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$1,150,000,000
REVOLVING CREDIT
AND TERM LOAN AGREEMENT
dated as of May 4, 2000
among
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WINSTAR COMMUNICATIONS, INC.,
THE GUARANTORS FROM TIME TO TIME PARTIES HERETO
and
WCI CAPITAL CORP.
------------------------------------
THE LENDERS FROM TIME TO TIME PARTIES HERETO
and
THE BANK OF NEW YORK,
as Administrative Agent and Collateral Agent
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BNY CAPITAL MARKETS, INC.,
as Sole Lead Arranger and Book Runner
CIBC WORLD MARKETS CORP.,
CITICORP NORTH AMERICA, INC. and
CREDIT SUISSE FIRST BOSTON,
as Co-Arrangers
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CITICORP NORTH AMERICA, INC.,
as Syndication Agent
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CIBC WORLD MARKETS CORP. and
CREDIT SUISSE FIRST BOSTON,
as Documentation Agents
-----------------------------------------------------
THE BANK OF NEW YORK,
as Letter of Credit Issuer
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TABLE OF CONTENTS
Page
ARTICLE I.
Definitions
Section 1.01 Definitions.....................................2
(a) Terms Generally.................................2
(b) Accounting Terms................................2
(c) Other Terms.....................................2
ARTICLE II.
The Credit Facilities
Section 2.01 Revolving Credit Loans; Borrowing Procedure.....32
Section 2.02 Term Loan A Loans; Borrowing Procedure..........33
Section 2.03 Term Loan B Loans; Borrowing Procedure..........34
Section 2.04 Termination and Reduction of Commitments........34
(a) Revolving Credit Commitments....................34
(b) Term Loan A Commitments; Borrower Reduction.....35
(c) Term Loan A Commitments; Mandatory Borrowing
Request; Commitment Termination..............35
(d) Term Loan B Commitments; Mandatory Borrowing
Request; Commitment Termination..............35
Section 2.05 Repayment.......................................35
(a) Revolving Credit Loans..........................35
(b) Term Loan A Loans...............................35
(c) Term Loan B Loans...............................36
Section 2.06 Prepayment......................................37
(a) Voluntary Prepayment - Revolving Credit Loans...37
(b) Voluntary Prepayment - Term Loans...............37
(c) Mandatory Prepayments...........................37
(d) Prepayment Fee..................................38
Section 2.07 Letters of Credit...............................38
(a) Letters of Credit...............................38
(b) Procedure for Obtaining Letter of Credit........39
(c) Participation by Revolving Credit Lenders.......39
(d) Drawings and Reimbursement......................39
(e) Security Deposit................................40
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ARTICLE III.
Interest and Fees
Section 3.01 Interest Rate Determination; Conversion.........40
Section 3.02 Interest on ABR Loans...........................41
Section 3.03 Interest on Eurodollar Loans....................41
Section 3.04 Interest on Overdue Amounts and During Any
Event of Default.............................42
Section 3.05 Day Counts......................................42
Section 3.06 Maximum Interest Rate...........................42
Section 3.07 Fees............................................43
ARTICLE IV.
Disbursement and Payment
Section 4.01 Disbursement....................................44
Section 4.02 Method and Time of Payments; Sharing among
Lenders......................................45
Section 4.03 Compensation for Losses.........................46
Section 4.04 Withholding and Additional Costs................46
Section 4.05 Illegality......................................49
Section 4.06 Expenses; Indemnity.............................50
Section 4.07 Replacement of Lenders..........................51
Section 4.08 Survival........................................51
ARTICLE V.
Representations and Warranties
Section 5.01 Representations and Warranties..................52
(a) Corporate Organization and Power................52
(b) Subsidiaries....................................52
(c) Corporate Authority.............................52
(d) Binding Obligation..............................53
(e) Litigation; Labor Controversies.................53
(f) Governmental Approvals; No Conflicts............53
(g) Financial Condition.............................53
(h) Taxes...........................................54
(i) Margin Regulations; Margin Stock; Use of
Proceeds.....................................54
(j) Compliance with ERISA...........................54
(k) Investment Company and Holding Company Status...55
(l) Properties and Licenses.........................55
(m) Telecommunications Business and
Telecommunications Licenses..................56
(n) Investments.....................................56
(o) Compliance with Laws and Charter Documents......56
(p) Environmental Protection........................57
(q) Insurance.......................................57
(r) Compliance with Agreements......................57
(s) Security Documents..............................57
(t) Full Disclosure.................................58
Section 5.02 Survival........................................58
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ARTICLE VI.
Guarantee
Section 6.01 The Guarantee...................................58
Section 6.02 Obligations Unconditional.......................59
Section 6.03 Reinstatement...................................60
Section 6.04 Subrogation.....................................60
Section 6.05 Remedies........................................60
Section 6.06 Continuing Guarantee............................60
Section 6.07 Rights of Contribution..........................60
Section 6.08 Limitation on Guarantee Obligations.............61
Section 6.09 Additional Guarantors...........................61
ARTICLE VII.
Conditions Precedent
Section 7.01 Conditions to the Availability of the
Commitments..................................61
(a) Credit Documents................................62
(b) Perfection of Security Interests................62
(c) Evidence of Corporate Action....................62
(d) Opinions of Counsel.............................63
(e) Representations and Warranties..................63
(f) Other Documents.................................63
(g) Fees............................................63
(h) Insurance.......................................63
(i) Restructuring...................................63
(j) Vendor Facilities...............................64
Section 7.02 Conditions to All Loans.........................64
(a) Borrowing Request...............................64
(b) No Default......................................64
(c) Representations and Warranties; Covenants.......64
Section 7.03 Satisfaction of Conditions Precedent............64
ARTICLE VIII.
Covenants
Section 8.01 Affirmative Covenants...........................64
(a) Financial Statements; Compliance Certificates...64
(b) Corporate Existence.............................66
(c) Conduct of Business.............................66
(d) Taxes...........................................66
(e) Insurance.......................................66
(f) Inspection......................................67
(g) Maintenance of Records..........................67
(h) Maintenance of Property.........................67
(i) ERISA...........................................67
(j) Notice of Adverse Developments..................68
(k) Environmental Matters...........................69
(l) Interest Rate Protection........................69
(m) Measurement Date................................69
(n) Information Regarding Collateral................69
(o) Casualty and Condemnation.......................70
(p) Temporary Restricted Subsidiaries...............70
(q) Parent and Borrower as Holding Company..........70
(r) Actions by Restricted Subsidiaries..............70
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(s) Pledge of Collateral............................70
(t) Further Assurances..............................70
Section 8.02 Negative Covenants..............................71
(a) Limitation on Indebtedness......................71
(b) Limitations on Mergers, Consolidations and
Sales of Assets..............................75
(c) Limitations on Liens............................75
(d) Investments, Acquisitions, Loans, Advances
and Guaranties...............................78
(e) Dividends, Purchase of Stock and Prepayments....83
(f) Use of Proceeds.................................85
Section 8.03 Financial Covenants.............................85
(a) Phase 1 Financial Covenants.....................85
(b) Phase 2 Financial Covenants.....................88
(c) Consolidated Senior Debt to Consolidated
Annualized EBITDA............................91
(d) EBITDA to Consolidated Debt Service.............91
ARTICLE IX.
Events of Default
Section 9.01 Events of Default...............................91
ARTICLE X.
The Administrative and Collateral Agents
Section 10.01 The Agency......................................94
Section 10.02 The Administrative Agent's Duties...............94
Section 10.03 Limitation of Liabilities.......................94
Section 10.04 The Administrative Agent and Collateral
Agent as a Lender............................95
Section 10.05 Lender Credit Decision..........................95
Section 10.06 Indemnification.................................95
Section 10.07 Successor Administrative Agent and
Collateral Agent.............................96
ARTICLE XI.
Evidence of Loans; Transfers
Section 11.01 Evidence of Loans...............................96
Section 11.02 Participations..................................97
Section 11.03 Assignments.....................................98
Section 11.04 Certain Pledges.................................99
ARTICLE XII.
Subsidiaries
Section 12.01 Restricted Subsidiaries.........................99
Section 12.02 Principal Subsidiaries..........................101
Section 12.03 Designated Foreign Subsidiaries.................102
Section 12.04 Temporary Restricted Subsidiaries...............102
Section 12.05 Administrative Agent Duties.....................102
Section 12.06 Additional Subsidiaries.........................102
Section 12.07 Impracticality..................................102
Section 12.08 Conversions Upon Prepayment.....................103
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ARTICLE XIII.
Miscellaneous
Section 13.01 APPLICABLE LAW..................................103
Section 13.02 WAIVER OF JURY TRIAL............................103
Section 13.03 Jurisdiction and Venue; Service of Process......103
Section 13.04 Set off.........................................104
Section 13.05 Confidentiality.................................104
Section 13.06 Amendments and Waivers..........................105
Section 13.07 Cumulative Rights; No Waiver....................105
Section 13.08 Notices.........................................105
Section 13.09 Separate Debts..................................108
Section 13.10 Certain Acknowledgments.........................108
Section 13.11 Separability....................................108
Section 13.12 Parties in Interest.............................108
Section 13.13 Execution in Counterparts.......................108
Exhibits
2.01(b) Form of Revolving Credit Request
2.02(b) Form of Term Loan A Loan Request
2.03(b) Form of Term Loan B Loan Request
2.07(b) Form of L/C Request
3.01(b) Form of Conversion Request
5.01(s)-1 Form of Blocked Account Agreement
5.01(s)-2 Form of Securities Account Control Agreement
5.01(s)-3 Form of Pledge and Security Agreement
5.01(s)-4 Form of Trademark Assignment Agreement
6.09 Form of Guarantee Supplement
7.01(d)(i) Form of Opinion of Counsel for Borrower (Shearman & Sterling)
7.01(d)(ii) Form of Opinion of Counsel for Borrower (Graubard, Mollen
& Miller)
7.01(d)(iii) Form of Opinion of Special Counsel for Lenders (Sullivan &
Cromwell)
7.01(d)(iv) Form of Opinion of Special FCC Counsel for Borrower (Willkie
Farr & Gallagher)
8.01(a)(v) Form of Officer's Compliance Certificate
11.01(d)-1 Form of Revolving Credit Note
11.01(d)-2 Form of Term Loan Note
11.03(a) Form of Assignment and Acceptance
Schedules
1.01(c)-1 Lenders and Commitments (and addresses for notification)
5.01(b) Subsidiaries (Restricted and Unrestricted)
5.01(e)-1 Certain Litigation
5.01(e)-2 Labor Controversies
5.01(g)(ii) Material Adverse Effects
5.01(m)(ii) Telecommunications Licenses
5.01(m)(iii) Certain Events Regarding Telecommunications Licenses
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5.01(n) Investments
7.01(b)(iv) Pledged Securities Holders
7.01(b)(v) Holders of Collateral Interests Held by Intermediaries
7.01(i) Exceptions to Corporate Restructuring
8.02(a) Existing Indebtedness
8.02(c) Liens
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REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated as of May 4,
2000, among WINSTAR COMMUNICATIONS, INC., a Delaware corporation (the "Parent"),
WCI CAPITAL CORP., a Delaware corporation (the "Borrower"), each of the entities
listed on the signature pages hereof under the heading "Guarantors" and the
Additional Guarantors (as defined in Section 6.09) from time to time parties
hereto, each of the lenders from time to time parties to this Agreement
(collectively, the "Lenders"), THE BANK OF NEW YORK, as letter of credit issuer,
administrative agent and collateral agent for the Lenders, CITICORP NORTH
AMERICA, INC., as syndication agent for the Lenders, and CIBC WORLD MARKETS
CORP. and CREDIT SUISSE FIRST BOSTON, as documentation agents for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders severally to
commit to lend to the Borrower (i) up to $300,000,000 on a revolving basis for
general corporate purposes under a senior secured reducing credit facility (the
"Revolving Credit Facility"; loans extended thereunder each being a "Revolving
Credit Loan" and, collectively, the "Revolving Credit Loans"); (ii) up to
$375,000,000 for general corporate purposes under a senior secured term loan
facility (the "Term Loan A Facility"; loans extended thereunder each being a
"Term Loan A Loan" and, collectively, the "Term Loan A Loans"); and (iii) up to
$475,000,000 for general corporate purposes under a senior secured term loan
facility (the "Term Loan B Facility"; loans made thereunder each being a "Term
Loan B Loan" and, collectively, the "Term Loan B Loans"; the Term Loan B Loans,
together with the Term Loan A Loans, being the "Term Loans"); and
WHEREAS, the Borrower also has requested the Lenders to
establish procedures pursuant to which it may obtain letters of credit of up to
$75,000,000 under the Revolving Credit Facility for general corporate purposes;
WHEREAS, the Lenders are willing to make loans, and to
establish such procedures for the Borrower to obtain letters of credit, on the
terms and conditions provided herein;
WHEREAS, the Borrower is a direct subsidiary of Parent and the
Parent will benefit, directly or indirectly, from credit extended by the Lenders
to the Borrower; and
WHEREAS, each of the Restricted Subsidiaries is or pursuant to
Section 8.01(p) will become a direct or indirect subsidiary of the Borrower and
will benefit, directly or indirectly, from credit extended by the Lenders to the
Borrower.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I.
Definitions
Section 1.01 Definitions.
(a) Terms Generally. The definitions ascribed to terms in this
Agreement apply equally to both the singular and plural forms of such terms.
Whenever the context may require, any pronoun shall be deemed to include the
corresponding masculine, feminine and neuter forms. The words "include",
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"includes" and "including" shall be interpreted as if followed by the phrase
"without limitation". The phrase "individually or in the aggregate" shall be
deemed to be general in scope and not to refer to any specific Section or clause
of this Agreement. All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise require. The
table of contents, headings and captions herein shall not be given effect in
interpreting or construing the provisions of this Agreement. Except as otherwise
expressly provided herein, all references to "dollars" or "$" shall be deemed
references to the lawful money of the United States of America and all times
shall be deemed references to New York time.
(b) Accounting Terms. Except as otherwise expressly provided
herein, the term "consolidated" and all other terms of an accounting nature
shall be interpreted and construed in accordance with GAAP, as in effect on the
date hereof; provided, however, that, for purposes of determining compliance
with the provisions of this Agreement, the term "consolidated" as applied to the
Parent, Borrower, Restricted Subsidiaries, Principal Subsidiaries, Vendor
Financing Obligors, Designated Foreign Subsidiaries, Consolidated Group,
Consolidated Subsidiary Group and/or Loan Parties, as the case may be, shall
mean only the consolidation of the Persons indicated, as applicable, and not
other Persons that otherwise under GAAP would be included on a consolidated
basis. If there shall occur a change in GAAP which would affect the computation
used to determine compliance with any covenant set forth in Article VIII, the
Loan Parties and the Lenders agree to negotiate in good faith in an effort to
agree upon an amendment to this Agreement that will permit compliance with such
covenant to be determined by reference to GAAP as so changed while affording the
Lenders and the Consolidated Group the rights and obligations intended to be
afforded by such covenant prior to such change (it being understood, however,
that such covenant shall remain in full force and effect in accordance with its
existing terms unless and until such amendment shall become effective).
(c) Other Terms. The following terms have the meanings
ascribed to them below or in the Sections of this Agreement indicated below:
"ABR Loans" means, collectively, ABR Revolving Loans and ABR
Term Loans.
"ABR Revolving Loans" means Revolving Credit Loans that bear
interest at a rate or rates determined by reference to the Alternate
Base Rate.
"ABR Term Loans" means Term Loans or portions thereof that
bear interest at a rate or rates determined by reference to the
Alternate Base Rate.
"Acquired Indebtedness" means Indebtedness of any Person
outstanding on the date on which such Person is acquired, by merger or
otherwise (other than Indebtedness Incurred in connection with, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of transactions pursuant to which
such Person was acquired).
"Adjusted Gross PP&E" means gross property, plant and
equipment of the Consolidated Group on a consolidated basis less (i)
Indebtedness under the Vendor Facilities for the Consolidated Group on
a consolidated basis, (ii) Non-Fiber Capital Lease Obligations for the
Consolidated Group on a consolidated basis and (iii) the gross
property, plant and equipment of the Principal Subsidiaries and
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Designated Foreign Subsidiaries on a consolidated basis to the extent
that such gross property, plant and equipment exceeds 10% of the gross
property, plant and equipment of the Consolidated Group on a
consolidated basis.
"Administrative Agent" means The Bank of New York, acting in
the capacity of administrative agent for the Lenders, or any successor
administrative agent appointed pursuant to the terms of this Agreement.
"Administrative Questionnaire" means an administrative details
reply form delivered by a Lender to the Administrative Agent, in
substantially the form provided by the Administrative Agent or the form
attached to an Assignment and Acceptance.
"Affected Lender" has the meaning assigned to such term in
Section 4.07.
"Affiliate" of any specified Person means:
(i) any other Person, directly or indirectly, controlling
or controlled by; or
(ii) under direct or indirect common control with such
specified Person. For the purposes of this definition,
"control" when used with respect to any Person means
the power to direct the management and policies of such
Person, directly or indirectly, whether through the
ownership of Voting Stock, by contract or otherwise;
and the terms "controlling" and "controlled" have the
meaning correlative to the foregoing.
"Agreement" means this credit agreement, as it may be amended,
modified or supplemented from time to time.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of:
(i) the rate of interest from time to time publicly
announced by the Administrative Agent in The City of
New York as its prime commercial loan rate in effect on
such day; and
(ii) the sum of (a) 1/2 of 1% per annum and (b) the Federal
Funds Rate in effect on such day.
The Alternate Base Rate shall change as and when the greater
of the foregoing rates shall change. Any change in the Alternate Base
Rate shall become effective as of the opening of business on the day of
such change.
"Applicable Lending Office" means, with respect to a Lender
and a Loan, the applicable office of the Lender for making such Loan,
as specified in Schedule 1.01(c)-1 or in an Administrative
Questionnaire delivered to the Administrative Agent as the office from
which such Lender makes Loans of the relevant type.
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"Applicable Margin" means, at any date, the applicable margin
(i) with respect to Revolving Credit Loans and Term Loan A Loans during
Phase 1 as set forth below; (ii) with respect to Revolving Credit Loans
and Term Loan A Loans during Phase 2 as set forth below based upon the
ratio of Consolidated Total Debt to Consolidated Annualized EBITDA as
of the most recent Measurement Date preceding such date as set forth in
Section 8.01(m) and (iii) with respect to Term Loan B Loans as set
forth below:
Revolving Credit and Term Loan A Loans
Applicable Margin
--------------------------------
ABR Loans Eurodollar Loans
---------- ----------------
Phase 1 2.250% 3.250%
Phase 2
Consolidated Total Debt/Consolidated
Annualized EBITDA ratio ABR Loans Eurodollar Loans
----------------------- -------- ----------------
10.00 or greater 2.000% 3.000%
7.50 or greater, but less than 10.00 1.625% 2.625%
5.00 or greater, but less than 7.50 1.250% 2.250%
Less than 5.00 0.875% 1.875%
Term Loan B Loans
In respect of the Term Loan B Loans the Applicable Margin for
ABR Loans means 3.50% and the Applicable Margin for Eurodollar Loans
means 4.50%,
provided that during Phase 2 the ratio of Consolidated Total Debt to
Consolidated Annualized EBITDA shall be deemed to be 10.00 or greater
if the Parent fails to deliver the consolidated financial statements
required to be delivered by it pursuant to Section 8.01(a) within 15
days after the end of the period specified therein for delivery
thereof, during the period from the expiration of such 15-day period
until such consolidated financial statements are delivered; provided,
further, that if the Parent fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 8.01(a)
within the period specified therein for delivery thereof and, when such
financial statements are delivered, the Applicable Margin resulting
from the ratio of Consolidated Total Debt to Consolidated Annualized
EBITDA based upon such financial statements is greater than the
Applicable Margin in effect immediately prior to the end of the period
during which such financial statements were required to be delivered,
then (x) the Applicable Margin shall be retroactively increased (for
the period from the expiration of the period specified in Section
8.01(a) for delivery of such consolidated financial statements until
the earlier of the date such consolidated financial statements are
delivered or the date of the expiration of the 15-day period referred
to in the foregoing proviso) and (y) if any payments of interest have
been made with respect to such period,
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the Borrower shall promptly make a supplemental payment of interest to
correct the underpayment.
"Approved Funds" has the meaning assigned to such term in
Section 11.03(a).
"Assignee" has the meaning assigned to such term in Section
11.03(a).
"Assignment and Acceptance" has the meaning assigned to such
term in Section 11.03(a).
"Available Revolving Credit Commitment" means, on any day, an
amount equal to (i) the Total Revolving Credit Commitment on such day
minus (ii) the sum of the aggregate outstanding principal amount of
Revolving Credit Loans and the aggregate amount of L/C Obligations on
such day.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing:
(i) the sum of the products of numbers of years from
the date of determination to the dates of each
successive scheduled principal payment of or
redemption or similar payment with respect to such
Indebtedness multiplied by the amount of such
payment by
(ii) the sum of all such payments.
"Blocked Account Agreement" means a blocked account agreement
in substantially the form attached as Exhibit 5.01(s)-1.
"Board of Directors" of any Person means the Board of
Directors of such Person or any committee thereof duly authorized to
act on behalf of such Board of Directors.
"Bond Notes" means notes issued pursuant to the Bond Notes
Offering.
"Bond Notes Offering" means the issuance of notes on April 10,
2000, by the Parent.
"Borrower" shall have the meaning assigned to such term in the
preamble.
"Borrowing Date" means, (i) with respect to any Loan, the
Business Day set forth in the relevant Borrowing Request as the date
upon which the Borrower desires to borrow such Loan and (ii) with
respect to any Letter of Credit, the Business Day set forth in the
relevant L/C Request as the date upon which the Borrower desires the
L/C Issuer to issue such Letter of Credit.
"Borrowing Request" means a Revolving Credit Request, a Term
Loan Request or a L/C Request.
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"Business Day" means (i) any day that is not a Saturday,
Sunday or other day on which commercial banks in The City of New York
are authorized or required by law to close and (ii) with respect to any
Eurodollar Loan, a day on which commercial banks are open for domestic
and international business (including dealings in dollar deposits) in
London and The City of New York.
"Capital Lease Obligation" means an obligation that is
required to be classified and accounted for as a capital lease for
financial reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligation shall be the capitalized
amount of such obligation determined in accordance with GAAP, and the
Stated Maturity thereof shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of
such Person, including any Preferred Stock, but excluding any debt
securities convertible into such equity.
"Cash Capital Expenditures" means capital expenditures of the
Consolidated Group on a consolidated basis including, without
duplication, the acquisition of licenses for radio spectrum for cash
(less additions to Capital Lease Obligations from Fiber Capital Lease
Obligations) plus cash payments made with respect to Fiber Capital
Lease Obligations, excluding (i) expenditures of Net Available Cash
reinvested in Telecommunications Assets as provided in Section
2.06(c)(iii), (ii) expenditures of net proceeds from casualty and
condemnation reinvested in Telecommunications Assets as provided in
Section 2.06(c)(ii), and (iii) capital expenditures resulting from the
swap or exchange of existing Telecommunications Assets for other
Telecommunications Assets.
"Change of Control" means the occurrence of any of the
following events:
(i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than
one or more Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that for
purposes of this clause (i) any such person shall
be deemed to have "beneficial ownership" of all
shares that 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 35% of the total voting
power of the Voting Stock of the Parent; provided,
however, that the Permitted Holders beneficially
own (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, in the
aggregate a lesser percentage of the total voting
power of the Voting Stock of the Parent than such
other person and do not have the right or ability
by voting power, contract or otherwise to elect or
designate for election a majority of the Board of
Directors of the Parent (for the purposes of this
clause (i), such other person shall be deemed
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beneficially to own any Voting Stock of a Person
(the "specified person") held by any other Person
(the "parent entity"), if such other person is the
beneficial owner (as defined above in this clause
(i)), directly or indirectly, of more than 35% of
the voting power of the Voting Stock of such parent
entity and the Permitted Holders beneficially own
(as defined in this proviso), directly or
indirectly, in the aggregate a lesser percentage of
the voting power of the Voting Stock of such parent
entity and do not have the right or ability by
voting power, contract or otherwise to elect or
designate for election a majority of the Board of
Directors of such parent entity);
(ii) individuals who on the Effective Date constituted
the Board of Directors of the Parent (together with
any new directors whose election by such Board of
Directors or whose nomination for election by the
shareholders of the Parent was approved by a vote
of 66-2/3% of the directors of the Parent then
still in office who were either directors on the
Effective Date or whose election or nomination for
election was previously so approved) cease for any
reason to constitute a majority of the Board of
Directors of the Parent then in office;
(iii)the adoption of a plan relating to the liquidation
or dissolution of the Parent; or
(iv) the merger or consolidation of the Parent with or
into another Person or the merger of another Person
with or into the Parent, or the sale of all or
substantially all the assets of the Parent
(determined on a consolidated basis) to another
Person (other than, in all such cases, a Person
that is controlled by the Permitted Holders), other
than a transaction following which in the case of a
merger or consolidation transaction, securities
that represented 100% of the Voting Stock of the
Parent immediately prior to such transaction (or
other securities into which such securities are
converted as part of such merger or consolidation
transaction) constitute at least a majority of the
voting power of the Voting Stock of the surviving
Person in such merger or consolidation transaction.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" has the meaning assigned to such term in Section
5.01(s).
"Collateral Agent" means The Bank of New York, acting in the
capacity of an agent for the Lenders under the various Security
Documents.
"Commitment" means, with respect to a Lender, (i) on the date
hereof, the amount set forth opposite such Lender's name under the
heading "Commitment" on Schedule 1.01(c)-1, and (ii) after the date
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hereof, the amount recorded as such in the records maintained by the
Administrative Agent pursuant to Section 11.01(b), as such amount may
be reduced from time to time pursuant to Section 2.04.
"Commitment Fee" has the meaning assigned to such term in
Section 3.07(a).
"Commitment Termination Date" means the earlier to occur of
(i) March 31, 2007 and (ii) the date, if any, on which the Total
Commitment is otherwise terminated pursuant to this Agreement.
"Communications Act" means the Communications Act of 1934, as
amended.
"Confidential Information" means any projections or other
non-public information provided to the Administrative Agent for the
Lenders or L/C Issuer or to a Lender or L/C Issuer or to the
syndication agent or documentation agents for the Lenders by or on
behalf of a Loan Party (that could reasonably be expected to be
confidential) in connection with the transactions contemplated by or
otherwise pursuant to the Credit Documents; provided that such term
shall not include information to the extent such information (i) is or
becomes publicly available, (ii) was available to the Administrative
Agent, Lenders or L/C Issuer prior to disclosure by the Loan Parties
hereunder, or (iii) becomes available to the Administrative Agent,
Lenders or L/C Issuers on a non- confidential basis from a source that
is not known to the Administrative Agent, Lenders or L/C Issuer to be
subject to a confidentiality agreement with any of the Loan Parties.
"Consolidated Annualized EBITDA" means with respect to any
determination date the product of EBITDA for the most recent full
fiscal quarter ending on or prior to such date multiplied by four (4);
provided that, for purposes of determining the Applicable Margin and
for purposes of determining compliance with conditions to the
Borrower's ability to Incur Indebtedness on any day, Consolidated
Annualized EBITDA shall be calculated for any period based on the
product of EBITDA for the period ending on the most recent fiscal
quarter end prior to such day for which financial statements have been
delivered pursuant to Section 8.01(a) multiplied by four (4).
"Consolidated Debt Service" means Consolidated Interest
Expense plus regularly scheduled principal payments on Indebtedness
(excluding any such payments on Fiber Capital Lease Obligations) of the
Consolidated Group on a consolidated basis.
"Consolidated Group" means the Loan Parties, Principal
Subsidiaries, Vendor Facility Obligors and Designated Foreign
Subsidiaries.
"Consolidated Group Member" means any Person included in the
Consolidated Group.
"Consolidated Interest Expense" means, for any period, the
interest expense of the Consolidated Group on a consolidated basis for
such period whether paid or accrued, with respect to all outstanding
Indebtedness other than Fiber Capital Lease Obligations, including all
discounts and other fees and charges owed with respect to letter of
credit and bankers' acceptance financing and net costs and amounts
payable to or payable by a Consolidated Group Member under Hedging
Obligations less any interest expense for such period not required to
be paid in cash.
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"Consolidated Net Income" means the net income (or loss) of
the Consolidated Group on a consolidated basis for the relevant period
for which financial statements have most recently been delivered;
provided, however, that there shall not be included in such
Consolidated Net Income:
(i) any gain (or loss) realized upon the sale or other
disposition of any assets of a Consolidated Group
Member or any other Person (including pursuant to
any Sale/Leaseback Transaction) which is not sold
or otherwise disposed of in the ordinary course of
business and any gain (or loss) realized upon the
sale or other disposition of any Capital Stock of
any Person; or
(ii) extraordinary gains or losses.
For the purposes of this definition, Consolidated Net Income
(i) includes the net income (or loss) of any Person acquired by a
Consolidated Group Member beginning as of the first day of the fiscal
quarter during which such Person is acquired and (ii) excludes the net
income (or loss) of any Person divested by a Consolidated Group Member
beginning as of the first day of the fiscal quarter during which such
Person is divested.
"Consolidated Revenue" means, for any period, the revenue of
the Consolidated Group on a consolidated basis for such period;
provided, however, that there shall not be included in such
Consolidated Revenue the revenue of the Principal Subsidiaries and
Designated Foreign Subsidiaries on a consolidated basis (after
eliminating intercompany transactions among the Consolidated Group
Members) to the extent that such revenue exceeds 10% of the revenue of
the Consolidated Group on a consolidated basis.
"Consolidated Senior Debt" means, as of any date of
determination, Indebtedness (excluding Hedging Obligations and Fiber
Capital Lease Obligations) of the Consolidated Subsidiary Group on a
consolidated basis less aggregate cash balances (to the extent that
such cash balances are pledged to the Lenders and L/C Issuer under the
Credit Documents) held by the Consolidated Group in excess of $50.0
million, in each case as of such date. On any Measurement Date,
Consolidated Senior Debt shall be calculated including the amount
stated in the Borrowing Request, if applicable.
"Consolidated Senior Secured Debt" means, as of any date of
determination, Indebtedness (excluding Hedging Obligations) under the
Facilities of the Consolidated Group less aggregate cash balances (to
the extent that such cash balances are pledged to the Lenders and L/C
Issuer under the Credit Documents) held by the Consolidated Group in
excess of $50.0 million, in each case as of such date. On any
Measurement Date, Consolidated Senior Secured Debt shall be calculated
including the amount stated in the Borrowing Request, if applicable.
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"Consolidated Subsidiary Group" means the Borrower, Restricted
Subsidiaries, Principal Subsidiaries, Vendor Facility Obligors and
Designated Foreign Subsidiaries.
"Consolidated Subsidiary Group Member" means any Person
included in the Consolidated Subsidiary Group.
"Consolidated Total Capitalization" means, as of any date of
determination, the sum of (i) Consolidated Total Debt and (ii) total
equity (including Preferred Stock which includes, without duplication,
the Series D Preferred Stock, but excluding Disqualified Stock) and
excluding cumulative losses and negative retained earnings of the
Consolidated Group on a consolidated basis.
"Consolidated Total Debt" means, as of any date of
determination, Indebtedness (excluding Hedging Obligations and Fiber
Capital Lease Obligations) of the Consolidated Group on a consolidated
basis less aggregate cash balances (to the extent that such cash
balances are pledged to the Lenders and L/C Issuer under the Credit
Documents) held by the Consolidated Group in excess of $50.0 million,
in each case as of such date. On any Measurement Date, Consolidated
Total Debt shall be calculated including the amount stated in the
Borrowing Request, if applicable.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by which
it or any of its Property is bound.
"Conversion Date" means, with respect to a Loan, the date on
which a conversion of interest rates on such Loan shall take effect.
"Conversion Request" means a request by the Borrower to
convert the interest rate basis for all or portions of outstanding
Revolving Credit Loans or Term Loans, which shall specify (i) the
requested Conversion Date, which in the case of a conversion to
Eurodollar Loan shall be not fewer than three Business Days after the
date of such Conversion Request, (ii) the aggregate amount of such
Revolving Credit Loans or Term Loans, on and after the Conversion Date,
which are to bear interest as ABR Loans or Eurodollar Loans and (iii)
the term of the Interest Periods therefor, if any.
"Copyright Assignment Agreement" means a copyright assignment
agreement in substantially the form attached as Exhibit 5.01(s)-4.
"Credit Documents" means this Agreement, any Notes, if and
when issued in accordance with Section 11.01(d), any Letters of Credit
and the related applications and agreements and the Security Documents.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement
designed to protect such Person against fluctuations in currency
values.
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"Data Center Equipment Financing" means Purchase Money
Indebtedness provided by an Equipment Vendor Lender and Incurred for
the purpose of financing not more than 100% of the Vendor Equipment
Price of telecommunications, data transmission or computer equipment,
provided that such equipment is (1) manufactured by such Equipment
Vendor Lender or another single Equipment Vendor, (2) used to provide
data transmission, data storage or hosting services, or services
directly related to any such services and (3) installed in a central
office or data center facility owned or operated by a Consolidated
Subsidiary Group Member.
"Default" means any event or circumstance which, with the
giving of notice or the passage of time, or both, would be an Event of
Default.
"Designated Foreign Subsidiaries" means the Subsidiaries of
the Borrower listed as such on Schedule 5.01(b) as of the Effective
Date plus Subsidiaries of the Borrower designated as Designated Foreign
Subsidiaries pursuant to Section 12.03(b) but excluding Subsidiaries
removed as Designated Foreign Subsidiaries pursuant to Sections
12.03(c) and (d).
"Disqualified Stock" means, with respect to any Person, any
Capital Stock other than Series D Preferred Stock which by its terms
(or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder) or upon the
happening of any event:
(i) matures or is mandatorily redeemable (other than
for Capital Stock that is not Disqualified Stock)
pursuant to a sinking fund obligation or otherwise;
(ii) is convertible or exchangeable at the option of the
holder for Indebtedness or Disqualified Stock; or
(iii)is mandatorily redeemable or must be purchased upon
the occurrence of certain events or otherwise, in
whole or in part;
in each case on or prior to the first anniversary after the Stated
Maturity of the Loans; provided, however, that any Capital Stock that
would not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require such Person to purchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or
"change of control" occurring prior to the first anniversary after the
Stated Maturity of the Loans shall not constitute Disqualified Stock
if:
(A) the "asset sale" or "change of control" provisions
applicable to such Capital Stock are not more
favorable to the holders of such Capital Stock than
one of the following: (1) the "asset sale" terms
applicable to the Loans and described under
Sections 2.06(c)(iii), (2) the "change of control"
terms applicable to the Loans and described herein,
or (3) the then prevailing market terms for
comparable Capital Stock generally and reasonably
acceptable to the Administrative Agent, such
acceptance not to be unreasonably withheld or
delayed; and
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(B) any such provision only becomes operative after
compliance with such terms applicable to the Loans,
including the prepayment of any Loans.
"EBITDA" for any period means for the Consolidated Group on a
consolidated basis (x) Consolidated Net Income, minus (y) interest
income and gains from discontinued operations, to the extent included
in calculating such Consolidated Net Income, plus (z) the following to
the extent deducted in calculating such Consolidated Net Income:
(i) all income tax expense;
(ii) interest expense of the Consolidated Group on a
consolidated basis whether paid or accrued, with
respect to all outstanding Indebtedness, including
all discounts and other fees and charges owed with
respect to letter of credit and bankers' acceptance
financing and net costs and amounts payable to or
payable by a Consolidated Group Member under
Hedging Obligations;
(iii)depreciation and amortization expense (excluding
amortization expense attributable to a prepaid
operating activity item that was paid in cash in a
prior period);
(iv) all other non-cash charges (excluding any such
non-cash charge to the extent that it represents an
accrual of or reserve for cash expenditures in any
future period);
(v) Preferred Stock dividends; and
(vi) losses from discontinued operations,
provided, however, that there shall not be included in EBITDA the
EBITDA attributable to the Principal Subsidiaries and Designated
Foreign Subsidiaries on a consolidated basis (after eliminating
intercompany transactions among Consolidated Group Members) to the
extent that such EBITDA exceeds 10% of the EBITDA of the Consolidated
Group on a consolidated basis.
"Effective Date" shall mean the day during which the Effective
Time occurs.
"Effective Time" has the meaning assigned to such term in
Section 7.01.
"Environmental Claim" means any claim, demand, notice of
violation, suit, administrative or judicial proceeding, regulatory
action, investigation, information request or order, in each case in
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writing, involving any Hazardous Substance, Environmental Law, noise
or odor pollution or any environmental injury or threat of
environmental injury to human health, property or the environment.
"Environmental Law" means any federal, state, local or foreign
statute or common law, regulation, order, decree, common law or agency
requirement as now in effect or hereinafter adopted relating to (i) the
handling, use, presence, disposal or release of any Hazardous Substance
or (ii) the protection, preservation or restoration of the environment,
natural resources or human health or safety as it relates to a
Hazardous Substance.
"Equipment Vendor" means a Person that manufactures equipment
that is a Telecommunications Asset and any Affiliate of such Person.
"Equipment Vendor Lender" means an Equipment Vendor; provided,
however, that if an Equipment Vendor does not in the ordinary course of
its business provide vendor financing to purchasers of its products and
services, "Equipment Vendor Lender" shall mean a Person, not an
Affiliate of such Equipment Vendor, that in the ordinary course of its
business provides financing for equipment (including related items
utilized in connection therewith) manufactured, utilized, sold or
distributed by Equipment Vendors and is reasonably acceptable to the
Administrative Agent.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Group" means the Parent and all members of a controlled
group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Parent, are
treated as a single employer under Section 414 of the Code or are
considered to be one employer under Section 4001 of ERISA.
"Eurodollar Loans" means, collectively, Eurodollar Revolving
Loans and Eurodollar Term Loans.
"Eurodollar Revolving Loans" means Revolving Credit Loans that
bear interest at a rate or rates determined by reference to LIBOR.
"Eurodollar Term Loans" means Term Loans or portions thereof
that bear interest at a rate or rates determined by reference to LIBOR.
"Eurodollar Reserve Percentage" means, for any day, the
percentage prescribed by the Federal Reserve Board for determining the
maximum reserve requirement (including any marginal, supplemental or
emergency reserve requirements) on such day for a member bank of the
Federal Reserve System in The City of New York with deposits exceeding
one billion dollars in respect of "eurocurrency liabilities" (as
defined in Regulation D of the Federal Reserve Board (or any successor
regulation), as amended from time to time).
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"Event of Default" has the meaning assigned to such term in
Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Taxes" means all present and future taxes, levies,
imposts, duties, deductions, withholdings and similar charges imposed
on or measured by the income of the Administrative Agent or any Lender
(or any office, branch or subsidiary of the Administrative Agent or
such Lender, as the case may be) or any franchise taxes, taxes on doing
business or taxes measured by capital or net worth imposed on any
Lender (or any office, branch or subsidiary of the Administrative Agent
or such Lender, as the case may be), in each case imposed as a result
of a present or former or future connection between the Administrative
Agent, or a Lender, and the jurisdiction of the relevant authority
imposing the tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from
the Administrative Agent or a Lender having executed, delivered or
performed its obligations or received a payment under, or enforced,
this Agreement and the Notes).
"Facilities" means the Revolving Credit Facility, the Term
Loan A Facility and the Term Loan B Facility.
"Fair Market Value" means (i) with respect to cash, the actual
amount thereof, (ii) with respect to Marketable Securities, the closing
price of such Marketable Securities as of the end of the trading day
immediately preceding the date of determination on the exchange on
which such Marketable Securities are principally traded and (iii) with
respect to any Property other than cash or Marketable Securities, the
price that could reasonably be expected to be negotiated in an
arm's-length free market transaction for cash, between a willing seller
and a willing buyer, neither of whom is under pressure or compulsion to
complete the transaction. Unless otherwise specified with respect to
any Property (other than cash or Marketable Securities), (x) in the
case of items with a Fair Market Value in excess of $1.0 million but
less than or equal to $100.0 million, Fair Market Value shall be
determined by the chief financial officer or treasurer of the Parent
acting in good faith and, if such Fair Market Value is in excess of
$5.0 million, shall be evidenced by an Officer's Certificate, and (y)
in the case of items with a Fair Market Value in excess of $100.0
million, Fair Market Value shall be determined by the Board of
Directors of the Parent acting in good faith and shall be evidenced by
a resolution of the Board of Directors of the Parent.
"FCC" means the Federal Communications Commission (or any
successor Governmental Authority).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded, if necessary, to the next greater 1/16 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 (i) if
such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business
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Day, and (ii) if no such rate is so published on such next succeeding
Business Day, then the Federal Funds Rate for such day shall be the
average rate quoted to the Administrative Agent on such day on such
transactions, as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System (or any successor Governmental Authority).
"Fiber Capital Lease Obligations" means Capital Lease
Obligations related to the indefeasible rights of use or similar
arrangements for use of fiber optic cable or fiber optic cable
transmission capacity.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Effective Date,
including those set forth in:
(i) the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified
Public Accountants;
(ii) statements and pronouncements of the Financial
Accounting Standards Board;
(iii)such other statements by such other entity as approved
by a significant segment of the accounting profession;
and
(iv) the rules and regulations of the SEC governing the
inclusion of financial statements (including pro forma
financial statements) in periodic reports required to
be filed pursuant to Section 13 of the Exchange Act,
including opinions and pronouncements in staff
accounting bulletins and similar written statements
from the accounting staff of the SEC.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any
other Person and any obligation, direct or indirect, contingent or
otherwise, of such first Person to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness of such
other Person (whether arising by virtue of partnership arrangements, or
by agreements to keep-well, to purchase assets, goods, securities or
services entered into for the purpose of assuring in any other manner
the obligee of such Indebtedness of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part));
provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding
meaning.
"Guarantee Supplement" has the meaning assigned to such term
in Section 6.09.
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"Guaranteed Obligations" has the meaning assigned to such term
in Section 6.01.
"Guarantor" shall mean any Person Guaranteeing any obligation
and, as to Article VI of this Agreement, the Persons listed on the
signature pages hereof under the heading "Guarantors" and any
Additional Guarantor from time to time party to a Guarantee Supplement
pursuant to Section 6.09.
"Hazardous Substance" means any substance, in any
concentration or mixture, that is (i) listed, classified or regulated
pursuant to any Environmental Law, (ii) petroleum product or
by-product, asbestos containing material, polychlorinated biphenyls,
radioactive material or radon or (iii) any waste or other substance
regulated in connection with any Environmental Law.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency
Agreement.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital
Stock of a Person existing at the time such Person becomes a Restricted
Subsidiary, Principal Subsidiary or Designated Foreign Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be
deemed to be Incurred by such Person at the time it becomes a
Restricted Subsidiary, Principal Subsidiary or Designated Foreign
Subsidiary (except in the case a Principal Subsidiary becomes a
Restricted Subsidiary or a Designated Foreign Subsidiary or a
Restricted Subsidiary becomes a Principal Subsidiary or a Designated
Foreign Subsidiary or a Designated Foreign Subsidiary becomes a
Restricted Subsidiary or a Principal Subsidiary). The term "Incurrence"
when used as a noun shall have a correlative meaning. The accretion of
principal of a non-interest bearing or other discount security shall
not be deemed the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person, (i) all
obligations of such Person for borrowed money or for the deferred
purchase price of property or services (including all obligations,
contingent or otherwise, of such Person in connection with letters of
credit, bankers' acceptances, Hedging Obligations or other similar
instruments) other than indebtedness to trade creditors and service
providers Incurred in the ordinary course of business and payable on
usual and customary terms, (ii) all obligations of such Person
evidenced by bonds, notes, debentures or other similar instruments,
(iii) all payment obligations created or arising under any conditional
sale or other title retention agreement with respect to property
acquired by such Person (even though the remedies available to the
seller or lender under such agreement are limited to repossession or
sale of such property), (iv) all Capital Lease Obligations of such
Person, (v) all obligations of the types described in clauses (i),
(ii), (iii) or (iv) above secured by (or for which the obligee has an
existing right, contingent or otherwise, to be secured by) any Lien
upon or in any property (including accounts, contract rights and other
intangibles) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, (vi) all
Disqualified Stock, (vii) all Indebtedness of others Guaranteed
by such Person and (viii) all Indebtedness of any partnership of which
such Person is a general partner.
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The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations
as described above and the maximum liability, upon the occurrence of
the contingency giving rise to the obligation, of any contingent
obligations at such date.
"Indemnitee" has the meaning assigned to such term in Section
4.06.
"Interest Period" means, with respect to any Eurodollar Loan,
each one, two, three or six-month period and, with the consent of the
Lenders, each nine or twelve- month period, such period being the one
selected by the Borrower pursuant to Articles II and III and commencing
on the date such Loan is made or at the end of the preceding Interest
Period, as the case may be; provided, however, that:
(i) any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to
the next Business Day, unless such Business Day
falls in another calendar month, in which case such
Interest Period shall end on the next preceding
Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in
the calendar month at the end of such Interest
Period) shall, subject to clause (iii) below, end
on the last Business Day of a calendar month;
(iii)any Interest Period that would otherwise end after
the Revolving Credit Commitment Termination Date
then in effect shall end on such Revolving Credit
Commitment Termination Date;
(iv) any Interest Period with respect to a Term Loan A
Loan that begins before a Term Loan A Scheduled
Installment Date and would otherwise end after such
Term Loan A Scheduled Installment Date shall end on
such Term Loan A Scheduled Installment Date; and
(v) any Interest Period with respect to a Term Loan B
Loan that begins before a Term Loan B Scheduled
Installment Date and would otherwise end after such
Term Loan B Scheduled Installment Date shall end on
such Term Loan B Scheduled Installment Date.
"Interest Rate Agreement" means in respect of a Person any
interest rate swap agreement, interest rate cap agreement or other
financial agreement or arrangement designed to protect such Person
against fluctuations in interest rates.
"Investments" means any investments (whether through purchase
of Capital Stock or Indebtedness) or subordination of any claim or
demand a Person may have to the claim or demand of any other Person in
any other Person, or, without duplication, Guarantee the Indebtedness
of such Person or acquisitions of all or substantially all of the
assets or business of any other Person or a division or operating
business unit thereof (excluding any such acquisition classified as a
capital expenditure under GAAP), or capital contribution to (by means
of any transfer of cash or property to others or any payment for
property or services for
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the account of others), or purchase or acquisition of Capital Stock,
Indebtedness or similar instruments issued by such Person (other than
Indebtedness permitted under Section 8.02(a)).
"L/C Issuer" means The Bank of New York, acting in the
capacity of issuer of Letters of Credit.
"L/C Obligations" means, with respect to any Lender at any
date of determination, the sum of (i) such Lender's participating share
of the maximum aggregate amount which is or at any time thereafter may
become available for drawings under all Letters of Credit then
outstanding and (ii) the aggregate amount such Lender is obligated to
fund or has funded to the L/C Issuer as a result of such Lender's
participating share in all drawings under Letters of Credit honored by
the L/C Issuer and not theretofore reimbursed by the Borrower; provided
that the L/C Issuer's participating share of such aggregate amounts
shall be equal to the portions of such undrawn amounts in which the
other Lenders have not acquired participating interests, or the
portions of such drawings which the other Lenders are not obligated to
fund pursuant to Section 2.07.
"L/C Request" means a request by the Borrower for a Letter of
Credit, which shall (i) specify (A) the requested Borrowing Date and
(B) the aggregate amount of the L/C Obligations with respect to the
requested Letter of Credit, (ii) certify that, after issuance of the
requested Letter of Credit, (A) the aggregate amount of the L/C
Obligations of all the Lenders then outstanding will not exceed $75.0
million, and (B) the sum of the aggregate amount of the L/C Obligations
of all the Lenders then outstanding and the aggregate amount of the
Revolving Credit Loans of all the Lenders then outstanding will not
exceed the Total Revolving Credit Commitment then in effect and (iii)
be accompanied by such application and agreement for letter of credit,
and such other documents, as the L/C Issuer may reasonably specify to
the Borrower from time to time, all in form and substance reasonably
satisfactory to the L/C Issuer.
"Lenders" has the meaning assigned to such term in the
preamble.
"Letter of Credit" has the meaning assigned to such term in
Section 2.07(a).
"Letter of Credit Fees" has the meaning assigned to such term
in Section 3.07(b).
"LIBOR" means, with respect to any Interest Period, the rate
per annum determined by the Administrative Agent to be the offered rate
for dollar deposits with a term comparable to such Interest Period that
appears on the display designated as the Bloomberg LIBOR page on the
Bloomberg Service (or such other page as may replace such page on such
service, or on another service designated by the British Bankers'
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Association, for the purpose of displaying the rates at which dollar
deposits are offered by leading banks in the London interbank deposit
market) at approximately 11:00 A.M., London time, on the second
Business Day preceding the first day of such Interest Period. If such
rate does not appear on such page, "LIBOR" shall mean the rate of
interest quoted by The Bank of New York as the rate at which dollar
deposits are offered to The Bank of New York by leading banks in the
London interbank deposit market at approximately 11:00 A.M., London
time, on the second Business Day preceding the first day of such
Interest Period in an amount substantially equal to the respective
LIBOR Reference Amounts for a term equal to such Interest Period.
"LIBOR Reference Amount" means, with respect to any Interest
Period, the amount of the Eurodollar Loan of The Bank of New York, or
an Affiliate thereof, scheduled to be outstanding during that Interest
Period without taking into account any assignment or participation and
rounded up to the nearest integral multiple of $1.0 million.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale
or other title retention agreement or lease in the nature thereof).
"Loan Parties" means the Parent, the Borrower and the
Restricted Subsidiaries.
"Loans" means, collectively, the Revolving Credit Loans and
Term Loans outstanding hereunder from time to time.
"Mandatory Vendor Facility Prepayment Requirement" means a
requirement of a Vendor Facility that the Vendor Facility must be
prepaid upon any sale or other disposition of (or casualty or other
damage to or condemnation or other taking of) any collateral securing
the Vendor Facility (the "Vendor Facility Collateral").
"Margin Regulation" means, collectively, Regulations T, U and
X of the Federal Reserve Board.
"Marketable Securities" means, with respect to any asset
disposition, any readily marketable equity securities of a corporation
that are (i) traded on the New York Stock Exchange, the American Stock
Exchange, or the Nasdaq National Market (including small capitalization
markets) and (ii) issued by a corporation having a total equity market
capitalization of not less than $250.0 million; provided, however,
that, other than for purposes of determination of Fair Market Value,
the excess of (A) the aggregate amount of securities of any one such
corporation held by the Loan Parties on a consolidated basis over (B)
20 times the average daily trading volume of such securities during the
20 immediately preceding trading days shall be deemed not to be
Marketable Securities, as determined on the date of the contract
relating to such asset disposition.
"Material Adverse Effect" means any material and adverse
effect on (i) the consolidated business, properties, condition
(financial or otherwise) or operations of the Consolidated Group on a
consolidated basis, (ii) the ability of the Borrower or any other
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Loan Party timely to perform any of its material obligations, or of the
Lenders to exercise any remedy, under any Credit Document or (iii) the
legality, validity, binding nature or enforceability of any material
provisions of any Credit Document.
"Measurement Date" means any of the dates specified in Section
8.01(m).
"MFN Fiber IRU Capital Lease Obligation" means the obligations
of Winstar Wireless, Inc. under the Fiber Optic Network Agreements,
dated as of July 22, 1999, September 30, 1999 and February 10, 2000,
each between Winstar Wireless, Inc. and Metromedia Fiber Network
Services, Inc. (as amended or restated from time to time).
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which any member of the ERISA Group is
making or accruing an obligation to make contributions or has within
the preceding five plan years made or accrued contributions.
"Net Available Cash" from an asset disposition means cash
payments received therefrom (including any cash payments received by
way of deferred payment of principal pursuant to a note or installment
receivable or otherwise and proceeds from the sale or other disposition
of any securities received as consideration, but only as and when
received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations
relating to such properties or assets or received in any other noncash
form), in each case net of:
(i) all reasonable legal, title and recording tax
expenses, commissions and other fees and expenses
Incurred, and all federal, state, provincial,
foreign and local taxes required to be accrued as a
liability under GAAP, as a consequence of such
asset disposition;
(ii) all payments made on any Indebtedness which is
secured by any assets subject to such asset
disposition, in accordance with the terms of any
Lien upon or other security agreement of any kind
with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to
such asset disposition, or by applicable law, be
repaid out of the proceeds from such asset
disposition;
(iii)all distributions and other payments out of such
cash required to be made to minority interest
holders in any Subsidiary of the Parent; and
(iv) the deduction of appropriate amounts provided by
the seller as a reserve, in accordance with GAAP,
against any liabilities associated with the
property or other assets disposed in such asset
disposition and retained by a Loan Party as a
result of such asset disposition.
"Net Cash Proceeds" with respect to any issuance or sale of
Capital Stock or Indebtedness that is not Refinancing Indebtedness
means the cash proceeds of such issuance or sale net of attorneys'
fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees
actually Incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
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"Network Equipment Financing" means Purchase Money
Indebtedness provided by an Equipment Vendor Lender and Incurred for
the purpose of financing the Vendor Equipment Price of
telecommunications, data transmission or computer equipment, provided
that the primary equipment (the purchase price for which equipment is
included in such Vendor Equipment Price) is (1) manufactured by such
Equipment Vendor Lender or another single Equipment Vendor, (2) used to
provide Telecommunication Business services and (3) installed as part
of a network owned or operated by a Consolidated Subsidiary Group
Member.
"Non-Fiber Capital Lease Obligations" means Capital Lease
Obligations less Fiber Capital Lease Obligations.
"Notes" means, collectively, the Revolving Credit Notes and
the Term Loan Notes.
"office.com" means office.com Inc., its Subsidiaries and its
successors.
"On-Network Buildings" means all buildings in which a
Consolidated Group Member is capable of providing Telecommunications
Business services which are linked directly or indirectly by assets
owned or operated by a Consolidated Group Member to communications
transmission equipment owned or operated by a Consolidated Group
Member.
"On-Network Hubs" means all buildings used to aggregate
Telecommunications Business transmissions from On-Network Buildings
utilizing assets owned or operated by a Consolidated Group Member and
linked directly or indirectly by assets owned or operated by a
Consolidated Group Member to communications transmission equipment
owned or operated by a Consolidated Group Member.
"Outstanding Old Bond Debt" means any Indebtedness outstanding
as of the date hereof of (i) Winstar Equipment Corp. in respect of its
12 1/2% Guaranteed Senior Secured Notes due 2007 and (ii) the Parent in
respect of its (A) 14% Senior Discount Notes due 2005, (B) 10% Senior
Subordinated Notes due 2008 and (C) 11% Senior Subordinated Deferred
Interest Notes due 2008.
"Parent" has the meaning assigned to such term in the
preamble.
"Partial Prepayment Future Funding Requirement" means the
requirement that upon the occurrence of any Permitted Partial Vendor
Facility Prepayment of a Vendor Facility Debt Tranche, no additional
Permitted Partial Vendor Facility Prepayment or Permitted Complete
Vendor Facility Prepayment may be made except (i) with respect to
the same Vendor Facility Debt Tranche that is the subject of the
previous Permitted Partial Vendor Facility Prepayment or (ii) on or
after the date of a Permitted Complete Vendor Facility Prepayment of
such Vendor Facility Debt Tranche.
"Participant" has the meaning assigned to such term in Section
11.02.
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"Patent Assignment Agreement" means a patent assignment
agreement in substantially the form attached as Exhibit 5.01(s)-5.
"PBGC" means the Pension Benefit Guarantee Corporation (or any
successor Governmental Authority).
"Pension Plan" means a Plan that (i) is an employee pension
benefit plan, as defined in Section 3(3) of ERISA (other than a
Multiemployer Plan) and (ii) is subject to the provisions of Title IV
of ERISA or is subject to the minimum funding standards under Section
412 of the Code.
"Permitted Complete Vendor Facility Prepayment" means a Vendor
Facility Prepayment of a Vendor Facility Debt Tranche that meets all of
the following requirements: (i) such prepayment complies with the
Partial Prepayment Future Funding Requirement, if applicable, (ii) such
Vendor Facility Debt Tranche is repaid in its entirety, (iii) the
remaining undrawn commitment under the Vendor Facility has been or is
thereupon canceled or assigned to a borrower that is part of a Vendor
Facility Group that contains no Persons that were part of the Vendor
Facility Group in respect of such Vendor Facility at the time of such
Vendor Facility Prepayment and (iv) the Vendor Facility Group in
respect of the Vendor Facility Debt Tranche so prepaid is released from
any liability in respect of the Vendor Facilities.
"Permitted Holders" means William J. Rouhana, Jr. (or, in the
event of his incompetence or death, his estate, heirs, executor,
administrator, committee or other personal representative
(collectively, "heirs")) or any Person controlled, directly or
indirectly, by William J. Rouhana, Jr. or his heirs.
"Permitted Investments" has the meaning assigned to such term
in Section 8.02(d).
"Permitted Liens" has the meaning assigned to such term in
Section 8.02(c).
"Permitted Partial Vendor Facility Prepayment" means a Vendor
Facility Prepayment of a Vendor Facility Debt Tranche that meets the
following requirements: (i) such prepayment complies with the Partial
Prepayment Future Funding Requirement, if applicable, and (ii) as a
result of which such Vendor Facility Debt Tranche is repaid in part,
but not in whole; provided, however on or before any Trigger Event Date
resulting from such prepayment, (A) the undrawn commitment under the
Vendor Facility is canceled or assigned to a borrower that is part of
another Vendor Facility Group (a "Replacement Group") that contains no
Persons that were part of the Vendor Facility Group in respect of such
Vendor Facility Debt Tranche at the time of such Vendor Facility
Prepayment, (B) any Indebtedness Incurred under a Vendor Facility by a
Replacement Group may be secured pari passu by all the assets and
Capital Stock securing Vendor Facility Debt Tranche so prepaid, until
such Vendor Facility Debt Tranche is prepaid in its entirety when due
or pursuant to a Permitted Complete Vendor Facility Prepayment, (C) in
no instance subsequent to such Vendor Facility Prepayment shall a
Person in the original Vendor Facility Group in respect of such Vendor
Facility have a right to draw additional funds under such Vendor
Facility and (D) the Lenders obtain a Lien (the documentation for
which shall be reasonably satisfactory to the
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<PAGE>
Administrative Agent) securing the Loans and Letters of Credit under
the Credit Documents on the Capital Stock of any member of the Vendor
Facility Group in respect of the Vendor Facility Debt Tranche so
prepaid second only to the Lien securing such Vendor Facility Debt
Tranche as provided in the loan documents entered into in connection
with the Vendor Facility.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency
or political subdivision thereof or any other entity.
"Phase 1" means the period from the Effective Date to and
including December 31, 2002.
"Phase 2" means the period from January 1, 2003 to and
including the later to occur of (i) the Revolving Credit Commitment
Termination Date and (ii) the full repayment of the Term Loans.
"Plan" means an employee benefit plan as defined in Section
3(3) of ERISA (other than a Multiemployer Plan) which is maintained or
contributed to by the Borrower or any member of the ERISA Group.
"Pledge and Security Agreement" means a pledge and security
agreement, dated as of the date hereof, to be entered into in
substantially the form attached as Exhibit 5.01(s)-3.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends or
distributions, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such Person, over shares
of Capital Stock of any other class of such Person.
"Prescribed Forms" has the meaning assigned to such term in
Section 4.04(a).
"Principal Subsidiaries" means the Subsidiaries of the Parent
listed as such on Schedule 5.01(b) as of the Effective Date plus
Subsidiaries of the Parent designated as Principal Subsidiaries
pursuant to Sections 12.01(d) or (e) or Sections 12.02(b) or (c) but
not including Subsidiaries removed as Principal Subsidiaries pursuant
to Section 12.02(d) or (e).
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible, including Capital Stock in, and other
securities of, any other Person.
"Pro Rata Share" means, with respect to any Lender at any time
of determination, (i) in relation to Revolving Credit Loans and Letters
of Credit, the proportion of such Lender's Revolving Credit Commitment
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to the Total Revolving Credit Commitment then in effect or, after the
Revolving Credit Commitment Termination Date, the proportion of such
Lender's Revolving Credit Loans and L/C Obligations to the aggregate
amount of Revolving Credit Loans and L/C Obligations then outstanding,
(ii) in relation to Term Loan A Loans, the proportion of such Lender's
Term Loan A Commitment to the Total Term Loan A Commitment, or after
the Term Loan A Commitment Termination Date, the proportion of such
Lender's Term Loan A Loans to the aggregate amount of Term Loan A Loans
then outstanding, and (iii) in relation to Term Loan B Loans, the
proportion of such Lender's Term Loan B Commitment to the Total Term
Loan B Commitment, or after the Term Loan B Commitment Termination
Date, the proportion of such Lender's Term Loan B Loans to the
aggregate amount of Term Loan B Loans then outstanding.
"Purchase Money Indebtedness" means Indebtedness (including
Capital Lease Obligations, Acquired Indebtedness, mortgage financings
and purchase money obligations) Incurred for the purpose of financing
not more than 100% of the cost and directly related expenses including
costs of design, construction, acquisition, lease, installation
(including the cost of other equipment incidental to such
installation), insurance, shipping, handling, storage, transportation,
testing, development or improvement or any service agreement,
maintenance agreement or warranty agreement with respect to the
applicable Telecommunications Assets of a Consolidated Group Member.
"Receivables" means receivables, chattel paper, instruments,
documents or intangibles evidencing or relating to the right to payment
of money and proceeds and products thereof in each case generated in
the ordinary course of business.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or
retire, or to issue other Indebtedness in exchange, conversion or
replacement for, such Indebtedness. "Refinances," "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness of a
Consolidated Group Member that Refinances any Indebtedness of a
Consolidated Group Member existing on the Effective Date or Incurred in
compliance with this Agreement, including Indebtedness that Refinances
Refinancing Indebtedness; provided, however, that:
(i) such Refinancing Indebtedness has a Stated Maturity
no earlier than the Stated Maturity of the
Indebtedness being Refinanced;
(ii) such Refinancing Indebtedness has an Average Life
at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the
Average Life of the Indebtedness being Refinanced;
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(iii)such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original
issue discount, an aggregate issue price) that is
equal to or less than the aggregate principal
amount (or if Incurred with original issue
discount, the aggregate accreted value) then
outstanding (plus fees and expenses, including any
premium and defeasance costs) under the
Indebtedness being Refinanced;
(iv) such Refinancing Indebtedness is not secured by
Liens beyond the Liens in place at the time of the
Incurrence of the Indebtedness being Refinanced,
except as otherwise permitted under this Agreement;
and
(v) such Refinancing Indebtedness is issued on terms no
more restrictive in any material respect than those
contained in the Indebtedness being Refinanced or
is on commercially reasonable terms approved by the
Administrative Agent, such approval not to be
unreasonably withheld or delayed; provided,
however, that any Refinancing of Indebtedness
referred to in Section 8.02(a)(i)(E)(1) shall not
be subject to this clause (v) so long as such
Refinancing is on commercially reasonable terms at
the time of such Refinancing; provided, further,
that Refinancing Indebtedness Incurred under
Section 8.02(a)(i)(E)(1) by the Parent only shall
not be subject to this clause (v).
"Required Lenders" means, at any date of determination,
Lenders holding more than 50% of the sum of the unused portion of the
Total Commitment, Loans outstanding, and amounts outstanding under the
Letters of Credit.
"Responsible Officer" means the chief executive officer,
president, chief financial officer, principal accounting officer,
secretary or assistant secretary or treasurer or assistant treasurer of
the Parent.
"Restricted Subsidiaries" means the Subsidiaries of the Parent
listed as such on Schedule 5.01(b) as of the Effective Date plus
Subsidiaries of the Parent which are designated as or become Restricted
Subsidiaries pursuant to Sections 12.01(b) and (c) but not including
Subsidiaries removed as Restricted Subsidiaries pursuant to Sections
12.01(d) through (f).
"Revolving Credit Commitment Termination Date" means the
earlier to occur of (i) March 31, 2007 and (ii) the date, if any, on
which the Total Revolving Credit Commitment is terminated.
"Revolving Credit Commitment" means, with respect to a Lender,
(i) on the date hereof, the amount set forth opposite such Lender's
name under the heading "Revolving Credit Commitment" on Schedule
1.01(c)-1, and (ii) after the date hereof, the amount recorded as such
in the records maintained by the Administrative Agent pursuant to
Section 11.01, as such amount may be reduced from time to time pursuant
to Section 2.04.
"Revolving Credit Facility" has the meaning set forth in the
preamble.
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"Revolving Credit Lenders" means the Lenders committed to lend
under the Revolving Credit Facility.
"Revolving Credit Loans" has the meaning set forth in the
preamble.
"Revolving Credit Request" means a request by the Borrower for
Revolving Credit Loans, which shall specify (i) the requested Borrowing
Date, (ii) the aggregate amount of such Revolving Credit Loans, (iii)
whether such Revolving Credit Loans are to bear interest initially as
ABR Loans or Eurodollar Loans and (iv) if applicable, the initial
Interest Period therefor.
"Revolving Credit Notes" means, collectively, promissory notes
of the Borrower, issued in accordance with Section 11.01(d) in order to
evidence Revolving Credit Loans and substantially in the form of
Exhibit 11.01(d)-1.
"Sale/Leaseback Transaction" means the transfer by a
Consolidated Group Member of property owned by it to a Person (other
than a Consolidated Group Member) and the leasing by any Consolidated
Group Member of such property from such Person.
"SEC" means the Securities and Exchange Commission (or any
successor Governmental Authority).
"Securities Account Control Agreement" means a securities
account control agreement in substantially the form attached as Exhibit
5.01(s)-2.
"Security Documents" means, collectively, the documents set
forth in Section 7.01(a), as well as any financing statements filed or
to be filed in connection therewith.
"Series A Preferred Stock" means the Series A 6% Cumulative
Convertible Preferred Stock of the Parent.
"Series C Preferred Stock" means the Series C 14 1/4% Senior
Cumulative Exchangeable Preferred Stock due 2007 of the Parent, issued
and outstanding on the Effective Date.
"Series C Stock Transaction" means (i) the exchange of the
Series C Preferred Stock for exchange debentures ("Exchange
Debentures") pursuant to the terms of the Series C Preferred Stock,
(ii) the exchange by the Parent of Exchange Debentures for the
Parent's 14 3/4% Senior Discount Notes due 2010 and the Parent's 12
3/4% Senior Notes due 2010, and (iii) the repurchase by the Parent for
cash of shares of Series C Preferred Stock and/or Exchange Debentures
which are not exchanged in connection with the foregoing transactions.
"Series D Preferred Stock" means the Series D 7% Cumulative
Convertible Preferred Stock due 2010 of the Parent.
"Series G Preferred Stock" means the Series G Senior
Cumulative Participating Convertible Preferred Stock of the Parent.
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"Special Purpose Vendor Subsidiary" shall mean a Wholly Owned
direct Subsidiary of the Borrower organized solely to acquire equipment
and Incur Purchase Money Indebtedness under Sections 8.02(a)(i)(E)(1),
(3), (4) or (5) for which liability is limited to such Special Purpose
Vendor Subsidiary and to the Borrower and the Parent.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final
payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such security at the option
of the holder thereof upon the happening of any contingency unless such
contingency has occurred). "Stated Maturity" has, with respect to a
Capital Lease Obligation, the meaning set forth herein in the
definition of Capital Lease Obligation. "Stated Maturity" means, with
respect to Indebtedness and Refinancing Indebtedness, the date
specified in the instrument evidencing such Indebtedness or Refinancing
Indebtedness as the fixed date on which the final payment of principal
of such Indebtedness or Refinancing Indebtedness is due and payable.
"Subsidiary" means, with respect to any Person, a corporation,
association, partnership or other business entity of which (i) more
than 50% of the total voting power of shares of Voting Stock is at the
time owned or controlled, directly or indirectly, by:
(A) such Person;
(B) such Person and one or more Subsidiaries of such
Person; or
(C) one or more Subsidiaries of such Person
or (ii) 50% of the total voting power of shares of Voting Stock is at
the time owned or controlled, directly or indirectly, by such Person
pursuant to (A), (B) or (C) of clause (i) above and such Person has,
directly or indirectly, the requisite control over such entity to
prevent it from Incurring Indebtedness, or taking any other action at
any time, in contravention of the provisions of this Agreement or any
other credit agreement or indenture applicable to it.
"Taxes" has the meaning assigned to such term in Section
4.04(a).
"Telecommunications Assets" means (i) any Property (other than
cash, Temporary Cash Investments and Marketable Securities) used in the
Telecommunications Business or (ii) the Capital Stock of any Person
engaged primarily in the Telecommunications Business.
"Telecommunications Business" means the business of (i)
transmitting, or providing services relating to the transmission of,
voice, video or data through transmission facilities, (ii)
constructing, creating, developing or producing communications
networks, related network transmission equipment, software, devices and
content for use in a communications or content distribution business,
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(iii) data center management, computer and application outsourcing,
computer systems integration, reengineering of computer software,
information services and web hosting and any services related thereto
or (iv) evaluating, participating or pursuing any other activity or
opportunity that is primarily related to those identified in (i), (ii)
or (iii) above or in furtherance thereof, including, without
limitation, any business conducted by any Consolidated Group Member on
the Effective Date; provided, however, that the determination of what
constitutes a Telecommunications Business shall be made in good faith
by the Board of Directors of the Parent.
"Telecommunications Licenses" has the meaning assigned to such
term in Section 5.01(m).
"Temporary Cash Investments" means any of the following:
(i) any investment in direct obligations of the United
States of America or any agency thereof or
obligations guaranteed by the United States of
America or any agency thereof;
(ii) investments in time deposit accounts, certificates
of deposit, money market deposits, bankers'
acceptances and repurchase obligations maturing
within 365 days of the date of acquisition thereof
issued by a bank or trust company which is
organized under the laws of the United States of
America, any state thereof or any foreign country
recognized by the United States, and which bank or
trust company has capital, surplus and undivided
profits aggregating in excess of $500.0 million (or
the foreign currency equivalent thereof) and has
outstanding debt which is rated "A" (or such
similar equivalent rating) or higher by at least
one nationally recognized statistical rating
organization (as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored
by a registered broker-dealer or mutual fund
distributor;
(iii)repurchase obligations with a term of not more than
30 days for underlying securities of the types
described in clause (i) above entered into with a
bank meeting the qualifications described in clause
(ii) above;
(iv) investments in commercial paper, maturing not more
than 270 days after the date of acquisition, issued
by a corporation (other than an Affiliate of the
Parent) organized and in existence under the laws
of the United States of America, any state thereof
or any foreign country recognized by the United
States of America with a rating at the time as of
which any investment therein is made of "P-1" (or
higher) according to Moody's Investors Service,
Inc. or "A-1" (or higher) according to Standard and
Poor's Ratings Group;
(v) investments in securities with maturities of one
year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or
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territory of the United States of America, or by
any political subdivision or taxing authority
thereof, and rated at least "A" by Standard &
Poor's Ratings Group or "A" by Moody's Investors
Service, Inc.;
(vi) auction rate preferred stocks of any corporation
maturing within 90 days after the date of
acquisition rated at least "A" by Standard and
Poor's Ratings Group; and
(vii)any investment in a registered investment company
investing exclusively in investments of the types
described in clauses (i) through (vi).
"Temporary Restricted Subsidiaries" means those Restricted
Subsidiaries listed as Temporary Restricted Subsidiaries on Schedule
5.01(b) but not including any Subsidiaries so listed that are removed
as Restricted Subsidiaries pursuant to Sections 12.01(d) through (f).
"Term Loan A Commitment" means, with respect to a Lender, on
the date hereof, the amount set forth opposite such Lender's name under
the heading "Term Loan A Commitment" on Schedule 1.01(c)-1 hereto as
such amount may be changed from time to time pursuant to the terms of
this Agreement.
"Term Loan A Commitment Termination Date" means the earlier to
occur of (i) December 31, 2000 and (ii) the date, if any, on which the
Total Term Loan A Commitment is terminated.
"Term Loan A Facility" has the meaning set forth in the
preamble.
"Term Loan A Lenders" means the Lenders committed to lend
under the Term Loan A Facility.
"Term Loan A Loans" has the meaning assigned to such term in
the preamble.
"Term Loan A Loan Request" means a request by the Borrower for
Term Loan A Loans, which shall specify (i) the requested Borrowing
Date, (ii) the aggregate amount of such Term Loan A Loans, (iii)
whether such Term Loan A Loans are to bear interest initially as ABR
Loans or Eurodollar Loans and (iv) if applicable, the initial Interest
Period therefor.
"Term Loan A Scheduled Installment Date" has the meaning set
forth in Section 2.05(b).
"Term Loan B Commitment" means, with respect to a Lender, (i)
on the date hereof, the amount set forth opposite such Lender's name
under the heading "Term Loan B Commitment" on Schedule 1.01(c)-1 hereto
and (ii) after the Effective Date, $0.
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"Term Loan B Commitment Termination Date" means the Effective
Date.
"Term Loan B Facility" has the meaning set forth in the
preamble.
"Term Loan B Lenders" means the Lenders committed to lend
under the Term Loan B Facility.
"Term Loan B Loan" has the meaning assigned to such term in
the preamble.
"Term Loan B Loan Request" means the single request by the
Borrower for Term Loan B Loans, which shall specify (i) the requested
Borrowing Date, (ii) the aggregate amount of such Term Loan B Loans,
(iii) whether such Term Loan B Loans are to bear interest initially as
ABR Loans or Eurodollar Loans and (iv) if applicable, the initial
Interest Period therefor.
"Term Loan B Scheduled Installment Date" has the meaning set
forth in Section 2.05(c).
"Term Loan Request" means a Term Loan A Loan Request or a Term
Loan B Loan Request.
"Term Loans" has the meaning assigned to such term in the
preamble.
"Total Commitment" means, on any day, the aggregate Commitment
of all the Lenders on such day.
"Total Revolving Credit Commitment" means, on any day, the
aggregate Revolving Credit Commitment on such day of all the Lenders.
"Total Term Loan A Commitment" means, on any day, the
aggregate Term Loan A Commitment on such day of all the Lenders.
"Total Term Loan B Commitment" means, on any day, the
aggregate Term Loan B Commitment on such day of all the Lenders.
"Trademark Assignment Agreement" means a trademark assignment
agreement in substantially the form attached as Exhibit 5.01(s)-6.
"Trigger Event Date" means, with respect to a Vendor Facility,
the later of the Effective Date and each subsequent date upon which
there is (i) a Vendor Facility Prepayment in respect of a Vendor
Facility which, when taken together with all other Vendor Facility
Prepayments of such Vendor Facility since the most recent Trigger Event
Date exceeds $50 million on any date after advances under such Vendor
Facility exceed $250 million since the most recent Trigger Event Date,
or (ii) a Permitted Complete Vendor Facility Prepayment of a Vendor
Facility Debt Tranche not previously subject to clause (i).
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"Unrestricted Proceeds" means, on any date of determination,
(i) the sum of the following amounts received by the Borrower and
Restricted Subsidiaries for the period from and after the Effective
Date to such date of determination:
(A) the aggregate Net Cash Proceeds from the issuance or
sale of Capital Stock (other than Disqualified Stock) of the
Parent (other than an issuance or sale to the Borrower or a
Restricted Subsidiary and other than an issuance or sale to an
employee stock ownership plan or to a trust established by a
Loan Party or Principal Subsidiary for the benefit of their
employees);
(B) Net Available Cash received from the sale of
Investments made pursuant to clauses (I), (K), (L), (N) and
(U) of Section 8.02(d)(ii) and any cash dividends, interest or
other distributions received from such Investments;
(C) cash dividends, interest and other distributions
received from Unrestricted Subsidiaries or from Investments in
Unrestricted Subsidiaries;
(D) Net Cash Proceeds or Net Available Cash from sales
of Capital Stock of Unrestricted Subsidiaries; and
(E) upon the conversion of an Unrestricted Subsidiary to
a Restricted Subsidiary, the aggregate cost of all Investments
made by the Borrower or a Restricted Subsidiary in the
Subsidiary being converted.
less (ii) the sum of amounts deemed utilized as Unrestricted Proceeds
under (1) clauses (A), (I), (S), (T) and (Z)(II) of Section
8.02(d)(ii), (2) Section 8.02(e)(i), (3) Section 8.03(a)(iii) and (4)
Section 8.03(b)(iii).
"Unrestricted Subsidiaries" means all Subsidiaries of the
Parent that are not Principal Subsidiaries, Restricted Subsidiaries or
Designated Foreign Subsidiaries.
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"Vendor Equipment Price" means the purchase price of equipment
manufactured by an Equipment Vendor and the costs associated therewith,
including costs of shipping, handling, storage, transportation,
testing, development or improvement, insurance, design, construction,
and installation, including the cost of other equipment or items
incidental to such installation, and the cost of service or warranty
agreements or maintenance agreements therefor.
"Vendor Facility" and "Vendor Facilities" have the meaning
assigned to such terms in Section 7.01(j).
"Vendor Facility Debt Tranche" means all Indebtedness Incurred
under a Vendor Facility by a single borrower.
"Vendor Facility Group" means, in respect of any Vendor
Facility Debt Tranche, all of the (i) Vendor Facility Obligors in
respect of such Vendor Facility Debt Tranche and (ii) any Subsidiaries
of such Vendor Facility Obligors.
"Vendor Facility Obligor" means (i) any borrower under or
guarantor of a Vendor Facility Debt Tranche, excluding the Parent and
the Borrower and (ii) any Special Purpose Vendor Subsidiary.
"Vendor Facility Prepayment" means a prepayment of
Indebtedness owed by a Vendor Facility Obligor under a Vendor Facility.
"Vendor Financing" means the Vendor Facilities and any
financing or other credit or deferred payment arrangement except in the
ordinary course of business on terms not to exceed 120 days provided by
a supplier, manufacturer or lessor of Telecommunications Assets or any
Affiliate thereof.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person
then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof.
"Welfare Plan" means a "welfare plan," as defined in Section
3(1) of ERISA.
"Wholly Owned" means, with respect to a Subsidiary, all the
Capital Stock of such Subsidiary (other than directors' qualifying
shares or a similar immaterial number of shares owned by third parties
to comply with local shareholder residency requirements outside the
United States) is owned by the Parent or one or more Wholly Owned
Subsidiaries.
"Williams Fiber IRU Capital Lease Obligation" means the IRU
Agreement, effective as of December 17, 1998, between Winstar
Wireless, Inc. and Williams Communications, Inc. (as amended,
modified, clarified, supplemented or restated from time to time).
ARTICLE II.
The Credit Facilities
Section 2.01 Revolving Credit Loans; Borrowing Procedure. (a)
Until the Revolving Credit Commitment Termination Date, subject to the terms and
conditions of this Agreement, each of the Revolving Credit Lenders, severally
and not jointly with the other Revolving Credit Lenders, agrees to make
Revolving Credit Loans in dollars to the Borrower in an aggregate principal
amount at any one time outstanding, together with such Lender's L/C Obligations,
not to exceed such Revolving Credit Lender's Revolving Credit Commitment.
Revolving Credit Loans shall be made on any Borrowing Date only (i) in the
minimum aggregate principal amount of (A) in the case of Eurodollar Loans, $5.0
million or integral multiples of $100,000 in excess thereof or (B) in the case
of ABR Loans, $1.0 million or integral multiples of $100,000 in excess thereof
(except that ABR Loans may always be borrowed in the aggregate amount of the
Available Revolving Credit Commitment) and (ii) when taken together with all
Revolving Credit Loans and L/C Obligations then outstanding, the maximum
aggregate principal amount does not exceed the Available Revolving Credit
Commitment (after giving effect to any repayments or prepayments and any other
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borrowings of Loans on such Borrowing Date). The Available Revolving Credit
Commitment may be utilized by the Borrower to obtain Letters of Credit in
accordance with Section 2.07.
(b) In order to borrow Revolving Credit Loans, the Borrower
shall give a Revolving Credit Request to the Administrative Agent, by telephone
or telecopy or in writing, not later than 11:00 A.M. (if by telephone, to be so
confirmed in substantially the form of Exhibit 2.01(b) not later than 2:00 P.M.
on the same day), (i) on the Borrowing Date for ABR Loans and (ii) on the third
Business Day before the Borrowing Date for Eurodollar Loans. Upon receipt, the
Administrative Agent forthwith shall give notice to each Revolving Credit Lender
of the substance of the Revolving Credit Request. Not later than 2:00 P.M. on
the Borrowing Date, each Revolving Credit Lender shall make available to the
Administrative Agent such Revolving Credit Lender's Pro Rata Share of the
requested Loans in funds immediately available at the Administrative Agent's
office specified pursuant to Section 13.08(a). Subject to satisfaction, or
waiver by all of the Revolving Credit Lenders, of each of the applicable
conditions precedent contained in Article VII, on the Borrowing Date the
Administrative Agent shall make available, in like funds, to the Borrower the
amounts received by the Administrative Agent from the Revolving Credit Lenders.
Section 2.02 Term Loan A Loans; Borrowing Procedure. (a) Until
the Term Loan A Commitment Termination Date, subject to the terms and conditions
of this Agreement, each of the Term Loan A Lenders, severally and not jointly
with the other Term Loan A Lenders, agrees to make Term Loan A Loans to the
Borrower in an aggregate principal amount not to exceed such Term Loan A
Lender's Term Loan A Commitment.
(b) In order to borrow Term Loan A Loans, the Borrower shall
give a Term Loan A Loan Request to the Administrative Agent, by telephone or
telecopy or in writing, not later than 11:00 A.M. (if by telephone, to be so
confirmed in substantially the form of Exhibit 2.02(b) not later than 2:00 P.M.
on the same day), (i) on the Borrowing Date for ABR Loans and (ii) on the third
Business Day before the Borrowing Date for Eurodollar Loans. Upon receipt, the
Administrative Agent forthwith shall give notice to each Term Loan A Lender of
the substance of the Term Loan A Loan Request. Not later than 2:00 P.M. on the
Borrowing Date, each Term Loan A Lender shall make available to the
Administrative Agent such Term Loan A Lender's Pro Rata Share of the requested
Loans in funds immediately available at the Administrative Agent's office
specified pursuant to Section 13.08(a). Subject to satisfaction, or waiver by
all of the Term Loan A Lenders, of each of the applicable conditions precedent
contained in Article VII, on the Borrowing Date the Administrative Agent shall
make available, in like funds, to the Borrower the amounts received by the
Administrative Agent from the Term Loan A Lenders.
Section 2.03 Term Loan B Loans; Borrowing Procedure.
(a) Until the Term Loan B Commitment Termination Date, subject
to the terms and conditions of this Agreement, each of the Term Loan B Lenders,
severally and not jointly with the other Term Loan B Lenders, agrees to make
Term Loan B Loans to the Borrower in an amount not to exceed such Term Loan B
Lender's Term Loan B Commitment.
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(b) In order to borrow Term Loan B Loans, the Borrower shall
give a Term Loan B Loan Request to the Administrative Agent, by telephone or
telecopy or in writing, not later than 11:00 A.M. (if by telephone, to be so
confirmed in substantially the form of Exhibit 2.03(b) not later than 2:00 P.M.
on the same day), (i) on the Borrowing Date for ABR Loans and (ii) on the third
Business Day before the Borrowing Date for Eurodollar Loans. Upon receipt, the
Administrative Agent forthwith shall give notice to each Term Loan B Lender of
the substance of the Term Loan B Loan Request. Not later than 2:00 P.M., on the
Borrowing Date, each Term Loan B Lender shall make available to the
Administrative Agent such Term Loan B Lender's Pro Rata Share of the requested
Loans in funds immediately available at the Administrative Agent's office
specified pursuant to Section 13.08(a). Subject to satisfaction, or waiver by
all of the Lenders, of each of the applicable conditions precedent contained in
Article VII, on the Borrowing Date the Administrative Agent shall make
available, in like funds, to the Borrower the amounts received by the
Administrative Agent from the Term Loan B Lenders.
Section 2.04 Termination and Reduction of Commitments.
(a) Revolving Credit Commitments. The Borrower may terminate
the Total Revolving Credit Commitment, or reduce the amount thereof, by (i)
giving written notice to the Administrative Agent, not later than 5:00 P.M., on
the third Business Day prior to the date of termination or reduction and (ii)
paying the amount of the Commitment Fee and Letter of Credit Fees accrued
through such date of termination or reduction.
The Total Revolving Credit Commitment shall be reduced according to the schedule
set forth in the following table:
Total Revolving Credit
On Commitment shall be no more than:
-- ---------------------------------
December 31, 2004 $ 255,000,000
December 31, 2005 $ 165,000,000
December 31, 2006 $ 30,000,000
March 31, 2007 $ 0
Reductions of the Total Revolving Credit Commitment shall be
in the amount of $5.0 million or in integral multiples of $100,000 in excess
thereof (or, if the amount of the Available Revolving Credit Commitment is less
than $5.0 million, then all of such lesser amount), but shall not exceed the
Available Revolving Credit Commitment in effect immediately before giving effect
to such reduction. Any termination, and all reductions, of the Total Revolving
Credit Commitment shall be permanent.
(b) Term Loan A Commitments; Borrower Reduction. The Borrower
may terminate the Total Term Loan A Commitment, or reduce the amount thereof, by
(i) giving written notice to the Administrative Agent not later than 5:00 P.M.
on the third Business Day prior to the date of such termination or reduction and
(ii) paying the amount of the Commitment Fee accrued through such date of
termination or reduction. Reductions of the Total Term Loan A Commitment shall
be in the amount of $5.0 million or in integral multiples of $100,000 in excess
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thereof (or, if the outstanding aggregate amount of Loans is less than $5.0
million, then all of such lesser amount) but shall not exceed the Total Term
Loan A Commitment in effect immediately before giving affect to such reduction.
Any termination, and all reductions, of the Total Term Loan A Commitment shall
be permanent.
(c) Term Loan A Commitments; Mandatory Borrowing Request;
Commitment Termination. On the Effective Date hereof, Borrower shall give a Term
Loan A Loan Request to the Administrative Agent in an aggregate principal amount
of not less than $300,000,000. The Term Loan A Commitment terminates on the Term
Loan A Commitment Termination Date.
(d) Term Loan B Commitments; Mandatory Borrowing Request;
Commitment Termination. On the Effective Date hereof, Borrower shall give a
single Term Loan B Loan Request to the Administrative Agent totaling an
aggregate principal amount of exactly $475,000,000. The Term Loan B Commitment
terminates on the Term Loan B Commitment Termination Date.
Section 2.05 Repayment.
(a) Revolving Credit Loans. The outstanding principal of the
Revolving Credit Loans shall be repaid, together with all accrued and unpaid
interest thereon, on the Revolving Credit Commitment Termination Date.
(b) Term Loan A Loans. The outstanding principal of the Term
Loan A Loans shall be repaid in installments payable on the last day of each
calendar quarter, commencing on March 31, 2004 and ending on March 31, 2007 as
set forth in the following table:
Date Quarterly Installment Payment Percentage
---- ----------------------------------------
March 31, 2004 3.75%
June 30, 2004 3.75%
September 30, 2004 3.75%
December 31, 2004 3.75%
March 31, 2005 7.50%
June 30, 2005 7.50%
September 30, 2005 7.50%
December 31, 2005 7.50%
March 31, 2006 11.25%
June 30, 2006 11.25%
September 30, 2006 11.25%
December 31, 2006 11.25%
March 31, 2007 Balance of outstanding Term Loan A Loans
(each of the foregoing dates, a "Term Loan A Scheduled Installment Date").
On each Term Loan A Scheduled Installment Date, the quarterly installment
payment shall equal the product of the respective quarterly installment payment
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percentage multiplied by the aggregate amount of outstanding Term Loan A Loans
as of the Term Loan A Commitment Termination Date.
(c) Term Loan B Loans. The outstanding principal of the Term
Loan B Loans shall be repaid in installments payable on the last day of each
calendar quarter commencing on March 31, 2004 and ending on September 30, 2007
as set forth in the following table:
Date Quarterly Installment Payment
---- -----------------------------
March 31, 2004 $ 1,187,500
June 30, 2004 $ 1,187,500
September 30, 2004 $ 1,187,500
December 31, 2004 $ 1,187,500
March 31, 2005 $ 1,187,500
June 30, 2005 $ 1,187,500
September 30, 2005 $ 1,187,500
December 31, 2005 $ 1,187,500
March 31, 2006 $ 1,187,500
June 30, 2006 $ 1,187,500
September 30, 2006 $ 1,187,500
December 31, 2006 $ 1,187,500
March 31, 2007 $ 153,583,333
June 30, 2007 $ 153,583,333
September 30, 2007 Balance of outstanding Term Loan B Loans
(each of the foregoing dates, a "Term Loan B Scheduled Installment Date").
Section 2.06 Prepayment.
----------
(a) Voluntary Prepayment - Revolving Credit Loans. The
Borrower may prepay Revolving Credit Loans bearing interest on the same basis
and having the same Interest Periods, if any, by giving notice to the
Administrative Agent, by telephone, telecopy or in writing not later than 12:00
P.M. (noon) (if by telephone, to be so confirmed not later than 2:00 P.M.) on
the third Business Day, in the case of Eurodollar Revolving Loans, or on the
Business Day in the case of ABR Revolving Loans, preceding the proposed date of
prepayment. Each such prepayment shall be in an aggregate principal amount of
$5.0 million or in integral multiples of $100,000 in excess thereof (or, if the
aggregate amount of outstanding Revolving Credit Loans is less than $5.0
million, then all of such lesser amount) together with accrued interest on the
principal being prepaid to the date of prepayment and, in the case of Eurodollar
Revolving Loans, the amounts required by Section 4.03. Subject to the terms and
conditions of this Agreement, prepaid Revolving Credit Loans may be reborrowed.
(b) Voluntary Prepayment - Term Loans. The Borrower may prepay
the Term Loans bearing interest on the same basis and having the same Interest
Periods, if any, by giving notice to the Administrative Agent, by telephone or
telecopy or in writing, not later than 12:00 P.M. (noon) (if by telephone, to be
so confirmed not later than 2:00 P.M.) on the third Business Day, in the case of
Eurodollar Term Loans, or on the Business Day in the case of ABR Term Loans,
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preceding the proposed date of prepayment. Each such prepayment shall be in an
aggregate principal amount of $5.0 million or in integral multiples of $100,000
in excess thereof (or, if the aggregate amount of outstanding Term Loans is less
than $5.0 million, then all of such lesser amount), together with accrued
interest on the principal being prepaid to the date of prepayment and, in the
case of Eurodollar Term Loans that are prepaid other than on the last day of an
Interest Period therefor, the amounts required by Section 4.03. From the
Effective Date and to but not including the third anniversary of the Effective
Date, each voluntary partial prepayment shall be applied to the Term Loan A
Loans or the Term Loan B Loans at the Borrower's direction. On and after the
third anniversary of the Effective Date each partial prepayment shall be applied
(i) ratably to the Term Loan A Loans and Term Loan B Loans and (ii) ratably to
the scheduled installments of principal of the Term Loan A Loans and Term Loan B
Loans, in each case in accordance with the respective principal amounts thereof.
Prepaid Term Loans may not be reborrowed.
(c) Mandatory Prepayments. (i) The Borrower shall prepay
Revolving Credit Loans, if necessary, so that the aggregate amount of
Revolving Credit Loans and L/C Obligations at any time outstanding
shall not exceed the Total Revolving Credit Commitment then in effect.
(ii) If any event described in Section 8.01(o) results in net
proceeds (whether in the form of insurance proceeds, condemnation award
or otherwise), the Borrower shall within twelve (12) months thereafter
apply such net proceeds to the prepayment of the Facilities, unless
within such twelve (12) month period the Loan Parties utilize such net
proceeds to acquire Telecommunications Assets, provided that (A) if
such Telecommunications Assets consist of Capital Stock of any Person
engaged primarily in the Telecommunications Business, such Person shall
be a Restricted Subsidiary or a Person that becomes a Restricted
Subsidiary and (B) such net proceeds shall not be used to acquire
Telecommunications Assets if an Event of Default shall have occurred
and be continuing.
(iii) If the Loan Parties sell, transfer, lease or otherwise
dispose of assets or properties not in the ordinary course of business
in a sale permitted hereunder for Net Available Cash other than
Unrestricted Proceeds in excess of $20.0 million in one or more
transactions in a fiscal year, the Borrower within twelve (12) months
thereafter shall apply such Net Available Cash to the prepayment of the
Facilities, unless within such twelve (12) month period the Loan
Parties utilize such Net Available Cash to acquire Telecommunications
Assets, provided that (A) if such Telecommunications Assets consist of
Capital Stock of any Person engaged primarily in the Telecommunications
Business, such Person shall be a Restricted Subsidiary or a Person that
becomes a Restricted Subsidiary and (B) such Net Available Cash shall
not be used to acquire Telecommunications Assets if an Event of Default
shall have occurred and be continuing.
(iv) Prepayments under subsections (ii) and (iii) above shall
(A) first be applied ratably to the Term Loans and ratably to the
scheduled installments of principal of the Term Loans, in each case in
accordance with the respective principal amounts thereof and (B) to the
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extent the Term Loans have been paid in full, to the Revolving Credit
Loans.
(d) Prepayment Fee. In the event the Borrower prepays the Term
Loan B Loan, the Borrower shall pay, for the account of the Term Loan B Lenders,
a prepayment fee equal to (i) 3% of the principal amount prepaid if prepayment
occurs between the Effective Date and the first anniversary of the Effective
Date, (ii) 2% of the principal amount prepaid if prepayment occurs between the
first anniversary of the Effective Date and the second anniversary of the
Effective Date, and (iii) 1% of the principal amount prepaid if prepayment
occurs between the second anniversary of the Effective Date and the third
anniversary of the Effective Date. Prepayments of the Term Loan B Loan made
after the third anniversary of the Effective Date are not subject to this
prepayment fee.
Section 2.07 Letters of Credit.
(a) Letters of Credit. Prior to the Revolving Credit
Commitment Termination Date, and subject to the terms and conditions of this
Agreement, from time to time, the Borrower may request that the L/C Issuer issue
under this Agreement, and the L/C Issuer shall upon such request of the Borrower
and upon the satisfaction or waiver of each of the conditions contained in
Article VII applicable thereto, issue for the account of the Borrower, one or
more letters of credit (each, a "Letter of Credit") in the L/C Issuer's
then-customary form; provided, that the L/C Issuer shall not issue any Letter of
Credit: (i) if, after giving effect to such issuance, the sum of the aggregate
amount of the L/C Obligations of all the Revolving Credit Lenders then
outstanding and the aggregate amount of Revolving Credit Loans of all the
Revolving Credit Lenders then outstanding would exceed the Total Revolving
Credit Commitment then in effect; (ii) having a stated amount of less than
$10,000; (iii) having an expiration date later than the Business Day
four Business Days prior to the Revolving Credit Commitment Termination Date; or
(iv) if, after giving effect to such issuance, the aggregate amount of L/C
Obligations of all the Revolving Credit Lenders then outstanding would exceed
$75.0 million.
(b) Procedure for Obtaining Letter of Credit. The Borrower may
request that the L/C Issuer issue a Letter of Credit pursuant to Section 2.07(a)
by giving a L/C Request to the Administrative Agent in writing substantially in
the form of not later than 12:00 P.M. (noon) on the fourth Business Day prior to
the proposed date of issuance of the Letter of Credit. Upon receipt of any L/C
Request, the Administrative Agent shall forthwith give notice to each Revolving
Credit Lender of the substance thereof. On the date specified by the Borrower in
such notice and upon fulfillment of the applicable conditions set forth in this
Section 2.07 and Article VII or the waiver thereof by the Revolving Credit
Lenders, the L/C Issuer will issue such Letter of Credit in the form specified
in such L/C Request.
(c) Participation by Revolving Credit Lenders. Immediately
upon the issuance of a Letter of Credit, each Revolving Credit Lender other than
the L/C Issuer shall be deemed to, and hereby agrees to, have irrevocably and
unconditionally purchased from the L/C Issuer a participation in such Letter of
Credit and each drawing thereunder in an amount equal to such Revolving Credit
Lender's Pro Rata Share of the maximum amount which is or at any time may become
available to be drawn thereunder.
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(d) Drawings and Reimbursement. (i) In the event of any
request for a drawing under any Letter of Credit by the beneficiary
thereof, the L/C Issuer shall notify the Borrower and the
Administrative Agent as promptly as practicable following receipt of
such request, and the Borrower shall reimburse the L/C Issuer on or
prior to the third Business Day after the day on which such drawing is
honored in an amount in immediately available funds equal to the amount
of such drawing.
(ii) If the Borrower shall fail to reimburse the L/C Issuer in
an amount equal to the amount of any drawing honored by the L/C Issuer
under a Letter of Credit, then the L/C Issuer shall promptly notify
each Revolving Credit Lender of the unreimbursed amount of such drawing
and of such Revolving Credit Lender's respective participation therein.
Not later than 2:00 P.M. on the Business Day after the date notified by
the L/C Issuer or if the Revolving Credit Lenders are notified by the
L/C Issuer prior to 11:00 A.M. on the date so notified, each Revolving
Credit Lender shall make available to the L/C Issuer in immediately
available funds at the aforementioned office of the L/C Issuer in The
City of New York an amount equal to its respective participation. For
so long as any Revolving Credit Lender fails so to fund its
participation in any such Letter of Credit, the amount of such
participation shall be deemed, for purposes of determining the Required
Lenders, to be subtracted from such Revolving Credit Lender's L/C
Obligations and added to the L/C Issuer's L/C Obligations. In the event
that any Revolving Credit Lender fails to make available to the L/C
Issuer on such Business Day the amount of such Revolving Credit
Lender's participation in such Letter of Credit as provided in this
Section 2.07(d), the L/C Issuer shall be entitled to recover such
amount on demand from such Revolving Credit Lender, together with
interest thereon at a rate per annum equal to (A) from (and including)
such Business Day to (and including) the third Business Day
thereafter, the Federal Funds Rate, and (B) from (but excluding) such
third Business Day, the sum of 2% and the Federal Funds Rate. The L/C
Issuer shall distribute to each Revolving Credit Lender that has paid
all amounts payable by it under this Section 2.07 with respect to any
Letter of Credit such Lender's Pro Rata Share of all payments received
by the L/C Issuer from the Borrower in reimbursement of drawings
honored by the L/C Issuer under such Letter of Credit when such
payments are received.
(iii) The obligation of the Borrower to reimburse the L/C
Issuer for drawings made under the Letters of Credit and the
obligations of the Revolving Credit Lenders under Section 2.07(d)(ii)
shall be unconditional and irrevocable and shall be paid strictly in
accordance with the terms of the Credit Documents under all
circumstances, including the following circumstances:
(A) any lack of validity or enforceability of any
Letter of Credit;
(B) the existence of any claim, set-off, defense or
other right which the Borrower or any Affiliate of the
Borrower may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom
any such beneficiary or transferee may be acting), the L/C
Issuer, any Revolving Credit Lender or any other Person,
whether in connection with any Credit Document, any
transaction contemplated thereby or any unrelated transaction;
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(C) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(D) payment by the L/C Issuer under any Letter of Credit
against presentation of a demand, draft or certificate or
other document that does not comply with the terms of the
Credit Documents;
(E) any other circumstance or happening whatsoever,
which is similar to any of the foregoing; or
(F) the fact that a Default or Event of Default shall
have occurred.
(e) Security Deposit. If a Default or Event of Default shall
have occurred and be continuing, the Administrative Agent may deposit funds in
an interest-bearing account as agreed to between the Administrative Agent, the
L/C Issuer and the Borrower to secure payment to the beneficiary of any
outstanding Letter of Credit. Any funds so deposited shall be paid to the
beneficiary of such Letter of Credit if all conditions to such payment are
satisfied or returned to the L/C Issuer for distribution to the Revolving Credit
Lenders (or, if all obligations under this Agreement shall have been
indefeasibly paid in full, to the Borrower), if no payment to the beneficiary
has been made and the final date available for drawings under such Letter of
Credit has passed. Each payment or deposit of funds by the L/C Issuer as
provided in this paragraph shall be treated for all purposes of this Agreement
as a drawing duly honored by the L/C Issuer under the related Letter of Credit.
ARTICLE III.
Interest and Fees
Section 3.01 Interest Rate Determination; Conversion. (a)
Except to the extent that the Borrower shall request, in a Borrowing Request or
in a Conversion Request, that Revolving Credit Loans (or portions thereof) bear
interest as Eurodollar Loans, Revolving Credit Loans shall bear interest as ABR
Loans.
(b) The Borrower may request, by giving a Conversion Request
to the Administrative Agent, by telephone, telecopy or in writing not later than
12:00 P.M. (noon) (if not in writing, to be so confirmed in substantially the
form of Exhibit 3.01(b) not later than 2:00 P.M.), on the third Business Day
prior to the requested Conversion Date, that all or portions of the outstanding
Loans, in the aggregate principal amount of $5.0 million or in integral
multiples of $1.0 million in excess thereof (or, if the aggregate principal
amount of outstanding Loans is less than $5.0 million, then all such lesser
amount), bear interest from and after the Conversion Date as either ABR Loans or
Eurodollar Loans; provided, however, that during the continuance of any Default
or Event of Default that shall have occurred, no Loan (or portion thereof) may
be converted into Eurodollar Loans. Upon receipt, the Administrative Agent
forthwith shall give notice to each Lender of the substance of each Conversion
Request. Upon payment by the Borrower of the amounts, if any, required by
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Section 4.03, on the Conversion Date the Loans or portions thereof as to which
the Conversion Request was made shall commence to accrue interest in the manner
selected by the Borrower therein.
Section 3.02 Interest on ABR Loans. Each ABR Loan shall bear
interest from the date made until the date repaid, or if converted into a
Eurodollar Loan to (but excluding) the first day of any relevant Interest
Period, as the case may be, payable in arrears on the last day of each calendar
quarter of each year, commencing with the first such date after the Effective
Date, and on the date such Loan is repaid, at a rate per annum equal to the sum
of (a) the Alternate Base Rate in effect from time to time, and (b) the
Applicable Margin in effect from time to time.
Section 3.03 Interest on Eurodollar Loans. (a) Each Eurodollar
Loan shall bear interest from the date made until the date repaid or converted
to an ABR Loan, payable in arrears, with respect to Interest Periods of three
months or less, on the last day of such Interest Period, and with respect to
Interest Periods longer than three months, on the day which is three months
after the commencement of such Interest Period and on the last day of such
Interest Period, at a rate per annum equal to the sum of (i) the Applicable
Margin as of the first day of the Interest Period, in the case of Eurodollar
Revolving Loans or Eurodollar Term Loans and (ii) LIBOR.
(b) Each Eurodollar Loan shall become an ABR Loan at the end
of the Interest Period therefor unless (i) there shall not have occurred and be
continuing a Default or Event of Default or (ii) not later than the third
Business Day prior to the last day of such Interest Period, the Borrower shall
have delivered to the Administrative Agent (x) an irrevocable written election
of the subsequent Interest Period therefor, in which case such Eurodollar
Revolving Loan shall remain outstanding as a Eurodollar Loan, or (y) a
Conversion Request with respect thereto, in which case such Eurodollar Revolving
Loan shall be converted in accordance with Section 3.01(b).
(c) If, during any period, a Lender shall be required to
maintain reserves against "eurocurrency liabilities" in accordance with Federal
Reserve Board Regulation D (or any successor regulation), the Borrower shall pay
additional interest during such period on each outstanding Eurodollar Loan of
such Lender (contemporaneously with each interest payment due thereon commencing
with the first such payment due at least two Business Days after receipt of the
notice referred to in the next sentence) at a rate per annum up to but not
exceeding the marginal rate determined by the following formula:
LIBOR
----------------------------------
-- LIBOR.
1 - Eurodollar Reserve Percentage
Each Lender shall promptly notify the Borrower, with a copy to the
Administrative Agent, upon becoming aware that the Borrower may be required to
make a payment of additional interest to such Lender. When requesting payment
pursuant to this Section 3.03(c), a Lender shall provide to the Borrower, with a
copy to the Administrative Agent, a certificate, signed by an officer of such
Lender setting forth, in reasonable detail, the basis of such claim, the amount
required to be paid by the Borrower to such Lender and the computations made by
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such Lender to determine such amount. Absent manifest error, such certificate
shall be binding as to the amounts of additional interest owing in respect of
such Lender's Eurodollar Loans. Any Lender that gives notice under this Section
3.03(c) shall promptly withdraw such notice (by written notice of withdrawal
given to the Administrative Agent and the Borrower) whenever such Lender is no
longer required to maintain such reserves or the circumstances giving rise to
such notice shall otherwise cease.
Section 3.04 Interest on Overdue Amounts and During Any Event
of Default. Anything herein to the contrary notwithstanding, (a) during the
continuance of an Event of Default under Sections 9.01(a) or 9.01(b), all
overdue amounts hereunder (including principal, interest and fees), and (b) upon
any other Event of Default with the consent of the Required Lenders, each Loan
shall bear interest, payable on demand, at a rate per annum equal to the sum of
(i) 2% and (ii) the rate then applicable, in the case of Eurodollar Loans, until
the end of the current Interest Period therefor, and thereafter the rate of
interest applicable to ABR Loans, changing as and when such rate shall change.
Section 3.05 Day Counts. Interest on ABR Loans shall be
calculated on the basis of (a) a 365- or, if applicable, a 366-day year for the
actual number of days elapsed for so long as interest is determined pursuant to
clause (1) of the definition of "Alternate Base Rate" and (b) a 360-day year for
the actual number of days elapsed otherwise. Interest on all other Loans, and
all fees shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
Section 3.06 Maximum Interest Rate. (a) Nothing in this
Agreement shall require the Borrower to pay interest at a rate exceeding the
maximum rate permitted by applicable law. Neither this Section nor Section 13.01
is intended to limit the rate of interest payable for the account of any Lender
to the maximum rate permitted by the laws of the State of New York (or any other
applicable law) if a higher rate is permitted with respect to such Lender by
supervening provisions of United States federal law.
(b) If the amount of interest payable for the account of any
Lender on any interest payment date in respect of the immediately preceding
interest computation period, computed pursuant to this Article III, would exceed
the maximum amount permitted by applicable law to be charged by such Lender, the
amount of interest payable for its account on such interest payment date shall
automatically be reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of any
Lender in respect of any interest computation period is reduced pursuant to
Section 3.06(b) and the amount of interest payable for its account in respect of
any subsequent interest computation period would be less than the maximum amount
permitted by law to be charged by such Lender, then the amount of interest
payable for its account in respect of such subsequent interest computation
period shall be automatically increased to such maximum permissible amount;
provided that at no time shall the aggregate amount by which interest paid for
the account of any Lender has been increased pursuant to this Section 3.06(c)
exceed the aggregate amount by which interest paid for its account has
theretofore been reduced pursuant to Section 3.06(b).
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Section 3.07 Fees.
(a) The Commitment Fee. The Borrower agrees to pay to the
Administrative Agent, for the respective accounts of the Lenders, on the last
day of each calendar quarter of each year, commencing with the first such day
after the Effective Date, and on the Revolving Credit Commitment Termination
Date (or other date on which the Commitment shall terminate), a fee (the
"Commitment Fee") computed by applying (i) the applicable Commitment Fee
percentage per annum set forth below (such applicable Commitment Fee being based
on the fraction of the Total Commitment that is undrawn) to (ii) the average
portion of the Total Commitment undrawn during the calendar quarter:
Average Portion of
Commitment Fee Total Commitment Undrawn
-------------- ------------------------
1.25% >=2/3
1.00% >=1/3>2/3
0.75% <1/3
(b) Letter of Credit Fees. In lieu of any letter of credit
commissions or fees provided for in any letter of credit application (other than
documentary and processing charges referred to in clause (iv) below), the
Borrower agrees to pay to the L/C Issuer in funds immediately available at the
office of the L/C Issuer specified in Section 13.07(a) the following
fees and other amounts with respect to each outstanding Letter of Credit
(collectively, the "Letter of Credit Fees"):
(i) an administrative fee equal to 0.10% per annum on the
daily amount stated to be available from time to time for drawing under
such Letter of Credit from (and including) the date of issuance until
(but excluding) the expiration date of such Letter of Credit, payable
to the L/C Issuer in arrears on the last day of each calendar quarter,
commencing on the first such date after the Borrowing Date, and on such
expiration date;
(ii) a letter of credit fee, at a rate per annum equal to the
Applicable Margin from time to time in effect for Eurodollar Revolving
Loans, on the daily amount stated to be available from time to time for
drawing under such Letter of Credit from (and including) the date of
issuance until (but excluding) the expiration date of such Letter of
Credit payable to the L/C Issuer for the account of the Revolving
Credit Lenders in arrears on the last day of each calendar quarter,
commencing on the first such date after the Borrowing Date, and on such
expiration date;
(iii) with respect to drawings made thereunder, interest,
payable on demand to the L/C Issuer (if applicable, for the benefit of
the Lenders that have funded a participation therein pursuant to
Section 2.07(d)), on the amount paid by the L/C Issuer in respect of
each such drawing from (and including) the date of the drawing to (but
excluding) the date such amount is reimbursed by the Borrower, at a
rate per annum equal to (A) from (and including) the date of such
drawing to (and including) the third Business Day after the date of
such drawing, the rate of interest then applicable to ABR Revolving
Loans, changing as and when said rate shall change, and (B) from (but
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excluding) the third Business Day after the date of such drawing, the
sum of (x) 2% and (y) the rate specified in clause (A); and
(iv) with respect to the issuance, amendment or transfer of
such Letter of Credit and each drawing made thereunder, customary
documentary and processing charges payable to the L/C Issuer in
accordance with the L/C Issuer's standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or drawing, as
the case may be.
Promptly upon receipt by the L/C Issuer of any amount described in clause (ii)
or (iii) of this Sec tion 3.07(b), the L/C Issuer shall distribute to each
Revolving Credit Lender that has paid all amounts payable by it under Section
2.07(d) such Revolving Credit Lender's ratable share of such amount. Amounts
payable under clauses (i) and (iv) of this Section 3.07(b) shall be retained by
the L/C Issuer.
ARTICLE IV.
Disbursement and Payment
Section 4.01 Disbursement. (a) Each Loan shall be made
by the relevant Lender from such Lender's branch or Affiliate identified as its
Applicable Lending Office.
(b) The failure of any Lender to make any Loan to be made by
it on the Borrowing Date therefor shall not relieve any other Lender of its
obligation to make its Loan or Loans 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.
(c) The Administrative Agent may, but shall not be required
to, advance on behalf of any Lender the amount of such Lender's Loans to be made
on a Borrowing Date, unless such Lender shall have notified the Administrative
Agent prior to such Borrowing Date that it does not intend to make such Loans on
such date. If the Administrative Agent makes any such advance, the
Administrative Agent shall be entitled to recover the amount so advanced on
demand from the Lender on whose behalf such advance was made and, if such Lender
does not pay the Administrative Agent the amount of such advance on demand, the
Borrower agrees promptly to repay such amount to the Administrative Agent. Until
such amount is repaid to the Administrative Agent by such Lender or the
Borrower, such advance shall be deemed for all purposes to be a Loan made on
such Borrowing Date by the Administrative Agent. The Administrative Agent shall
be entitled to recover from the Lender or the Borrower, as the case may be,
interest on the amount advanced by it for each day from the Borrowing Date
therefor until repaid to the Administrative Agent, at a rate per annum equal to
the Federal Funds Rate until the third Business Day after the date of the
advance and, thereafter, at the rate per annum equal to the relevant rate on
Loans made on the relevant Borrowing Date.
Section 4.02 Method and Time of Payments; Sharing among
Lenders. (a) All funds received by the Administrative Agent for the account of
the Lenders in respect of payments made by the Borrower under, or from any other
Person on account of, any Credit Document shall be distributed promptly by the
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Administrative Agent among the Lenders, in like funds as received, ratably in
proportion to their respective interests therein. Each payment of the Commitment
Fee and each reduction of Revolving Credit Commitments or Term Loan Commitments
shall be apportioned among the Revolving Credit Lenders, Term Loan A Lenders and
Term Loan B Lenders, as the case may be, in proportion to each such Lender's Pro
Rata Share.
(b) All payments by the Borrower hereunder shall be made
without set-off or counterclaim to the Administrative Agent, for its account or
for the account of the Lender or Lenders entitled thereto, as the case may be,
in dollars and in immediately available funds at the office of the
Administrative Agent theretofore designated in writing to the Borrower not later
than 11:00 A.M., on the date when due or, in the case of payments pursuant to
Sections 2.04, 4.03, 4.04, 4.06 or payments otherwise specified as payable upon
demand, forthwith upon written demand therefor.
(c) Whenever any payment from the Borrower shall be due on a
day that is not a Business Day, the date of payment thereof shall be extended to
the next succeeding Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment from the Borrower is
due that the Borrower will not make such payment in full, the Administrative
Agent may assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, but shall not be obligated to, cause to be distributed to
each Lender on such due date an amount equal to the amount then due to such
Lender. If and to the extent that the Borrower shall not have so made such
payment, each Lender shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent, at the Federal Funds
Rate.
(e) If any Lender shall receive from the Borrower or any other
Person any amount owing under any Credit Document (whether received pursuant to
the exercise of any right of set-off, banker's lien, realization upon any
security held for or appropriated to such obligation or otherwise) other than in
proportion to such Lender's ratable share thereof, then such Lender shall
purchase from each other Lender a participating interest in so much of the other
Lenders' Loans as shall be necessary in order that each Lender shall share such
payment with each of the other Lenders in proportion to each Lender's ratable
share; provided that nothing herein contained shall obligate any Lender to apply
any set-off or banker's lien or collateral security permitted hereby first to
the obligations of the Borrower hereunder if the Borrower is obligated to such
Lender pursuant to other loans or notes. If any purchasing Lender shall be
required to return any excess payment received by it, such participation shall
be rescinded and the purchase price restored to the extent of such return, but
without interest.
Section 4.03 Compensation for Losses. (a) If (i) the Borrower
prepays Loans, or a Conversion Date occurs (other than pursuant to Section
4.05), other than on the last day of the relevant Interest Period, (ii) the
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Borrower revokes any Borrowing Request, (iii) Loans (or portions thereof) are
converted into ABR Loans pursuant to Section 4.05 or (iv) Loans (or portions
thereof) shall become or be declared to be due prior to the scheduled maturity
thereof, then the Borrower shall pay to each Lender an amount that will
compensate such Lender for any loss (other than lost profit) or premium or
penalty Incurred by such Lender as a result of such prepayment, conversion,
declaration or revocation in respect of funds obtained for the purpose of making
or maintaining such Lender's Loans, or any portion thereof.
(b) If requested by the Borrower, in connection with a payment
due pursuant to this Section 4.03, a Lender shall provide to the Borrower, with
a copy to the Administrative Agent, a certificate setting forth in reasonable
detail the amount required to be paid by the Borrower to such Lender and the
computations made by such Lender to determine such amount. In the absence of
manifest error, such certificate shall be prima facie evidence as to the amount
required to be paid.
Section 4.04 Withholding and Additional Costs.
(a) Withholding. (i) All payments under this Agreement and
under the Notes (including payments of principal and interest) shall be
payable to each Lender free and clear of any and all present and future
taxes, levies, imposts, duties, deductions, withholdings and similar
charges other than Excluded Taxes (collectively, "Taxes"). If any Taxes
are required to be withheld or deducted from any amount payable under
this Agreement, then the amount payable under this Agreement shall be
increased to the amount which, after deduction from such increased
amount of all Taxes required to be withheld or deducted therefrom, will
yield to such Lender the amount stated to be payable under this
Agreement. The Borrower shall also hold each Lender harmless and
indemnify it against any transfer taxes, documentary taxes, stamp or
other taxes, assessments or charges made by any Governmental Authority
with respect to the preparation, execution, delivery, recording,
performance or enforcement of the Credit Documents (all of which shall
be included within "Taxes"). If any of the Taxes specified in this
Section 4.04(a) are paid by any Lender, the Borrower shall, upon
written demand of such Lender, promptly reimburse such Lender for such
payments, together with any interest and penalties, incurred in
connection therewith. The Borrower shall deliver to the Administrative
Agent certificates or other valid vouchers (or copies thereof) for all
Taxes or other charges deducted from or paid with respect to payments
made by the Borrower hereunder. Notwithstanding the foregoing, the
Borrower shall be entitled, to the extent required to do so by law, to
deduct or withhold (and shall not be required to make payments as
otherwise required by this Section 4.04(a) on account of such
deductions or withholdings) (i) Excluded Taxes and (ii) income or other
similar taxes imposed by the United States of America on interest, fees
or other amounts payable hereunder for the account of any Lender (other
than a Lender (A) that is not a U.S. Person for United States federal
income tax purposes and (B) that has the Prescribed Forms on file with
the Borrower); provided that, if the Borrower shall so deduct or
withhold any such taxes, the Borrower shall provide a statement to the
Administrative Agent and such Lender, setting forth the amount of such
taxes so deducted or withheld, the applicable rate and any other
information or documentation which such Lender may reasonably request
for assisting such Lender to obtain any allowable credits or deductions
for the taxes so deducted or withheld in the jurisdiction or
jurisdictions in which such Lender is subject to tax.
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(ii) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof shall deliver to the
Borrower and the Administrative Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or W-8BEN or 4224 or
W-8ECI (or any successor form or forms), certifying in either case that
such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income or
other similar taxes ("Prescribed Forms") and upon such certification by
such Lender, no withholding or backup withholding of any U.S. federal
income or other similar taxes shall be made to the extent deduction or
withholding of such taxes is not required as a result of such filing of
such Prescribed Forms. Each Lender that so delivers such Prescribed
Forms further undertakes to deliver to the Borrower and the
Administrative Agent two additional copies of such Prescribed Forms on
or before the date that such Prescribed Forms expire or become
obsolete or after the occurrence of any event requiring a change in
the most recent Prescribed Forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrower or the Administrative Agent, in
each case certifying that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United
States federal income or other similar taxes, unless an event
(including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would
otherwise be required which renders all such Prescribed Forms
inapplicable or which would prevent such Lender from duly completing
and delivering Prescribed Forms with respect to it and such Lender
advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of
United States federal income or other similar tax. If any Lender that
is not incorporated under the laws of the United States of America or
a state thereof fails to comply with the provisions of this Section
(other than a failure resulting from any such change in law after the
Effective Date), the Borrower and/or the Administrative Agent may, as
required by law, deduct and withhold United States federal income or
other similar tax payments from payments to such Lender under this
Agreement (and shall not be required to make payments as otherwise
required by this Section 4.04(a) on account of such deductions or
withholding.)
(iii) In the event that an additional payment is required to
be made under Section 4.04(a) for the account of the Administrative
Agent or any Lender, the Administrative Agent and such Lender shall
undertake best efforts (consistent with any applicable law) to fulfill
any reporting, registration or similar requirements prescribed by the
relevant authority imposing any withholding or deduction on the amounts
payable by the Borrower under this Agreement or under the notes as a
prerequisite to a reduction or elimination of such withholding or
deduction.
(iv) In the event that an additional payment is made under
this Section 4.04(a) for the account of the Administrative Agent or any
Lender and the Administrative Agent or such Lender has finally and
irrevocably received or been granted a credit against or release or
remission for, or repayment of, any tax paid or payable by it in
respect of or calculated with reference to the deduction or withholding
giving rise to such payment, the Administrative Agent or such Lender
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shall, to the extent that it determines that it can do so without
prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to the Borrower such amount (net of any
administrative costs relating to the receipt and calculation of each
credit) as the Administrative Agent or such Lender shall have
determined to be attributable to such deduction or withholding and
which will leave the Administrative Agent or such Lender (after such
payment) in no worse position than it would have been in if the
Borrower had not been required to make such deduction or withholding.
(b) Additional Costs. Subject to Sections 4.04(c) and (d):
(i) Without duplication of any amounts payable described in
Section 3.03(c), 4.03 or 4.04(a) or 4.04(b)(ii), if after the date
hereof any change in any law or regulation or in the interpretation
thereof by any court or administrative or Governmental Authority
charged with the administration thereof or the enactment of any law or
regulation shall either (1) impose, modify or deem applicable any
reserve, special deposit or similar requirement against any Lender's
Commitment or Loans or (2) impose on any Lender (or such Lender's
Applicable Lending Office) any other condition regarding this
Agreement, its Commitment or the Loans and the result of any event
referred to in clause (1) or (2) shall be to increase the cost to such
Lender (or such Lender's Applicable Lending Office) of maintaining its
Commitment or any Eurodollar Loans made by such Lender (which increase
in cost shall be calculated in accordance with such Lender's
reasonable averaging and attribution methods), excluding for purposes
of this Section 4.04(b) any such increased costs resulting from (i)
Taxes (as to which Section 4.04(a) shall govern) and (ii) changes in
the basis of taxation of Excluded Taxes, by an amount which such
Lender deems to be material, then, upon demand by such Lender, the
Borrower shall pay to such Lender an amount equal to such increase in
cost; and
(ii) Without duplication of any amounts payable described in
Section 3.03(c), 4.03, 4.04(a) or 4.04(b)(i), if any Lender shall have
determined that after the date hereof the adoption of any applicable
law, rule, regulation or guideline regarding capital adequacy, or any
change therein after the date hereof, or any change after the date
hereof in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof or compliance by such
Lender (or such Lender's Applicable Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency issued
after the date hereof, has or would have the effect of reducing the
rate of return on capital for such Lender (or such Lender's Applicable
Lending Office) or any corporation controlling such Lender as a
consequence of its obligations under this Agreement to a level below
that which such Lender (or such Lender's Applicable Lending Office) or
such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's (or such Lender's
Applicable Lending Office) or such corporation's policies with respect
to capital adequacy), then from time to time, upon demand by such
Lender, then the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender (or such Lender's
Applicable Lending Office) or such corporation for such reduction.
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(c) Lending Office Designations. Before making any demand for
payment pursuant to this Section 4.04, each Lender shall (i) if possible,
designate a different Applicable Lending Office if such designation will avoid
the need for giving such notice and will not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender and (ii) take such other
action reasonably available to such Lender, at the Borrower's expense, if such
action will avoid the need for giving such notice and will not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
(d) Certificate, Etc. In connection with any demand for
payment pursuant to this Section 4.04, a Lender shall provide to the Borrower,
with a copy to the Administrative Agent, a certificate setting forth in
reasonable detail the basis for such demand, the amount required to be paid by
the Borrower to such Lender, the computations made by such Lender to determine
such amount and satisfaction of the conditions set forth in the next sentence.
Anything to the contrary herein notwithstanding, no Lender shall have the right
to demand any payment or compensation under this Section 4.04 (i) with respect
to any period more than 90 days prior to the date it has made a demand pursuant
to this Section 4.04 or (ii) to the extent that such Lender determines in good
faith that the interest rate or margin on the relevant Loans appropriately
accounts for any increased cost or reduced rate of return. In the absence of
manifest error, the certificate referred to above shall be prima facie evidence
of the amount required to be paid.
Section 4.05 Illegality. If at any time any Lender shall
determine in good faith (which determination shall be conclusive) that the
making or maintenance of all or any part of such Lender's Eurodollar Loans has
been made unlawful because of compliance by such Lender in good faith with any
law or guideline or interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration thereof or with any
request or directive of such body (whether or not having the effect of law) or
because dollar deposits in the amount and requested maturity of such Eurodollar
Loans are not available to such Lender in the London eurodollar interbank market
then the Administrative Agent, upon notice to it of such determination by such
Lender, shall promptly advise the other Lenders and the Borrower thereof. Upon
such date as shall be specified in such notice and until such time as the
Administrative Agent, upon notice to it by such Lender, shall notify the
Borrower and the other Lenders that the circumstances specified by it in such
notice no longer apply, (i) notwithstanding any other provision of this
Agreement, such Eurodollar Loans shall, automatically and without requirement of
further notice, or any payment pursuant to Section 4.03 or 4.04, be converted to
ABR Loans, (ii) the obligation of such Lender to make or continue Eurodollar
Loans shall be suspended, and, if the Borrower shall request in a Borrowing
Request or Conversion Request that the Lenders make Eurodollar Loans, the Loan
requested so to be made by such Lender shall instead be made as an ABR Loan.
Section 4.06 Expenses; Indemnity. (a) The Borrower shall: (i)
pay or reimburse the Administrative Agent and Collateral Agent for all
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation and execution of, and any amendment, supplement or modification to,
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this Agreement, any other Credit Documents, and any other documents prepared in
connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including the reasonable fees and disbursements
of Sullivan & Cromwell, special counsel to the Lenders (or such other single
firm as is at the time acting in such capacity for the Lenders); (ii) pay or
reimburse each Lender, the Administrative Agent and the Collateral Agent for all
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, any other Credit Documents, and
any such other documents, including the reasonable fees and disbursements of (A)
one firm of counsel in each jurisdiction and (B) if necessary, special counsel
in such areas as telecommunications regulations to the Lenders, the
Administrative Agent and the Collateral Agent; and (iii) pay and reimburse each
Lender for any payments made by such Lender to the Administrative Agent pursuant
to Section 10.06.
(b) Each Loan Party shall indemnify the Administrative Agent,
the Collateral Agent and each of the Lenders and their respective directors,
officers, employees, agents and Affiliates (for purposes of this paragraph,
each, an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all claims, liabilities, damages, losses, costs, charges and expenses
(including fees and expenses of counsel) incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of any Credit Document or any agreement or instrument
contemplated by any Credit Document, the performance by the parties thereto of
their respective obligations under any Credit Document or the consummation of
the transactions and the other transactions contemplated by any Credit Document,
(ii) the use of the proceeds of the Loans or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) Each Loan Party agrees to indemnify the Administrative
Agent, the Collateral Agent and the L/C Issuer and their respective directors,
officers, employees, agents and Affiliates (for purposes of this paragraph,
each, an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all claims, liabilities, damages, losses, costs, charges and expenses
(including fees and expenses of counsel) incurred by or asserted against any of
them arising out of, in any way connected with, or as a result of (i) the
issuance of any Letter of Credit or (ii) the failure of the L/C Issuer to honor
a drawing under any Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any Governmental Authority; provided that such
indemnity shall not, as to any such Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses (i) are determined
by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(ii) are attributable to taxes, levies, imposts, duties, deductions,
withholdings, fees, liabilities or similar charges whether or not the Borrower
is required to pay amounts with respect thereto under this Agreement. As between
the Borrower and the L/C Issuer, the Borrower assumes all risks of the acts and
omissions of, or misuse of a Letter of Credit by, a beneficiary of such Letter
of Credit. In furtherance and not in limitation of the foregoing, no Indemnitee
shall be responsible for any of the following: (A) the form, validity,
sufficiency, accuracy, genuineness or legal effects of any documents submitted
by any party in connection with the request and application for and issuance of
any Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason whatsoever; (C) any failure of a
beneficiary of any Letter of Credit to comply with any condition of drawing
thereunder; (D) any errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
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whether or not in cipher; (E) any error in interpretation; (F) any loss or delay
in the transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit or of the proceeds thereof; (G) any
misapplication by a beneficiary of any Letter of Credit of the proceeds of any
drawing thereunder; or (H) any consequences arising from or related to events or
circumstances beyond the control of the L/C Issuer, including any act or
omission, whether rightful or wrongful, of any Governmental Authority. In
furtherance and not in limitation of the specific provisions herein set
forth, any action taken or omitted by the L/C Issuer under or in connection with
any Letter of Credit or related certificates, if taken or omitted in good faith,
shall not result in or give rise to any liability of any Indemnitee to the
Borrower. Notwithstanding any of the foregoing, nothing in this Section 4.06(c)
shall relieve the Administrative Agent, the Collateral Agent or L/C Issuer of
any liability determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of the Administrative Agent, the Collateral or L/C Issuer.
(d) All amounts due under this Section 4.06 shall be payable
promptly within 10 Business Days after a written demand therefor in immediately
available funds.
Section 4.07 Replacement of Lenders. If no Default or Event of
Default shall have occurred and be continuing, and if any Lender has requested
the Borrower to pay amounts pursuant to Section 4.04 or has its obligations to
make Loans suspended pursuant to Section 4.05 (each an "Affected Lender"), then
the Borrower may, at its sole expense and effort, upon not less than 10 Business
Days' prior written notice to such Affected Lender and the Administrative Agent,
require such Affected Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 11.03), all
its interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that such Affected Lender shall have received
payment of any amounts owing to such Affected Lender hereunder (including,
without limitation, interest, fees, compensation and additional amounts under
this Article IV, in each case accrued to the effective date of such assignment
and any breakage costs payable in connection therewith), whereupon (i) each
assignee shall become a "Lender" for all purposes of this Agreement having a
Commitment in the amount of such Affected Lender's Commitment assumed by it,
(ii) the Commitment of the Affected Lender being replaced shall be terminated
upon such effective date and (iii) the Affected Lender shall cease to be a
"Lender" as of such effective date.
Section 4.08 Survival. The provisions of Sections 4.03, 4.04
and 4.06, shall remain operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the reduction or
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termination of any Commitments, the invalidity or unenforceability of any term
or provision of any Credit Document, or any investigation made by or on behalf
of the Lenders.
ARTICLE V.
Representations and Warranties
Section 5.01 Representations and Warranties. Each of the Loan
Parties as to itself, and as to any Consolidated Group Member that is a
Subsidiary thereof, represents and warrants to the Administrative Agent, L/C
Issuer and each Lender as follows:
(a) Corporate Organization and Power. Such Consolidated Group
Member is duly organized and validly existing and in good standing
under the laws of the jurisdiction of its organization; has all
necessary corporate power to own its property and to carry on its
business as now being conducted; and is duly licensed or qualified to
do business and, if applicable, is in good standing in each
jurisdiction in which the character of the properties owned or leased
by it therein or in which the nature of the business transacted by it
or the nature of the property owned or leased by it makes such
licensing or qualification necessary, except where the failure to be so
qualified, or to be in good standing, could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
All of the issued and outstanding shares of Capital Stock of such
Consolidated Group Member have been duly authorized and validly issued
and are fully paid and nonassessable. All such shares of a Consolidated
Group Member owned by another Consolidated Group Member are owned
beneficially, and of record, free of any Lien, except for Liens granted
pursuant to the Credit Documents and Liens in respect of the Capital
Stock of Vendor Facility Obligors.
(b) Subsidiaries. Schedule 5.01(b) identifies each direct or
indirect Subsidiary of the Parent as of the date hereof and sets forth
for each Subsidiary, (i) the jurisdiction of its organization, (ii) the
percentage as the case may be (or other ownership interest) of issued
and outstanding shares of each class of its Capital Stock owned by such
Loan Party and if such percentage is not 100% (excluding directors'
qualifying shares as required by law or a similar immaterial number of
shares owned by third parties to comply with local shareholder
residency requirements outside the United States), (iii) a description
of each class of its authorized Capital Stock and the number of shares
of each class issued and outstanding and (iv) its status as a
Restricted Subsidiary, Temporary Restricted Subsidiary, Principal
Subsidiary, Designated Foreign Subsidiary, Vendor Financing Obligor or
Unrestricted Subsidiary, as the case may be.
(c) Corporate Authority. Such Consolidated Group Member has
all necessary corporate power and authority to execute and deliver, and
to Incur and perform its obligations under, each of the Credit
Documents to which it is a party, all of which have been duly
authorized by all proper and necessary corporate action. No consent or
approval of stockholders is required as condition to the validity or
performance of, or the exercise by the Administrative Agent, L/C Issuer
or the Lenders of any of their rights or remedies under, any Credit
Document.
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(d) Binding Obligation. Each of the Credit Documents (other
than the Notes) to which such Consolidated Group Member is a party
constitutes and, when issued in accordance with the terms hereof, each
Note will constitute, the valid and legally binding obligation of such
Consolidated Group Member enforceable in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(e) Litigation; Labor Controversies. Except as described in
Schedule 5.01(e)-1 hereto, there are no proceedings or investigations
now pending or, to the knowledge of any Responsible Officer,
threatened against such Consolidated Group Member before any court or
arbitrator or before or by any Governmental Authority which,
individually or in the aggregate, if determined adversely to the
interests of such Consolidated Group Member could reasonably be
expected to have a Material Adverse Effect. Except as set forth on
Schedule 5.01(e)-2, there are no labor controversies pending or, to
the best knowledge of any Responsible Officer, threatened against such
Consolidated Group Member that could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(f) Governmental Approvals; No Conflicts. (i) All
authorizations, consents, approvals, registrations, notices, exemptions
and licenses with or from any Governmental Authority or other Person
necessary for the execution, delivery and performance by such
Consolidated Group Member of, and the Incurrence and performance of
each of its obligations under, each of the Credit Documents to which
such Consolidated Group Member is a party and the exercise by the
Administrative Agent, L/C Issuer and the Lenders of their remedies
under each of the Credit Documents have been effected or obtained and
are in full force and effect except (A) filings necessary to perfect
Liens created under the Security Documents, (B) consents from any
Governmental Authority with respect to transfers of control of
Telecommunications Licenses and (C) consents from any Governmental
Authority or Person the absence of which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(ii) There is no statute, regulation, rule, order or judgment,
and no provision of any agreement or instrument binding upon such
Consolidated Group Member, or affecting its Properties, and no
provision of the certificate of incorporation or by-laws (or similar
constitutive instruments) of such Consolidated Group Member, that would
prohibit, conflict with or in any way impair the execution or delivery
of, or the Incurrence or performance of any obligations of such
Consolidated Group Member under, any Credit Document (other than dollar
limitations on Incurrence of Indebtedness) or result in or require the
creation or imposition of any Lien on Property of such Consolidated
Group Member as a consequence of the execution, delivery and
performance of any Credit Document other than as otherwise provided
therein.
(g) Financial Condition. (i) The consolidated balance sheets
of the Parent as of December 31, 1998 and 1999, together with
consolidated statements of income, retained earnings, paid-in capital
and surplus and cash flows for the fiscal year then ended, reported
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upon by Grant Thornton LLP, heretofore delivered to the Administrative
Agent and the Lenders, fairly present the Parent's consolidated
financial condition and consolidated results of operations and
transactions in capital accounts as of the dates and for the periods
referred to and have been prepared in accordance with GAAP consistently
applied throughout the period involved. There are no material
liabilities (whether known or unknown, direct or indirect, fixed or
contingent, and of any nature whatsoever) of the Consolidated Group on
a consolidated basis as of the date of such balance sheet that are not
reflected therein or in the notes thereto.
(ii) Except as provided in Schedule 5.01(g)(ii), there has
been no event or circumstance that has had a Material Adverse Effect
since December 31, 1999.
(h) Taxes. Such Consolidated Group Member has filed or caused
to be filed all material tax returns that are required to be filed and
paid and discharged material taxes that are shown to be due and payable
on said returns or on any assessment made against it or any of its
property and all other taxes, assessments or other governmental
charges, imposed on it or any of its property by any Governmental
Authority, except to the extent that (i) (A) such taxes, assessments
and governmental charges which are being contested in good faith and by
appropriate proceedings and (B) adequate reserves are being maintained
(in accordance with GAAP) or (ii) any failure to file such tax returns
or to pay and discharge such taxes, assessments or governmental charges
could not reasonably be expected to result in a Material Adverse
Effect. No notices of tax liens have been filed and no claims are being
asserted concerning any such taxes, which liens or claims could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect. The charges, accruals and reserves on the
books of the Parent and its Subsidiaries on a consolidated basis for
any taxes or other governmental charges are adequate.
(i) Margin Regulations; Margin Stock; Use of Proceeds. Such
Consolidated Group Member is not engaged principally, or as one of its
primary activities, in the business of extending credit for the purpose
of purchasing or carrying margin stock. The proceeds of the Loans and
Letters of Credit are to be used solely for the purposes set forth in
and permitted by Section 8.02(f). The Borrower will not use the
proceeds of any Loan or Letter of Credit in a manner that violates any
provision of the Margin Regulations.
(j) Compliance with ERISA. Each member of the ERISA Group is
in compliance with the applicable provisions of ERISA and the Code with
respect to each Plan, except for any failure so to comply that,
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect. No member of the ERISA Group has (i) an
accumulated funding deficiency under Section 412 of the Code in respect
of any Pension Plan, whether or not waived, (ii) failed to make any
contribution or payment to any Pension Plan, or made any amendment to
any Pension Plan, which has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under Section
302(f) of ERISA or Section 401(a)(29) of the Code, (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC
for premiums under Section 4007 of ERISA, all of which have been paid
or (iv) engaged in a transaction with respect to a Plan, which
(assuming the taxable period of such transaction, within the meaning of
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Section 4975(f)(2) of the Code, to have expired as of the date hereof)
has resulted or could reasonably be expected to result in such member
being subject to a material tax or penalty imposed by Section 4975 of
the Code or Section 502 of ERISA. As of the last day of the most recent
plan year ended prior to the date hereof, the actuarially determined
present value of all benefit liabilities (as determined on the basis of
the actuarial assumptions contained in the most recent actuarial
valuation) did not exceed the then fair market value of the assets of
any Pension Plan by more than $25.0 million, and there has been no
material change in the financial condition of any Pension Plan since
the last day of the most recent plan year. No member of the ERISA
Group has incurred any withdrawal liability under Part I of Subtitle E
of Title IV of ERISA with respect to a Multiemployer Plan in an amount
in excess of $25.0 million, nor has any member of the ERISA Group
received any notification that any Multiemployer Plan is in
reorganization or has been terminated within the meaning of Title IV
of ERISA, and no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated where such reorganization or
termination has had or could reasonably be expected to have, through
increases in the contributions required to be made or otherwise, a
Material Adverse Effect.
(k) Investment Company and Holding Company Status. Such
Consolidated Group Member is not (i) an "investment company" or a
company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, or (ii) subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, each as amended, or any foreign, federal, state or
local statute or regulation limiting its ability to Incur indebtedness
for money borrowed as contemplated hereby.
(l) Properties and Licenses. (i) On the date hereof, excluding
the licenses described in Section 5.01(m) (and other spectrum or
broadcasting licenses that are not Telecommunications Licenses), such
Consolidated Group Member has good and marketable title to, or valid
leasehold interests in, all of its properties and assets that are
reflected on the consolidated balance sheet of the Parent as of
December 31, 1999, referred to in Section 5.01(g)(i) except for such
immaterial properties and assets as have been disposed of in the
ordinary course of business and except for minor defects in title that
do not interfere with the ability of such Consolidated Group Member to
conduct its business as now conducted. All such assets and properties
are so owned or held free and clear of all Liens, except Permitted
Liens.
(ii) Such Consolidated Group Member owns, or is licensed to
use, all trademarks, trade names, copyrights, patents and other
intellectual property material to its business, and the use thereof by
such Consolidated Group Member 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.
(iii) Such Consolidated Group Member has all licenses and
permits that are material to the business of such Consolidated Group
Member. Each license or permit that is material to the business of such
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Consolidated Group Member is valid and in full force and effect, and
such Consolidated Group Member is in compliance in all material
respects with the terms and conditions thereof.
(m) Telecommunications Business and Telecommunications
Licenses. (i) The Parent and its Subsidiaries are in compliance in all
material respects with the Communications Act and with all applicable
rules, regulations and policies of the FCC.
(ii) Such Consolidated Group Member has disclosed on Schedule
5.01(m)(ii) a complete and accurate list of (A) all 38 and 28 GHZ
spectrum licenses and (B) all other licenses, the loss of which could
reasonably be expected to result in a Material Adverse Effect on a
consolidated basis, issued by the FCC and held as of the date hereof by
such Consolidated Group Member (the "Telecommunications Licenses"). All
of the Telecommunications Licenses are currently valid and in full
force and effect. No Responsible Officer has knowledge or could have
reasonably been expected to have knowledge of any investigation, notice
of apparent liability, violation, forfeiture or other order or
complaint issued by or before any court or regulatory body, including
the FCC, or of any other proceedings (other than FCC rulemaking
proceedings and other proceedings relating to the wireless
communications industry generally) which could in any manner materially
threaten or adversely affect the validity or continued effectiveness of
any of the Telecommunications Licenses, except as disclosed on Schedule
5.01(m)(ii).
(iii) Except as disclosed on Schedule 5.01(m)(iii), no event
has occurred which (A) results in, or after notice or lapse of time or
both would result in, revocation, suspension, modification,
non-renewal, impairment, restriction or termination of, or order of
forfeiture with respect to, any Telecommunications License the loss of
which could reasonably be expected to have a Material Adverse Effect or
(B) materially and adversely affects or could reasonably be expected in
the future to materially adversely affect any of the rights of such
Consolidated Group Member thereunder.
(iv) Such Consolidated Group Member has duly filed in a timely
manner all material filings, reports, applications, documents,
instruments and information required to be filed by them under the
Communications Act, and all such filings are true and complete in all
material respects.
(v) Such Consolidated Group Member has no reason to believe
that any of the Telecommunications Licenses will not be renewed in the
ordinary course.
(n) Investments. Such Consolidated Group Member has disclosed
on Schedule 5.01(n) a complete and accurate list of all Investments
existing on the date hereof.
(o) Compliance with Laws and Charter Documents. (i) Such
Consolidated Group Member is not, or as a result of performing any of
its obligations under the Credit Documents will not be, in violation in
any material respect of (a) any law, statute, rule, regulation or order
of any Governmental Authority (including Environmental Laws) applicable
to it or its material properties or assets or (b) its certificate of
incorporation, by-laws or any similar constitutive document.
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(ii) Such Consolidated Group Member has all necessary
authorizations, consents, approvals, registrations, franchises,
licenses and permits, with or from Governmental Authorities and other
Persons for it to own its properties and conduct its business as
currently conducted and contemplated, except to the extent failure to
have the same could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(p) Environmental Protection. To any Responsible Officer's
knowledge or based on any knowledge such Responsible Officer could
reasonably be expected to have, all real property owned or leased by
such Consolidated Group Member is free of contamination from any
Hazardous Substance, or a constituent thereof, that could result in the
incurrence of liabilities that would reasonably be expected to have a
Material Adverse Effect. To any Responsible Officer's knowledge or
based on any knowledge such Responsible Officer could reasonably be
expected to have, no such Consolidated Group Member has caused or
suffered to occur any release of any Hazardous Substance into the
environment or any other conditions that, individually or in the
aggregate, could reasonably be expected to result in the incurrence of
material liabilities or any material violations of any Environmental
Laws that would reasonably be expected to have a Material Adverse
Effect. To any Responsible Officer's knowledge or based on any
knowledge such Responsible Officer could reasonably be expected to
have, no such Consolidated Group Member has caused or suffered to occur
any condition on any of its property that could give rise to the
imposition of any lien under the Environmental Laws that would
reasonably be expected to have a Material Adverse Effect. To any
Responsible Officer's knowledge or based on any knowledge such
Responsible Officer could reasonably be expected to have, no
Consolidated Group Member is engaged in any manufacturing or any other
operations, other than the use and storage in the ordinary course of
their business of petroleum products and amounts of Hazardous
Substances customarily used in the maintenance of office buildings and
used for provision of Telecommunications Business that require the use,
handling, transportation, storage or disposal of any Hazardous
Substance, where such operations require permits or are otherwise
regulated pursuant to the Environmental Laws.
(q) Insurance. All of the properties and operations of such
Consolidated Group Member of a character usually insured by companies
of established reputation engaged in the same or a similar business
similarly situated are adequately insured, by financially sound and
reputable insurers, against loss or damage of the kinds and in amounts
customarily insured against by such Persons, and such Consolidated
Group Member carries, with such insurers in customary amounts as is
usually carried by companies of established reputation engaged in the
same or a similar business similarly situated, except for self
insurance (including deductibles) maintained in accordance with
customary norms.
(r) Compliance with Agreements. Such Consolidated Group Member
is not in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any
Contractual Obligation to which it is a party, which default could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
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(s) Security Documents. The provisions of each of (i) the
Blocked Account Agreements, (ii) the Securities Account Control
Agreements, (iii) the Pledge and Security Agreement, (iv) the Patent
Assignment Agreement (if entered into), (v) the Trademark Assignment
Agreements and (vi) the Copyright Assignment Agreements (if entered
into), duly executed by the Loan Parties, the Administrative Agent on
behalf of itself and the Lenders and the Collateral Agent will be
effective to create in favor of the Collateral Agent a valid, binding
and enforceable security interest in the collateral described therein
(the "Collateral"), which, upon the filing of financing statements and
the taking of the other actions specified in the Security Documents,
will constitute a fully perfected first and prior security interest
superior in right to any Liens permitted under the Credit Documents,
except (i) as otherwise contemplated by such Security Documents
(including Fixtures (as defined in the Pledge and Security Agreement)
with respect to which no fixture filing has been made), (ii) for
Liens, if any, permitted to be prior hereunder or under any Credit
Document, existing or future, which any Person may have against such
Collateral or interest therein, including, without limitation,
Permitted Liens, (iii) that such enforceability is subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles and (iv)
in which a perfected first priority security interest may not be
perfected by filing of a financing statement or by "control" as
defined in Articles 8 and 9 of the UCC.
(t) Full Disclosure. All information (other than projections,
budgets, and analysts' reports) relating to such Consolidated Group
Member delivered in writing to the Administrative Agent or any Lender
in connection with the negotiation, execution and delivery of this
Agreement and the other Credit Documents does not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading as of the date
such information was delivered. The most recent projections and budgets
for the Consolidated Group, delivered to the Administrative Agent on
March 31, 2000 and included in syndication materials delivered to the
Lenders thereafter have been prepared in good faith on assumptions
believed to be reasonable with respect to such Consolidated Group
Member on March 31, 2000.
Section 5.02 Survival. All representations and warranties made
by such Consolidated Group Member in this Agreement, and in the certificates or
other instruments prepared or delivered in connection with or pursuant to this
Agreement, shall (i) be considered to have been relied upon by the Lenders
regardless of any investigation made by, or on behalf of, the Lenders and (ii)
survive the making of Loans and the issuance of Letters of Credit.
ARTICLE VI.
Guarantee
Section 6.01 The Guarantee. Each Guarantor hereby jointly and
severally guarantees 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
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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,
L/C Issuer or the Administrative Agent by the Borrower under this Agreement and
under the Notes and by any Loan Party under any of the other Credit Documents,
and all obligations of any Loan Party to any Lender or L/C Issuer in respect of
any Hedging Obligations, in each case strictly in accordance with the terms
thereof (such obligations being herein collectively called the "Guaranteed
Obligations"). Each Guarantor hereby further jointly and severally agrees that
if any Borrower shall fail to pay in full when due (whether at stated maturity,
by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantor
will promptly pay the same, without 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.
Section 6.02 Obligations Unconditional. (a) Each Guarantor
agrees that its obligations under Section 6.01 hereof 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 or instrument referred to
herein or therein, or any substitution, release of 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 such Guarantor hereunder shall be absolute
and unconditional, joint and several, under any and all circumstances.
(b) Without limiting the generality of the foregoing, each
Guarantor agrees that the occurrence of any one or more of the following shall
not alter or impair the liability of such Guarantor hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantor, 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;
(ii) 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;
(iii) 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
(iv) any lien or security interest granted to, or in favor of,
the Administrative Agent of any Lender or Lenders as security for any
of the Guaranteed Obligations shall fail to be perfected.
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Each Guarantor hereby expressly waives 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.
Section 6.03 Reinstatement. Each Guarantor agrees that its
obligations under this Article VI 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 relevant Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of such Guaranteed Obligations, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise and each
Guarantor jointly and severally agrees that it will 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.
Section 6.04 Subrogation. Each Guarantor hereby jointly and
severally agrees 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 it shall not exercise any right or remedy
arising by reason of any performance by it of its Guarantee in Section 6.01
hereof, whether by subrogation or otherwise, against the Borrower or any
Guarantor of any of the Guaranteed Obligations or any security for any of the
Guaranteed Obligations.
Section 6.05 Remedies. Each Guarantor jointly and severally
agrees that, as between such Guarantor 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 9.01 hereof (and shall be deemed to have
become automatically due and payable in the circumstances provided in said
Section 9.01) for purposes of Section 6.01 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against such 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 such Borrower) shall forthwith become due and payable by such
Guarantor for purposes of said Section 6.01.
Section 6.06 Continuing Guarantee. Each Guarantor agrees that
its Guarantee in this Article VI is a continuing Guarantee, and shall apply to
all Guaranteed Obligations whenever arising.
Section 6.07 Rights of Contribution. (a) The Loan Parties
hereby agree, as between themselves, that if any Loan Party shall become an
Excess Funding Guarantor by reason of the payment by such Loan Party of any
Guaranteed Obligations, each other Loan Party 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 Relevant Obligor's Pro Rata Guarantee Share
(as defined below and determined, for this purpose, without reference to the
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Properties, debts and liabilities of such Excess Funding Guarantor) of the
Excess Payment (as defined in paragraph (b) below) in respect of such Guaranteed
Obligations. The payment obligation of a Loan Party to any Excess Funding
Guarantor under this Section 6.07 shall be subordinate and subject in right of
payment to the prior payment in full of the obligations of such Loan Party under
the other provisions of this Article VI 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 such obligations.
(b) For purposes of this Section 6.07; (i) "Excess Funding
Guarantor" shall mean, in respect of any Guaranteed Obligations, a Loan Party
that has paid an amount in excess of its Pro Rata Guarantee Share of such
Guaranteed Obligations; (ii) "Excess Payment" shall mean, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess
of its Pro Rata Guarantee Share of such Guaranteed Obligations; (iii) "Pro Rata
Guarantee Share" shall mean, for any Loan Party, the ratio (expressed as a
percentage) of the amount of such Loan Party's Net Assets to the amount of the
aggregate Net Assets of all of the Loan Parties, in each case determined as of
(A)(x) with respect to any Loan Party that was a party to this Agreement on the
Effective Date, such Effective Date or (y) with respect to any other Loan Party,
the date such Loan Party becomes a Loan Party hereunder or (B) the date any
demand is made hereunder in respect of the Guaranteed Obligations, whichever
date results in the higher amount (the "Determination Date"); and (iv) the "Net
Assets" of any Loan Party shall mean the amount by which the aggregate present
fair saleable value of all assets of such Loan Party (excluding any shares of
stock of any other Loan Party) exceeds the amount of all the debts and
liabilities of such Loan Party (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of such Loan Party
under this Article VI, assuming the full utilization of permitted borrowings
under this Agreement and after giving effect, on a pro forma basis (but without
duplication), to all such obligations of such Loan Party to be Incurred or
assumed as of the Effective Date).
Section 6.08 Limitation on Guarantee Obligations.
Notwithstanding any other provision of this Agreement to the contrary, 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, the Loan Parties agree that if the obligations of any Loan
Party hereunder would otherwise be held or determined to be void, invalid or
unenforceable on account of the amount of its liability under this Article VI,
then notwithstanding any other provision of this Agreement to the contrary, the
amount of such liability shall, without any further action by such Loan Party 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 6.09 Additional Guarantors. Upon the execution and
delivery by any Person of a guarantee supplement in substantially the form of
Exhibit 6.09 hereto (each a "Guarantee Supplement"), such Person shall be
referred to as an "Additional Guarantor," shall be and become a Guarantor, and
each reference in this Agreement and other Credit Documents to Guarantor shall
be a reference to such Additional Guarantor.
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ARTICLE VII.
Conditions Precedent
Section 7.01 Conditions to the Availability of the
Commitments. The obligations of each Lender and the L/C Issuer hereunder are
subject to, and the Lenders' Commitments shall not become available until, the
earliest time (the "Effective Time") on which each of the following conditions
precedent shall have been satisfied or waived in writing by the Required
Lenders:
(a) Credit Documents. The Administrative Agent shall have
received this Agreement duly executed and delivered by each of the Loan
Parties except the Temporary Restricted Subsidiaries, the Lenders and
the Administrative Agent and (i) the Notes (if requested pursuant to
Section 11.01(d)), duly executed by the Borrower, (ii) the Trademark
Assignment Agreement, duly executed by the Loan Parties party thereto
and (iii) the Pledge and Security Agreement, duly executed by the Loan
Parties except the Temporary Restricted Subsidiaries and any Principal
Subsidiary which shall pledge the Voting Stock of any other Principal
Subsidiary, as well as any other Credit Documents duly executed and
delivered by each of the parties thereto.
(b) Perfection of Security Interests. The Administrative Agent
shall have received (i) executed copies of Financing Statements (Form
UCC-1) to be duly filed under the Uniform Commercial Code in all
jurisdictions that, in the opinion of the Administrative Agent or the
Required Lenders, are advisable to perfect the Liens to be created by
the Security Documents referred to in Section 5.01(s); (ii) the results
of lien searches in all jurisdictions that, in the opinion of the
Administrative Agent, are advisable, such results being reasonably
satisfactory to the Administrative Agent; (iii) a certificate of an
officer of each of the Consolidated Group Members, other than the
Vendor Facility Obligors, dated the Effective Date, as to the absence
of any Liens against the assets and properties of, or Financing
Statements filed by, such Consolidated Group Members, other than the
Vendor Facility Obligors, other than Permitted Liens and Financing
Statements to be filed in the jurisdictions necessary to perfect the
Liens to be created by the Security Documents; and (iv) instruments and
stock certificates representing all of the instruments and shares of
certificated securities to be pledged under the Security Documents
referred to in Section 5.01(s), as set forth under the names of the
Consolidated Group Members that shall pledge the Voting Stock of any
other Subsidiary on Schedule 7.01(b)(iv), together with undated stock
powers or assignments for each such certificate or instrument duly
executed in blank.
(c) Evidence of Corporate Action. The Administrative Agent
on behalf of the Lenders shall have received the following:
(i) a copy of the certificate of incorporation or
similar constitutive document of each of the Consolidated
Group Members as in effect on the Effective Date, each
certified by the Secretary of State of the respective
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jurisdictions in which such Consolidated Group Member is
organized, and a certificate from such Secretary of State as
to the good standing of each of the domestic Consolidated
Group Members in each case as of a date reasonably close to
the Effective Date; and
(ii) a certificate of the Secretary or an Assistant
Secretary of the Loan Parties, dated the Effective Date, and
stating (A) that attached thereto is a true and complete copy
of the by-laws or similar constitutive document of the
relevant Loan Party as in effect on such date and at all times
since the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors or
equivalent authority of the relevant Loan Party authorizing
the execution, delivery and performance of this Agreement, and
that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the
certificate of incorporation or similar constitutive document
of the relevant Loan Party has not been amended since the date
of the last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (i) above, and (D) a
verification as to the incumbency and signature of each
officer executing this Agreement or any document delivered in
connection herewith on behalf of the relevant Loan Party.
(d) Opinions of Counsel. The Lenders shall have received
favorable written opinions, dated the Effective Date, of (i) Shearman &
Sterling, counsel for the Borrower, in substantially the form of
Exhibit 7.01(d)(i), (ii) Graubard Mollen & Miller, counsel for the
Borrower, in substantially the form of Exhibit 7.01(d)(ii), (iii)
Sullivan & Cromwell, special counsel for the Lenders, in a form
acceptable to the Administrative Agent, and (iv) Willkie Farr &
Gallagher, special FCC counsel to the Borrower (in reference to
spectrum matters only) in substantially the form of Exhibit
7.01(d)(iv).
(e) Representations and Warranties. The representations and
warranties contained in Section 5.01 shall be true and correct in all
material respects on the Effective Date, and the Lenders shall have
received a certificate, signed by an authorized officer of each of the
Loan Parties, to that effect.
(f) Other Documents. The Lenders shall have received the
certificate of the chief financial officer of the Parent required unde
the indentures governing the Bond Notes.
(g) Fees. The Administrative Agent shall have received any
fees or other payments which are due pursuant to (i) the fee letter
agreement, dated as of March 29, 2000, among the Parent, The Bank of
New York and BNY Capital Markets, Inc., (ii) the fee letter agreement,
dated as of March 29, 2000 among the Parent and BNY Capital Markets,
Inc., CIBC World Markets Corp., Citicorp North America, Inc. and
Credit Suisse First Boston, and (iii) the commitment letter agreement,
dated as of March 29, 2000 among the Parent, The Bank of New York, BNY
Capital Markets, Inc., CIBC Inc., CIBC World Markets Corp., Citibank
North America, Inc. and Credit Suisse First Boston.
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(h) Insurance. The Consolidated Group Members shall each have
delivered to the Administrative Agent and the Lenders evidence of
adequate property and casualty insurance customarily and reasonably
satisfactory to the Administrative Agent and Lenders naming the
Administrative Agent, for its benefit and the benefit of the Lenders,
as loss payee.
(i) Restructuring. A restructuring of the corporate holdings
of the Parent resulting in (i) the Borrower being directly or
indirectly wholly owned by the Parent; (ii) except as set forth in
Schedule 7.01(i), (A) the Borrower replacing the Parent as the direct
or indirect parent of all of the Parent's Subsidiaries and (B) the
Parent's ownership of all such Subsidiaries being indirect and solely
through the Parent's direct or indirect ownership of the Borrower,
shall have taken place on terms reasonably satisfactory to the
Administrative Agent and the Lenders.
(j) Vendor Facilities. A Subsidiary of the Borrower shall have
entered into a new vendor loan facility or facilities with a vendor or
vendors (each, a "Vendor" and together the "Vendors") acceptable to the
Administrative Agent in a minimum amount of $2.0 billion (each, a
"Vendor Facility" and together, the "Vendor Facilities") on terms and
conditions reasonably satisfactory to the Administrative Agent.
Section 7.02 Conditions to All Loans. The obligations of each
Lender to make each Loan and of the L/C Issuer to issue each Letter of Credit
are subject to the conditions precedent that, on the date of each Loan or Letter
of Credit and after giving effect thereto, each of the following conditions
precedent shall have been satisfied, or waived in writing by the Lenders:
(a) Borrowing Request. The Administrative Agent shall have
received a Borrowing Request or L/C Request in accordance with the
terms of this Agreement.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing, nor shall any Default or Event of Default
occur as a result of the making of such Loan or the issuance of such
Letter of Credit.
(c) Representations and Warranties; Covenants. The
representations and warranties contained in Section 5.01 shall have
been true and correct in all material respects when made and (except to
the extent that any representation or warranty speaks as of a date
certain) shall be true and correct on the Borrowing Date with the same
effect as though such representations and warranties were made on such
Borrowing Date; and each of the Consolidated Group Members shall have
complied with all of its covenants and agreements under the Credit
Documents.
Section 7.03 Satisfaction of Conditions Precedent. Each of (i)
the delivery by the Borrower of a Borrowing Request or L/C Request (unless the
Borrower notifies the Lenders in writing to the contrary prior to the Borrowing
Date) and (ii) the acceptance of the proceeds of a Loan shall be deemed to
constitute a certification by the Borrower that, as of the Borrowing Date, each
of the conditions precedent contained in Section 7.02 has been satisfied with
respect to any Loans then being made.
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ARTICLE VIII.
Covenants
Section 8.01 Affirmative Covenants. Until satisfaction in full
of all the obligations of the Borrower under the Credit Documents and
termination of the Commitments of the Lenders hereunder, each Loan Party shall
and shall cause each Consolidated Group Member to:
(a) Financial Statements; Compliance Certificates. Furnish
to the Administrative Agent:
(i) in no event more than 55 days following the end of
each of the first three quarters of each fiscal year, copies
of the Parent's Quarterly Report on Form 10-Q being filed with
the SEC;
(ii) in no event more than 55 days following the end of
each of the first three quarters of each fiscal year, copies
of the consolidated quarterly income statements and
consolidated balance sheets for the Consolidated Group
Members;
(iii) in no event more than 105 days following the end
of each fiscal year, a copy of the Parent's Annual Report on
Form 10-K being filed with the SEC, together with a report
thereon by Grant Thornton LLP (or another nationally
recognized firm of independent certified public accountants),
for such year as well as a letter from Grant Thornton LLP (or
another nationally recognized firm of independent certified
public accountants) to the effect that during the course of
their audit they reviewed this Agreement and nothing came to
their attention indicating a Default hereunder;
(iv) in no event more than 105 days following the end of
each fiscal year, copies of the consolidated annual income
statements and consolidated balance sheets for the
Consolidated Group Members;
(v) together with each report delivered pursuant to
Sections 8.01(a)(i) and (ii), a certificate of the Borrower,
signed by an authorized officer of the Borrower, in
substantially the form of Exhibit 8.01(a)(v), stating whether,
as of the last date of the financial statements included in
such report, any event occurred or circumstance existed which,
individually or in the aggregate, consti tuted a Default or
Event of Default (and, if so, detailing the facts with respect
thereto) and whether each of the Consolidated Group Members
was in compliance with the covenants set forth in this Article
VIII, together with calculations to establish the Consolidated
Group Members' compliance with the covenants contained in
Section 8.03;
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(vi) promptly upon the filing by the Parent with the SEC
or any national securities exchange of any registration
statement (other than a registration statement on Form S-8 or
an equivalent form) or regular periodic report (other than the
reports referred to in Sections 8.01(a)(i) and (ii)),
notification of such filing; and, at the request of any
Lender, the Loan Parties shall deliver to such Lender a copy
of such filing (excluding exhibits);
(vii) promptly upon the mailing thereof to the
shareholders of the Parent generally copies of all financial
statements, reports and proxy statements so mailed;
(viii)within five Business Days of any Responsible
Officer obtaining knowledge of any Default or Event of
Default, if such Default or Event of Default is then
continuing, a certificate of a Responsible Officer stating
that such certificate is a "Notice of Default" and setting
forth the details thereof and the action which the
Consolidated Group Member is taking or proposes to take with
respect thereto; and
(ix) such additional information, reports or statements,
regarding the business, financial condition or results of
operations of the Parent and its Subsidiaries, as the
Administrative Agent on behalf of itself or the Lenders from
time to time may reasonably request provided so long as there
is no Default that such information shall be reasonably
available to the Consolidated Group.
(b) Corporate Existence. Except as permitted by Section
8.02(b), maintain its corporate existence in good standing (if
applicable) and qualify and remain qualified to do business in each
jurisdiction in which the character of the properties owned or leased
by it therein or in which the transaction of its business is such that
the failure to qualify, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(c) Conduct of Business. (i) Receive not less than 95% of
their operating revenue on a consolidated basis for the Consolidated
Group during any fiscal year from the conduct of Telecommunications
Business, (ii) preserve, renew and keep in full force and effect, all
of its franchises and licenses necessary or desirable in the normal
conduct of its business the loss of which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, and (iii) comply with all applicable laws, orders, rules and
regulations of all Governmental Authorities the failure with which so
to comply, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(d) Taxes. File all material tax returns that are required to
be filed and pay and discharge all material taxes, assessments and
governmental charges upon it, its income and its properties prior to
the date on which penalties are attached thereto, except to the extent
that (i)(A) such taxes, assessments and governmental charges shall be
contested in good faith and by appropriate proceedings by a
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Consolidated Group Member, and (B) adequate reserves are maintained
(in accordance with GAAP) by the Consolidated Group with respect
thereto, or (ii) any failure to file such tax returns or to pay and
discharge such taxes, assessments and governmental charges could not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(e) Insurance. (i) Maintain adequate insurance on all of the
properties and operations of a character usually insured by companies
of established reputation engaged in the same or a similar business
similarly situated, by financially sound and reputable insurers,
against loss or damage of the kinds and in amounts customarily insured
against by such Persons, and carry, with such insurers in customary
amounts as is usually carried by companies of established reputation
engaged in the same or a similar business similarly situated except for
self insurance (including deductibles) maintained in accordance with
customary norms, and (ii) provide evidence that to the extent required
by the Administrative Agent, for its benefit and the benefit of the
Lenders, has been named as loss payee by endorsement to the policies
for casualty insurance and cause such Principal Subsidiary to do the
same.
(f) Inspection. Permit the Administrative Agent, the
Collateral Agent and the Lenders to have one or more of their officers
and employees, or any other Person designated by the Administrative
Agent, Collateral Agent or the Lenders, to visit and inspect any of the
properties of the Consolidated Group and to examine the minute books,
books of account and other records of the Consolidated Group, and
discuss its affairs, finances and accounts with its officers and with
the Consolidated Group's independent accountants, upon reasonable
advance notice during normal business hours and, so long as no Default
has occurred and is continuing not more than twice in any calendar
year, and at the Lenders' expense, for the purpose of monitoring each
of the Consolidated Group Member's compliance with its obligations
under the Credit Documents.
(g) Maintenance of Records. (i) Keep proper books of record
and account in which full, true and correct entries will be made of all
dealings or transactions of or in relation to its business and affairs;
(ii) set up on its books reserves with respect to all taxes,
assessments, charges, reviews and claims; and (iii) on a current basis,
set up on its books, from its earnings, appropriate reserves against
doubtful accounts receivable, advances and investments and all other
proper reserves (including by reason of enumeration, reserves for
premiums, if any, due on required prepayments and reserves for
depreciation, obsolescence, or amortization of properties), which
should be set aside from such earnings in connection with its business.
(All bookkeeping requirement determinations pursuant to this Section
8.01(g) shall be made in accordance with, or as required by, GAAP
(including principles as to materiality) consistently applied in the
opinion of the independent auditors regularly engaged by the
Consolidated Group.)
(h) Maintenance of Property. Maintain, keep and preserve all
of its properties in good repair, working order and condition and from
time to time make all necessary and proper repairs, renewals,
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replacements, and improvements thereto, except to the extent that any
failure so to maintain, keep and preserve such properties,
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(i) ERISA. Furnish to the Administrative Agent:
(i) within ten days after a Responsible Officer learns
that any "reportable event" (as defined in Section 4043(c) of
ERISA), other than a reportable event for which the 30-day
notice requirement has been waived by the PBGC, has occurred
with respect to a Pension Plan, a statement setting forth
details as to such reportable event and the action proposed to
be taken with respect thereto;
(ii) within ten days after receipt thereof, a copy of
any notice that any member of the ERISA Group may receive from
the PBGC relating to the intention of the PBGC to terminate
any Pension Plan or to appoint a trustee to administer any
Plan;
(iii) within ten days after filing with any affected
party (as such term is defined in Section 4001 of ERISA) of a
notice of intent to terminate a Pension Plan, a copy of such
notice and a statement setting forth the details of such
termination, including the amount of liability, if any, of any
member of the ERISA Group under Title IV of ERISA;
(iv) within ten days after the adoption of an amendment
to a Pension Plan if, after giving effect to such amendment,
the Pension Plan is a plan described in Section 4021(b) of
ERISA, a statement setting forth the details thereof;
(v) within 30 days after withdrawal from a Pension Plan
during a plan year for which any member of the ERISA Group
could be subject to liability under Section 4063 or 4064 of
ERISA, a statement setting forth the details thereof,
including the amount of such liability;
(vi) within 30 days after cessation of operations by any
member of the ERISA Group at a facility under the
circumstances described in Section 4062(e) of ERISA, a
statement setting forth the details thereof, including the
amount of liability of the Borrower or a member of the ERISA
Group under Title IV of ERISA;
(vii) within ten days after adoption of an amendment to
a Pension Plan which would require security to be given to the
Pension Plan pursuant to Sec tion 401(a)(29) of the Code or
Section 307 of ERISA, a statement setting forth the details
thereof, including the amount of such security;
(viii)within ten days after failure by any member of the
ERISA Group to make payment to a Pension Plan which would give
rise to a lien in favor of the Plan under Section 302(f) of
ERISA, a statement setting forth the details thereof,
including the amount of such lien;
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(ix) within ten days after the due date for filing with
the PBGC, pursuant to Section 412(n) of the Code, of a notice
of failure to make a required installment or other payment
with respect to a Pension Plan, a statement setting forth
details as to such failure and the action proposed to be taken
with respect thereto; and
(x) within 30 days after receipt thereof by any member
of the ERISA Group from the sponsor of a Multiemployer Plan, a
copy of each notice concerning the imposition of withdrawal
liability or the termination or reorganization of a
Multiemployer Plan.
(j) Notice of Adverse Developments. Promptly notify the
Administrative Agent upon the discovery by any Responsible Officer of
the occurrence of (i) any material litigation or proceedings that are
instituted or threatened (to the knowledge of the Responsible Officer)
against any Consolidated Group Member or any of their respective assets
including the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting the Consolidated Group Member that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect and
(ii) any other development in the business or affairs of the
Consolidated Group Member if the effect thereof would reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect (other than events generally applicable to all Persons engaged
in similar businesses). (Upon receipt, the Administrative Agent shall
promptly advise each Lender of the contents of any such notice.)
(k) Environmental Matters. (i) Comply in all material respects
with all applicable Environmental Laws, (ii) notify the Administrative
Agent promptly after becoming aware of any Environmental Claim, or any
fact or circumstance that is reasonably likely to result in an
Environmental Claim or a violation of any Environmental Law that would
reasonably be expected to have a Material Adverse Effect, with respect
to the Consolidated Group's properties or facilities, and (iii)
promptly forward to the Administrative Agent a copy of any order,
notice, permit, application, or any other communication or report
received in connection with any such matters as they may affect such
premises that would reasonably be expected to have a Material Adverse
Effect.
(l) Interest Rate Protection. Within 90 days after the
Effective Date of this Agreement, maintain at all times (if necessary)
one or more Interest Rate Agreements, in form and substance
satisfactory to the Administrative Agent, to ensure that the interest
rate on not less than 50% of the aggregate principal amount of
outstanding Indebtedness (other than Hedging Obligations) of the
Consolidated Group on a consolidated basis be fixed or capped (whether
under the terms thereof or after giving effect to such Hedging
Obligations) for an Average Life of not less than three (3) years.
(m) Measurement Date. Provide to the Administrative Agent on
or after January 1, 2003 a certificate signed by an authorized officer
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of the Borrower specifying the ratio of Consolidated Total Debt to
Consolidated Annualized EBITDA within one Business Day after (i) the
date a Revolving Credit Request, L/C Request or Conversion Request is
submitted by the Borrower, (ii) the date any Responsible Officer
obtains actual knowledge of an Incurrence of Indebtedness that would
change the ratio of Consolidated Total Debt to Consolidated Annualized
EBITDA and that would result in a change of the Applicable Margin, and
(iii) the date the fiscal quarterly and annual reports of the Parent
are required to be delivered or are delivered to the Administrative
Agent pursuant to Section 8.01(a) (each such date a "Measurement
Date").
(n) Information Regarding Collateral. Furnish to the
Collateral Agent prompt written notice of any change with respect to
any Consolidated Group Member that shall have granted a Lien on
Collateral in favor of the Administrative Agent (A) in any Consolidated
Group Member's corporate name or in any trade name used to identify it
in the conduct of its business or in the ownership of its properties,
(B) in the location of any chief executive office, its principal place
of business or any material asset constituting Collateral (other than
the installation of any asset constituting Collateral in a jurisdiction
in which all Uniform Commercial Code financing statements and other
appropriate filings, recordings or registrations, containing a
description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in such
jurisdiction to the extent necessary to perfect the security interests
under the Security Documents (including, if applicable, the
Consolidated Group Member's ownership interest in any Collateral leased
to or otherwise possessed by any Loan Party, (C) in any Loan Party's or
Principal Subsidiary's identity or corporate structure or (D) in any
Loan Party's Federal Taxpayer Identification Number). Each Loan Party
agrees not to effect or permit any change in this clause (n) unless all
filings have been made under the Uniform Commercial Code or otherwise
that are required in order for the Collateral Agent to continue at all
times following such change to have a valid, legal and perfected
security interest in all the Collateral.
(o) Casualty and Condemnation. Furnish to the Administrative
and Collateral Agents and the Lenders prompt written notice of any
casualty or other damage to any material portion of any Collateral or
the commencement of any action or proceeding for the taking of any
Collateral or any part thereof or interest therein under power of
eminent domain or by condemnation or similar proceeding.
(p) Temporary Restricted Subsidiaries. On or before the first
anniversary date of the date hereof, cause each Temporary Restricted
Subsidiary to (i) become a direct or indirect Subsidiary of the
Borrower, (ii) Guarantee the Loans of the Borrower and (iii) pledge a
substantial majority of its assets to secure the Loans under the
Security Agreements to the extent legally permissible.
(q) Parent and Borrower as Holding Company. At all times cause
(i) the Parent to hold not less than 95% of its assets, based on book
value, in cash and Temporary Cash Investments or as Investments in the
Capital Stock of the Borrower and (ii) the Borrower to hold not less
than 95% of its assets, based on book value, in cash and Temporary Cash
Investments or as Investments in the Capital Stock of the Subsidiaries
of the Borrower.
(r) Actions by Restricted Subsidiaries. Cause each Restricted
Subsidiary organized in a jurisdiction outside the United States to
take such action as may be requested by the Administrative Agent
pursuant to Section 12.01(c).
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(s) Pledge of Collateral. Cause each Restricted Subsidiary
that is a party to the Pledge and Security Agreement to take any
actions or execute any documents deemed reasonably necessary by the
Collateral Agent to perfect a security interest in the Property of such
Restricted Subsidiary in any instance in which the loss of such
Property could reasonably be expected to have a Material Adverse
Effect.
(t) Further Assurances. Cause to be delivered to the
Administrative Agent, within 30 days after the Effective Date, (i)
Blocked Account Agreements for all bank accounts, other than securities
accounts, of the Loan Parties duly executed by the appropriate Loan
Party to each such account, except the in the case of Temporary
Restricted Subsidiaries, (ii) the Securities Account Control Agreements
for all securities accounts of the Loan Parties duly executed by the
appropriate Loan Party to each such account, except the Temporary
Restricted Subsidiaries, and (iii) acknowledgment copies of
notifications, in form acceptable to the Administrative Agent, to the
financial intermediaries and other Persons maintaining deposit accounts
and holding certificated securities in which the Consolidated Group
Members have an interest, or in whose records the interest of the
Consolidated Group Members in certificated and uncertificated
securities appears, in each case as set forth under the names of the
Consolidated Group Members on Schedule 7.01(b)(v) and duly executed by
the Consolidated Group Member having an interest in such Collateral and
by the financial intermediary or other Person holding such Collateral
or recording the Consolidated Group Member's interest therein.
Section 8.02 Negative Covenants. Until satisfaction in full of
all the obligations of the Borrower under the Credit Documents and termination
of the Commitments of the Lenders hereunder, each Loan Party shall not and shall
not permit any Consolidated Group Member to:
(a) Limitation on Indebtedness.
(i) Incur any Indebtedness, except, without
duplication:
(A) Indebtedness of the Loan Parties to the
Administrative Agent, the Lenders and L/C
Issuer under the Credit Documents;
(B) Indebtedness of the Borrower or a Restricted
Subsidiary owed to and held by the Borrower
and Restricted Subsidiaries; provided,
however, that (1) such Indebtedness may not
be sold, pledged, assigned or in any way
transferred to a Person other than the
Borrower and Restricted Subsidiaries and the
instruments evidencing the Indebtedness must
so provide, (2) the occurrence of any event
that results in a Restricted Subsidiary that
is owed or holds Indebtedness ceasing to be a
Restricted Subsidiary shall constitute a
transfer of the Indebtedness, (3) the
Borrower may only Incur Indebtedness under
this clause (B) if the Indebtedness is
unsecured and expressly subordinated to the
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prior payment in full in cash of all Loans
and obligations Incurred in any way under the
Credit Documents and (4) for avoidance of
doubt, the Parent, Principal Subsidiaries,
Vendor Financing Obligors and Designated
Foreign Subsidiaries may not Incur
Indebtedness under this clause (B);
(C) Indebtedness of the Parent Incurred under the
Bond Notes Offering and Indebtedness of the
Parent Incurred in respect of the Series C
Stock Transaction, and any Refinancing of
Indebtedness permitted under this clause (C);
(D) Indebtedness existing on the date hereof as
set forth on Schedule 8.02(a);
(E) Purchase Money Indebtedness
(1) Incurred by Vendor Facility Obligors and
by the Parent and Borrower, as
Guarantors, under Vendor Financings not
to exceed $2.0 billion, provided that
any Guarantee by the Borrower of any
Vendor Financings shall be on terms
acceptable to the Administrative Agent,
such acceptance not to be unreasonably
withheld or delayed,
(2) Incurred by the Borrower, Restricted
Subsidiaries, Principal Subsidiaries and
Designated Foreign Subsidiaries under
Fiber Capital Lease Obligations not to
exceed $250.0 million, excluding the MFN
Fiber IRU Capital Lease Obligations and
the Williams Fiber IRU Capital Lease
Obligations; provided, however, that
Indebtedness Incurred under this clause
(E)(2), shall be on commercially
reasonable terms and conditions, and, to
the extent that any such Incurrence
shall be in a principal amount exceeding
$50 million, shall be on terms no more
adverse in any material respect to the
Lenders than the terms and conditions
applicable to such MFN Fiber IRU Capital
Lease Obligations and the Williams Fiber
IRU Capital Lease Obligations or, if
more adverse, on terms and conditions
reasonably acceptable to the
Administrative Agent, such acceptance
not to be unreasonably withheld or
delayed,
(3) Incurred by the Borrower, Restricted
Subsidiaries, Principal Subsidiaries,
Designated Foreign Subsidiaries and
Special Purpose Vendor Subsidiaries (or
Incurred by the Parent or Borrower, in
the form of a Guarantee) in respect of
Data Center Equipment Financings not to
exceed $150.0 million; provided that any
Guarantee of Indebtedness Incurred under
this clause(3) by the Borrower shall be
(I) in substantially the form provided
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to the vendor in connection with the
Vendor Facility referred to Section
7.01(j) entered into on the Effective
Date or, otherwise (II) on terms and
conditions reasonably acceptable to the
Administrative Agent, such acceptance
not to be unreasonably delayed,
(4) Incurred by the Borrower, Restricted
Subsidiaries, Principal Subsidiaries,
Designated Foreign Subsidiaries and
Special Purpose Vendor Subsidiaries (or
Incurred by the Parent or the Borrower,
in the form of a Guarantee) in respect
of Network Equipment Financings not to
exceed $250.0 million; provided that any
Guarantee of Indebtedness Incurred under
this clause (4) by the Borrower shall be
(I) in substantially the form provided
to the vendor in connection with the
Vendor Facility referred to Section
7.01(j) entered into on the Effective
Date or, otherwise (II) on terms and
conditions reasonably acceptable to the
Administrative Agent, such acceptance
not to be unreasonably delayed, or
(5) Incurred by the Borrower, Restricted
Subsidiaries, Principal Subsidiaries,
Designated Foreign Subsidiaries and
Special Purpose Vendor Subsidiaries (or
Incurred by the Parent or the Borrower,
in the form of a Guarantee) not to
exceed $100.0 million at any time
outstanding; provided that any Guarantee
of Indebtedness Incurred under this
clause (5) by the Borrower shall be (I)
in substantially the form provided to
the vendor in connection with the Vendor
Facility referred to Section 7.01(j)
entered into on the Effective Date or,
otherwise (II) on terms and conditions
reasonably acceptable to the
Administrative Agent, such acceptance
not to be unreasonably delayed;
provided, however that Indebtedness under
this clause (E), other than clause (2) above,
shall be on commercially reasonable terms and
conditions and, to the extent that any such
Incurrence shall be in a principal amount
exceeding $25.0 million, on terms and
conditions reasonably acceptable to the
Administrative Agent, such acceptance not to
be unreasonably withheld or delayed;
(F) Hedging Obligations consisting of (1)
Interest Rate Agreements or Currency
Agreements directly related to Indebtedness
permitted to be Incurred by the Loan Parties
or Principal Subsidiaries; provided, however,
that the notional amount of any such Hedging
Obligation does not exceed the amount of
Indebtedness to which such Hedging Obligation
relates or (2) Currency Agreements used to
hedge non-U.S. dollar currency exposures of
the Loan Parties or Principal Subsidiaries,
entered into in accordance with customary
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industry practices for companies in the
Telecommunications Business with
international operations and not for purposes
of speculation;
(G) Indebtedness of a Consolidated Group Member
solely in respect of letters of credit, bank
guarantees, banker's acceptances, cash
deposits, surety bonds, bid bonds and
performance bonds Incurred in the ordinary
course of business; provided, however,
that such instruments or deposits do not
support any Indebtedness other than
Indebtedness which, if Incurred by such
Person, would be permitted to be Incurred
pursuant to another provision of this
covenant;
(H) Indebtedness of the Loan Parties and
Principal Subsidiaries in an aggregate
principal amount not to exceed $50.0 million
at any time outstanding;
(I) Indebtedness of the Parent in an aggregate
principal amount not to exceed the sum of (x)
$1.65 billion, (y) an additional amount
equal to the sum of (i) the aggregate Net
Cash Proceeds received by the Parent after
the Effective Date from the issuance or sale
of Capital Stock (other than Disqualified
Stock) of the Parent (other than an issuance
or sale to the Borrower or any Restricted
Subsidiary and other than an issuance or sale
to an employee stock ownership plan or to a
trust established by the Parent, the
Borrower, a Restricted Subsidiary or a
Principal Subsidiary for the benefit of its
employees) provided that such Net Cash
Proceeds in this clause (i) are invested by
the Parent in the Borrower and such
Investment is not in the form of Indebtedness
and (ii) the Fair Market Value of any Capital
Stock (other than Disqualified Stock) of the
Parent issued to any Person (other than
a Subsidiary) in exchange for Telecommunica-
tions Assets which will be held by the
Borrower or a Restricted Subsidiary or in
exchange for the Capital Stock of another
Person a substantial majority of the assets
of which consist of Telecommunications
Assets in a transaction pursuant to which
such other Person becomes a Restricted
Subsidiary, in each case received or issued,
as the case may be, subsequent to the
Effective Date and (z) amounts equal to
Indebtedness Incurred and utilized for a
Vendor Facility Prepayment permitted by
Section 8.02(e)(v)(I); provided, however,
that Indebtedness Incurred under this clause
(I) is issued on terms (other than as to
interest rates, redemption prices and issue
price) no more restrictive than the Bond
Notes Offering or, if more restrictive, such
restrictions would not be more adverse than
the terms of the Bond Notes Offering to the
interests of the Lenders in any material
respect; provided further that such Indebted-
ness has a Stated Maturity at least one year
beyond the maturity of the Facilities; and
further provided that no principal payments
thereunder shall fall due during the life of
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the Facilities and such Indebtedness shall be
issued at commercially reasonable rates;
(J) Acquired Indebtedness Incurred by the
Borrower, Restricted Subsidiaries, Principal
Subsidiaries and Designated Foreign
Subsidiaries in respect of the acquisition of
a Restricted Subsidiary, Principal Subsidiary
or Designated Foreign Subsidiary;
(K) Refinancing Indebtedness in respect of
Indebtedness Incurred with respect to the
Outstanding Old Bond Debt or pursuant to
Sections 8.02(a)(i) (C), (D), (E), (I) and
(J); provided, that Indebtedness of the
Parent cannot be Refinanced by Indebtedness
Incurred by the Borrower, any Restricted
Subsidiary, Principal Subsidiary, or
Designated Foreign Subsidiary; provided
further, however, that Refinancing
Indebtedness shall not include Indebtedness
of a Restricted Subsidiary, Principal
Subsidiary or Designated Foreign Subsidiary
that Refinances Indebtedness of the Borrower;
(L) Guarantees by a Consolidated Group Member of
Indebtedness Incurred by an Unrestricted
Subsidiary secured by a pledge of the Capital
Stock of such Unrestricted Subsidiary so long
as the pledge provides for no recourse
against the Consolidated Group Member for
such Indebtedness other than recourse against
such Capital Stock;
(M) Indebtedness Incurred pursuant to the MFN
Fiber IRU Capital Lease Obligations and the
Williams Fiber IRU Capital Lease Obligations
and other Capital Lease Obligations arising
under an agreement in effect on the date
hereof; and
(N) Guarantees by the Parent or the Borrower of
Indebtedness of a Consolidated Group Member,
to the extent the Parent or the Borrower
would be allowed to Incur such Indebtedness
directly hereunder.
(ii) Intentionally omitted.
(b) Limitations on Mergers, Consolidations and Sales of
Assets. (i) Be a party to any merger, consolidation or share exchange,
or sell, transfer, lease or otherwise dispose of all or substantially
all of its assets or property, including the Capital Stock of
Subsidiaries, in one transaction or a series of related transactions,
including any disposition of assets or property as part of a
Sale/Leaseback Transaction or permit any Restricted Subsidiary or
Principal Subsidiary so to do; provided, however, that this Section
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shall not apply to nor operate to prevent (A) the Borrower, a
Restricted Subsidiary, Principal Subsidiary or Designated Foreign
Subsidiary being a party to any merger where the Borrower, a Restricted
Subsidiary, Principal Subsidiary or Designated Foreign Subsidiary is
the surviving Person if, after giving effect to such merger, no Default
or Event of Default would then exist; provided further that if a
Restricted Subsidiary merges with a Designated Foreign Subsidiary or
Principal Subsidiary and the Designated Foreign Subsidiary or Principal
Subsidiary is the surviving Person, as the case may be, then such
merger shall be deemed to be a conversion of the Restricted Subsidiary
into a Designated Foreign Subsidiary or a Principal Subsidiary, as the
case may be, and such conversion shall be subject to the restrictions
herein, (B) any Restricted Subsidiary or the Borrower merging into
another Restricted Subsidiary or the Borrower if, after giving effect
to such merger, no Default or Event of Default would then exist, or (C)
the Borrower or any Restricted Subsidiary or Principal Subsidiary from
selling its inventory in the ordinary course of its business or selling
Capital Stock of Unrestricted Subsidiaries.
(ii) Sell or issue any Capital Stock of the Borrower to any
Person other than the Parent (which shall pledge any additional stock
of the Borrower it acquires to secure the Loans hereunder).
(c) Limitations on Liens. Create, incur, assume or suffer to
exist any Lien, upon or in any of its property or assets, whether now
owned or hereafter acquired, except the following Liens (collectively,
"Permitted Liens"):
(i) Liens arising by operation of law in connection with
worker's compensation, unemployment insurance, social security
obligations, taxes, assessments, statutory obligations or
other similar charges, good faith deposits, pledges or Liens
in connection with bids, tenders, contracts or leases to which
such Consolidated Group Member is a party (other than
contracts for borrowed money), or other deposits required to
be made or surety bonds or other obligations of like nature
(which for the purposes of this Agreement shall include
letters of credit in the nature of a surety bond) required to
be obtained in the ordinary course of business in connection
with any of the foregoing; provided that in each case the
obligation secured is not overdue or, if overdue, is being
contested in good faith by appropriate proceedings and for
which reserves in conformity with GAAP have been provided on
the books of such Consolidated Group Member;
(ii) mechanics', workmen's, materialmen's, landlords',
carriers' or other similar Liens arising in the ordinary
course of business (or deposits to obtain the
release of such Liens) securing obligations not due or, if
due, being contested in good faith by appropriate proceedings
and for which reserves in conformity with GAAP have been
provided on the books of such Consolidated Group Member;
(iii) Liens for taxes or assessments or other government
charges or levies on such Consolidated Group Member, not yet
due or delinquent, or which can thereafter be paid without
penalty, or which are being contested in good faith by
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appropriate proceedings and for which reserves in conformity
with GAAP have been provided on the books of such Consolidated
Group Member;
(iv) Liens arising out of judgments or awards against
such Consolidated Group Member, or in connection with surety
or appeal bonds in connection with bonding such judgments or
awards, the time for appeal from which or petition for
rehearing of which shall not have expired or with respect to
which such Consolidated Group Member shall be prosecuting an
appeal or proceeding for review, and with respect to which it
shall have obtained a stay of execution pending such appeal or
proceeding for review; provided that the aggregate amount of
liabilities (including interest and penalties, if any) of the
Consolidated Group on a consolidated basis secured by such
Liens shall not exceed $25.0 million at any one time
outstanding;
(v) Liens upon any Property acquired by such
Consolidated Group Member to secure any Indebtedness of the
Consolidated Group on a consolidated basis incurred at the
time of the acquisition of such Property to finance the
purchase price of such Property, or Liens upon property
resulting from the sale by such Consolidated Group Member of
Property and the leasing of the same or similar property from
the purchaser thereof (or a subsequent purchaser or lessee),
provided that any such Lien shall apply only to the Property
that was so acquired or sold and leased back and the aggregate
principal amount of Indebtedness secured by such Liens shall
not exceed $15.0 million at any time outstanding on a
consolidated basis;
(vi) Survey exceptions or encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities
and other similar purposes, or zoning or other restrictions as
to the use of real properties which are necessary for the
conduct of the activities of such Consolidated Group Member or
which customarily exist on properties of corporations engaged
in similar activities and similarly situated and which do not
in any event materially impair their use in the operation of
the business of such Consolidated Group Member;
(vii) Liens listed on Schedule 8.02(c);
(viii)Liens securing permitted Indebtedness of a
Subsidiary of a Loan Party incurred in connection with the
acquisition or construction of Property of such Subsidiary;
provided that such Lien is limited to the Property being
financed by such Indebtedness and any revenues of such
Subsidiary directly attributable to such Property;
(ix) Liens securing Indebtedness now existing or to be
Incurred under a Vendor Financing under Section 8.02(a)(i)(E)
or any replacement refinancing thereof;
(x) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of
any Lien referred to in the foregoing paragraphs (i) through
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(ix), inclusive, in connection with the permitted extension,
renewal or replacement of the Indebtedness secured thereby;
provided, however, that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of the
Indebtedness so secured at the time of any extension, renewal
or refinancing, and that such extension, renewal or
refinancing shall be limited to the Property which was subject
to the Lien so extended, renewed or refinanced;
(xi) Liens securing obligations under the Credit
Documents, including Liens provided for in the Security
Documents;
(xii) Liens securing Indebtedness existing or incurred
in connection with permitted Capital Lease Obligations,
provided such Liens are limited to Liens on the capital assets
that have been acquired or construction of which has been
financed by the proceeds of such Capital Lease Obligations,
including Liens incurred pursuant to the Fiber Capital Lease
Obligations and Capital Lease Obligations Incurred in respect
of the Data Center Equipment Financing;
(xiii)Liens encumbering the Capital Stock of
Unrestricted Subsidiaries provided that there is no recourse
to the Consolidated Group for the obligations secured other
than against such stock, except with respect to obligations of
Vendor Facility Obligors under the Vendor Facilities;
(xiv) Liens under the Security Documents securing
obligations under Hedging Obligations;
(xv) Liens securing repurchase obligations arising out
of permitted Temporary Cash Investments;
(xvi) Liens securing obligations of a Consolidated Group
Member (other than in respect of Indebtedness for borrowed
money) in an aggregate amount not to exceed $10.0 million; and
(xvi) Liens on Temporary Cash Investments to secure
Indebtedness Incurred under Section 8.02(a)(i)(G).
(d) Investments, Acquisitions, Loans, Advances and
Guaranties. Directly or indirectly, make, retain or have outstanding
any Investments except the following Investments (collectively
"Permitted Investments"):
(i) in the case of the Parent,
(A) Investments in the Borrower (other than
Indebtedness);
(B) Investments in Capital Stock of Temporary
Restricted Subsidiaries owned as of the Effective
Date, subject to the provisions of Section
8.01(p);
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(C) Investments in Subsidiaries not to exceed more
than $1.0 million in the aggregate;
(D) Temporary Cash Investments in an aggregate amount
no greater than $10.0 million at any one time,
provided that such Temporary Cash Investments
balance shall not exceed $5.0 million for more
than three (3) consecutive Business Days;
(E) Investments in Outstanding Old Bond Debt;
(F) Investments in a captive insurance company not to
exceed $1.0 million; and
(G) Investments with respect to the Series C Stock
Transaction.
(ii) in the case of the Parent, clauses (F), (H), (J), (M)
and (AA) of this clause (ii), and in the case of the
Borrower and Restricted Subsidiaries, any of the
following:
(A) Investments in (1) a Person that will, upon the
making of such Investment, become a Restricted
Subsidiary; provided, however, that the primary
business of such Restricted Subsidiary is the
Telecommunications Business, or (2) all or
substantially all of the assets of a Person, or a
corporate division thereof by a Borrower or
Restricted Subsidiary in an aggregate amount for
all Investments pursuant to this clause (A) not to
exceed the sum of (x) $200.0 million plus (y)
Unrestricted Proceeds, provided that to the extent
that the Borrower deems an Investment made
under the preceding clause (1) or clause (2) to be
a capital expenditure permitted under Section
8.03, such Investment shall be deemed to be a Cash
Capital Expenditure for the purposes of this
Agreement and shall not be deemed to be an
Investment for the purpose of calculating amounts
available to be invested under this clause (A);
(B) Investments in Temporary Cash Investments;
provided that after the date that is 30 days after
the Effective Date, Temporary Cash Investments in
bank accounts that are not securities accounts
shall be made only with banks that have executed a
Blocked Account Agreement; provided, further, that
the outstanding balance in such any account shall
not exceed $25.0 million in the aggregate for more
than three consecutive Business Days;
(C) ownership of stock, obligations or securities
received in settlement of debts (created in the
ordinary course of business) owing to the Borrower
or any Subsidiary;
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(D) endorsements of negotiable instruments for
collection in the ordinary course of business;
(E) loans and advances to employees in the ordinary
course of business for payroll, travel,
relocation, and similar purposes;
(F) loans or advances to employees made in the
ordinary course of business consistent with past
practices of the Consolidated Group or as part of
a compensation plan approved by the Board of
Directors of the Parent in an amount not to exceed
$5.0 million at any time outstanding;
(G) Investments consisting of performance bonds and
letters of credit and other similar surety devices
obtained to support, or in lieu of, performance
bonds, in each case entered into in the ordinary
course of business;
(H) the repurchase or other acquisition of shares of
Capital Stock of a Loan Party from employees,
former employees, directors or former directors of
the Loan Party (or permitted transferees of such
employees, former employees, directors or former
directors), pursuant to the terms of the
agreements (including employment agreements) or
plans (or amendments thereto) approved by the
Board of Directors of the Parent under which such
individuals purchase or sell or are granted the
option to purchase or sell, shares of such Capital
Stock; provided, however, that the aggregate
amount of such repurchases and other acquisitions
(other than repurchases and acquisitions made
pursuant to agreements in effect on the Effective
Date) shall not exceed $5.0 million in any
calendar year (with unused amounts being
carried forward indefinitely);
(I) Investments in any Person a substantial majority
of the assets of which consist of
Telecommunications Assets; provided, however, that
the Investments made pursuant to this clause (I)
are pledged as Collateral for the Facilities and
provided further that the cost of acquisition of
all such Investments made pursuant to this clause
(I) (measured on the date each such Investment was
made) and then outstanding, does not exceed the
sum of $100.0 million, plus Unrestricted Proceeds
on the date of any such Investment; provided that
with respect to this clause (I) Unrestricted
Proceeds are deemed to be utilized only after the
$100.0 million has been utilized in full;
(J) cash payments in lieu of the issuance of
fractional shares in connection with stock splits
or upon conversion into Capital Stock of the
Consolidated Group Member (other than Disqualified
Stock) of any security of the Consolidated Group
Member or any convertible Indebtedness of the
Consolidated Group Member;
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(K) Investments in office.com, the cost of which
(measured by the Fair Market Value of the
consideration paid on the date each such
Investment is made) does not exceed $25.0 million
during each of the three 12-month periods
following the Effective Date (with unused annual
amounts being carried over to future periods even
if such periods occur after the third anniversary
of the Effective Date);
(L) Investments, the aggregate cost of which (measured
by the Fair Market Value of the consideration paid
on the date each such Investment was made), when
taken together with the cost of all other
Investments made pursuant to this clause (L), does
not exceed $80.0 million at any time outstanding;
(M) any Guarantee of any Indebtedness of any
Restricted Subsidiary, Principal Subsidiary or
Designated Foreign Subsidiary to the extent the
Person Incurring such Guarantee would be permitted
to directly Incur such Indebtedness under Section
8.02(a)(i);
(N) Existing Investments as set forth on Schedule
5.01(n);
(O) Investments in Capital Stock of customers of any
Consolidated Subsidiary Group Member received and
held by the Person providing such products or
services, or by the Borrower or any Restricted
Subsidiary in exchange for products and services
provided in the ordinary course of business;
provided, however, that the value of such
products and services (calculated as the consider-
ation received by such Person for such products
and services in a comparable arm's-length trans-
action) shall not exceed $50.0 million during each
successive 12-month period following the
Effective Date;
(P) Hedging Obligations on Indebtedness permitted
pursuant to Section 8.02(a);
(Q) Investments in Restricted Subsidiaries;
(R) advances to customers in the ordinary course of
business that are recorded as Receivables on the
balance sheet of the vendor;
(S) Investments in Principal Subsidiaries and
Designated Foreign Subsidiaries in an aggregate
amount not to exceed the sum of (1) $150.0
million, (2) Unrestricted Proceeds on the date of
any such Investment and (3) the original cost of
any Investment in a Principal Subsidiary or
Designated Foreign Subsidiary plus the cost of any
subsequent Investments in such Subsidiaries to the
extent that such Subsidiaries are converted to
Restricted Subsidiaries pursuant to Article XII;
provided that with respect to this clause (S)
Unrestricted 8.02(a); Proceeds are deemed to be
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utilized only after the $150.0 million has
been utilized in full; provided further that the
conversion of a Restricted Subsidiary or
Unrestricted Subsidiary to a Principal
Subsidiary or a Designated Foreign Subsidiary
shall constitute an Investment under this clause
and such Investment shall be valued, in the case
of a Restricted Subsidiary, at the cost of the
Investment in the Restricted Subsidiary at the
time it became a Restricted Subsidiary plus the
cost of any subsequent Investments in the
Restricted Subsidiary through the date the
Restricted Subsidiary becomes a Principal
Subsidiary or a Designated Foreign Subsidiary and,
in the case of an Unrestricted Subsidiary, at the
cost of the Investment in the Unrestricted
Subsidiary at the time it became an Unrestricted
Subsidiary plus the cost of any subsequent
Investments in the Unrestricted Subsidiary through
the date the Unrestricted Subsidiary becomes a
Principal Subsidiary or a Designated
Foreign Subsidiary;
(T) Investments in Unrestricted Subsidiaries in an
aggregate amount not to exceed the sum of (1)
$50.0 million, (2) Unrestricted Proceeds on
the date of any such Investment and (3) the
original cost of any Investment in an Unrestricted
Subsidiary plus the cost of any subsequent
Investments in such Subsidiaries to the extent
that such Subsidiaries are converted to Restricted
Subsidiaries, Principal Subsidiaries or Designated
Foreign Subsidiaries pursuant to Article XII;
provided that with respect to this clause (T)
Unrestricted Proceeds are deemed to be utilized
only after the $50.0 million has been utilized in
full; provided, further, that the conversion of a
Restricted Subsidiary, Principal Subsidiary or a
Designated Foreign Subsidiary into an Unrestricted
Subsidiary shall constitute an Investment in
Unrestricted Subsidiaries under this clause and
such Investment shall be valued at the cost of the
Investment in the Restricted Subsidiary, Principal
Subsidiary or Designated Foreign Subsidiary at the
time it became such a Person plus the cost of any
subsequent Investments on such Person through the
date the Restricted Subsidiary, Principal
Subsidiary or Designated Foreign Subsidiary
becomes an Unrestricted Subsidiary;
(U) Investments paid for with Capital Stock of the
Parent (based on the cost of such Investments
measured by the Fair Market Value of the Parent's
Capital Stock on the date of such Investment)
(1) in any Person engaged in the
Telecommunications Business that is not a
Subsidiary, a substantial majority of the
assets of which Person consist of
Telecommunications Assets, and
(2) in any other Person that is not a Subsidiary
of the Parent up to a maximum aggregate
amount of $50.0 million at any time
outstanding;
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(V) Investments in Outstanding Old Bond Debt;
(W) Investments in Capital Stock of (1) Vendor
Facility Obligors and (2) a captive insurance
company in an aggregate amount, for clauses (1)
and (2), not to exceed $5.0 million;
(X) Investments in the Capital Stock of the Parent by
the Borrower but only in the event the Borrower is
prohibited by law, contract or otherwise from
making a dividend to the Parent pursuant to
Section 8.02(e)(i) and to the extent and in an
amount that a dividend from the Borrower to the
Parent would be permitted pursuant to Section
8.02(e)(i); provided, however, the proceeds from
an Investment under this clause (X) shall be used
solely for the purposes permitted under Section
8.02(e)(i) with respect to the payment of
dividends;
(Y) Investments in Vendor Facility Obligors to meet
regularly scheduled principal and interest
payments and fees and indemnity and expense
reimbursement obligations owed under a Vendor
Facility to the extent not paid out of proceeds
from operating leases on assets owned or
controlled by such Vendor Facility Obligors;
(Z) Investments utilizing
(1) the Net Cash Proceeds of Indebtedness
Incurred by the Parent pursuant to clause (z)
of Section 8.02(a)(i)(I) or
(2) 50% of the cumulative Net Available Cash from
the issuance of Capital Stock of the Parent
(other than stock options or warrants issued
to officers or employees or stock issued upon
the exercise thereof), from the Effective
Date in excess of $350.0 million provided
that any Investment made from funds arising
pursuant to this clause 2 is deemed to be a
utilization of Unrestricted Proceeds,
in either case, to invest in a Vendor
Facility Obligor for the purpose of (x) a
Permitted Partial Vendor Facility Prepayment
that meets the Partial Prepayment Future
Funding Requirement or (y) a Permitted
Complete Vendor Facility Prepayment; and
(AA) Guarantees by the Parent and the Borrower of the
Indebtedness to be Incurred by the Parent or
Borrower under Section 8.02(a)(i)(E)(1), (3), (4)
or (5).
provided that no new Investment shall be permitted to be made
pursuant to clause (A), (H), (I), (K), (L), (S), (T), (U),
(Y), or (Z) above while an Event of Default shall have
occurred and be continuing, except for Investments that such
Consolidated Group Member shall have committed to make prior
to the date of the related Default.
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(iii) in the case of Vendor Facility Obligors that are
Unrestricted Subsidiaries:
(A) Investments Vendor Facility Obligors in other
Vendor Facility Obligors in respect of the same
Vendor Facility Debt Tranche; and
(B) Investments by way of the contribution to a
Subsidiary of the Parent of assets purchased with
the proceeds of Purchase Money Indebtedness and
subject to a Lien securing Purchase Money
Indebtedness permitted under Section
8.02(a)(i)(E).
Any Investment permitted under this Section 8.02(d)(iii)
shall not be deemed to be an Investment under Section
8.02(d)(ii).
In determining the amount of Investments outstanding, (1)
Investments in Capital Stock and Investments taking the form of equity
contributions shall always be valued at the original cost thereof
(regardless of any subsequent appreciation or depreciation therein)
less cash (or in the case of Investments made for other than cash, the
Fair Market Value of Telecommunications Assets or Marketable
Securities) received from such Investments by the Person making such
Investments, provided that in no event may the amount of an Investment
outstanding be valued at less than zero and (2) Investments in
Indebtedness shall be valued at the original principal amount thereof
less any cash payments received on such Indebtedness.
(e) Dividends, Purchase of Stock and Prepayments. (i) Declare
any dividends (other than dividends payable in Capital Stock of the
Parent or the Borrower) on any shares of any class of its Capital
Stock, or apply any of its Property or assets to the purchase,
redemption or other retirement of, or set apart any sum for the payment
of any dividends on, or for the purchase, redemption or other
retirement of, or make any other distribution by reduction of capital
or otherwise in respect of, any shares of any class of Capital Stock
of a Loan Party, or permit any Principal Subsidiary so to do, or
permit any Unrestricted Subsidiary to purchase or acquire any shares
of any class of Capital Stock of the Borrower, except for any
Permitted Investment, provided that dividends are permitted (1) to the
extent necessary for the Parent to (A) so long as no Event of Default
has occurred and is continuing, meet its regularly scheduled
obligations in regard to principal and interest in connection with
Indebtedness Incurred pursuant to clauses (C), (H) and (I) of Section
8.02(a)(i) and Refinancing thereof to the extent permitted in Section
8.02 (a) (i) (K), (B) pay the ordinary operating expenses of the
Parent and other liabilities incurred by the Parent in the ordinary
course of business, (C) so long as no Event of Default has occurred
and is continuing, repay the Outstanding Old Bond Debt, including
regularly scheduled interest payments thereon, and (D) pay
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cash payments in lieu of the issuance of fractional shares in
connection with stock splits or upon conversion into Capital Stock of
the Parent (other than Disqualified Stock) of any security of the
Parent or any convertible Indebtedness of the Parent, (2) to the
Borrower, Restricted Subsidiaries, Principal Subsidiaries, Designated
Foreign Subsidiaries and minority shareholders, provided that dividends
may only be paid to minority shareholders ratably to the extent of
their percentage interests in Capital Stock of a Subsidiary; and (3) so
long as no Event of Default has occurred and is continuing, to the
Parent or by the Parent in an amount no greater than the Net Available
Cash of the substantially concurrent sale of (or specified with
particularity at the time of the sale of, and subsequently made with
such Net Available Cash of), or made by exchange for, Capital Stock
(other than Disqualified Stock) of the Parent (other than Capital Stock
issued or sold to a Subsidiary of the Parent or an employee stock
ownership plan or to a trust established by the Parent or any of its
Subsidiaries for the benefit of their employees); provided that such
dividends and purchases of Capital Stock shall be deemed to be a
utilization of Unrestricted Proceeds and shall not exceed the regularly
scheduled dividend amounts under Series A Preferred Stock and Series G
Preferred Stock;
(ii) Permit any Restricted Subsidiary, Principal
Subsidiary or Designated Foreign Subsidiary to enter into any agreement
or instrument which by its terms restricts the ability of such
Restricted Subsidiary, Principal Subsidiary or Designated Foreign
Subsidiary to (A) declare or pay dividends or make similar
distributions, (B) repay principal of, or pay any interest on, any
Indebtedness owed to any Consolidated Group Member described in Section
8.02(a)(i), (C) make payments of royalties, licensing fees and similar
amounts to any Consolidated Group Member, (D) make loans or advances to
any Consolidated Group Member or (E) permit any Consolidated Group
Member to engage in consolidated cash management inconsistent with
prudent business practice;
(iii) Permit (x) a Restricted Subsidiary, Principal
Subsidiary or Designated Foreign Subsidiary to issue a stock dividend
other than on a pro rata basis to its shareholders, and (y) the
Borrower to issue stock dividends to any Person other than the Parent,
and, in each case of clauses (x) and (y), the stock issued to a
Restricted Subsidiary, Principal Subsidiary, or Designated Subsidiary
in connection with such stock dividend is pledged to secure the Loans
pursuant to the Security Documents;
(iv) subject to the Refinancing provisions of Section
8.02(a)(i)(K), prepay Indebtedness under clauses (C) and (I) of Section
8.02(a)(i) except that Indebtedness under clause (C) may be prepaid to
the extent allowed pursuant to provisions in the applicable Bond Notes
indentures that allow prepayments of up to 35% of the aggregate amount
of the Bond Notes and notes issued in the Series C Stock Transaction
with the net cash proceeds from one or more public equity offerings;
provided that any such prepayment shall be deemed to be utilization of
Unrestricted Proceeds in the amount of such prepayment; and
(v) Prepay Indebtedness Incurred under clause (E) of
Section 8.02(a)(i), except Indebtedness Incurred under Section
8.02(a)(i)(E)(1), (I) by utilizing the proceeds of Investments
permitted under Section 8.02(d)(ii)(Z) for the purpose of (A) a
Permitted Partial Vendor Facility Prepayment or (B) a Permitted
Complete Vendor Facility Prepayment or (II) satisfying a Mandatory
Vendor Facility Prepayment Requirement.
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(f) Use of Proceeds. Use the proceeds of Loans or Letters of
Credit other than (i) to repay Indebtedness outstanding at the
Effective Time, (ii) for working capital requirements and (iii) for
general corporate purposes, including capital expenditures.
Section 8.03 Financial Covenants.
(a) Phase 1 Financial Covenants. Until the earlier of (i) the
satisfaction in full of all the obligations of the Borrower under the Credit
Documents and the Commitment Termination Date and (ii) December 31, 2002, the
Consolidated Group Members shall:
(i) Maximum EBITDA Losses/Minimum EBITDA. Not permit EBITDA
for any fiscal quarter to be less than the following during each
quarterly period described below:
Quarter Ended Amount
March 31, 2000 $ (48,000,000)
June 30, 2000 $ (42,000,000)
September 30, 2000 $ (38,000,000)
December 31, 2000 $ (28,000,000)
March 31, 2001 $ (17,000,000)
June 30, 2001 $ (9,000,000)
September 30, 2001 $ (5,000,000)
December 31, 2001 $ 1,000,000
March 31, 2002 $ 28,000,000
June 30, 2002 $ 44,000,000
September 30, 2002 $ 60,000,000
December 31, 2002 $ 76,000,000
(ii) Minimum Revenues. Not permit Consolidated Revenue for any
fiscal quarter (calculated as of the last day of any fiscal quarter end
and based on the results of the quarter then ended) to be less than the
following:
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Quarter Ended Amount
March 31, 2000 $118,000,000
June 30, 2000 $129,000,000
September 30, 2000 $139,000,000
December 31, 2000 $163,000,000
March 31, 2001 $173,000,000
June 30, 2001 $188,000,000
September 30, 2001 $199,000,000
December 31, 2001 $217,000,000
March 31, 2002 $240,000,000
June 30, 2002 $268,000,000
September 30, 2002 $294,000,000
December 31, 2002 $328,000,000
(iii) Maximum Cash Capital Expenditures. Not permit total
annual Cash Capital Expenditures to exceed the following amounts;
provided that unused amounts permitted to be expended in any fiscal
year may be carried forward one year with all capital expenditures
deemed first applied to any carry-forward amounts; provided further
that on any date that any Loan Party receives Net Cash Proceeds from
permitted Indebtedness (other than Refinancing Indebtedness) or equity
in excess of the $1.5 billion, on a cumulative basis from the Effective
Date, the Borrower may increase, at its discretion, the maximum Cash
Capital Expenditures in any year or years by an aggregate amount equal
to such Net Cash Proceeds that exceed the $1.5 billion; provided
further that any such amount of increase shall be deemed a utilization
of Unrestricted Proceeds; and provided further that under no
circumstances shall the maximum annual Cash Capital Expenditures exceed
(excluding carry over amounts) $1.3 billion for any year prior to and
including 2001 and $1.0 billion in any year thereafter while this
covenant is applicable:
Fiscal Year Amount
2000 $1,300,000,000
2001 $1,150,000,000
2002 $ 550,000,000
(iv) Maximum Consolidated Senior Secured Debt to Consolidated
Total Capitalization. Not permit the ratio of Consolidated Senior
Secured Debt to Consolidated Total Capitalization to exceed 25% at any
time. For the purpose of calculating Consolidated Total Capitalization,
paid-in capital shall be given effect as of the date paid in.
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(v) Maximum Consolidated Total Debt to Consolidated Total
Capitalization. Not permit the ratio of Consolidated Total Debt to
Consolidated Total Capitalization to exceed 75% at any time. For the
purpose of calculating Consolidated Total Capitalization, paid-in
capital shall be given effect as of the date paid in.
(vi) Maximum Consolidated Senior Secured Debt to Adjusted
Gross PP&E. Not permit the ratio of Consolidated Senior Secured Debt to
Adjusted Gross PP&E to exceed 50% at any time.
(vii) On-Network Hubs. Not permit the number of On-Network
Hubs for any fiscal quarter (as calculated on the last day of any
fiscal quarter) to be less than the following:
On - Network
Quarter Ended Hubs
March 31, 2000 125
June 30, 2000 142
September 30, 2000 159
December 31, 2000 175
March 31, 2001 190
June 30, 2001 204
September 30, 2001 219
December 31, 2001 234
March 31, 2002 249
June 30, 2002 263
September 30, 2002 267
December 31, 2002 268
(viii) On-Network Buildings: Not permit the minimum number of
On-Network Buildings for any fiscal quarter (calculated as of the last
day of any fiscal quarter end) to be less than the following:
On - Network
Quarter Ended Buildings
March 31, 2000 1,649
June 30, 2000 2,322
September 30, 2000 3,320
December 31, 2000 4,477
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On - Network
Quarter Ended Buildings
March 31, 2001 5,981
June 30, 2001 7,366
September 30, 2001 8,755
December 31, 2001 10,147
March 31, 2002 10,256
June 30, 2002 10,366
September 30, 2002 10,475
December 31, 2002 10,585
(b) Phase 2 Financial Covenants. From January 1, 2003 until
the satisfaction in full of all the obligations of the Borrower under the Credit
Documents and termination of the Commitments of the Lenders hereunder, the
Consolidated Group Members shall:
(i) Consolidated Total Debt to Consolidated Annualized
EBITDA. Not permit the ratio of Consolidated Total Debt to
Consolidated Annualized EBITDA for any day during the following
periods to be more than the following:
Period Ratio
March 31, 2003 - June 29, 2003 15.00x
June 30, 2003 - September 29, 2003 11.00x
September 30, 2003 - December 30, 2003 10.00x
December 31, 2003 - March 30, 2004 9.00x
March 31, 2004 - June 29, 2004 8.00x
June 30, 2004 - September 29, 2004 7.50x
September 30, 2004 - December 30, 2004 7.00x
December 31, 2004 - March 30, 2005 6.00x
March 31, 2005 and thereafter 5.00x
(ii) EBITDA to Consolidated Interest Expense. Not permit
the ratio of EBITDA to Consolidated Interest Expense for the last four
consecutive fiscal quarters immediately preceding any date of
determination to be less than the following:
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Quarter Ended Ratio
March 31, 2003 0.50x
June 30, 2003 0.50x
September 30, 2003 0.75x
December 31, 2003 0.75x
March 31, 2004 1.00x
June 30, 2004 1.00x
September 30, 2004 1.25x
December 31, 2004 1.25x
March 31, 2005 1.50x
June 30, 2005 1.50x
September 30, 2005 1.75x
December 31, 2005 1.75x
March 31, 2006 2.00x
June 30, 2006 2.00x
September 30, 2006 2.25x
December 31, 2006 2.25x
March 31, 2007 and thereafter 2.50x
(iii) Maximum Cash Capital Expenditures. Commencing
fiscal year 2003 and through to the end of fiscal year 2007, not permit
total annual Cash Capital Expenditures to exceed $400.0 million;
provided that unused amounts permitted to be expended in any fiscal
year may be carried forward one year with all Cash Capital Expenditures
deemed first applied to any carry-forward amounts; provided further
however, that on any date that any Loan Party receives Net Cash
Proceeds from permitted issuance of Indebtedness (other than
Refinancing Indebtedness) or equity in excess of $1.5 billion, on a
cumulative basis from the Effective Date, the Borrower may increase, at
its discretion, the maximum Cash Capital Expenditures in any year or
years by an aggregate amount equal to such Net Cash Proceeds that
exceed $1.5 billion; provided further that any such amount of increase
shall be deemed a utilization of Unrestricted Proceeds; and provided
further that under no circumstances shall the maximum annual Cash
Capital Expenditures (excluding carry over amounts) exceed $1.0 billion
in any year while this covenant is applicable.
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(c) Consolidated Senior Debt to Consolidated Annualized
EBITDA. From March 31, 2002 until the satisfaction in full of all the
obligations of the Borrower under the Credit Documents and termination of the
Commitments of the Lenders hereunder, the Consolidated Group Members shall not
permit the ratio of Consolidated Senior Debt to Consolidated Annualized EBITDA
for any day during the following periods to be more than the following:
Periods Ratio
March 31, 2002 - June 29, 2002 12.50x
June 30, 2002 - September 29, 2002 10.00x
September 30, 2002 - December 30, 2002 9.00x
December 31, 2002 - March 30, 2003 7.50x
March 31, 2003 - June 29, 2003 5.00x
June 30, 2003 - September 29, 2003 4.50x
September 30, 2003 - December 30, 2003 4.00x
December 31, 2003 - March 30, 2004 4.00x
March 31, 2004 and thereafter 3.50x
(d) EBITDA to Consolidated Debt Service. Commencing in the
quarter ending December 31, 2003, not permit the ratio of EBITDA to Consolidated
Debt Service for the four consecutive fiscal quarters ending on such date to be
less than 1.0.
ARTICLE IX.
Events of Default
Section 9.01 Events of Default. If one or more of the
following events (each, an "Event of Default") shall occur:
(a) The Borrower shall fail duly to pay any principal of any
Loan or amount drawn under any Letter of Credit when due, whether at
maturity, by notice of intention to prepay or otherwise;
(b) The Borrower shall fail duly to pay any interest, fee or
any other amount payable under the Credit Documents within three
Business Days after the same shall be due;
(c) The Loan Parties shall fail duly to observe or perform any
term, covenant, or agreement contained in Sections 8.02 and 8.03;
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(d) The Loan Parties shall fail duly to observe or perform any
other term, covenant or agreement contained in this Agreement, and such
failure shall have continued unremedied for a period of 30 days after
written notice is given by the Administrative Agent to the Loan
Parties;
(e) Any representation or warranty made or deemed made by a
Loan Party in a Credit Document or Security Document, or any statement
or representation made in any certificate, report or opinion delivered
by or on behalf of a Loan Party in connection with a Credit Document or
Security Document, shall prove to have been false or misleading in any
material respect when so made or deemed made;
(f) A Loan Party shall fail to pay any Indebtedness (other
than obligations hereunder) in an amount of $25.0 million or more when
due and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument evidencing such
Indebtedness, unless such failure shall have been cured or waived, or a
default shall have occurred and be continuing with respect to any such
Indebtedness having an aggregate principal amount outstanding of $25.0
million or more and as a result of such default the holder of such
Indebtedness shall have accelerated, or shall have the right to
accelerate, the maturity of such Indebtedness prior to its express
maturity;
(g) An involuntary case or other proceeding shall be commenced
against any Loan Party (except as provided below) seeking liquidation,
reorganization or other relief with respect to it or its debts under
any applicable bankruptcy, insolvency, reorganization or similar law or
seeking the appointment of a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of it or any substantial part
of its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of more than 60 days; or
an order or decree approving or ordering any of the foregoing shall be
entered and continued unstayed and in effect;
(h) Any Loan Party (except as provided below) shall commence a
voluntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or similar law or any other case or
proceeding to be adjudicated a bankrupt or insolvent, or any of them
shall consent to the entry of a decree or order for relief in respect
of the Loan Party in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case or
proceeding against any of them, or any of them shall file a petition or
answer or consent seeking reorganization or relief under any applicable
law, or any of them shall consent to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Loan Party or any substantial part of their respective property, or any
of them shall make an assignment for the benefit of creditors, or any
of them shall admit in writing its inability to pay its debts generally
as they become due, or the Loan Party shall take corporate action in
furtherance of any such action;
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(i) One or more judgments against a Loan Party or
attachments against its property, which in the aggregate exceed $25.0
million, or the operation or result of which could reasonably be
expected to have a Material Adverse Effect, shall be rendered against
such Loan Party and there shall be any period of 30 consecutive days
during which a stay of such judgment or attachment, by reason of a
pending appeal or otherwise, shall not be in effect;
(j) Notice of intent to terminate or amend a Pension Plan
shall have been filed with any affected party (as defined in Section
4001 of ERISA), if, after giving effect thereto, the Pension Plan is a
plan described in Section 4021(b) of ERISA or notice of an application
by the PBGC to institute proceedings to terminate a Pension Plan
pursuant to Section 4042 of ERISA shall have been received by any
member of the ERISA Group, in each case only if the amount of unfunded
benefit liabilities (as defined in Section 4001(a)(18) of ERISA) as of
the date such notice is filed or received exceeds $15.0 million; any
member of the ERISA Group incurs liability under Sections 4062(e), 4063
or 4064 of ERISA in respect of a Pension Plan in an amount in excess of
$15.0 million; an amendment is adopted to a Pension Plan which would
require security to be given to such Pension Plan pursuant to Section
401(a)(29) of the Code or Section 307 of ERISA in an amount in excess
of $15.0 million; any member of the ERISA Group fails to make a payment
to a Pension Plan which would give rise to a Lien in favor of such Plan
under Section 302(f) of ERISA in an amount in excess of $15.0 million;
or
(k) any Change of Control shall occur, then, and at any time
during the continuance of such Event of Default, the Required Lenders,
may, by written notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare any Loans then outstanding
to be due, whereupon the principal of the Loans so declared to be due,
together with accrued interest thereon and any unpaid amounts accrued
under the Credit Documents, shall become forthwith due, without
presentment, demand, protest or any other notice of any kind (all of
which are hereby expressly waived by the Loan Parties); provided that,
in the case of any Event of Default described in Section 9.01(g) or
(h) occurring with respect to the Borrower, the Commitments shall
automatically and immediately terminate and the principal of all Loans
then outstanding, together with accrued interest thereon and any
unpaid amounts accrued under the Credit Documents, shall automatically
and immediately become due without presentment, demand, protest or any
other notice of any kind (all of which are hereby expressly waived by
the Loan Parties).
The provisions of paragraphs (g) and (h) of this Section 9.01
shall not apply to any Loan Party that would be permitted to become an
Unrestricted Subsidiary pursuant to Article XII without the occurrence of a
Default hereunder after giving effect to such action. Any such Loan Party shall
be deemed converted to an Unrestricted Subsidiary provided that such conversion
shall be deemed to be an Investment in Unrestricted Subsidiaries under Section
8.02(d)(ii)(T) as of the date of such conversion.
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ARTICLE X.
The Administrative and Collateral Agents
Section 10.01 The Agency. Each Lender appoints The Bank of New
York as its Administrative Agent and Collateral Agent hereunder and under the
Credit Documents and irrevocably authorizes the Administrative Agent and
Collateral Agent to take such action on its behalf and to exercise such powers
hereunder and thereunder as are specifically delegated to the Administrative
Agent and Collateral Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto, including the exercise of powers
delegated to the Administrative Agent and Collateral Agent and the Lenders
thereby, and the Administrative Agent and Collateral Agent hereby accept such
appointment subject to the terms hereof. The relationship between the
Administrative Agent and Collateral Agent and the Lenders shall be that of agent
and principal only and nothing herein shall be construed to constitute the
Administrative Agent and Collateral Agent a trustee or fiduciary for any Lender
nor to impose on the Administrative Agent and Collateral Agent duties or
obligations other than those expressly provided for herein.
Section 10.02 The Administrative Agent's Duties. The
Administrative Agent and Collateral Agent shall promptly forward to each Lender
copies, or notify each Lender as to the contents, of all notices received from
the Borrower pursuant to the terms of this Agreement or the Credit Documents
and, in the event that the Borrower fails to pay when due the principal of or
interest on any Loan, the Administrative Agent shall promptly give notice
thereof to the Lenders. As to any other matter not expressly provided for herein
or under the other Credit Documents, the Administrative Agent and Collateral
Agent shall have no duty to act or refrain from acting with respect to the
Borrower, except upon the instructions of the Required Lenders. The
Administrative Agent and Collateral Agent shall not be bound by any waiver,
amendment, supplement, or modification of this Agreement or the other Credit
Documents which affects its duties hereunder and thereunder, unless it shall
have given its prior written consent thereto. The Administrative Agent and
Collateral Agent shall have no duty to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants or
agreements binding on the Borrower pursuant to any Credit Document nor shall the
Administrative Agent or Collateral Agent be deemed to have knowledge of the
occurrence of any Default or Event of Default (other than a failure of the
Borrower to pay when due the principal or interest on any Loan), unless it shall
have received written notice from the Borrower or a Lender specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default".
Section 10.03 Limitation of Liabilities. Each of the Lenders
and the Loan Parties agree that (i) neither the Administrative Agent nor
Collateral Agent any of its or their officers or employees shall be liable for
any action taken or omitted to be taken by any of them hereunder except for its
or their own gross negligence or wilful misconduct, (ii) neither the
Administrative Agent nor Collateral Agent nor any of its or their officers or
employees shall be liable for any action taken or omitted to be taken by any of
them in good faith in reliance upon the advice of counsel, independent public
accountants or other experts selected by the Administrative Agent, and (iii) the
Administrative Agent and Collateral Agent shall be entitled to rely upon any
notice, consent, certificate, statement or other document believed by it to be
genuine and correct and to have been signed and/or sent by the proper Persons.
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Section 10.04 The Administrative Agent and Collateral Agent as
a Lender. The Administrative Agent and Collateral Agent may, without any
liability to account, maintain deposits or credit balances for, invest in, lend
money to and generally engage in any kind of banking or investment banking
business with any Loan Party or Subsidiary or Affiliate of the Borrower as if it
were any other lender and without any duty to account therefor to the other
Lenders.
Section 10.05 Lender Credit Decision. Neither the
Administrative Agent, Collateral Agent nor any of its or their Affiliates,
officers or employees has any responsibility for, gives any guarantee in respect
of, nor makes any representation to the Lenders as to, (i) the condition,
financial or otherwise, of the Parent, the Borrower or any Subsidiary thereof or
the truth of any representation or warranty given or made in this Agreement, or
in connection here with or therewith or (ii) the validity, execution,
sufficiency, effectiveness, construction, adequacy, enforceability or value of
this Agreement or any other document or instrument related hereto or thereto.
Except as specifically provided herein, neither the Administrative Agent nor
Collateral Agent nor any of its or their Affiliates, officers or employees shall
have any duty or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with respect to the
operations, business, property, condition or creditworthiness of the Borrower or
any of its Subsidiaries, whether such information comes into the Administrative
Agent's or Collateral Agent's possession on or before the Effective Date or at
any time thereafter. Each Lender acknowledges that (i) it has, independently and
without reliance upon the Administrative Agent or Collateral Agent or any other
Lender, based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and (ii)
all information reviewed by it in its credit analysis or otherwise in connection
herewith (including information relating to the Administrative Agent and
Collateral Agent) has been provided solely by or on behalf of the Parent and the
Borrower, and neither the Administrative Agent nor the Collateral Agent has no
responsibility for such information. Each Lender also acknowledges that it will
independently and without reliance upon the Administrative Agent or Collateral
Agent or any other Lender, based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under any Credit Document.
Section 10.06 Indemnification. (a) Each Lender agrees to
indemnify the Administrative Agent and Collateral Agent, to the extent not
reimbursed by any of the Loan Parties, ratably in proportion to such Lender's
Commitment (as of the time of the incurrence of the liability being indemnified
against), from and against any and all liabilities, obligations, losses, claims,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Administrative Agent and Collateral Agent in any way
relating to or arising out of any Credit Document, or any action taken or
omitted to be taken by the Administrative Agent and Collateral Agent hereunder
or thereunder; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent and Collateral Agent or any of its
officers or employees. Without limiting the foregoing, each Lender agrees to
reimburse the Administrative Agent and Collateral Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including fees and
disbursements of counsel incurred by the Administrative Agent and Collateral
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Agent in such capacity in connection with the preparation, execution or
enforcement of, or legal advice in respect of rights or responsibilities under,
any Credit Document or any amendments or supplements hereto or thereto, to the
extent that the Administrative Agent and Collateral Agent is not reimbursed for
such expenses by any of the Loan Parties).
(b) Except for action expressly required of the Administrative
Agent hereunder, the Administrative Agent shall in all cases be fully justified
in failing or refusing to act hereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under this Section 10.06 against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
(c) The provisions of this Section 10.06 shall remain
operative and in full force and effect regardless of the expiration of the term
of this Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the reduction or termination of any Commitments,
the invalidity or unenforceability of any term or provision of any Credit
Document, or any investigation made by or on behalf of the Lenders.
Section 10.07 Successor Administrative Agent and Collateral
Agent. The Administrative Agent or Collateral Agent may resign at any time, in
such capacity, by giving written notice thereof to the Lenders and the Loan
Parties. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Administrative Agent or Collateral Agent and, so long as the
Borrower is not in Default, with the consent of the Borrower provided such
consent shall not be unreasonably withheld. If no successor Administrative Agent
or Collateral Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the resigning
Administrative Agent's giving of notice of resignation the resigning
Administrative Agent or Collateral Agent may, on behalf of the Lenders, appoint
a successor Administrative Agent or Collateral Agent , which shall be a
commercial bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $250.0 million. Upon the acceptance of any appointment as Administrative
Agent or Collateral Agent hereunder by a successor Administrative Agent or
Collateral Agent, such successor Administrative Agent or Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the resigned Administrative Agent or Collateral Agent, and the
resigned Administrative Agent or Collateral Agent shall be discharged from its
duties and obligations in such capacity under this Agreement and the other
Credit Documents. After any Administrative Agent's or Collateral Agent's
resignation or removal as Administrative Agent or Collateral Agent, the
provisions of this Article X shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent or Collateral
Agent under this Agreement or the other Credit Documents.
ARTICLE XI.
Evidence of Loans; Transfers
Section 11.01 Evidence of Loans. (a) Each Lender shall
maintain, in accordance with its customary and usual practice, accounts
evidencing the Indebtedness of the Borrower to such Lender resulting from each
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Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender in respect of Loans.
(b) The Administrative Agent shall maintain, on behalf of and
as agent for the Borrower, in accordance with its customary and usual practice,
(i) a copy of each Assignment and Acceptance delivered to it and (ii) written or
electronic records for the recordation of (A) the amount of each Lender's
Commitments, (B) the amount of each Loan, whether such Loan is a Revolving
Credit Loan, or Term Loan and the interest rate and the Interest Period
applicable thereto, (C) the amount of any principal, fees or interest paid, due
and payable or to become due and payable from the Borrower to each Lender
hereunder, (D) the amount of any payments received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof and (E) the name and
address of the Assignee, the amount of the Assignee's Commitment and the
principal amount of each Loan owing to each Lender or such Assignee. The
Administrative Agent's written records described above shall be available for
inspection during ordinary business hours by the Borrower or any Lender or
Assignee from time to time upon reasonable prior notice to the Administrative
Agent.
(c) The entries made in the Administrative Agent's written or
electronic records and the foregoing accounts shall be prima facie evidence of
the existence and amounts of the Indebtedness of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain any such account or such records, as applicable, or any error therein,
shall not in any manner affect the validity or enforceability of any obligation
of the Borrower to repay any Loan actually made by such Lender in accordance
with the terms of this Agreement. The entries in such records relating to
assignments shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in such records as the owner of the Loans recorded therein for
all purposes of this Agreement.
(d) The Borrower's obligations to repay any Loan assigned to a
Federal Reserve Bank by a Lender shall, to the extent requested by such Lender
in order to effect such assignment, be evidenced by one or more Notes, in
substantially the form of Exhibit 11.01(d)-1 or Exhibit 11.01(d)-2, as
appropriate. Such Note shall be in the principal amount of the Loan or Loans so
assigned and stated to mature on the applicable Commitment Termination Date and
bear interest from its date until paid in full on the principal amount of the
Loan outstanding thereunder payable at the rates and in the manner provided
herein.
Section 11.02 Participations. Any Lender may at any time
grant to one or more financial institutions (each a "Participant") participating
interests in its Commitment or any or all of its Loans. In the event of any such
grant by a Lender of a participating interest to a Participant, whether or not
upon notice to any of the Loan Parties or the Administrative Agent, such Lender
shall maintain on behalf of the Borrower a register of the information set forth
in Section 11.01(b)(ii)(A) through (E) with respect to such Participants and
shall remain responsible for the performance of its obligations hereunder, and,
except to the extent such participating interest has been granted pursuant to
Section 4.02(e), the Loan Parties and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement pursuant to which any
Lender may grant such a participating interest shall provide that such Lender
shall retain the sole
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right and responsibility to enforce the obligations of each of the Loan Parties
hereunder including the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that such Lender will not agree to any modification, amendment or
waiver of this Agreement described in clauses (i) through (vi), inclusive, of
Section 13.06 without the consent of the Participant. An assignment or other
transfer which is not permitted by Section 11.03 shall be given effect for
purposes of this Agree ment only to the extent of a participating interest
granted in accordance with this Section 11.02.
Section 11.03 Assignments. (a) Any Lender may at any time
assign to one or more financial institutions (each an "Assignee") all, or a
proportionate part of all, of its rights and obligations under this Agreement,
and such Assignee shall assume such rights and obligations, pursuant to an
instrument, in substantially the form of Exhibit 11.03(a) (an "Assignment and
Acceptance"), executed by such Assignee and such transferor Lender, with (and
subject to) the signed consent (which consent shall not be unreasonably
withheld) of the Parent, the Borrower, the Administrative Agent and the L/C
Issuer; provided that (i) the foregoing consent requirement shall not be
applicable in the case of an assignment or other transfer by any Lender to an
Affiliate of such Lender, to another Lender, a Federal Reserve Bank or, in the
case of a Lender that is a fund that invests in bank loans, to a fund under
common management, or advised by the same investment adviser (or Affiliate
thereof) (an "Approved Fund") and (ii) the aforementioned consent of the Parent
and the Borrower shall not be required if there shall have occurred an Event of
Default that is continuing. Upon execution and delivery of an Assignment and
Acceptance and payment by such Assignee to such transferring Lender of an amount
equal to the purchase price agreed between such transferring Lender and such
Assignee and payment by the transferring Lender or the Assignee of an assignment
fee of $3,500 to the Administrative Agent (provided that only one such fee shall
be payable in the event of simultaneous transfers to two or more funds that
invest in bank loans and are Approved Funds as to each other), such Assignee
shall be a Lender party to this Agreement and shall have all the rights and
obligations of a Lender with a Commitment or an outstanding Loan as set forth in
such Assignment and Acceptance, and the transferring Lender shall be released
from its obligations hereunder to a corresponding extent, and no further consent
or action by any party shall be required. Revolving Credit Loans, Term Loan A
Loans and Term Loan B Loans may be assigned separately and not pro rata. Any
assignment pursuant to this Section 11.03 shall become effective upon the
recording thereof in the written records maintained by the Administrative Agent
pursuant to Section 11.01(b).
(b) An Assignment and Acceptance must be in a minimum amount
of $5.0 million unless otherwise agreed to by the Borrower, except (i) as to an
Assignment and Acceptance between Lenders or between a Lender and any Affiliate
of such Lender or Approved Fund of such Lender to which no minimum dollar amount
shall apply or (ii) if the amount of any Lender's Commitment or outstanding
Loans is less than $5.0 million, then all of such lesser amount; provided that
all simultaneous assignments to two or more funds that are Approved Funds as to
each other shall be aggregated in determining whether such minimum has been met.
(c) No Assignee of any Lender's rights shall be entitled to
receive any greater payment under Section 4.03 or 4.04 than such Lender would
have been entitled to receive with respect to the rights transferred, unless
such transfer is made with the Borrower's prior written consent.
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Section 11.04 Certain Pledges. Notwithstanding any other
provision in this Agreement, (a) any Lender may at any time create a security
interest in, or pledge, all or any portion of its rights under this Agreement
and any Note held by it in favor of any Federal Reserve Bank in accordance with
Federal Reserve Board Regulation A (or any successor provision) or U.S. Treasury
Regulation 31 C.F.R. ss. 203.14 (or any successor provision), and such Federal
Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law and (b) any Lender that is a fund that invests in
bank loans may pledge all or any portion of its rights in connection with this
Agreement to the trustee for holders of obligations owed, or securities issued,
by such fund as security for such obligations or securities, provided that any
foreclosure or other exercise of remedies by such trustee shall be subject to
the provisions of this Section 11.03 regarding assignments in all respects. No
pledge described in the immediately preceding sentence shall release any Lender
from its obligations hereunder.
ARTICLE XII.
Subsidiaries
Section 12.01 Restricted Subsidiaries. (a) On the Effective
Date, Restricted Subsidiaries shall consist of the Subsidiaries listed as such
on Schedule 5.01(b).
(b) Upon the occurrence of the last of all of the following
events with respect to a Subsidiary, such Subsidiary shall become a Restricted
Subsidiary: (i) the Subsidiary is or becomes a Subsidiary of the Borrower and
80% or more of the Capital Stock and Voting Stock of the Subsidiary is owned
through Restricted Subsidiaries, by the Borrower, (ii) the Subsidiary is a
Guarantor or becomes an Additional Guarantor, (iii) the Subsidiary pledges a
substantial majority of its assets to secure the Loans under the Security
Documents, (iv) all of the Capital Stock of the Subsidiary owned by the Borrower
and Restricted Subsidiaries is pledged to secure the Loans under the Security
Documents and (v) notice of the foregoing shall have been received by the
Administrative Agent.
(c) Upon the occurrence of the last of all of the following
events with respect to a Subsidiary organized under laws of a jurisdiction
outside the United States, such Subsidiary shall become a Restricted Subsidiary:
(i) the Subsidiary is or becomes a Wholly Owned Subsidiary of the Borrower, (ii)
the Subsidiary is a Guarantor or becomes an Additional Guarantor, to the extent
legally permissible, or except as reasonably determined by the Administrative
Agent to be impractical, (iii) the Subsidiary pledges substantially all of its
assets to secure the Loans under the Security Documents to the extent legally
permissible, except as reasonably determined by the Administrative Agent to be
impractical, (iv) all of the Capital Stock and Voting Stock of the Subsidiary is
pledged to secure the Loans under the Security Documents to the extent legally
permissible, except as reasonably determined by the Administrative Agent to be
impractical, and (v) notice of the foregoing shall have been received by the
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Administrative Agent; provided that if any of the actions set forth in (ii),
(iii) or (iv) above are not legally permissible or are reasonably determined by
the Administrative Agent to be impractical, but become legally permissible or
are reasonably determined by the Administrative Agent not to be impractical at
any time after the date hereof, such Subsidiary shall take such actions if
requested by the Administrative Agent within 30 days of such request.
(d) (i) Upon the occurrence of any of the following events, a
Restricted Subsidiary (the "Converting Restricted Subsidiary") shall
automatically and without further action by any Person cease to be a Restricted
Subsidiary: (A) at least 80% of the Capital Stock and Voting Stock of the
Converting Restricted Subsidiary ceases to be owned directly, or indirectly
through Restricted Subsidiaries, by the Borrower, (B) the Guarantee, if any, of
the Converting Restricted Subsidiary of the Loans is released involuntarily in
whole or part or otherwise becomes unenforceable in any material respect, (C)
the assets of the Converting Restricted Subsidiary pledged to secure the Loans,
if any, are released involuntarily in whole or part, or the Lien, if any, in
favor of the Lenders on any material portion of the Collateral contemplated
under the Security Documents is unenforceable or ineffective, except as
otherwise permitted hereunder, (D) for a Converting Restricted Subsidiary
organized under the laws of the United States, less than all of the Capital
Stock of the Converting Restricted Subsidiary owned by the Borrower and
Restricted Subsidiaries remains pledged to secure the Loans under the Security
Documents, (E) for a Converting Restricted Subsidiary organized under the laws
of a jurisdiction outside the United States, Capital Stock and Voting Stock
constituting less than (1) the lesser of the Capital Stock and Voting Stock
owned by the Borrower and Restricted Subsidiaries or (2) 66% of the Capital
Stock and Voting Stock of the Converting Restricted Subsidiary remains pledged
to secure the Loans under the Security Documents or (F) the Converting
Restricted Subsidiary ceases to be a Wholly Owned Subsidiary of the Borrower and
(1) is not a Guarantor or an Additional Guarantor or (2) has not pledged a
substantial majority of its assets to secure the Loans under the Security
Documents; provided, further, that Temporary Restricted Subsidiaries are not
subject to this paragraph (d); provided, moreover, that a conversion under this
paragraph is deemed to be an Investment in Principal Subsidiaries under Section
8.02(d)(ii)(S) as of the date of such conversion whether or not such an
Investment is permitted pursuant to that Section.
(ii) Upon the occurrence of any of the events
specified in Section 12.01(d)(i), a Converting Restricted Subsidiary shall
automatically and without further action by any Person become: (A) a Principal
Subsidiary, if it meets the requirements set forth in Sections 12.02(b) or (c),
(B) a Designated Foreign Subsidiary, if it meets the requirements set forth in
Section 12.03(b) or (c), or (C) an Unrestricted Subsidiary, if it does not meet
any of the requirements set forth in the preceding clauses (A) or (B).
(e) Subject to the provisions of Section 8.02(d)(ii)(S), upon
the occurrence of the last of all of the following events, a Restricted
Subsidiary shall become a Principal Subsidiary voluntarily: (i) the Restricted
Subsidiary is designated a Principal Subsidiary by the Board of Directors of the
Parent and (ii) notice of the foregoing shall have been received by the
Administrative Agent. Upon conversion to a Principal Subsidiary pursuant to this
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paragraph (e), provided that no Default exists, the Administrative Agent shall
promptly release the assets of the Subsidiary and any Capital Stock of the
Subsidiary not owned by the Borrower or any Restricted Subsidiary from the Lien
of the Security Documents and release such Principal Subsidiary as a Guarantor.
(f) Subject to the provisions of Section 8.02, upon the
occurrence of the last of the following events, a Restricted Subsidiary shall
become an Unrestricted Subsidiary voluntarily: (i) the Restricted Subsidiary is
designated as an Unrestricted Subsidiary by the Board of Directors of the
Parent, and (ii) notice of the foregoing shall have been received by the
Administrative Agent. Upon conversion to an Unrestricted Subsidiary, provided
that no Default exists, the Administrative Agent shall promptly release the
assets of the Unrestricted Subsidiary and the Capital Stock of the Unrestricted
Subsidiary from the Lien of the Security Documents and release such Unrestricted
Subsidiary as a Guarantor.
Section 12.02 Principal Subsidiaries. (a) On the Effective
Date, Principal Subsidiaries shall consist of the Subsidiaries listed as such on
Schedule 5.01(b).
(b) Subject to the provisions of Section 8.02(d)(ii)(S), upon
the occurrence of the last of each of the following events with respect to a
Subsidiary organized under the laws of any jurisdiction within the United States
or any state thereof, such Subsidiary shall become a Principal Subsidiary: (i)
all of the Voting Stock of the Subsidiary owned by the Borrower or Restricted
Subsidiaries is pledged to secure the Loans under the Security Documents and
(ii) notice shall have been received by the Administrative Agent.
(c) Subject to the provisions of Section 8.02(d)(ii)(S), upon
the occurrence of the last of each of the following events with respect to a
Subsidiary organized under the laws of a jurisdiction outside the United States,
such Subsidiary shall become a Principal Subsidiary: (i) the lesser of the
Voting Stock owned by the Borrower or Restricted Subsidiaries or 66% of the
Voting Stock of the Subsidiary is pledged to secure the Loans under the Security
Documents to the extent legally permissible, except as determined by the
Administrative Agent to be impractical and (ii) notice of the foregoing shall
have been received by the Administrative Agent.
(d) Subject to the provisions of Section 8.02(d)(ii)(T), upon
the occurrence of the last of each of the following events a Principal
Subsidiary shall become an Unrestricted Subsidiary voluntarily: (i) the
Principal Subsidiary is designated as an Unrestricted Subsidiary by the Board of
Directors of the Parent and (ii) notice of the foregoing shall have been
received by the Administrative Agent. Upon conversion to a Unrestricted
Subsidiary pursuant to this paragraph (d), provided that no Default exists, the
Administrative Agent shall release the Capital Stock of such Unrestricted
Subsidiary from the Lien of the Security Documents.
(e) Upon the occurrence of any of the following events a
Principal Subsidiary shall automatically and without further action by any
Person become an Unrestricted Subsidiary: (i) all of the Voting Stock of the
Principal Subsidiary owned by the Borrower or Restricted Subsidiaries is not
pledged to secure the Loans under the Security Documents to the extent
legally permissible, except as determined by the Administrative Agent to be
impractical, (ii) the pledge of the Capital Stock of the Principal Subsidiary is
not enforceable or (iii) a conversion of the Principal Subsidiary to an
Unrestricted Subsidiary pursuant to Section 9.01; provided that a conversion
under this paragraph is deemed to be an Investment in Unrestricted Subsidiaries
under Section 8.02(d)(ii)(T) as of the date of such conversion whether or not
such an Investment is permitted pursuant to that Section.
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Section 12.03 Designated Foreign Subsidiaries. (a) On the
Effective Date, Designated Foreign Subsidiaries shall consist of the
Subsidiaries listed as such on Schedule 5.01(b).
(b) Upon the occurrence of the last of each of the following
events with respect to a Subsidiary organized under the laws of a jurisdiction
outside the United States, such Subsidiary shall become a Designated Foreign
Subsidiary: (i) the Subsidiary becomes a Wholly Owned Subsidiary of the
Borrower, (ii) the Subsidiary is designated as Designated Foreign Subsidiary by
the Board of Directors of the Parent, (iii) none of the Capital Stock of the
Subsidiary is pledged as collateral to any Person other than a Consolidated
Group Member, and (iv) notice of the foregoing shall have been received by the
Administrative Agent.
(c) Upon the occurrence of any of the following events, a
Designated Foreign Subsidiary shall automatically and without further action by
any Person become an Unrestricted Subsidiary: (i) the Designated Foreign
Subsidiary shall cease to be a Wholly Owned Subsidiary of the Borrower, (ii) any
of the Capital Stock of the Subsidiary is pledged as collateral to any Person
other than a Consolidated Group Member or the Lenders or L/C Issuer or (iii) a
conversion of the Designated Foreign Subsidiary to an Unrestricted Subsidiary
pursuant to Section 9.01; provided that a conversion under this paragraph is
deemed to be an Investment in Unrestricted Subsidiaries under Section
8.02(d)(ii)(T) as of the date of such conversion whether or not such an
Investment is permitted pursuant to that Section.
(d) Subject to the provisions of Section 8.02(d)(ii)(T), upon
the occurrence of the last to occur of the following events, a Designated
Foreign Subsidiary shall become an Unrestricted Subsidiary voluntarily: (i) the
Designated Foreign Subsidiary is designated as an Unrestricted Subsidiary by the
Board of Directors of the Parent and (ii) notice of the foregoing shall have
been received by the Administrative Agent.
Section 12.04 Temporary Restricted Subsidiaries. On the
Effective Date, Temporary Restricted Subsidiaries shall consist of Subsidiaries
which are listed as such on Schedule 5.01(b) all of whose Voting Stock is
pledged to secure the Loans under the Security Documents but which Subsidiaries
have not otherwise Guaranteed the Loans or pledged all of their assets to secure
the Loans under the Security Documents.
Section 12.05 Administrative Agent Duties. The Administrative
Agent shall keep a register of Restricted Subsidiaries, Temporary Restricted
Subsidiaries, Principal Subsidiaries and Designated Foreign Subsidiaries under
the Agreement.
Section 12.06 Additional Subsidiaries. If any additional
Subsidiary of the Borrower is formed or acquired after the Effective Date, the
Parent will notify the Administrative Agent and the Lenders thereof and such
Subsidiary shall be deemed an Unrestricted Subsidiary until such time as the
Subsidiary becomes a Restricted Subsidiary, Principal Subsidiary or Designated
Foreign Subsidiary pursuant to this Article XII.
Section 12.07 Impracticality. For purposes of this Article
XII, the Administrative Agent shall consider the following factors in the
determination of when an action is "impractical": the cost and difficulty of
such action, including potential tax consequences and administrative time and
effort, the benefit of such action to the Lenders, Administrative Agent and L/C
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Issuer and the legal viability of such action including obligations and
restrictions under licenses.
Section 12.08 Conversions Upon Prepayment. In accordance with
other provisions of this Article XII at the time of, or substantially
simultaneously with a Permitted Complete Vendor Facility Prepayment of a Vendor
Facility Debt Tranche, each Vendor Facility Obligor in respect thereof shall
become a Restricted Subsidiary and each other Person in the Vendor Facility
Group shall be designated by the Borrower as a Restricted Subsidiary, Principal
Subsidiary or Designated Foreign Subsidiary (or, failing any such designation,
shall be deemed designated an Unrestricted Subsidiary), provided that (a) no
more than 10% of the assets financed by such Vendor Facility Debt Tranche shall
be owned by members of such Vendor Facility Group that remain Unrestricted
Subsidiaries and (b) no more than 20% of the assets financed by such Vendor
Facility Debt owned by members of such Vendor Facility Group that are or become
Principal Subsidiaries or Designated Foreign Subsidiaries except, in the case of
either clause (a) or (b) above, as may be otherwise permitted under this
Agreement. Any designation of a Vendor Facility Group member under this Section
12.08 shall not be deemed an Investment under Section 8.02(d). The calculations
under this Section 12.08 for the determination of the percentage of assets owned
by a Person shall be based on the purchase price of the assets and other costs
directly attributable or allocable to the acquisition of such assets.
ARTICLE XIII.
Miscellaneous
Section 13.01 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 13.02 WAIVER OF JURY TRIAL. EACH OF THE LOAN PARTIES,
THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVES TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AGREEMENT, THE NOTES OR THE RELATIONSHIPS ESTABLISHED
HEREUNDER.
Section 13.03 Jurisdiction and Venue; Service of Process. (a)
Each of the Loan Parties, the Borrower, the Administrative Agent and the Lenders
each hereby irrevocably submits to the non-exclusive jurisdiction of any state
or federal court in the Borough of Manhattan, The City of New York for the
purpose of any suit, action, proceeding or judgment relating to or arising out
of any Credit Document and to the laying of venue in the Borough of Manhattan,
The City of New York. Each of the Loan Parties, the Administrative Agent and the
Lenders each hereby irrevocably waives, to the fullest extent permitted by
applicable law, any objection to the laying of the venue of any such suit,
action or proceeding brought in the aforesaid courts and hereby irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
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(b) Each of the Loan Parties agrees that service of process in
any such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to it at its address set forth in Section 13.08, or to such
Loan Party at such other address of which the Administrative Agent shall have
been notified pursuant thereto. Each Loan Party further agrees that nothing
herein shall affect the right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any other jurisdiction; and
(c) Each Loan Party waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action
or proceeding referred to in this subsection any special, exemplary, punitive or
consequential damages.
Section 13.04 Set off. Each Loan Party hereby authorizes each
Lender (including each Lender in its capacity as a purchaser of a participation
interest pursuant to Section 4.02(e)) upon the occurrence of an Event of Default
and at any time and from time to time during the continuance thereof, to the
fullest extent permitted by law, to set off and apply any and all deposits
(whether general or special, time or demand, provisional or final and in
whatever currency) at any time held, and other Indebtedness at any time owing,
by such Lender to or for the credit or the account of any of the Loan Parties
against any of the obligations of such Loan Party, now or hereafter existing
under any Credit Document, held by such Lender, irrespective of whether such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section 13.04
are in addition to other rights and remedies (including other rights of set off)
which such Lender may have. Any Lender exercising its rights under this Section
13.04 shall give notice thereof to each of the Loan Parties and the
Administrative Agent concurrently with or prior to the exercise of such rights;
provided that failure to give such notice shall not affect the validity of such
exercise.
Section 13.05 Confidentiality. Each Lender, the L/C Issuer and
the Administrative Agent agrees (on behalf of itself and each of its affiliates,
directors, officers, employees and representatives) to keep confidential, in
accordance with their customary procedures for handling their own confidential
information, any Confidential Information; provided that the Administrative
Agent, the L/C Issuer and Lenders may: (a) make such disclosures as they are
required by law to make; (b) disclose Confidential Information on a confidential
basis to their accountants, affiliates, attorneys and other advisors in each
case who need to know such Confidential Information and to bank examiners; (c)
disclose Confidential Information to any Assignee or Participant (or prospective
Assignee or Participant) so long as such Assignee or Participant (or prospective
Assignee or Participant) agrees to keep confidential any Confidential
Information on a basis substantially similar to the basis on which the
Administrative Agent, the L/C Issuer and Lenders have agreed hereunder to keep
information confidential; (d) disclose Confidential Information to any direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the
provisions of this Section 13.05), and (e) make disclosures of Confidential
Information in connection with any litigation relating to enforcement of the
Credit Documents.
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The Loan Parties acknowledge that the Lenders, L/C Issuer and
the Administrative Agent may be providing debt financing, equity capital or
other services (including financial advisory services) to other companies or
entities in respect of which the Loan Parties may have conflicting interests
regarding the transactions herein described or otherwise. However, the Lenders,
L/C Issuer and the Administrative Agent shall not furnish Confidential
Information to any of their other customers, nor will they make available to the
Loan Parties confidential information that they have obtained or may obtain from
any other customer.
Section 13.06 Amendments and Waivers. Any provision of this
Agreement and the other Credit Documents may be amended, modified, supplemented
or waived, but only by a written amendment and the other Credit Documents or
supplement, or written waiver, signed by the Parent, the Borrower and either the
Required Lenders (and, if the rights or duties of the Administrative Agent are
affected thereby, by the Administrative Agent), or the Administrative Agent with
the consent of the Required Lenders; provided, however, that no such amendment,
modification, or waiver shall, (a) unless signed by all the Lenders, or by the
Administrative Agent with the consent of all the Lenders, (i) increase or
decrease the Commitment of any Lender or subject any Lender to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone any scheduled payment of principal of or interest
on any Loan or any fees hereunder, (iv) postpone any reduction or termination of
any Commitment, (v) change the definition of "Required Lenders", (vi) release
any of the Guarantees granted pursuant to Article VI or any material Collateral
(unless such release is otherwise permitted under any of the Credit Documents)
or (vii) amend, modify, supplement or waive the provisions of this Section 13.06
or any other provision of this Agreement or the Credit Documents requiring the
consent of all the Lenders and (b) unless signed by Lenders holding more than
50% of the sum of the unused portion of the Total Commitment and the total
outstanding Loans for each class of Loans that is adversely affected thereby,
amend, modify, supplement or waive the provisions of Section 2.06.
Section 13.07 Cumulative Rights; No Waiver. Each and every
right granted to the Administrative Agent, the L/C Issuer and the Lenders
hereunder or under any other document delivered in connection herewith, or
allowed them by law or equity, shall be cumulative and not exclusive and may be
exercised from time to time. No failure on the part of the Administrative Agent,
the L/C Issuer or any Lender to exercise, and no delay in exercising, any right
will operate as a waiver thereof, nor will any single or partial exercise by the
Administrative Agent, the L/C Issuer or any Lender of any right preclude any
other or future exercise thereof or the exercise of any other right.
Section 13.08 Notices. (a) Any communication, demand or notice
to be given hereunder will be duly given when delivered in writing or by
telecopy to a party at its address as indicated below or such other address as
such party may specify in a notice to each other party hereto. A communication,
demand or notice given pursuant to this Section 13.08 shall be addressed:
105
<PAGE>
If to the Parent, at
Winstar Communications, Inc.
The Winstar Building
685 Third Avenue, 9th Floor
New York, NY 10017
Telecopy: (212) 584-4001
Attention: Treasurer and
General Counsel
If to the Borrower, a Restricted Subsidiary, Principal Subsidiary,
Vendor Facility Obligor, Designated Foreign Subsidiary or Securing
Party (as defined in the Pledge and Security Agreement) at
c/o Winstar Communications, Inc.
The Winstar Building
685 Third Avenue, 9th Floor
New York, NY 10017
Telecopy: (212) 584-4001
Attention: Treasurer and
General Counsel
If to the Administrative Agent, at
The Bank of New York
One Wall Street, 18th Floor
New York, New York 10286
Telecopy: (212) 635-6365
Attention: Genoveso Caviness
Agency Function Administration
With a copy to (for all notices except those pursuant
to Article II):
The Bank of New York
One Wall Street, 18th Floor
New York, New York 10286
Telecopy: (212) 635-8525
Attention: Brendan Nedzi
106
<PAGE>
If to the Collateral Agent, at
The Bank of New York
One Wall Street, 18th Floor
New York, New York 10286
Telecopy: (212) 635-6365
Attention: Genoveso Caviness
Agency Function Administration
With a copy to (for all notices except those pursuant to
Article II):
The Bank of New York
One Wall Street, 18th Floor
New York, New York 10286
Telecopy: (212) 635-8525
Attention: Brendan Nedzi
If to the L/C Issuer, at
The Bank of New York
One Wall Street, 18th Floor
New York, New York 10286
Telecopy: (212) 635-6365
Attention: Genoveso Caviness
Agency Function Administration
With a copy to (for all notices except those pursuant to
Article II):
The Bank of New York
One Wall Street, 18th Floor
New York, New York 10286
Telecopy: (212) 635-8525
Attention: Brendan Nedzi
If to any Lender, at its address indicated on Schedule
1.01(c)-1 hereto, or at such other address as may be designated by such Lender
in an Administrative Questionnaire or other appropriate writing, delivered to
the Administrative Agent and the Borrower.
107
<PAGE>
This Section 13.08 shall not apply to notices referred to in
Article II of this Agreement, except to the extent set forth therein.
(b) Unless otherwise provided to the contrary herein, any
notice which is required to be given in writing pursuant to the terms of this
Agreement may be given by telecopy.
Section 13.09 Separate Debts. The amounts payable by the
Borrower at any time under the Credit Documents to each Lender shall be a
separate and independent debt and each Lender shall be entitled to protect and
enforce its rights arising under the Credit Documents, 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.
Section 13.10 Certain Acknowledgments. The Borrower hereby
confirms and acknowledges that (a) neither the Administrative Agent, the L/C
Issuer nor any Lender has any fiduciary or similar relationship to the Borrower
and that the relationship established by the Credit Documents between the
Administrative Agent, the L/C Issuer and the Lenders, on the one hand, and the
Borrower, on the other hand, is solely that of creditors and debtor and (b) that
no joint venture exists among the Lender or among the Borrower and the Lenders.
Section 13.11 Separability. In case any one or more of the
provisions contained in any Credit Document shall be invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions contained herein or in any other
Credit Document shall not in any way be affected or impaired thereby.
Section 13.12 Parties in Interest. This Agreement shall be
binding upon and inure to the benefit of each of the Loan Parties and the
Lenders and their respective successors and assigns, except that the Borrower
may not assign any of its rights hereunder without the prior written consent of
all of the Lenders, and any purported assignment by the Borrower without such
consent shall be void.
Section 13.13 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered shall be an
original, but all the counterparts shall together constitute one and the same
instrument. Manual delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
108
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
PARENT:
WINSTAR COMMUNICATIONS, INC.
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Senior Vice President, Treasurer
BORROWER:
WCI CAPITAL CORP.
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
GUARANTORS:
WINSTAR WIRELESS, INC.
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
WINSTAR A/R SPE, LLC
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
WINSTAR A/R ACCOUNT PARTY, LLC
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
WINSTAR BROADBAND ACQUISITION
1999, LLC
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
109
<PAGE>
WINSTAR NETWORK EXPANSION, LLC
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
WWI LICENSE HOLDING, INC.
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
WINSTAR EQUIPMENT CORP.
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
WINSTAR EQUIPMENT II CORP.
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
WINSTAR WIRELESS FIBER CORP.
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
WINSTAR LMDS, LLC
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
110
<PAGE>
WINSTAR CREDIT CORP.
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
WINSTAR SWITCH ACQUISITION CORP.
/s/ Frederic E. Rubin
By: _____________________________________
Name: Frederic E. Rubin
Title: Vice President, Treasurer
WINSTAR NEW MEDIA COMPANY, INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
WINSTAR INTERACTIVE MEDIA SALES,
INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
WINSTAR EASYNET INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
WINSTAR INTERACTIVE VENTURES I,
INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
WINSTAR GLOBAL MEDIA, INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
111
<PAGE>
WINSTAR RADIO NETWORKS, INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
WALT BABY LOVE PRODUCTIONS, INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
NON FICTION FILMS INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
FOX/LORBER ASSOCIATES, INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
WELLSPRING MEDIA, INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
WINSTAR BROADCASTING CORP.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
SPORTSFAN RADIO NETWORK INC.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Assistant
Secretary
WINSTAR GOVERNMENT SOLUTIONS,
LLC
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Secretary
WINSTAR MIDCOM ACQUISITION CORP.
/s/ Kenneth J. Zinghini
By: _____________________________________
Name: Kenneth J. Zinghini
Title: Vice President and Secretary
113
<PAGE>
LENDERS:
THE BANK OF NEW YORK, as
Lender, Letter of Credit
Issuer, Administrative
Agent and Collateral Agent
/s/ Geoffrey C. Brooks
By: ________________________________
Name: Geoffrey C. Brooks
Title: Senior Vice President
CIBC INC.
/s/ Michele E. Roller
By: ________________________________
Name: Michele E. Roller
Title: Executive Director CIBC
World Markets Corp. As Agent
CITICORP NORTH AMERICA, INC., as
Lender and Syndication Agent
/s/ J. Douglas Harvey
By: ________________________________
Name: J. Douglas Harvey
Title: Vice President and Managing
Director
CREDIT SUISSE FIRST BOSTON
/s/ David L. Sawyer
By: ________________________________
Name: David L. Sawyer
Title: Vice President
/s/ Chris Horgan
By: ________________________________
Name: Chris Horgan
Title: Vice President
ABN AMRO BANK N.V.
/s/ David C. Carrington
By: ________________________________
Name: David C. Carrington
Title: Group Vice President
/s/ Thomas M. Bye
By: ________________________________
Name: Thomas M. Bye
Title: Senior Vice President
114
<PAGE>
BANK OF NOVA SCOTIA
/s/ Ian A. Hodgart
By: ________________________________
Name: Ian A. Hodgart
Title: Authorized Signatory
BARCLAYS BANK PLC
/s/ Daniele Iacovone
By: ________________________________
Name: Daniele Iacovone
Title: Director
CREDIT LYONNAIS NEW YORK BRANCH
/s/ Patrick McCarthy
By: ________________________________
Name: Patrick McCarthy
Title: Vice President
115
<PAGE>
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
/s/ William E. Lambert
By: ________________________________
Name: William E. Lambert
Title: Vice President
/s/ Helen Ng, P.E.
By: ________________________________
Name: Helen Ng, P.E.
Title: Assistant Vice President
FLEET NATIONAL BANK
/s/ Shepard D. Rainie
By: ________________________________
Name: Shepard D. Rainie
Title: Group Manager
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
/s/ John Kowalozuk
By: ________________________________
Name: John Kowalozuk
Title: Vice President
ROYAL BANK OF CANADA
/s/ Mickey Chadha
By: ________________________________
Name: Mickey Chadha
Title: Manager
116
<PAGE>
SOCIETE GENERALE
/s/ Chris Cona
By: ________________________________
Name: Chris Cona
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
/s/ Carolyn R. Faeth
By: ________________________________
Name: Carolyn R. Faeth
Title: Vice President
IBM CREDIT CORPORATION
/s/ Ronald J. Bachner
By: ________________________________
Name: Ronald J. Bachner
Title: Manager, Commercial and
Specialty Financing Sales
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
/s/ Andrew C. Liggio
By: ________________________________
Name: Andrew C. Liggio
Title: Authorized Signatory
VAN KAMPEN PRIME RATE INCOME
TRUST
By: Van Kampen Investment Advisory Corp.
/s/ Brian T. Buschner
By: ________________________________
Name: Brian T. Buschner
Title: Manager Operations and
Compliance
117
<PAGE>
VAN KAMPEN SENIOR INCOME TRUST
By: Van Kampen Investment Advisory Corp.
/s/ Brian T. Buschner
By: ________________________________
Name: Brian T. Buschner
Title: Manager Operations and
Compliance
CIBC WORLD MARKETS CORP., as
Syndication Agent
/s/ Michele E. Roller
By: ________________________________
Name: Michele E. Roller
Title: CIBC World Markets Corp.
As Agent
118
<PAGE>
Exhibit 2.01(b)
Form of Revolving Credit Request
[Date]
The Bank of New York,
as Administrative Agent
One Wall Street
New York, New York 10286
Attention: ______________
Revolving Credit Request
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Term Loan Agreement, dated as
of May 4, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Winstar
Communications, Inc., a Delaware corporation (the "Parent"), WCI Capital Corp.,
a Delaware corporation (the "Borrower"), each of the entities listed on the
signature pages thereof under the heading "Guarantors" and the Additional
Guarantors from time to time parties thereto, each of the Lenders from time to
time parties thereto, The Bank of New York, as letter of credit issuer,
administrative agent and collateral agent for the Lenders, Citicorp North
America, Inc., as syndication agent for the Lenders, and CIBC World Markets
Corp. and Credit Suisse First Boston, as documentation agents for the Lenders.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
The Borrower hereby gives you notice, pursuant to Section 2.01(b) of the
Credit Agreement, that it requests Revolving Credit Loans, and in that
connection sets forth below the terms on which such Revolving Credit Loans are
requested to be made:
(A) Borrowing Date [Must be a Business Day]
-------------------------
(B) Aggregate Principal Amount1 $______________________
--------
1 In the case of Eurodollar Loans, must be equal to $5.0 million or an
integral multiple of $100,000 in excess thereof and, in the case of ABR
Loans, must be equal to $1.0 million or an integral multiple of $100,000 in
excess thereof.
<PAGE>
(C) Interest Rate Basis [ABR] [Eurodollar Loan]
-----------------------
(D) Interest Period and the
last day thereof2 _______________________
(E) Applicable Margin _______________________
The ratio of Consolidated Total Debt to Consolidated Annualized EBITDA as
of the date hereof is __________.
Very truly yours,
WCI CAPITAL CORP.
By:______________________
Name:
Title:
--------
2 One, two, three or six months (or with consent of Lenders, nine or twelve
months) in the case of Eurodollar Loans; Not applicable to ABR Loans.
-2-
<PAGE>
Exhibit 2.02(b)
Form of Term Loan A Loan Request
[Date]
The Bank of New York,
as Administrative Agent
One Wall Street
New York, New York 10286
Attention: ______________
Term Loan A Loan Request
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Term Loan Agreement, dated as
of May 4, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Winstar
Communications, Inc., a Delaware corporation (the "Parent"), WCI Capital Corp.,
a Delaware corporation (the "Borrower"), each of the entities listed on the
signature pages thereof under the heading "Guarantors" and the Additional
Guarantors from time to time parties thereto, each of the Lenders from time to
time parties thereto, The Bank of New York, as letter of credit issuer,
administrative agent and collateral agent for the Lenders, Citicorp North
America, Inc., as syndication agent for the Lenders, and CIBC World Markets
Corp. and Credit Suisse First Boston, as documentation agents for the Lenders.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
The Borrower hereby gives you notice, pursuant to Section 2.02(b) of the
Credit Agreement, that it requests Term Loan A Loans, and in that connection
sets forth below the terms on which such Term Loan A Loans are requested to be
made:
(A) Borrowing Date [Must be a Business Day]
-------------------------
(B) Aggregate Principal Amount1 $______________________
(C) Interest Rate Basis [ABR] [Eurodollar Loan]
-----------------------
<PAGE>
(D) Interest Period and the
last day thereof1 __________________________
(E) Applicable Margin __________________________
Very truly yours,
WCI CAPITAL CORP.
By:______________________
Name:
Title:
--------
1 One, two, three or six months (or with consent of Lenders, nine or twelve
months) in the case of Eurodollar Loans; Not applicable to ABR Loans.
-2-
<PAGE>
Exhibit 2.03(b)
Form of Term Loan B Loan Request
[Date]
The Bank of New York,
as Administrative Agent
One Wall Street
New York, New York 10286
Attention: ______________
Term Loan B Loan Request
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Term Loan Agreement, dated as
of May 4, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Winstar
Communications, Inc., a Delaware corporation (the "Parent"), WCI Capital Corp.,
a Delaware corporation (the "Borrower"), each of the entities listed on the
signature pages thereof under the heading "Guarantors" and the Additional
Guarantors from time to time parties thereto, each of the Lenders from time to
time parties thereto, The Bank of New York, as letter of credit issuer,
administrative agent and collateral agent for the Lenders, Citicorp North
America, Inc., as syndication agent for the Lenders, and CIBC World Markets
Corp. and Credit Suisse First Boston, as documentation agents for the Lenders.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
The Borrower hereby gives you notice, pursuant to Section 2.03(b) of the
Credit Agreement, that it requests Term Loan B Loans, and in that connection
sets forth below the terms on which such Term Loan B Loans are requested to be
made:
(A) Borrowing Date [Effective Date]
-----------------
(B) Aggregate Principal Amount $[475,000,000]
--------------
(C) Interest Rate Basis [ABR] [Eurodollar Loan]
-----------------------
<PAGE>
(D) Interest Period and the
last day thereof1 _______________________
(E) Applicable Margin ________________________
Very truly yours,
WCI CAPITAL CORP.
By:__________________________
Name:
Title:
--------
1 One, two, three or six months (or with consent of Lenders, nine or twelve
months) in the case of Eurodollar Loans; Not applicable to ABR Loans.
-2-
<PAGE>
Exhibit 2.07(b)
Form of L/C Request
[Date]
The Bank of New York,
as Administrative Agent
One Wall Street
New York, New York 10286
Attention: ______________
L/C Request
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Term Loan Agreement, dated as
of May 4, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Winstar
Communications, Inc., a Delaware corporation (the "Parent"), WCI Capital Corp.,
a Delaware corporation (the "Borrower"), each of the entities listed on the
signature pages thereof under the heading "Guarantors" and the Additional
Guarantors from time to time parties thereto, each of the Lenders from time to
time parties thereto, The Bank of New York, as letter of credit issuer,
administrative agent and collateral agent for the Lenders, Citicorp North
America, Inc., as syndication agent for the Lenders, and CIBC World Markets
Corp. and Credit Suisse First Boston, as documentation agents for the Lenders.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
The Borrower hereby gives you notice, pursuant to Section 2.07(b) of the
Credit Agreement, that it requests that the L/C Issuer issue a Letter of Credit,
and in that connection sets forth below the terms on which such Letter of Credit
is requested to be issued:
(A) Issue Date [Must be a Business Day]
-------------------------
(B) Expiration Date1
(C) Amount of L/C Obligation $_______________________
(D) Beneficiary
--------
1 Must be no later than the Business Day four Business Days prior to the
Revolving Credit Commitment Termination Date.
<PAGE>
The Borrower hereby certifies that (A) the aggregate amount of L/C
Obligations of all the Lenders currently outstanding does not exceed $75,000,000
and (B) the sum of the aggregate amount of the L/C Obligations of all the
Lenders currently outstanding and the aggregate amount of the Revolving Credit
Loans of all the Lenders currently outstanding does not exceed the Total
Revolving Credit Commitment currently in effect.
Very truly yours,
WCI CAPITAL CORP.
By:______________________
Name:
Title:
-2-
<PAGE>
Exhibit 3.01(b)
Form of Conversion Request
[Date]
The Bank of New York,
as Administrative Agent
One Wall Street
New York, New York 10286
Attention: _____________
Conversion Request
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Term Loan Agreement, dated as
of May 4, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Winstar
Communications, Inc., a Delaware corporation (the "Parent"), WCI Capital Corp.,
a Delaware corporation (the "Borrower"), each of the entities listed on the
signature pages thereof under the heading "Guarantors" and the Additional
Guarantors from time to time parties thereto, each of the Lenders from time to
time parties thereto, The Bank of New York, as letter of credit issuer,
administrative agent and collateral agent for the Lenders, Citicorp North
America, Inc., as syndication agent for the Lenders, and CIBC World Markets
Corp. and Credit Suisse First Boston, as documentation agents for the Lenders.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
The Borrower hereby requests, pursuant to Section 3.01(b) of the Credit
Agreement, that on __________, 200_:
(1) $___,000,000 of the presently outstanding principal amount of Revolving
Credit Loans originally made on ___________, 20__ [and $_________ of the
presently outstanding principal amount of the Revolving Credit Loans originally
made on ________, 20__],
(2) presently being maintained as [ABR] [Eurodollar] Loans,
(3) be [converted into] [continued as],
<PAGE>
(4) [Eurodollar Loans having an Interest Period of [NUMBER] months] [ABR
Loans].
Very truly yours,
WCI CAPITAL CORP.
By:__________________________
Name:
Title:
-2-
<PAGE>
Exhibit 5.01(s)-1
BLOCKED ACCOUNT AGREEMENT
[DATE]
Name and Address of
Depository Bank
Attn:
Telephone
Telecopier
Re: [Name of Winstar Entity]
Account No.,
Account No.,
Account No.,
and Account No.
----------------------------------
Gentlemen:
[Name of Winstar Pledgor Company] (together with its successors and
assigns, "Securing Party") has entered or is about to enter into financing
arrangements with The Bank of New York in its capacity as Collateral Agent (the
"Collateral Agent") pursuant to the Revolving Credit and Term Loan Agreement,
dated as of May 4, 2000 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Winstar
Communications, Inc., a Delaware corporation ("Parent"), WCI Capital Corp., a
Delaware corporation ("Borrower"), each of the entities listed on the signature
pages thereof under the heading "Guarantors" and the Additional Guarantors from
time to time parties thereto, each of the Lenders from time to time parties
thereto, The Bank of New York, as letter of credit issuer, administrative agent
and collateral agent for the Lenders, Citicorp North America, Inc., as
syndication agent for the Lenders, and CIBC World Markets Corp. and Credit
Suisse First Boston, as documentation agents for the Lenders. Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed thereto
in the Credit Agreement.
Pursuant to the Credit Agreement the Lenders may from time to time make
loans and advances and provide other financial accommodations to the Borrower
secured by, among other things, all right, title and interest of the Securing
Party (as defined in the Pledge and Security Agreement) in and to all present
and future accounts, contract rights, general intangibles, documents,
instruments, chattel paper, deposit and other bank accounts and proceeds of the
foregoing.
<PAGE>
The Securing Party has established with [insert bank name] (together with
its successors and assigns, the "Bank") the above-referenced accounts
(collectively, the "Accounts"). Pursuant to the Pledge and Security Agreement
the Securing Party has granted to the Collateral Agent for the benefit of the
Secured Parties sole dominion and control of the Accounts. In connection with
its financing arrangements, the Securing Party has agreed with the Collateral
Agent for the benefit of the [Secured Parties under the Pledge and Security
Agreement] to create a security interest in favor of the Secured Parties in the
Accounts. In the event of any inconsistency between this letter agreement and
the terms of any other agreement between the Securing Party and Bank, the terms
of this letter agreement shall control.
In order for the Securing Party to comply with the requirements of the
Collateral Agent and Lender under its financing arrangements with Borrower, the
Collateral Agent and the Securing Party request that Bank agree, for the benefit
of the Collateral Agent, the Secured Parties and Securing Party, as follows:
1. Bank has established and will maintain the Accounts for the benefit of
the Securing Party and the Collateral Agent. The records of Bank do not reflect,
and it has not received any notice of, any assignment of, or pledge or security
interest in the Accounts or any checks, drafts or other instruments at any time
received for deposit in, or any amounts at any time in, the Accounts, other than
the pledge and security interest of the Collateral Agent for itself and the
ratable benefit of the Lenders referred to herein.
2. The Securing Party has granted to the Collateral Agent for itself and
the ratable benefit of the Secured Parties a security interest in and lien upon,
and pledged to the Collateral Agent for itself and the ratable benefit of the
Secured Parties, its assets as described above, which include checks, drafts and
other instruments received for deposit in the Accounts, and all cash balance and
other amounts at any time in or attributable to the Accounts, as security for
all existing and hereafter arising obligations, liabilities and indebtedness of
Securing Parties to the Collateral Agent and the Secured Parties. Bank
acknowledges receipt of notice of the security interests and liens of the
Collateral Agent.
3. The Accounts shall at all times be under the sole dominion and control
of the Collateral Agent. However, until Bank receives a written notice from the
Collateral Agent that an Event of Default has occurred and is continuing and
that the Collateral Agent will exercise exclusive control over each Account, the
Collateral Agent hereby authorizes the Bank to distribute to the Securing Party
any and all property on deposit from time to time in such Account and may comply
with any and all directives concerning each Account originated by the Securing
Party.
4. At any time following receipt of a written notice from the Collateral
Agent to the Bank stating that an Event of Default has occurred and is
continuing and until receipt of a cessation notice from the Collateral Agent
stating that the Event of Default has been cured and is no longer continuing,
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<PAGE>
none of the officers, agents or other representatives of Securing Party or any
of its affiliates shall have any authority to withdraw any amounts from, to draw
upon or otherwise exercise any authority or powers with respect to the Accounts
and all amounts held therein except in such specific instances as may be
authorized by the Collateral Agent [in writing and the Securing Party shall not
give, and Bank shall not honor, any instruments or instructions with respect to
the Securing Party Accounts other than those approved [in writing] by Collateral
Agent.
5. At any time following receipt of a cessation notice from the Collateral
Agent to the Bank stating that the Event of Default has been cured and is no
longer continuing and until receipt of a new written notice from the Collateral
Agent to the Bank stating that an Event of Default has occurred and is
continuing, the Collateral Agent hereby authorizes the Bank to resume making
distributions to the Securing Party of any and all property on deposit from time
to time in such Account and may comply with any and all directives concerning
each Account originated by the Securing Party, in accordance with paragraph 3
above.
6. At such time or times as the Collateral Agent may request in writing,
Bank will promptly report to the Collateral Agent the amounts deposited in the
Accounts and will furnish to Collateral Agent any copies of bank statements,
deposit tickets, deposited items, debit and credit advices and other records
maintained by Bank under the terms of its arrangements with Securing Party (as
in effect on the date hereof). The Collateral Agent will reimburse Bank for its
reasonable expenses in providing such items to the Collateral Agent.
7. All of the customary fees, charges and expenses in connection with the
Accounts shall be billed by Bank to Securing Party on a monthly basis. Securing
Party shall pay such fees, charges and expenses directly to Bank. The dollar
amount of any checks deposited in the Accounts and returned unpaid shall be
reimbursed by the Securing Party to Bank by check or cash on a daily basis by
the Securing Party upon notification from Bank. If Securing Party fails to
reimburse Bank for any check or fails to pay any reasonable fees, charges or
expenses in connection with the Accounts, the Collateral Agent (for the account
of Securing Party) shall reimburse Bank for such amount to the extent the
Collateral Agent received payment in respect thereof in the case of any check
returned unpaid and in any case only so long as the Collateral Agent has
received notice from Bank of the failure of Securing Party to reimburse Bank
prior to the termination of the financing arrangements of the Collateral Agent
and Lenders with Borrower. Bank shall not for any reason charge, debit or
offset, or exercise any lien rights, against any checks, drafts or other items
received for deposit in or against any amounts in or attributable to the
Accounts.
8. To the maximum extent permitted by law, Bank shall not be liable for:
(a) events or circumstances beyond its reasonable control, or (b) indirect,
special or consequential damages, even if Bank is advised of the possibility of
damages.
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9. The Collateral Agent and Lenders are relying upon this letter agreement
in providing financing to Borrower and this letter agreement shall be binding
upon Bank and its successors and assigns and inure to the benefit of Collateral
Agent and Lenders and their respective successors and assigns. This letter
cannot be changed, modified or terminated except by written agreement signed by
Collateral Agent.
10. Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
11. Notices. Any communication, demand or notice to be given hereunder will
be duly given when delivered in writing or by telecopy to a party at its address
as indicated below or such other address as such party may specify in a notice
to each other party hereto. A communication, demand or notice given pursuant to
this Section 11 shall be addressed:
If to the Securing Party, at
Telecopy:
Attention:
If to the Collateral Agent, at
Telecopy:
Attention:
If to the Bank, at
Telecopy:
Attention:
Any party may change its address for notices in the manner set forth above.
12. Termination. The rights and powers granted herein to the Collateral
Agent have been granted in order to perfect its security interests in the
Accounts are powers coupled with an interest and will neither be affected by the
bankruptcy of the Securing Party nor by the lapse of time. The obligations of
the Bank hereunder shall continue in effect until the security interests of the
Collateral Agent in the Account has been terminated pursuant to the terms of the
Pledge and Security Agreement and the Collateral Agent has notified the Bank of
such termination in writing.
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<PAGE>
Kindly indicate your agreement to the foregoing by signing the enclosed
copy of this letter in the space provided below and returning it to us.
Very truly yours,
THE BANK OF NEW YORK,
as Collateral Agent
By:________________________
Title: ____________________
AGREED:
[DEPOSITORY BANK] [SECURING PARTY]
By:______________________________ By:_________________________
Title:___________________________ Title:______________________
Address:
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<PAGE>
Exhibit 5.01(s)-2
Form of Securities Account Control Agreement
SECURITIES ACCOUNT CONTROL AGREEMENT, dated as of [_____], 2000 (this
"Agreement") among The Bank of New York, (the "Collateral Agent"), [Name of
Winstar Pledgor Company] (the "Pledgor") and [Name of Institution] (the
"Securities Intermediary").
WHEREAS, pursuant to the Revolving Credit and Term Loan Agreement, dated as
of May 4, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Winstar
Communications, Inc., a Delaware corporation ("Parent"), WCI Capital Corp., a
Delaware corporation ("Borrower"), each of the entities listed on the signature
pages thereof under the heading "Guarantors" and the Additional Guarantors from
time to time parties thereto, each of the Lenders from time to time parties
thereto, The Bank of New York, as letter of credit issuer, administrative agent
and collateral agent for the Lenders, Citicorp North America, Inc., as
syndication agent for the Lenders, and CIBC World Markets Corp. and Credit
Suisse First Boston, as documentation agents for the Lenders, the Lenders have
agreed to make the loans referred to therein to the Borrower;
WHEREAS, in order to secure the due and punctual payment of the obligations
of the Borrower to the Lenders under the Credit Agreement, the Pledgor and the
Collateral Agent have entered into a Pledge and Security Agreement dated as of
May 4, 2000 (the "Security Agreement");
WHEREAS, capitalized terms used but not defined herein shall have the
respective meanings set forth in the Security Agreement, and the terms
"financial asset", "securities account" and "entitlement order" shall have the
respective meanings ascribed to them in the sections of the Uniform Commercial
Code as in effect at the date hereof in the State of New York (the "UCC")
referred to herein.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Establishment of Securities Account. The Securities Intermediary
hereby confirms that (i) it has established [for the Pledgor] account number
___________ (the "Securities Account") [with its corporate trust department],
(ii) the Securities Account is a "securities account" as such term is defined in
Section 8-501(a) of the UCC, (iii) it shall, subject to the terms of this
Agreement, treat the Collateral Agent as entitled to exercise the rights that
comprise any financial asset or other investment property credited to the
Securities Account, and (iv) all securities, security entitlements or other
financial assets delivered to it pursuant to the Security Agreement will be
promptly credited to the Securities Account.
Section 2. Financial Assets Election. The Securities Intermediary hereby
agrees with Pledgor and the Collateral Agent that each item of property (whether
investment property, security, instrument or cash) credited to the Securities
Account shall be treated as a "financial asset" within the meaning of Section
8-102(a)(9) of the UCC.
<PAGE>
Section 3. Entitlement Orders. If at any time the Securities Intermediary
shall receive an entitlement order (as defined in Section 8-102(a)(8) of the
UCC) issued by the Collateral Agent and relating to the Securities Account, the
Securities Intermediary shall comply with such entitlement order without further
consent by the Pledgor or any other person. The Collateral Agent agrees to
indemnify the Securities Intermediary and hold the Securities Intermediary
harmless from any claim or liability it may incur by having acted in accordance
with instructions given by the Collateral Agent pursuant to an entitlement
order.
Section 4. Subordination of Lien; Waiver of Set-Off. In the event that the
Securities Intermediary has or subsequently obtains by agreement, operation of
law or otherwise a security interest in the Securities Account or any security
entitlement credited thereto, the Securities Intermediary hereby agrees that
such security interest shall be subordinate to the security interest of the
Collateral Agent. The financial assets and other items deposited to the
Securities Account will not be subject to deduction, set-off, banker's lien, or
any other right in favor of any person other than the Collateral Agent[, except
that the Securities Intermediary may set off all amounts due to it in respect of
its fees and expenses for the maintenance and operation of the Securities
Account].
Section 5. Choice of Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York. Regardless of any
provision in any other agreement, New York is agreed to be the "securities
intermediary's jurisdiction" and the Securities Account (as well as the
securities entitlements related thereto) shall be governed by the laws of the
State of New York.
Section 6. Conflict with other Agreements. There are no other agreements
entered into between the Securities Intermediary and the Pledgor with respect to
the Securities Account, except for an agreement regarding fees for services in
connection with the Securities Account. In the event of any conflict between
this Agreement (or any portion thereof) and any other agreement now existing or
hereafter entered into, [including the terms of the Security Agreement,] the
terms of this Agreement shall prevail.
Section 7. Amendments. No amendment or modification of this Agreement or
waiver of any right hereunder shall be binding on any party hereto unless it is
in writing and is signed by all of the parties hereto.
Section 8. Maintenance of Securities Account. In addition to, and not in
lieu of, the obligation of the Securities Intermediary to honor entitlement
orders as provided in Section 3 hereof, the Securities Intermediary agrees to
maintain the Securities Account as follows:
(i) Until the Securities Intermediary receives a written notice in
substantially the form set forth in Exhibit A hereto (a "Notice of
Exclusive Control") from the Collateral Agent that an Event of Default has
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<PAGE>
occurred and is continuing and that the Collateral Agent will exercise
exclusive control over each Securities Account, the Securities Intermediary
may distribute to the Pledgor any and all property on deposit from time to
time in such Securities Account and may comply with any and all directives
concerning each Securities Account originated by the Pledgor.
(ii) Notice of Exclusive Control. If at any time the Collateral Agent
delivers to the Securities Intermediary a Notice of Exclusive Control and
until receipt of a cessation notice from the Administrative Agent stating
that the Event of Default has been cured and is no longer continuing (a
"Cessation Notice"), the Securities Intermediary agrees to take all
instructions with respect to the Securities Account solely from the
Collateral Agent.
(iii) Cessation Notice. At any time following receipt by the
Securities Intermediary of a Cessation Notice from the Collateral Agent and
until receipt by the Securities Intermediary of a new Notice of Exclusive
Control from the Collateral Agent stating that an Event of Default has
occurred and is continuing, the Securities Intermediary may resume making
distributions to the Pledgor of any and all property on deposit from time
to time in such Securities Account and may comply with any and all
directives concerning each Securities Account originated by the Pledgor, in
accordance with paragraph (i) above.
(iv) Voting Rights; Reinvestment. Until such time as the Securities
Intermediary receives a Notice of Exclusive Control and until receipt of a
Cessation Notice, the Pledgor shall direct the Securities Intermediary with
respect to the voting and reinvestment of any financial assets credited to
the Securities Account.
(v) Statements and Confirmations. The Securities Intermediary will
promptly send copies of all statements, confirmations and other
correspondence concerning the Securities Account and/or any financial
assets credited thereto simultaneously to each of the Pledgor and the
Collateral Agent at their respective addresses set forth in Section 12
hereof.
(vi) Tax Reporting. All items of income, gain, expense and loss
recognized in the Securities Account shall be reported to the Internal
Revenue Service and all state and local taxing authorities under the name
and taxpayer identification number of the Pledgor, unless such other
reporting is required by applicable law.
Section 9. Representations, Warranties and Covenants of the Securities
Intermediary. The Securities Intermediary hereby makes the following
representations, warranties and covenants:
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<PAGE>
(i) The Securities Account has been established as set forth in
Section 1 hereof and will be maintained in the manner set forth herein
until termination of this Agreement. The Securities Intermediary shall not
change the name or account number of the Securities Account without the
prior written consent of the Collateral Agent.
(ii) No financial asset maintained by the Securities Intermediary and
credited to the account is or will be registered in the name of the
Pledgor, payable to its order, or specially endorsed to it, except to the
extent such financial asset has been endorsed to the Securities
Intermediary or in blank.
(iii) This Agreement is the valid and legally binding obligation of
the Securities Intermediary.
(iv) The Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement with any
other person relating to the Securities Account or any financial assets
credited thereto pursuant to which it has agreed, or will agree, to comply
with entitlement orders of such person. The Securities Intermediary has not
entered into any other agreement with the Pledgor purporting to limit or
condition the obligation of the Securities Intermediary to comply with
entitlement orders as provided in Section 3 hereof.
Section 10. Successors. The terms of this Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
corporate successors and assigns.
Section 11. Notices. Any communication, demand or notice to be given
hereunder will be duly given when delivered in writing or by telecopy to a party
at its address as indicated below or such other address as such party may
specify in a notice to each other party hereto. A communication, demand or
notice given pursuant to this Section 12 shall be addressed:
If to the Pledgor, at
Telecopy:
Attention:
If to the Collateral Agent, at
Telecopy:
Attention:
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<PAGE>
If to the Securities Intermediary, at
Telecopy:
Attention:
Any party may change its address for notices in the manner set forth above.
Section 12. Termination. The rights and powers granted herein to the
Collateral Agent have been granted in order to perfect its security interests in
the Securities Account are powers coupled with an interest and will neither be
affected by the bankruptcy of the Pledgor nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
until the security interests of the Collateral Agent in the Securities Account
has been terminated pursuant to the terms of the Security Agreement and the
Collateral Agent has notified the Securities Intermediary of such termination in
writing.
Section 13. Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing and delivering one or more
counterparts.
[PLEDGOR]
By:______________________________
Name:
Title:
[COLLATERAL AGENT], as
Collateral Agent
By:______________________________
Name:
Title:
[SECURITIES INTERMEDIARY]
By:______________________________
Name:
Title:
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<PAGE>
Exhibit A
[Date]
[Name and address
of Securities Intermediary]
Attention:
Re: Notice of Exclusive Control
Ladies and Gentlemen:
As referenced in the Securities Account Control Agreement, dated as of
[__________], 2000, among [Name of Winstar Pledgor Company] (the "Pledgor"), us
and you (a copy of which is attached) we hereby give you notice that an Event of
Default has occurred and is continuing under the Credit Agreement and of our
election to establish exclusive control over securities account number
______________ (the "Securities Account") and all financial assets credited
thereto. You are hereby instructed not to accept any direction, instructions or
entitlement orders with respect to the Securities Account or the financial
assets credited thereto from any person other than the undersigned, unless
otherwise ordered by a court of competent jurisdiction.
You are instructed to deliver a copy of this notice to the Pledgor.
Very truly yours,
[COLLATERAL AGENT]
By:______________________________
Name:
Title:
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<PAGE>
EXHIBIT 5.01(s)-3
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated as of May 4, 2000 between:
(1) WINSTAR COMMUNICATIONS, INC., a corporation duly
organized and validly existing under the laws of the State of
Delaware (the "Parent");
(2) WCI CAPITAL CORP., a corporation duly organized and
validly existing under the laws of the State of Delaware (the
"Borrower");
(3) each of the subsidiaries of the Parent identified
under the caption "GUARANTORS" on the signature page hereof
(individually a "Guarantor" and, collectively, the "Guarantors");
(4) the ADDITIONAL SECURING PARTIES (as defined in Section
5.01(k) hereof) (the Parent, the Borrower, the Guarantors, the
Additional Guarantors and the Additional Securing Parties being,
collectively, the "Securing Parties"); and
(5) THE BANK OF NEW YORK, as administrative agent for the
Lenders (as defined in the Credit Agreement, as defined below) (in such
capacity, together with its successors in such capacity, the
"Administrative Agent") and as collateral agent for the Secured Parties
(as defined below) (in such capacity, together with its successors in
such capacity, the "Collateral Agent").
Certain arrangers, agents, lenders, the letter of credit
issuer and the administrative agent (collectively, together with their
successors, in such capacities, the "Secured Parties" and, individually, a
"Secured Party") and the Securing Parties are on the date of this Agreement
entering into a Revolving Credit and Term Loan Agreement, dated as of May 4,
2000 (the "Credit Agreement"), providing, subject to the terms and conditions
thereof, for extensions of credit to be made to the Borrower in an aggregate
principal amount not exceeding $1,150,000,000. In addition, one or more of the
Securing Parties may from time to time be obligated to one or more of the
Secured Parties under one or more Hedging Obligations (as defined in the Credit
Agreement). Furthermore, one or more of the Securing Parties may from time to
time be obligated to one or more of the Secured Parties under one or more L/C
Obligations (as defined in the Credit Agreement) (as issued under the Revolving
Credit Facility (as defined in the Credit Agreement) in an amount not to exceed
$75,000,000).
To induce the Secured Parties to enter into the Credit
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Securing Parties and the
Collateral Agent have agreed as follows:
<PAGE>
Section 1. Definitions. Terms used herein and not otherwise
defined herein shall have the meanings set forth in the Credit Agreement. The
following terms have the meanings ascribed to them below or in the Sections of
this Agreement indicated below:
"Accounts" shall have the meaning ascribed thereto in Section
3(e) hereof.
"Collateral" shall have the meaning ascribed thereto in
Section 3 hereof.
"Collateral Account" shall have the meaning ascribed thereto
in Section 4.01 hereof.
"Copyright Collateral" shall mean all Copyrights, whether now
owned or hereafter acquired by any Securing Party, including each
Copyright identified in Annex 2 hereto.
"Copyrights" shall mean all copyrights, copyright
registrations and applications for copyright registrations, including,
without limitation, all renewals and extensions thereof, the right to
recover for all past, present and future infringements thereof, and all
other rights of any kind whatsoever accruing thereunder or pertaining
thereto.
"Documents" shall have the meaning ascribed thereto in Section
3(k) hereof.
"Equipment" shall have the meaning ascribed thereto in Section
3(i) hereof.
"Instruments" shall have the meaning ascribed thereto in
Section 3(f) hereof.
"Intellectual Property" shall mean, collectively, all
Copyright Collateral, all Patent Collateral and all Trademark Collateral,
together with (a) all inventions, processes, production methods, proprietary
information, know-how and trade secrets; (b) all licenses or user or other
agreements granted to any Securing Party with respect to any of the foregoing,
in each case whether now or hereafter owned or used including, without
limitation, the licenses or other agreements with respect to the Copyright
Collateral, the Patent Collateral or the Trademark Collateral, listed in Annex 4
hereto; (c) all information, customer lists, identification of suppliers, data,
plans, blueprints, specifications, designs, drawings, recorded knowledge,
surveys, engineering reports, test reports, manuals, materials standards,
processing standards, performance standards, catalogs, computer and automatic
machinery software and programs; (d) all field repair data, sales data and other
information relating to sales or service of products now or hereafter
manufactured; (e) all accounting information and all media in which or on which
any information, knowledge, data or records may be recorded or stored and all
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computer programs used for the compilation or printout of such information,
knowledge, records or data; and (f) all licenses, consents, permits, variances,
certifications and approvals of governmental agencies now or hereafter held by
any Securing Party.
"Inventory" shall have the meaning ascribed thereto in Section
3(g) hereof.
"Issuers" shall mean, collectively, the respective Persons
identified opposite the names of the Securing Party on Annex 1 hereto
under the caption "Issuer" and each other Subsidiary of the Parent that
is formed or acquired after the date hereof (other than, in each case,
a Designated Foreign Subsidiary or an Unrestricted Subsidiary pursuant
to Article XII of the Credit Agreement).
"Motor Vehicles" shall mean motor vehicles, tractors, trailers
and other like property, whether or not the title thereto is governed
by a certificate of title or ownership.
"Patent Collateral" shall mean all Patents, whether now owned
or hereafter acquired by any Securing Party, including each Patent
identified in Annex 3 hereto.
"Patents" shall mean all patents and patent applications,
including, without limitation, the inventions and improvements
described and claimed therein together with the reissues, divisions,
continuations, renewals, extensions and continuations- in-part thereof,
all income, royalties, damages and payments now or hereafter due and/or
payable under and with respect thereto, including, without limitation,
damages and payments for past or future infringements thereof, the
right to sue for past, present and future infringements thereof, and
all rights corresponding thereto throughout the world.
"Pledged Stock" shall have the meaning ascribed thereto in
Section 3(a) hereof.
"Secured Obligations" shall mean, collectively, (a) the due
and punctual payment by any Securing Party of (i) the principal of and
interest on the Loans (including accrued interest thereon), when and as
due, whether at maturity, by acceleration, upon one or more dates set
for prepayment or otherwise, and (ii) all other monetary obligations of
the Securing Parties to the Secured Parties under the Credit Agreement
and each other Credit Document, (b) all L/C Obligations for which the
Securing Parties may be obligated under the Credit Agreement and other
Credit Documents and (c) the due and punctual performance of all other
obligations of the Securing Parties to the Secured Parties under the
Credit Agreement and other Credit Documents.
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<PAGE>
"Stock Collateral" shall mean, collectively, the Pledged
Stock, together with all other certificates, shares, securities,
instruments, moneys, or other property as may from time to time be
pledged hereunder pursuant to clause (a) through (c) of Section 3
hereof and the proceeds of and to any such property and, to the extent
related to any such property or such proceeds, all books,
correspondence, credit files, records, invoices and other papers.
"Trademark Collateral" shall mean all Trademarks whether now
owned or hereafter acquired by any Securing Party, including each
Trademark identified in Annex 4 hereto. Notwithstanding the foregoing,
the Trademark Collateral does not and shall not include any Trademark
that would be rendered invalid, abandoned, void or unenforceable by
reason of its being included as part of the Trademark Collateral.
"Trademarks" shall mean all trade names, trademarks and
service marks, logos, trademark and service mark registrations, and
applications for trademark and service mark registrations, including,
without limitation, all renewals of trademark and service mark
registrations, all rights corresponding thereto throughout the world,
the right to recover for all past, present and future infringements
thereof, all other rights of any kind whatsoever accruing thereunder or
pertaining thereto, together, in each case, with the product lines and
goodwill of the business connected with the use of, and symbolized by,
each such trade name, trademark and service mark.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect from time to time in the State of New York.
Section 2. Representations and Warranties. Each Securing
Party represents and warrants to the Secured Parties and the Collateral Agent
that:
(a) Such Securing Party is the sole beneficial owner of the
Collateral in which it purports to grant a security interest pursuant
to Section 3 hereof, no Lien exists or will exist upon such Collateral
at any time (and no right or option to acquire the same exists in favor
of any other Person), except for Liens permitted under Section 8.02(c)
of the Credit Agreement, and such pledge and security interest in favor
of the Collateral Agent for the benefit of the Secured Parties created
or provided for herein constitutes a first priority perfected pledge
and security interest in and to all of such Collateral (other than as
expressly contemplated herein or in Section 5.01(s) or any other
provision of the Credit Agreement and other than Permitted Liens).
(b) The Pledged Stock represented by the certificates
identified under the name of such Securing Party in Annex 1 hereto is,
and all other Pledged Stock in which such Securing Party shall
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<PAGE>
hereafter grant a security interest pursuant to Section 3 hereof will
be, duly authorized, validly existing, fully paid and non- assessable
and none of such Pledged Stock is or will be subject to any
contractual restriction, or any restriction under the charter or
by-laws of the respective Issuer of such Pledged Stock, upon the
transfer of such Pledged Stock (except for any such restriction
contained herein, in the Credit Agreement or in the Vendor Facility).
(c) The Pledged Stock identified opposite the name of such
Securing Party in Annex 1 hereto, and the certificates, if any,
representing such Capital Stock, constitute all of the issued and
outstanding shares of Capital Stock of any class of the Issuers
beneficially owned by such Securing Party on the date hereof (whether
or not registered in the name of such Securing Party) except for shares
of Capital Stock of the Issuers that are Principal Subsidiaries
organized in a jurisdiction outside the United States to the extent
that such shares are not required to be pledged under Section 12.02(c)
of the Credit Agreement, and said Annex 1 correctly identifies, as at
the date hereof, the respective Issuers of such Pledged Stock, the
respective class and par value of the shares comprising such Pledged
Stock and the respective number of shares (and registered owners
thereof) represented by each such certificate.
(d) Annexes 2, 3 and 4 hereto, respectively, set forth under
the name of such Securing Party a complete and correct list of all
Copyrights, Patents and Trademarks owned by such Securing Party on the
date hereof the loss of which, individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect; except
pursuant to licenses and other user agreements entered into by such
Securing Party in the ordinary course of business, that are listed in
Annex 5 hereto, such Securing Party owns and possesses the right to
use, and has done nothing to authorize or enable any other Person to
use, any Copyright, Patent or Trademark listed in said Annexes 2, 3 and
4, and all registrations listed in said Annexes 2, 3 and 4 are valid
and in full force and effect; except as may be set forth in said Annex
5, such Securing Party owns and possesses the right to use all such
Copyrights, Patents and Trademarks.
(e) Annex 5 hereto sets forth a complete and correct list of
all licenses and other user agreements the loss of which, individually
or in the aggregate could reasonably be expected to have a Material
Adverse Effect, included in the Intellectual Property on the date
hereof.
(f) To the knowledge of any Responsible Officer, (i) except as
set forth in Annex 5 hereto, there is no violation by others of any
right of such Securing Party with respect to any Copyright, Patent or
Trademark listed in Annexes 2, 3 and 4 hereto, respectively, under the
name of such Securing Party and (ii) such Securing Party is not
infringing in any respect upon any Copyright, Patent or Trademark of
any other Person; and no proceedings have been instituted or are
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<PAGE>
pending against such Securing Party or threatened, and no claim
against such Securing Party has been received by such Securing Party,
alleging any such violation, in each case, that could either
reasonably be expected to have a Material Adverse Effect or except as
may be set forth in said Annex 5 hereto.
(g) Such Securing Party does not own any Trademarks registered
in the United States of America to which the last sentence of the
definition of Trademark Collateral applies.
Section 3. Collateral. Each Securing Party hereby assigns,
pledges, grants, transfers, and conveys to the Collateral Agent (for its own
benefit and the ratable benefit of each of the Secured Parties) as collateral
security for the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations, a security interest in
all of such Securing Party's right, title and interest in the following
property, whether now owned by such Securing Party or hereafter acquired and
whether now existing or hereafter coming into existence (collectively, the
"Collateral"):
(a) the shares of Capital Stock of the Issuers identified in
Annex 1 hereto opposite the name of such Securing Party, and the
certificates, if any, representing such Capital Stock and all
additional shares of Capital Stock of whatever class of the Issuers,
now or hereafter owned by such Securing Party, in each case together
with the certificates, if any, evidencing the same, except for shares
of Capital Stock of the Issuers that are Principal Subsidiaries
organized in a jurisdiction outside the United States to the extent
that such shares are not required to be pledged under Section 12.02(c)
of the Credit Agreement (collectively, the "Pledged Stock");
(b) all certificates, shares, securities, instruments, moneys
or other property representing a dividend on any of the Pledged Stock,
or representing a distribution or return of capital upon or in respect
of the Pledged Stock, or resulting from a split-up, revision,
reclassification or other like change of the Pledged Stock or otherwise
received in exchange therefor, and any subscription warrants, rights or
options issued to the holders of, or otherwise in respect of, the
Pledged Stock;
(c) without affecting the obligations of such Securing Party
under any provision prohibiting such action hereunder or under the
Credit Agreement, in the event of any consolidation or merger in which
an Issuer is not the surviving corporation, all shares of each class of
the Capital Stock of the successor corporation received by the Securing
Party (unless such successor corporation is such Securing Party itself)
formed by or resulting from such consolidation or merger;
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(d) the Collateral Account (as defined below), all balances
from time to time in the Collateral Account and all security
entitlements, securities and other financial assets from time to time
credited to the Collateral Account (including, without limitation, all
Temporary Cash Investments from time to time credited to the
Collateral Account), and all dividends, interest, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
security entitlements, securities and other financial assets, in each
case, of such Securing Party;
(e) all accounts and general intangibles (each as defined in
the Uniform Commercial Code) of such Securing Party constituting any
right to the payment of money, including (but not limited to) all
moneys due and to become due to such Securing Party in respect of any
loans or advances or for Inventory or Equipment or other goods sold or
leased or for services rendered, all moneys due and to become due to
such Securing Party under any guarantee (including a letter of credit)
of the purchase price of Inventory or Equipment sold by such Securing
Party and all tax refunds (such accounts, general intangibles and
moneys due and to become due, collectively, the "Accounts");
(f) all instruments, chattel paper or letters of credit (each
as defined in the Uniform Commercial Code) of such Securing Party
evidencing, representing, arising from or existing in respect of,
relating to, securing or otherwise supporting the payment of, any of
the Accounts, including (but not limited to) promissory notes, drafts,
bills of exchange and trade acceptances (collectively, the
"Instruments");
(g) all inventory (as defined in the Uniform Commercial Code)
of such Securing Party, including Motor Vehicles held by such Securing
Party for lease (including lease to Subsidiaries of the Securing
Parties), fuel, tires and other spare parts, all goods obtained by such
Securing Party in exchange for such inventory, and any products made or
processed from such inventory including all substances, if any,
commingled therewith or added thereto (collectively, the "Inventory");
(h) all Intellectual Property;
(i) all equipment (as defined in the Uniform Commercial
Code) of such Securing Party, including all Motor Vehicles
(collectively, the "Equipment");
(j) each contract and other agreement of such Securing Party
relating to the sale or other disposition of Inventory or Equipment;
(k) all documents of title (as defined in the Uniform
Commercial Code) or other receipts of such Securing Party covering,
evidencing or representing Inventory or Equipment (collectively, the
"Documents");
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(l) all rights, claims and benefits of such Securing Party
against any Person arising out of, relating to or in connection with
Inventory or Equipment purchased by such Securing Party, including,
without limitation, any such rights, claims or benefits against any
Person storing or transporting such Inventory or Equipment;
(m) all Security Entitlements (as defined in the Uniform
Commercial Code) of such Securing Party, including all rights of such
Securing Party to the financial assets credited from time to time
thereto; and
(n) all other tangible and intangible personal property
including Fixtures (as defined in the UCC) and, including, without
limitation, all proceeds, products, offspring, accessions, rents,
profits, income, benefits, substitutions and replacements of and to any
of the property of such Securing Party described in the preceding
clauses of this Section 3, including, without limitation, (i) any
proceeds of insurance thereon (whether or not the Collateral Agent is
the loss payee thereof) and all causes of action, claims, indemnities,
warranties or guarantees now or hereafter held by any Securing Party in
respect of any of the items listed as Collateral above, payable by
reason of loss or damage to or otherwise with respect to any of the
foregoing Collateral, (ii) proceeds that constitute property of the
type described in clauses (a), (b), (c) and (d) of this Section 3,
(iii) to the extent related to any property described in said clauses
(a) through (m) above or such proceeds, products and accessions, all
books, correspondence, credit files, records, invoices and other
papers, including without limitation all tapes, cards, computer runs
and other papers and documents in the possession or under the control
of such Securing Party or any computer bureau or service company from
time to time acting for such Securing Party and (iv) cash;
provided, however that (i) to the extent that applicable law would prohibit the
attachment of a Lien hereunder, the Lien shall not attach hereunder until the
prohibition against such Lien no longer applies and (ii) to the extent that the
terms of a Permitted Lien would prohibit the attachment of a Lien hereunder to
the property subject to such Permitted Lien, the Lien shall not attach hereunder
to such property, and such property shall not constitute Collateral hereunder,
until the prohibition against such Lien no longer applies.
Anything herein to the contrary notwithstanding, (i) each
Securing Party shall remain liable under the contracts and agreements included
in such Securing Party's Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (ii) the exercise by the Collateral Agent of
any of the rights hereunder shall not release any Securing Party from any of its
duties or obligations under the contracts and agreements included in the
Collateral and (iii) no Secured Party shall have any obligation or liability
under the contracts and agreements included in the Collateral by reason of this
Agreement or any other Credit Document, nor shall any Secured Party be obligated
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to perform any of the obligations or duties of any Securing Party or thereunder
or to take any action to collect or enforce any claim for payment assigned
hereunder.
Section 4. Cash Proceeds of Collateral.
4.01 Collateral Account. There shall be established with the
Collateral Agent a cash collateral account (the "Collateral Account") in the
name and under the sole dominion and control of the Collateral Agent into which
there shall be deposited from time to time the cash proceeds of any of the
Collateral to the extent required under the Credit Documents required to be
delivered to the Collateral Agent pursuant hereto or that the Securing Parties
are required to pledge as additional collateral security hereunder; provided
that proceeds of insurance on any of the Collateral shall not be required to be
deposited into the Collateral Account to the extent such proceeds are deposited
in an account as to which a Securities Account Control Agreement is in effect.
The balance from time to time in the Collateral Account shall constitute part of
the Collateral hereunder and shall not constitute payment of the Secured
Obligations until applied as hereinafter provided. Except as expressly provided
in the next sentence, the Collateral Agent shall remit the collected balance
outstanding to the credit of the Collateral Account to or upon the order of the
respective Securing Party as such Securing Party through the Borrower shall from
time to time instruct. However, at any time following the occurrence and during
the continuance of an Event of Default, the Collateral Agent may (and, if
instructed by the Secured Parties as specified in Section 9.01 of the Credit
Agreement, shall) in its (or their) discretion apply or cause to be applied
(subject to collection) the balance from time to time outstanding to the credit
of the Collateral Account to the payment of the Secured Obligations in the
manner specified in Section 5.09 hereof. The balance from time to time in the
Collateral Account shall be subject to withdrawal only as provided herein.
4.02 Proceeds of Accounts. At any time after the occurrence
and during the continuance of an Event of Default, each Securing Party shall,
upon the request of the Collateral Agent, to the extent that the Collateral
Agent does not otherwise exercise dominion and control over the depository bank
accounts of such Securing Party, instruct all account debtors and other Persons
obligated in respect of all Accounts to make all payments in respect of the
Accounts either (a) directly to the Collateral Agent (by instructing that such
payments be remitted to a post office box which shall be in the name and under
the control of the Collateral Agent) or (b) to one or more other banks in the
United States of America (by instructing that such payments be remitted to a
post office box which shall be in the name and under the control of the
Collateral Agent) under arrangements, in form and substance reasonably
satisfactory to the Collateral Agent pursuant to which such Securing Party shall
have irrevocably instructed such other bank (and such other bank shall have
agreed) to remit all proceeds of such payments directly to the Collateral Agent
for deposit into the Collateral Account if required by the Collateral Agent. All
payments made to the Collateral Agent, as provided in the preceding sentence,
shall be immediately deposited in the Collateral Account. In addition to the
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foregoing, each Securing Party agrees that, at any time after the occurrence and
during the continuance of an Event of Default, if the proceeds of any Collateral
hereunder (including the payments made in respect of Accounts) shall be received
by it, such Securing Party shall, upon the request of the Collateral Agent, as
promptly as possible deposit such proceeds into the Collateral Account. Until so
deposited, all such proceeds shall be held in trust by such Securing Party for
the benefit of the Collateral Agent and shall not be commingled with any other
funds or property of such Securing Party.
4.03 Investment of Balance in Collateral Account. Amounts on
deposit in the Collateral Account shall be invested from time to time in such
Temporary Cash Investments as the respective Securing Party (or, after the
occurrence and during the continuance of an Event of Default, the Collateral
Agent) shall determine, which Temporary Cash Investments shall be held in the
name and be under the control of the Collateral Agent, provided that (a) at any
time after the occurrence and during the continuance of an Event of Default, the
Collateral Agent may (and, if instructed by the Required Lenders, shall) in its
(or their) discretion at any time and from time to time elect to liquidate any
such Temporary Cash Investments and to apply or cause to be applied the proceeds
thereof to the payment of the Secured Obligations in the manner specified in
Section 5.09 hereof and (b) if requested by the respective Securing Party
through the Borrower, such Temporary Cash Investments may be held in the name
and under the control of one or more of the Secured Parties provided that prior
thereto each such Secured Party has agreed that such Temporary Cash Investments
shall be held by each such Secured Party as a collateral sub-agent for the
Collateral Agent hereunder on terms reasonably satisfactory to the Collateral
Agent.
4.04 Cover for L/C Obligations. Amounts deposited into the
Collateral Account as cover for L/C Obligations pursuant to Section 2.07 of the
Credit Agreement shall be held by the Collateral Agent in a separate sub-account
(designated "L/C Obligations Sub-Account") and all amounts held in such L/C
Obligations Sub-Account shall constitute collateral security first for the L/C
Obligations outstanding from time to time and second as collateral security for
the other Secured Obligations hereunder.
Section 5. Further Assurances; Remedies. In furtherance of the
grant of the pledge and security interest pursuant to Section 3 hereof, the
Securing Parties hereby jointly and severally agree with each Secured Party and
the Collateral Agent as follows:
5.01 Delivery and Other Perfection. Each Securing Party shall:
(a) if any of the shares, securities, moneys or property
required to be pledged by such Securing Party under clauses (a), (b)
and (c) of Section 3 hereof are received by such Securing Party,
forthwith either (i) transfer and deliver to the Collateral Agent such
shares or securities so received by such Securing Party (together with
the certificates for any such shares and securities duly endorsed in
blank or accompanied by undated stock powers duly executed in blank),
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all of which thereafter shall be held by the Collateral Agent,
pursuant to the terms of this Agreement, as part of the Collateral or
(ii) take such other action as the Collateral Agent shall reasonably
deem necessary or appropriate to duly record the Lien created
hereunder in such shares, securities, moneys or property in said
clauses (a), (b) and (c);
(b) deliver and pledge to the Collateral Agent, upon its
request, any and all Instruments, endorsed and/or accompanied by such
instruments of assignment and transfer in such form and substance as
the Collateral Agent may request; provided that so long as no Event of
Default shall have occurred and be continuing, such Securing Party may
retain for collection in the ordinary course any Instruments received
by such Securing Party in the ordinary course of business and the
Collateral Agent shall, promptly upon request of such Securing Party
through the Borrower, make appropriate arrangements for making any
Instrument pledged by such Securing Party available to such Securing
Party for purposes of presentation, collection or renewal (any such
arrangement to be effected, to the extent deemed appropriate by the
Collateral Agent, against trust receipt or like document);
(c) with respect to any Collateral in which any Securing Party
has any right, title or interest that constitutes an uncertificated
security, upon request by the Collateral Agent, such Securing Party
shall cause the issuer thereof either (i) to register the Collateral
Agent as the registered owner of such security or (ii) to agree in
writing with such Securing Party and the Collateral Agent that such
issuer will comply with instructions with respect to such security
originated by the Collateral Agent without further consent of such
Securing Party, such agreement to be in form and substance reasonably
satisfactory to the Collateral Agent;
(d) with respect to any Collateral in which any Securing Party
has any right, title or interest that constitutes a Security
Entitlement, upon request by the Collateral Agent, such Securing Party
shall cause the Securities Intermediary (as defined in the Uniform
Commercial Code) thereof either (i) to register the Collateral Agent as
the holder of the Security Entitlement or (ii) to agree in writing with
such Securing Party and the Collateral Agent that such Securities
Intermediary will comply with instructions with respect to such
security originated by the Collateral Agent without further consent of
such Securing Party, such agreement to be in form and substance
reasonably satisfactory to the Collateral Agent;
(e) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Collateral Agent)
to create, preserve, perfect or validate the security interest granted
pursuant hereto or to enable the Collateral Agent to exercise and
enforce its rights hereunder with respect to such pledge and
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security interest, including, without limitation, causing any or all of
the Stock Collateral to be transferred of record into the name of the
Collateral Agent or its nominee (and the Collateral Agent agrees that
if any Stock Collateral is transferred into its name or the name of its
nominee, the Collateral Agent will thereafter promptly give to the
respective Securing Party copies of any notices and communications
received by it with respect to the Stock Collateral pledged by such
Securing Party hereunder), provided that notices to account debtors in
respect of any Accounts or Instruments shall be subject to the
provisions of clause (i) below;
(f) without limiting the obligations of such Securing Party
under Section 5.04(c) hereof, upon the acquisition after the date
hereof by such Securing Party of any Equipment covered by a certificate
of title or ownership, at the request of the Collateral Agent, cause
the Collateral Agent to be listed as the lienholder on such certificate
of title and within 120 days of such request deliver evidence of the
same to the Collateral Agent;
(g) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such
manner as the Collateral Agent may reasonably require in order to
reflect the security interests granted by this Agreement;
(h) furnish to the Collateral Agent from time to time (but,
unless an Event of Default shall have occurred and be continuing, no
more frequently than quarterly) statements and schedules further
identifying and describing the Copyright Collateral, Patent Collateral
and Trademark Collateral, respectively, and such other reports in
connection with the Copyright Collateral, Patent Collateral and
Trademark Collateral, as the Collateral Agent may reasonably request,
all in reasonable detail;
(i) promptly upon request of the Collateral Agent, following
receipt by the Collateral Agent of any statements, schedules or reports
pursuant to clause (h) above, modify this Agreement by amending Annexes
2, 3 and/or 4 hereto, as the case may be, to include any Copyright,
Patent or Trademark that becomes part of the Collateral under this
Agreement;
(j) promptly after such Securing Party shall acquire or form
any Subsidiary that becomes an Additional Guarantor pursuant to Section
6.09 of the Credit Agreement, deliver to the Collateral Agent an
amendment to Annex 1 hereto, such that after giving effect to such
acquisition or formation, the representations set forth in Sections
2(b) and (c) hereof (assuming that each reference to "the date hereof"
therein referred to the date of such acquisition or formation) shall be
true and complete as of such date; and
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(k) promptly after such Securing Party shall acquire or form
any Subsidiary that becomes an Additional Guarantor pursuant to Section
6.09 of the Credit Agreement, cause the execution and delivery by such
Person of a security agreement supplement in substantially the form of
Exhibit A hereto (each a "Security Agreement Supplement") in
consequence of which (i) such Person shall be referred to as an
"Additional Securing Party" and shall be and become a Securing Party
hereunder and each reference in this Agreement and the other Credit
Documents to "Securing Party" shall also mean and be a reference to
such Additional Securing Party, and (ii) the supplemental Annexes 1
through 6 attached to each Security Agreement Supplement shall be
incorporated into and become a part of and supplement Annexes 1 through
6, respectively, hereto, and the Collateral Agent may attach such
supplemental Annexes to such Annexes; and each reference to such
Annexes shall mean and be a reference to such Annexes as supplemented
pursuant to each Security Agreement Supplement.
5.02 Other Financing Statements and Liens. Except as otherwise
permitted under Section 8.02(c) of the Credit Agreement, without the prior
written consent of the Collateral Agent, no Securing Party shall file or suffer
to be on file, or authorize or permit to be filed or to be on file, in any
jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Collateral Agent is not named as the sole secured party
for the benefit of the Secured Parties.
5.03 Preservation of Rights. The Collateral Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
5.04 Special Provisions Relating to Certain Collateral.
(a) Stock Collateral.
(1) The Securing Parties will cause the Stock Collateral to
constitute at all times not less than 80% of the total number of shares of each
class of Capital Stock of each Issuer then outstanding and 100% of the number of
such shares owned by the Securing Parties except for shares of Capital Stock of
the Issuers that are Principal Subsidiaries organized in a jurisdiction outside
the United States to the extent that such shares are not required to be pledged
under Section 12.02(c) of the Credit Agreement and except to the extent that the
Issuer is (i) a Restricted Subsidiary that converts to a Principal Subsidiary, a
Designated Foreign Subsidiary or an Unrestricted Subsidiary under Article XII of
the Credit Agreement or (ii) a Principal Subsidiary that converts to a
Designated Foreign Subsidiary or an Unrestricted Subsidiary under Article XII of
the Credit Agreement.
(2) So long as no Event of Default shall have occurred and be
continuing, the Securing Parties shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Stock Collateral for
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all purposes not inconsistent with the terms of this Agreement, the Credit
Agreement, the Notes or any other instrument or agreement referred to herein or
therein, provided that the Securing Parties jointly and severally agree that
they will not vote the Stock Collateral in any manner that is inconsistent with
the terms of this Agreement, the Credit Agreement, the Notes or any such other
instrument or agreement; and the Collateral Agent shall execute and deliver to
the Securing Parties or cause to be executed and delivered to the Securing
Parties all such proxies, powers of attorney, dividend and other orders, and all
such instruments, without recourse, as the Securing Parties may reasonably
request for the purpose of enabling the Securing Parties to exercise the rights
and powers that they are entitled to exercise pursuant to this Section
5.04(a)(2).
(3) Unless and until an Event of Default has occurred and is
continuing, the Securing Parties shall be entitled to receive and retain any
dividends on the Stock Collateral authorized to be made pursuant to the terms of
the Credit Agreement.
(4) If any Event of Default shall have occurred, then so long
as such Event of Default shall continue, and whether or not the Collateral Agent
or any Secured Party exercises any available right to declare any Secured
Obligation due and payable or seeks or pursues any other relief or remedy
available to it under applicable law or under this Agreement, the Credit
Agreement, the Notes or any other agreement relating to such Secured Obligation,
and, on demand by the Collateral Agent (except where not required by law), all
dividends and other distributions on the Stock Collateral shall be paid directly
to the Collateral Agent and retained by it in the Collateral Account as part of
the Stock Collateral, subject to the terms of this Agreement, and, if the
Collateral Agent shall so request in writing, the Securing Parties jointly and
severally agree to execute and deliver to the Collateral Agent appropriate
additional dividend, distribution and other orders and documents to that end,
provided that if such Event of Default is cured, any such dividend or
distribution theretofore paid to the Collateral Agent shall, upon request of the
Securing Parties (except to the extent theretofore applied to the Secured
Obligations), be returned by the Collateral Agent to the Securing Parties.
(b) Intellectual Property.
(1) For the purpose of enabling the Collateral Agent to
exercise rights and remedies under Section 5.05 hereof at such time as the
Collateral Agent shall be lawfully entitled to exercise such rights and
remedies, and for no other purpose, each Securing Party hereby grants to the
Collateral Agent, to the extent assignable, an irrevocable, non- exclusive
license (exercisable without payment of royalty or other compensation to such
Securing Party) to use, assign, license or sublicense any of the Intellectual
Property now owned or hereafter acquired by such Securing Party, to the extent
that such Securing Party is entitled to do so, wherever the same may be located,
including in such license reasonable access to all media in which any of the
licensed items may be recorded or stored and to all computer programs used for
the compilation or printout thereof.
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(2) Notwithstanding anything contained herein to the contrary,
but subject to the provisions of Section 8.02(b) of the Credit Agreement that
limit the right of the Securing Parties to dispose of their property, so long as
no Event of Default shall have occurred and be continuing and the Collateral
Agent shall not have exercised its remedies under Section 5.05 hereof, the
Securing Parties will be permitted to exploit, use, enjoy, protect, license,
sublicense, assign, sell, dispose of or take other actions with respect to the
Intellectual Property in the ordinary course of the business of the Securing
Parties. In furtherance of the foregoing, unless an Event of Default shall have
occurred and be continuing, the Collateral Agent shall from time to time, upon
the request of the respective Securing Party through the Borrower, execute and
deliver any instruments, certificates or other documents, in the form so
requested, that such Securing Party through the Borrower shall have certified
are appropriate (in its judgment) to allow it to take any action permitted above
(including relinquishment of the license granted pursuant to clause (1)
immediately above as to any specific Intellectual Property). Further, upon the
payment in full of all of the Secured Obligations and cancellation or
termination of the Commitments and L/C Obligations or earlier expiration of this
Agreement or release of the Collateral, the Collateral Agent shall grant back to
the Securing Parties the license granted pursuant to clause (1) immediately
above. The exercise of rights and remedies under Section 5.05 hereof by the
Collateral Agent shall not terminate the rights of the holders of any licenses
or sublicenses theretofore granted by the Securing Parties in accordance with
the first sentence of this clause (2).
(c) Motor Vehicles. Each Securing Party shall, upon the
request of the Collateral Agent, deliver to the Collateral Agent originals of
the certificates of title or ownership for the Motor Vehicles owned by such
Securing Party with the Collateral Agent listed as lienholder and take such
other action as the Collateral Agent shall reasonably deem appropriate to
perfect the security interest created hereunder in all such Motor Vehicles.
5.05 Remedies; Events of Default, Etc. During the period
during which an Event of Default shall have occurred and be continuing:
(a) each Securing Party shall, at its own expense, and at the
request of the Collateral Agent, assemble the Collateral owned by it at
such time or times and place or places, reasonably convenient to both
the Collateral Agent and such Securing Party, designated in the request
of the Collateral Agent;
(b) the Collateral Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and
may extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Collateral Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
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Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted, including, without limitation, the
right, to the maximum extent permitted by law, to exercise all voting,
consensual and other powers of ownership pertaining to the Collateral
as if the Collateral Agent were the sole and absolute owner thereof
(and each Securing Party agrees to take all such action as may be
appropriate to give effect to such right);
(d) the Collateral Agent in its discretion may, in its name or
in the name of the Securing Parties or otherwise, demand, sue for,
collect or receive any money or property at any time payable or
receivable on account of or in exchange for any of the Collateral, but
shall be under no obligation to do so;
(e) the Collateral Agent may, upon ten (10) Business Days'
prior written notice to the Securing Parties of the time and place,
with respect to the Collateral or any part thereof that shall then be
or shall thereafter come into the possession, custody or control of the
Collateral Agent, the Secured Parties or any of their respective
agents, sell, lease, assign or otherwise dispose of all or any part of
such Collateral, at such place or places as the Collateral Agent deems
best, and for cash or for credit or for future delivery (without
thereby assuming any credit risk), at public or private sale, without
demand of performance or notice of intention to effect any such
disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived), and the
Collateral Agent or any Secured Party or any other Person may be the
purchaser, lessee, assignee or recipient of any or all of the
Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including
any right or equity of redemption (statutory or otherwise) of the
Securing Parties, any such demand, notice and right or equity being
hereby expressly waived and released. In the event of any sale,
assignment, or other disposition of any of the Trademark Collateral,
the goodwill connected with and symbolized by the Trademark Collateral
subject to such disposition shall be included, and the Securing Parties
shall supply to the Collateral Agent or its designee, for inclusion in
such sale, assignment or other disposition, all Intellectual Property
relating to such Trademark Collateral. The Collateral Agent may,
without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made at any
time or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
5.05, including by virtue of the exercise of the license granted to the
Collateral Agent in Section 5.04(b)(1) hereof, shall be applied in accordance
with Section 5.09 hereof.
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The Securing Parties recognize that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws, the Collateral Agent may be compelled, with respect to
any sale of all or any part of the Collateral, to limit purchasers to those who
will agree, among other things, to acquire the Collateral for their own account,
for investment and not with a view to the distribution or resale thereof. The
Securing Parties acknowledge that any such private sales may be at prices and on
terms less favorable to the Collateral Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agree that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Collateral Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit the respective Issuer or
issuer thereof to register it for public sale.
5.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Securing Parties which are Guarantors or
Additional Guarantors shall remain liable for any deficiency.
5.07 Removals, Etc. Without at least thirty (30) days' prior
written notice to the Collateral Agent, no Securing Party shall (i) maintain any
of its books and records with respect to the Collateral at any office or
maintain its principal place of business at any place, or permit any Inventory
or Equipment to be located anywhere, other than at the address indicated beneath
the signature of the Borrower to the Credit Agreement or at one of the locations
identified in Annex 6 hereto under its name or in transit from one of such
locations to another or (ii) change its name, or the name under which it does
business, from the name shown on the signature pages hereto.
5.08 Private Sale. The Collateral Agent and the Secured
Parties shall incur no liability as a result of the sale of the Collateral, or
any part thereof, at any private sale pursuant to Section 5.05 hereof conducted
in a commercially reasonable manner. Each Securing Party hereby waives any
claims against the Collateral Agent or any Secured Party arising by reason of
the fact that the price at which the Collateral may have been sold at such a
private sale was less than the price that might have been obtained at a public
sale or was less than the aggregate amount of the Secured Obligations.
5.09 Application of Proceeds. Except as otherwise expressly
provided herein and except as provided below in this Section 5.09, the proceeds
of any collection, sale or other realization of all or any part of the
Collateral pursuant hereto, and any other cash at the time held by the
Collateral Agent under Section 4 hereof or this Section 5, shall be applied by
the Collateral Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
-17-
<PAGE>
out-of-pocket costs and expenses of the Collateral Agent and the fees
and expenses of its agents and counsel, and all expenses incurred and
advances made by the Collateral Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in
each case equally and ratably in accordance with the respective amounts
thereof then due and owing or as the Secured Parties holding the same
may otherwise agree; and
Finally, to the payment to the respective Securing Parties, or
their respective successors or assigns, or as a court of competent
jurisdiction may direct, of any surplus then remaining.
Notwithstanding the foregoing, the proceeds of any cash or other amounts held in
the L/C Obligations Sub-Account of the Collateral Account pursuant to Section
4.04 hereof shall be applied first to the L/C Obligations outstanding from time
to time and second to the other Secured Obligations in the manner provided above
in this Section 5.09.
As used in this Section 5, "proceeds" of Collateral shall mean
cash, securities and other property realized in respect of, and distributions in
kind of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Securing Parties or any Issuer of or
obligor on any of the Collateral.
5.10 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Collateral Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Collateral Agent is hereby appointed the
attorney-in-fact of each Securing Party for the purpose of carrying out the
provisions of this Agreement (including, without limitation, this Section 5) and
taking any action and executing any instruments that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
as attorney-in-fact is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, so long as the Collateral Agent shall
be entitled under this Section 5 to make collections in respect of the
Collateral, the Collateral Agent shall have the right and power to receive,
endorse and collect all checks made payable to the order of any Securing Party
representing any dividend, payment or other distribution in respect of the
Collateral or any part thereof and to give full discharge for the same. The
Collateral Agent is hereby authorized to prepare and file in the name of any
Securing Party any financing statements describing the Collateral and the
security interests created hereby without the signature of such Securing Party
(to the extent permitted by applicable law).
5.11 Perfection. Prior to or concurrently with the execution
and delivery of this Agreement, each Securing Party shall (i) execute and
deliver to the Collateral Agent for filing such financing statements and other
documents in such offices as the Collateral Agent may request to perfect the
-18-
<PAGE>
security interests granted by Section 3 hereof, and (ii) deliver to the
Collateral Agent all certificates identified in Annex 1 hereto, accompanied by
undated stock powers duly executed in blank.
5.12 Termination. When all Secured Obligations shall have been
paid in full and the Commitments of the Secured Parties under the Credit
Agreement and all L/C Obligations shall have expired or been terminated, this
Agreement shall terminate, and the Collateral Agent shall forthwith cause to be
assigned, transferred and delivered, against receipt but without any recourse,
warranty or representation whatsoever, any remaining Collateral and money
received in respect thereof, to or on the order of the respective Securing Party
and cause to be released and canceled all licenses and rights referred to in
Section 5.04(b)(1) hereof. The Collateral Agent shall also execute and deliver
to the respective Securing Party upon such termination such Uniform Commercial
Code termination statements, certificates for terminating the Liens on the Motor
Vehicles and such other documentation as shall be reasonably requested by the
respective Securing Party to effect the termination and release of the Liens on
the Collateral.
5.13 Further Assurances. Each Securing Party agrees that, from
time to time upon the written request of the Collateral Agent, such Securing
Party will execute and deliver such further documents and do such other acts and
things as the Collateral Agent may reasonably request in order fully to effect
the purposes of this Agreement, including, without limitation, executing and
delivering such documents as are necessary to perfect the security interest of
the Secured Parties in claims owed to the Securing Parties by the Government of
the United States.
5.14 Release of Collateral. So long as no Event of Default
shall have occurred and be continuing, upon the request of any Securing Party,
at the Securing Party's expense, the Collateral Agent shall execute and deliver
to such Securing Party such instruments as such Securing Party shall reasonably
request to release the security interest of the Collateral Agent in any
Collateral pledged by any Securing Party (i) if, and to the extent, such release
is authorized pursuant to the terms of the Credit Agreement, (ii) if such
Securing Party ceases to be a Restricted Subsidiary pursuant to the provisions
of Article XII of the Credit Agreement or (iii) if requested by a Securing Party
in connection with a permitted asset disposition under the Credit Agreement;
provided that any such instruments shall be delivered, and the release
effective, only upon receipt by the Collateral Agent of a certificate from such
Securing Party certifying, in the case of clause (i) the specific provision or
provisions of the Credit Agreement authorizing such release and the satisfaction
of any conditions precedent thereto, and, in the case of clause (ii) the action
taken pursuant to Article XII and the absence of any Event of Default after
giving effect thereto.
5.15 Transfer of Collateral. The Collateral Agent shall have
the right, at any time in its discretion and without notice to any Securing
Party, to transfer to or to register in the name of the Collateral Agent or any
of its nominees any or all of the Instruments and Security Entitlements included
-19-
<PAGE>
as Collateral, subject only to the revocable rights specified in Section
5.04(a)(2). In addition, the Collateral Agent shall have the right at any time
to exchange certificates or instruments representing or evidencing Collateral
for certificates or instruments of smaller or larger denominations.
Section 6. Miscellaneous.
6.01 No Waiver. No failure on the part of the Collateral Agent
or any Secured Party to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any Secured Party of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
6.02 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at its address specified pursuant to Section 13.08 of the Credit
Agreement and shall be deemed to have been given at the times specified in said
Section 13.08.
6.03 Expenses. The Securing Parties jointly and severally
agree to reimburse each of the Secured Parties and the Collateral Agent for all
reasonable costs and expenses of the Secured Parties and the Collateral Agent as
provided by Section 4.06 of the Credit Agreement.
6.04 Amendments, Etc. The terms of this Agreement may be
waived, altered or amended as provided by Section 13.06 of the Credit Agreement.
6.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of each
Securing Party, the Collateral Agent, the Secured Parties and each holder of any
of the Secured Obligations (provided, however, that no Securing Party shall
assign or transfer its rights hereunder without the prior written consent of the
Collateral Agent).
6.06 Captions. The 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.
6.07 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. Delivery by telecopier of an executed counterpart
of this Agreement shall be effective as delivery of an original executed
counterpart thereof.
-20-
<PAGE>
6.08 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the law of the State of New York.
6.09 Agents and Attorneys-in-Fact. The Collateral Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
6.10 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Collateral Agent
and the Secured Parties in order to carry out the intentions of the parties
hereto as nearly as may be possible and (ii) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
-21-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
and Security Agreement to be duly executed and delivered as of the day and year
first above written.
PARENT:
WINSTAR COMMUNICATIONS, INC.
By: _________________________________
Name:
Title:
BORROWER:
WCI CAPITAL CORP.
By: _________________________________
Name:
Title:
GUARANTORS:
WINSTAR WIRELESS, INC.
By: _________________________________
Name:
Title:
WINSTAR A/R SPE, LLC
By: _________________________________
Name:
Title:
<PAGE>
WINSTAR A/R ACCOUNT PARTY, LLC
By: _________________________________
Name:
Title:
WINSTAR BROADBAND ACQUISITION 1999, LLC
By: _________________________________
Name:
Title:
WINSTAR NETWORK EXPANSION, LLC
By: _________________________________
Name:
Title:
WWI LICENSE HOLDING, INC.
By: _________________________________
Name:
Title:
WINSTAR EQUIPMENT CORP.
By: _________________________________
Name:
Title:
WINSTAR EQUIPMENT II CORP.
By: _________________________________
Name:
Title:
<PAGE>
WINSTAR WIRELESS FIBER CORP.
By: _________________________________
Name:
Title:
WINSTAR LMDS, LLC
By: _________________________________
Name:
Title:
WINSTAR CREDIT CORP.
By: _________________________________
Name:
Title:
WINSTAR SWITCH ACQUISITION CORP.
By: _________________________________
Name:
Title:
WINSTAR NEW MEDIA COMPANY, INC.
By: _________________________________
Name:
Title:
WINSTAR INTERACTIVE MEDIA SALES, INC.
By: _________________________________
Name:
Title:
<PAGE>
WINSTAR EASYNET INC.
By: _________________________________
Name:
Title:
WINSTAR INTERACTIVE VENTURES I, INC.
By: _________________________________
Name:
Title:
WINSTAR GLOBAL MEDIA, INC.
By: _________________________________
Name:
Title:
WINSTAR RADIO NETWORKS, INC.
By: _________________________________
Name:
Title:
WALT BABY LOVE PRODUCTIONS, INC.
By: _________________________________
Name:
Title:
NON FICTION FILMS INC.
By: _________________________________
Name:
Title:
<PAGE>
FOX/LORBER ASSOCIATES, INC.
By: _________________________________
Name:
Title:
WELLSPRING MEDIA, INC.
By: _________________________________
Name:
Title:
WINSTAR BROADCASTING CORP.
By: _________________________________
Name:
Title:
SPORTSFAN RADIO NETWORK INC.
By: _________________________________
Name:
Title:
WINSTAR GOVERNMENT SOLUTIONS, LLC
By: _________________________________
Name:
Title:
WINSTAR MIDCOM ACQUISITION CORP.
By: _________________________________
Name:
Title:
<PAGE>
ADMINISTRATIVE AGENT AND
COLLATERAL AGENT:
THE BANK OF NEW YORK,
as Administrative Agent and Collateral Agent
By: _________________________________
Name:
Title:
<PAGE>
ANNEX 1
PLEDGED STOCK
<TABLE>
Percentage
of
Class Certificate Registered Number of Oustanding
Securing Party Issuer of Stock Nos. Owner Shares Shares
------------------------ ---------------------- ------------- ------------- ---------------------- ----------- -----------------
<S> <C> <C> <C> <C> <C>
Winstar WCI Capital Corp. common 1 Winstar 100 100%
Communications, Inc. Communications, Inc.
Winstar Winstar Wireless, common 1 Winstar 90 100%
Communications, Inc. Inc. Communications, Inc.
WCI Capital Corp. Winstar Equipment common 2 WCI Capital Corp. 100 100%
Corp.
WCI Capital Corp. Winstar Equipment II common 2 WCI Capital Corp. 100 100%
Corp.
WCI Capital Corp. Winstar Wireless common 2 WCI Capital Corp. 100 100%
Fiber Corp.
WCI Capital Corp. Winstar Credit Corp. common 2 WCI Capital Corp. 100 100%
WCI Capital Corp. Winstar Switch common 2 WCI Capital Corp. 100 100%
Acquisition Corp.
WCI Capital Corp. Winstar New Media common C30 Winstar New Media 24,000,000 96.0%
Company, Inc. Company, Inc.
Winstar Wireless, Inc. Winstar A/R SPE, LLC N/A 1 Winstar Wireless, N/A N/A
Inc.
Winstar Wireless, Inc. Winstar Broadband N/A 1 Winstar Wireless, N/A N/A
Acquisition 1999, LLC Inc.
Winstar Wireless, Inc. Winstar Government N/A 1 Winstar Wireless, N/A N/A
Solutions, LLC Inc.
Winstar Wireless, Inc. Winstar Midcom common 1 Winstar Wireless, 100 100%
Acquisition Corp. Inc.
Winstar Wireless, Inc. Winstar Network N/A 1 Winstar Wireless, N/A N/A
Expansion, LLC Inc.
Winstar Wireless, Inc. WWI License Holding, common 1 Winstar Wireless, 100 100%
Inc. Inc.
Winstar Wireless, Inc. Winstar Wireless of N/A 1 Winstar Wireless, N/A N/A
Delaware, LLC Inc.
Winstar Wireless, Inc. Winstar Wireless of N/A 1 Winstar Wireless, N/A N/A
Georgia, LLC Inc.
Winstar Wireless, Inc. Winstar Wireless of N/A 1 Winstar Wireless, N/A N/A
Indiana, LLC Inc.
Winstar Wireless, Inc. Winstar Wireless of N/A 1 Winstar Wireless, N/A N/A
New Jersey, LLC Inc.
Winstar Wireless, Inc. Winstar Wireless of N/A 1 Winstar Wireless, N/A N/A
New York, LLC Inc.
Winstar Wireless, Inc. Winstar Wireless of N/A 1 Winstar Wireless, N/A N/A
Pennsylvania, LLC Inc.
Winstar Wireless, Inc. Winstar Wireless of N/A 1 Winstar Wireless, N/A N/A
Virginia, LLC Inc.
Winstar Wireless, Inc. Winstar Wireless of N/A 1 Winstar Wireless, N/A N/A
West Virginia, LLC Inc.
Winstar Wireless Fiber Winstar LMDS, LLC N/A 1 Winstar Wireless N/A N/A
Corp. Fiber Corp.
Winstar A/R SPE, LLC Winstar A/R Account N/A 1 Winstar A/R SPE, LLC N/A N/A
Party, LLC
</TABLE>
<PAGE>
PLEDGED STOCK
<TABLE>
Percentage
of
Class Certificate Registered Number of Oustanding
Securing Party Issuer of Stock Nos. Owner Shares Shares
------------------------ ---------------------- ------------- ------------- ---------------------- ----------- -----------------
<S> <C> <C> <C> <C> <C>
Winstar New Media Winstar Interactive common 2 Winstar New Media 100 100%
Company, Inc. Media Sales, Inc. Company, Inc.
Winstar New Media Winstar EasyNet Inc. common 2 Winstar New Media 500 100%
Company, Inc. Company, Inc.
Winstar New Media Winstar Interactive common 2 Winstar New Media 100 100%
Company, Inc. Ventures I, Inc. Company, Inc.
Winstar New Media Winstar Global common 2 Winstar New Media 100 100%
Company, Inc. Media, Inc. Company, Inc.
Winstar New Media Winstar Radio common 2 Winstar New Media 100 100%
Company, Inc. Networks, Inc. Company, Inc.
Winstar New Media Non Fiction Films common 2 Winstar New Media 90 100%
Company, Inc. Inc. Company, Inc.
Winstar New Media Wellspring Media, common 2 Winstar New Media 100 100%
Company, Inc. Inc. Company, Inc.
Winstar New Media Winstar Broadcasting common 2 Winstar New Media 100 100%
Company, Inc. Corp. Company, Inc.
Winstar New Media Sportsfan Radio common 2 Winstar New Media 500 100%
Company, Inc. Network Inc. Company, Inc.
Non Fiction Films Inc. Fox/Lorber common 3 Non Fiction Films 100 100%
Associates, Inc. Inc.
Winstar Radio Walt Baby Love common 3 Winstar Radio 100 100%
Networks, Inc. Productions, Inc. Networks, Inc.
</TABLE>
<PAGE>
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
Title Registration No. Effective Date
[NONE]
<PAGE>
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
File Patent Country Registration No. Date
[NONE]
<PAGE>
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS, TRADEMARK
AND SERVICE MARK REGISTRATIONS AND APPLICATIONS FOR
TRADEMARK AND SERVICE MARK REGISTRATIONS
TRADEMARK AND SERVICE MARK REGISTRATIONS
Registration Registration
Mark or Series No. or Filing Date Status
---- -------------- --------------- ------
Winstar 74-724596 Registered
Winstar 74-586777 Registered
Winstar 74-586766 Registered
<PAGE>
ANNEX 5
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[NONE]
<PAGE>
SOFTWARE LICENSE
Product Name Qty Company
------------- -------- -----------
[NONE]
SOFTWARE LICENSE
Product Name Qty Company
------------- -------- -----------
Warranties Qty Company
------------- -------- -----------
<PAGE>
ANNEX 6
LIST OF LOCATIONS
Inventory: NONE
---------
Equipment:
---------
Entity Locations
------- --------------
Winstar Communications, Inc. State of Delaware
State of New York
New York County, New York
WCI Capital Corp. State of Delaware
State of New York
New York County, New York
Winstar A/R Account Party, LLC State of Delaware
State of New York
New York County, New York
Winstar A/R SPE, LLC State of Delaware
State of New York
New York County, New York
Winstar Broadband Acquisition 1999, LLC State of Delaware
State of New York
New York County, New York
State of Illinois
State of Virginia
Newport News, Virginia
Winstar Credit Corp. State of Delaware
State of New York
New York County, New York
Winstar Government Solutions, LLC State of Delaware
State of New York
New York County, New York
Winstar LMDS, LLC State of New York
New York County, New York
Washington D.C.
Winstar Midcom Acquisition Corp. State of Delaware
State of New York
New York County, New York
Winstar Switch Acquisition Corp. State of Delaware
State of New York
New York County, New York
State of Illinois
Winstar Wireless Fiber Corp. State of Delaware
State of New York
New York County, New York
Washington, D.C.
Winstar New Media Company, Inc. State of Delaware
State of New York
New York County, New York
SportsFan Radio Network Inc. State of Delaware
State of New York
New York County, New York
State of Nevada
Walt "Baby Love" Productions, Inc. State of New York
New York County, New York
State of California
Winstar Broadcasting Corp. State of Delaware
State of New York
New York County, New York
Washington, D.C.
Winstar Interactive Media Sales Inc. State of Delaware
State of New York
New York County, New York
Winstar Interactive Ventures I Inc. State of Delaware
State of New York
New York County, New York
Winstar Radio Networks, Inc. State of Delaware
State of New York
New York County, New York
WWI License Holding, Inc. State of Delaware
State of New York
New York County, New York
Washington, D.C.
Winstar EasyNet Inc. State of Delaware
State of Pennsylvania
Delaware County, Pennsylvania
Winstar Global Media, Inc. State of New York
New York County, New York
Non Fiction Films, Inc. State of Delaware
State of New York
New York County, New York
Fox/Lorber Associates, Inc. State of Delaware
State of New York
New York County, New York
Wellspring Media, Inc. State of Delaware
State of New York
New York County, New York
Winstar Equipment Corp. State of Alabama
Winstar Equipment II Corp. State of Alaska
Winstar Network Expansion, LLC State of Arizona
Winstar Wireless, Inc. State of Arkansas
State of California
State of Colorado
State of Connecticut
State of Delaware
State of Florida
Cobb County, Georgia
Dekalb County, Georgia
Fulton County, Georgia
Gwinnet County, Georgia
State of Hawaii
State of Idaho
State of Illinois
State of Indiana
State of Iowa
State of Kansas
State of Kentucky
Jefferson Parish, Louisiana
Orleans Parish, Lousisiana
State of Maine
State of Maryland
State of Massachusetts
Bristol County, Mansfield,
Massachusetts
Middlesex County, Burlington,
Massachusetts
Middlesex County, Woburn,
Massachusetts
Suffolk County, Boston,
Massachusetts
State of Michigan
State of Minnesota
State of Mississippi
State of Missouri
Jackson County, Missouri
St. Louis, Missouri
State of Montana
State of Nebraska
State of Nevada
State of New Hampshire
State of New Jersey
State of New Mexico
State of New York
Dutchess County, New York
Erie County, New York
Kings County, New York
New York County, New York
State of North Carolina
Mecklenberg County, North
Carolina
State of North Dakota
State of Ohio
Cuyahoga County, Ohio
Franklin County, Ohio
Hamilton County, Ohio
State of Oklahoma
State of Oregon
State of Pennsylvania
Allegheny County, Pennsylvania
Philadelphia, Pennsylvania
State of Rhode Island
State of South Carolina
State of South Dakota
State of Tennessee
State of Texas
State of Utah
State of Vermont
State of Virginia
Arlington County, Virginia
Fairfax County, Virginia
Newport News, Virginia
State of Washington
Washington, D.C.
State of West Virginia
State of Wisconsin
State of Wyoming
<PAGE>
Exhibit A to the
Security Agreement
FORM OF SECURITY AGREEMENT SUPPLEMENT
[Date of Security Agreement Supplement]
THEBANK OF NEW YORK,
as the Collateral Agent for
the Secured Parties referred
to in the Credit Agreement referred to below
______________________________
______________________________
Attn: _________________________
Winstar Communications, Inc.
WCI Capital Corp.
----------------------------
Ladies and Gentlemen:
Reference is made to (i) the Credit Agreement dated as of May 4, 2000
and (ii) the Pledge and Security Agreement dated as of May 4, 2000 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Security Agreement") made by the Securing Parties from time to time party
thereto in favor of the Collateral Agent for the Secured Parties. Terms defined
in the Credit Agreement or the Security Agreement and not otherwise defined
herein are used herein as defined in the Credit Agreement or the Security
Agreement.
Section 1. Grant of Security. The undersigned hereby assigns
and pledges to the Collateral Agent for the ratable benefit of the Secured
Parties, and hereby grants to the Collateral Agent for the ratable benefit of
the Secured Parties, a security interest in, all of its right, title and
interest in and to all of the Collateral of the undersigned, whether now owned
or hereafter acquired by the undersigned, wherever located and whether now or
hereafter existing or arising, including, without limitation, the property and
assets of the undersigned set forth on the attached supplemental schedules to
the Schedules to the Security Agreement.
Section 2. Security for Obligations. The pledge and
assignment of, and the grant of a security interest in, the Collateral by the
undersigned under this Security Agreement Supplement and the Security Agreement
<PAGE>
secures the payment of all Obligations of the undersigned now or hereafter
existing under or in respect of the Loan Documents, whether direct or indirect,
absolute or contingent, and whether for principal, reimbursement obligations,
interest, premiums, penalties, fees, indemnifications, contract causes of
action, costs, expenses or otherwise. Without limiting the generality of the
foregoing, this Security Agreement Supplement and the Security Agreement secures
the payment of all amounts that constitute part of the Secured Obligations and
that would be owed by the undersigned to any Secured Party under the Loan
Documents but for the fact that such Secured Obligations are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving a Loan Party.
Section 3. Supplements to Security Agreement Schedules. The
undersigned has attached hereto supplemental Annexes 1 through 6 to Annexes 1
through 6, respectively, to the Security Agreement, and the undersigned hereby
certifies, as of the date first above written, that such supplemental schedules
have been prepared by the undersigned in substantially the form of the
equivalent Schedules to the Security Agreement and are complete and correct in
all material respects.
Section 4. Representations and Warranties. The undersigned
hereby makes each representation and warranty set forth in Section 2 of the
Security Agreement (as supplemented by the attached supplemental schedules) to
the same extent as each other Securing Party.
Section 5. Obligations Under the Security Agreement. The
undersigned hereby agrees, as of the date first above written, to be bound as a
Securing Party by all of the terms and provisions of the Security Agreement to
the same extent as each of the other Securing Parties. The undersigned further
agrees, as of the date first above written, that each reference in the Security
Agreement to an "Additional Securing Party" or a "Securing Party" shall also
mean and be a reference to the undersigned.
Section 6. Governing Law. This Security Agreement Supplement
shall be governed by, and construed in accordance with, the laws of the State of
New York.
Very truly yours,
[NAME OF ADDITIONAL SECURING
PARTY]
By_______________________________
Title:
Address for notices:
_____________________________
_____________________________
_____________________________
<PAGE>
Exhibit 5.01(s)-4
TRADEMARK ASSIGNMENT
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
WINSTAR COMMUNICATIONS, INC., a Delaware corporation (the "Assignor"), hereby
sells, assigns, transfers and sets over to The Bank of New York, as agent for
the lenders or other financial institutions or entities party, as lenders, to
the Credit Agreement referred to below (the "Assignee"), a first priority
security interest in all of the right, title and interest, whether now owned or
hereafter acquired or possessed by the Assignor, in and to all trademarks and
registrations therefor listed on Annex A hereto which are owned in whole or in
part by the Assignor and in and to all beneficial interests in and goodwill
associated with such trademarks (all of the foregoing, collectively, the
"Trademark Collateral").
This Assignment is also subject to the terms and conditions of the
Revolving Credit and Term Loan Agreement, dated as of May 4, 2000, among the
Assignor, WCI Capital Corp., certain subsidiaries of the Assignor, certain
arrangers, agents, lenders and the Assignee (as the same may from time to time
be amended, supplemented, or otherwise modified, the "Credit Agreement") and the
Pledge and Security Agreement, dated as of May 4, 2000, between the Assignor,
WCI Capital Corp., certain subsidiaries of the Assignor and Assignee (as the
same may from time to time be amended, supplemented or otherwise modified, the
"Security Agreement").
This Assignment is made as collateral security for all Secured Obligations
(as such term is defined in the Security Agreement). All the right, title and
interest of the Assignor in, to and under the Trademark Collateral shall from
the date hereof constitute part of the Collateral (as such term is defined in
the Security Agreement) for all purposes of the Security Agreement. This
Assignment shall terminate upon the indefeasible payment in full of the Secured
Obligations. Assignee shall execute such documents and take such actions as may
be reasonably required to release the Collateral assigned hereby upon such
payment in full.
<PAGE>
IN WITNESS WHEREOF, the Assignor has caused this Assignment to be executed
as of May __, 2000.
WINSTAR COMMUNICATIONS, INC.
By:___________________________
Name:
Title:
-2-
<PAGE>
ANNEX A
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS, TRADEMARK
AND SERVICE MARK REGISTRATIONS AND APPLICATIONS FOR
TRADEMARK AND SERVICE MARK REGISTRATIONS
TRADEMARK AND SERVICE MARK REGISTRATIONS
<TABLE>
Registration or Registration or Filing Status
Mark Series No. Date
------------- ------------------------ --------------------------------- --------------------------
<S> <C> <C> <C>
Winstar 74-724596 Registered
------------- ------------------------ --------------------------------- --------------------------
Winstar 74-586777 Registered
------------- ------------------------ --------------------------------- --------------------------
Winstar 74-586766 Registered
------------- ------------------------ --------------------------------- --------------------------
</TABLE>
-3-
<PAGE>
Exhibit 6.09
FORM OF
GUARANTEE SUPPLEMENT
--------- --, ----
The Bank of New York,
as Administrative Agent and Collateral Agent,
One Wall Street
New York, New York 10286
Attention: _________
REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of May 4, 2000 among
WINSTAR COMMUNICATIONS, INC., (the "Parent"),
WCI CAPITAL CORP., a Delaware corporation (the "Borrower"),
the LENDERS party thereto,
the GUARANTORS,
THE BANK OF NEW YORK, as letter of credit issuer,
CITICORP NORTH AMERICA, INC., as syndication agent,
CIBC WORLD MARKETS CORP. AND CREDIT SUISSE FIRST BOSTON, as
documentation agents, and
THE BANK OF NEW YORK, as Administrative Agent and Collateral Agent.
Ladies and Gentlemen:
Reference is made to the above-captioned Revolving Credit and Term Loan
Agreement (the "Credit Agreement") and to the guarantee of the Guaranteed
Obligations referred to in Section 1 hereof and Article VI thereof (such
Guarantee, as in effect on the date hereof and as it may hereafter be amended,
supplemented or otherwise modified from time to time, together with this
Guarantee Supplement, being the "Guarantee"). The capitalized terms defined in
the Credit Agreement and not otherwise defined herein are used herein as therein
defined.
Section I. The Guarantee. The undersigned hereby guarantees 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, L/C Issuer or the Administrative Agent by the
Borrower under this Guarantee, the Credit Agreement and under the Notes and by
<PAGE>
any Loan Party under any of the other Credit Documents, and all obligations of
any Loan Party to any Lender or L/C Issuer in respect of any Hedging
Obligations, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Guaranteed Obligations"). The
undersigned hereby further agrees 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 undersigned will promptly pay the same, without
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.
Section II. Obligations Under the Guarantee. The undersigned hereby agrees,
as of the date first above written, to be bound as a Guarantor by all of the
terms and conditions of this Guarantee and of the guarantee contained in Article
VI of the Credit Agreement to the same extent as each of the other Guarantors
thereunder. The undersigned further agrees, as of the date first above written,
that each reference in the Guarantee and the Credit Agreement to an "Additional
Guarantor" or a "Guarantor" shall also mean and be a reference to the
undersigned, and each reference in any other Credit Document to a "Guarantor" or
a "Loan Party" shall also mean and be a reference to the undersigned.
Section III. Obligations Unconditional. A. The undersigned agrees that its
obligations under Section 1 of this Guarantee are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Borrower under the Credit Agreement, the Notes or any
other agreement or instrument referred to herein or therein, or any
substitution, release of 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 3 that the obligations of the
undersigned hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances.
B. Without limiting the generality of the foregoing, the undersigned agrees
that the occurrence of any one or more of the following shall not alter or
impair the liability of the undersigned hereunder which shall remain absolute
and unconditional as described above:
1. at any time or from time to time, without notice to the
undersigned, 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;
2. any of the acts mentioned in any of the provisions of this
Guarantee, the Credit Agreement or the Notes or any other agreement or
instrument referred to herein or therein shall be done or omitted;
-2-
<PAGE>
3. 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 Guarantee,
the Credit 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
4. any lien or security interest granted to, or in favor of, the
Administrative Agent of any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The undersigned hereby expressly waives 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 the Credit 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.
Section IV. Reinstatement. The undersigned agrees that its obligations
under this Guarantee 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
relevant Guaranteed Obligations is rescinded or must be otherwise restored by
any holder of any of such Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the undersigned
jointly and severally agrees that it will 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.
Section V. Subrogation. The undersigned hereby agrees that until the
payment and satisfaction in full of all Guaranteed Obligations and the
expiration and termination of the Commitments of the Lenders under the Credit
Agreement it shall not exercise any right or remedy arising by reason of any
performance by it of its Guarantee in Section 1 of this Guarantee, whether by
subrogation or otherwise, against the Borrower or any Guarantor of any of the
Guaranteed Obligations or any security for any of the Guaranteed Obligations.
Section VI. Remedies. The undersigned agrees that, as between itself and
the Lenders, the obligations of the Borrower under the Credit Agreement and the
Notes may be declared to be forthwith due and payable as provided in Section
9.01 of the Credit Agreement (and shall be deemed to have become automatically
due and payable in the circumstances provided in said Section 9.01) of the
Credit Agreement for purposes of Section 1 of this Guarantee notwithstanding any
stay, injunction or other prohibition preventing such declaration (or such
-3-
<PAGE>
obligations from becoming automatically due and payable) as against such
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 such Borrower) shall forthwith become due and payable
by the undersigned for purposes of said Section 1 of this Guarantee.
Section VII. Continuing Guarantee. The undersigned agrees that this
Guarantee is a continuing Guarantee of payment, and shall apply to all
Guaranteed Obligations whenever arising.
Section VIII. Limitation on Guarantee Obligations. Notwithstanding any
other provision of this Guarantee or the Credit Agreement to the contrary, 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, the undersigned, as a Loan Party, agrees with the other
Loan Parties that if the obligations of any Loan Party under this Guarantee and
the Credit Agreement would otherwise be held or determined to be void, invalid
or unenforceable on account of the amount of its liability under this Guarantee
or Article VI of the Credit Agreement, then notwithstanding any other provision
of this Guarantee and the Credit Agreement to the contrary, the amount of such
liability shall, without any further action by such Loan Party 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 IX. Representations and Warranties. The undersigned hereby makes
each representation and warranty set forth in Section 5.01 of the Credit
Agreement to the same extent as each other Guarantor.
Section X. APPLICABLE LAW. THIS GUARANTEE SUPPLEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section XI. WAIVER OF JURY. THE UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS GUARANTEE SUPPLEMENT, THE CREDIT AGREEMENT, THE NOTES OR
THE RELATIONSHIPS ESTABLISHED HEREUNDER.
Section XII. Jurisdiction and Venue; Service of Process.
1. The undersigned hereby irrevocably submits to the non-exclusive
jurisdiction of any state or federal court in the Borough of Manhattan, The
-4-
<PAGE>
City of New York for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Guarantee Supplement or any Credit Document
and to the laying of venue in the Borough of Manhattan, The City of New York.
The undersigned hereby irrevocably waives, to the fullest extent permitted by
applicable law, any objection to the laying of the venue of any such suit,
action or proceeding brought in the aforesaid courts and hereby irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
2. The undersigned agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
it at its address set forth in Section 13 , or to the undersigned at such other
address of which the Administrative Agent shall have been notified pursuant
thereto. The undersigned further agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
3. The undersigned waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or consequential
damages.
Section XIII. Notices.
1. Any communication, demand or notice to be given hereunder to the
undersigned will be duly given when delivered in writing or by telecopy to the
undersigned at its address as indicated below or such other address as the
undersigned shall specify in a notice to each other party to the Guarantee and
the Credit Documents. A communication, demand or notice given pursuant to this
Section 13 shall be addressed:
To the undersigned, at
[____________________]
[____________________]
[____________________]
Telecopy: [______________]
Attention: [______________]
2. Unless otherwise provided to the contrary herein, any notice which
is required to be given in writing pursuant to the terms of this Guarantee
Supplement may be given by telecopy.
-5-
<PAGE>
Section XIV. Execution in Counterparts. This Guarantee Supplement may
be executed in any number of counterparts and by the different parties
hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all the counterparts shall together
constitute one and the same instrument. Manual delivery of an executed
counterpart of a signature page to this Guarantee Supplement by telecopier
shall be effective as delivery of an original executed counterpart of this
Guarantee Supplement.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By_____________________________
Title:
-6-
<PAGE>
Exhibit 8.01(a)(v)
Form of Officer's Compliance Certificate
COMPLIANCE CERTIFICATE
[For the Fiscal Quarter ending ________]
[For the Fiscal Year ending ________]
Reference is made to the Revolving Credit and Term Loan Agreement, dated as
of May 4, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Winstar
Communications, Inc., a Delaware corporation (the "Parent"), WCI Capital Corp.,
a Delaware corporation (the "Borrower"), each of the entities listed on the
signature pages thereof under the heading "Guarantors" and the Additional
Guarantors from time to time parties thereto, each of the Lenders from time to
time parties thereto, The Bank of New York, as letter of credit issuer,
administrative agent and collateral agent for the Lenders, Citicorp North
America, Inc., as syndication agent for the Lenders, and CIBC World Markets
Corp. and Credit Suisse First Boston, as documentation agents for the Lenders.
Pursuant to Section 8.01(a)(v) of the Credit Agreement, the undersigned
authorized officer of the Borrower hereby certifies on behalf of the Borrower
that:
(a) As of the date of the financial statements included in each report on
Form [10-K] [10-Q] attached hereto and delivered concurrently to the
Administrative Agent pursuant to Section 8.01(a) of the Credit Agreement, no
event occurred or circumstance existed which constituted a Default or Event of
Default except as follows:
[detail any facts with respect thereto]
The financial statements referred to in Section 8.01(a) of the Credit
Agreement which are delivered concurrently with the delivery of this Compliance
Certificate fairly present the financial position, results of operations, cash
flows and changes in stockholders' equity of the Parent and its consolidated
subsidiaries, subject to normal year-end audit adjustments which are not
expected to be material in amount.1
(b) The covenant calculations set forth below for the Consolidated Group
Members are based on the Parent's [audited] consolidated balance sheet and
statements of earnings, cash flows and stockholders' equity for the fiscal
[quarter] [year] ended _________________, 20__ (the "Period-End Date") contained
in the report on Form [10-K] [10-Q] attached hereto.
--------
1 Insert only in Compliance Certificates accompanying quarterly financial
statements delivered pursuant to Section 8.01(a) of the Credit Agreement.
<PAGE>
[PHASE 1 FINANCIAL COVENANTS]
1. Maximum EBITDA Losses/Minimum EBITDA (Section [8.03(a)(i)])
[during fiscal quarter] ______
2. Minimum Revenues (Section [8.03(a)(ii)])
[fiscal quarter (calculated as of the last day of any fiscal
quarter end and based on the results of the quarter then
ended)] ________
[3. Maximum Cash Capital Expenditures (Section [8.03(a)(iii)])2
[during fiscal year] ______
4. Maximum Consolidated Senior Secured Debt to Consolidated Total
Capitalization (Section [8.03(a)(iv)])
[at any time, for the purpose of calculating Consolidated
Total Capitalization, paid-in capital shall be given effect
as of the date paid in] _______
5. Maximum Consolidated Total Debt to Consolidated Total
Capitalization (Section [8.03(a)(v)]).
[at any time, for the purpose of calculating Consolidated
Total Capitalization, paid-in capital shall be given effect
as of the date paid in] ________
6. Maximum Consolidated Senior Secured Debt to Adjusted Gross
PP&E (Section [8.03(a)(vi)]).
[at any time] ______
7. On-Network Hubs (Section [8.03(a)(vii)]).
[number for any fiscal quarter (as calculated on the last
day of any fiscal quarter)] _______
--------
2 Insert only in Compliance Certificates accompanying annual financial
statements delivered pursuant to Section 8.01(a) of the Credit Agreement.
-2-
<PAGE>
8. On-Network Buildings (Section [8.03(a)(viii)]).
[number for any fiscal quarter (calculated as of the last
day of any fiscal quarter end)] ________
[PHASE 2 FINANCIAL COVENANTS]
1. Consolidated Total Debt to Consolidated Annualized EBITDA
(Section [8.03(b)(i)])
[for any fiscal quarter for the fiscal quarter
ending on such date] ________
2. EBITDA to Consolidated Interest Expense
(Section [8.03(b)(ii)]).
[for the last four consecutive fiscal quarters
immediately preceding any date of determination] ________
3. Maximum Cash Capital Expenditures (Section [8.03(b)(iii)]).
[annual amount] ________
[ADDITIONAL FINANCIAL COVENANTS]
1. Consolidated Senior Debt to Consolidated Annualized
EBITDA (Section [8.03(c)])
[for any day during the fiscal quarter ending on
such date] ________
2. EBITDA to Consolidated Debt Service (Section [8.03(d)]).
[for the four consecutive fiscal quarters ending
on such date] ________
-3-
<PAGE>
IN WITNESS WHEREOF, on behalf of the Borrower, the undersigned has hereto
set his or her hand.
Dated: ________________, ____
WCI CAPITAL CORP.
By: _______________________________
Name: [an authorized officer]
Title:
-4-
<PAGE>
Exhibit 11.01(d)-1
Form of Revolving Credit Note
PROMISSORY NOTE
[Principal Amount] [Date]
WCI CAPITAL CORP., a Delaware corporation (the "Borrower"), for value
received, promises to pay to the order of [LENDER] (the "Lender"), on the
Revolving Credit Commitment Termination Date (as defined in the Credit Agreement
referred to below), the principal sum of [PRINCIPAL AMOUNT IN DOLLARS] or, if
less, the aggregate principal amount of the Revolving Credit Loans made by the
Lender to the Borrower pursuant to that certain Revolving Credit and Term Loan
Agreement, dated as of May 4, 2000 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Winstar Communications, Inc., a Delaware corporation (the "Parent"), WCI
Capital Corp., a Delaware corporation (the "Borrower"), each of the entities
listed on the signature pages thereof under the heading "Guarantors" and the
Additional Guarantors from time to time parties thereto, each of the Lenders
from time to time parties thereto, The Bank of New York, as letter of credit
issuer, administrative agent and collateral agent for the Lenders, Citicorp
North America, Inc., as syndication agent for the Lenders, and CIBC World
Markets Corp. and Credit Suisse First Boston, as documentation agents for the
Lenders.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding, from the date hereof until the date of
repayment, at the rate or rates per annum and on the date or dates specified in
the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in funds immediately available to the Lender at its
office or offices designated in accordance with the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive diligence, presentment, demand, protest and notice of any kind whatsoever.
The failure or forbearance by the holder to exercise any of its rights hereunder
in any particular instance shall in no event constitute a waiver thereof.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder of this Note on the grid attached hereto and made a
part hereof, or on a continuation thereof which shall be attached hereto and
made a part hereof, or shall be recorded by the holder of this Note in its
internal records; provided, however, that any failure of the holder of this Note
to make such a notation or any error in such notation shall in no manner affect
the validity or enforceability of the obligation of the Borrower to make
<PAGE>
payments of principal and interest in accordance with the terms of this Note and
the Credit Agreement.
This Note is one of the Revolving Credit Notes referred to in the Credit
Agreement, which, among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events, for optional
prepayment of the principal hereof prior to the maturity thereof and for the
amendment or waiver of certain provisions of the Credit Agreement and/or this
Note, all upon the terms and conditions therein specified. Capitalized terms
used and not otherwise defined herein have the meanings ascribed thereto in the
Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
This Note is not negotiable and interests herein may be assigned only upon
the terms and conditions specified in the Credit Agreement.
WCI CAPITAL CORP.
By:_______________________________
Name:
Title:
-2-
<PAGE>
<TABLE>
REVOLVING CREDIT LOANS AND PRINCIPAL PAYMENTS
Amount of Revolving Amount of Amount of Unpaid
Credit Loans Made Principal Repaid Principal Balance
-------------------- ----------------- ------------------
Euro Interest Euro Euro
ABR dollar Period (if ABR dollar ABR dollar Notation
Date Loan Loan applicable) Loan Loan Loan Loan Total Made By
---- ----- ----- ----------- ----- ------ ----- ------ ----- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
-3-
<PAGE>
Exhibit 11.01(d)-2
Form of Term Loan Note
PROMISSORY NOTE
[Principal Amount] [Date]
WCI CAPITAL CORP., a Delaware corporation (the "Borrower"), for value
received, hereby promises to pay to the order of [LENDER] (the "Lender"), at the
office of ____________________, at ___________________________________, in
lawful money of the United States, the principal sum of [PRINCIPAL AMOUNT IN
DOLLARS], in installments as follows due on each Term Loan [A] [B] Scheduled
Installment Date, as defined in the Credit Agreement (hereinafter defined),
equal to the [percentages][amounts] set forth in Section 2.05[(b)][c] of the
Credit Agreement.
This Note shall bear interest as set forth in the Credit Agreement for Term
Loan [A] [B] Loans. If interest or principal on the loan evidenced by this Note
becomes due and payable on a day which is not a Business Day, as defined in the
Credit Agreement, the maturity thereof shall be extended and interest shall be
payable thereon at the rate specified in the Credit Agreement during such
extension.
This Note is one of the Term Notes referred to in that certain Revolving
Credit and Term Loan Agreement, dated as of May 4, 2000 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Winstar Communications, Inc., a Delaware corporation (the
"Parent"), WCI Capital Corp., a Delaware corporation (the "Borrower"), each of
the entities listed on the signature pages thereof under the heading
"Guarantors" and the Additional Guarantors from time to time parties thereto,
each of the Lenders from time to time parties thereto, The Bank of New York, as
letter of credit issuer, administrative agent and collateral agent for the
Lenders, Citicorp North America, Inc., as syndication agent for the Lenders, and
CIBC World Markets Corp. and Credit Suisse First Boston, as documentation agents
for the Lenders, and is subject to prepayment in whole or in part and its
maturity is subject to acceleration upon the terms provided in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
This Note is not negotiable and interests herein may be assigned only upon
the terms and conditions specified in the Credit Agreement.
All changes in interest determination on the Term Loan [A] [B] Loan made
pursuant to the Credit Agreement and all payments of principal hereof may be
<PAGE>
indicated by the Lender upon the grid attached hereto which is a part of this
Note. Such notations shall be pre sumptive as to the aggregate unpaid principal
and interest due under this Term Loan [A] [B] Loan.
WCI CAPITAL CORP.
By:__________________________
Name:
Title:
-2-
<PAGE>
TERM LOAN AND PRINCIPAL PAYMENTS
Aggregate Principal Amount of Term Loan [A] [B] Loan: $___________________
Borrowing Date: ____________________
<TABLE>
Amount of
Interest Interest Amount of Unpaid
Rate Period (if Principal Principal Notation
Date Basis applicable) Repaid Balance Total Made By
---- -------- ----------- ----------- ----------- ----- --------
[ABR]
[Eurodollar]
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
-3-
<PAGE>
Exhibit 11.03(a)
Form of Assignment and Acceptance
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit and Term Loan Agreement, dated as
of May 4, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Winstar
Communications, Inc., a Delaware corporation (the "Parent"), WCI Capital Corp.,
a Delaware corporation (the "Borrower"), each of the entities listed on the
signature pages thereof under the heading "Guarantors" and the Additional
Guarantors from time to time parties thereto, each of the Lenders from time to
time parties thereto, The Bank of New York, as letter of credit issuer,
administrative agent and collateral agent for the Lenders, Citicorp North
America, Inc., as syndication agent for the Lenders, and CIBC World Markets
Corp. and Credit Suisse First Boston, as documentation agents for the Lenders.
Capitalized terms defined in the Credit Agreement are used herein with the same
meanings.
1. The assignor identified below (the "Assignor") hereby sells and assigns,
without recourse, to the assignee identified below (the "Assignee"), and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Assignment Date (as defined herein) set forth below, the
interests set forth below (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement and the other Credit Documents ,
including, without limitation, the interests set forth below in (i) the
Commitments of the Assignor on the Assignment Date, (ii) the Loans (and any
accrued interest thereon) owing to the Assignor which are outstanding on the
Assignment Date and (iii) any other amounts owing to each such Assignor under
the Credit Agreement on the Assignment Date. The Assignee hereby acknowledges
receipt of a copy of the Credit Agreement. From and after the Assignment Date
(i) the Assignee shall be a party to and be bound by the provisions of the
Credit Agreement and, to the extent of the interests assigned by this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and under
the Credit Documents and (ii) the Assignor shall, to the extent of the interests
assigned by this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any forms of the
type described in Section 4.04(a) of the Credit Agreement, duly completed and
executed by such Assignee, (ii) if the Assignee is not already a Lender under
the Credit Agreement, an Administrative Questionnaire and (iii) if required
under the Credit Agreement, a processing and recordation fee of $3,500.
3. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
<PAGE>
Date of Assignment and Acceptance:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment and Acceptance (the "Assignment Date")1/:
-
Percentage of Total
Commitment Assigned2/
Revolving Credit Commitment %
Term Loan A Commitment %
Term Loan B Commitment %
Principal Amount Assigned
Revolving Credit Loans $
Term Loan A Loans $
Term Loan B Loans $
--------
1/ May not be fewer than two Business Days after the date of the Assignment
and Acceptance.
2/ Set forth, to at least 8 decimals, as a percentage of the Total Commitment.
-2-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
The terms set forth above
are hereby agreed to:
_________________, as Assignor _________________, as Assignee
By:__________________________ By:__________________________
Name: Name:
Title: Title:
Consent given:3/
------------- -
WINSTAR COMMUNICATIONS, INC. [ADMINISTRATIVE AGENT]
By:__________________________ By:__________________________
Name: Name:
Title: Title:
WCI CAPITAL CORP. [L/C ISSUER]
By:__________________________ By:__________________________
Name: Name:
Title: Title:
--------
3/ To be completed to the extent consents are required under Section 11.03(a)
of the Credit Agreement.
-3-
<PAGE>
SCHEDULES
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AMONG
WINSTAR COMMUNICATIONS, INC.
WCI CAPITAL CORP.
THE GUARANTORS FROM TIME TO TIME PARTIES THERETO
THE BANK OF NEW YORK, AS ADMINISTRATIVE AGENT, COLLATERAL AGENT,
LENDER AND LETTER OF CREDIT ISSUER
AND
THE OTHER LENDERS PARTIES THERETO
<PAGE>
Schedule 1.01(c)-1
Lenders and Commitments*
<TABLE>
Revolving
Address for Credit Term Loan A Term Loan B Total
Lender Notices Commitment Commitment Commitment Commitment
------ --------- ---------- -------------- -------------- -------------
<S> <C> <C> <C> <C> <C>
The Bank of New York One Wall Street $25,000,000.00 $31,250,000.00 $101,562,500.00 $157,812,500.00
New York, NY 10286
CIBC Inc. 425 Lexington Avenue $25,000,000.00 $31,250,000.00 $101,562,500.00 $157,812,500.00
New York, NY 10017
Citicorp North America, 390 Greenwich Street, $25,000,000.00 $31,250,000.00 $101,562,500.00 $157,812,500.00
Inc. 1st Floor
New York, NY 10013
Credit Suisse First Boston 11 Madison Avenue $25,000,000.00 $31,250,000.00 $106,562,500.00 $162,812,500.00
New York, NY 10010
ABN AMRO Bank N.V. 500 Park Avenue, $18,888,888.89 $23,611,111.11 -- $42,500,000.00
2nd Floor
New York, NY 10022
Bank of Nova Scotia One Liberty Plaza $18,888,888.89 $23,611,111.11 -- $42,500,000.00
New York, NY 10006
Barclays Bank PLC Borrowing Notices: $18,888,888.89 $23,611,111.11 $10,000,000.00 $52,500,000.00
------------------
222 Broadway
New York, NY 10038
Attention: Jackie Brown
Other Notices:
--------------
388 Market Street,
Suite 1700
San Francisco, CA 94111
Credit Lyonnais New York 1301 Avenue of the $18,888,888.89 $23,611,111.11 $10,000,000.00 $52,500,000.00
Branch Americas
New York, NY 10019
</TABLE>
--------
* Commitments as of the Effective Date.
<PAGE>
<TABLE>
Revolving
Address for Credit Term Loan A Term Loan B Total
Lender Notices Commitment Commitment Commitment Commitment
------ --------- ---------- -------------- -------------- -------------
<S> <C> <C> <C> <C> <C>
Dresdner Bank AG, New 75 Wall Street $18,888,888.89 $23,611,111.11 -- $42,500,000.00
York and Grand Cayman New York, NY 10005-2889
Branches Borrowing Notices:
------------------
Attention: Lora Lamb
Other Notices:
Attention: William Lambert
Fleet National Bank 100 Federal Street $18,888,888.89 $23,611,111.11 -- $42,500,000.00
Mail Code: MADE10008H
Boston, MA 02110
Morgan Guaranty Trust 60 Wall Street $18,888,888.89 $23,611,111.11 -- $42,500,000.00
Company of New York New York, NY 10260-0060
Attention: John Kowalczuk
Royal Bank of Canada One Liberty Plaza, $18,888,888.89 $23,611,111.11 -- $42,500,000.00
Fifth Floor
New York, NY 10006-1404
Societe Generale 1221 Avenue of the $18,888,888.89 $23,611,111.11 -- $42,500,000.00
Americas
New York, NY 10020
Toronto Dominion (Texas), 909 Fannin Street, $18,888,888.89 $23,611,111.11 $2,250,000.00 $45,000,000.00
Inc. 19th Floor
Houston, TX 77010
IBM Credit Corporation North Castle Drive $11,111,111.11 $13,888,888.89 -- $25,000,000.00
Armonk, NY 10504
Merrill Lynch Senior 800 Scudders Mill Road -- -- $16,500,000.00 $16,500,000.00
Floating Rate Fund, Inc. Plainsboro, NJ 08536
</TABLE>
-2-
<PAGE>
<TABLE>
Revolving
Address for Credit Term Loan A Term Loan B Total
Lender Notices Commitment Commitment Commitment Commitment
------ --------- ---------- -------------- -------------- -------------
<S> <C> <C> <C> <C> <C>
Van Kampen Prime Rate One Parkview Plaza, -- -- $12,500,000.00 $12,500,000.00
Income Trust 5th Floor
Oakbrook Terrace, IL 60181
Van Kampen Senior One Parkview Plaza, -- -- $12,500,000.00 $12,500,000.00
Income Trust 5th Floor
Oakbrook Terrace, IL 60181
</TABLE>
-3-
<PAGE>
Schedule 5.01(b) - Subsidiaries
<TABLE>
Jurisdiction Authorized
Restricted Subs of Organization Capital Issued Capital
----------------------------------- --------------------- ------------------ -----------------------------------------------------
<S> <C> <C> <C>
WCI Capital Corp. Delaware 200 common 100 shares held by Winstar Communications, Inc.
Winstar Wireless, Inc. Delaware 200 common, 90 shares held by Winstar Communications, Inc.
Winstar A/R SPE, LLC Delaware n/a Winstar Wireless, Inc. is sole member
Winstar A/R Account Party, LLC Delaware n/a Winstar A/R SPE, LLC is sole member
Winstar Broadband Acquisition 1999, LLC Delaware n/a Winstar Wireless, Inc. is sole member
Winstar Government Solutions, LLC Delaware n/a Winstar Wireless, Inc. is sole member
Winstar Midcom Acquisition Corp. Delaware 200 common 100 shares held by Winstar Wireless, Inc.
Winstar Network Expansion, LLC Delaware n/a Winstar Wireless, Inc. is sole member
WWI License Holding, Inc. Delaware 200 common 100 held by Winstar Wireless, Inc.
Winstar Equipment Corp. Delaware 200 common, 100 shares held by WCI Capital Corp.
Winstar Equipment II Corp. Delaware 200 common, 100 shares held by WCI Capital Corp.
Winstar Wireless Fiber Corp. Delaware 200 common 100 shares held by WCI Capital Corp.
Winstar LMDS, LLC Delaware n/a Winstar Wireless Fiber Corp. is sole member
Winstar Credit Corp. Delaware 200 common 100 shares held by WCI Capital Corp.
Winstar Switch Acquisition Corp. Delaware 200 common 100 shares held by WCI Capital Corp.
Winstar New Media Company, Inc. Delaware 25.0 million common 24,000,000 common shares held by WCI Capital
Corp.; 1.0
1 million preferred million common shares held by non-affiliates
Winstar Interactive Media Sales, Inc. Delaware 3,000 common 100 shares held by Winstar New Media Company,
Inc.
Winstar EasyNet Inc. Delaware 1,000 common 500 shares held by Winstar New Media Company,
Inc.
Winstar Interactive Ventures I, Inc. Delaware 200 common 100 shares held by Winstar New Media Company,
Inc.
Winstar Global Media, Inc. New York 200 common 100 shares held by Winstar New Media Company,
Inc.
Winstar Radio Networks, Inc. Delaware 200 common 100 shares held by Winstar New Media Company,
Inc.
Walt Baby Love Productions, Inc. California 100,000 common 100 shares held by Winstar Radio Networks, Inc.
Non Fiction Films Inc. Delaware 200 common 90 shares held by Winstar New Media Company,
Inc.
Fox/Lorber Associates, Inc. New York 5.0 million common 100 shares held by Non Fiction Films Inc.
Wellspring Media, Inc. Delaware 40,000 common 100 common shares held by Winstar New Media
15,000 class A common Company, Inc.
12,000 preferred
Winstar Broadcasting Corp. Delaware 200 common 100 shares held by Winstar New Media Company,
Inc.
Sportsfan Radio Network Inc. Delaware 1,000 common 500 shares held by Winstar New Media Company,
Inc.
</TABLE>
<PAGE>
<TABLE>
Jurisdiction Authorized
Temporary Rest. Subs of Organization Capital Issued Capital
----------------------------------- --------------------- ------------------ -----------------------------------------------------
<S> <C> <C> <C>
Winstar Wireless of Delaware, LLC Delaware n/a Winstar Wireless, Inc. is sole member
Winstar Wireless of Georgia, LLC Delaware n/a Winstar Wireless, Inc. is sole member
Winstar Wireless of Indiana, LLC Delaware n/a Winstar Wireless, Inc. is sole member
Winstar Wireless of New Jersey, LLC Delaware n/a Winstar Wireless, Inc. is sole member
Winstar Wireless of New York, LLC Delaware n/a Winstar Wireless, Inc. is sole member
Winstar Wireless of Pennsylvania, LLC Delaware n/a Winstar Wireless, Inc. is sole member
Winstar Wireless of Virginia, LLC Virginia n/a Winstar Wireless, Inc. is sole member
Winstar Wireless of West Virginia, LLC Delaware n/a Winstar Wireless, Inc. is sole member
Jurisdiction Authorized
Unrestricted Subs of Organization Capital Issued Capital
----------------------------------- --------------------- ------------------ -----------------------------------------------------
Winstar for Business, Inc. Delaware
Office.com, Inc. Delaware 9,000 common 150 common shares and 222 Series A Convertible
1,000 preferred Preferred shares held by Winstar for Business,
Inc. 50 common shares and 111 Series A
Convertible Preferred shares held by CBS, Inc.
Individual.com, Inc. Delaware 25 million common 4.0 million shares held by Office.com, Inc.
1.0 million shares held by NewsEdge Corporation
At Your Office, Inc. Delaware 200 common 100 shares held by Winstar New Media Company,
Inc.
Winstar International, Inc. Delaware 200 common 100 shares held by WCI Capital Corp.
Winstar Europe SA Belgium
Winstar Japan Japan
Winstar Australia PTY Ltd. Australia
Winstar del Peru, SRL Peru
Winstar International Hongkong Holding (BVI) British
Ltd. Virgin Islands
Winstar Hongkong (BVI) Limited British
Virgin Islands
Winstar Communications Hongkong Limited Hong Kong
Winstar Argentina SA Argentina
Comnet SA Argentina
Winstar Venezuela CA Venezuela
Winstar Holdings do Brazil, Ltda. Brazil
Winstar do Brazil, Ltda. Brazil
Winstar Columbia, Ltda. Columbia
Winstar Holdings BV The Netherlands
Winstar Communications GMBH Germany
Winstar Communications BV The Netherlands
Winstar Communications SA (France) France
Winstar Communications Ltd. (UK) UK
Winstar Communications SA (Switz) Switzerland
Winstar Communications SA (Belgium) Belgium
Winstar Communications of Canada, Inc. Canada
Winstar Puerto Rico, Inc. Puerto Rico
WVF-I, LLC Delaware n/a Winstar Wireless, Inc. is sole member
</TABLE>
<PAGE>
Schedule 5.01(e)-1 - Certain Litigation
None.
<PAGE>
Schedule 5.01(e)-2 - Labor Controversies
None.
<PAGE>
Schedule 5.01(g)(ii) - Material Adverse Changes
None.
<PAGE>
Schedule 5.01(m)(ii) - Telecommunications Licenses
1. Summary of Winstar 38 GHz License Holdings
<TABLE>
Service
ID Licensee Call Sign Service Area Type # of Channels
--- -------- --------- ------------- ------- ---------------
<S> <C> <C> <C> <C> <C>
1. Winstar Wireless Fiber Corp. WJPC619 Poughkeepsie, NY 38GHz 1
2. Winstar Wireless Fiber Corp. WMG833 Baltimore, MD 38GHz 1
3. Winstar Wireless Fiber Corp. WMG834 Long Island, NY 38GHz 1
4. Winstar Wireless Fiber Corp. WMG835 Northeast, NJ 38GHz 1
5. Winstar Wireless Fiber Corp. WMK415 New York, NY 38GHz 1
6. Winstar Wireless Fiber Corp. WMN318 Seattle, WA 38GHz 7
7. Winstar Wireless Fiber Corp. WMN319 Atlanta, GA 38GHz 4
8. Winstar Wireless Fiber Corp. WMN320 Baltimore, MD 38GHz 6
9. Winstar Wireless Fiber Corp. WMN321 Boston, MA 38GHz 6
10. Winstar Wireless Fiber Corp. WMN322 Buffalo, NY 38GHz 7
11. Winstar Wireless Fiber Corp. WMN323 Chicago, IL 38GHz 6
12. Winstar Wireless Fiber Corp. WMN324 Cincinnati, OH 38GHz 7 (one is 2x 50 MHz)
13. Winstar Wireless Fiber Corp. WMN325 Cleveland, OH 38GHz 6
14. Winstar Wireless Fiber Corp. WMN326 Dallas, TX 38GHz 4
15. Winstar Wireless Fiber Corp. WMN327 Denver, CO 38GHz 6
16. Winstar Wireless Fiber Corp. WMN328 Detroit, MI 38GHz 6
17. Winstar Wireless Fiber Corp. WMN329 Houston, TX 38GHz 7
18. Winstar Wireless Fiber Corp. WMN330 Kansas City, KS 38GHz 6
19. Winstar Wireless Fiber Corp. WMN331 Los Angeles, CA 38GHz 4
20. Winstar Wireless Fiber Corp. WMN332 Miami, FL 38GHz 7
21. Winstar Wireless Fiber Corp. WMN333 Milwaukee, WI 38GHz 6
22. Winstar Wireless Fiber Corp. WMN334 Minneapolis, MN 38GHz 6
23. Winstar Wireless Fiber Corp. WMN335 New York (LI), NY 38GHz 6
24. Winstar Wireless Fiber Corp. WMN336 New York (West), NY 38GHz 6
25. Winstar Wireless Fiber Corp. WMN337 New York (Man), NY 38GHz 7
26. Winstar Wireless Fiber Corp. WMN338 Philadelphia, PA 38GHz 5
27. Winstar Wireless Fiber Corp. WMN339 Phoenix, AZ 38GHz 6
28. Winstar Wireless Fiber Corp. WMN340 Pittsburgh, PA 38GHz 5
29. Winstar Wireless Fiber Corp. WMN341 San Diego, CA 38GHz 5
30. Winstar Wireless Fiber Corp. WMN342 San Francisco, CA 38GHz 4
31. Winstar Wireless Fiber Corp. WMN343 Spokane, WA 38GHz 7
32. Winstar Wireless Fiber Corp. WMN344 St. Louis, MO 38GHz 6
33. Winstar Wireless Fiber Corp. WMN345 Tacoma, WA 38GHz 6
34. Winstar Wireless Fiber Corp. WMN346 Tampa, FL 38GHz 7
35. Winstar Wireless Fiber Corp. WMN347 Washington, D.C. 38GHz 6
36. Winstar Wireless Fiber Corp. WMT531 Austin, TX 38GHz 1
37. Winstar Wireless Fiber Corp. WMT602 Houston, TX 38GHz 1
38. Winstar Wireless Fiber Corp. WMT603 Buffalo, NY 38GHz 1
39. Winstar Wireless Fiber Corp. WMT604 Phoenix, AZ 38GHz 1
40. Winstar Wireless Fiber Corp. WMT605 Pittsburgh, PA 38GHz 1
41. Winstar Wireless Fiber Corp. WMT606 Seattle, WA 38GHz 1
42. Winstar Wireless Fiber Corp. WMT607 Denver, CO 38GHz 1
43. Winstar Wireless Fiber Corp. WMT608 Charlotte, NC 38GHz 1
44. Winstar Wireless Fiber Corp. WMT609 Chicago, IL 38GHz 1
45. Winstar Wireless Fiber Corp. WMT610 Dallas, TX 38GHz 1
46. Winstar Wireless Fiber Corp. WMT611 Cincinnati, OH 38GHz 1
47. Winstar Wireless Fiber Corp. WMT612 Cleveland, OH 38GHz 1
48. Winstar Wireless Fiber Corp. WMT613 Columbus, OH 38GHz 1
49. Winstar Wireless Fiber Corp. WMT614 Orlando, FL 38GHz 1
</TABLE>
<PAGE>
<TABLE>
Service
ID Licensee Call Sign Service Area Type # of Channels
--- -------- --------- ------------- ------- ---------------
<S> <C> <C> <C> <C> <C>
50. Winstar Wireless Fiber Corp. WMT615 Washington, D.C. 38GHz 1
51. Winstar Wireless Fiber Corp. WMT616 St. Louis, MO 38GHz 1
52. Winstar Wireless Fiber Corp. WMT670 Honolulu, HI 38GHz 1
53. Winstar Wireless Fiber Corp. WMT671 Minneapolis, MN 38GHz 1
54. Winstar Wireless Fiber Corp. WMT672 Memphis, TN 38GHz 1
55. Winstar Wireless Fiber Corp. WMT673 New York-Man, NY 38GHz 1
56. Winstar Wireless Fiber Corp. WMT674 Atlanta, GA 38GHz 1
57. Winstar Wireless Fiber Corp. WMT675 Boston, MA 38GHz 1
58. Winstar Wireless Fiber Corp. WMT676 Los Angeles, CA 38GHz 1
59. Winstar Wireless Fiber Corp. WMT677 Milwaukee, WI 38GHz 1
60. Winstar Wireless Fiber Corp. WMT678 Detroit, MI 38GHz 1
61. Winstar Wireless Fiber Corp. WMT679 Kansas City, KS 38GHz 1
62. Winstar Wireless Fiber Corp. WMT686 Boston, MA 38GHz 1
63. Winstar Wireless Fiber Corp. WMT763 Rochester, NY 38GHz 1
64. Winstar Wireless Fiber Corp. WMT817 Richmond, VA 38GHz 1
65. Winstar Wireless Fiber Corp. WMT818 Nashville, TN 38GHz 1
66. Winstar Wireless Fiber Corp. WMT819 Austin, TX 38GHz 1
67. Winstar Wireless Fiber Corp. WMT820 San Juan, PR 38GHz 1
68. Winstar Wireless Fiber Corp. WMT821 Portland, OR 38GHz 1
69. Winstar Wireless Fiber Corp. WMT822 Norfolk, VA 38GHz 1
70. Winstar Wireless Fiber Corp. WMT823 San Antonio, TX 38GHz 1
71. Winstar Wireless Fiber Corp. WMT824 Jacksonville, FL 38GHz 1
72. Winstar Wireless Fiber Corp. WMW286 Providence, RI 38GHz 1
73. Winstar Wireless Fiber Corp. WMW287 Dayton, OH 38GHz 1
74. Winstar Wireless Fiber Corp. WMW288 Tampa, FL 38GHz 1
75. Winstar Wireless Fiber Corp. WMW289 Miami, FL 38GHz 1
76. Winstar Wireless Fiber Corp. WMW290 Raleigh, NC 38GHz 1
77. Winstar Wireless Fiber Corp. WMW291 West Palm Beach, FL 38GHz 1
78. Winstar Wireless Fiber Corp. WMW292 Indianapolis, IN 38GHz 1
79. Winstar Wireless Fiber Corp. WMW493 New York, NY 38GHz 1
80. WWI License Holding, Inc. WMW517 Austin, TX 38GHz 1
81. WWI License Holding, Inc. WMW518 Indianapolis, IN 38GHz 1
82. WWI License Holding, Inc. WMW519 Jacksonville, FL 38GHz 1
83. WWI License Holding, Inc. WMW520 Memphis, TN 38GHz 1
84. WWI License Holding, Inc. WMW521 Omaha, NE 38GHz 1
85. WWI License Holding, Inc. WMW522 San Antonio, TX 38GHz 1
86. Winstar Wireless Fiber Corp. WMW858 Sacramento, CA 38GHz 1
87. WWI License Holding, Inc. WMW860 Charlotte, NC 38GHz 1
88. WWI License Holding, Inc. WMW861 New Orleans, LA 38GHz 1
89. WWI License Holding, Inc. WMW862 Norfolk, VA 38GHz 1
90. WWI License Holding, Inc. WMW863 Oklahoma City, OK 38GHz 1
91. WWI License Holding, Inc. WMW864 Portland, OR 38GHz 1
92. Winstar Wireless Fiber Corp. WMW867 San Francisco, CA 38GHz 1
93. Winstar Wireless Fiber Corp. WMW942 Hartford, CT 38GHz 1
94. Winstar Wireless Fiber Corp. WMW943 Philadelphia, PA 38GHz 1
95. Winstar Wireless Fiber Corp. WPJA780 Las Vegas, NV 38GHz 1
96. Winstar Wireless Fiber Corp. WPJA781 Spokane, WA 38GHz 1
97. Winstar Wireless Fiber Corp. WPJA782 Portland, OR 38GHz 1
98. Winstar Wireless Fiber Corp. WPJA784 Philadelphia, PA 38GHz 1
99. Winstar Wireless Fiber Corp. WPJA785 Dallas, TX 38GHz 1
100. Winstar Wireless Fiber Corp. WPJA786 Baltimore, MD 38GHz 1
101. Winstar Wireless Fiber Corp. WPJA793 Mobile, AL 38GHz 1
102. Winstar Wireless Fiber Corp. WPJA794 Harrisburg, PA 38GHz 1
</TABLE>
<PAGE>
<TABLE>
Service
ID Licensee Call Sign Service Area Type # of Channels
--- -------- --------- ------------- ------- ---------------
<S> <C> <C> <C> <C> <C>
103. Winstar Wireless Fiber Corp. WPJA795 Chattanooga, TN 38GHz 1
104. Winstar Wireless Fiber Corp. WPJA796 Spokane, WA 38GHz 1
105. Winstar Wireless Fiber Corp. WPJA797 Tulsa, OK 38GHz 1
106. Winstar Wireless Fiber Corp. WPJA798 El Paso, TX 38GHz 1
107. Winstar Wireless Fiber Corp. WPJA799 Syracuse, NY 38GHz 1
108. Winstar Wireless Fiber Corp. WPJC255 Birmingham, AL 38GHz 1
109. WWI License Holding, Inc. WPJC352 Stamford, CT 38GHz 1
110. WWI License Holding, Inc. WPJC391 Boise City, ID 38GHz 1
111. Winstar Wireless Fiber Corp. WPJC569 Norfolk, VA 38GHz 1
112. Winstar Wireless Fiber Corp. WPJC570 Monterey, CA 38GHz 1
113. Winstar Wireless Fiber Corp. WPJC571 Memphis, TN 38GHz 1
114. Winstar Wireless Fiber Corp. WPJC572 Las Vegas, NV 38GHz 1
115. Winstar Wireless Fiber Corp. WPJC573 Indianapolis, IN 38GHz 1
116. Winstar Wireless Fiber Corp. WPJC574 Greensboro, NC 38GHz 1
117. Winstar Wireless Fiber Corp. WPJC575 Dayton, OH 38GHz 1
118. Winstar Wireless Fiber Corp. WPJC576 Columbus, OH 38GHz 1
119. Winstar Wireless Fiber Corp. WPJC577 Salt Lake City, UT 38GHz 1
120. Winstar Wireless Fiber Corp. WPJC578 Tampa, FL 38GHz 1
121. Winstar Wireless Fiber Corp. WPJC579 Tulsa, OK 38GHz 1
122. Winstar Wireless Fiber Corp. WPJC609 Jackson, MS 38GHz 1
123. Winstar Wireless Fiber Corp. WPJC610 Omaha, NE 38GHz 1
124. Winstar Wireless Fiber Corp. WPJC611 Little Rock, AR 38GHz 1
125. Winstar Wireless Fiber Corp. WPJC612 Birmingham, AL 38GHz 1
126. Winstar Wireless Fiber Corp. WPJC613 Battle Creek, MI 38GHz 1
127. Winstar Wireless Fiber Corp. WPJC614 Albany, NY 38GHz 1
128. Winstar Wireless Fiber Corp. WPJC615 Toledo, OH 38GHz 1
129. Winstar Wireless Fiber Corp. WPJC616 Albuquerque, NM 38GHz 1
130. Winstar Wireless Fiber Corp. WPJC617 Columbia, SC 38GHz 1
131. Winstar Wireless Fiber Corp. WPJC618 Ogden, UT 38GHz 1
132. Winstar Wireless Fiber Corp. WPJC620 Louisville, KY 38GHz 1
133. Winstar Wireless Fiber Corp. WPJC622 Grand Rapids, MI 38GHz 1
134. Winstar Wireless Fiber Corp. WPJC710 Madison, WI 38GHz 1
135. Winstar Wireless Fiber Corp. WPJC711 Green Bay, MI 38GHz 1
136. Winstar Wireless Fiber Corp. WPJC928 Greenville, SC 38GHz 1
137. Winstar Wireless Fiber Corp. WPJC929 Wichita, KS 38GHz 1
138. Winstar Wireless Fiber Corp. WPJC984 Allentown, PA 38GHz 1
139. Winstar Wireless Fiber Corp. WPJC985 Youngstown, OH 38GHz 1
140. Winstar Wireless Fiber Corp. WPJC986 Ft. Worth, TX 38GHz 1
141. Winstar Wireless Fiber Corp. WPJC987 Danbury, CT 38GHz 1
142. Winstar Wireless Fiber Corp. WPJC988 Cape Cod, MA 38GHz 1
143. Winstar Wireless Fiber Corp. WPJC989 New Brunswick, NJ 38GHz 1
144. Winstar Wireless Fiber Corp. WPJC990 Melbourne, FL 38GHz 1
145. Winstar Wireless Fiber Corp. WPJC991 South Bend, IN 38GHz 1
146. Winstar Wireless Fiber Corp. WPJD393 Baton Rouge, LA 38GHz 1
147. Winstar Wireless Fiber Corp. WPJD394 Greensboro, NC 38GHz 1
148. Winstar Wireless Fiber Corp. WPJD395 New Orleans, LA 38GHz 1
149. Winstar Wireless Fiber Corp. WPJD856 Southampton, NY 38GHz 1
150. Winstar Wireless Fiber Corp. WPJD860 Toledo, OH 38GHz 1
151. Winstar Wireless Fiber Corp. WPJD861 W. Palm Beach, FL 38GHz 1
152. Winstar Wireless Fiber Corp. WPJD862 Poughkeepsie, NY 38GHz 1
153. Winstar Wireless Fiber Corp. WPJD863 Ft. Worth, TX 38GHz 1
154. Winstar Wireless Fiber Corp. WPJD864 Baton Rouge, LA 38GHz 1
155. Winstar Wireless Fiber Corp. WPJD865 Rockford, IL 38GHz 1
</TABLE>
<PAGE>
<TABLE>
Service
ID Licensee Call Sign Service Area Type # of Channels
--- -------- --------- ------------- ------- ---------------
<S> <C> <C> <C> <C> <C>
156. Winstar Wireless Fiber Corp. WPJD866 Shreveport, LA 38GHz 1
157. Winstar Wireless Fiber Corp. WPJD867 Canton, OH 38GHz 1
158. Winstar Wireless Fiber Corp. WPJD868 Louisville, KY 38GHz 1
159. Winstar Wireless Fiber Corp. WPJD869 Flint, MI 38GHz 1
160. Winstar Wireless Fiber Corp. WPJD870 Syracuse, NY 38GHz 1
161. Winstar Wireless Fiber Corp. WPJD871 Corpus Christi, TX 38GHz 1
162. Winstar Wireless Fiber Corp. WPJD872 Montgomery, AL 38GHz 1
163. Winstar Wireless Fiber Corp. WPJD873 Scranton, PA 38GHz 1
164. Winstar Wireless Fiber Corp. WPJD874 Savannah, GA 38GHz 1
165. Winstar Wireless Fiber Corp. WPJD875 Reno, NV 38GHz 1
166. Winstar Wireless Fiber Corp. WPJD876 Springfield, MA 38GHz 1
167. Winstar Wireless Fiber Corp. WPJD877 Ft. Worth, TX 38GHz 1
168. Winstar Wireless Fiber Corp. WPJD878 Peoria, IL 38GHz 1
169. Winstar Wireless Fiber Corp. WPJD879 Toledo, OH 38GHz 1
170. Winstar Wireless Fiber Corp. WPJE262 Ft. Worth, TX 38GHz 1
171. Winstar Wireless Fiber Corp. WPJE263 Saginaw, MI 38GHz 1
172. Winstar Wireless Fiber Corp. WPJE530 Saginaw, MI 38GHz 1
173. Winstar Wireless Fiber Corp. WPJE531 Poughkeepsie, NY 38GHz 1
174. Winstar Wireless Fiber Corp. WPJE532 Boise, ID 38GHz 1
175. Winstar Wireless Fiber Corp. WPJE533 Mobile, AL 38GHz 1
176. Winstar Wireless Fiber Corp. WPJE534 Springfield, MA 38GHz 1
177. Winstar Wireless Fiber Corp. WPJE535 Wichita, KS 38GHz 1
178. Winstar Wireless Fiber Corp. WPJE536 Ft. Worth, TX 38GHz 1
179. Winstar Wireless Fiber Corp. WPJE537 Rockford, IL 38GHz 1
180. Winstar Wireless Fiber Corp. WPJE538 Honolulu, HI 38GHz 1
181. Winstar Wireless Fiber Corp. WPJE539 Wichita, KS 38GHz 1
182. Winstar Wireless Fiber Corp. WPJE792 Lansing, MI 38GHz 1
183. Winstar Wireless Fiber Corp. WPJE793 Saginaw, MI 38GHz 1
184. Winstar Wireless Fiber Corp. WPJE794 Stockton, CA 38GHz 1
185. Winstar Wireless Fiber Corp. WPJE795 Atlantic City, NJ 38GHz 1
186. Winstar Wireless Fiber Corp. WPNA368 Fresno, CA 38GHz 1 total
(2 x 50 MHz)
187. Winstar Wireless Fiber Corp. WPNA369 Bakersfield, CA 38GHz 1 total
(2 x 50 MHz)
188. Winstar Wireless Fiber Corp. WPNA372 Eureka, CA 38GHz 1 total
(2 x 50 MHz)
189. No Wire, LLC WPNA388 Topeka, KS 38GHz 1
190. No Wire, LLC WPNA436 Nashville, TN 38GHz 1
191. No Wire, LLC WPNA520 Shreveport, LA 38GHz 1
192. Winstar Wireless Fiber Corp. WPNA526 San Luis Obispo, CA 38GHz 1 total
(2 x 50 MHz)
193. Winstar Wireless Fiber Corp. WPNA663 Miami, FL 38GHz 1
194. No Wire, LLC WPNA672 Charleston, SC 38GHz 1
195. No Wire, LLC WPNA673 Roanoke, VA 38GHz 1
196. Winstar Wireless Fiber Corp. WPNA676 Savannah, GA 38GHz 1
197. Winstar Wireless Fiber Corp. WPNA681 Oxnard, CA 38GHz 1 total
(2 x 50 MHz)
198. Winstar Wireless Fiber Corp. WPNC464 Los Angeles, CA 38GHz 1
199. Winstar Wireless Fiber Corp. WPNC471 Cincinnati, OH 38GHz 1
200. Winstar Wireless Fiber Corp. WPND496 Knoxville, TN 38GHz 1
</TABLE>
<PAGE>
<TABLE>
Service
ID Licensee Call Sign Service Area Type # of Channels
--- -------- --------- ------------- ------- ---------------
<S> <C> <C> <C> <C> <C>
201. WWI License Holding, Inc. WPND497 Shreveport, LA 38GHz 1
202. Winstar Wireless Fiber Corp. WPND514 Milwaukee, WI 38GHz 1
203. Winstar Wireless Fiber Corp. WPND515 Pittsburgh, PA 38GHz 1
204. Winstar Wireless Fiber Corp. WPND516 Atlanta, GA 38GHz 1
205. Winstar Wireless Fiber Corp. WPND517 Chicago, IL 38GHz 1
206. Winstar Wireless Fiber Corp. WPND518 Denver, CO 38GHz 1
207. Winstar Wireless Fiber Corp. WPND614 Colorado Springs, CO 38GHz 1
208. Winstar Wireless Fiber Corp. WPND619 Tucson, AZ 38GHz 1
209. Winstar Wireless Fiber Corp. WPND620 Phoenix, AZ 38GHz 1
210. Winstar Wireless Fiber Corp. WPND621 Detroit, MI 38GHz 1
211. Winstar Wireless Fiber Corp. WPND622 Jacksonville, FL 38GHz 1
212. Winstar Wireless Fiber Corp. WPND623 Louisville, KY 38GHz 1
213. Winstar Wireless Fiber Corp. WPND624 Minneapolis, MN 38GHz 1
214. Winstar Wireless Fiber Corp. WPND671 Canton, OH 38GHz 1
215. Winstar Wireless Fiber Corp. WPND761 San Jose, CA 38GHz 1
216. Winstar Wireless Fiber Corp. WPND762 El Paso, TX 38GHz 1
217. Winstar Wireless Fiber Corp. WPND763 W. Palm Beach, FL 38GHz 1
218. Winstar Wireless Fiber Corp. WPND764 Grand Rapids, MI 38GHz 1
219. No Wire, LLC WPND768 Green Bay, WI 38GHz 1
220. No Wire, LLC WPND769 Burlington, VT 38GHz 1
221. Winstar Wireless Fiber Corp. WPND825 Syracuse, NY 38GHz 1
222. Winstar Wireless Fiber Corp. WPND830 Miami, FL 38GHz 1
223. Winstar Wireless Fiber Corp. WPND837 Houston, TX 38GHz 1
224. No Wire, LLC WPNE214 Wichita, KS 38GHz 1
225. Winstar Wireless Fiber Corp. WPNE226 Ft. Wayne, IN 38GHz 1
226. WWI License Holding, Inc. WPNE229 Beaumont, TX 38GHz 1
227. Winstar Wireless Fiber Corp. WPNE234 Rochester, NY 38GHz 1
228. Winstar Wireless Fiber Corp. WPNE250 Bellingham, WA 38GHz 1
229. No Wire, LLC WPNE259 Waco, TX 38GHz 1
230. Winstar Wireless Fiber Corp. WPNE363 Peoria, IL 38GHz 1
231. WWI License Holding, Inc. WPNE398 Mobile, AL 38GHz 1
232. WWI License Holding, Inc. WPNE399 Las Vegas, NV 38GHz 1
233. WWI License Holding, Inc. WPNE400 Honolulu, HI 38GHz 1
234. WWI License Holding, Inc. WPNE401 Ft. Collins/Loveland,
CO 38GHz 1
235. Winstar Wireless Fiber Corp. WPNE686 Charleston, SC 38GHz 1
236. No Wire, LLC WPNE687 Springfield, MO 38GHz 1
237. No Wire, LLC WPNE688 Birmingham, AL 38GHz 1
238. Winstar Wireless Fiber Corp. WPNE735 Richmond, VA 38GHz 50 MHz
239. Winstar Wireless Fiber Corp. WPNE742 Knoxville, TN 38GHz 50MHz
240. Winstar Wireless Fiber Corp. WPNE756 San Juan, PR 38GHz 1
241. Winstar Wireless Fiber Corp. WPNE759 St. Louis, MO 38GHz 1
242. Winstar Wireless Fiber Corp. WPNE961 Chicago, IL 38GHz 1
243. Winstar Wireless Fiber Corp. WPNE963 Charlotte, NC 38GHz 1
244. Winstar Wireless Fiber Corp. WPNE964 Memphis, TN 38GHz 1
245. Winstar Wireless Fiber Corp. WPNE989 Tucson, AZ 38GHz 50 MHz
246. Winstar Wireless Fiber Corp. WPNE993 St. Louis, MO 38GHz 1
247. Winstar Wireless Fiber Corp. WPNE994 Memphis, TN 38GHz 1
248. Winstar Wireless Fiber Corp. WPNF243 Tucson, AZ 38GHz 50 MHz
249. Winstar Wireless Fiber Corp. WPNF246 Manchester, NH 38GHz 1
250. Winstar Wireless Fiber Corp. WPNF258 San Antonio, TX 38GHz 1
251. Winstar Wireless Fiber Corp. WPNG286 Las Vegas, NV 38GHz 1 total
(2 x 50 MHz)
252. Winstar Wireless Fiber Corp. WPNG289 San Antonio, TX 38GHz 50 MHz
253. Winstar Wireless Fiber Corp. WPNG291 Tampa, FL 38GHz 1
254. Winstar Wireless Fiber Corp. WPNG293 San Antonio, TX 38GHz 1
</TABLE>
<PAGE>
<TABLE>
Service
ID Licensee Call Sign Service Area Type # of Channels
--- -------- --------- ------------- ------- ---------------
<S> <C> <C> <C> <C> <C>
255. Winstar Wireless Fiber Corp. WPNG309 Nashville, TN 38GHz 1
256. Winstar Wireless Fiber Corp. WPNG360 Nashville, TN 38GHz 1
257. Winstar Wireless Fiber Corp. WPNG361 Orlando, FL 38GHz 1
258. Winstar Wireless Fiber Corp. WPNG362 Orlando, FL 38GHz 1
259. Winstar Wireless Fiber Corp. WPNG363 Kansas City, MO 38GHz 1
260. Winstar Wireless Fiber Corp. WPNG364 Indianapolis, IN 38GHz 1
261. Winstar Wireless Fiber Corp. WNPG365 Minneapolis, MN 38GHz 1
262. Winstar Wireless Fiber Corp. WPNG368 Denver, CO 38GHz 1
263. Winstar Wireless Fiber Corp. WPNG369 Phoenix, AZ 38GHz 1
264. Winstar Wireless Fiber Corp. WNPG374 Knoxville, TN 38GHz 1
265. Winstar Wireless Fiber Corp. WPNG375 Memphis, TN 38GHz 1
266. Winstar Wireless Fiber Corp. WPNG376 Little Rock, AR 38GHz 1
267. Winstar Wireless Fiber Corp. WPNG377 Indianapolis, IN 38GHz 1
268. Winstar Wireless Fiber Corp. WPNG378 San Juan, PR 38GHz 1
269. Winstar Wireless Fiber Corp. WPNG379 Oklahoma City, OK 38GHz 1
270. Winstar Wireless Fiber Corp. WPNG382 San Juan, PR 38GHz 1 total
(2 x 50 MHz)
271. Winstar Wireless Fiber Corp. WPNG384 Las Vegas, NV 38GHz 1 total
(2 x 50 MHz)
272. Winstar Wireless Fiber Corp. WPNG390 San Juan, PR 38GHz 1 total
(2 x 50 MHz)
273. Winstar Wireless Fiber Corp. WPNG400 Knoxville, TN 38GHz 50MHz
274. Winstar Wireless Fiber Corp. WPNG951 Richmond, VA 38GHz 50 MHz
275. Winstar Wireless Fiber Corp. WPNH422 Honolulu, HI 38GHz 1
276. Winstar Wireless Fiber Corp. WPNH554 Beaumont, TX 38GHz 1
277. Winstar Wireless Fiber Corp. WPNH842 San Juan, PR 38GHz 1
278. Winstar Wireless Fiber Corp. WPNI212 New Bedford, MA 38GHz 1
279. Winstar Wireless Fiber Corp. WPNI214 Louisville, KY 38GHz 1
280. Winstar Wireless Fiber Corp. WPNI216 New Orleans, LA 38GHz 1
281. WWI License Holding, Inc. WPNI218 Colorado Springs, CO 38GHz 1
282. WWI License Holding, Inc. WPNI252 El Paso, TX 38GHz 1
283. Winstar Wireless Fiber Corp. WPNI256 Tacoma, WA 38GHz 1
284. Winstar Wireless Fiber Corp. WPNI258 Akron, OH 38GHz 1
285. WWI License Holding, Inc. WPNI271 Fort Lauderdale, FL 38GHz 1
286. Winstar Wireless Fiber Corp. WPNI835 Jackson, MS 38GHz 1
287. Winstar Wireless Fiber Corp. WPNI838 Raleigh-Durham, NC 38GHz 1
288. Winstar Wireless Fiber Corp. WPNL601 Pensacola, FL 38GHz 1
289. Winstar Wireless Fiber Corp. WPNL602 Shreveport, LA 38GHz 1
290. Winstar Wireless Fiber Corp. WPNL613 Louisville, KY 38GHz 1
291. Winstar Wireless Fiber Corp. WPNL623 Harrisburg, PA 38GHz 1
292. No Wire, LLC WPNN812 Austin, TX 38GHz 1
293. Winstar Wireless Fiber Corp. WPOM875 Santa Rosa, CA 38GHz 1
294. Winstar Wireless Fiber Corp. WPOP580 Dallas, TX 38GHz 2
295. Winstar Wireless Fiber Corp. WPOP581 Atlanta, GA 38GHz 3
296. Winstar Wireless Fiber Corp. WPOP585 Kansas City, MO 38GHz 1
297. Winstar Wireless Fiber Corp. WPOP586 Grand Island, NE 38GHz 1
298. Winstar Wireless Fiber Corp. WPOP587 Marshall, MO 38GHz 1
299. Winstar Wireless Fiber Corp. WPOP588 Lincoln, NE 38GHz 1
300. Winstar Wireless Fiber Corp. WPOP589 Norfolk, VA 38GHz 1
301. Winstar Wireless Fiber Corp. WPOP590 Norfolk, VA 38GHz 1
302. Winstar Wireless Fiber Corp. WPOP591 Oceanside, CA 38GHz 1
</TABLE>
<PAGE>
<TABLE>
Service
ID Licensee Call Sign Service Area Type # of Channels
--- -------- --------- ------------- ------- ---------------
<S> <C> <C> <C> <C> <C>
303. Winstar Wireless Fiber Corp. WPOP592 Lacrosse, LA 38GHz 1
304. Winstar Wireless Fiber Corp. WPOP593 Kansas City, MO 38GHz 1
305. Winstar Wireless Fiber Corp. WPOP594 Armonk, NY 38GHz 1
306. Winstar Wireless Fiber Corp. WPOP595 Biloxi, MS 38GHz 1
307. Winstar Wireless Fiber Corp. WPOP596 Brownsville, TX 38GHz 1
308. Winstar Wireless Fiber Corp. WPOP597 Chattanooga, TN 38GHz 1
309. Winstar Wireless Fiber Corp. WPOP598 Huntsville, AL 38GHz 1
310. Winstar Wireless Fiber Corp. WPOP599 Salinas, CA 38GHz 50 MHz
311. Winstar Wireless Fiber Corp. WPOP600 Raleigh, NC 38GHz 1
312. Winstar Wireless Fiber Corp. WPOP601 Tallahassee, FL 38GHz 1
313. Winstar Wireless Fiber Corp. WPOP602 White Plains, NY 38GHz 1
314. Winstar Wireless Fiber Corp. WPOU595 Ft. Wayne, IN 38GHz 1
315. Winstar Wireless Fiber Corp. WPOV372 Victorville, CA 38GHz 50 MHz
</TABLE>
2. Summary of 28 GHz License Holdings
<TABLE>
Licensee Call Sign Service Area Block
-------- ---------- ---------------- ------
<S> <C> <C> <C>
WinStar LMDS, L.L.C WPOH 637 American Samoa B
WinStar LMDS, L.L.C WPOH 628 Chico-Oroville, CA B
WinStar LMDS, L.L.C WPOH 635 Fairbanks, AK B
WinStar LMDS, L.L.C WPOH 626 Fresno, CA A
WinStar LMDS, L.L.C WPOH 629 Greensboro, NC A
WinStar LMDS, L.L.C WPOH 623 Ithaca, NY B
WinStar LMDS, L.L.C WPOH 636 Juneau, AK B
WinStar LMDS, L.L.C WPOH 627 Modesto, CA A
WinStar LMDS, L.L.C WPOH 631 New Orleans, LA A
WinStar Wireless Fiber Corp. WPOI 4851 New York City PMSA, NY 27.5-
28.35 GHz
WinStar LMDS, L.L.C WPOH 632 Norfolk, VA A
WinStar LMDS, L.L.C WPOH 630 Orlando, FL A
WinStar LMDS, L.L.C WPOH 634 Provo-Orem, UT A
WinStar LMDS, L.L.C WPOH 625 Sacramento, CA B
WinStar LMDS, L.L.C WPOH 633 Salt Lake City, UT A
WinStar LMDS, L.L.C WPOH 624 San Francisco-Oakland- A
San Jose, CA
</TABLE>
-----------------
1. This license covers the New york City primary Metropolican Statistical Area.
WinStar acquired 850 MHz of spectrum from the original license, Cellularvision,
in the fall of 1998. The original license was partitioned.
<PAGE>
Notes:
Block A Spectrum is : 27.5-28.35 GHz, paired with 29.1-29.25 GHz. This block
also includes 31.075-31.225 GHz Block B Spectrum is: 31.0-31.075 GHz, paired
with 31.225-31.3 GHz
3. Winstar also operates a number of point-to-point microwave facilities
(i.e., links) in bands other than the 38 GHz and 28 GHz bands, including in
the 10 GHz and 18 GHz bands. No individual such facility is material to
Consolidated Group.
4. Section 101.17 of the FCC's rules provides that 38 GHz licensees must
demonstrate substantial service at the time of license renewal. Although
the FCC did not adopt specific buildout criteria for 38 GHz licensees, it
has stated that buildout of four wireless point-to-point links per million
population would constitute substantial service for a traditional
point-to-point licensee. However, Winstar's business plan is not that of a
traditional point-to-point licensee. Winstar has made and is continuing to
make substantial investment in developing a national telecommunications
business and infrastructure. We believe a national investment and our
ongoing operations are sufficient to demonstrate substantial service for
all our 38 GHz licenses. As a result, we expect that our 38 GHz licenses
will be renewed by the FCC, but we cannot be certain of that conclusion.
o On February 10, 1998, the FCC granted additional channels for the following
Winstar 38 GHz licenses: Atlanta (Call Sign WPOP581), Buffalo (WMN322),
Cincinnati (WMN324), Dallas (WPOP580), Houston (WMN329), Miami (WMN332),
New York (WMN337), St. Louis (WMN344), Seattle (WMN318), Spokane (WMN343),
and Tampa (WMN346). On March 12, 1998, several parties filed petitions for
reconsideration of each of these grants, with the exception of the Seattle
grant. On October 22, 1999, the FCC denied some of the petitions for
reconsideration and affirmed the grants.2 Parties have filed an application
for review requesting that the FCC reconsider the grants. Winstar filed an
opposition to this application. In addition, on March 9, 1998, several
parties filed petitions for reconsideration of the 38 GHz Order, alleging,
among other things, that the February 10, 1998, license grant to Winstar
were in violation of the Commission's processing rules. Winstar filed a
consolidated opposition to these petitions. The FCC denied these petitions
on August 23, 1999. However, several parties have filed petitions for
review in the U.S. Court of Appeals for the D.C. Circuit.
o On December 29, 1999, the FCC granted in part five Winstar applications
requesting additional channels in the following areas: Baltimore (WMN320),
New York (WMN335 & WMN336), Philadelphia (WMN338), and Washington, D.C.
(WMN347). On January 24, 2000, several parties filed petitions for
reconsideration of each of these grants. Winstar filed an opposition to
these petitions which remains pending.
o In addition, on March 15, 2000, the FCC granted in whole or in part twelve
Winstar applications for additional channel pairs in San Diego (WMN341),
Milwaukee (WMN333), Kansas City (WMN330), Cleveland (WMN325), Detroit
(WMN328), Tacoma (WMN345), Phoenix (WMN339), Boston (WMN321), Minneapolis
(WMN334), Denver (WMN327), Pittsburgh (WMN340), and Chicago (WMN323). These
channel grants were conditioned by the Commission on the final outcome of
the pending proceedings described in the above two paragraphs. On March 15,
2000, the FCC also granted Winstar a channel pair in Santa Rosa, California
(WPOM875). Grant of this application was conditioned on the outcome of a
pending petition for reconsideration.
o On October 23, 1997, DCT Communications, Inc. filed a petition for
reconsideration seeking revocation of Winstar's license in Ft. Lauderdale,
Florida (WPNI271). On January 21, 1999, the Commission released an order
denying DCT's petition for reconsideration. In response, DCT filed an
application for review which Winstar opposed. The Commission denied the
application for review on February 22, 2000; however, DCT has requested
that the FCC reconsider its decision.
--------------
2 One petition for reconsideration remains pending.
<PAGE>
Schedule 5.01(m)(iii) - Certain Events Regarding Telecommunications Licenses
o Section 101.17 of the FCC's rules provides that 38 GHz licensees must
demonstrate substantial service at the time of license renewal. Although
the FCC did not adopt specific buildout criteria for 38 GHz licensees, it
has stated that buildout of four wireless point-to-point links per million
population would constitute substantial service for a traditional
point-to-point licensee. However, Winstar's business plan is not that of a
traditional point-to-point licensee. Winstar has made and is continuing to
make substantial investment in developing a national telecommunications
business and infrastructure. We believe a national investment and our
ongoing operations are sufficient to demonstrate substantial service for
all our 38 GHz licenses. As a result, we expect that our 38 GHz licenses
will be renewed by the FCC, but we cannot be certain of that conclusion.
o On February 10, 1998, the FCC granted additional channels for the following
Winstar 38 GHz licenses: Atlanta (Call Sign WPOP581), Buffalo (WMN322),
Cincinnati (WMN324), Dallas (WPOP580), Houston (WMN329), Miami (WMN332),
New York (WMN337), St. Louis (WMN344), Seattle (WMN318), Spokane (WMN343),
and Tampa (WMN346). On March 12, 1998, several parties filed petitions for
reconsideration of each of these grants, with the exception of the Seattle
grant. On October 22, 1999, the FCC denied some of the petitions for
reconsideration and affirmed the grants.3 Parties have filed an application
for review requesting that the FCC reconsider the grants. Winstar filed an
opposition to this application. In addition, on March 9, 1998, several
parties filed petitions for reconsideration of the 38 GHz Order, alleging,
among other things, that the February 10, 1998, license grant to Winstar
were in violation of the Commission's processing rules. Winstar filed a
consolidated opposition to these petitions. The FCC denied these petitions
on August 23, 1999. However, several parties have filed petitions for
review in the U.S. Court of Appeals for the D.C. Circuit.
o On December 29, 1999, the FCC granted in part five Winstar applications
requesting additional channels in the following areas: Baltimore (WMN320),
New York (WMN335 & WMN336), Philadelphia (WMN338), and Washington, D.C.
(WMN347). On January 24, 2000, several parties filed petitions for
reconsideration of each of these grants. Winstar filed an opposition to
these petitions which remains pending.
o In addition, on March 15, 2000, the FCC granted in whole or in part twelve
Winstar applications for additional channel pairs in San Diego (WMN341),
Milwaukee (WMN333), Kansas City (WMN330), Cleveland (WMN325), Detroit
(WMN328), Tacoma (WMN345), Phoenix (WMN339), Boston (WMN321), Minneapolis
(WMN334), Denver (WMN327), Pittsburgh (WMN340), and Chicago (WMN323). These
channel grants were conditioned by the Commission on the final outcome of
the pending proceedings described in the above two paragraphs. On March 15,
2000, the FCC also granted Winstar a channel pair in Santa Rosa, California
(WPOM875). Grant of this application was conditioned on the outcome of a
pending petition for reconsideration.
o On October 23, 1997, DCT Communications, Inc. filed a petition for
reconsideration seeking revocation of Winstar's license in Ft. Lauderdale,
Florida (WPNI271). On January 21, 1999, the Commission released an order
denying DCT's petition for reconsideration. In response, DCT filed an
application for review which Winstar opposed. The Commission denied the
application for review on February 22, 2000; however, DCT has requested
that the FCC reconsider its decision.
o Winstar operates a number of point-to-point microwave facilities (i.e.,
links) in the 17.7-19.7 GHz (18 GHz) band. In an ongoing proceeding, the
FCC has proposed the relocation of a number of these facilities to
accommodate satellite services. However, the FCC has proposed that
relocated microwave operators should receive compensation for such
relocation. A final FCC Order in this proceeding is expected later this
year.
------------------------------------
3 One petition for reconsideration remains pending.
<PAGE>
Schedule 5.01(n) - Investments
1. Investment by Consolidated Group Members in their respective Subsidiaries,
including Unrestricted Subsidiaries.
2. See the following:
<TABLE>
Percent of
Amount of Common Owned
Name of Entity Security Held No. Shares/CSEs Investment ($) fully diluted) Owned by
--------------- --------------------- ---------------- -------------- -------------- --------
<S> <C> <C> <C> <C> <C>
Aenid Convertible Preferred /467,290 $1,000,000 1.10 WIVI
Commerce, Inc. Convertible Preferred /2,400,000 $3,000,000 6.55 WIVI
Digital Works Convertible Preferred /119,617 $1,000,000 0.43 WIVI
Equity Broadcast Corp. Convertible Preferred /345,665 $3,470,000 5.77 WBC
Frontline Capital Group Common 63,492 $3,000,000 0.23 WCII
ICNT, Inc. (Internet Connect) Convertible Preferred 586,769/586,769 $5,000,000 1.10 WCII
Jobs.com Convertible Preferred /300,000 $1,000,000 0.77 WIVI
KDD Winstar Common 70 $1,000,000 35.00 WII
Media on Demand Convertible Preferred 193,050 $1,000,000 1.60 WCII
Next Century Media Note n/a $ 500,000 n/a WCII
RTS Software Ltd. Warrants 50,000 - - WCII(1)
Sandbox, Inc. Convertible Preferred /396,825 $2,000,000 2.11 WIVI
Total Sports Convertible Preferred /575,373 $5,000,000 5.43 WIVI
Unapix Convertible Preferred /200,000 $ 450,000 1.96 WIVI
WamNet, Inc. Convertible Preferred 85,000/16,472,868 $85,000,000 16.50 WCC
</TABLE>
<TABLE>
Legend: Notes:
------------------------------------------ --------------------------------------------------------------------------------------
<S> <C>
WCII - Winstar Communications, Inc. (1) Originally issued to Winstar Multichannel, LLC, which merged into WCII on 12/31/99
WWI - Winstar Wireless, Inc.
WVI - Winstar Interactive Ventures I, Inc.
WII - Winstar International, Inc.
WBC - Winstar Broadcasting Corp.
WCC - Winstar Credit Corp.
</TABLE>
<PAGE>
Schedule 7.01(b)(iv) - Pledged Security Holders
<TABLE>
Cert.
Pledgor Issuer(s) No. of Shares Number(s)
------- --------- ------------- ----------
<S> <C> <C> <C>
Winstar Communications, Inc. WCI Capital Corp. -100- -1-
Winstar Wireless, Inc. (1) -90- -1-
WCI Capital Corp. Winstar Equipment Corp. -100- -2-
Winstar Equipment II Corp. -100- -2-
Winstar Wireless Fiber Corp. -100- -2-
Winstar Credit Corp. -100- -2-
Winstar Switch Acquisition Corp. -100- -2-
Winstar New Media Company, Inc. 17,484,371
Winstar Wireless, Inc. Winstar A/R SPE, LLC n/a -1-
Winstar Broadband Acquisition 1999, LLC n/a -1-
Winstar Government Solutions, LLC n/a -1-
Winstar Midcom Acquisition Corp. -100- -1-
Winstar Network Expansion, LLC n/a -1-
WWI License Holding, Inc. -100- -1-
Winstar Wireless of Delaware, LLC (2) n/a -1-
Winstar Wireless of Georgia, LLC (2) n/a -1-
Winstar Wireless of Indiana, LLC (2) n/a -1-
Winstar Wireless of New Jersey, LLC (2) n/a -1-
Winstar Wireless of New York, LLC (2) n/a -1-
Winstar Wireless of Pennsylvania, LLC (2) n/a -1-
Winstar Wireless of Virginia, LLC (2) n/a -1-
Winstar Wireless of West Virginia, LLC (2) n/a -1-
Winstar Wireless Fiber Corp. Winstar LMDS, LLC n/a -1-
Winstar A/R SPE, LLC Winstar A/R Account Party, LLC n/a -1-
Winstar New Media Company, Inc. Winstar Interactive Media Sales, Inc. 100 -2-
Winstar EasyNet Inc. 500 -2-
Winstar Interactive Ventures I, Inc. 100 -2-
Winstar Global Media, Inc. 100 -2-
Winstar Radio Networks, Inc. 100 -2-
Non Fiction Films Inc. 90 -2-
Wellspring Media, Inc. 100 -2-
Winstar Broadcasting Corp. 100 -2-
Sportsfan Radio Network Inc. 500 -2-
Non Fiction Films Inc. Fox/Lorber Associates, Inc. 100 -3-
Winstar Radio Networks, Inc. Walt Baby Love Productions, Inc. 100 -3-
</TABLE>
--------------------------------
(1) Until such time as the stock of Winstar Wireless, Inc. is contributed to
the Borrower as contemplated by the Agreement.
(2) Subject to receipt of approval by the relevant Public Utility Commission,.
<PAGE>
Schedule 7.01(b)(v) - Holders of Collateral Interests Held by Intermediaries
Winstar Entities
Name of Institution Address Holding Accounts
---------------------------------- --------------------------------------------
Fleet Bank, Media & 100 Federal Street WNE, WCI, WNM,
Communications Division Boston, MA 02110 Office.com
CSFB 11 Madison Ave WCI
New York, NY 10010
(212) 325-9163
The Bank of New York One Wall Street WCI
New York, NY 10286 WCI Capital
(212) 635-6923 WMC
Office.com
EAB 90 Park Ave WCI
NY, NY 10016
(212) 682-2726
Merrill Lynch 100 Jericho Quadrangle WCI
P.O. Box 787 WCI Capital
Jericho, NY 11753 WNE
800-944-0677 WCC
Office.com
Legend: WCI = Winstar Communications, Inc.
WCI Capital = WCI Capital Corp.
WMC = Winstar Multichannel Corp., (This entity has been
merged into WCI)
WCC = Winstar Credit Corp.
WNE = Winstar Network Expansion, LLC
WNM = Winstar New Media Company, Inc.
<PAGE>
Schedule 7.01(i) - Exceptions to Corporate Restructuring
1. The shares of common stock of Winstar Wireless, Inc. currently held by the
Parent will not be contributed to the Borrower as of the Effective Date.
Such shares will be contributed to the Borrower by the Parent at such time
as such transfer is approved by the state public utility commissions in
each state where such approval is required.
2. The shares of capital stock of each of the following Subsidiaries of the
Parent, all of which are Unrestricted Subsidiaries and all of which are
organized outside of the United States, will be contributed to the Borrower
promptly following the Effective Date:
Name of Subsidiary Jurisdiction of Organization
------------------- ----------------------------
Winstar Columbia Ltda. Columbia
Winstar Holdings BV The Netherlands
Winstar Communications of Canada, Inc. Canada
<PAGE>
Schedule 8.02(a) - Existing Indebtedness
<TABLE>
Lender/Lessor Borrower/Lessee Amount ($) Nature of Assets Financed
------------- --------------- ---------- -------------------------
<S> <C> <C> <C>
ACC WWI 333 K Motor vehicles
AT&T WWI 10.2 mil Seattle and Tampa switches
BankBoston WWI 4.3 mil San Francisco switch
BankBoston WWI 3.0 mil Motor vehicles
The Bank of New York WWI 7.3 mil Denver and Minneapolis switches
Centigram WWI 1.0 mil Telephone and other misc. equipment
Finova WWI 2.0 mil NYC switch
GECC WWI 179K Computer equipment
GMAC WWI 867 K Motor vehicles
GTE Lease WWI 55 K Miscellaneous equipment
Linc Leasing WWI 157 K Computer and ACD system
Mellon US Leasing WWI 1.0 mil LA switch
ML Investors WWI 750 K Wireless radios
Newcourt Comm'l Finance WWI 13.9 mil Fractional interest in corporate jet
Prime Leasing WWI 1.9 mil Chicago switch (1)
Transamerica WWI 4.7 mil Wireless radios
Transamerica WWI 4.3 mil Kansas City Switch; 38 GHz radios
WASCO WWI 4.2 mil Columbus switch
WASCO WWI 3.5 mil Furniture and office equipment at 685 3rd Ave.,
NYC
Imperial Business Credit WWI 8 K Lease of Servers (3)
Sunrise Leasing Corporation WWI n/a Operating Lease of Internet network equipment (3)
Cisco Systems WWI n/a Operating Lease of Routers (3)
Williams Communications WWI 247.6 mil (2) Fiber IRU
Metromedia Fiber Networks WWI 108.0 mil (2) Fiber IRU
AT&T WWI 9.0 mil (2) Fiber IRU
Electric Lightwave WWI 1.9 mil (2) Fiber IRU
Outstanding Old Bond Debt WCI 15.977 mil General corporate funding
Outstanding Old Bond Debt WEC 323 K Telecommunications Assets
</TABLE>
<TABLE>
Legend: Notes:
------ ------
<S> <C>
WWI - Winstar Wireless, Inc. (for itself or (1) Refers to Winstar's Chicago switch, not the Chicago switch acquired
as successor by merger to Winstar by WSAC from US One.
(2) Includes future additions to current Capital Lease Obligations pursuant to
current binding Telecommunications, Inc. on 3/31/98) agreements.
Excludes maintenance expenses and imputed interest/financing costs.
WCI - Winstar Communications, Inc. (3) Indebtedness of ISP Networks, Inc. an Internet Service Provider which was
acquired by WWI in December 1999.
WEC - Winstar Equipment Corp.
</TABLE>
<PAGE>
Schedule 8.02(c) - Existing Liens
1. Purchases money liens and liens securing Capital Lease Obligations
described on Schedule 8.02(a).
2. Information UCC filings by Cisco Systems and Sunrise Capital in connection
with leases of computer equipment to ISP Networks, Inc. which was acquired
in December 1999.
3. Liens in favor of United States Trust Company of New York, Inc., as
collateral agent, securing Outstanding Old Bond Debt of Winstar Equipment
Corp. ("WEC") in the amount of $323,000. This indebtedness is being
defeased by WEC and the liens on WEC's assets securing this debt will,
pursuant to the terms of the indenture under which such debt was issued, be
released 123 days following deposit of funds with U.S. Trust.
4. UCC-1 on file in favor of Dana Commercial Credit covering de minimis amount
of computer equipment. There is no current debt associated with this
filing.
5. UCC-1 on file in favor of IBM Leasing filed against Winstar Equipment Corp.
covering de minimis amount of computer equipment.
6. The following liens:
Jurisdiction Amount ($) Nature of Lien
---------------- ---------- -----------------
State of Utah 3,589 sales taxes
Fairfax County, VA 8,600 judgement
NY State 14,946 taxes
State of Texas less than $10,000* taxes
* The exact amount of this lien could not be read from the lien search
results as a result of the poor copy quality; however it could be
determined that the amount was less than $10,000.
