Risparmio Risparmio delle Risparmio delle
delle Provincie Provincie Provincie
Lombarde SpA Lombarde SpA Lombarde SpA
10 East 53rd 10 East 53rd
Street Street
New York, NY New York, NY
10022 10022
Attn: Marilena Attn: Marilena
Greene, AVP Greene, AVP
T:(212) 527-8744 T:(212) 527-8744
F:(212) 527-8777 F: (212) 527-8777
Via Banque $5,000,000 Via Banque Via Banque
10 rue Volney 10 rue Volney
75002 PARIS 75002 PARIS
Att: Mrs. Att: Mrs.
Plissard/Mr. Plissard/Mr.
Camut Camut
T: 33 14 926-2853 T: 33 14 926-2853
F: 33 14 926-2999 F: 33 14 926-2999
Landesbank $5,000,000 Landesbank Landesbank
Schleswig- Schleswig- Schleswig-
Holstein Holstein Holstein
Girozentrale Girozentrale Girozentrale
Martensdamm 6 Martensdamm 6
24103 Kiel / 24103 Kiel /
Germany Germany
Attn: Dr. Attn: Dr.
Nikolai Ulrich Nikolai Ulrich
T:+49 431 900 2166 T:+49 431 900 2166
F:+49 431 900 2751 F:+49 431 900 2751
EXHIBIT 1.01.1 - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of
April 29, 1999 (as amended or modified from time to time, the
"Credit Agreement") among Frontier Corporation, a New York
corporation (the "Borrower"), the Lenders (as defined in the
Credit Agreement), Morgan Stanley Senior Funding, Inc., as
administrative agent for the Lenders (the "Administrative Agent")
and as lead arranger and book manager, The First National Bank of
Chicago as syndication agent and Fleet National Bank as
documentation agent. Terms defined in the Credit Agreement are
used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on
Schedule I hereto agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee without recourse, and the Assignee hereby purchases
and assumes from the Assignor, an interest in and to the
Assignor's rights and obligations under the Credit Agreement
as of the date hereof equal to the percentage interest
specified on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement. After giving effect
to such sale and assignment, the Assignee's Commitment and
the amount of the Loans owing to the Assignee will be as set
forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it
is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and
clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with the Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or
the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and
(iv) attaches the Note held by the Assignor and requests
that the Administrative Agent exchange such Note for a new
Note payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant hereto or
new Notes payable to the order of the Assignee in an amount
equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment
retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 3.04 thereof and
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (ii) agrees that
it will, independently and without reliance upon the
Administrative Agent, the Assignor or any other Lender and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit
Agreement; (iii) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit
Agreement as are delegated to the Administrative Agent by
the terms thereof, together with such powers and discretion
as are reasonably incidental thereto; (iv) agrees that it
will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (v) attaches
any applicable documentation required under Section 2.15(e)
of the Credit Agreement.
4. Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent.
The effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by
the Administrative Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the
Administrative Agent, as of the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to
the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and
(ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the
Administrative Agent, from and after the Effective Date, the
Administrative Agent shall make all payments under the
Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments
of principal, interest and facility fees with respect
thereto) to the Assignee. The Assignor and Assignee shall
make all appropriate adjustments in payments under the
Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State
of New York.
8. This Assignment and Acceptance may be executed in
any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this
Assignment and Acceptance by telecopier shall be effective
as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused Schedule 1 to this Assignment and Acceptance to be
executed by their officers thereunto duly authorized as of the
date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment:
$_______________
Aggregate outstanding principal amount of Loans assigned:
$_______________
Principal amount of Note payable to Assignee:
$_______________
Principal amount of Note payable to Assignor:
$_______________
Effective Date: _______________, 199_/200_
[NAME OF ASSIGNOR], as
Assignor
By
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as
Assignee
By
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted this
__________ day of _______________, 199_/200_
Morgan Stanley Senior Funding, Inc., as Administrative Agent
By
Title:
[Approved this __________ day of _______________, 199_/200_
FRONTIER CORPORATION
By ]
Title:
EXHIBIT 1.01.2 - FORM OF
BORROWING REQUEST
Morgan Stanley Senior Funding, Inc., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
[Date]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, Frontier Corporation, refers to the
Credit Agreement, dated as of April 29, 1999 (as amended or
modified from time to time, the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the
undersigned, certain Lenders parties thereto and Morgan Stanley
Senior Funding, Inc., as Administrative Agent for said Lenders
and as lead arranger and book manager, The First National Bank of
Chicago as syndication agent and Fleet National Bank as
documentation agent, and hereby gives you notice, irrevocably,
pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed Borrowing")
as required by Section 2.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, 199_/200_.
(ii) The Type of Loans comprising the Proposed
Borrowing is [ABR Loans] [Eurodollar Loans].
(iii) The aggregate amount of the Proposed
Borrowing is $_______________.
[(iv) The initial Interest Period for each
Eurodollar Loan made as part of the Proposed Borrowing is
__________ month[s].]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Borrowing:
(A) the representations and warranties contained in
Article 3 of the Credit Agreement are correct, before and
after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and
as of such date; and
(B) no event has occurred and is continuing, or would
result from such Proposed Borrowing or from the application
of the proceeds therefrom, that constitutes a Default.
Very truly yours,
FRONTIER CORPORATION
By
Title:
EXHIBIT 2.08
FORM OF NOTE
U.S.$_______________ Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, FRONTIER
CORPORATION, a New York corporation (the "Borrower"), HEREBY
PROMISES TO PAY to the order of _________________________ (the
"Lender") on the Maturity Date (as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of
the Lender's Commitment in figures] or, if less, the aggregate
principal amount of the Loans made by the Lender to the Borrower
pursuant to the Credit Agreement dated as of April 29, 1999 among
the Borrower, the Lender and certain other lenders parties
thereto, and Morgan Stanley Senior Funding, Inc., as
Administrative Agent for the Lender and such other lenders
described therein, and as lead arranger and book manager, The
First National Bank of Chicago as syndication agent and Fleet
National Bank as documentation agent (as amended or modified from
time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined) outstanding on the Maturity
Date.
The Borrower promises to pay interest on the unpaid
principal amount of each Loan from the date of such Loan until
such principal amount is paid in full, at such interest rates,
and payable at such times, as are specified in the Credit
Agreement.
Both principal and interest are payable in lawful money
of the United States of America to Morgan Stanley Senior Funding,
Inc., as Administrative Agent, at 1585 Broadway, New York, New
York 10036, in same day funds. Each Loan owing to the Lender by
the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to
in, and is entitled to the benefits of, the Credit Agreement.
The Credit Agreement, among other things, (i) provides for the
making of Loans by the Lender to the Borrower from time to time
in an aggregate amount not to exceed at any time outstanding the
U.S. dollar amount first above mentioned, the indebtedness of the
Borrower resulting from each such Loan being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein
specified.
This Promissory Note is governed by, and construed in
accordance with, the laws of the State of New York.
FRONTIER CORPORATION
By
Title:
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Unpaid Notation
Date Loan Paid Principal Made By
or Prepaid Balance
FRONTIER CORPORATION
DIRECTORS COMMON STOCK DEFERRED GROWTH PLAN
Amendment No. 1
Pursuant to Section 14, the Plan is amended, effective March
16, 1999, as follows:
1. Section 9 is amended by deleting the second paragraph of
the current provision in its entirety and substituting in its
place the following:
Prior to a Change in Control (as defined in
Section 11), payments from a Participant Account that
has been invested in Company securities shall be made
only in whole shares of such securities with any
fractional share made in cash. On and after a Change
in Control, such payments shall be made in cash or in
shares, as determined by the participant, in accordance
with a participant's election and the provisions of
Section 11 hereof. Each participant or beneficiary
shall execute any documents reasonably deemed necessary
by the Administrator to comply with any applicable
securities laws.
2. Section 11 is amended by deleting the current provision
in its entirety and substituting in its place the following:
11. Change in Control
In the event of a Change in Control, as defined in the
trust agreement, amounts credited to Participant Accounts
shall be paid out in cash or in shares, as determined by the
participant, in accordance with the terms of the trust
agreement and any participant elections. If no trust
agreement is in effect, "Change in Control" shall have the
meaning given this term in the Company's Supplemental
Management Pension Plan and benefits shall be paid in
accordance with each participant's elections.
IN WITNESS WHEREOF, the Company has caused its duly
authorized officer to execute this amendment on its behalf this
23rd day of March, 1999.
FRONTIER CORPORATION
/s/ Josephine S. Trubek
By_________________________
Josephine S. Trubek
Title: Corporate Secretary
FRONTIER CORPORATION
PLAN FOR THE DEFERRAL OF DIRECTORS FEES
Amendment No. 1
Pursuant to Section 14, the Plan is amended, effective March
16, 1999, as follows:
1. Section 9 is amended by deleting the second paragraph of
the current provision in its entirety and substituting in its
place the following:
Payments from a Participant Fixed Income Account
shall be made only in cash. Prior to a Change in
Control (as defined in Section 11), payments from a
Participant Common Stock Account shall be made only in
whole shares of Common Stock with any fractional share
which is part of a lump sum payment or a final
installment made in cash. On and after a Change in
Control, such payments shall be made in cash or in
shares, as determined by the participant, in accordance
with a participant's election and the provisions of
Section 11 hereof. Each participant or beneficiary
shall execute any documents reasonably deemed necessary
by the Administrator to comply with any applicable
securities laws.
2. Section 11 is amended by deleting the current provision
in its entirety and substituting in its place the following:
11. Change in Control
In the event of a Change in Control, as defined in the
trust agreement, amounts credited to Participant Accounts
shall be paid out in cash or in shares, as determined by the
participant, in accordance with the terms of the trust
agreement and any participant elections. If no trust
agreement is in effect, "Change in Control" shall have the
meaning given this term in the Company's Supplemental
Management Pension Plan and benefits shall be paid in
accordance with each participant's elections.
IN WITNESS WHEREOF, the Company has caused its duly
authorized officer to execute this amendment on its behalf
this 23rd day of March 1999.
FRONTIER CORPORATION
/s/ Josephine S. Trubek
By_________________________
Josephine S. Trubek
Title: Corporate Secretary
FRONTIER CORPORATION
DIRECTORS STOCK INCENTIVE PLAN
Amendment No. 1
Pursuant to Section 12, the Plan is amended, effective March
16, 1999, as follows:
1. Section 13(a) is amended by deleting the current
provision in its entirety and substituting in its place the
following:
(a) Notwithstanding other provisions of the Plan,
in the event of a change in control of the Company (as
defined in subsection (c) below), all of a
participant's options shall become immediately vested
and exercisable and all of a participant's certificates
held by the Company under a stock grant shall be
immediately delivered to the participant.
IN WITNESS WHEREOF, the Company has caused its duly
authorized officer to execute this amendment on its behalf this
23rd day of March 1999.
FRONTIER CORPORATION
/s/ Josephine S. Trubek
By___________________________
Josephine S. Trubek
Title: Corporate Secretary
FRONTIER CORPORATION
MANAGEMENT STOCK INCENTIVE PLAN
Amendment No. 4
Pursuant to Section 14, the Plan is hereby amended,
effective March 16, 1999, as follows:
1. Section 9(a) is amended by deleting the current
provision in its entirety and substituting in its place the
following:
(a) Options
If the employment of a participant terminates by
reason of the participant's disability or death, any
option may be exercised, in the case of disability, by
the participant or, in the case of death, the
participant's designated beneficiary (or personal
representative if there is no designated beneficiary)
at any time prior to the earlier of the expiration date
of the option or the expiration of one year after the
date of disability or death, but only if, and to the
extent that the participant was entitled to exercise
the option at the date of disability or death. If the
employment of a participant terminates on account of
retirement, all of the participant's outstanding
options shall become immediately vested and these
options together with previously vested but unexercised
options may be exercised prior to the earlier of the
expiration date of the option or the expiration of 13
months from the date of retirement. For this purpose,
"retirement" means any termination of employment on or
after a participant is entitled to receive an early
retirement benefit under any defined benefit pension
plan maintained by the Company or an affiliate in which
the participant has any accrued benefit. If the
participant does not have an accrued benefit in any
such plan, "retirement" means the participant's
termination of employment on or after he has reached
age 55. Upon termination of the participant's
employment for any reason other than retirement,
disability or death, all nonvested options held by the
participant shall be forfeited and any options that are
vested on the date of termination may be exercised
prior to the earlier of the expiration date of the
option or the expiration of 90 days from the date of
termination. An option that remains exercisable after
the expiration of three months from termination of
employment shall be treated as a NQSO after three
months even if it would have been treated as an ISO if
exercised with three months of termination.
Effective Dates: The reduction, in the first
sentence, from three years to one year in the
right to exercise options following disability is
effective for options granted after December 31,
1998.
The definition of retirement, in the new third
sentence, is effective January 1, 1999.
The provisions in the second sentence for the
vesting and exercising of options on account of
retirement are effective for options granted after
December 31, 1998.
The provisions in the fifth sentence concerning
the exercise of options upon termination of
employment for reasons other than disability,
death or retirement are effective January 1, 1999.
2. Section 15(a) is amended by deleting the current
provision in its entirety and substituting in its place the
following:
(a) Notwithstanding other provisions of the Plan,
in the event of a change in control of the Company (as
defined in subsection (c) below), all of a
participant's restricted stock awards shall become
immediately vested to the same extent as if all
restrictions had been satisfied and all options shall
become immediately vested and exercisable.
IN WITNESS WHEREOF, the Company has caused its duly
authorized officer to execute this amendment on its behalf this
23rd day of March 1999.
FRONTIER CORPORATION
/s/ Josephine S. Trubek
By: --------------------------
Josephine S. Trubek
Title: Corporate Secretary
FRONTIER CORPORATION
EMPLOYEES' STOCK OPTION PLAN
Amendment No. 2
Pursuant to Section 12, the Plan is amended, effective March
16, 1999, as follows:
1. Section 7 is amended by deleting the first paragraph of
the current provision in its entirety and substituting in its
place the following:
If the employment of a participant terminates by
reason of the participant's disability or death, any
option may be exercised, in the case of disability, by
the participant or, in the case of death, the
participant's designated beneficiary (or personal
representative if there is no designated beneficiary)
at any time prior to the earlier of the expiration date
of the option or the expiration of one year after the
date of disability or death, but only if, and to the
extent that, the participant was entitled to exercise
the option on the date of his disability or death. If
the employment of a participant terminates on account
of retirement, all of the participant's outstanding
options shall become immediately vested and these
options together with previously vested but unexercised
options may be exercised at any time prior to the
earlier of the expiration date of the option or the
expiration of 13 months from the date of retirement.
For this purpose, "retirement" means any termination of
employment on or after a participant is entitled to
receive an early retirement benefit under any defined
benefit pension plan maintained by the Company or an
affiliate in which the participant has an accrued
benefit. If the participant does not have an accrued
benefit in any such plan, "retirement" means the
participant's termination of employment on or after he
has reached age 55. Upon termination of the
participant's employment for any reason other than
retirement, disability or death, all non-vested options
held by the participant shall be forfeited and any
options that are vested on the date of termination may
be exercised prior to the earlier of the expiration
date of the option or the expiration of 90 days from
the date of termination.
2. Section 13(a) is amended by deleting the current
provision in its entirety and substituting in its place the
following:
(a) Notwithstanding any other provisions of the
Plan or otherwise to the contrary, in the event of a
change in control of the Company (as defined in
subsection (c) below), all of a participant's
options shall become immediately vested and
exercisable.
IN WITNESS WHEREOF, the Company has caused its duly
authorized officer to execute this amendment on its behalf this
23rd day of March 1999.
FRONTIER CORPORATION
/s/ Josephine S. Trubek
By: --------------------------
Josephine S. Trubek
Title: Corporate Secretary
FRONTIER CORPORATION
OMNIBUS INCENTIVE PLAN
Amendment No. 1
Pursuant to Section 4, the Plan is amended, effective March
16, 1999, as follows:
1. Section 4 is amended by deleting the current provision
in its entirety and substituting in its place the following:
Prior to a change in control of the Company (as defined
in Section 7(b)), this Plan and any module thereto may be
amended, modified or terminated by the Company's Board of
Directors, the Committee on Management, or the Committee.
Following a change in control of the Company, no amendment,
modification or termination of the Plan or any module
thereto, without the written consent of a participant to
whom an award shall theretofore have been granted, shall
adversely affect the rights of such participant under such
award.
1. Section 7(a) is amended by deleting the current
provision in its entirety and substituting in its place the
following:
(a) Notwithstanding other provisions of the Plan,
in the event of a change in control of the Company (as
defined in subsection (b) below), any unvested awards
of a Participant will become immediately vested in
full..
IN WITNESS WHEREOF, the Company has caused its duly
authorized officer to execute this amendment on its behalf this
23rd day of March 1999.
FRONTIER CORPORATION
/s/ Josephine S. Trubek
By___________________________
Josephine S. Trubek
Title: Corporate Secretary
<PAGE>
<TABLE>
Exhibit 11
Frontier Corporation
Computation of Diluted Earnings Per Common Share
(Unaudited)
<CAPTION>
3 Months Ended
In thousands of dollars, March 31,
except per share data 1999 1998
- -------------------------------------------------------------
<S> <C> <C>
Basic Income Applicable to Common Stock $ 39,651 $ 33,663
Interest expense on convertible
debentures, net of tax 90 90
- ------------------------------------------------------------
Diluted Income Applicable to Common
Stock $ 39,741 $ 33,753
============================================================
Weighted Average Shares Outstanding-
Basic 171,548 170,071
Stock options and warrants 3,386 2,230
Convertible debentures 503 503
- ------------------------------------------------------------
Weighted Average Shares Outstanding-
Diluted 175,437 172,804
============================================================
Diluted Earnings Per Common Share $ 0.23 $ 0.20
============================================================
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
FRONTIER CORPORATION'S FINANCIAL STATEMENTS FOR THE THREE MONTH PERIOD
ENDED MARCH 31, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000084567
<NAME> FRONTIER CORPORATION
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> MAR-31-1999
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0
18,286
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</TABLE>
