<PAGE>
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 September 30, 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; 1,000
shares outstanding as of October 31, 1999.
The Registrant meets the conditions set forth in
General Instruction H(1)(a) and (b) of Form 10-Q and is
therefore filing this Form with the reduced disclosure
format.
<PAGE>
FRONTIER CORPORATION
Form 10-Q
Index
Page Number
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
Business Segment Information for the three
and nine months ended September 30, 1999 and 1998 3
Consolidated Statements of Income for the three
and nine months ended September 30, 1999 and 1998 4
Consolidated Balance Sheets as of September 30, 1999
and December 31, 1998 5
Consolidated Statements of Cash Flows for the nine
months ended September 30, 1999 and 1998 6
Notes to Consolidated Financial Statements 7-10
Item 2. Management's Discussion of Results of Operations
and Analysis of Financial Condition 11-18
Part II. OTHER INFORMATION
Item 1. Legal Proceedings 18-20
Item 4. Submission of Matters to a Vote of Security Holders 20
Item 5. Other Information 20-21
Item 6. Exhibits and Reports on Form 8-K 21
Signature 22
Index to Exhibits 23-25
<PAGE>
<TABLE>
FRONTIER CORPORATION
BUSINESS SEGMENT INFORMATION
(Unaudited)
<CAPTION>
Three Nine
Months Months
Ended Ended
September 30, September 30,
- ----------------------------------------------------------------------------
In thousands of dollars 1999 1998 1999 1998
- ----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Integrated Services:
Revenue
Commercial $ 249,490 $ 248,828 $ 749,917 $ 739,141
Consumer 45,658 56,443 141,058 186,654
Carrier 196,828 170,712 556,311 464,398
- ----------------------------------------------------------------------------
Total Revenue 491,976 475,983 1,447,286 1,390,193
Cost of Access 306,220 305,232 915,346 893,048
- ----------------------------------------------------------------------------
Gross Margin 185,756 170,751 531,940 497,145
Selling, General and
Adminstrative Expense 124,816 118,022 365,698 357,391
Depreciation and
Amortization 40,251 27,338 107,911 78,449
- ----------------------------------------------------------------------------
Recurring Operating Income $20,689 $ 25,391 $ 58,331 $61,305
Other Charges - - - 6,528
- ----------------------------------------------------------------------------
Operating Income $20,689 $ 25,391 $ 58,331 $54,777
Capital Expenditures $148,890 $103,768 $546,036 $244,692
Total Assets $2,249,616 $1,566,865 $2,249,616 $1,566,865
============================================================================
Local Communications Services:
Revenue $181,983 $176,436 $543,310 $524,639
Operating Expenses 86,227 88,150 255,168 251,138
Depreciation and
Amortization 30,870 27,987 90,545 84,498
- ----------------------------------------------------------------------------
Operating Income $64,886 $60,299 $197,597 $189,003
Capital Expenditures $40,473 $34,424 $129,641 $96,982
Total Assets $1,078,401 $985,551 $1,078,401 $985,551
============================================================================
Corporate Operations and Other:
Revenue $ - $5,789 $4,960 $23,690
Operating Expenses 5,904 9,778 25,434 35,331
Depreciation and
Amortization 172 546 893 2,135
- ----------------------------------------------------------------------------
Recurring Operating Loss $(6,076) $(4,535) $(21,367) $(13,776)
Other Charges 66,999 - 74,519 -
- ----------------------------------------------------------------------------
Operating Loss $ (73,075) $(4,535) $(95,886) $(13,776)
Capital Expenditures $15,880 $10,538 $28,536 $26,202
Total Assets $7,730,999 $250,847 $7,730,999 $250,847
============================================================================
Consolidated:
Revenue $673,959 $658,208 $1,995,556 $1,938,522
Operating Expenses 523,167 521,182 1,561,646 1,536,908
Depreciation and
Amortization 71,293 55,871 199,349 165,082
- ----------------------------------------------------------------------------
Recurring Operating Income $ 79,499 $81,155 $234,561 $236,532
Other Charges 66,999 - 74,519 6,528
- ----------------------------------------------------------------------------
Operating Income $ 12,500 $81,155 $160,042 $230,004
Capital Expenditures $ 205,243 $148,730 $704,213 $367,876
Total Assets $11,059,016 $2,803,263 $11,059,016 $2,803,263
=============================================================================
See accompanying Notes to Consolidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
FRONTIER CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
<CAPTION>
Three Months Nine Months
Ended Ended
September 30, September 30,
In thousands of dollars 1999 1998 1999 1998
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenue
Integrated Services $491,976 $475,983 $1,447,286 $1,390,193
Local Communications 181,983 176,436 543,310 524,639
Corporate Operations and Other - 5,789 4,960 23,690
- -------------------------------------------------------------------------------
Total Revenue 673,959 658,208 1,995,556 1,938,522
Costs and Expenses
Operating Expenses 523,167 521,182 1,561,646 1,536,908
Depreciation and Amortization 71,293 55,871 199,349 165,082
- -------------------------------------------------------------------------------
Total Costs and Expenses 594,460 577,053 1,760,995 1,701,990
- -------------------------------------------------------------------------------
Recurring Operating Income 79,499 81,155 234,561 236,532
Other charges 66,999 - 74,519 6,528
- -------------------------------------------------------------------------------
Operating Income 12,500 81,155 160,042 230,004
Interest expense 18,889 13,527 48,739 39,516
Other income:
Gain (loss) on sale of assets (4,115) 618 (2,115) 15,169
Equity earnings from
unconsolidated wireless interests 7,548 5,167 17,235 11,803
Interest income 1,620 1,064 4,754 3,453
Other income (expense) (404) 1,161 (231) 3,055
- -------------------------------------------------------------------------------
Income (Loss) Before Taxes and
Cumulative Effect of
Change in Accounting Principles (1,740) 75,638 130,946 223,968
Income tax expense 21,770 29,881 77,181 96,634
- -------------------------------------------------------------------------------
Income (Loss) Before Cumulative
Effect of Change in Accounting
Principles (23,510) 45,757 53,765 127,334
Cumulative effect of change in
accounting principles - - - 1,755
- -------------------------------------------------------------------------------
Consolidated Net Income (Loss) $(23,510) $45,757 $53,765 $125,579
===============================================================================
See accompanying Notes to Consolidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
FRONTIER CORPORATION
CONSOLIDATED BALANCE SHEET
<CAPTION>
September 30, December 31,
In thousands of dollars 1999 1998
(unaudited)
- ----------------------------------------------------------------
<S> <C> <C>
ASSETS
Cash and cash equivalents $135,145 $ 85,143
Accounts receivable, less allowance
for uncollectibles
of $66,217 and $37,956, respectively 463,858 422,724
Materials and supplies 4,802 9,924
Deferred income taxes 20,150 13,320
Prepayments and other 20,068 35,563
- ----------------------------------------------------------------
Total Current Assets 644,023 566,674
- ----------------------------------------------------------------
Property, plant and equipment 2,189,138 1,677,559
Goodwill and customer base, net 7,794,241 484,015
Deferred income taxes 13,428 -
Deferred and other assets 418,186 330,495
- ----------------------------------------------------------------
Total Assets $11,059,016 $3,058,743
================================================================
Liabilities and Shareholder's Equity
Accounts payable $559,753 $449,041
Dividends payable - 38,508
Debt due within one year 10,111 9,466
Taxes accrued 53,305 26,128
Other liabilities 127,805 44,554
- ----------------------------------------------------------------
Total Current Liabilities 750,974 567,697
Long-term debt 1,800,651 1,350,821
Other long-term liabilities 31,928 -
Deferred income taxes - 40,046
Deferred employee benefits obligation 89,596 81,925
Shareholder's equity 8,385,867 1,018,254
- ----------------------------------------------------------------
Total Liabilities and
Shareholder's Equity $11,059,016 $3,058,743
================================================================
See accompanying Notes to Consolidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
FRONTIER CORPORATION
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
<CAPTION>
Nine Months Ended September 30,
In thousands of dollars 1999 1998
- ---------------------------------------------------------------------------
<S> <C> <C>
Operating Activities
Net income $ 53,765 $125,579
- ---------------------------------------------------------------------------
Adjustments to reconcile net income to net cash
provided by operating activities:
Cumulative effect of changes in accounting
principles - 1,755
Depreciation and amortization 199,349 165,082
Loss (gain) on sale of assets 2,115 (15,169)
Equity earnings from unconsolidated wireless
interests (17,235) (11,803)
Restricted stock compensation 33,807 5,970
Changes in operating assets and liabilities,
exclusive of impacts of dispositions and acquisitions:
Increase in accounts receivable (49,760) (55,604)
Increase in material and supplies (2,175) (986)
Decrease (increase) in prepayments and other
current assets 16,269 (2,819)
Increase in deferred and other assets (39,721) (21,155)
Increase (decrease) in accounts payable 35,214 72,609
Increase in taxes accrued and other current
liabilities 58,517 7,921
Increase in other long-term liabilities 32,252 -
Increase in deferred employee benefits
obligation 7,671 13,294
Increase in deferred income taxes 21,100 30,792
- ---------------------------------------------------------------------------
Total adjustments 297,403 189,887
- ---------------------------------------------------------------------------
Net Cash Provided by Operating Activities 351,168 315,466
- ---------------------------------------------------------------------------
Investing Activities
Expenditures for property, plant and equipment (797,999) (306,406)
Deposits for capital projects (32,198) (98,532)
Proceeds from asset sales 24,262 42,250
Other investing activities (16,533) (121)
- ---------------------------------------------------------------------------
Net Cash Used in Investing Activities (822,468) (362,809)
- ---------------------------------------------------------------------------
Financing Activities
Proceeds from issuance of long-term debt 584,936 214,403
Repayments of debt (8,622) (13,672)
Dividends paid (56,276) (113,695)
Issuance of common stock 39,084 9,086
Redemption of preferred stock (18,949) (477)
Purchase of treasury stock (18,854) -
Other financing activities (17) 380
- ---------------------------------------------------------------------------
Net Cash Provided by Financing Activities 521,302 96,025
- ---------------------------------------------------------------------------
Net Increase in Cash and Cash Equivalents 50,002 48,682
Cash and Cash Equivalents at Beginning of
Period 85,143 26,302
- ---------------------------------------------------------------------------
Cash and Cash Equivalents at End of Period $135,145 $74,984
===========================================================================
See accompanying Notes to Consolidated Financial Statements.
</TABLE>
<PAGE>
FRONTIER CORPORATION
Notes to Consolidated Financial Statements
(Unaudited)
Note 1: Consolidation
The consolidated financial statements of Frontier
Corporation (the "Company" or "Frontier") included herein, a
wholly owned subsidiary of Global Crossing Ltd. ("Global
Crossing"), 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
current reports of the Company on Form 8-K filed with the
Securities and Exchange Commission since the filing of such
Annual Report on Form 10-K.
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.
It is the Company's policy to reclassify prior year
amounts to conform with current year presentation.
Note 2: Merger with Global Crossing
On September 28, 1999, Global Crossing announced the
consummation of the merger of GCF Acquisition Corp., a New
York corporation and a wholly owned subsidiary of Global
Crossing ("Merger Sub"), with and into Frontier Corporation,
resulting in Frontier becoming a wholly owned subsidiary of
Global Crossing.
Under the terms of the amended merger agreement for the
Global Crossing-Frontier transaction, Frontier shareholders
received 2.05 Global Crossing common shares for each
outstanding common share of Frontier Corporation, for a
total of approximately 355 million shares. This transaction
has been accounted for under the purchase method of
accounting. Upon the effectiveness of the merger, the then
outstanding and unexercised options exercisable for shares
of Frontier Corporation common stock were converted into
options exercisable for an aggregate of approximately 25
million shares of Global Crossing common stock, having the
same terms and conditions as the Frontier Corporation
options, except that the exercise price and the number of
shares issuable upon exercise were divided and multiplied,
respectively, by 2.05. The purchase price of $10.3 billion
assumes a Global Crossing stock price of 22 15/16 per share,
the average closing price of Global Crossing common stock
from September 1, 1999 through September 3, 1999, and
includes long term debt, accrued interest, and Frontier
Corporation options assumed by Global Crossing.
Global Crossing has tentatively considered the carrying
value of the acquired assets to approximate their fair
value, with all of the excess of such acquisition costs
being attributable to goodwill. Global Crossing and an
independent appraiser are in the process of fully evaluating
the assets acquired and, as a result, the purchase price
allocation among tangible and intangible assets acquired
(and their related useful lives) will most likely change.
This tentative allocation has resulted in a preliminary
valuation of goodwill of $7.8 billion.
For accounting purposes, the merger with Global Crossing
is deemed to have occurred as of the close of business on
September 30, 1999.
Note 3: Divestitures
During the first nine months of 1999, the Company
continued its efforts to sell non-core assets. On September
8, 1999, the Company sold certain properties in Iowa
resulting in an after tax gain of $1.6 million, and on
August 5, 1999, the Company sold its ConferTech Systems
equipment unit, resulting in an after tax loss of $9.2
million. On July 20, 1999, the Company announced an
agreement to sell its partnership interest in the Upstate
Cellular Network ("UCN") doing business under the name of
Frontier Cellular to the other major UCN partner, Bell
Atlantic Mobile. The transaction is subject to regulatory
approval and is expected to close in December 1999. On June
3, 1999, the Company completed the sale of Illinois RSA No.
3, a cellular partnership, resulting in a pre-tax gain of
$2.0 million, and 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. No gain or loss was recognized on the FNSC
transaction.
Note 4: Other Charges
For the nine months ended September 30, 1999, the Company
recorded charges of $74.5 million related to the merger with
Global Crossing. These charges primarily included
investment banker fees, legal fees, accelerated restricted
stock compensation, and other direct costs.
Note 5: Marketable Securities and Other Investments
The Company purchased certain equity securities through
its wholly owned subsidiary, Global Crossing Ventures, Inc.
The Company classifies these securities as available for
sale in accordance with the provisions of FAS No. 115,
"Accounting for Certain Investments in Debt and Equity
Securities." Investments are generally carried at fair
value, based on quoted market prices, and are recorded in
the "Deferred and other assets" caption of the Consolidated
Balance Sheets. Unrealized holding gains and losses are
excluded from earnings and reported, net of income taxes, as
a component of shareholders' equity. Realized gains and
losses, if any, will be recognized on the specific
identification method and reflected in income. As of
September 30, 1999, the fair value of these investments was
$5.0 million. There were no unrealized losses at September
30, 1999. The Company has also acquired equity interests in
certain privately held companies totaling $11.6 million.
These investments are recorded at historical cost.
Note 6: Comprehensive Income
The Company accounts for Comprehensive Income under the
provisions of FAS No. 130, "Reporting Comprehensive Income".
The reconciliation of net income to comprehensive net income
(loss) is as follows:
Three Months Ended Nine Months Ended
September 30, September 30,
In thousands 1999 1998 1999 1998
- ------------------------------------------------------------------------
Net income (Loss) $(23,510) $45,757 $53,765 $125,579
Unrealized gain (loss) on
investment, net of taxes (2,940) - 82 -
Foreign currency translation
adjustment 322 (333) (6) 549
- ------------------------------------------------------------------------
Total comprehensive
income (loss) $(26,128) $45,424 $53,841 $126,128
========================================================================
Accumulated other comprehensive income was eliminated in
the Global Crossing-Frontier merger purchase accounting.
Note 7: 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 $63.0 million and $45.0 million
for the nine months ended September 30, 1999 and 1998,
respectively. Income taxes paid totaled $69.0 million and
$69.7 million for the nine months ended September 30, 1999
and 1998, respectively. Interest costs associated with the
construction of capital assets, including the North American
Crossing ("NAC") network (formerly known as the Optronics
network), are capitalized. Total amounts capitalized for
the nine months ended September 30, 1999 totaled $29.1
million, as compared to $13.8 million in 1998.
Non-cash investing and financing activities during 1999
related to the merger with Global Crossing and included the
conversion of approximately 173 million shares of Frontier
Corporation common stock and approximately 12 million
options to Global Crossing common stock and options. Non-
cash investing activities also included $145.0 million in
current liabilities for Global Crossing direct transaction
costs and certain compensation costs related to the merger.
Additionally, the Company recorded a long term deferred tax
asset for the tax benefit related to the options conversion
upon the merger. (See Note 2 regarding the merger with
Global Crossing.)
Note 8: Preferred Stock
Effective July 1, 1999, the Company redeemed all
outstanding shares of Cumulative Preferred Stock, 4.60%
Series, 5.00% Series, 5.00% Second Series, and 5.65% Series
pursuant to the terms of such securities. The Company's
wholly-owned subsidiary, Frontier Communications of AuSable
Valley Inc., also redeemed all outstanding shares of its 5
1/2% Cumulative Preferred Stock effective July 1, 1999,
pursuant to the terms of such securities.
Note 9: 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 $1.0 billion. At
September 30, 1999 and December 31, 1998, respectively,
$126.7 million and $114.0 million of deposits for the
Company's NAC network are included in the "Deferred and
other assets" caption in the Consolidated Balance Sheets.
Note 10: New Accounting Pronouncements
In June 1999, the Financial Accounting Standards Board
issued FAS No. 137, "Accounting for Derivative Instruments
and Hedging Activities - Deferral of the Effective Date of
FAS No. 133" which deferred FAS No. 133's effective date to
fiscal quarters beginning after June 15, 2000. 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.
Item 2 - Management's Discussion of Results of Operations
and Analysis of Financial Condition
For the Nine Months Ended September 30, 1999 and 1998
The Company has included "forward-looking statements"
throughout this quarterly report filed on Form 10-Q. These
forward-looking statements describe management's intentions,
beliefs, expectations or predictions for the future. The
Company uses the words "believe," "anticipate," "expect,"
"intend" and similar expressions to identify forward-looking
statements. Such forward-looking statements are subject to
a number of risks, assumptions and uncertainties that could
cause the Company's actual results to differ materially from
those projected in such forward-looking statements. These
risks, assumptions and uncertainties include the Company's
ability to complete systems within currently estimated time
frames and budgets, the Company's ability to compete
effectively in a rapidly evolving and price competitive
marketplace, changes in the nature of telecommunications
regulation in the United States and other countries, changes
in the Company's business strategy, and the impact of
technological change. This list is only an example of some
of the risks, uncertainties and assumptions that may affect
the Company's forward-looking statements. The Company
undertakes no obligation to update any forward-looking
statements made by it. 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 current
reports of the Company on Form 8-K filed with the Securities
and Exchange Commission since the filing of such Annual
Report on Form 10-K.
DESCRIPTION OF BUSINESS
Frontier Corporation provides integrated
telecommunications services including Internet, Internet
Protocol, or "IP", and data applications, web hosting, long
distance, local telephone and enhanced services to business,
carrier, web-centric and targeted residential customers
nationwide and in certain international countries. On
September 28, 1999, Frontier became a wholly owned
subsidiary of Global Crossing.
RESULTS OF OPERATIONS
Consolidated revenues on a year-to-date basis were $2.0
billion, representing an increase of $0.1 million or 2.9%
over the nine month period ended September 30, 1998.
Consolidated operating income was $160.0 million for the
nine months ended September 30, 1999 as compared to $230.0
million for the nine months ended September 30, 1998.
Operating results were impacted by $74.5 million and $6.5
million in non-recurring charges on a year-to-date basis in
1999 and 1998, respectively. Operating results continue to
be positively impacted by revenue growth in Data, Carrier
Services and Competitive Local Exchange Carrier ("CLEC")
services, offset by a decrease in switched long distance
revenue due to price erosion and customer attrition. Data
revenue grew $89.8 million or 134.9% for the nine months
ended September 30, 1999 over the respective prior year
period. Data growth is driven by a 243.7% increase in frame
relay, a 155.0% increase in dedicated Internet, and a 182.1%
increase in content distribution through the third quarter
of 1999 as compared to the prior year. Carrier Services
revenues grew $91.9 million or 19.8% over the first nine
months of 1998 driven by a growing customer base as well as
higher levels of switched and dedicated traffic. CLEC
revenue grew to $162.9 million for the nine months ended
September 30, 1999, representing 53.7% growth over the prior
year period.
Operating expenses grew 1.6% for the nine months ended
September 30, 1999 on revenue growth of 2.9% for the same
period. Costs and expenses, normalized for other charges,
grew $59.0 million or 3.5% for the nine months ended
September 30, 1999 over the same prior year period, driven
primarily by higher depreciation expense related to the NAC
network, media distribution centers and other network
related investments.
Through the first nine months of 1999, the Company
recorded a $74.5 million pre-tax charge for costs related to
the merger with Global Crossing. These charges primarily
included investment banker fees, legal fees, accelerated
restricted stock compensation, and other direct costs.
Through the first nine months of 1998, the Company
recorded a pre-tax charge of $6.5 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.
Other Income Statement Items
Interest Expense
Interest expense for the nine months ending September 30,
1999 and 1998 was $48.7 million and $39.5 million,
respectively, representing an increase of 23.3%. 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 $15.3 million during the
same period. The increase in capitalized interest and levels
of debt outstanding is primarily attributable to the
Company's capital program, driven in large measure by the
NAC network, media distribution centers and other network
related investments.
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. On July 20, 1999, the Company
announced an agreement to sell its partnership interest in
Frontier Cellular.
Equity earnings from the Company's unconsolidated wireless
interests, including Frontier Cellular, currently managed by
Frontier, were $17.2 million through the third quarter, a
46.0% increase over the $11.8 million reported in the
comparable period one year earlier. 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 each of the nine months ended September
30, 1999 and 1998.
Effective income tax rates, as reported, are impacted by
certain nonrecurring items for the nine months ended
September 30, 1999 and 1998. The effective rates were
primarily impacted in 1999 by Global Crossing merger related
costs and in 1998 by GlobalCenter transaction costs and the
sale of Minnesota RSA No. 10.
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. On a year to date
basis, the Company's recurring EBITDA (before other charges)
was $433.9 million, or 8.0% higher than the same period in
1998, as a result of increased revenues.
Cash provided from operations for the nine months ended
September 30, 1999 increased $35.7 million to $351.2
million, primarily as a result of stronger cash basis
operating results during 1999 as compared to the same period
in 1998.
Cash used for investing activities increased to $822.5
million, or $459.7 million higher than the same period in
1998, driven by an increase in cash expenditures for capital
projects principally due to the NAC network, media
distribution centers and other network related investments.
Cash provided from financing activities increased $425.3
million during the nine months ended September 30, 1999, 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, proceeds
from the issuance of common stock resulting from the
exercise of stock options, and lower dividend payments in
1999 as a result of the dividend restructuring.
Current Ratio
The Company's current ratio declined to 0.86 at September 30, 1999,
primarily due to $145 million of accrued costs relating to the Global
Crossing merger. Without these obligations, the Company's current ratio
would be 1.06 as of September 30, 1999.
Debt
The Company's total outstanding debt balance was $1,810.8
million at September 30, 1999, an increase of $450.5 million
from December 31, 1998. This higher debt level is driven by
the Company's capital program, including the NAC network,
media distribution center build outs and other network
related investments, as well as the temporary restriction on
dividend payments from Frontier Telephone of Rochester.
Upon closing of the Company's merger with Global Crossing,
the Company's outstanding borrowings under its various
credit facilities became due and payable. This debt was
refinanced via incremental borrowings under Global
Crossing's $3.0 billion senior secured credit facility. The
total amount of debt refinanced was $782.0 million.
On June 2, 1999, in connection with the Company's merger
with Global Crossing, Moody's and Standard and Poor's
downgraded Frontier's long-term senior unsecured debt
ratings from "A3"/"A" to "Ba2"/"BB", respectively.
Debt Ratio and Interest Coverage
The Company's debt ratio (total debt as a percentage of
total capitalization) was 17.8% at September 30, 1999, as
compared with 57.2% at December 31, 1998. The debt ratio
decrease is due to the Global Crossing merger which
substantially increased total capitalization. Pre-tax
interest coverage, excluding nonrecurring charges, was 3.3
times for the nine months ended September 30, 1999, as
compared with 5.0 times for the same period in 1998.
Capital Spending
Through September 1999, gross capital expenditures
amounted to approximately $704.2 million, as compared to
$367.9 million in the same period of 1998. The Company
currently projects its 1999 capital expenditures to be
approximately $1.0 billion. 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
and its remediation is essentially complete. 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 its
IT systems are now Year 2K ready, with immaterial
exceptions.
The Company has given special attention to the Year 2K
issues involved in its network, switches, billing systems,
and data lines, and will continue to dedicate significant
resources to these areas as a priority. 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. The areas which continue to draw activities to
complete Year 2K preparations are PC and PRODA applications,
and third party vendor systems and software.
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 $37.0 million, and the
Company now anticipates spending a total of approximately
$40.0 million. 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. The Company has initiated an
inquiry with its primary vendors and although the list of
vendors who have satisfied the Company as to Year 2K
readiness is extensive, the Company continues to engage in
discussions related to Year 2K compliance with some vendors.
The Company has replaced some equipment and systems, or
delayed installation until next year, 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. Since the Company's own network, including the
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 all its Year 2K issues
before the end of 1999, with immaterial exceptions, and with
the exception of any issues that involve other carriers or
suppliers and that are outside of its control.
The Company has begun to develop contingency plans in a
number of areas. 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 occurring: 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, internal
telephone systems, its COINS system, certain conferencing
unit software, corporate support areas, and CLEC operations
that are dependent on a Bell Operating Company's 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. The Company also has initiated routine
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.
The costs of contingency planning are not expected to be
material to the Company.
Dividends
In 1999, the Company declared and paid dividends of $17.8
million.
New Accounting Pronouncements
In June 1999, the Financial Accounting Standards Board
issued FAS No. 137, "Accounting for Derivative Instruments
and Hedging Activities - Deferral of the Effective Date of
FAS No. 133" which deferred FAS No. 133's effective date to
fiscal quarters beginning after June 15, 2000. 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.
On August 25, 1999, the New York State Public Service
Commission ("NYSPSC") issued a Notice Requesting Comments in
which it invited comments on the Company's financial
condition, earnings and service quality, competition in the
Rochester market and the terms and conditions of the Open
Market Plan. Settlement discussions on this proceeding are
underway. Although the Company expects that the NYSPSC will
continue to seek adjustments in the Open Market Plan, the
Company cannot predict the ultimate impact of any NYSPSC
action in this proceeding. 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" or below 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".
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 from FTR to
the Company will remain in place until the NYSPSC is
satisfied that FTR's service levels demonstrate that FTR has
rectified the service deficiency.
On June 2, 1999, Moody's and S&P downgraded FTR's senior
debt ratings from A1/AA- to Baa2/BBB, respectively. These
ratings actions were a direct result of the announced merger
between the Company and Global Crossing Ltd. and did not
reflect any change in the financial condition or
creditworthiness of FTR. However, these actions triggered an
additional dividend restriction for FTR until either the
NYPSC approves the payment of dividends or FTR's senior debt
rating rises above BBB (for S&P, or the equivalent for other
rating agencies).
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. (later
known as Frontier Network Systems Corp. (FNS)), a
wholly-owned subsidiary of the registrant held through
intervening subsidiaries which was sold on April 15, 1999.
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 cleanup 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 dismissed by the federal court
in Minnesota. The claims against the Company maintain only
that the Company 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, the Company, ASI and the other
defendants each are contesting the claims. In connection
with the acquisition of ASI by the Company, Simon and
Weinert agreed to indemnify and defend the Company for these
claims.
On June 25, 1999, the Company was served with a summons
and complaint in a lawsuit commenced in the New York State
Supreme Court, Monroe County by a Frontier shareholder
alleging that the Company and its Board of Directors had
breached their fiduciary duties to shareholders by endorsing
a definitive merger agreement with Global Crossing Ltd.
without having adequately considered an alternative merger
proposal made by Qwest Communications International, Inc.
The lawsuit has been framed as a purported class action
brought on behalf of all shareholders of the Company and
seeks unstated compensatory damages and injunctive relief
compelling the Company's board to evaluate the Company's
suitability as a merger partner, to enhance the Company's
value as a merger candidate, to engage in discussions with
Qwest about possible business combinations, to act
independently to protect the interests of Frontier
shareholders, and to ensure that no conflicts of interest
exist which would prevent maximizing value to shareholders.
In July 1999, three additional lawsuits were also commenced
against the Company in the New York State Supreme Court on
behalf of a number of individual shareholders seeking
essentially identical relief. All four lawsuits are being
consolidated into a single proceeding pending in Rochester
New York. The Company believes the asserted claims are
without merit and is defending itself vigorously.
On July 12, 1999, the Company was served with a summons
and complaint in a lawsuit commenced in New York State
Supreme Court, New York County by a Frontier shareholder
alleging that the Company and its board breached their
fiduciary duties by failing to obtain the highest possible
acquisition price for the Company in the definitive merger
agreement with Global Crossing. The action has been framed
as a purported class action and seeks compensatory damages
and injunctive relief. The claims against the Company are
asserted in the same action as similar but separate claims
against US West, Inc. The Company will seek to sever the
claims against it from the action involving US West and to
consolidate those claims with the action pending in
Rochester that is currently in the process of being
consolidated. The Company believes the claims asserted
against it are meritless.
Please refer to 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.
Item 4. Submission of Matters to a Vote of Security Holders
A Special Meeting of Shareholders was held on September
23, 1999 for the purpose of voting on the proposal to adopt
the Agreement and Plan of Merger, dated as of March 16, 1999
and as amended as of May 16, 1999, among Global Crossing
Ltd., GCF Acquisition Corp. and Frontier Corporation.
The number of shares issued, outstanding and eligible to
vote as of the record date of July 29, 1999 were
173,513,524.344. EquiServe tabulated proxies representing
145,301,940.879 shares or 84 percent of the eligible vote
shares. The merger proposal was approved. The results of
the tabulation are as follows:
For 138,405,980.101
Against 5,615,514.246
Abstain 1,280,446.532
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. That decision is now
up for review in the United States District Court for the
District of Columbia Circuit. The Company has intervened in
that proceeding. Briefing of the issues is underway and the
Court is scheduled to hear oral argument in early November.
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 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, which the Commission
granted. The filing of the complaints has had no effect
upon the position of the Company with respect to payphone
compensation. On September 24, 1999, the Common Carrier
Bureau issued a Memorandum Opinion and Order finding
Frontier liable to Bell Atlantic for payphone compensation.
The Bureau invited Bell Atlantic to file, within 60 days, a
supplemental complaint for damages. The Company, on October
28, 1999, filed an application for review of the Bureau's
decision with the full Commission. On November 8, 1999, the
Common Carrier Bureau issued a second Memorandum Opinion and
Order finding Frontier liable to SBC and Ameritech and
invited those companies to file supplemental complaints for
damages within 60 days. The Company intends to file an
application for review of this decision. 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 and
subsequent to the quarter ended September 30, 1999:
SEC Filing Date Item Nos. Financial Statements
-----------------------------------------------------------
10/12/99 5 None
10/07/99 4, 7 None
09/30/99 1, 7 None
09/03/99 5 None
07/21/99 5 None
<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: November 12, 1999 /s/Harold M. Winfield
By: ----------------------
Harold M. Winfield
Chief Financial Officer
North America
(principal accounting officer)
<PAGE>
FRONTIER CORPORATION
INDEX TO EXHIBITS
Exhibit
Number Description Reference
- --------------------------------------------------------------------
3.1 Restated Certificate of Incorporation Filed herewith
September 28, 1999
3.2 By-laws Filed herewith
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, for the year ended
1997, $100M 6.25% Notes due December 31, 1997.
December 15, 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 Incorporated by reference to
dated April 29, 1999 with Morgan Exhibit 4.9 to Form 10-Q
Stanley, First National Bank of for the quarter ended
Chicago, and Fleet National March 31, 1999
Bank, et al.
4.10 $100 Million Credit Agreement dated Filed herewith
September 2, 1999 with Morgan
Stanley Senior Funding, First National
Bank of Chicago and Fleet National
Bank
4.11 Credit Agreement dated July 2, 1999 Incorporated by reference to
among Global Crossing Ltd., Exhibit 10.7 to Global
Global Crossing Holdings Ltd. and Crossing Ltd.'s Registration
Chase Manhattan Bank, Goldman Statement 333-82657 dated
Sachs Credit Partners L. P., August 5, 1999
Citicorp USA, Inc., and Merrill
Lynch Capital Corporation, et al.
10.1 Restated Directors Common Stock Filed herewith
Deferred Growth Plan
10.2 Amendment No. 2 to Plan for the Filed herewith
Deferral of Directors Fees
27 Financial Data Schedule Filed herewith
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
FRONTIER CORPORATION
Under Section 807 of the Business Corporation Law
We, the undersigned, JOSEPH P. CLAYTON and
JOSEPHINE S. TRUBEK, being respectively the Chief Executive
Officer and the Corporate Secretary of Frontier
Corporation, do hereby CERTIFY that:
1. The name of the Corporation is "FRONTIER
CORPORATION". The Corporation was originally incorporated
under the name "Rochester Telephone Corporation".
2. The Certificate of Incorporation of the
Corporation was filed in the Department of State of the
State of New York on February 25, 1920. A Restated
Certificate of Incorporation was filed in the Department of
State of the State of New York on April 2, 1968 and on
February 17, 1995.
3. The Certificate of Incorporation, as now in full
force and effect, is hereby amended as follows:
(A) Article First of the Certificate of
Incorporation is amended to add the phrase "(hereinafter
sometimes called the "Corporation")" after the name of the
Corporation.
(B) Article Second of the Certificate of
Incorporation, which sets out the purposes of the
Corporation, is amended to reword the first paragraph, but
not change its substantive provisions, and add the second
paragraph, which states that the Corporation's powers are
not limited by the preceding paragraph.
(C) Article Third of the Certificate of
Incorporation, which sets out the authorized shares of the
Corporation, is amended to (i) decrease the authorized
Common Stock of the par value of One Dollar ($1.00) per
share from Three Hundred Million (300,000,000) shares to
One Thousand (1,000) shares, (ii) eliminate Four Million
(4,000,000) shares of Class A Preferred Stock of the par
value of One Hundred Dollars ($100.00) per share and Eight
Hundred and Fifty Thousand (850,000) shares of Cumulative
Preferred Stock of the par value of One Hundred Dollars
($100.00) per share, and to eliminate the preferences,
privileges, voting powers, restrictions and qualifications
applicable thereto.
The number of issued shares of the Corporation prior
to this amendment is 1,000, and the terms of the change are
1 share of Common Stock for each 1 share of the presently
issued Common Stock. There are no issued or outstanding
shares of Class A Preferred Stock or Cumulative Preferred
Stock.
In order to effect the foregoing, Article Third is
hereby amended to read as follows:
3. The aggregate number of shares which the
Corporation shall have authority to issue is 1,000
shares of Common Stock, each share having a par value
of one dollar ($1.00). The holders of the Common
Stock shall have no preemptive rights to subscribe for
any shares of any class of stock of the Corporation
whether now or hereafter authorized.
(D) Article Fourth of the Certificate of
Incorporation, which sets out the power to issue preferred
stock, is deleted and replaced with a provision setting
forth the county of the office of the Corporation, which
county is not being changed and which was previously set
forth in Article Tenth.
(E) Article Fifth of the Certificate of
Incorporation, which sets out the respective rights,
preferences and limitations of the shares of cumulative
preferred stock, is deleted, as the Corporation will no
longer have authorized shares of preferred stock, and
replaced with a provision designating the agent for the
Corporation, which agent has not changed and which was
originally set forth in Article Tenth, and changing the
address for the mailing of a copy of any process in any
action or proceeding against the Corporation from 180 South
Clinton Avenue, Rochester, New York 14646-0700, Attention:
Secretary, to c/o Global Crossing Ltd., 712 Fifth Avenue,
41st floor, New York, New York 10019, Attention: General
Counsel.
(F) Article Sixth of the Certificate of
Incorporation, which sets out the provisions of the
cumulative preferred stock, is deleted, as the Corporation
will no longer have authorized shares of preferred stock,
and replaced with provisions for the management of the
business and the conduct of the affairs of the Corporation
and setting forth the powers of the Corporation, its
directors and stockholders.
(G) Article Seventh of the Certificate of
Incorporation, which sets out the redemption rights of the
Corporation with respect to common stock, is deleted, as
the common stock of the Corporation will no longer have
redemption rights, and replaced with a provision setting
forth the personal liability of directors, which provision
replaces the provision setting forth the personal liability
of directors originally set forth in Article Eleventh.
(H) Article Eighth of the Certificate of
Incorporation, which sets out the term of the Corporation,
is deleted in its entirety so that the Certificate of
Incorporation will no longer contain a provision setting
forth the term of the Corporation.
(I) Article Ninth of the Certificate of
Incorporation, which sets forth the number of directors, is
deleted in its entirety. The number of directors is now
specified in Article 6 in the provisions for the management
of the business and the conduct of the affairs of the
Corporation.
(J) Article Tenth of the Certificate of
Incorporation, which sets out the office and agent of the
Corporation, is deleted in its entirety. The office of the
Corporation is now set forth in Article 3. The agent of
the Corporation is now set forth in Article 5.
(K) Article Eleventh of the Certificate of
Incorporation, which sets out the personal liability of
directors, is deleted in its entirety. The provision
setting forth the personal liability of directors is now
set forth in Article 7.
4. The text of the Certificate of Incorporation, as
amended as described in Paragraph 3 above, is restated to
read in its entirety as follows:
1. The name of the corporation shall be
Frontier Corporation (hereinafter sometimes
called the "Corporation").
2. The purposes for which it is formed are to
engage in any lawful act or activity for which
corporations may be organized under the Business
Corporation Law provided that the corporation is
not formed to engage in any act or activity which
requires the consent or approval of any state
official, department, board, agency or other
body, without such consent or approval first
being obtained.
It is hereby expressly provided that the
foregoing shall not be held to limit or restrict
in any manner the powers of this Corporation; and
that this Corporation may do all and everything
necessary, suitable and appropriate for the
exercise of any of its general powers.
3. The aggregate number of shares which the
Corporation shall have authority to issue is
1,000 shares of Common Stock, each share having a
par value of one dollar ($1.00). The holders of
the Common Stock shall have no preemptive rights
to subscribe for any shares of any class of stock
of the Corporation whether now or hereafter
authorized.
4. The office of the Corporation in the State
of New York shall be located in the County of
Monroe.
5. The Secretary of State of the State of New
York is hereby designated as the agent of the
Corporation upon whom any process may in any
action or proceeding against it be served. The
post office address to which the Secretary of
State shall mail a copy of any process in any
action or proceeding against the Corporation
which may be served upon it is: c/o Global
Crossing Ltd., 712 Fifth Avenue, 41st floor, New
York, New York 10019, Attention: General
Counsel.
6. The following provisions are inserted for
the management of the business and the conduct of
the affairs of the Corporation, and for further
definition, limitation and regulation of the
powers of the Corporation and of its directors
and stockholders:
(a) The business and affairs of the
Corporation shall be managed by or under the
direction of the Board of Directors.
(b) The directors shall have concurrent
power with the stockholders to make, alter,
amend, change, add to or repeal the By-Laws of
the Corporation.
(c) The number of directors of the
Corporation shall be as from time to time fixed
by, or in the manner provided in, the By-Laws of
the Corporation. Election of directors need not
be by written ballot unless the By-Laws so
provide.
(d) In addition to the powers and authority
hereinbefore or by statute expressly conferred
upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and
things as may be exercised or done by the
Corporation, subject, nevertheless, to the
provisions of the Business Corporation Law, this
Certificate of Incorporation, and any By-Laws
adopted by the stockholders; provided, however,
that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of
the directors which would have been valid if such
By-Laws had not been adopted.
(e) Any member of the Board of Directors
may be removed, with or without cause, at any
time prior to the expiration of his term by a
majority vote of the outstanding shares.
7. The personal liability of the directors of
the Corporation is hereby eliminated to the
fullest extent permitted by the provisions of
paragraph (b) of Section 402 of the Business
Corporation Law of the State of New York, as the
same may be amended and supplemented.
5. This amendment and restatement of the Certificate
of Incorporation was authorized by:
(A) the Board of Directors of the Corporation by
unanimous written consent pursuant to Sections 803 and
708(b) of the Business Corporation Law of the State of New
York; and
(B) the shareholders holding at least a majority
of all the outstanding shares of the Corporation entitled
to vote thereon by unanimous written consent of
shareholders pursuant to Sections 803 and 615 of the
Business Corporation Law of the State of New York.
IN WITNESS WHEREOF, this Restated Certificate of
Incorporation has been subscribed this 28th day of
September, 1999 by the undersigned, who affirm that the
statements made herein are true and correct under the
penalty of perjury.
By: /s/Joseph P. Clayton
-------------------------
Name: Joseph P. Clayton
Title: Chief Executive Officer
By: /s/Josephine S. Trubek
--------------------------
Name: Josephine S. Trubek
Title: Corporate Secretary
EXHIBIT 3.2
BY-LAWS
FRONTIER CORPORATION
ARTICLE I
OFFICES
Section 1. The office of the corporation
located in the County of Monroe.
Section 2. The corporation may also have
offices at such other places both within and without the
State of New York as the board of directors may from time
to time determine or the business of the corporation may
require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. All meetings of shareholders for
the election of directors shall be held in the City of New
York, State of New York, at such place as may be fixed from
time to time by the board of directors.
Section 2. Annual meetings of shareholders
shall be held at such place, within or without the State of
New York, and at such time and on such date as may from
time to time be fixed by the board of directors and
specified in the notice of such meeting. In the event the
board of directors fails to so determine the place of
meeting, the annual meeting of shareholders shall be held
at the office of the corporation in the County of Monroe.
At each annual meeting, the shareholders shall elect by a
plurality vote, a board of directors, and transact such
other business as may properly be brought before the
meeting.
Section 3. Written or printed notice of the
annual meeting stating the place, date and hour of the
meeting shall be delivered not less than ten nor more than
fifty days before the date of the meeting, either
personally or by mail, by or at the direction of the
president, the secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote
at such meeting.
ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Special meetings of shareholders
may be held at such time and place within or without the
State of New York as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise
prescribed by statute or by the certificate of
incorporation, may be called by the president, the board of
directors, or the holders of not less than a majority of
all the shares entitled to vote at the meeting.
Section 3. Written or printed notice of a
special meeting stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting
is called, shall be delivered not less than ten nor more
than fifty days before the date of the meeting, either
personally or by mail, by, or at the direction of, the
president, the secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote
at such meeting. The notice should also indicate that it
is being issued by, or at the direction of, the person
calling the meeting.
Section 4. The business transacted at any
special meeting of shareholders shall be limited to the
purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the
shares of stock issued and outstanding and entitled to
vote, represented in person or by proxy, shall constitute a
quorum at all meetings of the shareholders for the
transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If,
however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present
in person or represented by proxy shall have power to
adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which
a quorum shall be present or represented any business may
be transacted that might have been transacted at the
meeting as originally notified.
Section 2. If a quorum is present, the
affirmative vote of a majority of the shares of stock
represented at the meeting shall be the act of the
shareholders, unless the vote of a greater or lesser number
of shares of stock is required by law or the certificate of
incorporation.
Section 3. Each outstanding share of stock
having voting power shall be entitled to one vote on each
matter submitted to a vote at a meeting of shareholders. A
shareholder may vote either in person or by proxy executed
in writing by the shareholder or by his duly authorized
attorney-in-fact.
Section 4. The board of directors in advance
of any shareholders' meeting may appoint one or more
inspectors to act at the meeting or any adjournment
thereof. If inspectors are not so appointed, the person
presiding at a shareholders' meeting may, and, on the
request of any shareholder entitled to vote thereat, shall
appoint one or more inspectors. In case any person
appointed as inspector fails to appear or act, the vacancy
may be filled by the board in advance of the meeting or at
the meeting by the person presiding thereat. Each
inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute
the duties of inspector at such meeting with strict
impartiality and according to the best of his ability.
Section 5. Whenever shareholders are required
or permitted to take any action by vote, such action may be
taken without a meeting on written consent, setting forth
the action so taken, signed by the holders of all
outstanding shares entitled to vote thereon.
ARTICLE V
DIRECTORS
Section 1. The board of directors shall
consist of one or more members. If not otherwise fixed,
the board of directors shall consist of one member.
Directors shall be at least eighteen years of age and need
not be residents of the State of New York nor shareholders
of the corporation. The directors, other than the first
board of directors, shall be elected at the annual meeting
of the shareholders, except as hereinafter provided, and
each director elected shall serve until the next succeeding
annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall
hold office until the first annual meeting of shareholders.
Section 2. Any member of the Board of
Directors may be removed, with or without cause, at any
time prior to the expiration of his term by a majority vote
of the outstanding shares.
Section 3. Unless otherwise provided in the
certificate of incorporation, newly created directorships
resulting from an increase in the board of directors and
all vacancies occurring in the board of directors,
including vacancies caused by removal without cause, may be
filled by the affirmative vote of a majority of the board
of directors; however, if the number of directors then in
office is less than a quorum, then such newly created
directorships and vacancies may be filled by a vote of a
majority of the directors then in office. A director
elected to fill a vacancy shall hold office until the next
meeting of shareholders at which election of directors is
the regular order of business, and until his successor
shall have been elected and qualified. A director elected
to fill a newly created directorship shall serve until the
next succeeding annual meeting of shareholders and until
his successor shall have been elected and qualified.
Section 4. The business affairs of the
corporation shall be managed by its board of directors,
which may exercise all such powers of the corporation and
do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws
directed or required to be exercised or done by the
shareholders.
Section 5. The directors may keep the books
of the corporation, except such as are required by law to
be kept within the state, outside of the State of New York,
at such place or places as they may from time to time
determine.
Section 6. The board of directors, by the
affirmative vote of a majority of the directors then in
office, and irrespective of any personal interest of any of
its members, shall have authority to establish reasonable
compensation of all directors for services to the
corporation as directors, officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of
directors, regular or special, may be held either within or
without the State of New York.
Section 2. The first meeting of each newly
elected board of directors shall be held at such time and
place as shall be fixed by the vote of the shareholders at
the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally
to constitute the meeting, provided a quorum shall be
present, or it may convene at such place and time as shall
be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of
directors may be held upon such notice, or without notice,
and at such time and at such place as shall from time to
time be determined by the board.
Section 4. Special meetings of the board of
directors may be called by the president on five days'
notice to each director, either personally or by mail or by
telegram; special meetings shall be called by the president
or secretary in like manner and on like notice on the
written request of two directors.
Section 5. Notice of a meeting need not be
given to any director who submit a signed waiver of notice
whether before or after the meeting, or who attends the
meeting without protesting, prior thereto or at its
commencement, the lack of notice. Neither the business to
be transacted at, nor the purpose of, any regular or
special meeting of the board of directors need be specified
in the notice or waiver of notice of such meeting.
Section 6. A majority of the directors shall
constitute a quorum for the transaction of business unless
a greater or lesser number is required by law or by the
certificate of incorporation. The vote of a majority of
the directors present at any meeting at which a quorum is
present shall be the act of the board of directors, unless
the vote of a greater number is required by law or by the
certificate of incorporation. If a quorum shall not be
present at any meeting of directors, the directors present
may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum
shall be present.
Section 7. Unless otherwise restricted by the
certificate of incorporation or these by-laws, members of
the board of directors, or any committee designated by the
board of directors, may participate in a meeting of the
board of directors, or any committee, by means of
conference telephone or similar communications by means of
which all persons participating in the meeting can hear
each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 8. Unless the certificate of
incorporation provides otherwise, any action required or
permitted to be taken at a meeting of the directors or a
committee thereof may be taken without a meeting if a
consent in writing to the adoption of a resolution
authorizing the action so taken, shall be signed by all of
the directors entitled to vote with respect to the subject
matter thereof.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board or directors, by
resolution adopted by a majority of the entire board, may
designate, from among its members, an executive committee
and other committees, each consisting of two or more
directors, and each of which, to the extent provided in the
resolution, shall have all the authority of the board,
except as otherwise required by law. Vacancies in the
membership of the committee shall be filled by the board of
directors at a regular or special meeting of the board of
directors. The executive committee shall keep regular
minutes of its proceedings and report the same to the board
when required.
ARTICLE VIII
NOTICE
Section 1. Whenever, under the provisions of
the statutes or of the certificate of incorporation or of
these by-laws, notice is required to be given to any
director or shareholder, it shall not be construed to mean
personal notice, but such notice may be given in writing,
by mail, addressed to such director or shareholder, at his
address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors
may also be given by telegram.
Section 2. Whenever any notice of a meeting
is required to be given under the provisions of the
statutes or under the provisions of the certificate of
incorporation or these by-laws, a waiver thereof in writing
signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be
deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation
shall be chosen by the board of directors and shall be a
president, a vice-president, a secretary and a treasurer.
The board of directors may also choose additional vice-
presidents, one or more assistant secretaries and assistant
treasurers and any other officers as are necessary or
appropriate.
Section 2. The board of directors at its
first meeting after each annual meeting of shareholders
shall choose a president, one or more vice-presidents, a
secretary and a treasurer, none of whom needs to be a
member of the board
Any two or more offices may be held by the same
person, except the offices of president and secretary.
When all the issued and outstanding stock of the
corporation is owned by one person, such person may hold
all or any combination of offices.
Section 3. The board of directors may appoint
such other officers and agents as it shall deem necessary
who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be
determined from time to time by the board of directors.
Section 4. The salaries of all officers and
agents of the corporation shall be fixed by the board of
directors.
Section 5. The officers of the corporation
shall hold office until their successors are chosen and
qualify. Any officer elected or appointed by the board of
directors may be removed at any time by the affirmative
vote of a majority of the board of directors. Any vacancy
occurring in any office of the corporation shall be filled
by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief
executive officer of the corporation, shall preside at all
meetings of the shareholders and the board of directors,
shall have general and active management of the business of
the corporation and shall see that all orders and
resolutions of the board of directors are carried into
effect.
Section 7. He shall execute bonds, mortgages
and other contracts requiring a seal under the seal of the
corporation, except where required or permitted by law to
be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated
by the board of directors to some other officer or agent of
the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or If there
shall be more than one, the vice-presidents in the order
determined by the board of directors, shall, in the absence
or disability of the president, perform the duties and
exercise the powers of the president and shall perform such
other duties and have such other powers as the board of
directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all
meetings of the board of directors and all meetings of the
shareholders and record all the proceedings of the meetings
of the corporation and of the board of directors in a book
to be kept for that purpose and shall perform like duties
for the standing committees when required. He shall give,
or cause to be given, notice of all meetings of the
shareholders and special meetings of the board of
directors, and shall perform such other duties as may be
prescribed by the board of directors or president, under
whose supervision he shall be. He shall have custody of
the corporate seal of the corporation and he, or an
assistant secretary, shall have authority to affix the same
to any instrument requiring it and, when so affixed, it may
be attested by his signature or by the signature of such
assistant; secretary. The board of directors may give
general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his
signature.
Section 10. The assistant secretary, or if there be
more than one, the assistant secretaries in the order
determined by the board of directors, shall, in the absence
or disability of the secretary, perform the duties and
exercise the powers of the secretary and shall perform such
other duties and have such other powers as the board of
directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of
the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated
by the board of directors.
Section 12. He shall disburse the funds of the
corporation as may be ordered by the board of directors,
taking proper vouchers for such disbursements, and shall
render to the president and the board of directors at its
regular meetings, or when the board of directors so
requires, an account of all his transactions as treasurer
and of the financial condition of the corporation.
Section 13. If required by the board of directors,
he shall give the corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the
board of directors for the faithful performance of the
duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession
or under his control belonging to the corporation.
Section 14. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the
order determined by the board of directors, shall, in the
absence or disability of the treasurer, perform the duties
and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the board
of directors may from time to time prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation
shall be represented by certificates or shall be
uncertified. Certificates shall be signed by the chairman
or vice-chairman of the board or the president or a vice-
president and the secretary or an assistant secretary or
the treasurer or an assistant treasurer of the corporation
and may be sealed with the seal of the corporation of a
facsimile thereof.
When the corporation is authorized to issue
shares of more than one class, there shall be set forth
upon the face or back of the certificate, or the
certificate shall have a statement that the corporation
will furnish to any shareholder upon request and without
charge, a full statement of the designation, relative
rights, preferences, and limitations of the shares of each
class authorized to be issued and, if the corporation is
authorized to issue any class of preferred shares in
series, the designation, relative rights, preferences and
limitations of each such series so far as the same have
been fixed and the authority of the board of directors to
designate and fix the relative rights, preferences and
limitations of other series.
Within a reasonable time after the issuance or
transfer of any uncertificated shares there shall be sent
to the registered owner thereof a written notice containing
the information required to be set forth or stated on
certificates pursuant to paragraphs (b) and (c) of Section
508 of the New York Business Corporation Law.
Section 2. The signatures of the officers of
the corporation upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent or
registered by a registrar other than the corporation itself
or an employee of the corporation. In case any officer who
has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer
at the date of issue.
Section 3. The board of directors may direct
a new Certificate to be issued in place of any certificate
theretofore issued by the corporation alleged to have been
lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and
as a condition precedent to the issuance thereof, may
prescribe such terms and conditions as it deems expedient,
and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made
against it with respect to any such certificate alleged to
have been lost or destroyed.
Section 4. Upon surrender to the corporation
or the transfer agent of the corporation of a certificate
representing shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person
entitled thereto, and the old certificate shall be
cancelled and the transaction shall be recorded upon the
books or the corporation.
Section 5. For the purpose of determining
shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or to
express consent to or dissent from any proposal without a
meeting, or for the purpose of determining shareholders
entitled to receive payment of any dividend or the
allotment of any rights, or for the purpose of any other
action, the board of directors may fix, in advance, a date
as the record date for any such determination of
shareholders. Such date shall not be more than fifty nor
less than ten days before the date of any meeting nor more
than fifty days prior to any other action. When a
determination of shareholders of record entitled to notice
of or to vote at any meeting of shareholders has been made
as provided in this section, such determination shall apply
to any adjournment thereof, unless the board fixes a new
record date for the adjourned meeting.
Section 6. The corporation shall be entitled
to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends, and
to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or
shares on the part of any other person whether or not it
shall have express or other notice thereof, except as
otherwise provided by the laws of New York.
Section 7. A list of shareholders as of the
record date, certified by the corporate officer responsible
for its preparation or by a transfer agent, shall be
produced at any meeting upon the request thereat or prior
thereto of any shareholder. If the right to vote at any
meeting is challenged, the inspectors of election, or
person presiding thereat, shall require such list of
shareholders to be produced as evidence of the right of the
persons challenged to vote at such meeting and all persons
who appear from such list to be shareholders entitled to
vote thereat may vote at such meeting.
ARTICLE XI
GENERAL PROVISIONS
Section 1. Subject to the provisions of the
certificate of incorporation relating thereto, if any,
dividends may be declared by the board of directors at any
regular or special meeting, pursuant to law. Dividends may
be paid in cash, in shares of the capital stock or in the
corporation's bonds or its property, including the shares
or bonds of other corporations subject to any provisions of
law and of the certificate of incorporation.
Section 2. Before payment of any dividend,
there may be set aside out of any funds of the corporation
available for dividends such sum or sums as the directors
from time to time, in their absolute discretion, think
proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any
property of the corporation, or for such other purpose as
the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any
such reserve in the manner in which it was created.
Section 3. All checks or demands for money
and notes of the corporation shall be signed by such
officer or officers or such other person or persons as the
board of directors may from time to time designate.
Section 4. The fiscal year of the corporation
shall be fixed by resolution of the board of directors.
Section 5. The corporate seal shall have
inscribed thereon the name of the corporation, the year of
its organization and the words "Corporate Seal, New York".
The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These by-laws may be amended or
repealed or new by-laws may be adopted at any regular or
special meeting of shareholders at which a quorum is
present or represented, by the vote of the holders of
shares entitled to vote in the election of any directors,
provided notice of the proposed alteration, amendment or
repeal be contained in the notice of such meeting. These
by-laws may also be amended or repealed or new by-laws may
be adopted by the affirmative vote of a majority of the
board of directors at any regular or special meeting of the
board. If any by-law regulating an impending election of
directors is adopted, amended or repealed by the board,
there shall be set forth in the notice of the next meeting
of shareholders for the election of directors the by-law so
adopted, amended or repealed, together with precise
statement of the changes made. By-laws adopted by the
board of directors may be amended or repealed by the
shareholders.
<PAGE>
EXHIBIT 4.10
$100,000,000
CREDIT AGREEMENT
dated as of
September 2, 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>
CREDIT AGREEMENT dated as of September 2, 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.
"Additional Commitment" means, with respect to any
Additional Lender at any time, the amount set forth opposite
such Lender's name on Schedule I to the Additional Lender
Supplement under the caption "Additional Commitment" or, if
such Lender has entered into one or more Assignment and
Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to
Section 9.04(d) as such Lender's "Additional Commitment", as
such amount may be reduced at or prior to such time pursuant
to Section 2.07.
"Additional Facility" means, at any time, the aggregate
amount of the Additional Lenders' Additional Commitments at
such time.
"Additional Lender" means any Lender that executes an
Additional Lender Supplement.
"Additional Lender Supplement" means a supplement to
this Agreement substantially in the form of Exhibit 1.01.a
hereto which shall (i) be executed and delivered by the
Borrower and each Lender that has agreed to have an
Additional Commitment and (ii) set forth the maturity date
of the Additional Facility. All of the matters set forth in
an Additional Lender Supplement shall be subject to the
restrictions and limitations set forth in Section 2.18.
"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 ? 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 (a) 0.875% for the period
from the Effective Date until October 31, 1999 and (b)
thereafter 1% 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.
"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
$100,000,000.
"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.
"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
the Additional Lenders (if any) 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 and unused Additional Commitments (if any)
representing more than 50% of the sum of the total Credit
Exposures, unused Commitments and unused Additional
Commitments (if any) 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 0.20% of the total Commitments of
$100,000,000. 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 shall pay to the Administrative
Agent, for the account of the Lenders, an additional up-front fee
of 0.10% of the aggregate amount of Loans outstanding on November
1, 1999, payable on November 1, 1999.
(c) The Borrower agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the
Administrative Agent.
(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. 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.
SECTION 2.18. Additional Facility. On and after the
date hereof, the Borrower may request one or more of the Lenders
or any other Person that would become a Lender pursuant to the
provisions of this Agreement upon its execution of an Additional
Lender Supplement, to provide commitments to make one or more
loans to the Borrower (each an "Additional Loan"); each of which
loans shall be deemed to be a loan under this Agreement and shall
be entitled to the benefits of this Agreement, provided that (i)
the aggregate principal amount of the Additional Loans shall not
exceed $50,000,000, (ii) the final maturity date of such loans
shall be as set forth in the Additional Lender Supplement, (iii)
both before and after giving effect to the making of the
Additional Loans, no Default shall have occurred and be
continuing and (iv) the interest rate, commitment fees and other
amounts payable in respect of the Additional Loans shall be as
set forth for the Loans.
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 June 30,
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. No 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).
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 September 2, 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 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 or Additional 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]
FRONTIER CORPORATION
By /s/ J. Enis
Name: Joseph Enis
Title: Treasurer
MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent, Arranger and
Lender
By /s/ Lucy Galbraith
Name: Lucy Galbraith
Title: Principal
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent and
Lender
By /s/ Michelle S. Mumaw
Name: Michelle S. Mumaw
Title: Commercial Banking Ofcr
FLEET NATIONAL BANK,
as Documentation Agent and Lender
By /s/Jon M. Fogle
Name: Jon M. Fogle
Title: Vice President
EXHIBIT 10.1
FRONTIER CORPORATION
DIRECTORS COMMON STOCK DEFERRED GROWTH PLAN
The Frontier Corporation Directors Common Stock
Deferred Growth Plan (the "Plan") is hereby amended and restated,
effective October 1, 1999, to reflect the acquisition of Frontier
Corporation (the "Company") by Global Crossing Ltd. and the
decision to continue the Plan and all existing deferrals pursuant
to the terms of the Plan and the deferral agreements
notwithstanding such acquisition and to authorize the investment
of deferred amounts to be made in Global Crossing Common Stock.
1. Purposes
The purposes of the Plan are to assist directors of the
Company, of Global Crossing and of their affiliates (Global and
all affiliates hereafter referred to as "Affiliated Companies")
with their individual tax and retirement income planning, to
permit the Company and participating Affiliated Companies to
remain competitive in attracting and retaining their directors
and to authorize deferred fees to be invested in Affiliated
Company securities.
2. Plan Administrator
The Committee on Directors of the Company's Board of
Directors shall be the Plan's administrator (the "Administrator").
The Administrator shall have the authority to adopt rules and
regulations for carrying out the Plan and to interpret, construe and
implement the provisions of this Plan, including eligibility for
benefits.
3. Eligibility
Any director of the Company who is not an employee of the
Company or any Affiliated Company may elect to participate in this
Plan.
This Plan may, with the approval of the Administrator, be
adopted by Global Crossing or by another Affiliated Company with
respect to one or more of its directors. In the event of such
adoption, an eligible director may defer fees earned for services on
Global Crossing's or another Affiliated Company's Board in
accordance with the provisions of this Plan. The Company shall,
however, continue to act as plan sponsor and its Committee on
Directors as plan administrator of this Plan and continue to perform
all functions assigned herein specifically to the Company and the
Administrator, respectively.
4. Amount of Deferral
A participant may elect to defer receipt of all or a
specified portion of the fees otherwise payable to the participant
for serving on the Board of Directors or any committee thereof of
the Company or of any participating Affiliated Company.
5. Time for Electing Deferral
Any election to defer directors fees must be made prior to
the beginning of the calendar year that such fees are to be earned
by the participant, provided that in the first year of eligibility a
deferral election for that year must be made within 30 days of
commencing employment on the Board. An election to commence a
deferral may be made at any time in accordance with the procedures
set forth in section 6 and any election so made shall remain in
effect until the participant elects in writing to change his or her
election for future fees, but any such change with respect to an
investment in Affiliated Company securities will not be effective
until six months after so elected.
6. Manner of Electing Deferral
A participant shall elect a deferral by giving written
notice to the Administrator in a form substantially the same as the
Election Form attached hereto. The notice shall include (1) the
amount to be deferred; (2) the time as of which the deferral is to
commence; and (3) whether the deferred amounts plus the earnings
thereon will be paid within 30 days of termination from the Board or
30 days following the end of year in which termination occurs.
7. Participant Accounts
If a trust arrangement has been established, each
participant shall have an account (the "Participant Account") to
reflect his or her investment election as specified on the Election
Form. Amounts deferred into a Participant Account shall be invested
by the trustee in such Affiliated Company securities as shall be
specified by the Administrator. The trustee shall purchase such
securities on the open market at their fair market value at the time
of purchase. Earnings paid on securities allocated to a Participant
Account shall be used to purchase additional Affiliated Company
securities. Funds allocated to a Participant Account that cannot be
invested in Affiliated Company securities may be invested in any
fund or funds designated by the Administrator.
If no trust arrangement has been established, all
deferrals will be credited with simple interest on any unpaid
account balance at the rate fixed from time to time for the payment
of funds deposited with the Company by its customers.
The value of each Participant Account shall be adjusted no
less frequently than annually to reflect deferrals into the account,
payments from the account as hereinafter provided, earnings on
investments and changes in the market value of investments.
All amounts credited to Participant Accounts shall be
fully vested at all times. Except for the possible claims of the
general creditors of the Affiliated Companies, they shall not be
subject to forfeiture on account of any action by a participant or
by the Affiliated Companies, including termination of service on the
Board.
8. Transfer of Participant Accounts
A Participant may transfer to this Plan a participant
account held under the Company's Plan for the Deferral of Directors
Fees. In the event of any such transfer, the amounts will be
invested in accordance with the terms of this Plan and shall be paid
out in the medium provided for payments from this Plan. The
Participant's deferral election under the Plan for the Deferral of
Directors Fees shall otherwise remain irrevocable and shall govern
the time and method of payment of the transferred amounts.
No amounts held in this Plan, including amounts
transferred to it pursuant to the foregoing paragraph may be
transferred from this Plan to the Plan for the Deferral of Directors
Fees.
9. Payment of Deferred Amounts
No withdrawal may be made from a Participant Account
except as provided in this section 9. Payments from an Account
shall be made in a lump sum within 30 days following termination or
within 30 days following the close of the year in which termination
occurs in accordance with a participant's Election Form. For
purposes of this Plan, a Participant shall not be considered to have
terminated service if he or she leaves the Board of Directors of the
Company or any Affiliated Company but as of such departure or within
30 days thereafter becomes a Board member of any other such company
within the affiliated group. Termination instead shall occur only
when the Participant has terminated membership for at least 30 days
from all Affiliated Company Boards of Directors of the Company and
the Affiliated Companies.
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.
Notwithstanding the provisions of this section 9 or a
participant's Election Form regarding the time for payment of
benefits, the Administrator may, in its sole discretion, accelerate
payments in the light of an unforeseeable emergency. For this
purpose, an unforeseeable emergency is an unanticipated emergency
that is caused by an event beyond the control of the participant and
that would result in severe financial hardship to the participant if
early withdrawal were not permitted. Any early withdrawal pursuant
to this section 9 is limited to the amount needed to meet the
emergency.
10. Participants' Rights Unsecured
The maintenance of individual Participant Accounts is for
bookkeeping purposes only. The Company and the Affiliated Companies
may, but are not obligated to, acquire or set aside any particular
assets for the discharge of their obligations, nor is any
participant to have any property rights in any particular assets
held by any Affiliated Company, whether or not held for the purpose
of funding the obligations of the Affiliated Companies under this
Plan.
The right of any participant or his or her estate to
receive future payments under the provisions of this Plan shall be
an unsecured claim against the general assets of the Company or the
Affiliated Companies.
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.
12. Statement of Account
Statements will be sent to participants no less frequently
than annually as to the value of their Participant Accounts.
13. Assignability
No right to receive payments hereunder shall be
transferable or assignable by a participant, except by will or by
the laws of descent and distribution.
14. Amendment
This Plan may at any time or from time to time be amended,
modified or terminated by the Board of Directors of the Company. No
amendment, modification or termination shall accelerate payment of
amounts previously deferred, provide for additional benefits, or,
without the consent of a participant, adversely affect such
participant's accruals in his or her Participant Account.
15. Governing Law
This Plan and any participant elections hereunder shall be
interpreted and enforced in accordance with the laws of the State of
New York.
16. Effective Date
The effective date of this restated Plan is October 1,
1999.
IN WITNESS WHEREOF, the Company has caused its duly
authorized member to execute this Plan document on its behalf this
23rd day of September, 1999.
FRONTIER CORPORATION
/s/ Josephine S. Trubek
By ------------------------
Josephine S. Trubek
Corporate Secretary
Exhibit 10.2
FRONTIER CORPORATION
PLAN FOR THE DEFERRAL OF DIRECTORS FEES
Amendment No. 2
Pursuant to Section 14, the Plan is amended, effective
August 1, 1999, as follows:
1. Section 9 is amended by adding to the end of the first
paragraph thereof the following:
For purposes of this Plan, a Participant shall not be
considered to have terminated service if he or she leaves
the Board of Directors of the Company, its parent, its
subsidiaries or any other affiliated company but as of such
departure or within 30 days thereafter becomes a Board
member of any other such company within the affiliated
group. Termination instead shall occur only when the
Participant has terminated membership for at least 30 days
from all Boards of Directors of companies within the
affiliated group.
2. Effective August 1, 1999, the following new Section 17
is added to the end of the Plan:
17. Adoption by Parent
This Plan may be adopted by the Company's parent with
respect to one or more of the parent's directors. In the
event of such adoption, an eligible director of the parent
may defer fees earned for services on the parent's Board in
accordance with the provisions of this Plan. The Company
shall, however, continue to act as plan sponsor and plan
administrator of this Plan and continue to perform all
functions assigned herein specifically to the Company. The
phrase "the Company and its subsidiaries" in this Plan
shall, effective August 1, 1999, be changed to "the Company,
its parent and its subsidiaries."
IN WITNESS WHEREOF, the Company's Board of Directors has
caused its duly authorized representative to execute this
Amendment on its behalf this 16th day of August, 1999.
FRONTIER CORPORATION
By /s/ Josephine S. Trubek
----------------------------
Josephine S. Trubek
Corporate Secretary
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCEHDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
FRONTIER CORPORATION'S FINANCIAL STATEMENTS FOR THE NINE MONTH PERIOD
ENDED SEPTEMBER 30, 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> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> SEP-30-1999
<CASH> 135,145
<SECURITIES> 0
<RECEIVABLES> 530,075
<ALLOWANCES> 66,217
<INVENTORY> 4,802
<CURRENT-ASSETS> 644,023
<PP&E> 2,189,138
<DEPRECIATION> 0
<TOTAL-ASSETS> 11,059,016
<CURRENT-LIABILITIES> 750,974
<BONDS> 1,800,651
0
0
<COMMON> 1
<OTHER-SE> 8,385,866
<TOTAL-LIABILITY-AND-EQUITY> 11,059,016
<SALES> 0
<TOTAL-REVENUES> 1,995,556
<CGS> 0
<TOTAL-COSTS> 1,760,995
<OTHER-EXPENSES> 74,519
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 48,739
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</TABLE>
