UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark one)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1998
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 0-21519
International Telecommunication Data Systems, Inc.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 06-1295986
- -------------------------------------------------------------- ------------------------------------
(State or other jurisdiction of incorporation or organization) (I.R.S. employer identification no.)
225 High Ridge Road, Stamford, CT 06905
- -------------------------------------------------------------- ------------------------------------
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code (203) 329-3300
--------------
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.
Class Outstanding at May 7, 1998
- ------------------------------------ -------------------------------
Common Stock, $.01 par value 13,537,569
<PAGE>
International Telecommunication Data Systems, Inc.
and Subsidiaries
Form 10-Q
Index
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<S> <C>
Part I. Financial Information Page No.
Item 1. Financial Statements (unaudited)
Consolidated balance sheets--March 31, 1998 and December 31, 1997......................1
Consolidated statements of operations--three months ended
March 31, 1998 and 1997..............................................................3
Consolidated statements of cash flows--three months ended
March 31, 1998 and 1997..............................................................4
Notes to consolidated financial statements.............................................5
Item 2. Management's Discussion and Analysis of Financial Condition,
Results of Operations, and Certain Factors That May Affect Future Results.................8
Part II. Other Information
Item 1. Legal Proceedings...............................................................11
Item 2. Changes in Securities and Use of Proceeds.......................................11
Item 4. Submission of Matters to a Vote of Security Holders.............................12
Item 6. Exhibits and Reports on Form 8-K................................................12
Signatures......................................................................13
</TABLE>
<PAGE>
Part I. Financial Information
Item 1. Financial Statements
International Telecommunication Data Systems, Inc. and Subsidiaries
Consolidated Balance Sheets
(In thousands)
<TABLE>
<CAPTION>
March 31 December 31
1998 1997
------------------------------------
(Unaudited) (See Note)
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 7,720 $ 28,967
Accounts receivable, net of allowances for doubtful accounts of
$1,766 and $486, respectively 24,748 5,008
Prepaid expenses, and other current assets 1,016 741
Deferred income taxes 585 220
------------------------------------
Total current assets 34,069 34,936
Property and equipment
Computers, including leased property under capital leases of
$1,105 in 1998 and 1997 7,976 4,844
Furniture and fixtures, including leased property under capital
leases of $33 in 1998 and 1997 1,675 447
Equipment, including leased property under capital leases of $54
in 1998 and 1997 373 373
Leasehold improvements 970 589
------------------------------------
10,994 6,253
Less: accumulated depreciation and amortization 3,143 2,319
------------------------------------
7,851 3,934
Other assets:
Goodwill - net of accumulated amortization of $861 in 1998 48,749 --
Product development costs-at cost, net of accumulated
amortization of $2,066 and $1,105 respectively 20,962 3,698
Deferred taxes 5,394 --
Other 2,604 1,884
------------------------------------
77,709 5,582
------------------------------------
Total assets $ 119,629 $ 44,452
====================================
</TABLE>
See notes to financial statements.
Page 1
<PAGE>
<TABLE>
<CAPTION>
March 31 December 31
1998 1997
------------------------------------
(Unaudited) (See Note)
<S> <C> <C>
Liabilities and stockholders' equity
Current liabilities:
Accounts payable $ 3,318 $ 1,192
Accrued expenses and income taxes payable 6,057 560
Accrued compensation 2,287 333
Deferred revenue 446 --
Current maturities of capital lease obligations 225 279
------------------------------------
Total current liabilities 12,333 2,364
Long term debt 70,000 --
Capital lease obligations 35 73
Deferred income taxes -- 1,667
Other 19 30
Stockholders' equity
Common Stock, $.01 par value; 40,000,000 shares authorized,
13,426,459 and 12,786,740 shares issued and outstanding at
March 31, 1998 and December 31, 1997, respectively 134 128
Additional paid-in capital 54,754 44,447
Retained deficit (17,530) (4,026)
Unearned compensation (116) (231)
------------------------------------
Total stockholders' equity 37,242 40,318
------------------------------------
Total liabilities and stockholders' equity $119,629 $44,452
====================================
</TABLE>
Note: The balance sheet at December 31, 1997 has been derived from the
audited financial statements at that date but does not include all of
the information and footnotes required by generally accepted accounting
principles for complete financial statements.
Page 2
<PAGE>
International Telecommunication Data Systems, Inc. and Subsidiaries
Consolidated Statements of Operations
(In thousands except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three months ended
March 31,
1998 1997
-----------------------------------
<S> <C> <C>
Revenue $ 26,006 $ 5,270
Costs and expenses:
Operating expenses 10,261 1,321
General, administrative and selling expenses 5,025 1,541
Depreciation and amortization 2,647 346
Systems development and programming costs 3,471 624
In-process R&D & indirect acquisition costs 24,986 --
-----------------------------------
46,390 3,832
Operating income (loss) (20,384) 1,438
Other income 225 414
Interest expense (1,505) (49)
-----------------------------------
Income (loss) before income tax expense (21,664) 1,803
Income tax expense (benefit) (8,159) 741
-----------------------------------
Net income (loss) $(13,505) $ 1,062
===================================
Income (loss) per common share- basic:
Net income (loss) $ (1.01) $ .08
===================================
Shares used in computing basic income (loss) per common share 13,406 12,655
===================================
Income (loss) per common share- diluted:
Net income (loss) $ (1.01) $ .08
===================================
Shares used in computing diluted income (loss) per common share 13,406 12,856
===================================
</TABLE>
See notes to financial statements.
Page 3
<PAGE>
International Telecommunication Data Systems, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three months ended
March 31,
1998 1997
----------------------------------
<S> <C> <C>
Operating activities
Net income loss before extraordinary loss $ (13,505) $ 1,062
Adjustments to reconcile net income before extraordinary loss to
net cash provided by operating activities:
Write off of in-process R&D 20,800 --
Depreciation and amortization 2,704 346
Deferred taxes (7,426) 104
Stock option compensation expense 116 21
Change in operating assets and liabilities:
Accounts receivable (14,030) (302)
Prepaid expenses (72) 334
Accounts payable, accrued expenses and accrued compensation 3,192 887
Customer & employee advances (651) --
Other assets and liabilities, net 6 (170)
----------------------------------
Net cash provided (used) by operating activities (8,866) 2,282
Investing activities
Capital expenditures (1,531) (1,552)
Purchase of Intelicom (77,275) --
Purchase of securities available for sale -- (2,988)
Purchase of investments -- (1)
Proceeds from maturities of investments -- 300
Product development costs (2,426) (285)
----------------------------------
Net cash used for investing activities (81,232) (4,526)
Financing activities
Principal payment on long term debt (92) (129)
Proceeds from sale of common stock 313 6
Financing fees paid (1,370) --
Proceeds from long term debt 70,000 --
----------------------------------
Net cash provided (used) for financing activities 68,851 (123)
----------------------------------
Net decrease in cash and cash equivalents (21,247) (2,367)
Cash and cash equivalents at beginning of period 28,967 4,139
----------------------------------
Cash and cash equivalents at end of period $ 7,720 $ 1,772
==================================
Supplemental disclosures of cash flow information:
Cash paid during the period for interest $ 1,291 $ 49
Cash paid during the period for taxes 465 154
Supplemental disclosure of noncash investing and
financial activities:
The Company issued 606,673 shares of its common stock, valued at $10 million to
CSC as partial financing of the Intelicom Acquisition.
</TABLE>
See notes to financial statements.
Page 4
<PAGE>
International Telecommunication Data Systems, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Unaudited)
1. Basis of Presentation
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three month period ended March 31, 1998
are not necessarily indicative of the results that may be expected for the year
ended December 31, 1998. For further information, refer to the financial
statements and footnotes thereto included in the International Telecommunication
Data Systems, Inc. (the "Company" or "ITDS") Annual Report on Form 10K/A for the
year ended December 31, 1997.
Consolidation
The consolidated financial statement include the accounts of the Company and its
wholly-owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated.
On January 2, 1998, the Company acquired a subsidiary ("Intelicom") of Computer
Sciences Corporation ("CSC"), a provider of billing and customer care software,
by acquiring all of the outstanding Capital Stock of CSC Intelicom Inc. (now
known as ITDS Intelicom Services, Inc.). The purchase price consisted of 606,673
shares of Common Stock of the Company valued at $10 million and $75.8 million in
cash plus a future contingent payout of up to $6 million. A portion of the cash
purchase price for Intelicom was obtained by the Company under a credit
agreement dated January 2, 1998, with certain lenders and Lehman Commercial
Paper, Inc., as Administrative Agent and Arranger (the "Credit Agreement"). The
Company subsequently amended the Credit Agreement with an Amended and Restated
Credit Agreement dated as of March 18, 1998 among the Company, Intelicom, the
Lenders party thereto, First Union National Bank as Administrative Agent, and
Lehman Commercial Paper, Inc. as Arranger (the "Amended Credit Agreement") which
provides for a $70 million term loan and a $30 million line of credit. The
Amended Credit Agreement contains normal covenants which include meeting certain
financial ratios, requires the Company to pay interest at LIBOR plus up to two
and one quarter percent and requires payments of interest only through March 30,
2000, at which time periodic principal payments become due.
During the quarter ended March 31, 1998, the Company entered into a hedging
agreement with a third party, expiring in March 2001, to limit exposure to
interest rate volatility on the Amended Credit Agreement (the "Hedge
Agreement"). The transaction has a notional principal amount of $35 million. The
Company pays an interest rate of 5.76% in exchange for the LIBOR portion of the
Amended Credit Agreement. In addition, the Company has granted the counterparty
the option to cancel the Hedge Agreement in March 2000. The Company monitors the
risk of default by the counterparty and does not anticipate non-performance. As
of March 31, 1998, the cost of canceling the Hedge Agreement is estimated to be
$35 thousand.
Operating costs and expenses for the quarter ended March 31, 1998 include
approximately $25 million ($1.15 per share after tax benefit) of non-recurring
in process research and development costs ($20.8 million), hiring, bonus and
other employment related costs associated with the acquisition of Intelicom
($3.4 million) and other indirect costs of the acquisition ($.8 million).
Page 5
<PAGE>
International Telecommunication Data Systems, Inc. and Subsidiaries
Notes to Consolidated Financial Statements (continued)
(Unaudited)
1. Basis of Presentation (continued)
The Company's results of operations include Intelicom from January 2, 1998, the
date of acquisition. Pro forma results for the quarter ended March 31, 1997, as
if the acquisition occurred on January 1, 1997, would have been revenues of
$17.8 million and net income of $1.6 million or $.12 per diluted share. The pro
forma financial results are not necessarily indicative of the results which
would have occurred if the acquisition had been in effect on the date indicated.
Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the amounts reported in the financial statements and accompanying notes.
Actual results could differ from those estimates.
2. Income Tax
Income tax provisions for interim periods, other than unusual items, are based
on estimated effective annual income tax rates. The Company recognizes deferred
tax assets and liabilities for the expected future tax consequences of temporary
differences between the tax bases, projected state tax rates and financial
reporting bases of assets and liabilities.
The differences between the effective tax rate and the federal statutory rate is
primarily a result of state income taxes and the tax benefit anticipated in
connection with the nonrecurring costs associated with the Intelicom
acquisition.
3. Earnings Per Share
In February 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 128, Earnings Per Share
"FAS 128", which revises the methodology of calculating earnings per share. The
Company adopted FAS 128 in the fourth quarter of 1997. Earnings per share for
the quarter ended March 31, 1997 did not change as a result of the restatement
to conform with FAS 128. For the quarter ended March 31, 1998 the effects of
common stock equivalents were antidilutive and therefore diluted earnings per
share is the same as basic earnings per share. For the quarter ended March 31,
1997, shares used in computing basic and diluted income (loss) per share differ
by the effect of common stock equivalents (201 thousand shares).
Stock Split
The Company effected a three-for-two stock split, in the form of a 50% stock
dividend, distributed on March 9, 1998 to stockholders of record on February 23,
1998. Accordingly, all share and per share amounts have been adjusted to reflect
this split.
4. Comprehensive Income
As of January 1, 1998, the Company adopted SFAS 130, Reporting Comprehensive
Income ("FAS 130"). FAS 130 establishes new rules for the reporting and display
of comprehensive income and its components.
Page 6
<PAGE>
International Telecommunication Data Systems, Inc. and Subsidiary
Notes to Consolidated Financial Statements (continued)
(Unaudited)
4. Comprehensive Income (continued)
Other comprehensive income (loss) for the three months ended March 31, 1998 and
1997 is comprised of the following (in thousands):
Three months ended
March 31
1998 1997
--------------------------
Net income (loss) as reported $(13,505) $1,062
Unrealized loss on available for sale securities -- (161)
--------------------------
Other comprehensive income (loss) $(13,505) $ 901
==========================
As of March 31, 1998, the Company had no accumulated other comprehensive income
(loss).
5. Officer, Director and Employee Loans
As of March 31, 1998, prepaid expenses and other current assets and other
long-term assets include approximately $1 million of loans and advances to
certain officers, directors and employees of the Company. As of May 8, 1998, $.5
million has been repaid.
6. Legal Proceedings
The Company and certain of its subsidiaries are defendants in legal proceedings
incidental to its business. Although the ultimate disposition of these
proceedings is not presently determinable, management does not expect the
outcome to have a material adverse impact on the Company's financial position or
results of operations.
Intelicom, a wholly-owned subsidiary of the Company acquired in January 1998
from CSC, is party to litigation and has been threatened with litigation in
connection with the operation of its business prior to its acquisition by the
Company. Pursuant to the terms of the acquisition agreement, CSC and certain of
its affiliates are obligated to defend and indemnify the Company against
obligations arising out of such litigation or threatened litigation.
The Company does not believe that any liabilities relating to any of the legal
proceedings to which it is a party are likely to be, individually or in the
aggregate, material to its consolidated financial position or results of
operations.
7. Subsequent Event
During May 1998, the Company filed a registration statement with the Securities
and Exchange Commission for the sale of 3,750,000 shares by the Company. In
addition, the Company has granted the underwriters an option to purchase up to
an aggregate of 562,500 additional shares of common stock. Proceeds from the
proposed sale will be used to repay the term loan under the Amended Credit
Agreement and for working capital and other general corporate purposes.
Page 7
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition, Results of
Operations, and Certain Factors that May Affect Future Results
Overview
The Company is a leading provider of comprehensive billing, customer care and
management information solutions to providers of wireless and satellite
telecommunications services. On January 2, 1998, the Company acquired a
subsidiary ("Intelicom") of Computer Sciences Corporation ("CSC") (the
"Intelicom Acquisition"), for 606,673 shares of the Company's common stock
(valued at $10 million) and $75.8 million in cash, plus a future contingent
payment of up to $6 million. Intelicom provides complete billing and customer
care solutions for the wireless communication industry, including cellular, PCS,
paging and ESMR. The Intelicom Acquisition positions the Company as a provider
of billing service to wireless carriers and resellers in 29 of the top 30
markets in the United States.
The Company derives substantially all of its revenue (i) primarily from service
contracts, which are generally billed monthly, under which a customer contracts
with the Company to operate and maintain such customer's transactional billing
system; and (ii) to a lesser extent, from the development of new software, the
enhancement of existing installed systems and the provision of related customer
maintenance and training, which are largely billed on a time and materials
basis. Service revenue is recognized in the period in which the services are
provided and software development revenue is recognized at the time the services
are performed.
Operating expenses are comprised primarily of the salaries and benefits of
technical service representatives, operations personnel, quality assurance
representatives and consultants as well as costs to produce and distribute
invoices for customers.
General, administrative and selling expenses consist mainly of the salaries and
benefits of management and administrative personnel in addition to general
office administration expenses (rent and occupancy, telephone and other office
supply costs) of the Company.
The Company capitalizes software development costs incurred in the development
of software used in its product and service line only after establishing
commercial and technical viability and ceases capitalizing such costs when the
product is available for general release. The capitalized costs include salaries
and related payroll costs incurred in the development activities. Software
development costs are carried at cost less accumulated amortization.
Amortization is computed by using the greater of the amount that results from
applying the ratio of current revenue for the product over total revenue for the
product or the straight-line method over the remaining useful life of the
product. Generally, such deferred costs are amortized over five years.
Results of Operations
Primarily as a result of the Intelicom Acquisition, the number of subscribers
supported by the Company increased from approximately 735,000 in January 1997 to
approximately 4.6 million in January 1998 and the Company's revenues increased
from $5.3 million for the quarter ended March 31, 1997 to $26.0 million for the
quarter ended March 31, 1998. In addition, during the quarter ended March 31,
1998, the Company incurred non-recurring in process R&D and indirect costs
associated with the Intelicom Acquisition aggregating $25 million and its total
operating costs and expenses (excluding the non-recurring costs) increased from
$3.8 million for the quarter ended March 31, 1997 to $21.4 million for the
quarter ended March 31, 1998. Additionally, interest expense increased from $49
thousand for the quarter ended March 31, 1997 to $1.5 million for the quarter
ended March 31, 1998 as a result of the Company's $70 million term loan obtained
in connection with the Intelicom Acquisition. The Company's effective tax rate
declined to 37.7% for the quarter ended March 31, 1998 from 41.1% for the
quarter ended March 31, 1997 primarily due to the amount of tax benefit
anticipated in connection with the non-recurring costs associated with the
Intelicom Acquisition.
Page 8
<PAGE>
On a pro forma basis, including the Intelicom Acquisition, revenues for the
quarter ended March 31, 1997 were $17.8 million compared to actual revenues for
the quarter ended March 31, 1998 of $26.0 million. This increase of 46.4% is due
primarily to the growth of recurring revenue from existing customers. Total pro
forma operating costs and expenses, including the Intelicom Acquisition, for the
quarter ended March 31, 1997 were $13.8 million compared to actual operating
costs and expenses for the quarter ended March 31, 1998 of $21.4 million
excluding nonrecurring in process R&D and indirect costs associated with the
Intelicom Acquisition. This increase of 54.7% is due primarily to the increased
service and systems support necessary for the growing client base, provided in
part by outside contractors.
Liquidity and Capital Resources
The Company has financed its operations primarily through placements of debt and
equity securities, cash generated from operations and equipment financing
leases.
As of March 31, 1998, the Company had $7.7 million in cash and cash equivalents,
$24.7 million in net trade accounts receivable and $21.7 million in working
capital.
For the quarter ended March 31, 1998, cash and cash equivalents decreased by
$21.2 million. This decrease is primarily a result of the cash payment in
connection with the Intelicom Acquisition and the requirement to fund
Intelicom's accounts receivable which were retained by CSC at the date of
acquisition. The decline in working capital since December 31, 1997 ($10.8
million) is also attributable to the Intelicom Acquisition. These decreases were
partially offset by the proceeds of long-term debt which was used to partially
finance the Intelicom Acquisition.
As discussed above, on January 2, 1998, the Company acquired ITDS Intelicom
Services, Inc. for 606,673 shares of Common Stock of the Company (valued at $10
million) and $75 million in cash plus a future contingent payment of up to $6
million. A portion of the cash purchase price for Intelicom was obtained by the
Company under a Credit Agreement dated January 2, 1998, with certain lenders and
Lehman Commercial Paper, Inc., as Administrative Agent and Arranger (the "Credit
Agreement"). The Company subsequently amended the Credit Agreement with the
Amended and Restated Credit Agreement dated as of March 18, 1998 among the
Company, Intelicom, the Lenders party thereto, First Union National Bank as
Administrative Agent, and Lehman Commercial Paper, Inc. as arranger (the
"Amended Credit Agreement"), that provides for a $70 million term loan and a $30
million line of credit. The Credit Agreement contains normal covenants which
include meeting certain financial ratios, requires the Company to pay interest
at LIBOR plus up to two and one quarter percent and requires payments of
interest only through March 30, 2000, at which time periodic principal payments
become due. In addition, the Company has entered into a hedging agreement with a
third party to limit exposure to interest rate volatility on the Amended Credit
Agreement.
On May 1, 1998, the Company filed a Registration Statement for the sale of
3,750,000 shares of Common Stock by the Company. In addition, the Company has
granted the underwriters an option to purchase up to an aggregate of 562,500
additional shares of Common Stock. Proceeds from the proposed sale will be used
to repay the term loan and for working capital and other general corporate
purposes.
The Company believes that its existing capital resources are adequate to meet
its cash requirements for the foreseeable future. There can be no assurance,
however, that changes in the Company's plans or other events affecting the
Company's operations will not result in accelerated or unexpected expenditures.
The Company may seek additional funding through public or private financing.
There can be no assurance, however, that additional financing will be available
from any of these sources or will be available on terms acceptable to the
Company.
To date, inflation has not had a significant impact on the Company's operations.
Page 9
<PAGE>
Year 2000 Disclosure
The Company is preparing all of its software products and internal computer
systems to be Year 2000 compliant. A compliance task force has been established,
and is currently identifying and developing conversion strategies for the
Company's systems. The Company expects to replace some of its systems and to
upgrade others. The Company currently estimates the compliance effort, including
planning, implementation and testing, to cost approximately $2 million to $3
million, and expects that a substantial portion of this expenditure will occur
in 1998. Although the Company does not expect the cost to have a material
adverse effect on its business or future results of operations, there can be no
assurance that the Company will not be required to incur significant
unanticipated costs in relation to its compliance obligations. The Company
currently estimates that compliance will be achieved in early 1999, however,
there can be no assurances that the Company will be able to complete the
conversion in a timely manner or that third party software suppliers will be
able to timely provide Year 2000 compliant products for the Company to install.
Certain Factors That May Affect Future Results
In June 1997, the Financial Accounting Standards Board ("FASB") issued Statement
of Financial Accounting Standards (SFAS) No. 131, "Disclosures about Segments of
an Enterprise and Related Information." While the Company is studying the
application of the disclosure provisions, the statement will not affect its
consolidated financial position or results of operations.
This quarterly report contains forward-looking statements that involve risks and
uncertainties. The Company's actual results may differ significantly from the
results discussed in the forward-looking statements. A number of uncertainties
exist that could affect the Company's future operating results, including,
without limitation, changes in the telecommunications market, the Company's
ability to successfully complete its Year 2000 efforts, the Company's ability to
retain existing customers and attract new customers, the Company's continuing
ability to develop products that are responsive to the evolving needs of its
customers, increased competition, changes in operating expenses, changes in
government regulation of the Company's clients and general economic factors.
The Company's quarterly operating results may fluctuate from quarter to quarter
depending on various factors, including the impact of significant start-up costs
associated with initiating the delivery of contracted services to new clients,
the hiring of additional staff, new product development and other expenses,
introduction of new products by competitors, pricing pressures, the evolving and
unpredictable nature of the markets in which the Company's products and services
are sold and general economic conditions.
The market for the Company's products and services is highly competitive, and
competition is increasing as additional market opportunities arise.
Reference is made to the more detailed discussion of the risks associated with
the Company's business contained under the heading "Risk Factors" in the
Company's Registration Statement on Form S-3, as amended (Registration No.
333-51669), filed with the Securities and Exchange Commission on May 11, 1998.
Page 10
<PAGE>
Part II: Other Information
Item 1.
Legal Proceedings
On April 2, 1998, the Company was served with a complaint in Connecticut
Superior Court alleging that the Company had breached the terms of its
employment contract with Alan K. Greene, the Company's former Chief Financial
Officer, and breached other obligations to Mr. Greene. The Company intends to
vigorously defend itself in the action and is currently preparing a response to
the claim and a counterclaim against Mr. Greene.
In addition, Intelicom, a wholly-owned subsidiary of the Company acquired in
January 1998 from CSC is party to litigation and has been threatened with
litigation in connection with the operation of its business prior to its
acquisition by the Company. Pursuant to the terms of the Intelicom Acquisition,
CSC and certain of its affiliates are obligated to defend and indemnify the
Company against obligations arising out of such litigation or threatened
litigation.
The Company does not believe that any liabilities relating to any of the legal
proceedings to which it is a party are likely to be, individually or in the
aggregate, material to its consolidated financial position or results of
operations.
Item 2.
Changes in Securities and Use of Proceeds
On January 2, 1998, the Company issued 606,673 shares of the Company's Common
Stock (the "Acquisition Shares") to CSC Domestic Enterprises, Inc. ("CSC
Domestic") as partial consideration for all of the outstanding shares of capital
stock of CSC Intelicom, Inc., now known at ITDS Intelicom Services, Inc. The
Acquisition Shares were issued pursuant to an exemption from the registration
under Section 4(2) of the Securities Act of 1933, as amended. CSC Domestic has
knowledge and experience in financial and business matters such that it was
capable of evaluating the merits and risks of the investment. CSC Domestic had
adequate opportunity to obtain all relevant information regarding the Company
necessary to evaluate the investment and represented that it was acquiring the
Acquisition Shares for investment. There was no general solicitation or
advertising involved and the Company used reasonable care to assure that CSC
Domestic was not an underwriter.
The Registration Statement on Form S-1 (File No. 333-11045) relating to the
Company's initial public offering (the "Offering") was declared effective on
October 24, 1996. From the effective date of the Registration Statement through
March 31, 1998, the net Offering proceeds of $30.7 million have been used as
follows: $8.6 million for the Intelicom Acquisition $3.3 million for repayment
of indebtedness, $1.8 million for capital expenditures, $3.9 million for product
development and $13.1 million for working capital purposes. All of such payments
were direct or indirect payments to persons other than directors, officers,
general partners of the Company or their associates persons owning ten percent
or more of any class of equity securities of the Company; or affiliates of the
Company.
Page 11
<PAGE>
Part II: Other Information (continued)
Item 4.
Submission of Matters to a Vote of Security Holders
At the Company's Annual Meeting of Stockholders held on April 13, 1998, the
following proposals were adopted by the vote specified below:
<TABLE>
<CAPTION>
Against or Broker
Proposal For Withheld Abstain Non-Votes
<S> <C> <C> <C> <C> <C>
1. Election of Class II
Directors:
Lewis D. Bakes 7,812,706 -- -- --
Peter P. Bassermann 7,812,706 -- -- --
2. Approve and adopt the 4,180,266 2,344,168 10,531 --
corporations 1998 Stock
Incentive Plan
3. Ratification of Ernst 7,873,083 110 22,000 --
& Young LLP as
independent auditors
</TABLE>
Item 6.
Exhibits and Reports on Form 8-K
(a) Exhibits
The exhibits are listed in the accompanying index to exhibits immediately
following the signature page.
(b) Reports on Form 8-K
On January 13, 1998, the Company filed a Current Report on Form 8-K and
an amendment thereto on Form 8-K/A on March 18, 1998 announcing under
Item 2 (Acquisition or Disposition of Assets) that the Company had
acquired all of the outstanding stock of Intelicom pursuant to a Stock
Purchase Agreement dated as of December 29, 1997.
The Company filed the following financial statements with the Current
Report on Form 8-K and 8-K/A:
Report of Independent Auditors
ITDS Intelicom Services, Inc. Balance Sheets as of March 28, 1997 and
January 2, 1998
ITDS Intelicom Services, Inc. Statements of Operations and
Shareholders' Net Investment for the years ended March 29, 1996,
March 28, 1997 and the 39 week period ended January 2, 1998
ITDS Intelicom Services, Inc. Statements of Cash Flows for the
years ended March 2, 1996, March 28, 1997 and the 39 week period
ended January 2, 1998
ITDS Intelicom Services, Inc. Notes to Financial Statements
Unaudited Pro Forma Consolidated Balance Sheet as of December 31,
1997
Unaudited Pro Forma Consolidated Statement of Income for the year
ended December 31, 1997
Notes to Unaudited Pro Forma Consolidated Financial Statements
Page 12
<PAGE>
Signatures
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.
International Telecommunication
Data Systems, Inc.
---------------------------------------
(Registrant)
By /s/ Paul K. Kothari
---------------------------------------
Paul K. Kothari
(Chief Financial Officer and Duly
Authorized Officer)
Date May 13, 1998
---------------------------------------
Page 13
<PAGE>
Exhibits
The exhibits filed as part of this report on Form 10-Q are as follows:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------------------- ---------------------------------------------------------------------------------------------------------
<S> <C>
*2 Stock Purchase Agreement, dated as of December 29, 1997 by and among the Registrant,
CSC Intelicom, Inc. and CSC Domestic Enterprises, Inc.
**+10.1 1998 Stock Incentive Plan.
**+10.2 Employment Agreement between the Registrant and Peter P. Bassermann, dated as of September 3, 1997,
and amendment thereto, dated as of January 1, 1998.
**+10.3 Employment Agreement between the Registrant and Lewis D. Bakes, dated as of January 1, 1998.
**+10.4 Employment Agreement between the Registrant and Peter L. Masanotti, dated as of January 1, 1998.
**10.5 Security Agreement, dated as of January 2, 1998 among the Registrant, each of the subsidiaries
of the Registrant, and Lehman Commercial Paper Inc.
**10.6 Guarantee Assumption Agreement, dated as of January 2, 1998 by ITDS Intelicom Services, Inc.
in favor of Lehman Commercial Paper Inc.
10.7 Swap Transaction Confirmation dated March 5, 1998 between the Registrant and First Union
National Bank.
10.8 LCPI Assignment Agreement dated March 18, 1998 between Lehman Commercial Paper Inc.
in its capacity as administrative agent, as assignor, and First Union National Bank, as assignee.
10.9 Amended and Restated Credit Agreement dated March 18, 1998 among the Registrant, the Subsidiary
Guarantors party thereto, the Lenders party thereto, First Union National
Bank, as Administrative Agent, and Lehman Commercial Paper Inc., as Arranger.
27.1 Financial Data Schedule, for the three month period ended March 31, 1998.
</TABLE>
- --------------------
* Incorporated by reference to the Registrant's Report on
Form 8-K originally filed with the Commission on January
13, 1998.
** Incorporated by reference to the Registrant's Report on
Form 10-K, originally filed with the Commission on March
10, 1998.
+ Management Contract or Compensatory Plan.
Page 14
SWAP TRANSACTION
CONFIRMATION
Date: March 5, 1998
To: INTERNATIONAL TELECOMMUNICATION DATA SYSTEMS, INC.
("Counterparty")
Address: 225 High Ridge Road
Stamford, CT 06905
Fax: (203) 323-1314
Attention: Paul K. Kothari
From: FIRST UNION NATIONAL BANK ("First Union")
Ref. No. 74169/96076,82
Dear Mr. Kothari:
This confirms the terms of the Transaction described below between Counterparty
and First Union. This Transaction is subject to the 1991 ISDA Definitions
published by the International Swaps and Derivatives Association, Inc. ("ISDA
Definitions"), which are incorporated herein by reference. Fixed Amounts and
Floating Amounts for each applicable Payment Date hereunder will be calculated
in accordance with the ISDA Definitions, and if any Fixed Amount and Floating
Amount are for the same Payment Date hereunder, then those amounts shall not be
payable and instead the Fixed Rate Payer shall pay the positive difference, if
any, between the Fixed Amount and the Floating Amount, and the Floating Rate
Payer shall pay the positive difference, if any, between the Floating Amount and
the Fixed Amount.
<TABLE>
<S> <C>
Transaction Type: Interest Rate Swap
- -----------------
Currency for Payments: U.S. Dollars
- ----------------------
National Amount: $35,000,000.00
- ----------------
Term:
- -----
Trade Date: March 4, 1998
Effective Date: March 11, 1998
Termination Date: March 12, 2001 provided that First Union shall
have the right to change the Termination Date to
March 11, 2000, by giving notice (which may be
telephonic notice) to the Counterparty on or before
the 2nd New York Business Day prior to such
date. The Termination Date is subject to the
Modified Following Business Day Convention.
Telephonic Notice: Counterparty hereby agrees to receive oral
telephonic notices at (203) 329-3300. Any notice
from First Union exercising its right to change the
Termination Date shall be deemed given if the
attempt by First Union to give such notice is
<PAGE>
incomplete due to the unavailability of any means
for receiving it at any such number, whether by an
appropriate person or by an electronic device.
Fixed Amounts:
- --------------
Fixed Rate Payer: Counterparty
Payment Dates: Quarterly on the 11th day of each June,
September, December, and March commencing
June 11, 1998, through and including the
Termination Date.
Business Day Convention: Modified Following
Business Day: New York
Fixed Rate: 5.76%
Fixed Rate Day Count Fraction: Actual/360
Floating Amounts:
- -----------------
Floating Rate Payer: First Union
Payment Dates: Quarterly on the 11th day of each June,
September, December, and March commencing
June 11, 1998, through and including the
Termination Date.
Business Day Convention: Modified Following
Business Day: New York
Floating Rate for initial
Calculation Period: Determined two London Banking Days before the
Effective Date
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 3 Months
Spread: None
Floating Rate Day
Count Fraction: Actual/360
Floating Rate determined: Two London Banking Days prior to each Reset Date
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Rounding convention: 5 decimal places per the ISDA Definitions
Calculation Agent: First Union
- ------------------
Payments to First Union:
- ------------------------ First Union Charlotte
Capital Markets
Attention: Derivatives Desk
Fed. ABA No. 053000219
Ref. No.: 74169/96076,82
First Union Contacts: Settlements and/or Rate Resets:
- --------------------- Tel.: (800) 249-3865
Fax: (704) 383-9139
Documentation and/or Collateral:
Tel.: (704) 383-5678
Fax: (704) 383-9139
-2-
<PAGE>
Please quote transaction reference number.
First Union Address: One First Union Center
- -------------------- 301 South College Street DC-4
Charlotte, NC 28288-0601
Payments to Counterparty: Please forward payment instructions to First
- ------------------------- Union in Charlotte, NC. Payments will not be
made to Counterparty without its written
instructions.
</TABLE>
Documentation
- -------------
This Confirmation is a binding and complete contract between the parties,
provided that if at any time there exists a master agreement (however described)
between the parties governing this Transaction ("Master Agreement"), this
Confirmation supplements, forms part of and will be governed by the Master
Agreement. Unless otherwise provided in the Master Agreement, this Confirmation
is governed by the law (and not the law of conflicts) of the State of New York.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing a copy of this Confirmation and returning it to us.
Very truly yours,
FIRST UNION NATIONAL BANK
By: /s/ Norman Heusser
--------------------------------
Name: Norman Heusser
Title: Vice President
By: /s/ Ryan S. Hale
--------------------------------
Name: Ryan S. Hale
Title: Capital Markets Officer
Accepted and confirmed as of the date first above written:
INTERNATIONAL TELECOMMUNICATION DATA SYSTEMS, INC.
By: /s/ Paul K. Kothari
----------------------
Name: Paul K. Kothari
Title: CFO
- 3 -
LCPI ASSIGNMENT AGREEMENT
LCPI ASSIGNMENT AGREEMENT dated as of March 18, 1998 between
LEHMAN COMMERCIAL PAPER INC., solely in its capacity as administrative agent for
the Lenders (as defined below)(the "Administrative Agent"), as assignor
hereunder and FIRST UNION NATIONAL BANK ("First Union"), as assignee hereunder.
The Administrative Agent is party to a Credit Agreement dated
as of January 2, 1998 (as amended, supplemented and otherwise modified and in
effect to but excluding the date hereof, the "Credit Agreement") between
International Telecommunication Data Systems, Inc., a corporation duly organized
and validly existing under the laws of the State of Delaware (the "Borrower");
ITDS Intelicom Services, Inc., a corporation duly organized and validly existing
under the laws of the State of Delaware ("Intelicom" and, together with the
Borrower, the "Obligors"); each of the lenders signatory thereto (individually,
a "Lender" and, collectively, the "Lenders"); and the Administrative Agent.
The Administrative Agent proposes to assign and transfer to
First Union and First Union proposes to acquire and assume from the
Administrative Agent, all of the rights, obligations and interest of the
Administrative Agent under each of the Loan Documents (as defined in the Credit
Agreement).
Accordingly, in consideration of the premises and the mutual
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1 Definitions. As used herein, "LCPI Assignment Date"
shall mean the first date on which each of the conditions to effectiveness set
forth in Section 4 hereof shall have been satisfied. Terms used but not defined
herein shall have the respective meanings ascribed to such terms in the Credit
Agreement.
Section 2. Successor Administrative Agent; Assignment. On the
terms and conditions set forth herein, effective on and as of the LCPI
Assignment Date, (a) Lehman Commercial Paper Inc. hereby resigns as the
Administrative Agent (the Administrative Agent, in its retiring agency capacity
to be referred to herein as the "Retiring Administrative Agent") and the
Majority Lenders hereby appoint First Union as successor Administrative Agent
pursuant to Section 11.08 of the Credit Agreement, and (b) the Retiring
Administrative Agent hereby assigns and transfers to First Union, as successor
Administrative Agent, all of the right, title and interest of the Retiring
Administrative Agent in, to and under, and First Union as successor
Administrative Agent hereby acquires all of the right, title and interest in, to
and under, and hereby assumes all of the obligations of the Retiring
Administrative Agent occurring from and after the LCPI Assignment Date under,
each of the Loan Documents (the "Assigned Interest").
LCPI Assignment Agreement
-------------------------
<PAGE>
First Union agrees with the Lenders that First Union will,
from and after the LCPI Assignment Date, perform all of the obligations of the
Administrative Agent under each of the Loan Documents (First Union, in its
successor agency capacity to be referred to herein as the "Successor
Administrative Agent"). From and after the LCPI Assignment Date the Retiring
Administrative Agent shall be released from the obligations of the
Administrative Agent under each of the Loan Documents.
Section 3. Representations and Warranties. The Administrative
Agent, as assignor, represents and warrants to First Union, as assignee, that
(i) the Administrative Agent has heretofore delivered to First Union true copies
of all Loan Documents as amended, modified and supplemented to, and as in effect
on, the date hereof and such Loan Documents constitute the sole agreements or
instruments evidencing or governing the Assigned Interest and there are no other
material agreements or understandings with the Borrower binding on the
Administrative Agent with respect to the Assigned Interest; (ii) all interest on
the Revolving Loans and the Term Loans, all commitment fees and other fees (if
any) payable under the Credit Agreement to the Lenders, in each case accrued to
the LCPI Assignment Date, have been paid in full by the Borrower and distributed
by the Administrative Agent to the Lenders; (iii) it has no knowledge of any
Default or Event of Default under the Existing Credit Agreement; and (iv) as of
the LCPI Assignment Date, Lehman Commercial Paper Inc.
is the sole Lender under the Existing Credit Agreement.
Section 4. Conditions To Effectiveness. The effectiveness of
the assignment and transfer contemplated hereby is subject to the satisfaction
of each of the following conditions (including, without limitation, that each
document to be received by the Successor Administrative Agent shall be in form
and substance satisfactory to the Successor Administrative Agent):
(a) LCPI Assignment Agreement. The Successor Administrative
Agent shall have received this LCPI Assignment Agreement, duly executed
and delivered by the Administrative Agent.
(b) Consent to Assignment. The Borrower shall acknowledge
notice of, and the Majority Lenders shall acknowledge notice of and
shall have consented to, the transactions contemplated by this LCPI
Assignment Agreement by signing on the respective signature lines
provided below.
(c) Filings and Recordings. The Successor Administrative Agent
shall have received evidence that all of the necessary amendments,
assignments, filings and/or recordings have been made in connection
with the transfer of the Assigned Interest by the Retiring
Administrative Agent to the Successor Administrative Agent, that all
necessary or appropriate UCC-3 statements of assignment and amendments
to the Mortgages have been filed in connection with the Security
Documents.
LCPI Assignment Agreement
-------------------------
-2-
<PAGE>
(d) Pledge Documents. The Successor Administrative Agent shall
have received from the Retiring Administrative Agent the certificates
representing the Pledged Stock (as defined in the Security Agreement)
each accompanied by an undated stock power executed in blank.
Section 5. Counterparts. This LCPI Assignment Agreement may be
executed in any number of counterparts, each of which shall be identical and all
of which, when taken together, shall constitute one and the same instrument, and
any of the parties hereto may execute this LCPI Assignment Agreement by signing
any such counterpart.
Section 6. Binding Effect. This LCPI Assignment Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
Section 7. Governing Law. This LCPI Assignment Agreement
shall be governed by, and construed in accordance with, the law of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have caused this LCPI
Assignment Agreement to be duly executed as of the day and year first above
written.
LEHMAN COMMERCIAL PAPER INC.
as Retiring Administrative Agent
By /s/ Dennis J. Dee
-------------------------
Authorized Signatory
FIRST UNION NATIONAL BANK,
as Successor Administrative Agent
By /s/ John M. Burlingame
-------------------------
Senior Vice President
LCPI Assignment Agreement
-------------------------
-3-
<PAGE>
CONSENT, ACKNOWLEDGE AND AGREE:
LEHMAN COMMERCIAL PAPER INC.,
as Lender
By /s/ Dennis J. Dee
--------------------------
Vice President
INTERNATIONAL TELECOMMUNICATION DATA
SYSTEMS INC., the Borrower
By /s/ Peter L. Masanotti
--------------------------
Executive Vice President
LCPI Assignment Agreement
-------------------------
-4-
[Conformed Copy]
**************************************************************
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
March 18, 1998
between
INTERNATIONAL TELECOMMUNICATION DATA SYSTEMS, INC.
The SUBSIDIARY GUARANTORS Party Hereto
The LENDERS Party Hereto
FIRST UNION NATIONAL BANK,
as Administrative Agent
LEHMAN COMMERCIAL PAPER INC,
as Arranger
-------------------
$100,000,000
-------------------
**************************************************************
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience of reference only.
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 1. Definitions and Accounting Matters....................................................................2
1.01 Certain Defined Terms..................................................................2
1.02 Accounting Terms and Determinations...................................................19
1.03 Classes and Types of Loans............................................................20
Section 2. The Commitments, Loans, Notes and Prepayments........................................................20
2.01 Loans.................................................................................20
2.02 Borrowings............................................................................21
2.03 Changes of the Commitments............................................................22
2.04 Commitment Fee........................................................................22
2.05 Lending Offices.......................................................................22
2.06 Several Obligations; Remedies Independent.............................................22
2.07 Notes.................................................................................23
2.08 Optional Prepayments and Conversions or Continuations of
Loans.................................................................................24
2.09 Mandatory Prepayments and Reductions of Commitments...................................24
2.10 Loans under Existing Credit Agreement.................................................26
Section 3. Payments of Principal and Interest...................................................................27
3.01 Repayment of Loans....................................................................27
3.02 Interest..............................................................................27
Section 4. Payments; Pro Rata Treatment; Computations; Etc......................................................28
4.01 Payments..............................................................................28
4.02 Pro Rata Treatment....................................................................29
4.03 Computations..........................................................................30
4.04 Minimum Amounts.......................................................................30
4.05 Certain Notices.......................................................................30
4.06 Non-Receipt of Funds by the Administrative Agent......................................31
4.07 Sharing of Payments, Etc..............................................................32
Section 5. Yield Protection, Etc................................................................................33
5.01 Additional Costs......................................................................33
5.02 Limitation on Types of Loans..........................................................35
5.03 Illegality............................................................................36
<PAGE>
Page
----
5.04 Treatment of Affected Loans...........................................................36
5.05 Compensation..........................................................................37
5.06 U.S. Taxes............................................................................37
Section 6. Guarantee............................................................................................39
6.01 The Guarantee.........................................................................39
6.02 Obligations Unconditional.............................................................39
6.03 Reinstatement.........................................................................40
6.04 Subrogation...........................................................................41
6.05 Remedies..............................................................................41
6.06 Instrument for the Payment of Money...................................................41
6.07 Continuing Guarantee..................................................................41
6.08 Rights of Contribution................................................................42
6.09 General Limitation on Guarantee Obligations...........................................42
Section 7. Conditions...........................................................................................43
7.01 Initial Loan..........................................................................43
7.02 Initial and Subsequent Loans..........................................................44
Section 8. Representations and Warranties.......................................................................44
8.01 Organization; Powers..................................................................44
8.02 Authorization; Enforceability.........................................................44
8.03 Approvals.............................................................................45
8.04 No Breach.............................................................................45
8.05 Financial Condition; No Material Adverse Change.......................................45
8.06 Properties............................................................................46
8.07 Litigation............................................................................47
8.08 Environmental Matters.................................................................47
8.09 Compliance with Laws and Agreements...................................................47
8.10 Investment Company Act................................................................48
8.11 Public Utility Holding Company Act....................................................48
8.12 Taxes.................................................................................48
8.13 ERISA.................................................................................48
8.14 True and Complete Disclosure..........................................................48
8.15 Use of Credit.........................................................................49
8.16 Material Agreements and Liens.........................................................49
8.17 Subsidiaries, Etc.....................................................................49
8.18 Solvency..............................................................................50
8.19 Property of Obligors located in Maryland and Texas....................................50
8.20 Year 2000 Analysis....................................................................50
Section 9. Covenants of the Borrower............................................................................51
9.01 Financial Statements and Other Information............................................51
9.02 Notices of Material Events............................................................52
<PAGE>
Page
----
9.03 Existence, Etc........................................................................53
9.04 Insurance.............................................................................54
9.05 Prohibition of Fundamental Changes....................................................54
9.06 Liens.................................................................................55
9.07 Indebtedness..........................................................................56
9.08 Investments...........................................................................57
9.09 Restricted Payments...................................................................57
9.10 Certain Financial Covenants...........................................................57
9.11 Hedging Agreements....................................................................58
9.12 Lines of Business.....................................................................58
9.13 Transactions with Affiliates..........................................................58
9.14 Restrictive Agreements................................................................59
9.15 Subsidiary Indebtedness...............................................................59
9.16 Use of Proceeds.......................................................................59
9.17 Certain Obligations Respecting Subsidiaries...........................................60
9.18 Modifications of Certain Documents....................................................61
9.19 Environmental Survey..................................................................61
9.20 Property of Obligors located in Maryland and Texas....................................61
Section 10. Events of Default...................................................................................61
Section 11. The Administrative Agent and the Arranger...........................................................65
11.01 Appointment, Powers and Immunities....................................................65
11.02 Reliance by Administrative Agent......................................................66
11.03 Defaults..............................................................................66
11.04 Rights as a Lender....................................................................67
11.05 Indemnification.......................................................................67
11.06 Non-Reliance on Administrative Agent, Arranger and Other
Lenders...............................................................................67
11.07 Failure to Act........................................................................68
11.08 Resignation or Removal of Administrative Agent........................................68
11.09 Consents under Other Loan Documents...................................................69
11.10 Arranger..............................................................................69
Section 12. Miscellaneous.......................................................................................69
12.01 Notices...............................................................................69
12.02 Waiver................................................................................70
12.03 Amendments, Etc.......................................................................70
12.04 Expenses, Etc.........................................................................71
12.05 Successors and Assigns................................................................72
12.06 Assignments and Participations........................................................72
12.07 Survival..............................................................................75
12.08 Counterparts..........................................................................75
12.09 Governing Law; Submission to Jurisdiction.............................................75
<PAGE>
Page
----
12.10 WAIVER OF JURY TRIAL..................................................................76
12.11 Captions..............................................................................76
</TABLE>
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Term Loan Note
EXHIBIT B - Form of Guarantee Assumption Agreement
EXHIBIT C - Form of Notice of Account Designation
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 2, 1998,
amended and restated as of March 18, 1998, between: INTERNATIONAL
TELECOMMUNICATION DATA SYSTEMS, INC., a corporation duly organized and validly
existing under the laws of the State of Delaware (the "Borrower"); each of the
Subsidiaries of the Borrower identified under the caption "SUBSIDIARY
GUARANTORS" on the signature pages hereto and each Subsidiary of the Borrower
that becomes a "Subsidiary Guarantor" after the date hereof pursuant to Section
9.17(a) (individually, a "Subsidiary Guarantor" and, collectively, the
"Subsidiary Guarantors" and, together with the Borrower, the "Obligors"); each
of the lenders that is a signatory hereto identified under the caption "LENDERS"
on the signature pages hereto and each lender that becomes a "Lender" after the
date hereof pursuant to Section 12.06(b) (individually, a "Lender" and,
collectively, the "Lenders"); FIRST UNION NATIONAL BANK, as administrative agent
for the Lenders (in such capacity, together with its successors in such
capacity, the "Administrative Agent"); and LEHMAN COMMERCIAL PAPER INC., a
Delaware corporation, as arranger (in such capacity, the "Arranger").
The Obligors, certain of the Lenders (the "Existing Lenders"), Lehman
Commercial Paper Inc. as Administrative Agent for the Existing Lenders (the
"Existing Administrative Agent") and the Arranger are parties to a Credit
Agreement dated as of January 2, 1998 (as amended, supplemented and otherwise
modified and in effect immediately prior to the Effective Date (as hereinafter
defined), the "Existing Credit Agreement"), providing, subject to the terms and
conditions thereof, for loans to be made to the Borrower in an aggregate
principal amount not exceeding $100,000,000.
The Existing Administrative Agent, in its capacity as administrative
agent for the Existing Lenders under the Existing Credit Agreement, proposes to
assign and transfer under a separate assignment agreement (the "LCPI Assignment
Agreement") to the Administrative Agent, and the Administrative Agent proposes
to acquire and assume from the Existing Administrative Agent, all of the
Existing Administrative Agent's rights, obligations and interest as such
administrative agent under each of the Loan Documents (as defined in the
Existing Credit Agreement) all as of the Effective Date. The parties also wish
to amend the Existing Credit Agreement by, among other things, adding the New
Lenders (as hereinafter defined), and by amending certain of the other
provisions thereof and, in that connection, wish to amend and restate the
Existing Credit Agreement in its entirety, it being the intention of the parties
hereto that the loans outstanding on the Effective Date (as hereinafter defined)
shall continue and remain outstanding and not be repaid on the Effective Date,
but shall be assigned and reallocated among the Lenders as provided in Section
2.01 hereof.
Accordingly the parties hereto hereby agree that the Existing Credit
Agreement shall, as of the Effective Date (but subject to the satisfaction of
the conditions precedent specified in Section 7.01 hereof), be amended and
restated in its entirety as follows:
<PAGE>
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms.
As used herein, the following terms shall have the following meanings
(all terms defined in this Section 1.01 or in other provisions of this Agreement
in the singular to have the same meanings when used in the plural and vice
versa):
"Acquisition" means the acquisition by the Borrower of all of the
capital stock of Intelicom as described in the Acquisition Agreement.
"Acquisition Agreement" means the Stock Purchase Agreement dated as of
January 2, 1998 by and among the Borrower, Intelicom and CSC Domestic
Enterprises, Inc.
"Acquisition Documents" means the Acquisition Agreement and all
documents, certificates and instruments delivered pursuant thereto.
"Affiliate" means any Person that directly or indirectly controls, or
is under common control with, or is controlled by, the Borrower. As used in this
definition, "control" (including, with its correlative meanings, "controlled by"
and "under common control with") means possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event, any Person that owns
directly or indirectly securities having 5% or more of the voting power for the
election of directors or other governing body of a corporation or 5% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing, (a) no individual
shall be an Affiliate solely by reason of his or her being a director, officer
or employee of the Borrower or any of its Subsidiaries and (b) none of the
Wholly Owned Subsidiaries of the Borrower shall be Affiliates.
"Applicable Lending Office" means, for each Lender and for each Type of
Loan, the "Lending Office" of such Lender (or of an affiliate of such Lender)
designated for such Type of Loan on the signature pages hereof or such other
office of such Lender (or of an affiliate of such Lender) as such Lender may
from time to time specify to the Administrative Agent and the Borrower as the
office by which its Loans of such Type are to be made and maintained.
"Applicable Margin" means, with respect to any Base Rate Loan or
Eurodollar Loan, or with respect to the commitment fees payable hereunder, as
the case may be, (a) during the initial Interest Accrual Period or should an
Event of Default have occurred and be continuing, 1.250% in the case of ABR
Loans, 2.250% in the case of
- 2 -
<PAGE>
Eurodollar Loans and 0.500% with respect to the Commitment Fee Rate and (b) in
all other cases, the rate per annum set forth below under the caption "Base Rate
Margin", "Eurodollar Margin" or "Commitment Fee Rate", respectively, based on
the Leverage Ratio for such Interest Accrual Period:
================================================================================
Leverage Ratio Base Rate Eurodollar Commitment
Margin Margin Fee Rate
- --------------------------------------------------------------------------------
Greater than or 1.250% 2.250% 0.500%
equal to 3.0 to 1
- --------------------------------------------------------------------------------
Greater than or 1.000% 2.000% 0.375%
equal to 2.5 to 1
and less than 3.0
to 1
- --------------------------------------------------------------------------------
Less than 2.5 0.750% 1.750% 0.375%
to 1
================================================================================
For purposes hereof, an "Interest Accrual Period" means (i) initially, the
period commencing on the Closing Date to but not including the Quarterly Date
falling on or nearest to June 30, 1998, and (ii) thereafter, the period
commencing on a Quarterly Date to but not including the immediately following
Quarterly Date.
The Leverage Ratio for the initial Interest Accrual Period shall be
determined on the basis of the certificate of a Financial Officer of the
Borrower delivered pursuant to Section 7.01(d). The Leverage Ratio for any
Interest Accrual Period after the initial Interest Accrual Period shall be
determined on the basis of a certificate of a Financial Officer of the Borrower
setting forth a calculation of the Leverage Ratio as at the last day of the
fiscal quarter immediately preceding such Interest Accrual Period (i.e., the
Leverage Ratio for the Interest Accrual Period commencing July 1, 1998 shall be
determined on the basis of the Leverage Ratio as at March 31, 1998, the Leverage
Ratio for the Interest Accrual Period commencing October 1, 1998 shall be
determined on the basis of the Leverage Ratio as at June 30, 1998, and so
forth), each of which certificates shall be delivered together with the
financial statements for the fiscal quarter on which such calculation is based.
Anything in this Agreement to the contrary notwithstanding, the
Applicable Margin for Base Rate Loans, Eurodollar Loans and commitment fees
shall be the highest rate per annum provided for above (i.e., 1.250%% with
respect to Base Rate Loans, 2.250% with respect to Eurodollar Loans and 0.500%
with respect to commitment fees) (i) during any period when an Event of Default
shall have occurred and be continuing, or (ii) if a certificate of a Financial
Officer of the
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Borrower shall not be delivered as provided above prior to the beginning of any
Interest Accrual Period.
"Bankruptcy Code" means the Federal Bankruptcy Code of 1978, as amended
from time to time.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(a) the Prime Rate for such day and (b) the Federal Funds Rate for such day plus
1/2 of 1%. Each change in any interest rate provided for herein based upon the
Base Rate resulting from a change in the Base Rate shall take effect at the time
of such change in the Base Rate.
"Base Rate Loans" means Loans that bear interest at rates based upon
the Base Rate.
"Basic Documents" means, collectively, the Loan Documents and the
Acquisition Documents.
"Basle Accord" means the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement thereof.
"Business Day" means any day (a) on which commercial banks are not
authorized or required to close in Charlotte, North Carolina and (b) if such day
relates to a borrowing of, a payment or prepayment of principal of or interest
on, a Conversion of or into, or an Interest Period for, a Eurodollar Loan or a
notice by the Borrower with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"Capital Expenditures" means, for any period, expenditures (including,
without limitation, the aggregate amount of Capital Lease Obligations incurred
during such period) made by the Borrower or any of its Subsidiaries to acquire
or construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs) during such period computed in
accordance with GAAP.
"Capital Lease Obligations" means, for any Person, all obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
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"Casualty Event" means, with respect to any Property of any Person, any
loss of or damage to, or any condemnation or other taking of, such Property for
which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"Class" has the meaning assigned to such term in Section 1.03.
"Closing Date" means the date upon which the initial Loans hereunder
are made.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitments" means the Revolving Credit Commitments and the Term Loan
Commitments.
"Continue", "Continuation" and "Continued" refer to the continuation
pursuant to Section 2.08 of a Eurodollar Loan from one Interest Period to the
next Interest Period for such Loan.
"Convert", "Conversion" and "Converted" refer to a conversion pursuant
to Section 2.08 of one Type of Loans into another Type of Loans, which may be
accompanied by the transfer by a Lender (at its sole discretion) of a Loan from
one Applicable Lending Office to another.
"Debt Incurrence" means the incurrence by the Borrower or any of its
Subsidiaries after the Closing Date of any Indebtedness, other than Capital
Lease Obligations and Indebtedness secured by Liens permitted by Section
9.06(h).
"Debt Service" means, for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all regularly scheduled payments or
prepayments of principal of Indebtedness (including, without limitation, the
principal component of any payments in respect of Capital Lease Obligations)
made during such period plus (b) all Interest Expense for such period.
"Default" means an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default.
"Disposition" means any sale, assignment, transfer or other disposition
of any Property (whether now owned or hereafter acquired) by the Borrower or any
of its Subsidiaries to any other Person excluding any sale, assignment, transfer
or other disposition of any Property sold or disposed of in the ordinary course
of business
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<PAGE>
(including without limitation the sale or other disposition of worn-out or
obsolete equipment) and on ordinary business terms.
"Dollars" and "$" means lawful money of the United States of America.
"EBITDA" means, for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) net operating income (calculated
before taxes, Interest Expense, extraordinary and unusual items and income or
loss attributable to equity in Affiliates) for such period plus (b) depreciation
and amortization (to the extent deducted in determining net operating income)
for such period, provided that, for the twelve-month period ending January 2,
1998, EBITDA will exclude corporate overhead charges allocated to TRIS by
Intelicom in amounts reasonably determined by the Borrower. In the event that
the Borrower or any of its Subsidiaries acquires any business (including,
without limitation, by means of the Acquisition) during such period, EBITDA for
such period shall be calculated as if such acquisition had occurred on the first
day of such period using such reasonable estimates and pro forma adjustments
effected in accordance with generally accepted accounting principles as the
Borrower shall propose and the Majority Lenders shall approve.
"Effective Date" shall mean the date on which the conditions to
effectiveness set forth in Section 7.01 hereof shall have been satisfied or
waived.
"Environmental Laws" means any and all present and future Federal,
state, local and foreign laws, rules or regulations, and any orders or decrees,
in each case as now or hereafter in effect, relating to the regulation or
protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
"Equity Rights" means, with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including, without limitation, any shareholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or securities convertible
into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
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"ERISA Affiliate" means any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which the Borrower is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the
Borrower is a member.
"ERISA Event" means any of the following events or conditions:
(a) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a Plan, as to which
the PBGC has not by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of Section 412 of
the Code or Section 302 of ERISA, including, without limitation, the failure to
make on or before its due date a required installment under Section 412(m) of
the Code or Section 302(e) of ERISA, shall be a reportable event regardless of
the issuance of any waivers in accordance with Section 412(d) of the Code); and
any request for a waiver under Section 412(d) of the Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by the Borrower or an ERISA
Affiliate to terminate any Plan;
(c) the institution by the PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Borrower or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has been taken by the PBGC
with respect to such Multiemployer Plan;
(d) the complete or partial withdrawal from a Multiemployer
Plan by the Borrower or any ERISA Affiliate that results in liability under
Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary
liability as a result of a purchaser default) or the receipt by the Borrower or
any ERISA Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that
it intends to terminate or has terminated under Section 4041A of ERISA;
(e) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days; or
(f) the adoption of an amendment to any Plan that, pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA, would result in the loss
of
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<PAGE>
tax-exempt status of the trust of which such Plan is a part if the Borrower or
an ERISA Affiliate fails to timely provide security to the Plan in accordance
with the provisions of such Sections.
"Eurodollar Base Rate" means, for any Interest Period for any
Eurodollar Loan, the rate per annum appearing on Page 3750 of the Dow Jones
Markets 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 on the date two
Business Days prior to the first day of such Interest Period as the rate for
Dollar deposits having a term comparable to such Interest Period, provided that
if such rate does not appear on such page, or if such page shall cease to be
publicly available, or if the information contained on such page, in the
reasonable judgment of the Majority Revolving Credit Lenders or Majority Term
Loan Lenders (as the case may be) shall cease accurately to reflect the rate
offered by leading banks in the London interbank market as reported by any
publicly available source of similar market data selected by such Lenders, the
Eurodollar Base Rate means, for any Interest Period, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) quoted by LCPI at
approximately 11:00 a.m. London time (or as soon thereafter as practicable) two
Business Days prior to the first day of such Interest Period for the offering by
LCPI to leading banks in the London interbank market of Dollar deposits having a
term comparable to such Interest Period and in the amount of the Eurodollar Loan
to be made by LCPI for such Interest Period. If LCPI is not participating in any
Eurodollar Loan during any Interest Period therefor, the Eurodollar Base Rate
for such Interest Period shall be determined by reference to the amount of such
Loan that LCPI would have made or had outstanding during such Interest Period
had it been participating in such Loan during such Interest Period.
"Eurodollar Loans" means Loans that bear interest at rates based on
rates referred to in the definition of "Eurodollar Base Rate" in this Section
1.01.
"Eurodollar Rate" means, for any Interest Period for any Eurodollar
Loan, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined by the Administrative Agent to be equal to the Eurodollar Base
Rate for such Interest Period divided by 1 minus the Reserve Requirement (if
any) for such Interest Period.
"Event of Default" has the meaning assigned to such term in Section 10.
"Excess Cash Flow" means, for any period, the excess of (a) EBITDA for
such period over (b) the sum of (i) Capital Expenditures made during such period
(except
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<PAGE>
for any such Capital Expenditures to the extent financed with the proceeds of
Indebtedness, or Capital Lease Obligations, incurred pursuant to Section 9.07(d)
during such period) plus (ii) the aggregate amount of Debt Service for such
period plus (iii) taxes payable in cash for such period.
"Excluded Subsidiary" means any Subsidiary of the Borrower created
solely for the purpose of holding stock of, or membership in, a Foreign
Subsidiary and which has no material assets, rights, liabilities or obligations
other than pursuant to such holding of stock of, or membership in, such Foreign
Subsidiary.
"Existing Notes" shall mean the "Notes" of the Borrower delivered to
the Exisitng Lenders under the Existing Credit Agreement.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (a) if the day for which such rate is to be determined is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day and (b) if such rate is not so published for any
Business Day, the Federal Funds Rate for such Business Day shall be the average
rate charged to LCPI on such Business Day on such transactions as determined by
the Administrative Agent.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"First Union" means First Union National Bank.
"Fixed Charges Ratio" means, as at any date, the ratio of (a) EBITDA
for the period of four consecutive fiscal quarters ending on or most recently
ended prior to such date to (b) the sum of (i) Capital Expenditures made during
such period plus (ii) the aggregate amount of Debt Service for such period plus
(iii) taxes for such period.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" has the meaning assigned to such term in Section
9.17(a).
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<PAGE>
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those that, in accordance with the last sentence of
Section 1.02(a), are to be used in making the calculations for purposes of
determining compliance with this Agreement.
"Guarantee" means a guarantee, an endorsement, a contingent agreement
to purchase or to furnish funds for the payment or maintenance of, or otherwise
to be or become contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) Property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as verbs have the
correlative meanings.
"Guarantee Assumption Agreement" means a Guarantee Assumption Agreement
substantially in the form of Exhibit B by an entity that, pursuant to Section
9.17(a) is required to become a "Subsidiary Guarantor" hereunder in favor of the
Administrative Agent.
"Hazardous Material" means, collectively, (a) any petroleum or
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls ("PCB's"), (b) any chemicals or other
materials or substances that are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import under any Environmental Law and (c) any other chemical or other
material or substance, exposure to which is now or hereafter prohibited, limited
or regulated under 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" means, for any Person: (a) obligations created, issued
or incurred by such Person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of Property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such Property
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<PAGE>
from such Person); (b) obligations of such Person to pay the deferred purchase
or acquisition price of Property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business so long as such trade accounts payable are payable
within 90 days of the date the respective goods are delivered or the respective
services are rendered; (c) Indebtedness of others secured by a Lien on the
Property of such Person, whether or not the respective indebtedness so secured
has been assumed by such Person; (d) obligations of such Person in respect of
letters of credit or similar instruments issued or accepted by banks and other
financial institutions for account of such Person; (e) Capital Lease Obligations
of such Person; and (f) Indebtedness of others Guaranteed by such Person.
"Intelicom" means CSC Intelicom, Inc.
"Interest Coverage Ratio" means, as at any date of determination
thereof, the ratio of (a) EBITDA for the period of four fiscal quarters ending
on or most recently ended prior to such date to (b) Interest Expense for such
Period.
"Interest Expense" means, for any period, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all interest in respect of
Indebtedness (including, without limitation, the interest component of any
payments in respect of Capital Lease Obligations) accrued or capitalized during
such period (whether or not actually paid during such period) (b) minus interest
income received in cash during such period plus (c) the net amount payable (or
minus the net amount receivable) under Hedging Agreements relating to interest
during such period (whether or not actually paid or received during such
period).
"Interest Period" means, for any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made or Converted from a Loan of
another Type or (in the event of a Continuation) the last day of the next
preceding Interest Period for such Loan and (subject to the provisions of
Section 2.01(c)) ending on the numerically corresponding day in the first,
second, third or sixth calendar month thereafter, as the Borrower may select as
provided in Section 4.05, except that each Interest Period that commences on the
last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for any Revolving
Credit Loan would otherwise end after the Revolving Credit Commitment
Termination Date, such Interest Period shall end on the Revolving Credit
Commitment Termination Date; (ii) if any Interest Period for any Term Loan would
otherwise end after the Term Loan Maturity Date, such Interest Period shall end
on the Term Loan Maturity Date; (iii) no Interest Period for any Term Loan may
commence before and end after any Principal Payment Date unless, after giving
effect
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<PAGE>
thereto, the aggregate principal amount of the Term Loans having Interest
Periods that end after such Principal Payment Date shall be equal to or less
than the aggregate principal amount of the Term Loans permitted to be
outstanding after giving effect to the payments of principal required to be made
on such Principal Payment Date; (iv) each Interest Period that would otherwise
end on a day that is not a Business Day shall end on the next succeeding
Business Day (or, in the case of an Interest Period for a Eurodollar Loan, if
such next succeeding Business Day falls in the next succeeding calendar month,
on the next preceding Business Day); and (v) notwithstanding clauses (i), (ii)
and (iii) above, no Interest Period shall have a duration of less than one month
and, if the Interest Period for any Eurodollar Loan would otherwise be a shorter
period, such Loan shall not be available hereunder for such period.
"Investment" means, for any Person: (a) the acquisition (whether for
cash, Property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including,
without limitation, any "short sale" or any sale of any securities at a time
when such securities are not owned by the Person entering into such sale); (b)
the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the purchase of Property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such Property to such Person), but excluding any such advance, loan or extension
of credit having a term not exceeding 90 days arising in connection with the
sale of inventory or supplies by such Person in the ordinary course of business;
(c) the entering into of any Guarantee of, or other contingent obligation with
respect to, Indebtedness or other liability of any other Person and (without
duplication) any amount committed to be advanced, lent or extended to such
Person; or (d) the entering into of any Hedging Agreement.
"LCPI" means Lehman Commercial Paper Inc.
"Leverage Ratio" means, as at any date of determination thereof, the
ratio of (a) Indebtedness of the Borrower and its Subsidiaries (determined on a
consolidated basis, without duplication, in accordance with GAAP) as at such
date to (b) EBITDA for the period of four fiscal quarters ending on or most
recently ended prior to such date.
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Loan Documents, a Person
shall be deemed to own subject to a Lien any Property that it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an
operating lease) relating to such Property.
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"Loan Documents" means, collectively, this Agreement, the Notes and the
Security Documents.
"Loans" means the Revolving Credit Loans and the Term Loans.
"Majority Lenders" means, subject to the last paragraph of Section
12.03, Lenders having more than 50% of the sum of (a) the aggregate outstanding
principal amount of the Term Loans or, if the Term Loans shall not have been
made, the aggregate outstanding principal amount of the Term Loan Commitments,
as the case may be, plus (b) the sum of (i) the aggregate unused amount, if any,
of the Revolving Credit Commitments plus (ii) the aggregate outstanding
principal amount of the Revolving Credit Loans.
"Majority Revolving Credit Lenders" means Revolving Credit Lender
having more than 50% of the aggregate amount of the Revolving Credit Commitments
or, if the Revolving Credit Commitments shall have terminated, Lenders holding
more than 50% of the aggregate unpaid principal amount of the Revolving Credit
Loans.
"Majority Term Loan Lenders" means Term Loan Lenders holding more than
50% of the aggregate outstanding principal amount of the Term Loans or, if the
Term Loans shall not have been made, more than 50% of the Term Loan Commitments.
"Margin Stock" means "margin stock" within the meaning of Regulations
G, T, U and X.
"Material Adverse Effect" means a material adverse effect on (a) the
Property, business, operations, financial condition, prospects, liabilities or
capitalization of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of any Obligor to perform its obligations under any of the Loan
Documents to which it is a party, (c) the validity or enforceability of any of
the Loan Documents, (d) the rights and remedies of the Lenders and the
Administrative Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or other amounts payable in
connection therewith.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Borrower or
any ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Available Proceeds" means:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
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(ii) in the case of any Casualty Event, the aggregate amount
of proceeds of insurance, condemnation awards and other compensation
received by the Borrower and its Subsidiaries in respect of such
Casualty Event net of (A) reasonable expenses incurred by the Borrower
and its Subsidiaries in connection therewith and (B) contractually
required repayments of Indebtedness to the extent secured by a Lien on
such Property and any income and transfer taxes payable by the Borrower
or any of its Subsidiaries in respect of such Casualty Event; and
(iii) in the case of any Debt Incurrence, the aggregate amount
of all cash received by the Borrower and its Subsidiaries in respect of
such Debt Incurrence net of reasonable expenses incurred by the
Borrower and its Subsidiaries in connection therewith.
"Net Cash Payments" means, with respect to any Disposition, the
aggregate amount of all cash payments, and the fair market value of any non-cash
consideration, received by the Borrower and its Subsidiaries directly or
indirectly in connection with such Disposition; provided that (a) Net Cash
Payments shall be net of (i) the amount of any legal, title and recording tax
expenses, commissions and other fees and expenses paid by the Borrower and its
Subsidiaries in connection with such Disposition and (ii) any Federal, state and
local income or other taxes estimated to be payable by the Borrower and its
Subsidiaries as a result of such Disposition (but only to the extent that such
estimated taxes are in fact paid to the relevant Federal, state or local
governmental authority within three months of the date of such Disposition) and
(b) Net Cash Payments shall be net of any repayments by the Borrower or any of
its Subsidiaries of Indebtedness to the extent that (i) such Indebtedness is
secured by a Lien on the Property that is the subject of such Disposition and
(ii) the transferee of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the purchase of such Property.
"New Lenders" shall mean each Lender party hereto on the Effective Date
other than the Existing Lenders.
"Notes" means the Revolving Credit Notes and the Term Loan Notes.
"Notice of Account Designation" means a Notice of Account Designation
substantially in the form of Exhibit C.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Investments" means: (a) direct obligations of the United
States of America, or of any agency thereof, or obligations guaranteed as to
principal and interest by the United States of America, or of any agency
thereof, in either case
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<PAGE>
maturing not more than 180 days from the date of acquisition thereof; (b)
certificates of deposit maturing not more than 180 days from the date of
acquisition thereof and money market deposit accounts, in each case issued or
offered by any bank or trust company organized under the laws of the United
States of America or any state thereof and having capital, surplus and undivided
profits of at least $500,000,000,; and (c) commercial paper rated A-1 or better
or P-1 by Standard & Poor's Ratings Services, a Division of The McGraw-Hill
Companies, Inc., or Moody's Investors Services, Inc., respectively, maturing not
more than 180 days from the date of acquisition thereof; in each case so long as
the same (x) provide for the payment of principal and interest (and not
principal alone or interest alone) and (y) are not subject to any contingency
regarding the payment of principal or interest.
"Person" means any individual, corporation, company, voluntary
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" means an employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and that is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" means a rate per annum equal to 2% plus the Base
Rate as in effect from time to time plus the Applicable Margin for Base Rate
Loans, provided that, with respect to principal of a Eurodollar Loan that shall
become due (whether at stated maturity, by acceleration, by optional or
mandatory prepayment or otherwise) on a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" shall be, for the period from
and including such due date to but excluding the last day of such Interest
Period, 2% plus the interest rate for such Loan as provided in Section 3.02(b)
and, thereafter, the rate provided for above in this definition.
"Prime Rate" means the rate of interest from time to time announced by
First Union National Bank as its base rate.
"Principal Payment Dates" means the Quarterly Dates falling on or
nearest to March 31, June 30, September 30 and December 31 of each year,
commencing with March 31, 2000, through and including December 31, 2003.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Quarterly Dates" means the last Business Day of March, June, September
and December in each year, the first of which shall be the first such day after
the Closing Date.
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"Registered Holder" has the meaning assigned to such term in
Section 5.06(a)(ii).
"Registered Loan" has the meaning assigned to such term in Section
2.07(e).
"Registered Note" has the meaning assigned to such term in Section
2.07(e).
"Regulations A, D, G, T, U and X" means, respectively, Regulations A,
D, G, T, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"Regulatory Change" means, with respect to any Lender, any change after
the date hereof in Federal, state or foreign law or regulations (including,
without limitation, Regulation D) or the adoption or making after such date of
any interpretation, directive or request applying to a class of banks including
such Lender of or under any Federal, state or foreign law or regulations
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) by any court or governmental or monetary authority
charged with the interpretation or administration thereof.
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Reserve Requirement" means, for any Interest Period for any Eurodollar
Loan, the average maximum rate at which reserves (including, without limitation,
any marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate for any
Interest Period for any Eurodollar Loans is to be determined as provided in the
definition of "Eurodollar Base Rate" in this Section 1.01 or (ii) any category
of extensions of credit or other assets that includes Eurodollar Loans.
"Restricted Payment" means dividends (in cash, Property or obligations)
on, or other payments or distributions on account of, or the setting apart of
money for a sinking or other analogous fund for, or the purchase, redemption,
retirement or other acquisition of, any shares of any class of stock of the
Borrower or of any warrants,
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options or other rights to acquire the same (or to make any payments to any
Person, such as "phantom stock" payments, where the amount thereof is calculated
with reference to the fair market or equity value of the Borrower or any of its
Subsidiaries), but excluding dividends payable solely in shares of common stock
of the Borrower.
"Revolving Credit Commitment" means, as to each Revolving Credit
Lender, the obligation of such Lender to make Revolving Credit Loans in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount set opposite the name of such Lender on the signature pages hereof
under the caption "Revolving Credit Commitment" or, in the case of a Person that
becomes a Revolving Credit Lender pursuant to an assignment permitted under
Section 12.06(b), as specified in the respective instrument of assignment
pursuant to which such assignment is effected (as the same may be reduced at any
time or from time to time pursuant to Section 2.03 or 2.09). The original
aggregate principal amount of the Revolving Credit Commitments is $30,000,000.
"Revolving Credit Commitment Termination Date" means the Quarterly Date
falling on or nearest to January 2, 2003.
"Revolving Credit Lenders" means (a) on the date hereof, the Lenders
having Revolving Credit Commitments on the signature pages hereof and (b)
thereafter, the Lenders from time to time holding Revolving Credit Loans and
Revolving Credit Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b).
"Revolving Credit Loans" means the loans provided for in Section
2.01(a), which may be Base Rate Loans and/or Eurodollar Loans.
"Revolving Credit Notes" means the promissory notes provided for in
Section 2.07(a) and all promissory notes delivered in substitution or exchange
therefor, in each case as the same shall be modified and supplemented and in
effect from time to time. The term "Revolving Credit Notes" shall include any
Registered Notes evidencing Revolving Credit Loans executed and delivered
pursuant to Section 2.07(e).
"Security Agreement" means the Security Agreement dated as of January
2, 1998 between the Obligors and the Administrative Agent (as successor by
assignment to the Existing Administrative Agent pursuant to the terms of the
LCPI Assignment Agreement), as the same shall be modified and supplemented and
in effect from time to time.
"Security Documents" means, collectively, the Security Agreement and
all Uniform Commercial Code financing statements required by the Security
Agreement
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to be filed with respect to the security interests in personal Property and
fixtures created pursuant to the Security Agreement.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership or other entity of which at least a
majority of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation, limited
liability company, partnership or other entity (irrespective of whether or not
at the time securities or other ownership interests of any other class or
classes of such corporation, limited liability company, partnership or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such Person and one or
more Subsidiaries of such Person. Unless otherwise specified, "Subsidiary" means
a subsidiary of the Borrower.
"Term Loan Commitment" means, as to each Term Loan Lender, the
obligation of such Lender to make a Term Loan in a principal amount up to but
not exceeding the amount set opposite the name of such Lender on the signature
pages hereof under the caption "Term Loan Commitment" or, in the case of a
Person that becomes a Term Loan Lender pursuant to an assignment permitted under
Section 12.06(b), as specified in the respective instrument of assignment
pursuant to which such assignment is effected (as the same may be reduced at any
time or from time to time pursuant to Section 2.03 or 2.09). The original
aggregate principal amount of the Term Loan Commitments is $70,000,000.
"Term Loan Commitment Termination Date" means the earlier to occur of
the Closing Date and January 2, 1998.
"Term Loan Lenders" means (a) on the date hereof, the Lenders having
Term Loan Commitments on the signature pages hereof and (b) thereafter, the
Lenders from time to time holding Term Loans and Term Loan Commitments after
giving effect to any assignments thereof permitted by Section 12.06(b).
"Term Loan Maturity Date" means the Quarterly Date falling on or
nearest to January 2, 2004.
"Term Loan Notes" means the promissory notes provided for in Section
2.07(b) and all promissory notes delivered in substitution or exchange therefor,
in each case as the same shall be modified and supplemented and in effect from
time to time. The term "Term Loan Notes" shall include any Registered Notes
evidencing Term Loans executed and delivered pursuant to Section 2.07(e).
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"Term Loans" means the loans provided for in Section 2.01(b), which may
be Base Rate Loans and/or Eurodollar Loans.
"TRIS" means TRIS, a Division of CSC Intelicom, Inc.
"Type" has the meaning assigned to such term in Section 1.03.
"U.S. Person" means a citizen or resident of the United States of
America, a corporation, limited liability company, partnership or other entity
created or organized in or under any laws of the United States of America or any
State thereof, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income.
"U.S. Taxes" means any present or future tax, assessment or other
charge or levy imposed by or on behalf of the United States of America or any
taxing authority thereof.
"Wholly Owned Subsidiary" means, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in paragraph (b)
of this Section 1.02) be prepared, in accordance with generally accepted
accounting principles applied on a basis consistent with those used in the
preparation of the latest financial statements furnished to the Lenders
hereunder (which, prior to the delivery of the first financial statements under
Section 9.01, shall mean the audited financial statements as at December 31,
1996 referred to in Section 8.05). All calculations made for the purposes of
determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of generally accepted accounting
principles applied on a basis consistent with those used in the preparation of
the latest annual or quarterly financial statements furnished to the Lenders
pursuant to Section 9.01 (or, prior to the delivery of the first financial
statements under Section 9.01, used in the preparation of the audited financial
statements as at December 31, 1996 referred to in Section 8.05) unless (i) the
Borrower shall have objected to determining such compliance on such basis at the
time of delivery of such
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financial statements or (ii) the Majority Lenders shall so object in writing
within 30 days after delivery of such financial statements, in either of which
events such calculations shall be made on a basis consistent with those used in
the preparation of the latest financial statements as to which such objection
shall not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 9.01, shall mean the audited
financial statements referred to in Section 8.05).
(b) The Borrower shall deliver to the Lenders at the same time
as the delivery of any annual or quarterly financial statement under Section
9.01 (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) of this Section 1.02 and (ii) reasonable estimates of the
difference between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 9, the Borrower will not
change the last day of its fiscal year from December 31, or the last days of the
first three fiscal quarters in each of its fiscal years from March 31, June 30
and September 30, respectively.
1.03 Classes and Types of Loans. Loans hereunder are distinguished by
"Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a Loan)
refers to whether such Loan is a Revolving Credit Loan or a Term Loan, each of
which constitutes a Class. The "Type" of a Loan refers to whether such Loan is a
Base Rate Loan or a Eurodollar Loan, each of which constitutes a Type. Loans may
be identified by both Class and Type.
Section 2. The Commitments, Loans, Notes and Prepayments.
2.01 Loans.
(a) Revolving Credit Loans. On the Effective Date, all
outstanding "Revolving Credit Loans" under the Existing Credit Agreement held by
the Existing Lenders, shall automatically and without any action on the part of
any Person, be designated as Revolving Credit Loans hereunder and each of the
New Lenders shall, by assignments from the Existing Lenders (which shall be
deemed to occur automatically on the Effective Date), acquire a portion of the
Revolving Credit Loans of the Existing Lenders in such amounts so that after
giving effect to such assignments, the Revolving Credit Lenders shall hold the
Revolving Credit Loans hereunder ratably in accordance with their respective
Revolving Credit Commitments.
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Each Revolving Credit Lender severally agrees, on the terms
and conditions of this Agreement, to make loans to the Borrower in Dollars
during the period from and including the Effective Date but not including the
Revolving Credit Commitment Termination Date in an aggregate principal amount at
any one time outstanding up to but not exceeding the amount of the Revolving
Credit Commitment of such Lender as in effect from time to time. Subject to the
terms and conditions of this Agreement, during such period the Borrower may
borrow, repay and reborrow the amount of the Revolving Credit Commitments by
means of Base Rate Loans and Eurodollar Loans and may Convert Revolving Credit
Loans of one Type into Revolving Credit Loans of another Type (as provided in
Section 2.08) or Continue Revolving Credit Loans of one Type as Revolving Credit
Loans of the same Type (as provided in Section 2.08).
(b) Term Loans. On the Effective Date, all outstanding "Term
Loans" under the Existing Credit Agreement held by the Existing Lenders, shall
automatically and without any action on the part of any Person, be designated as
Term Loans hereunder and each of the New Lenders shall, by assignments from the
Existing Lenders (which shall be deemed to occur automatically on the Effective
Date), acquire a portion of the Term Loans of the Existing Lenders in such
amounts so that after giving effect to such assignments, the Term Loan Lenders
shall hold the Term Loans hereunder ratably in accordance with their respective
Term Loan Commitments.
(c) Limit on Eurodollar Loans. No more than three separate
Interest Periods for Term Loans, and no more than five separate Interest Periods
for Revolving Credit Loans, in respect of Eurodollar Loans from each Lender may
be outstanding at any one time, provided that prior to March 31, 1998, all
Eurodollar Loans of any Class must have an Interest Period of one month's
duration and be coterminous with the Interest Periods of all other Eurodollar
Loans of any Class, and, to the extent that prior to such date a Eurodollar Loan
would not satisfy such conditions, such Loan shall be made, or Continued as or
Converted into, a Base Rate Loan.
2.02 Borrowings. The Borrower shall give the Administrative Agent
notice of each borrowing hereunder as provided in Section 4.05 hereof. Not later
than 1:00 p.m. North Carolina time on the date specified for each borrowing
hereunder, each Lender shall make available the amount of the Loan or Loans to
be made by it on such date to the Administrative Agent, at such account as shall
be designated by the Administrative Agent from time to time, in immediately
available funds, for account of the Borrower. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by depositing the same, in
immediately available funds, in an account of the Borrower designated by the
Borrower pursuant to the Notice of Account Designation then in effect.
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2.03 Changes of the Commitments.
(a) The aggregate amount of the Revolving Credit Commitments
shall be automatically reduced to zero on the Revolving Credit Commitment
Termination Date.
(b) The Borrower shall have the right at any time or from time
to time (i) to terminate or reduce the aggregate unutilized amount of the Term
Loan Commitments, (ii) so long as no Revolving Credit Loans are outstanding, to
terminate the Revolving Credit Commitments, and (iii) to reduce the aggregate
unutilized amount of the Revolving Credit Commitments; provided that (x) the
Borrower shall give notice of each such termination or reduction as provided in
Section 4.05 and (y) each partial reduction of the Commitments of any Class
shall be in an aggregate amount equal to $1,000,000 or a larger multiple of
$1,000,000.
(c) Any portion of the Term Loan Commitments not utilized on
the Closing Date shall be automatically terminated.
(d) The Commitments once terminated or reduced may not be
reinstated.
2.04 Commitment Fee. The Borrower shall pay to the Administrative Agent
for account of each Lender a commitment fee on the daily average unutilized
amount of such Lender's Revolving Credit Commitment, for the period from and
including the date hereof to but not including the earlier of the date such
Revolving Credit Commitment is terminated and the Revolving Credit Commitment
Termination Date, at a rate per annum equal to the Applicable Margin then in
effect. Accrued commitment fee shall be payable on each Quarterly Date and on
the earlier of the date the relevant Commitments are terminated and the
Revolving Credit Commitment Termination Date.
2.05 Lending Offices. The Loans of each Type made by each Lender shall
be made and maintained at such Lender's Applicable Lending Office for Loans of
such Type.
2.06 Several Obligations; Remedies Independent. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender, and
(except as otherwise provided in Section 4.06) no Lender shall have any
obligation to the Administrative Agent or any other Lender for the failure by
such Lender to make any Loan required to be made by such Lender. The amounts
payable by the Borrower at any time
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hereunder and under the Notes to each Lender shall be a separate and independent
debt and each Lender shall be entitled to protect and enforce its rights arising
out of this Agreement and the Notes, and it shall not be necessary for any other
Lender or the Administrative Agent to consent to, or be joined as an additional
party in, any proceedings for such purposes.
2.07 Notes.
(a) The Revolving Credit Loans (other than Registered Loans)
made by each Lender shall be evidenced by a single promissory note of the
Borrower substantially in the form of Exhibit A-1, dated the date hereof,
payable to such Lender in a principal amount equal to the amount of its
Revolving Credit Commitment as originally in effect and otherwise duly
completed.
(b) The Term Loans (other than Registered Loans) made by each
Lender shall be evidenced by a single promissory note of the Borrower
substantially in the form of Exhibit A-2, dated the date hereof, payable to such
Lender in a principal amount equal to the amount of its Term Loan Commitment as
originally in effect and otherwise duly completed.
(c) The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Loan of each Class made by each Lender
to the Borrower, and each payment made on account of the principal thereof,
shall be recorded by such Lender on its books and, prior to any transfer of any
Note evidencing the Loans of such Class held by it, endorsed by such Lender on
the schedule attached to such Note or any continuation thereof; provided that
the failure of such Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make a payment when due of any amount
owing hereunder or under such Note in respect of such Loans.
(d) No Lender shall be entitled to have its Notes substituted
or exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Lender's relevant Commitment, Loans and Notes pursuant to
Section 12.06 and except as provided in paragraph (e) of this Section 2.07 (and,
if requested by any Lender, the Borrower agrees to so exchange any Note).
(e) Notwithstanding the foregoing, any Lender that is not a
U.S. Person and is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code may request the Borrower (through the Administrative Agent), and the
Borrower agrees thereupon, to record on the Register referred to in Section
12.06(g) any Loans of any Class held by such Lender under this Agreement. Loans
recorded on the Register ("Registered Loans") may not be evidenced by promissory
notes other than Registered Notes as defined below and, upon the registration of
any Loan, any
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promissory note (other than a Registered Note) evidencing the same shall be null
and void and shall be returned to the Borrower. The Borrower agrees, at the
request of any Lender that is the holder of Registered Loans, to execute and
deliver to such Lender a promissory note in registered form to evidence such
Registered Loans (i.e., containing the optional registered note language as
indicated in Exhibit A-1 or A-2, as the case may be) and registered as provided
in Section 12.06(g) (herein, a "Registered Note"), dated the date hereof,
payable to such Lender and otherwise duly completed. A Loan once recorded on the
Register may not be removed from the Register so long as it remains outstanding
and a Registered Note may not be exchanged for a promissory note that is not a
Registered Note.
2.08 Optional Prepayments and Conversions or Continuations of Loans.
Subject to Section 4.04, the Borrower shall have the right to prepay Loans, or
to Convert Loans of one Type into Loans of another Type or Continue Loans of one
Type as Loans of the same Type, at any time or from time to time and in each
case without premium or penalty, provided that: (a) the Borrower shall give the
Administrative Agent notice of each such prepayment, Conversion or Continuation
as provided in Section 4.05 (and, upon the date specified in any such notice of
prepayment, the amount to be prepaid shall become due and payable hereunder);
(b) Eurodollar Loans may be prepaid or Converted only on the last day of an
Interest Period for such Loans; (c) prepayments of the Term Loans shall be
applied to the installments of the Term Loans in the inverse order of their
maturities; and (d) any Conversion into or Continuation of Eurodollar Loans
shall be subject to the provisions of Section 2.01(c). Notwithstanding the
foregoing, and without limiting the rights and remedies of the Lenders under
Section 10, in the event that any Event of Default shall have occurred and be
continuing, the Administrative Agent may (and at the request of the Majority
Lenders shall) suspend the right of the Borrower to Convert any Loan into a
Eurodollar Loan, or to Continue any Loan as a Eurodollar Loan, in which event
all Loans shall be Converted (on the last day(s) of the respective Interest
Periods therefor) into, or Continued as, as the case may be, Base Rate Loans.
2.09 Mandatory Prepayments and Reductions of Commitments.
(a) Casualty Events. Upon the date 30 days following the
receipt by the Borrower or any of its Subsidiaries of the proceeds of insurance,
condemnation award or other compensation in respect of any Casualty Event
affecting any Property of the Borrower or any of its Subsidiaries (or upon such
earlier date as the Borrower or such Subsidiary, as the case may be, shall have
determined not to repair or replace the Property affected by such Casualty
Event), the Borrower shall prepay the Loans, and/or the Commitments shall be
subject to automatic reduction, in an aggregate amount, if any, equal to 100% of
the Net Available Proceeds of such Casualty Event not theretofore applied to the
repair or replacement of such Property, such prepayment and/or reduction to be
effected in each case in the manner and to the extent specified in paragraph (e)
of this Section 2.09; provided that if, on or before the
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60th day following such receipt, the Borrower furnishes to the Administrative
Agent and the Arranger a plan for the repair or replacement of the Property
affected by such Casualty Event that the Administrative Agent and the Arranger
approve in the reasonable exercise of their discretion as appropriate in light
of the nature of such Property, the time by which such prepayment and reduction
must occur shall be extended to such later date as shall be set forth in such
plan with respect to the amount of the Net Available Proceeds referred to in
such plan as will be expended for such repair or replacement and provided
further that the Net Available Proceeds of such Casualty Event shall not be
applied to repair or replacement of such Property should an Event of Default
have occurred and been continuing but shall instead be applied in their entirety
to the prepayment of the Loans and/or the reduction of the Commitments, in each
case in the manner and to the extent specified in paragraph (e) of this Section
2.09.
(b) Excess Cash Flow. Not later than the date 90 days after
the last day of each fiscal year of the Borrower ending after the Closing Date,
the Borrower shall prepay the Loans, and/or the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to the excess of (A) the
Applicable Percentage (as defined below) of Excess Cash Flow for such fiscal
year over (B) the aggregate amount of prepayments of Term Loans made during such
fiscal year pursuant to Section 2.08 and, after the payment in full of the Term
Loans, the aggregate amount of voluntary reductions of the Revolving Credit
Commitments made during such fiscal year pursuant to Section 2.03(b), such
prepayment and/or reduction to be effected in each case in the manner and to the
extent specified in paragraph (e) of this Section 2.09. For purposes of the
preceding sentence "Applicable Percentage" means, on any day, 25%, if the
Leverage Ratio on such day is less than 2.50 to 1, and 50%, in all other cases.
(c) Sale of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Majority Lenders pursuant to Section 9.05
to any Disposition not otherwise permitted hereunder, in the event that the Net
Available Proceeds of any Disposition (herein, the "Current Disposition"), and
of all prior Dispositions as to which a prepayment has not yet been made under
this paragraph, shall exceed $2,500,000 then, no later than five Business Days
prior to the occurrence of the Current Disposition, the Borrower will deliver to
the Lenders a statement, certified by a Financial Officer of the Borrower, in
form and detail satisfactory to the Administrative Agent, of the amount of the
Net Available Proceeds of the Current Disposition and of all such prior
Dispositions and upon the date 90 days following the receipt by the Borrower or
any of its Subsidiaries of the proceeds of the Current Disposition (or upon such
earlier date as the Borrower or such Subsidiary, as the case may be, shall have
determined not to reinvest the proceeds of the Current Disposition in Capital
Expenditures or the acquisition of any business not prohibited hereby), the
Borrower shall prepay the Loans, and/or the Commitments shall be subject to
automatic reduction, in an aggregate amount, if any, equal to 100% of the Net
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Available Proceeds of the Current Disposition and such prior Dispositions not
theretofore so reinvested, such prepayment and/or reduction to be effected in
each case in the manner and to the extent specified in paragraph (e) of this
Section 2.09.
(d) Debt Incurrence. Upon any Debt Incurrence, the Borrower
shall prepay the Loans, and/or the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 100% of the Net Available Proceeds
thereof, such prepayment and/or reduction to be effected in each case in the
manner and to the extent specified in paragraph (e) of this Section 2.09.
(e) Application. Prepayments and/or reductions of the
Commitments described in paragraphs (a), (b), (c) or (d) of this Section 2.09
shall be applied as follows:
first, (i) if such prepayment and/or reduction of the
Commitments is required to be made before the Term Loan Commitments
have terminated, to reduce the aggregate amount of the Term Loan
Commitments (and to the extent that, after giving effect to such
reduction, the aggregate principal amount of the Term Loans would
exceed the Term Loan Commitments, the Borrower shall prepay the Term
Loans in an aggregate amount equal to such excess), and (ii) if such
prepayment and/or reduction of the Commitments is required to be made
after the Term Loan Commitments have terminated, to prepay the Term
Loans, and
second, after the payment in full of the Term Loans and the
termination of the Term Loan Commitments, to reduce the aggregate
amount of the Revolving Credit Commitments (and to the extent that,
after giving effect to such reduction, the aggregate principal amount
of the Revolving Credit Loans would exceed the Revolving Credit
Commitments, the Borrower shall prepay the Revolving Credit Loans in an
aggregate amount equal to such excess, such payment to be made for
account of the Lenders pro rata in accordance with the amounts of
Revolving Credit Loans then due and payable to the respective Lenders.
Each such prepayment of the Term Loans shall be applied to the installments
thereof in the inverse order of maturity.
2.10 Loans under Existing Credit Agreement. The parties hereto
acknowledge that (i) the "Loans" made under the Existing Credit Agreement
outstanding on the Effective Date shall continue and remain outstanding and not
be repaid on the Effective Date, but shall be assigned and reallocated among the
Lenders as provided in Section 2.01 hereof as Loans hereunder and (ii) the
"Secured Obligations" (as defined in the Security Agreement), and the security
interest pledged and granted to the Administrative Agent by each Obligor
pursuant to the Security
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Agreement, shall continue and remain outstanding and (in the case of the
"Secured Obligations") not be repaid on the Effective Date.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) The Borrower hereby promises to pay to the Administrative
Agent for account of each Lender the entire outstanding principal amount of such
Lender's Revolving Credit Loans, and each Revolving Credit Loan shall mature, on
the Revolving Credit Commitment Termination Date.
(b) The Borrower hereby promises to pay to the Administrative
Agent for account of each Lender the principal of such Lender's Term Loans in
sixteen installments payable on the Principal Payment Dates as follows:
Principal Payment Date
Following on or Nearest to: Amount of Installation ($)
-------------------------- --------------------------
March 31, 2000 $1,250,000
June 30, 2000 1,250,000
September 30, 2000 1,250,000
December 31, 2000 1,250,000
March 31, 2001 4,375,000
June 30, 2000 4,375,000
September 30, 2001 4,375,000
December 31, 2001 4,375,000
March 31, 2002 5,625,000
June 30, 2002 5,625,000
September 30, 2002 5,625,000
December 31, 2002 5,625,000
March 31, 2003 6,250,000
June 30, 2003 6,250,000
September 30, 2003 6,250,000
December 31, 2003 6,250,000
If the Borrower does not borrow the full amount of the aggregate Term Loan
Commitments on the Closing Date, the shortfall shall be applied to reduce the
foregoing installments ratably.
3.02 Interest. The Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan made by such Lender for the period from and including the
date of such Loan
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<PAGE>
to but excluding the date such Loan shall be paid in full, at the following
rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the
Base Rate (as in effect from time to time) plus the Applicable Margin; and
(b) during each Interest Period for such Loan during which
such Loan is a Eurodollar Loan, the Eurodollar Rate for such Interest Period
plus the Applicable Margin.
Notwithstanding the foregoing, the Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate on any principal of any Loan made by such Lender and on any
other amount payable by the Borrower hereunder or under the Notes held by such
Lender to or for account of such Lender, that shall not be paid in full when due
(whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full. Accrued interest on each Loan shall
be payable (i) in the case of a Base Rate Loan, quarterly on the Quarterly
Dates, (ii) in the case of a Eurodollar Loan, on the last day of each Interest
Period therefor and, if such Interest Period is longer than three months, at
three-month intervals following the first day of such Interest Period, and (iii)
in the case of any Loan, upon the payment or prepayment thereof or the
Conversion of such Loan to a Loan of another Type (but only on the principal
amount so paid, prepaid or Converted), except that interest payable at the
Post-Default Rate shall be payable from time to time on demand. Promptly after
the determination of any interest rate provided for herein or any change
therein, the Administrative Agent shall give notice thereof to the Lenders to
which such interest is payable and to the Borrower.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by the Borrower
under this Agreement and the Notes, and, except to the extent otherwise provided
therein, all payments to be made by the Obligors under any other Loan Document,
shall be made in Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to the Administrative Agent at such account as shall be
designated by the Administrative Agent from time to time, not later than 1:00
p.m. Charlotte, North Carolina time on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day).
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<PAGE>
(b) Any Lender for whose account any such payment is to be
made may (but shall not be obligated to) debit the amount of any such payment
that is not made by such time to any ordinary deposit account of the Borrower
with such Lender (with notice to the Borrower and the Administrative Agent),
provided that such Lender's failure to give such notice shall not affect the
validity thereof.
(c) The Borrower shall, at the time of making each payment
under this Agreement or any Note for account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that the Borrower fails to so
specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Lenders for application
in such manner as it or the Majority Lenders, subject to Section 4.02, may
determine to be appropriate).
(d) Each payment received by the Administrative Agent under
this Agreement or any Note for account of any Lender shall be paid by the
Administrative Agent promptly to such Lender, in immediately available funds,
for account of such Lender's Applicable Lending Office for the Loan or other
obligation in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day that is not a Business Day, such date shall
be extended to the next succeeding Business Day, and interest shall be payable
for any principal so extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each borrowing of Loans of a particular Class from the Lenders under
Section 2.01 shall be made from the relevant Lenders, each payment of commitment
fee under Section 2.04 shall be made for account of the relevant Lenders, and
each termination or reduction of the amount of the Commitments of a particular
Class under Section 2.03 shall be applied to the respective Commitments of such
Class of the relevant Lenders, pro rata according to the amounts of their
respective Commitments of such Class; (b) except as otherwise provided in
Section 5.04, Eurodollar Loans of any Class having the same Interest Period
shall be allocated pro rata among the relevant Lenders according to the amounts
of their respective Revolving Credit Commitments and Term Loan Commitments (in
the case of the making of Loans) or their respective Revolving Credit Loans and
Term Loans; (c) each payment or prepayment of principal of Revolving Credit
Loans and Term Loans by the Borrower shall be made for account of the relevant
Lenders pro rata in accordance with the respective unpaid principal amounts of
the Loans of such Class held by them; and (d) each payment of interest on
Revolving Credit Loans and Term Loans by the Borrower shall be made for account
of the relevant Lenders pro rata in accordance
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<PAGE>
with the amounts of interest on such Loans then due and payable to the
respective Lenders.
4.03 Computations. Interest on Eurodollar Loans and commitment fees
shall be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable and interest on Base Rate Loans shall be computed on the basis of
a year of 365 or 366 days, as the case may be, and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable. Notwithstanding the foregoing, for each day that the Base Rate is
calculated by reference to the Federal Funds Rate, interest on Base Rate Loans
shall be computed on the basis of a year of 360 days and actual days elapsed.
4.04 Minimum Amounts. Except for mandatory prepayments made pursuant to
Section 2.09 and Conversions or prepayments made pursuant to Section 5.04, each
borrowing, Conversion and partial prepayment of principal of Loans of either
Class shall be in an aggregate amount equal to $1,000,000 or a larger multiple
of $500,000 (borrowings, Conversions or prepayments of or into Loans of
different Types or, in the case of Eurodollar Loans, having different Interest
Periods at the same time hereunder to be deemed separate borrowings, Conversions
and prepayments for purposes of the foregoing, one for each Type or Interest
Period), provided that the aggregate principal amount of Eurodollar Loans having
the same Interest Period shall be in an amount equal to $5,000,000 or a larger
multiple of $1,000,000 and, if any Eurodollar Loans would otherwise be in a
lesser principal amount for any period, such Loans shall be Base Rate Loans
during such period.
4.05 Certain Notices. Notices by the Borrower to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans, of Classes of
Loans, of Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the Administrative Agent
not later than 10:00 a.m., Charlotte, North Carolina time, on the number of
Business Days prior to the date of the relevant termination, reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
<TABLE>
<CAPTION>
Number of
Business
Notice Days Prior
------ ----------
<S> <C>
Termination or reduction of Commitments 3
Borrowing or prepayment of, or Conversions into,
Base Rate Loans 1
- 30 -
<PAGE>
Borrowing or prepayment of, Conversions into,
Continuations as, or duration of Interest
Period for, Eurodollar Loans 3
</TABLE>
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04) and Type of each Loan to be borrowed, Converted,
Continued or prepaid and the date of borrowing, Conversion, Continuation or
optional prepayment (which shall be a Business Day). Each such notice of
borrowing shall be accompanied by a Notice of Account Designation should the
Borrower wish to alter the Notice of Account Designation then in effect. Each
such notice of the duration of an Interest Period shall specify the Loans to
which such Interest Period is to relate. The Administrative Agent shall promptly
notify the Lenders of the contents of each such notice. In the event that the
Borrower fails to select the Type of Loan, or the duration of any Interest
Period for any Eurodollar Loan within the time period and otherwise as provided
in this Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Lender or the Borrower (the
"Payor") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Borrower) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day and, if
such recipient(s) shall fail promptly to make such payment, the Administrative
Agent shall be entitled to recover such amount, on demand, from the Payor,
together with interest as aforesaid, provided that if neither the recipient(s)
nor the Payor shall return the Required Payment to the Administrative Agent
within three Business Days of the Advance
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<PAGE>
Date, then, retroactively to the Advance Date, the Payor and the recipient(s)
shall each be obligated to pay interest on the Required Payment as follows:
(a) if the Required Payment shall represent a payment to be
made by the Borrower to the Lenders, the Borrower and the recipient(s) shall
each be obligated retroactively to the Advance Date to pay interest in respect
of the Required Payment at the Post-Default Rate (without duplication of the
obligation of the Borrower under Section 3.02 to pay interest on the Required
Payment at the Post-Default Rate), it being understood that the return by the
recipient(s) of the Required Payment to the Administrative Agent shall not limit
such obligation of the Borrower under Section 3.02 to pay interest at the
Post-Default Rate in respect of the Required Payment, and
(b) if the Required Payment shall represent proceeds of a Loan
to be made by the Lenders to the Borrower, the Payor and the Borrower shall each
be obligated retroactively to the Advance Date to pay interest in respect of the
Required Payment pursuant to whichever of the rates specified in Section 3.02 is
applicable to the Type of such Loan, it being understood that the return by the
Borrower of the Required Payment to the Administrative Agent shall not limit any
claim the Borrower may have against the Payor in respect of such Required
Payment.
4.07 Sharing of Payments, Etc.
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Lender may
otherwise have, each Lender shall be entitled, at its option (to the fullest
extent permitted by law), to set off and apply any deposit (general or special,
time or demand, provisional or final), or other indebtedness, held by it for the
credit or account of such Obligor at any of its offices, in Dollars or in any
other currency, against any principal of or interest on any of such Lender's
Loans or any other amount payable to such Lender hereunder, that is not paid
when due (regardless of whether such deposit or other indebtedness is then due
to such Obligor), in which case it shall promptly notify such Obligor and the
Administrative Agent thereof, provided that such Lender's failure to give such
notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan of any Class owing to it or payment of any
other amount under this Agreement or any other Loan Document through the
exercise of any right of set-off, banker's lien or counterclaim or similar right
or otherwise (other than from the Administrative Agent as provided herein), and,
as a result of such payment, such Lender shall have received a greater
percentage of the principal of or interest on the Loans of such Class or such
other amounts then due hereunder or thereunder by such Obligor to such Lender
than the percentage received by any other Lender, it shall promptly purchase
from such other Lenders participations in (or, if
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<PAGE>
and to the extent specified by such Lender, direct interests in) the Loans of
such Class or such other amounts, respectively, owing to such other Lenders (or
in interest due thereon, as the case may be) in such amounts, and make such
other adjustments from time to time as shall be equitable, to the end that all
the Lenders shall share the benefit of such excess payment (net of any expenses
that may be incurred by such Lender in obtaining or preserving such excess
payment) pro rata in accordance with the unpaid principal of and/or interest on
the Loans of such Class or such other amounts, respectively, owing to each of
the Lenders. To such end all the Lenders shall make appropriate adjustments
among themselves (by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored.
(c) The Borrower agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a set-off to which this Section 4.07 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 4.07 to
share in the benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Borrower shall pay directly to each Lender from time
to time such amounts as such Lender may determine to be necessary to compensate
such Lender for any costs that such Lender determines are attributable to its
making or maintaining of any Eurodollar Loans or its obligation to make any
Eurodollar Loans hereunder, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change that:
(i) shall subject any Lender (or its Applicable
Lending Office for any of such Loans) to any tax, duty or other charge
in respect of such Loans or its Notes or changes the basis of taxation
of any amounts payable to such Lender under this Agreement or its Notes
in respect of any of such Loans (excluding changes in the rate of tax
on the overall net income of such Lender
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<PAGE>
or of such Applicable Lending Office by the jurisdiction in which such
Lender has its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit
or similar requirements (other than the Reserve Requirement used in the
determination of the Eurodollar Rate for any Interest Period for such
Loan) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Lender (including, without
limitation, any of such Loans or any deposits referred to in the
definition of "Eurodollar Base Rate" in Section 1.01), or any
commitment of such Lender (including, without limitation, the
Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this
Agreement or its Notes (or any of such extensions of credit or
liabilities) or its Commitments.
If any Lender requests compensation from the Borrower under this paragraph, the
Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or Continue
Eurodollar Loans, or to Convert Loans of any other Type into Eurodollar Loans,
until the Regulatory Change giving rise to such request ceases to be in effect
(in which case the provisions of Section 5.04 shall be applicable), provided
that such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Without limiting the effect of the foregoing provisions of
this Section 5.01 (but without duplication), the Borrower shall pay directly to
each Lender from time to time on request such amounts as such Lender may
reasonably determine to be necessary to compensate such Lender (or, without
duplication, the bank holding company of which such Lender is a subsidiary) for
any costs that it reasonably determines are reasonably directly attributable to
the maintenance by such Lender (or any Applicable Lending Office or such bank
holding company), pursuant to any law or regulation or any interpretation,
directive or request (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) of any court or governmental or
monetary authority (i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not having the
force of law and whether or not the failure to comply therewith would be
unlawful) hereafter issued by any government or governmental or supervisory
authority implementing at the national level the Basle Accord, of capital in
respect of its Commitments or Loans (such compensation to include, without
limitation, an amount equal to any reduction of the rate of return on assets or
equity of such Lender (or any Applicable Lending Office or such bank holding
company) to a level below that which such Lender (or any Applicable Lending
Office or such bank holding company) could have reasonably certainly achieved
but for such law, regulation, interpretation, directive or request.
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<PAGE>
(c) Each Lender shall notify the Borrower of any event
occurring after the date hereof entitling such Lender to compensation under
paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in any
event within 45 days, after such Lender obtains actual knowledge thereof;
provided that (i) if any Lender fails to give such notice within 45 days after
it obtains actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 45 days prior to the date that such
Lender does give such notice and (ii) each Lender will designate a different
Applicable Lending Office for the Loans of such Lender affected by such event if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender, except that such Lender shall have no obligation
to designate an Applicable Lending Office located in the United States of
America. Each Lender will furnish to the Borrower a certificate setting forth
the basis and amount of each request by such Lender for compensation under
paragraph (a) or (b) of this Section 5.01. Determinations and allocations by any
Lender for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) of this Section 5.01, or of the effect of capital
maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate
of return of maintaining Loans or its obligation to make Loans, or on amounts
receivable by it in respect of Loans, and of the amounts required to compensate
such Lender under this Section 5.01, shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of the Eurodollar Base
Rate for any Interest Period for any Eurodollar Loan;
(a) the Administrative Agent determines, which determination
shall be conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01 are not
being provided in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for Eurodollar Loans as provided
herein; or
(b) the Majority Revolving Credit Lenders (in the case of
Revolving Credit Loans) or the Majority Term Loan Lenders (in the case of Term
Loans) determine, which determination shall be conclusive, and notify the
Administrative Agent that the relevant rates of interest referred to in the
definition of "Eurodollar Base Rate" in Section 1.01 upon the basis of which the
rate of interest for Eurodollar Loans for such Interest Period is to be
determined are not likely adequately to cover the cost to such Lenders of making
or maintaining Eurodollar Loans for such Interest Period;
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<PAGE>
then the Administrative Agent shall give the Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Loans of any other Type into Eurodollar Loans,
and the Borrower shall, on the last day(s) of the then current Interest
Period(s) for the outstanding Eurodollar Loans, either prepay such Loans or
Convert such Loans into another Type of Loan in accordance with Section 2.08.
5.03 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to honor its obligation to make or maintain Eurodollar Loans hereunder
(and, in the sole opinion of such Lender, the designation of a different
Applicable Lending Office would either not avoid such unlawfulness or would be
disadvantageous to such Lender), then such Lender shall promptly notify the
Borrower thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
Eurodollar Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions of Section 5.04
shall be applicable).
5.04 Treatment of Affected Loans. If the obligation of any Lender to
make Eurodollar Loans or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03, such
Lender's Eurodollar Loans shall be automatically Converted into Base Rate Loans
on the last day(s) of the then current Interest Period(s) for Eurodollar Loans
(or, in the case of a Conversion resulting from a circumstance described in
Section 5.03, on such earlier date as such Lender may specify to the Borrower
with a copy to the Administrative Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 5.01 or
5.03 that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have
been so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans shall be applied instead
to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Eurodollar Loans shall be made or Continued instead as Base Rate
Loans, and all Loans of such Lender that would otherwise be Converted into
Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 that gave rise to
the Conversion of such Lender's Eurodollar Loans pursuant to this Section 5.04
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans of the same Class made by
other Lenders are
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<PAGE>
outstanding, such Lender's Base Rate Loans of such Class shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Base Rate Loans and Eurodollar Loans of such Class are
allocated among the Lenders ratably (as to principal amounts, Types and Interest
Periods) in accordance with their respective Commitments of such Class.
5.05 Compensation. The Borrower shall pay to the Administrative Agent
for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or
Conversion of a Eurodollar Loan made by such Lender for any reason (including,
without limitation, the acceleration of the Loans pursuant to Section 10) on a
date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the conditions precedent specified in
Section 7 to be satisfied) to borrow a Eurodollar Loan from such Lender on the
date for such borrowing specified in the relevant notice of borrowing given
pursuant to Section 2.03.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender), or if such Lender shall cease to make such bids, the equivalent rate,
as reasonably determined by such Lender, derived from Page 3750 of the Dow Jones
Markets Service or other publicly available source as described in the
definition of "Eurodollar Base Rate" in Section 1.01.
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<PAGE>
5.06 U.S. Taxes.
(a) The Borrower agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, provided
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Lender hereunder (other
than in respect of any Registered Loan) unless such Lender is, on the
date hereof (or on the date it becomes a Lender hereunder as provided
in Section 12.06(b)) and on the date of any change in the Applicable
Lending Office of such Lender, either entitled to submit a Form 1001
(relating to such Lender and entitling it to a complete exemption from
withholding on all interest to be received by it hereunder in respect
of the Loans) or Form 4224 (relating to all interest to be received by
such Lender hereunder in respect of the Loans),
(ii) to any payment to any Lender hereunder in
respect of a Registered Loan (a "Registered Holder"), unless such
Registered Holder (or, if such Registered Holder is not the beneficial
owner of such Registered Loan, the beneficial owner thereof) is, on the
date hereof (or on the date such Registered Holder becomes a Lender as
provided in Section 12.06(b)) and on the date of any change in the
Applicable Lending Office of such Lender, entitled to submit a Form
W-8, together with an annual certificate stating that (x) such
Registered Holder (or beneficial owner, as the case may be) is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, and (y)
such Registered Holder (or beneficial owner, as the case may be) shall
promptly notify the Borrower if at any time, such Registered Holder (or
beneficial owner, as the case may be) determines that it is no longer
in a position to provide such certificate to the Borrower (or any other
form of certification adopted by the relevant taxing authorities of the
United States of America for such purposes), or
(iii) to any U.S. Taxes imposed solely by reason of
the failure by such non-U.S. Person (or, if such non-U.S. Person is not
the beneficial owner of the relevant Loan, such beneficial owner) to
comply with applicable certification, information, documentation or
other reporting requirements concerning the nationality, residence,
identity or connections with the United States of America of such
non-U.S. Person (or beneficial owner, as the case may be) if such
compliance is required by statute or regulation of the United States of
America as a precondition to relief or exemption from such U.S. Taxes.
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For the purposes of this paragraph, (A) "Form 1001" means Form 1001 (Ownership,
Exemption, or Reduced Rate Certificate) of the Department of the Treasury of the
United States of America, (B) "Form 4224" means Form 4224 (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct of a Trade
or Business in the United States) of the Department of the Treasury of the
United States of America and (C) "Form W-8" means Form W-8 (Certificate of
Foreign Status) of the Department of Treasury of the United States of America.
Each of the Forms referred to in the foregoing clauses (A), (B) and (C) shall
include such successor and related forms as may from time to time be adopted by
the relevant taxing authorities of the United States of America to document a
claim to which such Form relates.
(b) Within 30 days after paying any amount to the
Administrative Agent or any Lender from which it is required by law to make any
deduction or withholding, and within 30 days after it is required by law to
remit such deduction or withholding to any relevant taxing or other authority,
the Borrower shall deliver to the Administrative Agent for delivery to such
non-U.S. Person evidence satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
Section 6. Guarantee.
6.01 The Guarantee. The Subsidiary Guarantors hereby jointly and
severally guarantee to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans made by the Lenders to, and the Notes held by each Lender
of, the Borrower and all other amounts from time to time owing to the Lenders or
the Administrative Agent by the Borrower under this Agreement and under the
Notes and by any Obligor under any of the other Loan Documents, and all
obligations of the Borrower or any of its Subsidiaries to any Lender in respect
of any Hedging Agreement, in each case strictly in accordance with the terms
thereof (such obligations being herein collectively called the "Guaranteed
Obligations"). The Subsidiary Guarantors hereby further jointly and severally
agree that if the Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the
Subsidiary Guarantors will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
6.02 Obligations Unconditional. The obligations of the Subsidiary
Guarantors under Section 6.01 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Borrower under this Agreement, the Notes or any other
agreement
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or instrument referred to herein or therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 6.02 that the obligations of the Subsidiary
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Subsidiary Guarantors hereunder,
which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to the
Subsidiary Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(b) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to herein
or therein shall be done or omitted;
(c) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement or the
Notes or any other agreement or instrument referred to herein or therein shall
be waived or any other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(d) any lien or security interest granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed
against the Borrower under this Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
6.03 Reinstatement. The obligations of the Subsidiary Guarantors under
this Section 6 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of the Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and the Subsidiary Guarantors jointly
and severally agree that they will
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indemnify the Administrative Agent and each Lender on demand for all reasonable
costs and expenses (including, without limitation, fees of counsel) incurred by
the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
6.04 Subrogation. The Subsidiary Guarantors hereby jointly and
severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders under this Agreement they shall not exercise any right or remedy
arising by reason of any performance by them of their guarantee in Section 6.01,
whether by subrogation or otherwise, against the Borrower or any other guarantor
of any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
Each Subsidiary Guarantor hereby waives all rights of subrogation or
contribution, whether arising by contract or operation of law (including,
without limitation, any such right arising under the Bankruptcy Code) or
otherwise by reason of any payment by it pursuant to the provisions of this
Section 6 and further agrees with the Borrower for the benefit of each of its
creditors (including, without limitation, each Lender and the Administrative
Agent) that any such payment by it shall constitute a contribution of capital by
such Subsidiary Guarantor to the Borrower (or an investment in the equity
capital of the Borrower by such Subsidiary Guarantor).
6.05 Remedies. The Subsidiary Guarantors jointly and severally agree
that, as between the Subsidiary Guarantors and the Lenders, the obligations of
the Borrower under this Agreement and the Notes may be declared to be forthwith
due and payable as provided in Section 10 (and shall be deemed to have become
automatically due and payable in the circumstances provided in Section 10) for
purposes of Section 6.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors
for purposes of Section 6.01.
6.06 Instrument for the Payment of Money. Each Subsidiary Guarantor
hereby acknowledges that the guarantee in this Section 6 constitutes an
instrument for the payment of money, and consents and agrees that any Lender or
the Administrative Agent, at its sole option, in the event of a dispute by such
Subsidiary Guarantor in the payment of any moneys due hereunder, shall have the
right to bring motion-action under New York CPLR Section 3213.
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6.07 Continuing Guarantee. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.08 Rights of Contribution. The Subsidiary Guarantors hereby agree, as
between themselves, that if any Subsidiary Guarantor shall become an Excess
Funding Guarantor (as defined below) by reason of the payment by such Subsidiary
Guarantor of any Guaranteed Obligations, each other Subsidiary Guarantor shall,
on demand of such Excess Funding Guarantor (but subject to the next sentence),
pay to such Excess Funding Guarantor an amount equal to such Subsidiary
Guarantor's Pro Rata Share (as defined below and determined, for this purpose,
without reference to the Properties, debts and liabilities of such Excess
Funding Guarantor) of the Excess Payment (as defined below) in respect of such
Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to any
Excess Funding Guarantor under this Section 6.08 shall be subordinate and
subject in right of payment to the prior payment in full of the obligations of
such Subsidiary Guarantor under the other provisions of this Section 6 and such
Excess Funding Guarantor shall not exercise any right or remedy with respect to
such excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section 6.08, (i) "Excess Funding
Guarantor" means, in respect of any Guaranteed Obligations, a Subsidiary
Guarantor that has paid an amount in excess of its Pro Rata Share of such
Guaranteed Obligations, (ii) "Excess Payment" means, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess
of its Pro Rata Share of such Guaranteed Obligations and (iii) "Pro Rata Share"
means, for any Subsidiary Guarantor, the ratio (expressed as a percentage) of
(x) the amount by which the aggregate present fair saleable value of all
Properties of such Subsidiary Guarantor (excluding any shares of stock of any
other Subsidiary Guarantor) exceeds the amount of all the debts and liabilities
of such Subsidiary Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Subsidiary
Guarantor hereunder and any obligations of any other Subsidiary Guarantor that
have been Guaranteed by such Subsidiary Guarantor) to (y) the amount by which
the aggregate fair saleable value of all Properties of all of the Subsidiary
Guarantors exceeds the amount of all the debts and liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities, but excluding
the obligations of the Borrower and the Subsidiary Guarantors hereunder and
under the other Loan Documents) of all of the Subsidiary Guarantors, determined
(A) with respect to any Subsidiary Guarantor that is a party hereto on the
Closing Date, as of the Closing Date, and (B) with respect to any other
Subsidiary Guarantor, as of the date such Subsidiary Guarantor becomes a
Subsidiary Guarantor hereunder.
6.09 General Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if
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the obligations of any Subsidiary Guarantor under Section 6.01 would otherwise,
taking into account the provisions of Section 6.08, be held or determined to be
void, invalid or unenforceable, or subordinated to the claims of any other
creditors, on account of the amount of its liability under Section 6.01, then,
notwithstanding any other provision hereof to the contrary, the amount of such
liability shall, without any further action by such Subsidiary Guarantor, any
Lender, the Administrative Agent or any other Person, be automatically limited
and reduced to the highest amount that is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or
proceeding.
Section 7. Conditions.
7.01 Initial Loan. The effectiveness of this Agreement (and the
amendment and restatement of the Existing Credit Agreement to be effected
hereby) is subject to the condition precedent that the Administrative Agent
shall have received the following documents (with, in the case of clauses (a),
(b), (c) and (d) below, sufficient copies for each Lender), each of which shall
be satisfactory to the Administrative Agent (and to the extent specified below,
to each Lender) in form and substance:
(a) Reliance Letters. A letter of Hale and Dorr, counsel to
the Obligors, and a letter of Milbank, Tweed, Hadley & McCloy, special New York
counsel to LCPI, each dated the Effective Date, each referring to their legal
opinions delivered pursuant to Section 7.01(a) and (b), respectively, of the
Existing Credit Agreement and each authorizing reliance thereon by the
Administrative Agent and the Lenders.
(b) Notes. The Notes, duly completed and executed for each
Lender (except that, in the case of a Registered Holder, Notes shall be required
only to the extent that such Registered Holder shall have requested the
execution and delivery of a Note pursuant to Section 2.07(e)) in exchange for
the Existing Notes.
(c) Representations and Warranties Made in Existing Credit
Agreement. A certificate of a Senior Officer of the Borrower to the effect that
all certificates delivered by the Borrower to the Existing Administrative Agent
pursuant to Section 7.01 of the Existing Credit Agreement were true and complete
on and as of the Closing Date (or, if any such certificate expressly related to
a specific date or the occurrence of a specific event, as of such specific date
or the occurrence of such specific event).
(d) LCPI Assignment Agreement. A duly executed LCPI Assignment
Agreement, together with evidence that all of the conditions to effectiveness
set forth therein shall have been satisfied.
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(e) Notice of Account Designation. A duly executed Notice of
Account Designation.
7.02 Initial and Subsequent Loans. The obligation of the Lenders to
make any Loan to the Borrower upon the occasion of each borrowing hereunder is
subject to the further conditions precedent that, both immediately prior to the
making of such Loan and also after giving effect thereto and to the intended use
thereof:
(a) the representations and warranties made by the Borrower in
Section 8, and by each Obligor in each of the other Loan Documents to which it
is a party, shall be true and complete on and as of the date of the making of
such Loan with the same force and effect as if made on and as of such date (or,
if any such representation or warranty is expressly stated to have been made as
of a specific date, as of such specific date); and
(b) no Default shall have occurred and be continuing.
Each notice of borrowing by the Borrower hereunder shall constitute a
certification by the Borrower to the effect set forth in the preceding sentence
(both as of the date of such notice and, unless the Borrower otherwise notifies
the Administrative Agent prior to the date of such borrowing, as of the date of
such borrowing).
Section 8. Representations and Warranties.
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
8.01 Organization; Powers. Each of the Borrower and its Subsidiaries:
(a) is a corporation, partnership or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect.
8.02 Authorization; Enforceability. Each Obligor has all necessary
corporate power, authority and legal right to execute, deliver and perform its
obligations under each of the Basic Documents to which it is a party; the
execution, delivery and performance by each Obligor of each of the Basic
Documents to which it is a party have been duly authorized by all necessary
corporate action on its part (including, without limitation, any required
shareholder approvals); and this Agreement has been duly and validly executed
and delivered by each Obligor and constitutes, and
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each of the Notes and the other Basic Documents to which it is a party when
executed and delivered by such Obligor (in the case of the Notes, for value)
will constitute, its legal, valid and binding obligation, enforceable against
each Obligor inaccordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability affecting the enforcement of creditors' rights and
(b) the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
8.03 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by any Obligor of this Agreement or any of the other Basic Documents
to which it is a party or for the legality, validity or enforceability hereof or
thereof, except for filings and recordings in respect of the Liens created
pursuant to the Security Documents.
8.04 No Breach. None of the execution and delivery of this Agreement
and the Notes and the other Basic Documents, the consummation of the
transactions herein and therein contemplated or compliance with the terms and
provisions hereof and thereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws any Obligor, or any applicable
law or regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any agreement or instrument to which the
Borrower or any of its Subsidiaries is a party or by which any of them or any of
their Property is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument, or (except for the Liens created
pursuant to the Security Documents) result in the creation or imposition of any
Lien upon any Property of the Borrower or any of its Subsidiaries pursuant to
the terms of any such agreement or instrument.
8.05 Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to each of the
Lenders (i) consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as at December 31, 1996 and the related consolidated and
consolidating statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for the fiscal year ended on such date, with the
opinion thereon (in the case of such consolidated balance sheet and statements)
of Ernst & Young LLP, and the unaudited consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as at September 30, 1997 and the
related consolidated and consolidating statements of income, retained earnings
and cash flows of the Borrower and its Subsidiaries for the nine-month period
ended on such date and (ii) consolidated and consolidating balance sheets of
Intelicom and its Subsidiaries as at March 31, 1997 and the related consolidated
and consolidating statements of income, retained earnings and cash flows of
Intelicom and its Subsidiaries for the fiscal year ended on such date, with
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the opinion thereon (in the case of such consolidated balance sheet and
statements) of Ernst & Young LLP, and the unaudited consolidated and
consolidating balance sheets of Intelicom and its Subsidiaries as at September
30, 1997 and the related consolidated and consolidating statements of income,
retained earnings and cash flows of Intelicom and its Subsidiaries for the
six-month period ended on such date. All such financial statements present
fairly, in all material respects, the consolidated financial position of the
Borrower and its Subsidiaries or Intelicom and its Subsidiaries, as the case may
be, and (in the case of such consolidating financial statements) the respective
unconsolidated financial position of the Borrower and of each of its
Subsidiaries or Intelicom and its Subsidiaries, as the case may be, as at such
dates and the consolidated and unconsolidated results of their operations for
the fiscal year and nine-month period or six-month period, as the case may be,
ended on such dates (subject, in the case of such financial statements as at
September 30, 1997, to normal year-end audit adjustments), all in accordance
with generally accepted accounting principles and practices applied on a
consistent basis. None of the Borrower, Intelicom or their respective
Subsidiaries had on the Closing Date any material contingent liabilities,
liabilities for taxes, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments, except as referred to or
reflected or provided for in such balance sheets as at such dates.
(b) Since December 31, 1996, there has been no material
adverse change in the consolidated financial condition, operations, business or
prospects taken as a whole of the Borrower and its Subsidiaries from that set
forth in the financial statements as at such date referred to in paragraph (a)
of this Section 8.05. Since September 30, 1997, there has been no material
adverse change in the consolidated financial condition, operations, business or
prospects taken as a whole of Intelicom and its Subsidiaries from that set forth
in the financial statements as at such date referred to in paragraph (a) of this
Section 8.05.
8.06 Properties.
(a) Each of the Borrower and its Subsidiaries owned and had on
the Closing Date (after giving effect to the transactions contemplated to occur
on or before the Closing Date), good and marketable title (subject only to Liens
permitted by Section 9.06) to the Properties shown to be owned in the most
recent financial statements referred to in Section 8.05 (other than Properties
disposed of in the ordinary course of business or otherwise permitted to be
disposed of pursuant to Section 9.05). Each of the Borrower and its Subsidiaries
owned and had on the Closing Date (after giving effect to the transactions
contemplated to occur on or before the Closing Date), good and marketable title
to, and enjoyed on the Closing Date (after giving effect to the transactions
contemplated to occur on or before the Closing Date), peaceful and undisturbed
possession of, all Properties (subject only to
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Liens permitted by Section 9.06) that are necessary for the operation and
conduct of its businesses.
(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.
8.07 Litigation. There are no legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Borrower) threatened against the Borrower or
any of its Subsidiaries that, if adversely determined, could (either
individually or in the aggregate) have a Material Adverse Effect.
8.08 Environmental Matters. Each of the Borrower and its Subsidiaries
has obtained all environmental, health and safety permits, licenses and other
authorizations required under all Environmental Laws to carry on its business as
now being or as proposed to be conducted, except to the extent failure to have
any such permit, license or authorization would not (either individually or in
the aggregate) have a Material Adverse Effect. Each of such permits, licenses
and authorizations is in full force and effect and each of the Borrower and its
Subsidiaries is in compliance with the terms and conditions thereof, and is also
in compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply
therewith would not (either individually or in the aggregate) have a Material
Adverse Effect. In addition, no notice, notification, demand, request for
information, citation, summons or order has been issued, no complaint has been
filed, no penalty has been assessed and no investigation or review is pending or
threatened by any governmental or other entity with respect to any alleged
failure by the Borrower or any of its Subsidiaries to have any environmental,
health or safety permit, license or other authorization required under any
Environmental Law in connection with the conduct of the business of the Borrower
or any of its Subsidiaries or with respect to any generation, treatment,
storage, recycling, transportation, discharge or disposal, or any Release of any
Hazardous Materials generated by the Borrower or any of its Subsidiaries. All
environmental investigations, studies, audits, tests, reviews or other analyses
conducted by or that are in the possession of the Borrower or any of its
Subsidiaries in relation to facts, circumstances or conditions at or affecting
any site or facility now or previously owned, operated or leased by the Borrower
or any of its Subsidiaries and that could result in a Material Adverse Effect
have been made available to the Lenders.
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8.09 Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any
governmental or regulatory authority or agency 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.
8.10 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.11 Public Utility Holding Company Act. Neither the Borrower nor any
of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8.12 Taxes. The Borrower and its Subsidiaries have filed all Federal
income tax returns and all other material tax returns that are required to be
filed by them and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Borrower or any of its Subsidiaries. The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries
in respect of taxes and other governmental charges are, in the opinion of the
Borrower, adequate. The Borrower has not given or been requested to give a
waiver of the statute of limitations relating to the payment of any Federal,
state, local and foreign taxes or other impositions.
8.13 ERISA. Each Plan, and, to the knowledge of the Borrower, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no ERISA
Event has occurred and is continuing as to which the Borrower would be under an
obligation to furnish a report to the Lenders under Section 9.02(c).
8.14 True and Complete Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Obligors to the Administrative Agent, the Arranger or any Lender in connection
with the negotiation, preparation or delivery of this Agreement and the other
Loan Documents or included herein or therein or delivered pursuant hereto or
thereto, when taken as a whole do not contain any untrue statement of material
fact or omit to state any material fact necessary to make the statements herein
or therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the Closing Date by the
Borrower and its Subsidiaries
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to the Administrative Agent, the Arranger and the Lenders in connection with
this Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby was and will be true, complete and accurate in every material
respect, or (in the case of projections) based on reasonable estimates, on the
date as of which such information is stated or certified. There is no fact known
to the Borrower that could have a Material Adverse Effect that has not been
disclosed herein, in the other Loan Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
8.15 Use of Credit. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock, and no part of the proceeds of any Loan
hereunder will be used to buy or carry any Margin Stock.
8.16 Material Agreements and Liens.
(a) Part A of Schedule I is a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to any
Indebtedness or any extension of credit (or commitment for any extension of
credit) to, or guarantee by, the Borrower or any of its Subsidiaries outstanding
on the Closing Date (after giving effect to the transactions contemplated to
occur on or before the Closing Date), the aggregate principal or face amount of
which equals or exceeds (or may equal or exceed) $25,000, and the aggregate
principal or face amount outstanding or that may become outstanding under each
such arrangement is correctly described in Part A of Schedule I.
(b) Part B of Schedule I is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the Closing Date,
(after giving effect to the transactions contemplated to occur on or before the
Closing Date), the aggregate principal or face amount of which equals or exceeds
(or may equal or exceed) $25,000 and covering any Property of the Borrower or
any of its Subsidiaries, and the aggregate Indebtedness secured (or that may be
secured) by each such Lien and the Property covered by each such Lien is
correctly described in Part B of Schedule I.
8.17 Subsidiaries, Etc.
(a) Set forth in Part A of Schedule III is a complete and
correct list of all of the Subsidiaries of the Borrower as of the Closing Date
(after giving effect to the transactions contemplated to occur on or before the
Closing Date), together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary,
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(ii) each Person holding ownership interests in such Subsidiary and (iii) the
nature of the ownership interests held by each such Person and the percentage of
ownership of such Subsidiary represented by such ownership interests. Except as
disclosed in Part A of Schedule III, (x) each of the Borrower and its
Subsidiaries owns, or will own on the Closing Date (after giving effect to the
transactions contemplated to occur on or before the Closing Date), free and
clear of Liens (other than Liens created pursuant to the Security Documents),
and has the unencumbered right to vote, all outstanding ownership interests in
each Person shown to be held by it in Part A of Schedule III, (y) all of the
issued and outstanding capital stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and (z) there are no
outstanding Equity Rights with respect to such Person.
(b) Set forth in Part B of Schedule III is a complete and
correct list of all Investments (other than Investments disclosed in Part A of
Schedule III) held by the Borrower or any of its Subsidiaries in any Person on
the Closing Date (after giving effect to the transactions contemplated to occur
on or before the Closing Date) and, for each such Investment, (x) the identity
of the Person or Persons holding such Investment and (y) the nature of such
Investment. Except as disclosed in Part B of Schedule III, each of the Borrower
and its Subsidiaries owns (or will own, after giving effect to the transactions
contemplated to occur on or before the Closing Date), free and clear of all
Liens (other than Liens created pursuant to the Security Documents), all such
Investments.
(c) None of the Subsidiaries of the Borrower was, on the
Closing Date, subject to any indenture, agreement, instrument or other
arrangement of the type described in Section 9.14.
8.18 Solvency. The aggregate value of all Properties of the Borrower
and its Subsidiaries at their present fair saleable value (i.e., the amount that
may be realized within a reasonable time, considered to be six months to one
year, either through collection or sale at the regular market value, conceiving
the latter as the amount that could be obtained for the Property in question
within such period by a capable and diligent businessman from an interested
buyer who is willing to purchase under ordinary selling conditions), exceed the
amount of all the debts and liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) of the Borrower and its Subsidiaries.
The Borrower and its Subsidiaries do not, on a consolidated basis, have an
unreasonably small capital with which to conduct their business operations. The
Borrower and its Subsidiaries have, on a consolidated basis, sufficient cash
flow to enable them to pay their debts as they mature.
8.19 Property of Obligors located in Maryland and Texas. The value of
any Property of any Obligor which is located in (i) the State of Maryland does
not exceed $30,000 and (ii) the State of Texas does not exceed $2,500.
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8.20 Year 2000 Analysis. The Borrower has conducted a review and
assessment of its computer applications and made inquiry of its key suppliers,
vendors and customers with respect to the risk that computer applications may
not be able to properly perform data-sensitive functions after December 31,
1999) and has concluded that such risk will not result in a material adverse
change in its business condition (financial or otherwise), operations,
properties or prospects, or ability to repay amounts owing hereunder.
Section 9. Covenants of the Borrower.
The Borrower covenants and agrees with the Lenders and the
Administrative Agent that, so long as any Commitment or Loan is outstanding and
until payment in full of all amounts payable by the Borrower hereunder:
9.01 Financial Statements and Other Information. The Borrower shall
deliver to each of the Lenders:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, consolidated statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries for such
fiscal year and the related consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of such fiscal year, setting forth in each case in
comparative form the corresponding consolidated figures for the preceding fiscal
year, and accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state that such
consolidated financial statements present fairly, in all material respects, the
consolidated financial position and results of operations of the Borrower and
its Subsidiaries as at the end of, and for, such fiscal year in accordance with
generally accepted accounting principles, and a statement of such accountants to
the effect that, in making the examination necessary for their opinion, nothing
came to their attention that caused them to believe that the Borrower was not in
compliance with Section 9.10 (which statement may be limited to the extent
required by accounting rules and guidelines);
(b) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of the Borrower,
consolidated and consolidating statements of income, retained earnings and cash
flows of the Borrower and its Subsidiaries for such period and for the period
from the beginning of the respective fiscal year to the end of such period, and
the related consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as at the end of such period (provided that the Borrower shall
not be required to report with respect to Foreign Subsidiaries and Subsidiaries
having no material assets, rights, liabilities or obligations other than
membership in or stock of such Foreign Subsidiaries), setting forth in each case
in comparative form the corresponding consolidated and consolidating figures for
the corresponding periods in the preceding fiscal year
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(except that, in the case of balance sheets, such comparison shall be to the
last day of the prior fiscal year), accompanied by a certificate of a Financial
Officer of the Borrower, which certificate shall state that such consolidated
financial statements present fairly, in all material respects, the consolidated
financial position and results of operations of the Borrower and its
Subsidiaries, and such consolidating financial statements fairly present the
respective individual unconsolidated financial condition and results of
operations of the Borrower and of each of its Subsidiaries, in each case in
accordance with generally accepted accounting principles, consistently applied,
as at the end of, and for, such period (subject to normal year-end audit
adjustments);
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section 9.01, a certificate of a Financial
Officer of the Borrower (i) to the effect that no Default has occurred and is
continuing (or, if any Default has occurred and is continuing, describing the
same in reasonable detail and describing the action that the Borrower has taken
or proposes to take with respect thereto) and (ii) setting forth in reasonable
detail the computations necessary to determine whether the Borrower is in
compliance with Section 9.10 as of the end of the respective quarterly fiscal
period or fiscal year;
(d) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the Borrower
shall have filed with the Securities and Exchange Commission (or any
governmental agency substituted therefor) or any national securities exchange;
(e) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and proxy
statements so mailed; and
(f) from time to time such other information regarding the
financial condition, operations, business or prospects of the Borrower or any of
its Subsidiaries (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA), or
compliance with the terms of this Agreement and the other Loan Documents, as any
Lender or the Administrative Agent may reasonably request.
9.02 Notices of Material Events. The Borrower will furnish the
following to the Administrative Agent and each Lender in writing:
(a) promptly after the Borrower knows or has reason to believe
that any Default has occurred, notice of such Default;
(b) prompt notice of all legal or arbitral proceedings, and of
all proceedings by or before any governmental or regulatory authority or agency,
and of any material development in respect of such legal or other proceedings,
affecting the
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Borrower or any of its Subsidiaries, except proceedings that, if adversely
determined, would not (either individually or in the aggregate) have a Material
Adverse Effect;
(c) as soon as possible, and in any event within ten days
after the Borrower knows or has reason to believe that any ERISA Event has
occurred or exists, notice of the occurrence of such ERISA Event and a copy of
any report or notice required to be filed with or given to the PBGC by the
Borrower or an ERISA Affiliate with respect to such ERISA Event;
(d) prompt notice of the assertion of any environmental matter
by any Person against, or with respect to the activities of, the Borrower or any
of its Subsidiaries and notice of any alleged violation of or non-compliance
with any Environmental Laws or any permits, licenses or authorizations, other
than any environmental matter or alleged violation that, if adversely
determined, would not (either individually or in the aggregate) have a Material
Adverse Effect; and
(e) prompt notice of any other development that results in, or
could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 9.02 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.
9.03 Existence, Etc. Each Obligor will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses, contracts and franchises (provided that
nothing in this Section 9.03 shall prohibit any transaction expressly permitted
under Section 9.05);
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities if
failure to comply with such requirements could (either individually or in the
aggregate) have a Material Adverse Effect;
(c) pay its obligations, including taxes, assessments and
governmental charges or levies, 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;
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<PAGE>
(d) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear excepted;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(f) permit representatives of any Lender or the Administrative
Agent, during normal business hours, to examine, copy and make extracts from its
books and records, to inspect any of its Properties, and to discuss its business
and affairs with its officers, all to the extent reasonably requested by such
Lender or the Administrative Agent (as the case may be).
9.04 Insurance. Each Obligor will, and will cause each of its
Subsidiaries to, maintain insurance, naming the Administrative Agent as loss
payee or an additional insured as its interests may appear for the benefit of
itself and the Lenders, with financially sound and reputable insurance
companies, and with respect to Property and risks of a character usually
maintained by corporations engaged in the same or similar business similarly
situated, against loss, damage and liability of the kinds and in the amounts
customarily maintained by such corporations.
9.05 Prohibition of Fundamental Changes. The Borrower will not, nor
will it permit any of its Subsidiaries to, enter into any transaction of merger
or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution).
The Borrower will not, nor will it permit any of its
Subsidiaries to, acquire any business or Property from, or capital stock of, or
be a party to any acquisition of, any Person except for purchases of inventory
and other Property to be sold or used in the ordinary course of business,
Investments permitted under Section 9.08(f) and Capital Expenditures permitted
under Section 9.10(e).
The Borrower will not, nor will it permit any of its
Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its business or Property,
whether now owned or hereafter acquired (including, without limitation,
receivables and leasehold interests, but excluding (i) obsolete or worn-out
Property, tools or equipment no longer used or useful in its business so long as
the amount thereof sold in any single fiscal year by the Borrower and its
Subsidiaries shall not have a fair market value in excess of $100,000 and (ii)
any inventory or other Property sold or disposed of in the ordinary course of
business and on ordinary business terms). Notwithstanding the foregoing
provisions of this Section 9.05:
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<PAGE>
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into: (i) the Borrower if the Borrower shall be the
continuing or surviving corporation or (ii) any other such Subsidiary; provided
that (x) if any such transaction shall be between a Subsidiary and a Wholly
Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing or
surviving corporation and (y) if any such transaction shall be between a
Subsidiary Guarantor and a Subsidiary not a Subsidiary Guarantor, and such
Subsidiary Guarantor is not the continuing or surviving corporation, then the
continuing or surviving corporation shall have assumed all of the obligations of
such Subsidiary Guarantor hereunder and under the other Loan Documents;
(b) any Subsidiary of the Borrower may sell, lease, transfer
or otherwise dispose of any or all of its Property (upon voluntary liquidation
or otherwise) to the Borrower or a Wholly Owned Subsidiary of the Borrower;
provided that if any such sale is by a Subsidiary Guarantor to a Subsidiary of
the Borrower not a Subsidiary Guarantor, then such Subsidiary shall have assumed
all of the obligations of such Subsidiary Guarantor hereunder and under the
other Loan Documents; and
(c) the Borrower or any Subsidiary of the Borrower may merge
or consolidate with any other Person if (i) in the case of a merger or
consolidation of the Borrower, the Borrower is the surviving corporation and, in
any other case, the surviving corporation is a Wholly Owned Subsidiary of the
Borrower and (ii) after giving effect thereto no Default would exist hereunder.
9.06 Liens. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the Closing Date and listed in Part
B of Schedule I (excluding, however, Liens securing Indebtedness to be repaid
with the proceeds of the initial Loans, as indicated on Schedule I);
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good faith and
by appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Borrower or the affected Subsidiaries, as the
case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business that
are not overdue for a period of more than 30 days or that are being contested in
good faith and by
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<PAGE>
appropriate proceedings and Liens securing judgments but only to the extent for
an amount and for a period not resulting in an Event of Default under clause (k)
of Section 10;
(e) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the use
of Property or minor imperfections in title thereto that, in the aggregate, are
not material in amount, and that do not in any case materially detract from the
value of the Property subject thereto or interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries; and
(h) Liens upon real and/or tangible personal Property acquired
after the Closing Date (by purchase, construction or otherwise) by the Borrower
or any of its Subsidiaries, each of which Liens either (A) existed on such
Property before the time of its acquisition and was not created in anticipation
thereof or (B) was created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the cost (including
the cost of construction) of such Property; provided that (i) no such Lien shall
extend to or cover any Property of the Borrower or such Subsidiary other than
the Property so acquired and improvements thereon and (ii) the principal amount
of Indebtedness secured by any such Lien shall not exceed 80% of the fair market
value (as determined in good faith by a Financial Officer of the Borrower) of
such Property at the time it was acquired (by purchase, construction or
otherwise).
9.07 Indebtedness. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the Closing Date and listed in
Part A of Schedule I (excluding, the Indebtedness to be repaid with the proceeds
of the initial Loans, as indicated on Schedule I);
(c) Indebtedness of Subsidiaries of the Borrower to the
Borrower or to other Subsidiaries of the Borrower; and
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<PAGE>
(d) additional Indebtedness of the Borrower and its
Subsidiaries (including, without limitation, Capital Lease Obligations and other
Indebtedness secured by Liens permitted under Section 9.06(h)) up to but not
exceeding $10,000,000 at any one time outstanding.
9.08 Investments. The Borrower will not, nor will it permit any of its
Subsidiaries to, make or permit to remain outstanding any Investments except:
(a) Investments outstanding on the Closing Date and identified
in Part B of Schedule IV;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrower and its Subsidiaries in the
Borrower and its Subsidiaries;
(e) Hedging Agreements entered into in the ordinary course of
business as bona fide hedges and not for speculative purposes; and
(f) additional Investments (including, without limitation,
Investments in foreign Subsidiaries) up to but not exceeding $5,000,000 in the
aggregate.
9.09 Restricted Payments. The Borrower will not, nor will it permit any
of its Subsidiaries to, declare or make any Restricted Payment at any time.
Nothing herein shall be deemed to prohibit the payment of dividends by any
Subsidiary of the Borrower to the Borrower or to any other Subsidiary of the
Borrower.
9.10 Certain Financial Covenants.
(a) Leverage Ratio. The Borrower will not permit the Leverage
Ratio to exceed the following respective ratios at any time during the following
respective periods:
<TABLE>
<CAPTION>
Period Ratio
- ----------------------------------------------------- ----------------------
<S> <C>
From the Closing Date through January 1, 1999 3.50 to 1
From January 2, 1999 through January 1, 2000 3.00 to 1
From January 2, 2000 and at all times thereafter 2.5 to 1
</TABLE>
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<PAGE>
(b) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio to be less than the following respective ratios at any
time during the following respective periods:
<TABLE>
<CAPTION>
Period Ratio
- ---------------------------------------------------- ----------------------
<S> <C>
From the Closing Date through January 1, 1999 3.00 to 1
From January 2, 1999 through January 1, 2000 3.50 to 1
From January 2, 2000 and at all times thereafter 4.0 to 1
</TABLE>
(c) Fixed Charges Ratio. The Borrower will not permit the
Fixed Charges Ratio to be less than 1.10 to 1.
(d) Capital Expenditures. The Borrower will not permit the
aggregate amount of Capital Expenditures by the Borrower and its Subsidiaries to
exceed the respective amounts for the respective periods listed in Schedule IV
hereto.
9.11 Hedging Agreements. The Borrower will within 90 days of the
Closing Date enter into, and thereafter maintain in full force and effect, one
or more Hedging Agreements with one or more of the Lenders (and/or with a bank
or other financial institution having capital, surplus and undivided profits of
at least $500,000,000), that effectively enables the Borrower (in a manner
satisfactory to the Arranger) to protect itself against interest rate
fluctuations as to a notional principal amount at least equal to $35,000,000.
9.12 Lines of Business. The Borrower will not, nor will it permit any
of its Subsidiaries to, engage to any substantial extent in any line or lines of
business activity other than the business referred to in the recitals of this
Agreement.
9.13 Transactions with Affiliates. Except as expressly permitted by
this Agreement, the Borrower will not, nor will it permit any of its
Subsidiaries to, directly or indirectly: (a) make any Investment in an
Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; or (d) enter into any other transaction
directly or indirectly with or for the benefit of an Affiliate (including,
without limitation, Guarantees and assumptions of obligations of an Affiliate);
provided that (x) any Affiliate who is an individual may serve as a director,
officer or employee of the Borrower or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity and (y) the
Borrower and its Subsidiaries may enter into transactions (other than extensions
of credit by the Borrower or any of its Subsidiaries to an Affiliate) providing
for the leasing of
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Property, the rendering or receipt of services or the purchase or sale of
inventory and other Property in the ordinary course of business if the monetary
or business consideration arising therefrom would be substantially as
advantageous to the Borrower and its Subsidiaries as the monetary or business
consideration that would obtain in a comparable transaction with a Person not an
Affiliate.
9.14 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 Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the
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 Closing
Date identified on Schedule II (but shall apply to any extension or renewal of,
or 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 and (v) clause (a) of the foregoing shall not apply to
customary provisions in leases restricting the assignment thereof.
9.15 Subsidiary Indebtedness. The Borrower will not permit its
Subsidiaries to maintain or incur any Indebtedness except Indebtedness permitted
by Section 9.07 hereof.
9.16 Use of Proceeds. The Borrower will use the proceeds of the Term
Loans hereunder solely to finance the consummation of the Acquisition and to pay
related fees and expenses and the proceeds of the Revolving Credit Loans solely
to finance the consummation of the Acquisition and for general corporate
purposes (including working capital) of the Borrower and its subsidiaries in
ordinary course of business after the consummation of the Agreement (in
compliance with all applicable legal and regulatory requirements, including,
without limitation, Regulations G, T, U and X and the Securities Act of 1933 and
the Securities Exchange Act of 1934 and the regulations thereunder); provided
that neither the Administrative Agent nor any Lender shall have any
responsibility as to the use of any of such proceeds.
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9.17 Certain Obligations Respecting Subsidiaries.
(a) Subsidiary Guarantors. The Borrower will take such action,
and will cause each of its Subsidiaries to take such action, from time to time
as shall be necessary to ensure that all Subsidiaries of the Borrower (including
all Subsidiaries formerly, but no longer, qualifying as Excluded Subsidiaries)
are "Subsidiary Guarantors" hereunder. Without limiting the generality of the
foregoing, in the event that the Borrower or any of its Subsidiaries shall form
or acquire any new Subsidiary that shall constitute a Subsidiary hereunder, the
Borrower and its Subsidiaries will cause such new Subsidiary to
(i) become a "Subsidiary Guarantor" hereunder, and a
"Securing Party" under the Security Agreement pursuant to a Guarantee
Assumption Agreement,
(ii) cause such Subsidiary to take such action
(including, without limitation, delivering such shares of stock,
executing and delivering such Uniform Commercial Code financing
statements) as shall be necessary to create and perfect valid and
enforceable first priority Liens on substantially all of the personal
Property of such new Subsidiary as collateral security for the
obligations of such new Subsidiary hereunder and
(iii) deliver such proof of corporate action,
incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by each Obligor pursuant to Section
7.01 on the Closing Date or as the Administrative Agent shall have
requested.
Notwithstanding anything contained herein to the contrary, (x) no Subsidiary of
the Borrower that (1) is organized and conducts substantially all of its
business outside of the United States of America (a "Foreign Subsidiary") or (2)
qualifies as an Excluded Subsidiary shall be required to become a "Subsidiary
Guarantor" hereunder or a "Securing Party" under the Security Agreement, (y)
unless the Majority Lenders reasonably determine that a Foreign Subsidiary
(including its Subsidiaries) is material to the Property, business, operations,
financial condition, prospects or liabilities of the Borrower and its
Subsidiaries taken as a whole, no capital stock of any Foreign Subsidiary shall
be required to be pledged under the Security Agreement and (z) notwithstanding
the preceding clause (y), no more than 65% of the voting stock of any Foreign
Subsidiary shall be required to be pledged under the Security Agreement.
(b) Ownership of Subsidiaries. The Borrower will, and will
cause each of its Subsidiaries to, take such action from time to time as shall
be necessary to ensure that each of its Subsidiaries is a Wholly Owned
Subsidiary. In the event that any additional shares of stock shall be issued by
any Subsidiary, the respective
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Obligor agrees forthwith to deliver to the Administrative Agent pursuant to the
Security Agreement the certificates evidencing such shares of stock, accompanied
by undated stock powers executed in blank and to take such other action as the
Administrative Agent shall request to perfect the security interest created
therein pursuant to the Security Agreement.
9.18 Modifications of Certain Documents. The Borrower will not consent
to any modification, supplement or waiver of any Acquisition Document without
the prior consent of the Administrative Agent (with the approval of the Majority
Lenders).
9.19 Environmental Survey. If requested by the Majority Lenders and if
such request is consented to by the Administrative Agent, the Borrower shall
furnish to the Lenders no later than 90 days after such request an environmental
survey and assessment prepared by a firm of licensed engineers (familiar with
the identification of toxic and hazardous substances) in form and scope
satisfactory to the Majority Lenders, such environmental survey and assessment
to be based upon physical on-site inspections by such firm of each of the
existing sites and facilities owned, operated or leased by the Borrower and its
Subsidiaries, as well as an historical review of the uses of such sites and
facilities and of the business and operations of the Borrower and its
Subsidiaries (including any former Subsidiaries or divisions of the Borrower or
any of its Subsidiaries that have been disposed of prior to the date of such
survey and assessment and with respect to which the Borrower or any of its
Subsidiaries may have retained liability for Environmental Claims).
9.20 Property of Obligors located in Maryland and Texas. The value of
any Property of any Obligor which is located in (i) the State of Maryland shall
not at any time exceed $30,000 and (ii) the State of Texas shall not at any time
exceed $2,500.
Section 10. Events of Default.
If one or more of the following events (herein called "Events of
Default") shall occur and be continuing:
(a) the Borrower shall default in the payment of any principal
of any Loan when due (whether at stated maturity or at mandatory or optional
prepayment);
(b) the Borrower shall default in the payment of any interest
on any Loan, any fee or any other amount (other than an amount referred to in
clause (a) of this Section 10) payable by it hereunder or under any other Loan
Document when due and such default shall have continued unremedied for 3 or more
Business Days;
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(c) any representation, warranty or certification made or
deemed made herein or in any other Loan Document (or in any modification or
supplement hereto or thereto) by the Borrower or any of its Subsidiaries, or any
certificate furnished to any Lender or the Administrative Agent pursuant to the
provisions hereof or thereof, shall prove to have been false or misleading as of
the time made or furnished in any material respect;
(d) the Borrower shall default in the performance of any of
its obligations under any of Sections 9.02, 9.05, 9.06 (except in cases where
such default under 9.06 is involuntary), 9.07, 9.09, 9.10, 9.13, 9.14, 9.15,
9.17 or 9.18 or any Obligor shall default in the performance of any of its
obligations under Section 4.02 or 5.02 of the Security Agreement;
(e) any Obligor 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 Section 10) or any other Loan Document and
such failure shall continue unremedied for a period of 30 or more days after
notice thereof to the Borrower by the Administrative Agent or any Lender
(through the Administrative Agent);
(f) the Borrower or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its other
Indebtedness aggregating $1,000,000 or more; or the Borrower or any of its
Subsidiaries shall default in the payment when due of any amount aggregating
$1,000,000 or more under any Hedging Agreement;
(g) any event specified in any note, agreement, indenture or
other document evidencing or relating to any other Indebtedness aggregating
$1,000,000 or more of the Borrower or any of its Subsidiaries shall occur if the
effect of such event is to cause, or (with the giving of any notice or the lapse
of time or both) to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated maturity or to
have the interest rate thereon reset to a level so that securities evidencing
such Indebtedness trade at a level specified in relation to the par value
thereof; or any event specified in any Hedging Agreement shall occur if the
effect of such event is to cause, or (with the giving of any notice or the lapse
of time or both) to permit, termination or liquidation payment or payments
aggregating $1,000,000 or more to become due];
(h) a proceeding or case shall be commenced, without the
application or consent of the Borrower or its affected Subsidiary, in any court
of competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or readjustment of
its debts, (ii) the appointment of a
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receiver, custodian, trustee, examiner, liquidator or the like of the Borrower
or such Subsidiary or of all or any substantial part of its Property, or (iii)
similar relief in respect of the Borrower or such Subsidiary under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, and such proceeding or case shall continue undismissed,
or an order, judgment or decree approving or ordering any of the foregoing shall
be entered and continue unstayed and in effect, for a period of 60 or more days;
or an order for relief against the Borrower or any of its Subsidiaries shall be
entered in an involuntary case under the Bankruptcy Code;
(i) the Borrower or any of its Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for the benefit
of its creditors, (iii) commence a voluntary case under the Bankruptcy Code,
(iv) file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement or
winding-up, or composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code or (vi) take any
corporate action for the purpose of effecting any of the foregoing;
(j) the Borrower or any of its Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as such debts
become due;
(k) a final judgment or judgments for the payment of money of
$1,000,000 or more in the aggregate shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against the
Borrower or any of its Subsidiaries and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution thereof
shall not be procured, within 30 days from the date of entry thereof and the
Borrower or the relevant Subsidiary shall not, within such period of 30 days, or
such longer period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during such
appeal;
(l) an event or condition specified in Section 9.01(c) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a result
of such event or condition, together with all other such events or conditions,
the Borrower or any ERISA Affiliate shall incur or in the opinion of the
Majority Lenders shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or the PBGC (or any combination of the foregoing) that, in
the determination of the Majority Lenders, would (either individually or in the
aggregate) have a Material Adverse Effect;
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(m) a reasonable basis shall exist for the assertion against
the Borrower or any of its Subsidiaries, or any predecessor in interest of the
Borrower or any of its Subsidiaries or Affiliates, of (or there shall have been
asserted against the Borrower or any of its Subsidiaries) any claims or
liabilities, whether accrued, absolute or contingent, based on or arising from
the generation, storage, transport, handling or disposal of Hazardous Materials
by the Borrower or any of its Subsidiaries, Affiliates or predecessors that, in
the judgment of the Majority Lenders, are reasonably likely to be determined
adversely to the Borrower or any of its Subsidiaries, and the amount thereof
(either individually or in the aggregate) is reasonably likely to have a
Material Adverse Effect (insofar as such amount is payable by the Borrower or
any of its Subsidiaries but after deducting any portion thereof that is
reasonably expected to be paid by other creditworthy Persons jointly and
severally liable therefor);
(n) Any one or more of the following shall occur and be
continuing:
(i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities and Exchange Act of 1934 (the
"Exchange Act")) is or becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a person
shall be deemed to have "beneficial ownership" of all shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly,
of more than 20% of the voting stock of Borrower; or
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors of the Borrower (together with any new directors whose
election by such Board of Directors or whose nomination for election by
the Borrower's shareholders was approved by a vote of a majority of the
Borrower's directors then still in office who either were directors at
the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of the Borrower's directors then in office; or
(o) the Liens created by the Security Documents shall at any
time not constitute a valid and perfected Lien on the collateral intended to be
covered thereby (to the extent perfection by filing, registration, recordation
or possession is required herein or therein) in favor of the Administrative
Agent, free and clear of all other Liens (other than Liens permitted under
Section 9.06 or under the respective Security Documents), or, except for
expiration in accordance with its terms, any of the Security Documents shall for
whatever reason be terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Obligor;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (h) or (i) of this Section 10 with respect to any Obligor, the
Administrative
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Agent may (with the consent of the Majority Lenders), by notice to the Borrower,
terminate the Commitments and/or declare the principal amount then outstanding
of, and the accrued interest on, the Loans and all other amounts payable by the
Obligors hereunder and under the Notes (including, without limitation, any
amounts payable under Section 5.05) to be forthwith due and payable (provided
that (A) if so requested by the Majority Revolving Credit Lenders, the
Administrative Agent shall take such action with respect to the Revolving Credit
Commitments and/or the Revolving Credit Loans and such interest and other
amounts to the extent owed to the Revolving Credit Lender and (B) if so
requested by the Majority Term Loan Lenders, the Administrative Agent shall take
such action with respect to the Term Loan Commitments and the Term Loans and
such interest and other amounts to the extent owed to the Term Loan Lenders),
whereupon such amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by each Obligor; and (2) in the case of the occurrence of an
Event of Default referred to in clause (h) or (i) of this Section 10 with
respect to any Obligor, the Commitments shall automatically be terminated and
the principal amount then outstanding of, and the accrued interest on, the Loans
and all other amounts payable by the Obligors hereunder and under the Notes
(including, without limitation, any amounts payable under Section 5.05) shall
automatically become immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by each Obligor.
Section 11. The Administrative Agent and the Arranger.
11.01 Appointment, Powers and Immunities. Each Lender hereby appoints
and authorizes the Administrative Agent to act as its agent hereunder and under
the other Loan Documents with such powers as are specifically delegated to the
Administrative Agent by the terms of this Agreement and of the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent (which term as used in this sentence and in Section
11.05 and the first sentence of Section 11.06 hereof shall include reference to
its affiliates and its own and its affiliates' officers, directors, employees
and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and in the other Loan Documents, and shall
not by reason of this Agreement or any other Loan Document be a trustee for any
Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or in any
other Loan Document, or in any certificate or other document referred to or
provided for in, or received by any of them under, this Agreement or any other
Loan Document, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, any Note or any other Loan
Document or any other document
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referred to or provided for herein or therein or for any failure by the Borrower
or any other Person to perform any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by
the Majority Lenders with respect to collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Loan Document; and
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other Loan Document or under any other
document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or willful
misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee (or Registered Holder, as the case may be) of a Note as
the holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent, together with the consent of the Borrower to such assignment or transfer
(to the extent required by Section 12.06(b) hereof).
11.02 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by this Agreement or any other Loan Document, the Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by the Majority
Lenders, and such instructions of the Majority Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders.
11.03 Defaults. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Borrower specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 11.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders,
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent
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may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable in the best
interest of the Lenders except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with the consent or
upon the authorization of the Majority Lenders or all of the Lenders.
11.04 Rights as a Lender. With respect to its Commitment and the Loans
made by it, First Union (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. First Union (and any successor acting as Administrative
Agent) and its affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to, make investments in and generally engage in
any kind of banking, trust or other business with the Credit Parties (and any of
their Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and First Union (and any such successor) and its affiliates may accept
fees and other consideration from the Credit Parties for services in connection
with this Agreement or otherwise without having to account for the same to the
Lenders.
11.05 Indemnification. The Lenders agree to indemnify the
Administrative Agent and the Arranger (to the extent not reimbursed under
Section 12.04 hereof, but without limiting the obligations of the Borrower under
said Section 12.04) ratably in accordance with the aggregate principal amount of
the Loans held by the Lenders (or, if no Loans are at the time outstanding,
ratably in accordance with their respective Commitments), for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Administrative Agent or the
Arranger (including by any Lender) arising out of or by reason of any
investigation in or in any way relating to or arising out of this Agreement or
any other Loan Document or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby (including,
without limitation, the costs and expenses that the Borrower is obligated to pay
under Section 12.04 hereof, but excluding, unless a Default has occurred and is
continuing, normal administrative costs and expenses incident to the performance
of its agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the party to be indemnified.
11.06 Non-Reliance on Administrative Agent, Arranger and Other Lenders.
Each Lender agrees that it has, independently and without reliance on the
Administrative Agent, the Arranger or any other Lender, and based on such
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documents and information as it has deemed appropriate, made its own credit
analysis of the Borrower and its Subsidiaries and decision to enter into this
Agreement and that it will, independently and without reliance upon the
Administrative Agent, the Arranger or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
Agreement or under any other Loan Document. Neither the Administrative Agent nor
the Arranger shall be required to keep itself informed as to the performance or
observance by any Credit Party of this Agreement or any of the other Loan
Documents or any other document referred to or provided for herein or therein or
to inspect the Properties or books of the Borrower or any of its Subsidiaries.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Administrative Agent hereunder or
under the Security Documents, neither the Administrative Agent nor the Arranger
shall have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition or business of the
Borrower or any of its Subsidiaries (or any of their affiliates) that may come
into the possession of the Administrative Agent, the Arranger or any of their
respective affiliates.
11.07 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder and under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
11.08 Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Borrower, and the Administrative Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, that shall be a bank that
has an office in New York, New York. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any retiring
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Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Section 11 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent.
11.09 Consents under Other Loan Documents. Except as otherwise provided
in Section 12.03 hereof with respect to this Agreement, the Administrative Agent
may, with the prior consent of the Majority Lenders (but not otherwise), consent
to any modification, supplement or waiver under any of the Loan Documents,
provided that, without the prior consent of each Lender, the Administrative
Agent shall not (except as provided herein or in the Security Documents) release
any collateral or otherwise terminate any Lien under any Security Document
providing for collateral security, agree to additional obligations being secured
by such collateral security (unless the Lien for such additional obligations
shall be junior to the Lien in favor of the other obligations secured by such
Security Document, in which event the Administrative Agent may consent to such
junior Lien provided that it obtains the consent of the Majority Lenders
thereto), alter the relative priorities of the obligations entitled to the
benefits of the Liens created under the Security Documents or release any
guarantor under any Security Document from its guarantee obligations thereunder,
except that no such consent shall be required, and the Administrative Agent is
hereby authorized, to release any Lien covering Property (and to release any
such guarantor) that is the subject of either a disposition of Property
permitted hereunder or a disposition to which the Majority Lenders have
consented.
11.10 Arranger. Except as provided in this Section 11, and in Sections
9.11 and 12.06(b), the Arranger shall not have any rights or obligations under
this Agreement or in connection with the syndication of the Commitments
hereunder, other than in its capacity as a "Lender" hereunder.
Section 12. Miscellaneous.
12.01 Notices. All notices, requests and other communications provided
for herein and in the Security Documents (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy), delivered to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof (below the name of the Borrower, in the case of any
Subsidiary Guarantor); or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
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12.02 Waiver. No failure on the part of the Administrative Agent or any
Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Each Obligor irrevocably waives, to the fullest extent permitted by
applicable law, any claim that any action or proceeding commenced by the
Administrative Agent or any Lender relating in any way to this Agreement should
be dismissed or stayed by reason, or pending the resolution, of any action or
proceeding commenced by any Obligor relating in any way to this Agreement
whether or not commenced earlier. To the fullest extent permitted by applicable
law, the Obligors shall take all measures necessary for any such action or
proceeding commenced by the Administrative Agent or any Lender to proceed to
judgment prior to the entry of judgment in any such action or proceeding
commenced by any Obligor.
12.03 Amendments, Etc. Except as otherwise expressly provided in this
Agreement, any provision of this Agreement may be modified or supplemented only
by an instrument in writing signed by the Borrower and the Majority Lenders, or
by the Borrower and the Administrative Agent acting with the consent of the
Majority Lenders, and any provision of this Agreement may be waived by the
Majority Lenders or by the Administrative Agent acting with the consent of the
Majority Lenders; provided that: (a) no modification, supplement or waiver
shall, unless by an instrument signed by all of the Lenders or by the
Administrative Agent acting with the consent of all of the Lenders: (i)
increase, or extend the term of any of the Commitments, or extend the time or
waive any requirement for the reduction or termination of any of the
Commitments, (ii) extend the date fixed for the payment of principal of or
interest on any Loan or any fee hereunder, (iii) reduce the amount of any such
payment of principal, (iv) reduce the rate at which interest is payable thereon
or any fee is payable hereunder, (v) alter the rights or obligations of the
Borrower to prepay Loans, (vi) alter the manner in which payments or prepayments
of principal, interest or other amounts hereunder shall be applied as between
the Lenders or Types or Classes of Loans, (vii) alter the terms of this Section
12.03, (viii) modify the definition of the term "Majority Lenders", "Majority
Revolving Credit Lenders" or "Majority Term Loan Lenders", or modify in any
other manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision hereof,
(ix) release any Subsidiary Guarantor from any of its guarantee obligations
under Section 6, or (x) waive any of the conditions precedent set forth in
Section 7.01; (b) any modification or supplement of Section 11, or of any of the
rights or duties of the Administrative Agent hereunder, shall require the
consent of the Administrative Agent; and (c) any modification or supplement of
Section 6 shall require the consent of each Subsidiary Guarantor.
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Anything in this Agreement to the contrary notwithstanding, no waiver
or modification of any provision of this Agreement that has the effect (either
immediately or at some later time) of enabling the Borrower to satisfy a
condition precedent to the making of a Revolving Credit Loan shall be effective
against the Revolving Credit Lenders for the purposes of the Revolving Credit
Commitments unless the Majority Revolving Credit Lenders shall have concurred
with such waiver or modification.
12.04 Expenses, Etc. The Borrower agrees to pay or reimburse each of
the Lenders, LCPI and the Administrative Agent for: (a) all reasonable
out-of-pocket costs and expenses of the Administrative Agent (including, without
limitation, the reason able fees and expenses of Milbank, Tweed, Hadley &
McCloy, special New York counsel to LCPI) in connection with (i) the
negotiation, preparation, execution and delivery of this Agreement and the other
Loan Documents and the making of the Loans hereunder and (ii) the negotiation or
preparation of any modification, supplement or waiver of any of the terms of
this Agreement or any of the other Loan Documents (whether or not consummated);
(b) all reasonable out-of-pocket costs and expenses of the Lenders and the
Administrative Agent (including, without limitation, the reasonable fees and
expenses of legal counsel) in connection with (i) any Default and any
enforcement or collection proceedings resulting therefrom, including, without
limitation, all manner of participation in or other involvement with (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated) and (ii) the
enforcement of this Section 12.04; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any of the other Loan
Documents or any other document referred to herein or therein and all costs,
expenses, taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein.
The Borrower hereby agrees to indemnify the Administrative Agent, LCPI,
the Arranger and each Lender and their respective directors, officers,
employees, attorneys and agents from, and hold each of them harmless against,
any and all losses, liabilities, claims, damages or expenses incurred by any of
them (including, without limitation, any and all losses, liabilities, claims,
damages or expenses incurred by the Administrative Agent to any Lender, whether
or not the Administrative Agent or any Lender is a party thereto) arising out of
or by reason of any investigation or litigation or other proceedings (including
any threatened investigation or litigation or other proceedings) relating to the
Loans hereunder or any actual or proposed use by the Borrower or any of its
Subsidiaries of the proceeds of any of the Loans hereunder,
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including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation or litigation or other
proceedings (but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified). Without limiting the generality of the foregoing, the
Borrower will (x) indemnify the Administrative Agent for any payments that the
Administrative Agent is required to make under any indemnity issued to any bank
referred to in Section 4.02 of the Security Agreement to which remittances in
respect of Accounts, as defined therein, are to be made and (y) indemnify the
Administrative Agent, LCPI, the Arranger and each Lender from, and hold the
Administrative Agent, LCPI, the Arranger and each Lender harmless against, any
losses, liabilities, claims, damages or expenses described in the preceding
sentence (but excluding, as provided in the preceding sentence, any loss,
liability, claim, damage or expense incurred by reason of the gross negligence
or willful misconduct of the Person to be indemnified) arising under any
Environmental Law as a result of the past, present or future operations of the
Borrower or any of its Subsidiaries (or any predecessor in interest to the
Borrower or any of its Subsidiaries), or the past, present or future condition
of any site or facility owned, operated or leased at any time by the Borrower or
any of its Subsidiaries (or any such predecessor in interest), or any Release
or threatened Release of any Hazardous Materials at or from any such site or
facility, excluding any such Release or threatened Release that shall occur
during any period when the Administrative Agent or any Lender shall be in
possession of any such site or facility following the exercise by the
Administrative Agent or any Lender of any of its rights and remedies hereunder
or under any of the Security Documents, but including any such Release or
threatened Release occurring during such period that is a continuation of
conditions previously in existence, or of practices employed by the Borrower and
its Subsidiaries, at such site or facility.
12.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
12.06 Assignments and Participations.
(a) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Lenders and
the Administrative Agent.
(b) Each Lender may assign any of its Loans, its Notes and its
Commitments (but only with the consent of the Administrative Agent and the
Arranger and, in the case of an outstanding Commitment, the Borrower); provided
that
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(i) no such consent by the Borrower, the
Administrative Agent or the Arranger shall be required in the case of
any assignment (x) to another Lender or (y) under which the Arranger is
the assignor or the assignee;
(ii) except to the extent the Borrower, the
Administrative Agent and the Arranger shall otherwise consent, any such
partial assignment (other than to another Lender) shall be in an amount
at least equal to $5,000,000;
(iii) each such assignment by a Lender of its
Revolving Credit Loans, Revolving Credit Note or Revolving Credit
Commitment shall be made in such manner so that the same portion of its
Revolving Credit Loans, Revolving Credit Note and Revolving Credit
Commitment is assigned to the respective assignee; and
(iv) each such assignment by a Lender of its Term
Loans or Term Loan Commitment shall be made in such manner so that the
same portion of its Term Loans and Term Loan Commitment is assigned to
the respective assignee provided further that any consent of the
Borrower other wise required under this paragraph shall not be required
if an Event of Default under clause (h) or (i) of Section 10 has
occurred and is continuing. Upon execution and delivery by the assignee
to the Borrower and the Administrative Agent of an instrument in
writing pursuant to which such assignee agrees to become a "Lender"
hereunder (if not already a Lender) having the Commitment(s) and Loans
specified in such instrument, and upon consent thereto by the Borrower,
the Administrative Agent and the Arranger to the extent required above
(such consent, in each case, not to be unreasonably withheld), the
assignee shall have, to the extent of such assignment (unless otherwise
consented to by the Borrower the Administrative Agent and the
Arranger, the obligations, rights and benefits of a Lender hereunder
holding the Commitment(s) and Loans (or portions thereof) assigned to
it (in addition to the Commitment(s) and Loans, if any, theretofore
held by such assignee) and the assigning Lender shall, to the extent of
such assignment, be released from the Commitment(s) (or portion(s)
thereof) so assigned. Upon each such assignment the assigning Lender
shall pay the Administrative Agent an assignment fee of $2,000 provided
that no fee shall be payable if the Arranger is the assignor or the
assignee pursuant to such assignment.
(c) A Lender may sell or agree to sell to one or more other
Persons (each a "Participant") a participation in all or any part of any Loans
held by it, or in its Commitments, provided that such Participant shall not have
any rights or obligations under this Agreement or any Note or any other Loan
Document (the Participant's rights against such Lender in respect of such
participation to be those set forth
- 73 -
<PAGE>
in the agreements executed by such Lender in favor of the Participant). All
amounts payable by the Borrower to any Lender under Section 5 in respect of
Loans held by it and its Commitments shall be determined as if such Lender had
not sold or agreed to sell any participations in such Loans and Commitments, and
as if such Lender were funding each of such Loans and Commitments in the same
way that it is funding the portion of such Loans and Commitments in which no
participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Loan Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term of such Lender's related
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the related Loan or Loans or any portion of any fee hereunder
payable to the Participant, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon, or any fee
hereunder payable to the Participant, to a level below the rate at which the
Participant is entitled to receive such interest or fee or (v) consent to any
modification, supplement or waiver hereof or of any of the other Loan Documents
to the extent that the same, under Section 11.09 or 12.03, requires the consent
of each Lender.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.06, any Lender may
(without notice to the Borrower, the Administrative Agent, the Arranger or any
other Lender and without payment of any fee) assign and pledge all or any
portion of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank, and such Loans and Notes shall be fully transferrable as
provided therein. No such assignment shall release the assigning Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender from time
to time to assignees and participants (including prospective assignees and
participants).
(f) Anything in this Section 12.06 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan
held by it hereunder to the Borrower or any of its Affiliates or Subsidiaries
without the prior consent of each Lender.
(g) At the request of any Lender that is not a U.S. Person and
is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, the
Borrower shall maintain, or cause to be maintained, a register (the "Register")
that, at the request of the Borrower, shall be kept by the Administrative Agent
on behalf of the Borrower at no charge to the Borrower at the address to which
notices to the Administrative Agent are to be sent hereunder, on which it enters
the name of such Lender as the registered owner of each Registered Loan held by
such Lender. A Registered Loan
- 74 -
<PAGE>
(and the Registered Note, if any, evidencing the same) may be assigned or
otherwise transferred in whole or in part by registration of such assignment or
transfer on the Register (and each Registered Note shall expressly so provide).
Any assignment or transfer of all or part of such Loan (and the Registered Note,
if any, evidencing the same) may be effected by registration of such assignment
or transfer on the Register, together with the surrender of the Registered Note,
if any, evidencing the same duly endorsed by (or accompanied by a written
instrument of assignment or transfer duly executed by) the holder of such
Registered Note, whereupon, at the request of the designated assignee(s) or
transferee(s), one or more new Registered Notes in the same aggregate principal
amount shall be issued to the designated assignee(s) or transferee(s). Prior to
the registration of assignment or transfer of any Registered Loan (and the
Registered Note, if any, evidencing the same), the Borrower shall treat the
Person in whose name such Loan (and the Registered Note, if any, evidencing the
same) is registered as the owner thereof for the purpose of receiving all
payments thereon and for all other purposes, notwithstanding notice to the
contrary.
(h) The Register shall be available for inspection by the
Borrower and any Lender that is a Registered Holder at any reasonable time upon
reasonable prior notice.
12.07 Survival. The obligations of the Borrower under Sections 5.01,
5.05, 5.06 and 12.04, the obligations of each Subsidiary Guarantor under Section
6.03, and the obligations of the Lenders under Section 11.05, shall survive the
repayment of the Loans and the termination of the Commitments and, in the case
of any Lender that may assign any interest in its Commitment(s) or Loans
hereunder, shall survive the making of such assignment, notwithstanding that
such assigning Lender may cease to be a "Lender" hereunder. In addition, each
representation and warranty made, or deemed to be made by a notice of any Loan,
herein or pursuant hereto shall survive the making of such representation and
warranty, and no Lender shall be deemed to have waived, by reason of making any
Loan hereunder, any Default that may arise by reason of such representation or
warranty proving to have been false or misleading in any material respect,
notwithstanding that such Lender or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was
false or misleading at the time such Loan was made.
12.08 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.09 Governing Law; Submission to Jurisdiction. This Agreement and the
Notes shall be governed by, and construed in accordance with, the law of the
State of New York. Each Obligor hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
the
- 75 -
<PAGE>
Supreme Court of the State of New York sitting in New York County (including its
Appellate Division), and of any other appellate court in the State of New York,
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Obligor hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
12.10 WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE ADMINISTRATIVE
AGENT, THE ARRANGER AND EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
12.11 Captions. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
OBLIGORS
INTERNATIONAL TELECOMMUNICATION
DATA SYSTEMS, INC.
ITDS INTELICOM SERVICES INC.
By /s/ Peter L. Masanotti
---------------------------------
Executive Vice President
Address for Notices:
International Telecommunication Data Systems, Inc.
225 High Ridge Road
Stamford, CT 06905
Attention: Peter Masanotti, Esq.
Telecopier No.: 203-316-4886
Telephone No.: 203-321-1300 x259
- 76 -
<PAGE>
LENDERS
Revolving Credit Commitment LEHMAN COMMERCIAL PAPER INC.
$3,750,000
Term Loan Commitment
$8,750,000
By /s/ Dennis J. Dee
----------------------------
Vice President
Lending Office for Base Rate Loans:
Lehman Commercial Paper Inc.
3 World Financial Center
16th Floor
New York, New York 10285
Lending Office for Eurodollar Loans:
Lehman Commercial Paper Inc.
3 World Financial Center
16th Floor
New York, New York 10285
Address for Notices:
Lehman Commercial Paper Inc.
3 World Financial Center
16th Floor
New York, New York 10285
Attention: Michelle Zorn
Telecopier No.: 212-528-7471
Telephone No.: 212-526-8625
- 77 -
<PAGE>
Revolving Credit Commitment FIRST SOURCE FINANCIAL LLP,
$3,750,000 by First Source Financial Inc., its
Agent/Manager
Term Loan Commitment
$8,750,000
By /s/ Gary L. Francis
----------------------------
Senior Vice President
Lending Office for Base Rate Loans:
First Source Financial LLP
2850 West Golf Road
Suite 250
Rolling Meadows, IL 60008
Lending Office for Eurodollar Loans:
First Source Financial LLP
2850 West Golf Road
Suite 250
Rolling Meadows, IL 60008
Address for Notices:
First Source Financial LLP
2850 West Golf Road
Suite 250
Rolling Meadows, IL 60008
Attention: Janet Haack
Telecopier No.: 847-734-7912
Telephone No.: 847-734-2053
- 78 -
<PAGE>
Revolving Credit Commitment FIRST UNION NATIONAL BANK
$3,750,000
Term Loan Commitment
$8,750,000
By /s/ John M. Burlingame
-----------------------------
Senior Vice President
Lending Office for Base Rate Loans:
First Union National Bank
1 First Union Center
NC-0737
301 South College St
Charlotte, NC 28282
Lending Office for Eurodollar Loans:
First Union National Bank
1 First Union Center
NC-0737
301 South College St
Charlotte, NC 28282
Address for Notices:
First Union National Bank
1 First Union Center
NC-0737
301 South College St
Charlotte, NC 28282
Attention: Thomas Lauer
Telecopier No.: 704-374-3300
Telephone No.: 704-383-4993
- 79 -
<PAGE>
Revolving Credit Commitment FLEET NATIONAL BANK
$3,750,000
Term Loan Commitment
$8,750,000
By /s/ Fred Meagher
-------------------------------
Vice President
Lending Office for Base Rate Loans:
One Landmark Square
2nd Floor
Stamford, CT 06901
Lending Office for Eurodollar Loans:
One Landmark Square
2nd Floor
Stamford, CT 06901
Address for Notices:
One Landmark Square
2nd Floor
Stamford, CT 06901
Attention: Rick McKeough
Telecopier No.: 203-964-4850
Telephone No.: 203-964-4828
- 80 -
<PAGE>
Revolving Credit Commitment PNC BANK, NATIONAL ASSOCIATION
$3,750,000
Term Loan Commitment
$8,750,000
By /s/ Thomas A. Coates
---------------------------
Vice President
Lending Office for Base Rate Loans:
PNC Bank
1600 Market Street
21st Floor
Philadelphia, PA 19103
Lending Office for Eurodollar Loans:
PNC Bank
1600 Market Street
21st Floor
Philadelphia, PA 19103
Address for Notices:
PNC Bank
1600 Market Street
21st Floor
Philadelphia, PA 19103
Attention:
Telecopier No.: 215-585-8680
Telephone No.: 215-585-6466
- 81 -
<PAGE>
Revolving Credit Commitment SKANDINAVISKA ENSKILDA BANKEN AB
$3,000,000 (PUBL.), NEW YORK BRANCH
Term Loan Commitment
$7,000,000
By /s/ Sverker Johansson
-------------------------------
Vice President
By /s/ Philip Montemurro, Jr.
-------------------------------
Vice President
Lending Office for Base Rate Loans:
Skandinaviska Enskilda Banken AB
(Publ.), New York Branch
245 Park Avenue
New York, NY 10167
Lending Office for Eurodollar Loans:
Skandinaviska Enskilda Banken AB
(Publ.), New York Branch
245 Park Avenue
New York, NY 10167
Address for Notices:
Skandinaviska Enskilda Banken AB
(Publ.), New York Branch
245 Park Avenue
New York, NY 10167
Attention: Anthony Johnson/Donald Scott
Telecopier No.: 212-370-1709
Telephone No.: 212-907-4700
- 82 -
<PAGE>
Revolving Credit Commitment BHF-BANK AKTIENGESELLSCHAFT
$3,000,000
Term Loan Commitment
$7,000,000
By /s/ Linda Pace
---------------------------
Vice President
By /s/ Ralph Della Rocca
---------------------------
Assistant Treasurer
Lending Office for Base Rate Loans:
BHF-Bank
590 Madison Avenue
New York, NY 10022
Lending Office for Eurodollar Loans:
BHF-Bank
590 Madison Avenue
New York, NY 10022
Address for Notices:
BHF-Bank
590 Madison Avenue
New York, NY 10022
Attention: Sharon Fong
Telecopier No.: 212-756-5536
Telephone No.: 212-756-5503
- 83 -
<PAGE>
Revolving Credit Commitment BANKBOSTON, N.A.
$3,000,000
Term Loan Commitment
$7,000,000
By /s/ Richard J. Klouda
-----------------------------
Director
Lending Office for Base Rate Loans:
BankBoston, N.A.
1 Landmark Square
Stamford, CT 06901
Lending Office for Eurodollar Loans:
BankBoston, N.A.
1 Landmark Square
Stamford, CT 06901
Address for Notices:
BankBoston, N.A.
1 Rustcraft Road
Dedham, MA 02026
Attention: Joan La Fleur
Telecopier No.: 781-467-2167
Telephone No.: 781-467-2275
- 84 -
<PAGE>
Revolving Credit Commitment LASALLE NATIONAL BANK
$2,100,000
Term Loan Commitment
$4,900,000
By /s/ John C. Thurston
----------------------------
Assistant Vice President
Lending Office for Base Rate Loans:
135 South LaSalle
Suite #240
Chicago, IL 60603
Lending Office for Eurodollar Loans:
135 South LaSalle
Suite #240
Chicago, IL 60603
Address for Notices:
135 South LaSalle
Suite #240
Chicago, IL 60603
Attention: Patricia Wright
Telecopier No.: 312-904-6225
Telephone No.: 312-904-7748
- 85 -
<PAGE>
FIRST UNION NATIONAL BANK,
as Administrative Agent
By /s/ John M. Burlingame
--------------------------
Senior Vice President
Address for Notices to the Administrative Agent:
First Union National Bank
Agency Services
1 First Union Center
NC-0608
301 South College St
Charlotte, NC 28282
Attention: Kevin Stephens
Telecopier No.: 704-383-0288
Telephone No.: 704-383-0530
- 86 -
<PAGE>
LEHMAN COMMERCIAL PAPER INC.,
as Arranger
By /s/ Dennis J. Dee
----------------------------
Authorized Signatory
Address for Notices:
Lehman Commercial Paper Inc.
3 World Financial Center
16th Floor
New York, New York 10285
Attention: Michelle Zorn
Telecopier No.: 212-528-7471
Telephone No.: 212-526-8625
- 87 -
<PAGE>
SCHEDULE I
Material Agreements and Liens
-----------------------------
[See Section 8.16, Section 9.06(b) and Section 9.07(b)]
ITDS
Part A - Material Agreements
First Union Bank Letter of Credit for approximately $250,000
Part B - Liens
UCC filings for Leased Equipment
First Union Bank Letter of Credit for approximately $250,000
Intelicom
Part A - Material Agreements
None
Part B - Liens
UCC filings for Leased Equipment
- 88 -
<PAGE>
SCHEDULE II
Restrictive Agreements
----------------------
ITDS
None
Intelicom
None
- 89 -
<PAGE>
SCHEDULE III
Subsidiaries and Investments
----------------------------
[See Section 8.17 and Section 9.08(a)]
ITDS
Part A - Subsidiaries
ITDS Ltda, a Brazilian Limited Liability Company. MDS, Inc. holds a 99%
quota and ITDS Holding Company LLC holds a 1% quota.
MDS, Inc., a Delaware corporation. The Borrower holds 100% of the
issued and outstanding capital stock.
ITDS Holding Company LLC, a Delaware Limited Liability Company. The
sole member is MDS, Inc.
ITDS Intelicom Services, Inc., a Delaware corporation. The Borrower
holds 100% of the issued and outstanding capital stock upon the closing
of the Acquisition.
Part B - Investments
Approximately $35,000,000 brokered through Lehman Brothers of which
approximately $25,000,000 is held in overnight treasuries and
approximately $10,000,000 is held in bank deposits.
Intelicom
Part A - Subsidiaries
None
Part B - Investments
None
- 90 -
<PAGE>
SCHEDULE IV
Capital Expenditures
--------------------
[See Section 9.10(d)]
<TABLE>
<CAPTION>
Period Amount
- -------------------------------------------------- --------------------------
<S> <C>
From the Closing Date through December 31, $7,500,000
1998
From January 1, 1999 through December 31, $7,500,000
1999
Per annum amount for each calendar year $5,000,000
thereafter
</TABLE>
- 91 -
<PAGE>
EXHIBIT A-1
[Form of Revolving Credit Note]
PROMISSORY NOTE
$_____________________
March 18, 1998
New York, New York
FOR VALUE RECEIVED, INTERNATIONAL TELECOMMUNICATION DATA SYSTEMS, INC.,
a Delaware corporation (the "Borrower"), hereby promises to pay to
__________________ (the "Lender") [or registered assigns],(1) for account of its
respective Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the principal office of First Union National Bank at
Agency Services, 1 First Union Center, NC-0608, 301 South College St, Charlotte,
NC 28282, the principal sum of _______________ Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the Revolving Credit Loans
made by the Lender to the Borrower under the Credit Agreement), in lawful money
of the United States of America and in immediately available funds, on the dates
and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Revolving Credit Loan, at
such office, in like money and funds, for the period commencing on the date of
such Revolving Credit Loan until such Revolving Credit Loan shall be paid in
full, at the rates per annum and on the dates provided in the Credit Agreement.
[This Note and the Loans evidenced hereby may be transferred
in whole or in part only by registration of such transfer on the register
maintained for such purpose by or on behalf of the Borrower as provided in
Section 12.06(g) of the Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Revolving Credit Loan made by the Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by the Lender on its books and, prior to any transfer of this Note,
endorsed by the Lender on the schedule attached hereto or any continuation
thereof, provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing
- --------
(1) Bracketed language to be inserted into Registered Notes
- 92 -
<PAGE>
under the Credit Agreement or hereunder in respect of the Revolving Credit Loans
made by the Lender.
This Note is one of the Revolving Credit Notes [(constituting
a Registered Note)] referred to in the Amended and Restated Credit Agreement
dated as of March 18, 1998 (as modified and supplemented and in effect from time
to time, the "Credit Agreement") between the Borrower, the Subsidiary Guarantors
party thereto, the lenders party thereto (including the Lender), First Union
National Bank as Administrative Agent and Lehman Commercial Paper Inc. as
Arranger, and evidences Revolving Credit Loans made by the Lender thereunder.
Terms used but not defined in this Note have the respective meanings assigned to
them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement,
this Note may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
INTERNATIONAL TELECOMMUNICATION
DATA SYSTEMS, INC.
By
-----------------------------------
Title:
- 93 -
<PAGE>
SCHEDULE OF REVOLVING CREDIT LOANS
This Note evidences Revolving Credit Loans made, Continued or Converted
under the within-described Credit Agreement to the Borrower, on the dates, in
the principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
<TABLE>
<CAPTION>
Date, Made Amount
Continued or Paid, Unpaid
Notation Principal Duration of Prepaid, Principal
Converted Amount of Interest Continued or Amount
By Loan Type of Loan Interest Rate Period Converted Made By
- -------------- -------------- -------------- -------------- -------------- ------------- --------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
- 94 -
<PAGE>
EXHIBIT A-2
[Form of Term Loan Note]
PROMISSORY NOTE
$_______________
March 18, 1998
New York, New York
FOR VALUE RECEIVED, INTERNATIONAL TELECOMMUNICATION DATA SYSTEMS, INC.,
a Delaware corporation (the "Borrower"), hereby promises to pay to
__________________ (the "Lender") [or registered assigns](2), for account of its
respective Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the principal office of First Union National Bank at
Agency Services, 1 First Union Center, NC-0608, 301 South College St, Charlotte,
NC 28282, the principal sum of _______________ Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the Term Loans made by the
Lender to the Borrower under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each such Term Loan, at such office, in like
money and funds, for the period commencing on the date of such Term Loan until
such Term Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
[This Note and the Loans evidenced hereby may be transferred in whole
or in part only by registration of such transfer on the register maintained for
such purpose by or on behalf of the Borrower as provided in Section 12.06(g) of
the Credit Agreement.]
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Term Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the Term
Loans made by the Lender.
- -------------
(2) Bracketed language to be inserted into Registered Notes
- 95 -
<PAGE>
This Note is one of the Term Loan Notes [(constituting a Registered
Note)] referred to in the Amended and Restated Credit Agreement dated as of
March 18, 1998 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") between the Borrower, the Subsidiary Guarantors party
thereto, the lenders party thereto (including the Lender), First Union National
Bank as Administrative Agent and Lehman Commercial Paper Inc. as Arranger, and
evidences Term Loans made by the Lender thereunder. Terms used but not defined
in this Note have the respective meanings assigned to them in the Credit
Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Term
Loans upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York.
INTERNATIONAL TELECOMMUNICATION
DATA SYSTEMS, INC.
By
----------------------------
Title:
- 96 -
<PAGE>
SCHEDULE OF TERM LOANS
This Note evidences Term Loans made, Continued or Converted under the
within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
<TABLE>
<CAPTION>
Date, Made Amount
Continued or Paid, Unpaid
Notation Principal Duration of Prepaid, Principal
Converted Amount of Type of Interest Interest Continued or Amount
By Loan Loan Rate Period Converted Made By
- -------------- -------------- -------------- -------------- -------------- ------------- --------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
- 97 -
<PAGE>
EXHIBIT B
[Form of Guarantee Assumption Agreement]
GUARANTEE ASSUMPTION AGREEMENT
GUARANTEE ASSUMPTION AGREEMENT dated as of ___________, _____ by [NAME
OF ADDITIONAL SUBSIDIARY GUARANTOR], a ________ corporation (the "Additional
Subsidiary Guarantor"), in favor of First Union National Bank, as administrative
agent for the lenders or other financial institutions or entities party as
"Lenders" to the Credit Agreement referred to below (in such capacity, together
with its successors in such capacity, the "Administrative Agent").
International Telecommunication Data Systems, Inc., a Delaware
corporation, the Subsidiary Guarantors referred to therein and the
Administrative Agent are parties to an Amended and Restated Credit Agreement
dated as of March 18, 1998 (as modified and supplemented and in effect from time
to time, the "Credit Agreement").
Pursuant to Section 9.17(a) of the Credit Agreement, the Additional
Subsidiary Guarantor hereby agrees to become a "Subsidiary Guarantor" for all
purposes of the Credit Agreement, and a "Debtor" for all purposes of the
Security Agreement. Without limiting the foregoing, the Additional Subsidiary
Guarantor hereby, jointly and severally with the other Subsidiary Guarantors,
guarantees to each Lender, the Administrative Agent, LCPI and the Arranger and
their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of all Guaranteed
Obligations (as defined in Section 6.01 of the Credit Agreement) in the same
manner and to the same extent as is provided in Section 6 of the Credit
Agreement. In addition, the Additional Subsidiary Guarantor hereby makes the
representations and warranties set forth (i) in Sections 8.01, 8.02, 8.04, 8.07,
8.08, 8.09, 8.10, 8.11, 8.12, 8.13, 8.14 and 8.15 of the Credit Agreement, and
in Section 2 of the Security Agreement, with respect to itself and its
obligations under this Agreement, as if each reference in said Sections to the
Basic Documents included reference to this Agreement, (ii) in Sections 8.16 and
8.17 of the Credit Agreement with respect to the supplements to Schedules I and
III to the Credit Agreement attached hereto as Appendix A and (iii) in Section 2
of the Security Agreement with respect to the supplements to Annexes 1 through 6
to the Security Agreement attached hereto as Appendix B. The Additional
Subsidiary Guarantor hereby agrees to take promptly such action (including,
without limitation, delivering such shares of stock, executing and delivering
such Uniform Commercial Code financing statements) as shall be necessary to
create and perfect valid and enforceable first priority Liens on substantially
all of its personal Property as collateral security for its obligations under
the Credit Agreement.
- 98 -
<PAGE>
IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused this
Guarantee Assumption Agreement to be duly executed and delivered as of the day
and year first above written.
[ADDITIONAL SUBSIDIARY GUARANTOR]
By
------------------------------
Title:
Accepted and agreed:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By:
-------------------------------
Title:
- 99 -
<PAGE>
Appendix A to Guarantee Assumption Agreement
Supplement to Schedule I of the Credit Agreement (Material Agreements and
Liens):
Part A:
Part B:
Supplement to Schedule III of the Credit Agreement (Subsidiaries and
Investments):
Part A:
Part B:
- 100 -
<PAGE>
Appendix B to Guarantee Assumption Agreement
Supplement to Annex 1 of the Security Agreement
PLEDGED STOCK
-------------
[See Section 2(b) and (c) of the Security Agreement.]
[NAME OF OBLIGOR]
<TABLE>
<CAPTION>
Issuer Certificate Nos. Registered Number of Shares
- ------ ---------------- ---------- ----------------
Owner
-----
<S> <C> <C> <C>
[Issuer #1] ________ ________ ________ shares
of
[common/preferred]
[$________]
[Issuer #2] ________ ________ ________ shares
of
[common/preferred] stock, [no] par
value
[$________]
[Issuer #3] ________ ________ ________ shares
of
[common/preferred] stock, [no] par
value
[$________]
</TABLE>
- 101 -
<PAGE>
Supplement to Annex 2 to the Security Agreement
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
[See Section 2(d) of the Security Agreement.]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
- -----------------
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Title Date File Registration No. Effective Date
- ----- --------- ---------------- --------------
</TABLE>
- 102 -
<PAGE>
Supplement to Annex 3 to the Security Agreement
LIST OF PATENTS AND PATENT APPLICATIONS
[See Section 2(d) of the Security Agreement.]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
- -----------------
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
File Patent Country Registration No. Date
- ---- ------ ------- ---------------- ----
</TABLE>
- 103 -
<PAGE>
Supplement to Annex 4 to the Security Agreement
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE MARK REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE MARK REGISTRATIONS
[See Section 2(d) of the Security Agreement.]
U.S. Trademarks
---------------
[Complete for each Obligor:]
[NAME OF OBLIGOR]
- -----------------
<TABLE>
<CAPTION>
Application (A)
Registration (R) Registration
Mark or Series No. (S) or Filing Date
- ---- ----------------- --------------
<S> <C> <C>
</TABLE>
- 104 -
<PAGE>
Foreign Trademarks
------------------
[Complete for each Obligor:]
[NAME OF OBLIGOR]
- -----------------
<TABLE>
<CAPTION>
Application (A) Registration or
Mark Registration (R) Country Filing Date (F)
- ---- ---------------- ------- ---------------
<S> <C> <C> <C>
</TABLE>
- 105 -
<PAGE>
Supplement to Annex 5 to the Security Agreement
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[See Section 2(d), (e) and (f) of the Security Agreement]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
- -----------------
- 106 -
<PAGE>
Supplement to Annex 6 to the Security Agreement
LIST OF LOCATIONS
[See Section 5.07 of the Security Agreement.]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
- -----------------
- 107 -
<PAGE>
EXHIBIT C
EXHIBIT C
---------
to
Amended and Restated Credit Agreement
dated as of March 18, 1998
by and among
International Telecommunications Data Systems Inc.
the Lenders party thereto
Lehman Commercial Paper Inc. as
and
First Union National Bank of North Carolina,
as Administrative Agent
NOTICE OF ACCOUNT DESIGNATION
-----------------------------
Dated _______
First Union National Bank
of North Carolina
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina 28233-0608
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you by International
Telecommunication Data Systems Inc. (the "Borrower"), a corporation organized
under the laws of Delaware, under Section [4.05/7.01] of the Amended and
Restated Credit Agreement dated as of March 18, 1998, (as amended, restated or
otherwise modified, the "Credit Agreement") by and among the Borrower, the
Lenders party thereto, Lehman Commercial Paper Inc. as Arranger and First Union
National Bank of North Carolina, Account Administrative as Agent.
The Agent is hereby authorized to disburse all Loan proceeds into the
following account(s):
[Insert name of bank/
ABA Routing Number/
and Account Number]
- 108 -
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this __ day of __________, 19__.
[CORPORATE SEAL] ---------------------------------
By:
-----------------------------
Name:
----------------------
Title:
----------------------
- 109 -
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED MARCH 31, 1998 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> MAR-31-1998
<CASH> 7,720
<SECURITIES> 0
<RECEIVABLES> 24,748
<ALLOWANCES> 1,766
<INVENTORY> 0
<CURRENT-ASSETS> 34,069
<PP&E> 10,994
<DEPRECIATION> 3,143
<TOTAL-ASSETS> 119,629
<CURRENT-LIABILITIES> 12,333
<BONDS> 0
0
0
<COMMON> 134
<OTHER-SE> 37,108
<TOTAL-LIABILITY-AND-EQUITY> 119,629
<SALES> 0
<TOTAL-REVENUES> 26,006
<CGS> 0
<TOTAL-COSTS> 10,261
<OTHER-EXPENSES> 36,129
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,505
<INCOME-PRETAX> (21,664)
<INCOME-TAX> (8,159)
<INCOME-CONTINUING> (13,505)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (13,505)
<EPS-PRIMARY> (1.01)
<EPS-DILUTED> (1.01)
</TABLE>
