UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
[X]
Quarterly Report Pursuant to Section 13 or 15 (d) of the Securities Exchange
Act of 1934
For the quarterly period ended February 29, 2000
OR
[ ]
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
for the transition period from to
Commission file number 0-19603
Centennial Communications Corp.
(Exact name of registrant as specified in its charter)
Delaware 06-1242753
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1305 Campus Parkway
Neptune, NJ 07753
(Address of principal executive offices, including zip code)
(732) 919-1000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES [X] NO [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practical date.
Class A Common - 94,319,960 outstanding shares as of April 10, 2000
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. - FINANCIAL STATEMENTS
CENTENNIAL COMMUNICATIONS CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands)
<TABLE>
<CAPTION>
February 29,
2000 May 31,
(Unaudited) 1999
--------------------- -----------------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 50,203 $ 51,141
Restricted investments 19,704 39,480
Accounts receivable, less allowance for doubtful
accounts of $13,628 and $3,763, respectively 65,595 46,326
Inventory - phones and accessories, less allowance for
obsolescence of $1,102 and $1,315, respectively 9,148 7,631
Prepaid expenses and other current assets 1,904 737
--------------------- -----------------------
TOTAL CURRENT ASSETS 146,554 145,315
PROPERTY, PLANT AND EQUIPMENT - net 355,330 300,120
RESTRICTED INVESTMENTS, long-term - 19,038
EQUITY INVESTMENTS IN WIRELESS SYSTEMS - net 77,040 75,723
DEBT ISSUANCE COSTS, less accumulated amortization of
$8,195 and $2,905, respectively 57,671 58,307
CELLULAR TELEPHONE LICENSES, less accumulated
amortization of $303,260 and $298,725, respectively 229,327 202,599
PERSONAL COMMUNICATIONS SERVICES LICENSE, less accumulated
amortization of $5,069 and $3,893, respectively 71,689 58,866
GOODWILL, less accumulated amortization of $33,429
and $30,430, respectively 119,561 119,172
OTHER ASSETS - net 11,617 7,141
--------------------- -----------------------
TOTAL $ 1,068,789 $ 986,281
===================== =======================
</TABLE>
See notes to condensed consolidated financial statements
1
<PAGE>
CENTENNIAL COMMUNICATIONS CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(CONTINUED)
(Amounts in thousands, except share data)
<TABLE>
<CAPTION>
February 29,
2000 May 31,
(Unaudited) 1999
---------------- ---------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
CURRENT LIABILITIES:
Current portion of long term debt $ 5,500 $ 4,500
Accounts payable 23,383 22,968
Accrued expenses and other current liabilities 86,876 102,371
Payable to affiliates 125 125
---------------- ---------------
TOTAL CURRENT LIABILITIES 115,884 129,964
LONG-TERM DEBT 1,539,850 1,459,295
COMMON STOCKHOLDERS' EQUITY (DEFICIT):
Common stock par value $.01 per share:
Class A, 1 vote per share, 150,000,000 shares authorized,
issued, 94,379,713 and 93,673,386 shares, respectively;
and outstanding 94,309,210 and 93,602,883 shares, respectively 944 937
Additional paid-in capital 425,621 418,749
Accumulated deficit (1,012,102) (1,021,587)
---------------- ---------------
(585,537) (601,901)
Less: Cost of 70,503 class A common shares in treasury (1,077) (1,077)
Deferred Compensation (331) -
----------------- ---------------
TOTAL COMMON STOCKHOLDERS' EQUITY (DEFICIT) (586,945) (602,978)
----------------- ---------------
TOTAL $ 1,068,789 $ 986,281
================= ===============
</TABLE>
See notes to condensed consolidated financial statements
2
<PAGE>
CENTENNIAL COMMUNICATIONS CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(Amounts in thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
------------------------------------- ---------------------------------------
February 29, February 28, February 29, February 28,
2000 1999 2000 1999
---------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
REVENUE:
Service revenue $ 121,636 $ 95,537 $ 353,166 $ 257,209
Equipment sales 5,985 2,456 15,257 5,382
---------------- --------------- --------------- ---------------
127,621 97,993 368,423 262,591
---------------- --------------- --------------- ---------------
COSTS AND EXPENSES:
Cost of equipment sold 10,584 6,760 25,548 16,222
Cost of services 15,991 12,437 46,407 34,561
Sales and marketing 21,137 14,443 58,135 38,331
General and administrative 26,562 15,575 67,034 43,129
Depreciation and amortization 21,684 33,159 60,323 97,702
Recapitalization costs - 58,852 - 58,852
---------------- --------------- --------------- ---------------
95,958 141,226 257,447 288,797
---------------- --------------- --------------- ---------------
OPERATING INCOME (LOSS) 31,663 (43,233) 110,976 (26,206)
---------------- --------------- --------------- ---------------
INCOME FROM EQUITY INVESTMENTS 3,667 1,862 11,007 9,352
(LOSS) GAIN ON DISPOSITION OF ASSETS (51) (1,197) (51) 8,414
INTEREST EXPENSE - NET (37,918) (26,613) (110,347) (48,553)
---------------- --------------- --------------- ---------------
INCOME (LOSS) BEFORE INCOME TAX (EXPENSE) BENEFIT,
MINORITY INTEREST AND EXTRAORDINARY ITEM (2,639) (69,181) 11,585 (56,993)
INCOME TAX (EXPENSE) BENEFIT (630) 15,950 (2,186) 10,114
---------------- --------------- ---------------- ---------------
INCOME (LOSS) BEFORE MINORITY INTEREST AND
EXTRAORDINARY ITEM (3,269) (53,231) 9,399 (46,879)
MINORITY INTEREST IN LOSS OF SUBSIDIARIES 26 151 86 142
---------------- --------------- --------------- ---------------
INCOME (LOSS) BEFORE EXTRAORDINARY ITEM (3,243) (53,080) 9,485 (46,737)
EXTRAORDINARY LOSS ON EARLY EXTINGUISHMENT OF
DEBT, NET OF INCOME TAXES OF ($11,251) - (40,526) - (40,526)
---------------- --------------- --------------- ---------------
NET INCOME (LOSS) $ (3,243) $ (93,606) $ 9,485 $ (87,263)
================ =============== =============== ===============
DIVIDEND REQUIREMENT ON PREFERRED STOCK $ - $ (1,680) $ - $ (9,906)
---------------- --------------- --------------- ---------------
INCOME (LOSS) APPLICABLE TO COMMON SHARES $ (3,243) $ (95,286) $ 9,485 $ (97,169)
================ =============== =============== ===============
BASIC EARNINGS (LOSS) PER COMMON SHARE:
INCOME (LOSS) BEFORE EXTRAORDINARY ITEM $ (0.03) $ (0.48) $ 0.10 $ (0.41)
================ =============== =============== ===============
EXTRAORDINARY LOSS ON EARLY EXTINGUISHMENT OF DEBT $ - $ (0.35) $ - $ (0.30)
================ =============== =============== ===============
NET INCOME (LOSS) APPLICABLE TO COMMON SHARES $ (0.03) $ (0.83) $ 0.10 $ (0.71)
================ =============== =============== ===============
DILUTED EARNINGS (LOSS) PER COMMON SHARE:
INCOME (LOSS) BEFORE EXTRAORDINARY ITEM $ (0.03) $ (0.48) $ 0.10 $ (0.41)
================ =============== =============== ===============
EXTRAORDINARY LOSS ON EARLY EXTINGUISHMENT OF DEBT $ - $ (0.35) $ - $ (0.30)
================ =============== =============== ===============
NET INCOME (LOSS) APPLICABLE TO COMMON SHARES $ (0.03) $ (0.83) $ 0.10 $ (0.71)
================ =============== =============== ===============
WEIGHTED AVERAGE NUMBER OF COMMON SHARES
OUTSTANDING DURING THE PERIOD:
BASIC 94,194 115,281 93,860 136,084
================ =============== =============== ===============
DILUTED 94,194 115,281 96,120 136,084
================ =============== =============== ===============
</TABLE>
See notes to condensed consolidated financial statements
3
<PAGE>
CENTENNIAL COMMUNICATIONS CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMMON STOCKHOLDERS' EQUITY (DEFICIT)
(Amounts in thousands, except share data)
<TABLE>
<CAPTION>
Common Stock Additional
-------------------------------------------
Class A Class B Paid-In Treasury Deferred Accumulated
--------------------- ------------------- Compen
Shares Dollars Shares Dollars Capital Stock -sation Deficit Total
------------ ------- ---------- ------- --------- ----------- --------- ------------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at June 1, 1998 50,150,049 $ 501 10,544,113 $ 105 $ 357,684 $ (30,614) $ (3,029) $(284,238) $ 40,409
3-for-1 stock split effective
January 20, 2000 100,300,098 1,003 - - (1,003) - - - -
Common stock issued in
connection with incentive plans 4,211,469 42 - - 4,852 - - - 4,894
Common stock issued in
connection with employee
stock purchase plan 146,640 1 - - 256 - - - 257
Deferred compensation employment
agreement 150,009 2 - - 748 - (750) - -
Recapitalization:
Repurchase of the class A & B
common stock (133,341,984) (1,333) (10,544,113) (105) (339,447) - 2,573 (692,002) (1,030,314)
Retirement of treasury stock (14,689,881) (146) - - 97 30,614 - (30,565) -
Recapitalization costs - - - - (16,165) - - 65,385 49,220
Capital contributions 86,746,986 867 - - 421,633 - - - 422,500
Preferred stock dividends - - - - (9,906) - - - (9,906)
Treasury stock purchases - - - - - (1,077) - - (1,077)
Amortization of deferred
compensation - - - - - - 1,206 - 1,206
Net loss - - - - - - - (80,167) (80,167)
------------ ------ ----------- ----- -------- -------- ------- --------- ----------
Balance at May 31, 1999 93,673,386 937 - - 418,749 (1,077) - (1,021,587) (602,978)
Common stock issued in conjunction
with acquisitions 420,000 4 - - 5,226 - - - 5,230
Common stock issued in
connection with incentive plans 261,679 3 - - 1,232 - - - 1,235
Deferred compensation 24,648 - - - 414 - (414) - -
Amortization of deferred
compensation - - - - - - 83 - 83
Net income - - - - - - - 9,485 9,485
------------ ------ ----------- ----- -------- -------- ------- ---------- ----------
Balance at February 29, 2000
(unaudited) 94,379,713 $ 944 - $ - $ 425,621 $(1,077) $ (331)$(1,012,102) $ (586,945)
============ ======= =========== ===== ======== ======== ======= ========== ==========
See notes to condensed consolidated financial statements
</TABLE>
4
<PAGE>
CENTENNIAL COMMUNICATIONS CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(Amounts in thousands)
<TABLE>
<CAPTION>
Nine Months Ended
------------------------------------------
February 29, February 28,
2000 1999
------------------ -----------------
<S> <C> <C>
OPERATING ACTIVITIES:
Cash received from subscribers and others $ 372,329 $ 282,115
Cash paid to suppliers, employees and
governmental agencies (213,581) (148,416)
Interest paid (133,058) (35,045)
--------------- ---------------
NET CASH PROVIDED BY OPERATING ACTIVITIES 25,690 98,654
--------------- ---------------
INVESTING ACTIVITIES:
Proceeds from disposition of assets 352 466
Capital expenditures (107,893) (69,819)
Acquisition of other assets - (2,200)
Disposition of equity investment - 13,500
Acquisitions, net of cash acquired (46,820) -
Acquisition of equity investment - (3,000)
Distributions received from equity investments 9,871 9,791
Acquisition of minority partnership interests (323) -
Purchase of restricted securities (19,998) (57,501)
Proceeds from maturity of restricted securities 59,994 -
--------------- ----------------
NET CASH USED IN INVESTING ACTIVITIES (104,817) (108,763)
--------------- ----------------
FINANCING ACTIVITIES:
Proceeds from the issuance of long-term debt 1,038,018 1,481,500
Repayment of long-term debt (958,150) (528,518)
Debt issuance costs paid (2,885) (61,118)
Early extinguishment of debt - (44,634)
Proceeds from issuance of class A common stock - 427,394
Proceeds from the exercise of stock options 1,206 -
Redemption of preferred stock - (128,154)
Purchase of common stock in conjunction with recapitalization - (1,052,436)
Dividends paid - (18,131)
Recapitalization costs paid - (46,500)
--------------- -----------------
NET CASH PROVIDED BY FINANCING ACTIVITIES 78,189 29,403
--------------- -----------------
NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (938) 19,294
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 51,141 14,620
--------------- -----------------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 50,203 $ 33,914
=============== =================
See notes to condensed consolidated financial statements
</TABLE>
5
<PAGE>
CENTENNIAL COMMUNICATIONS CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(CONTINUED)
(Unaudited)
(Amounts in thousands)
<TABLE>
<CAPTION>
Nine Months Ended
----------------------------------------------
February 29, February 28,
2000 1999
------------------- --------------------
<S> <C> <C>
RECONCILIATION OF NET INCOME (LOSS) TO NET CASH
PROVIDED BY OPERATING ACTIVITIES:
Net income (loss) $ 9,485 $ (87,263)
------------------- --------------------
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Depreciation and amortization 60,323 97,702
Minority interest in loss of subsidiaries (86) (142)
Deferred income taxes (1,220) (10,114)
Equity in undistributed earnings of investee companies (11,007) (9,352)
Loss (Gain) on disposition of assets 51 (8,414)
Extraordinary loss on early extinguishement of debt - 40,526
Recapitalization costs - 58,852
Other 5,373 3,384
Change in assets and liabilities net of effects of
acquisitions:
Accounts receivable - (increase) (17,544) (13,653)
Prepaid expenses and other current assets -
(increase) (2,931) (763)
Accounts payable, accrued expenses and
other current liabilities- (decrease) increase (18,260) 26,101
Customer deposits and prepayments -
increase 1,506 1,790
------------------- --------------------
Total adjustments 16,205 185,917
------------------- --------------------
Net cash provided by operating activities $ 25,690 $ 98,654
=================== ====================
</TABLE>
See notes to condensed consolidated financial statements
6
<PAGE>
CENTENNIAL COMMUNICATIONS CORP. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollar amounts in thousands except share data)
Note 1. Interim Financial Statements
In the opinion of management, the accompanying interim unaudited condensed
consolidated financial statements contain all adjustments (consisting only of
normal recurring accruals) necessary to present fairly the consolidated
financial position of Centennial Communications Corp. and Subsidiaries (the
"Company") as of February 29, 2000 and the results of its consolidated
operations and cash flows for the periods ended February 29, 2000 and February
28, 1999. These financial statements do not include all disclosures required by
generally accepted accounting principles. The statements should be read in
conjunction with the consolidated financial statements and notes thereto
included in the Company's May 31, 1999 Annual Report on Form 10-K, which
includes a summary of significant accounting policies and other disclosures. The
consolidated balance sheet at May 31, 1999 is audited.
Reclassifications
Certain prior period balances have been reclassified to conform with the current
period presentation.
Name Change
On February 29, 2000, the Company announced that it was changing its name from
Centennial Cellular Corp. to Centennial Communications Corp., effective at the
start of trading on Tuesday February 29, 2000.
Stock Split
On December 28, 1999, the Company announced that the Board of Directors declared
a three-for-one stock split of all outstanding shares of class A common stock.
The shares were distributed on or about January 20, 2000 to all holders of
record on January 10, 2000. In connection with the stock split, the Company
increased its authorized shares of common stock to 150,000,000 shares. All
common share and per share amounts have been restated to reflect the stock
split.
7
<PAGE>
Note 2. Long-Term Debt
The Company and its subsidiaries had the following debt outstanding at February
29, 2000 and May 31, 1999:
<TABLE>
<CAPTION>
February 29, May 31,
2000 1999
------------ ------------
<S> <C> <C>
Centennial 8 7/8% Senior Notes due 2001............... $ 1,388 $ 1,388
Centennial 10 1/8% Senior Notes due 2005.............. 219 219
Term Loans............................................ 994,375 897,750
Revolving Credit Facility............................. 10,000 36,000
Subordinated Notes due 2009 (Mezzanine Debt).......... 169,368 158,438
Centennial 10 3/4% Senior Subordinated Notes due 2008. 370,000 370,000
------------ -----------
Total Long Term Debt.................................. 1,545,350 1,463,795
Current Portion of Long Term Debt (5,500) (4,500)
------------ -----------
Net Long Term Debt $ 1,539,850 $ 1,459,295
============ ===========
</TABLE>
On February 29, 2000, the Company amended and restated its existing senior term
loan and revolving credit facilities and increased the commitment thereunder by
$200,000 to an aggregate of $1,250,000. The amended and restated credit
facilities are referred to as the New Credit Facility. The New Credit Facility
consists of four term loans in an aggregate principal amount of $1,000,000 and a
revolving credit facility in an aggregate principal amount of $250,000. The
borrowers under the New Credit Facility are Centennial Cellular Operating Co.
LLC for a $325,000 term loan and Centennial Puerto Rico Operations Corp. for
three separate term loans aggregating $675,000. The revolving credit facility
portion of the New Credit Facility is available to both the borrowers.
The aggregate annual principal payments for the next five years and thereafter
under the Company's debt at February 29, 2000 are summarized as follows:
February 28, 2001 $ 5,500
February 28, 2002 18,138
February 28, 2003 56,125
February 29, 2004 78,625
February 28, 2005 101,125
February 28, 2006 and thereafter 1,285,837
------------
$ 1,545,350
============
The Company was in compliance with all covenants of its debt agreements at
February 29, 2000.
Interest expense, as reflected on the financial statements has been partially
offset by interest income. The gross interest expense for the nine months ended
February 29, 2000 and February 28, 1999 were $113,322 and $51,179, respectively.
8
<PAGE>
Note 3. Acquisitions
In November 1999, the Company acquired a wireless telephone system in the
Allegan, Michigan RSA for cash of approximately $31,000 and 300,000 shares of
the Company's common stock.
In August 1999, the Company acquired Integrated Systems, Inc. and Spiderlink
Puerto Rico Internet Services for cash of approximately $2,000 and 240,000
shares of the Company's common stock. 120,000 of such shares were issued in
December 1999 and the remaining 120,000 shares are issuable upon the resolution
of certain contingencies. The excess of the purchase price over the fair value
of the net assets acquired has been recorded as goodwill, which is being
amortized on a straight-line basis over 10 years.
These acquisitions were accounted for by the purchase method and, accordingly,
the assets and liabilities of the acquired entities have been recorded at their
estimated fair values at the date of acquisition. The purchase price allocation
for these acquisitions are preliminary and may be revised at a later date. The
results of operations of the acquired businesses are included in the
consolidated financial statements from the dates of acquisition.
The following summary pro forma information includes the operations of the
Company and these acquisitions as if such acquisitions had been consummated as
of June 1, 1998:
<TABLE>
<CAPTION>
Nine Months Ended
-----------------
February 29, February 28,
2000 1999
---- ----
<S> <C> <C>
Revenues $371,725 $ 267,987
Income (loss) before extraordinary item $ 10,170 $ (46,144)
Net income (loss) $ 10,170 $ (86,670)
Earnings (loss) per common share-
Basic and Diluted:
Income (loss) before extraordinary item $0.11 $(0.41)
===== ======
Net income (loss) applicable
to common shares $0.11 $(0.71)
===== ======
</TABLE>
Note 4. Pending Acquisitions
In December 1999, the Company entered into a definitive agreement to acquire the
wireless telephone system serving the Kokomo, Indiana Metropolitan Statistical
Area #271. The Kokomo market represents approximately 100,000 net pops. The
Company completed this acquisition on April 7, 2000. The purchase price was
approximately $25,000, subject to adjustment.
In January 2000, the Company entered into a letter of intent to purchase the
assets of cable television systems serving Aguadilla, Mayaguez, San German and
surrounding communities in Puerto Rico from Pegasus Communications Corporation
for $170,000. The transaction is subject to numerous conditions, including
9
<PAGE>
regulatory approvals, completion of customary due-diligence and the negotiation
and execution of a definitive purchase agreement.
In January 2000, the Company acquired a 70% interest in All America Cables &
Radio, Inc. ("AACR") in the Dominican Republic. A local partner holds the
remaining 30% interest. AACR is an international long distance provider that
also holds a 30MHz PCS license, a Local Multipoint Distribution System ("LMDS")
license and a certificate to provide a broad range of telecommunications
services in the Dominican Republic. The PCS license covers approximately 8.9
million net pops. The purchase price was $25,000, subject to adjustment, of
which $14,000 has been paid to date and the $11,000 will be paid upon completion
of due diligence. In the event that the Company is not satisfied with the
results of the due diligence, the Company is not obligated to pay the remaining
$11,000. In such event, the Company would not own AACR's long distance and
undersea cable businesses, but would continue to own the PCS license, the LMDS
license and the certificate to provide a broad range of telecommunications
services in the Dominican Republic. The Company has recorded the $14,000 paid to
date as personal communications services license on the consolidated balance
sheet.
Note 5. New Accounting Pronouncements
In December, 1999, the Securities and Exchange Commission ("SEC") issued Staff
Accounting Bulletin No. 101 "Revenue Recognition in Financial Statements" ("SAB
No. 101"). SAB No. 101 sets forth certain of the SEC staff's views on applying
generally accepted accounting principles to revenue recognition in financial
statements. SAB No. 101 is effective for the first fiscal quarter of the fiscal
year beginning after December 15, 1999. The Company plans to adopt SAB No. 101
effective June 1, 2000. Although the Company has not determined the impact of
the adoption on its results of operations and financial position, the Company
expects that this change will not effect cash flows, but could cause the Company
to recognize service initiation revenues over a longer period. The Company
currently recognizes these revenues in the period when service is initiated.
The Financial Accounting Standards Board issued Statement of SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities" in June, 1998.
The Company will adopt SFAS No. 133 effective June 1, 2001. The Company has not
yet determined the impact of the adoption of SFAS No. 133 on future results of
operations or financial condition.
10
<PAGE>
Note 6. Reciprocal Compensation
On April 1, 1999, the Company filed a tariff with the Federal Communications
Commission ("FCC") establishing a rate payable to the Company for delivering
jurisdictionally interstate traffic to Internet Service Providers ("ISPs")
served by the Company from subscribers of the Puerto Rico Telephone Company
("PRTC"). The Company subsequently invoiced PRTC under the terms of the tariff.
PRTC disputed the invoices and on November 2, 1999, pursuant to FCC rules,
indicated that it intended to challenge the lawfulness of the Company's tariff.
On February 1, 2000, PRTC did so.
The Company has responded to PRTC's complaint and has vigorously defended the
validity of its tariff. On April 6, 2000, the Company and PRTC entered into a
letter of intent to settle their dispute regarding compensation for ISP-bound
traffic. The parties are currently negotiating the terms of a definitive
settlement incorporating the terms of the settlement. This agreement will be
submitted to the FCC for its approval. The Company cannot specifically predict
when the FCC will approve the settlement now under negotiation, but expects that
this matter will be resolved in the fiscal quarter ending May 31, 2000.
Note 7. Subsequent Event
On March 21, 2000, the Company announced that it planned on offering $250,000 of
Senior Subordinated Notes due 2008 in a private placement transaction pursuant
to Rule 144A. Due to current market conditions, the Company has indefinitely
postponed such offering.
Note 8. Segment Information
The Company adopted SFAS No. 131 "Disclosures about Segments of an Enterprise
and Related Information" during fiscal 1999. The Company's consolidated
financial statements include two distinct business segments: Domestic and Puerto
Rico. The Company determines its segments based on geographic location. The
Company measures the operating performance of each segment based on Adjusted
EBITDA. Adjusted EBITDA is defined as earnings before income from minority
cellular investment interests, allocations to minority interests in consolidated
subsidiaries, interest expense, interest income, income taxes, depreciation and
amortization, gain on disposition of assets and recapitalization costs.
11
<PAGE>
Information about the Company's operations in its two business segments for the
nine months ended February 29, 2000 and February 28, 1999 is as follows:
<TABLE>
<CAPTION>
Domestic Puerto Rico Eliminations Consolidated
--------------- ------------------ -------------------- -------------------
<S> <C> <C> <C> <C>
Nine months ended February 29, 2000
- ----------------------------------------------------
Total revenues $ 223,127 $ 145,296 $ - $ 368,423
Adjusted EBITDA $ 110,024 $ 61,275 $ - $ 171,299
Total assets $ 1,323,205 $ 1,286,112 $ (1,540,528) (a) $ 1,068,789
Capital expenditures $ 37,491 $ 70,402 $ - $ 107,893
Nine months ended February 28, 1999
- ----------------------------------------------------
Total revenues $ 174,980 $ 87,611 $ - $ 262,591
Adjusted EBITDA $ 91,520 $ 38,828 $ - $ 130,348
Total assets $ 998,289 $ 241,289 $ (282,906) (a) $ 956,672
Capital expenditures $ 25,130 $ 44,689 $ - $ 69,819
(a) Elimination of intercompany investments
</TABLE>
Reconciliation of Income (Loss) before Income Tax (Expense) Benefit, Minority
Interest and Extraordinary Item
<TABLE>
<CAPTION>
Nine months ended
-----------------
February 29, February 28,
2000 1999
------------------- --------------------
<S> <C> <C>
Adjusted EBITDA for reportable segments $ 171,299 $ 130,348
Interest expense (net) (110,347) (48,553)
Depreciation and amortization (60,323) (97,702)
Recapitalization costs - (58,852)
Income from equity investments 11,007 9,352
(Loss) gain on disposition of assets (51) 8,414
------------------- --------------------
Income (loss) before income tax (expense) benefit, minority
interest and extraordinary item $ 11,585 $ (56,993)
============ ===========
</TABLE>
12
<PAGE>
Note 9. Consolidating Financial Data
Centennial Cellular Operating Co. LLC ("CCOC") and Centennial Puerto Rico
Operations Corp. ("CPROC") are wholly-owned subsidiaries of the Company.
CCOC is a joint and several co-issuer on the $370,000 senior subordinated
notes issued by the Company, and CPROC has guaranteed the notes. Separate
financial statements and other disclosures concerning CCOC and CPROC are
not presented because they are not material to investors.
CONSOLIDATING BALANCE SHEET FINANCIAL DATA
As of February 29, 2000
(Amounts in thousands)
<TABLE>
<CAPTION>
Centennial
Centennial Centennial Centennial Communications
Puerto Rico Cellular Communications Corp. and
Operations Corp. Operating Co. Non- Corp. Eliminations Subsidiaries
LLC Guarantors
-------------- ------------- ------------- ------------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 47,501 $ - $ 2,702 $ - $ - $ 50,203
Restricted investments - - 19,704 - - 19,704
Accounts receivable - net 24,089 - 41,506 - - 65,595
Inventory - phones and accessories - net 338 - 8,810 - - 9,148
Prepaid expenses and other current assets 1,153 - 751 - - 1,904
------------- ------------- -------------- ------------ ------------ ----------
Total current assets 73,081 - 73,473 - - 146,554
Property, plant & equipment - net 185,380 - 169,950 - - 355,330
Equity investments in wireless systems - net - - 77,040 - - 77,040
Debt issuance costs - net 24,858 - 32,813 - - 57,671
Cellular telephone licenses - net - - 229,327 - - 229,327
Personal communications services licenses - net - - 71,689 - - 71,689
Goodwill - net - - 119,561 - - 119,561
Investment in affiliates - 90,100 - - (90,100) -
Intercompany 55,291 1,150,500 1,056,435 404,264 (2,666,490) -
Investment in subsidiaries - (520,053) 475,000 (995,053) 1,040,106 -
Other assets - net 5,430 - (173,813) 180,000 - 11,617
-------------- ------------- -------------- ------------ ------------ ----------
Total $ 344,040 $ 720,547 $ 2,131,475 $(410,789) $(1,716,484) $ 1,068,789
============== ============= ============== ============ ============ ==========
</TABLE>
13
<PAGE>
Note 9 - Continued
CONSOLIDATING BALANCE SHEET FINANCIAL DATA
(CONTINUED)
As of February 29, 2000
(Amounts in thousands)
<TABLE>
<CAPTION>
Centennial
Centennial Centennial Centennial Communications
Puerto Rico Cellular Communications Corp. and
Operations Operating Co. Non-Guarantors Corp. Eliminations Subsidiaries
Corp. LLC
---------- ------------- -------------- ------------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
LIABILITIES AND STOCKHOLDERS'
EQUITY (DEFICIT)
Current liabilities:
Current Portion of long term debt $ 5,500 $ - $ - $ - $ - $ 5,500
Accounts payable 15,718 - 7,665 - - 23,383
current liabilities 32,622 - 53,980 274 - 86,876
Payable to affiliates - - 125 - - 125
------------ ------------- ------------- ----------- ------------ -----------
Total current liabilities 53,840 - 61,770 274 - 115,884
Long-term debt 663,875 705,000 - 170,975 - 1,539,850
Intercompany 73,082 1,010,600 1,616,240 4,907 (2,704,829) -
Common stockholders' equity (deficit):
Class A Common stock - - - 944 - 944
Preferred Stock 465,000 - - - (465,000) -
Additional paid-in capital (858,739) - 1,395,500 425,621 (536,761) 425,621
Accumulated deficit (53,018) (995,053) (942,035) (1,012,102) 1,990,106 (1,012,102)
------------ ------------- ------------- ------------ ------------- -----------
(446,757) (995,053) 453,465 (585,537) 988,345 (585,537)
Less: treasury shares - - - (1,077) - (1,077)
Deferred Compensation - - - (331) - (331)
------------ ------------- ------------- ------------ ------------- -----------
Total common stockholders' equity
(deficit) (446,757) (995,053) 453,465 (586,945) 988,345 (586,945)
------------ ------------- ------------- ------------ ------------- -----------
Total $ 344,040 $ 720,547 $2,131,475 $ (410,789) $(1,716,484) $ 1,068,789
============ ============= ============= ============ ============= ===========
</TABLE>
14
<PAGE>
Note 9 - Continued
CONSOLIDATING STATEMENT OF OPERATIONS FINANCIAL DATA
FOR THE NINE MONTHS ENDED FEBRUARY 29, 2000
(Amounts in thousands)
<TABLE>
<CAPTION>
Centennial
Centennial Centennial Centennial Communications
Puerto Rico Cellular Communications Corp. and
Operations Operating Co. Non-Guarantors Corp. Eliminations Subsidiaries
Corp. LLC
------------ -------------- -------------- --------------- ------------- -----------
<S> <C> <C> <C> <C> <C> <C>
Revenue $ 142,289 $ - $ 226,134 $ - $ - $ 368,423
------------ -------------- -------------- --------------- ------------- -----------
Costs and expenses:
Cost of equipment sold 3,462 - 22,086 - - 25,548
Cost of services 21,154 - 25,253 - - 46,407
Sales and marketing 22,225 - 35,910 - - 58,135
General & administrative 34,936 - 32,098 - - 67,034
Depreciation and amortization 33,098 - 27,225 - - 60,323
------------ -------------- -------------- --------------- ------------- -----------
114,875 - 142,572 - - 257,447
------------ -------------- -------------- --------------- ------------- -----------
Operating income 27,414 - 83,562 - - 110,976
------------ -------------- -------------- --------------- ------------- -----------
Income from equity investments - - 11,007 - - 11,007
Income from investments in subsidiaries - 26,534 16,722 26,534 (69,790) -
Loss on disposition of assets (51) - - - - (51)
Interest expense - net (10,641) (85,392) 2,735 (17,049) - (110,347)
Intercompany interest allocation - 85,392 (85,392) - - -
------------ -------------- -------------- --------------- ------------- -----------
Income (loss) before income tax expense
and minority interest 16,722 26,534 28,634 9,485 (69,790) 11,585
Income tax expense - - (2,186) - - (2,186)
------------ -------------- -------------- --------------- ------------- -----------
Income (loss) before minority interest 16,722 26,534 26,448 9,485 (69,790) 9,399
Minority interest in loss
of subsidiaries - - 86 - - 86
------------ -------------- -------------- --------------- ------------- -----------
Net Income (Loss) $ 16,722 $ 26,534 $ 26,534 $ 9,485 $ (69,790) $ 9,485
============ ============== ============== =============== ============= ===========
</TABLE>
15
<PAGE>
Note 9 - Continued
CONSOLIDATING STATEMENT OF CASH FLOWS FINANCIAL DATA
For the Nine Months Ended February 29, 2000
(Amounts in thousands)
<TABLE>
<CAPTION> Centennial
Centennial Centennial Centennial Communications
Puerto Rico Cellular Communications Corp. and
Operations Operating Co. Non-Guarantors Corp. Subsidiaries
Corp. LLC Eliminations
------------ ----------- ------------- ------------ ----------- -----------
OPERATING ACTIVITIES:
<S> <C> <C> <C> <C> <C> <C>
Cash received from subscribers and others $ 122,024 $ - $ 250,305 $ - $ - $ 372,329
Cash received from (paid to) affiliates - 98,167 (98,167) - - -
Cash paid to suppliers, employees and
governmental agencies (57,280) - (156,301) - - (213,581)
Interest paid (11,479) (98,167) (9) (23,403) - (133,058)
------------ ------------ ------------- ------------- ---------- ----------
NET CASH PROVIDED BY (USED IN) OPERATING
ACTIVITIES 53,265 - (4,172) (23,403) - 25,690
------------ ------------ ------------- ------------- ---------- ----------
INVESTING ACTIVITIES:
Proceeds from disposition of assets 330 - 22 - - 352
Capital expenditures (69,956) - (37,937) - - (107,893)
Acquisitions, net of cash acquired (2,000) - (44,820) - - (46,820)
Distributions received from equity investments - - 9,871 - - 9,871
Acquisition of minority partnership interests - - (323) - - (323)
Purchase of restricted securities - - (19,998) - - (19,998)
Proceeds from maturity of restricted securities - - 59,994 - - 59,994
------------- ------------ ------------- ------------- ---------- ----------
NET CASH USED IN INVESTING ACTIVITIES (71,626) - (33,191) - - (104,817)
------------- ------------ ------------- ------------- ---------- ----------
FINANCING ACTIVITIES:
Proceeds from the issuance of long-term debt 1,004,975 23,800 - 9,243 - 1,038,018
Repayment of long-term debt (496,600) (461,550) - - - (958,150)
Debt issuance costs paid (1,182) (1,703) - - - (2,885)
Proceeds from the exercise of stock options - - - 1,206 - 1,206
Cash received from (paid to) affiliates (450,430) 439,453 10,977 - - -
Cash advances from subsidiaries (to parent) - - (12,954) 12,954 - -
------------- ------------ ------------- ------------- ---------- ----------
NET CASH (USED IN) PROVIDED BY FINANCING
ACTIVITIES 56,763 - (1,977) 23,403 - 78,189
------------- ------------ ------------- ------------- ---------- ----------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 38,402 - (39,340) - - (938)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 9,099 - 42,042 - - 51,141
------------- ------------ ------------- ------------- ---------- ----------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 47,501 $ - $ 2,702 $ - $ - $ 50,203
============= ============ ============= ============= ========== ==========
</TABLE>
16
<PAGE>
Note 9 - Continued
CONSOLIDATING STATEMENT OF CASH FLOWS FINANCIAL DATA
For the Nine Months Ended February 29, 2000
(CONTINUED)
(Amounts in thousands)
<TABLE>
<CAPTION> Centennial
Centennial Centennial Centennial Communications
Puerto Rico Cellular Communications Corp. and
Operations Operating Co. Non- Corp. Subsidiaries
Corp. LLC Guarantors Eliminations
---------- ------------ ------------ ----------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
RECONCILIATION OF NET INCOME (LOSS) TO NET CASH
PROVIDED BY (USED IN) OPERATING ACTIVITIES:
Net income (loss) $ 16,722 $ 26,534 $ 26,534 $ 9,485 $ (69,790) $ 9,485
---------- ------------- ------------ ---------- ------------ -------------
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities:
Depreciation and amortization 33,098 - 27,225 - - 60,323
Minority interest in loss of subsidiaries - - (86) - - (86)
Deferred income taxes - - (1,220) - - (1,220)
Equity in undistributed earnings of investee companies - - (11,007) - - (11,007)
Equity in undistributed earnings of subsidiaries - (26,534) (16,722) (26,534) 69,790 -
Loss on disposition of assets 51 - - - - 51
Noncash expenses 5,928 - (7,616) 1,688 - -
Other 664 - 4,709 - - 5,373
Change in assets and liabilities net of
effects of acquisitions:
Accounts receivable - (increase) (9,394) - (8,150) - - (17,544)
Prepaid expenses and other current
assets -(increase) (950) - (1,981) - - (2,931)
Accounts payable, accrued expenses and
other current liabilities- increase (decrease) 7,163 - (17,381) (8,042) - (18,260)
Customer deposits and prepayments -
increase (decrease) (17) - 1,523 - - 1,506
----------- ------------ ------------ ---------- ----------- -------------
Total adjustments 36,543 (26,534) (30,706) (32,888) 69,790 16,205
----------- ------------ ------------ ---------- ----------- -------------
Net cash provided by (used in) operating activities $ 53,265 $ - $ (4,172)$ (23,403) $ - $ 25,690
=========== ============ ============ ========== =========== =============
</TABLE>
17
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The information contained in this Part I, Item 2 updates, and should be read in
conjunction with, information set forth in Part II, Items 7 and 8, in the
Company's Annual Report on Form 10-K for the fiscal year ended May 31, 1999, in
addition to the interim consolidated financial statements and accompanying notes
presented in Part 1, Item 1 of this Form 10-Q.
Results of Operations (Amounts in thousands, except subscriber and share data)
Overview
The Company's results for the three months ended February 29, 2000 reflect
strong growth in the subscriber base in the Company's Domestic Operations. The
Company's wireless subscribers at February 29, 2000 were 585,500 as compared to
426,700 at February 28, 1999, an increase of 37%. The Company reported a net
loss of $3,243 during the three months ended February 29, 2000, as compared to a
net loss of $93,606 during the three months ended February 28, 1999. The Company
reported net income of $9,485 during the nine months ended February 29, 2000, as
compared to a net loss of $87,263 during the nine months ended February 28,
1999.
Included in the results for the three and nine months ended February 29, 2000 is
$2,542 of expense related to the Company's restructuring of its existing credit
facility on February 29, 2000 (see Liquidity and Capital Resources). Included in
the net loss for the three and nine months ended February 28, 1999 are
recapitalization costs of $58,852 and an extraordinary loss on the early
extinguishment of debt (net of income taxes) of $40,526. The Company reported a
loss per common share of $(0.03) during the three months ended February 29,
2000, as compared to a loss per common share of $(0.83) for the three months
ended February 28, 1999. Earnings per common share, basic and diluted, for the
nine months ended February 29, 2000 was $0.10 per diluted share, as compared to
a loss per common share of $(0.71) for the nine months ended February 28, 1999.
The table below summarizes results of operations for each period:
<TABLE>
<CAPTION>
Three Months Ended % Nine Months Ended %
2/29/00 2/28/99 Change 2/29/00 2/28/99 Change
---------- ---------- ------ ---------- ---------- ------
<S> <C> <C> <C> <C> <C> <C>
Adjusted EBITDA (1) $ 53,347 $ 48,778 9% $ 171,299 $ 130,348 31%
Operating income (loss) $ 31,663 $ (43,233) N/A $ 110,976 $ (26,206) N/A
Net income (loss) $ (3,243) $ (93,606) 97% $ 9,485 $ (87,263) N/A
(Loss) Earnings per
common share-
Basic and Diluted $(0.03) $(0.83) N/A $0.10 $(0.71) N/A
</TABLE>
(1) Earnings before income from minority cellular investment interests,
allocations to minority interests in consolidated subsidiaries, interest
expense, interest income, income taxes, depreciation and amortization, gain on
disposition of assets, recapitalization costs and other non-recurring charges
("Adjusted EBITDA") is presented because it is a financial indicator used in the
18
<PAGE>
telecommunications industry. Our calculation of Adjusted EBITDA may or may not
be consistent with the calculation of EBITDA by other companies and should not
be viewed as an alternative to generally accepted accounting principles (GAAP)
measurements such as operating income, net income or cash flows from operations.
Domestic Operations
<TABLE>
<CAPTION>
Revenue
Three Months Ended % Nine Months Ended %
2/29/00 2/28/99 Change 2/29/00 2/28/99 Change
----------- ---------- ------- ----------- ----------- ------
<S> <C> <C> <C> <C> <C> <C>
Service revenue $ 72,185 $ 60,876 19% $ 212,077 $ 171,787 23%
Equipment sales 4,195 1,268 231% 11,050 3,193 246%
----------- ---------- ---------- ----------
Total revenue $ 76,380 $ 62,144 23% $ 223,127 $ 174,980 28%
=========== ========== ========== ==========
</TABLE>
Total Domestic service revenue, excluding roaming usage, increased $5,733 or 15%
to $44,892 in the third quarter and increased $15,981 or 14% to $128,172 for the
nine months ended February 29, 2000, as compared to the same periods in fiscal
1999. These increases were primarily due to a revenue increase, generated by new
subscribers, of $12,345 and $32,326, for the three and nine months ended
February 29, 2000, respectively, partially offset by a decrease in retail
revenue per subscriber, which, in the aggregate, accounted for a decrease of
$6,612 and $16,345 in revenue for the same periods. The decrease in retail
revenue per subscriber was primarily due to the rollout of digital plans that
include a larger amount of plan minutes as compared to analog rate plans.
Revenue from domestic roaming usage increased to $27,293 or 26% over roamer
revenues of $21,717 for the three months ended February 28, 1999, and increased
to $83,905 or 41% over roamer revenues of $59,596 for the nine months ended
February 28, 1999. These increases were primarily due to an increase in roaming
revenue, generated by increased usage, of $13,550 and $44,351, for the three and
nine months ended February 29, 2000, respectively, partially offset by a
reduction in roaming rates per minute of $7,974 and $20,042 for the same
periods.
The increase in equipment sales of wireless telephones and accessories to
subscribers was due to a larger number of telephone and accessory units sold
during the current year and the introduction of digital phones, which sell at a
higher price than analog phones.
Domestic had approximately 416,500 and 309,300 subscribers at February 29, 2000
and February 28, 1999, respectively. Increases from new activations of 196,900
were offset by subscriber cancellations of 95,800. Included in the number of
subscribers as of February 29, 2000 are approximately 6,100 subscribers acquired
in the Allegan, MI MSA acquisition. The cancellations experienced by the
Domestic Operations are primarily the result of competitive factors and
non-payment.
Domestic revenue per subscriber per month, based upon an average number of
subscribers, was $64 and $68 for the three and nine months ended February 29,
2000, respectively, as compared to $68 and $69 for the three months and nine
months ended February 28, 1999, respectively. Domestic revenue per subscriber
has been impacted, and the Company expects will continue to be impacted, by
competition and lower reciprocal per minute roaming rates with other wireless
carriers.
19
<PAGE>
<TABLE>
<CAPTION>
Costs and expenses
Three Months Ended % Nine Months Ended %
2/29/00 2/28/99 Change 2/29/00 2/28/99 Change
---------- ---------- ------ ---------- ---------- ------
<S> <C> <C> <C> <C> <C> <C>
Cost of equipment sold $ 9,621 $ 5,455 76% $ 21,919 $ 13,658 60%
Cost of services $ 8,928 $ 6,471 38% $ 23,920 $ 18,961 26%
Sales and marketing $ 13,700 $ 8,614 59% $ 35,659 $ 22,304 60%
General and administrative $ 10,993 $ 10,350 6% $ 31,605 $ 28,537 11%
Adjusted EBITDA $ 33,138 $ 31,254 6% $ 110,024 $ 91,520 20%
Recapitalization costs - 55,995 (100%) - 55,995 (100%)
Depreciation and amortization 9,430 20,886 (55%) 25,791 62,385 (59%)
--------- ---------- ---------- ----------
Operating income $ 23,708 $ (45,627) N/A $ 84,233 $ (26,860) N/A
========= ========== ========== ==========
</TABLE>
Cost of equipment sold increased during the three and nine months ended February
29, 2000, primarily due to an increase in the number of telephone units sold and
higher costs associated with digital phones.
Cost of services increased during the three and nine months ended February 29,
2000, primarily due to the variable costs associated with a larger revenue and
subscription base and increased wireless coverage areas resulting from the
continued expansion of the Domestic network.
Sales and marketing expenses increased during the three and nine months ended
February 29, 2000, primarily due to the increase in gross subscriber additions
of 73,900 and 164,600 for the three and nine months ended February 29, 2000,
respectively, from 32,300 and 61,900 in the comparable periods in fiscal 1999.
General and administrative expenses increased during the three and nine months
ended February 29, 2000, primarily due to increased costs to support the
expanding subscriber base.
Adjusted EBITDA for the Domestic Operations for the three and nine months ended
February 29, 2000 was $33,138 and $110,024, respectively, an increase of $1,884
or 6% and $18,504 or 20% over the three and nine months ended February 28, 1999,
respectively.
The Company anticipates continued increases in the cost of services, sales and
marketing and general and administrative expenses as the growth of its Domestic
Operations continues.
Depreciation and amortization for the three and nine months ended February 29,
2000 was $9,430 and $25,791, respectively, a decrease of $11,456 or 55% and
$36,594 or 59% over the three and nine months ended February 28, 1999,
respectively. The decrease was the result of the effect of the Company
prospectively changing the amortization period for its cellular telephone
licenses and the difference between the cost of its equity investments and the
underlying book value of such investments from ten years to forty years
effective March 1, 1999. The Company changed such amortization periods to better
reflect the period over which the economic benefits of the cellular licenses and
equity investments are expected to be realized. The effect of such changes in
amortization periods was a reduction in amortization expense of $10,602 and
20
<PAGE>
$33,920 for the three and nine months ended February 29, 2000, respectively. The
effect of this change in amortization periods (net of the related tax effect)
was to decrease loss per share-basic and diluted by $0.09 for the three months
ended February 29, 2000, and to increase earnings per share-basic and diluted by
$0.29 for the nine months ended February 29, 2000. Prior to the change in
amortization periods, certain cellular licenses became fully amortized during
the year ended May 31, 1999, which also contributed to the decrease in
depreciation and amortization.
Operating income for the three and nine months ended February 29, 2000 was
$23,708 and $84,233, respectively, an increase of $69,335 and $111,093 from the
operating loss of $45,627 and $26,860 for the three and nine months ended
February 28, 1999, respectively.
Puerto Rico Operations
<TABLE>
<CAPTION>
Revenue
Three Months Ended % Nine Months Ended %
2/29/00 2/28/99 Change 2/29/00 2/28/99 Change
---------- ---------- ------ ---------- ---------- ------
<S> <C> <C> <C> <C> <C> <C>
Service revenue $ 49,451 $ 34,661 43% $ 141,089 $ 85,422 65%
Equipment sales 1,790 1,188 51% 4,207 2,189 92%
---------- ---------- ---------- ---------
Total revenue $ 51,241 $ 35,849 43% $ 145,296 $ 87,611 66%
========== ========== ========== =========
</TABLE>
Total PCS Wireless service revenue increased $9,972, or 34% and $40,073 or 54%
for the three and nine months ended February 29, 2000, respectively, to $39,548
and $113,978 for the same periods. These increases reflect PCS Wireless
subscriber growth, resulting in an increase in revenues of $15,579 and $47,853
for the three and nine months ended February 29, 2000, respectively, partially
offset by lower subscriber pricing, which, in the aggregate, accounted for a
decrease of $5,607 and $7,780 for the same periods. Total Wireline revenue
increased by $4,818 and $15,594 to $9,903 and $27,112 for the three and nine
months ended February 29, 2000, respectively.
The increase in equipment sales of wireless telephones and accessories to
subscribers was primarily due to increased phone sales to pre-paid customers
during the current year.
PCS Wireless subscribers at February 29, 2000 were approximately 169,000, an
increase of 44% from the 117,400 subscribers at February 28, 1999. Increases
from new activations of 116,300 were offset by subscriber cancellations of
53,200. The cancellations experienced by the Puerto Rico Operations are
primarily the result of competitive factors and non-payment.
PCS Wireless revenue per subscriber per month, based upon an average number of
subscribers, was $84 and $86 for the three and nine months ended February 29,
2000, respectively, as compared to $95 and $91 for the three months and nine
months ended February 28, 1999, respectively. PCS Wireless revenue per
subscriber has been impacted, and the Company expects will continue to be
impacted, by competition.
21
<PAGE>
<TABLE>
<CAPTION>
Costs and expenses
Three Months Ended % Nine Months Ended %
2/29/00 2/28/99 Change 2/29/00 2/28/99 Change
---------- ---------- ------ ---------- ---------- ------
<S> <C> <C> <C> <C> <C> <C>
Cost of equipment sold $ 963 $ 1,305 (26%) $ 3,629 $ 2,564 42%
Cost of services $ 7,063 $ 5,966 18% $ 22,487 $ 15,600 44%
Sales and marketing $ 7,437 $ 5,829 28% $ 22,476 $ 16,027 40%
General and administrative $ 15,569 $ 5,225 198% $ 35,429 $ 14,592 143%
Adjusted EBITDA $ 20,209 $ 17,524 15% $ 61,275 $ 38,828 58%
Recapitalization costs - 2,857 (100%) - 2,857 (100%)
Depreciation and amortization 12,254 12,273 (0%) 34,532 35,317 (2%)
---------- ---------- ---------- ----------
Operating income $ 7,955 $ 2,394 232% $ 26,743 $ 654 3,989%
========== ========== ========== ==========
</TABLE>
Cost of equipment sold increased during the nine months ended February 29, 2000,
primarily due to an increase in sales of handsets to new prepaid subscribers and
increased sales of accessories.
Cost of services increased during the three and nine months ended February 29,
2000, primarily due to the variable costs associated with a larger revenue and
subscription base and increased wireless coverage areas resulting from the
continued expansion of the Puerto Rico Operation's network.
Sales and marketing expenses increased during the three and nine months ended
February 29, 2000, primarily due to the increase in gross subscriber additions
as well as the hiring of additional sales force.
General and administrative expenses increased during the three and nine months
ended February 29, 2000, primarily due to increases in reserves for Internet
Service Provider revenue ("ISP") related to a dispute with the Puerto Rico
Telephone Company ("PRTC") over amounts owed by PRTC for ISP traffic that
terminated on Centennial's network (see "Reciprocal Compensation"). Pending a
resolution of this matter, the Company has increased its reserve for bad debt.
Additionally, the Puerto Rico Operations incurred approximately $2,542 of
expenses related to the Company's restructuring of its existing credit facility
on February 29, 2000.
Adjusted EBITDA for the Puerto Rico Operations for the three and nine months
ended February 29, 2000 was $20,209 and $61,275, respectively, an increase of
$2,685 or 15% and $22,447 or 58% over the three and nine months ended February
28, 1999, respectively.
The Company anticipates continued increases in the cost of services, sales and
marketing and general and administrative expenses as the growth of its Puerto
Rico Operations continues. In addition, the Company expects that its
participation in the Puerto Rico wireline business will contribute to a
continued increase in the level of expenses.
Depreciation and amortization for the three and nine months ended February 29,
2000 was $12,254 and $34,532, respectively, a decrease of $19 or less than 1%
22
<PAGE>
and $785 or 2% over the three and nine months ended February 28, 1999,
respectively. These decreases result from PCS phones becoming fully depreciated.
This was partially offset by depreciation related to capital expenditures made
during fiscal 2000 and 1999 in connection with the development and network
expansion of the Puerto Rico Operation's wireless telephone systems and the
purchase of PCS phones.
Operating income for the three and nine months ended February 29, 2000 was
$7,955 and $26,743, respectively, an increase of $5,561 and $26,089 from the
operating income of $2,394 and $654 for the three and nine months ended February
28, 1999.
Consolidated
Other non-operating expenses
The gain on disposition of assets during the three and nine months ended
February 28, 1999 is primarily the result of the Company's sale of its
investment interest in the wireless telephone system serving the Coconino,
Arizona RSA.
Net interest expense was $37,918 and $110,347 for the three and nine months
ended February 29, 2000, respectively, an increase of $11,305 or 42% and $61,794
or 127% from the three and nine months ended February 28, 1999. Gross interest
costs for the three and nine months ended February 29, 2000 were $38,473 and
$113,322, respectively as compared to $28,342 and $51,179 for the three and nine
months ended February 28, 1999. The increases in interest expense reflect an
increase in total debt of $81,993 from February 28, 1999.
The increase in long-term debt is the result of additional borrowings for
capital expenditures related to the expansion of the Puerto Rico Operation's PCS
network infrastructure, the expansion of the wireline network and the purchase
of PCS telephones, as well as completed acquisitions. The average debt
outstanding during the three and nine months ended February 29, 2000 was
$1,486,616 and $1,478,556, respectively, increases of $423,602 and $790,643 as
compared to the average debt level of $1,063,014 and $687,913 during the three
and nine months ended February 28, 1999, respectively. The Company's weighted
average interest rate decreased to 10.4% for the three months ended February 29,
2000 from 10.7% for the three months ended February 28, 1999. The Company's
weighted average interest rate increased to 10.2% for the nine months ended
February 29, 2000 from 9.9% for the nine months ended February 28, 1999.
After loss attributable to minority interests in subsidiaries for the three
months ended February 29, 2000, pretax loss was $2,613, as compared to a pretax
loss of $69,030 for the three months ended February 28, 1999. After loss
attributable to minority interests in subsidiaries for the nine months ended
February 29, 2000, pretax income was $11,671, as compared to a pretax loss of
$56,851 for the nine months ended February 28, 1999. The income tax expense was
$630 and $2,186 for the three and nine months ended February 29, 2000,
respectively, as compared to an income tax benefit of $15,950 and $10,114 for
the three and nine months ended February 28, 1999. The Company had a $40,526
extraordinary loss on the early extinguishment of debt, net of income taxes of
$11,251, for the three and nine months ended February 28, 1999.
23
<PAGE>
These factors resulted in a net loss of $3,243 for the three months ended
February 29, 2000, which represents a decrease of $90,363 from the net loss for
the three months ended February 28, 1999. Additionally, these factors resulted
in net income of $9,485 for the nine months ended February 29, 2000, which
represents an increase of $96,748 from the net loss for the nine months ended
February 28, 1999.
Reciprocal compensation
On April 1, 1999, the Company filed a tariff with the Federal Communications
Commission ("FCC") establishing a rate payable to the Company for delivering
jurisdictionally interstate traffic to Internet Service Providers ("ISPs")
served by the Company from subscribers of the Puerto Rico Telephone Company
("PRTC"). The Company subsequently invoiced PRTC under the terms of the tariff.
PRTC disputed the invoices and on November 2, 1999, pursuant to FCC rules,
indicated that it intended to challenge the lawfulness of the Company's tariff.
On February 1, 2000, PRTC did so.
The Company has responded to PRTC's complaint and has vigorously defended the
validity of its tariff. On April 6, 2000, the Company and PRTC entered into a
letter of intent to settle their dispute regarding compensation for ISP-bound
traffic. The parties are currently negotiating the terms of a definitive
settlement incorporating the terms of the settlement. This agreement will be
submitted to the FCC for its approval. The Company cannot specifically predict
when the FCC will approve the settlement now under negotiation, but expects that
this matter will be resolved in the fiscal quarter ending May 31, 2000.
Liquidity and Capital Resources
On February 29, 2000, the Company amended and restated its existing senior term
loan and revolving credit facilities and increased the commitment thereunder by
$200,000 to an aggregate of $1,250,000. The amended and restated credit
facilities are referred to as the New Credit Facility. The New Credit Facility
consists of four term loans in an aggregate principal amount of $1,000,000 and a
revolving credit facility in an aggregate principal amount of $250,000. The
borrowers under the New Credit Facility are Centennial Cellular Operating Co.
LLC for a $325,000 term loan and Centennial Puerto Rico Operations Corp. for
three separate term loans aggregating $675,000. The revolving credit facility
portion of the New Credit Facility is now equally available to both the
borrowers.
For the nine months ended February 29, 2000, earnings exceeded fixed charges by
$10,448. Fixed charges consist of interest expense, including amortization of
debt issuance costs and the portion of rents deemed representative of the
interest portion of leases. The amount by which earnings exceeded fixed charges
reflects non-cash charges of $60,323 relating to depreciation and amortization.
As of February 29, 2000, the Company had $355,330 of property, plant and
equipment (net) placed in service. During the nine months ended February 29,
2000, the Company made capital expenditures of $107,893, to continue the
24
<PAGE>
expansion of its Puerto Rico systems and its Domestic systems to expand the
coverage areas of existing properties and to upgrade its cell sites and call
switching equipment. Capital expenditures for the Puerto Rico Operations were
$70,402 for the nine months ended February 29, 2000, representing 65% of the
Company's total capital expenditures. The Puerto Rico Operation's capital
expenditures included $50,292 to add capacity and services and to continue the
expansion of the Company's PCS network infrastructure and $20,110 to purchase
telephone units which remain the property of the Company while in use by
subscribers. The Company's future commitments for property and equipment include
the addition of cell sites to expand coverage and enhancements to the existing
infrastructure of its wireless telephone systems. Through the remainder of
fiscal year 2000, the Company anticipates capital expenditures in its Domestic
systems of approximately $5,000. The Company currently estimates that the cost
to continue the expansion of its Puerto Rico network infrastructure and purchase
telephone units through fiscal 2000 year-end will be approximately $24,600.
Additionally, the Company estimates the initial cost of the buildout of its
operations in the Dominican Republic will be approximately $56,000. Amounts
required to finance the Company's capital expenditures are expected to come
primarily from cash flow generated from operations with the remainder coming
from borrowings under the Company's existing revolving credit facility. The
Company may seek various sources of external financing including, but not
limited to, bank financing, joint ventures, partnerships and placement of debt
or equity securities of the Company.
In order to meet its obligations with respect to its operating needs, capital
expenditures, and debt service obligations, it is important that the Company
continue to improve operating cash flow. Increases in revenue will be dependent
upon continuing growth in the number of subscribers and maximizing revenue per
subscriber. The Company has continued the development of its managerial,
administrative and marketing functions, and is continuing the construction of
wireless systems in its existing and recently acquired markets in order to
achieve these objectives. There is no assurance that growth in subscribers or
revenue will occur. In addition, the Company's participation in the Puerto Rico
telecommunications business has been, and is expected to continue to be, capital
intensive.
25
<PAGE>
The following table sets forth (in thousands), for the periods indicated, the
Company's net cash provided by operating activities before interest payments
(net cash provided), the Company's principal uses of such cash and the cash
(required from) available for financing and investing activities:
<TABLE>
<CAPTION>
Nine Months Ended
-----------------
February 29, February 28,
2000 1999
----------- -----------
% of net % of net
cash cash
Amount provided Amount provided
------ -------- ------ --------
<S> <C> <C> <C> <C>
Net cash provided by operating activities $ 25,690 16% $ 98,654 74%
Interest paid 133,058 84% 35,045 26%
--------- ----- --------- -----
Net cash provided $ 158,748 100% $ 133,699 100%
========= ===== ========= =====
Principal uses of cash
Interest paid $ 133,058 84% $ 35,045 26%
Property, plant & equipment 107,893 68% 69,819 52%
--------- ----- --------- -----
Total $ 240,951 152% $ 104,864 78%
========= ===== ========= =====
Cash (required from) available for other
financing and investing activities $ (82,203) (52)% $ 28,835 22%
========= ===== ========= =====
</TABLE>
Net cash provided by operating activities for the nine months ended February 29,
2000 was not sufficient to fund the Company's expenditures for property, plant
and equipment of $107,893.
26
<PAGE>
The following table sets forth the primary cash flows provided by (used in)
other financing and investing activities for the periods indicated:
<TABLE>
<CAPTION>
Nine Months Ended
-----------------
February 29, February 28,
2000 1999
----------- -----------
<S> <C> <C>
Proceeds from disposition of assets $ 352 $ 466
Proceeds from issuance of class A common stock - 427,394
Proceeds from the exercise of stock options 1,206 -
Proceeds from issuance of long-term debt 1,038,018 1,481,500
Proceeds from maturity of restricted securities 59,994 -
Disposition of equity investment - 13,500
Distributions received from equity investments-net 9,871 9,791
------------ ------------
Cash available 1,109,441 1,932,651
------------ ------------
Acquisition of other assets - (2,200)
Acquisition of minority partnership interests (323) -
Repayment of long-term debt (958,150) (528,518)
Debt issuance costs paid (2,885) (61,118)
Redemption of preferred stock - (128,154)
Acquisition of equity investment - (3,000)
Purchase of common stock in conjunction
with recapitalization - (1,052,436)
Recapitalization costs paid - (46,500)
Early extinguishment of debt - (44,634)
Purchase of restricted securities (19,998) (57,501)
Dividends paid - (18,131)
Acquisition, net of cash acquired (46,820) -
------------ -----------
Cash available (needed) for operations and capital
expenditures $ 81,265 $ (9,541)
============ ===========
</TABLE>
Based upon current market conditions and its current capital structure, the
Company believes that cash flows from operations and funds from currently
available credit facilities will be sufficient to enable the Company to meet
required cash commitments through the next twelve month period.
Acquisitions, Exchanges and Dispositions
The Company's primary acquisition strategy is to acquire controlling ownership
interests in communication systems serving markets which are proximate to or
share a community of interest with its current markets. The Company's strategy
of clustering its operations in proximate geographic areas enables it to achieve
operating and cost efficiencies as well as joint marketing benefits. Clustering
27
<PAGE>
also allows the Company to offer its subscribers more areas of uninterrupted
service as they travel. In addition to expanding its existing clusters, the
Company also may seek to acquire interests in wireless systems in other
geographic areas. The Company also may pursue other communications businesses it
determines to be desirable. The consideration for such acquisitions may consist
of shares of stock, cash, assumption of liabilities, or a combination thereof.
In November 1999, the Company acquired a wireless telephone system serving the
Allegan, Michigan RSA. The Allegan market represents approximately 100,000 net
pops. The total purchase price was approximately $35,000 in cash and stock,
subject to adjustment.
In December 1999, the Company entered into a definitive agreement to acquire the
wireless telephone system serving the Kokomo, Indiana Metropolitan Statistical
Area #271. The Kokomo market represents approximately 100,000 net pops. The
Company completed this acquisition on April 7, 2000. The purchase price was
approximately $25,000, subject to adjustment.
In January 2000, the Company entered into a letter of intent to purchase the
assets of cable television systems serving Aguadilla, Mayaguez, San German and
surrounding communities in Puerto Rico from Pegasus Communications Corporation
for $170,000. The transaction is subject to numerous conditions, including
regulatory approvals, completion of customary due-diligence and the negotiation
and execution of a definitive purchase agreement.
In January 2000, the Company acquired a 70% interest in All America Cables &
Radio, Inc. ("AACR") in the Dominican Republic. A local partner holds the
remaining 30% interest. AACR is an international long distance provider that
also holds a 30MHz PCS license, a Local Multipoint Distribution System ("LMDS")
license and a certificate to provide a broad range of telecommunications
services in the Dominican Republic. The PCS license covers approximately 8.9
million net pops. The purchase price was $25,000, subject to adjustment, of
which $14,000 has been paid to date and the $11,000 will be paid upon completion
of due diligence. In the event that the Company is not satisfied with the
results of the due diligence, the Company is not obligated to pay the remaining
$11,000. In such event, the Company would not own AACR's long distance and
undersea cable businesses, but would continue to own the PCS license, the LMDS
license and the certificate to provide a broad range of telecommunications
services in the Dominican Republic.
Stock Split
On December 28, 1999, the Company announced that the Board of Directors declared
a three-for-one stock split of all outstanding shares of class A common stock.
The shares were distributed on or about January 20, 2000 to all holders of
record on January 10, 2000.
New Accounting Pronouncements
In December, 1999, the Securities and Exchange Commission ("SEC") issued Staff
Accounting Bulletin No. 101 "Revenue Recognition in Financial Statements" ("SAB
No. 101"). This SAB sets forth certain of the SEC staff's views in applying
generally accepted accounting principles to revenue recognition in financial
statements. SAB No. 101 is effective for the first fiscal quarter of the fiscal
28
<PAGE>
year beginning after December 15, 1999. The Company plans to adopt SAB No. 101
effective June 1, 2000. Although the Company has not yet determined the impact
of the adoption on its results of operations and financial position, the Company
expects that this change will not effect cash flows, but could cause the Company
to recognize service initiation revenues over a longer period. The Company
currently recognizes these revenues in the period when service is initiated.
The Financial Accounting Standards Board issued Statement of SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities" in June, 1998.
The Company will adopt SFAS No. 133 effective June 1, 2001. The Company has not
yet determined the impact of the adoption of SFAS No. 133 on future results of
operations or financial condition.
Subsequent Event
On March 21, 2000, the Company announced that it planned on offering $250,000 of
Senior Subordinated Notes due 2008 in a private placement transaction pursuant
to Rule 144A. Due to current market conditions, the Company has indefinitely
postponed such offering.
29
<PAGE>
* * * * *
CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE HARBOR"
PROVISIONS OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
This report contains or incorporates by reference forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995.
Where any such forward-looking statement includes a statement of the assumptions
or bases underlying such forward-looking statement, the Company cautions that
assumed facts or bases almost always vary from actual results, and the
differences between assumed facts or bases and actual results can be material
depending upon the circumstances. Where, in any forward-looking statement, the
Company or its management expresses an expectation or belief as to future
results, there can be no assurance that the statement of expectation or belief
will result or be achieved or accomplished. The words "believe", "expect",
"estimate", "anticipate", "project" and similar expressions may identify
forward-looking statements.
Taking into account the foregoing, the following are identified as important
factors that could cause actual results to differ materially from those
expressed in any forward-looking statement made by, or on behalf of, the
Company: the Company's historical net losses and stockholders' equity (deficit);
the Company's substantial debt obligations; the capital intensity of the
wireless telephone business and the Company's debt structure; the competitive
nature of the wireless telephone and other communications services industries;
price declines in roaming rates; regulation; changes and developments in
technology; subscriber cancellations; restrictive covenants and consequences of
default contained in the Company's financing arrangements; control by certain of
the Company's stockholders and anti-takeover provisions; the Company's
opportunities for growth through acquisitions and investments and the Company's
ability to manage this growth; local operating hazards and economic conditions
in the areas in which the Company operates; the Company's ability to manage and
monitor billing; refinancing and interest rate exposure risks; potential for
changes in accounting standards; capital calls associated with the Company's
Investment Interests; and possible health effects of radio frequency
transmission. A more detailed discussion of certain of the foregoing factors can
be found in the Company's Annual Report on Form 10-K for the Fiscal Year ended
May 31, 1999 under the heading "CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE
HARBOR" PROVISIONS OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995" in
Item 7 of such Form 10-K. Other factors may be detailed from time to time in the
Company's filings with the SEC. The Company assumes no obligation to update its
forward-looking statements or to advise of changes in the assumptions and
factors on which they are based.
30
<PAGE>
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is subject to market risks due to fluctuations in interest rates. A
majority of the Company's long-term debt has variable interest rates. The
Company utilizes interest rate swap and collar agreements to hedge variable
interest rate risk on a portion of its variable interest rate debt as part of
its interest rate risk management program.
The table below presents principal (or notional) amounts and related average
interest rate by year of maturity for the Company's long-term debt and interest
rate swap and collar agreements. Weighted average variable rates are based on
implied forward rates in the yield curve as of February 29, 2000 (based on
information provided by one of the Company's lending institutions):
Amounts in thousands:
<TABLE>
<CAPTION>
Year ended
February February February February February
28, 28, 28, 29, 28, There-after Fair
2001 2002 2003 2004 2005 Total value
-----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Long-term debt:
Fixed rate - $ 1,388 - - - $539,587 $ 540,975 $ 555,035
Average interest rate - 8.88% - - - 10.51% 10.51% -
Variable rate $ 5,500 $ 16,750 $ 56,125 $ 78,625 $101,125 $746,250 $1,004,375 $1,004,375
Average interest rate (1) 6.76% 7.40% 7.48% 7.52% 7.52% 7.58% 7.55% -
Interest rate swaps (pay
fixed, receive variable):
Notional amount $350,000 $350,000 $150,000 - - - - $ 12,676
Average pay rate 5.40% 5.40% 5.38% - - - - -
Average receive rate 6.76% 7.40% 7.48% - - - - -
Interest rate collar:
Notional amount $100,000 $100,000 $100,000 $100,000 - - - $ 2,190
Cap 7.00% 7.00% 7.00% 7.00% - - - -
Floor 4.45% 4.45% 4.45% 4.45% - - - -
(1) Represents the average interest rate before applicable margin
</TABLE>
31
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. Legal Proceedings
Other than as described under "Reciprocal Compensation", there are no
material pending legal proceedings, other than ordinary routine
litigation incidental to the business, to which the Company or any of
its subsidiaries is a party or of which any of their property is the
subject.
ITEM 2. Changes in Securities and Use of Proceeds
On December 28, 1999, the Company announced that the Board of
Directors declared a three-for-one stock split of all outstanding
shares of class A common stock. The shares were distributed on or
about January 20, 2000 to all holders of record on January 10, 2000.
In connection with the stock split, the holders of in excess of
majority of the outstanding shares of common stock approved an
amendment to the Company's Amended and Restated Certificate of
Incorporation to increase the number of authorized shares of common
stock to 150,000,000.
ITEM 3. Defaults Upon Senior Securities
None
ITEM 4. Submission of Matters to a Vote of Security Holders
None
ITEM 5. Other Information
None
ITEM 6. Exhibits and Report on Form 8-K
Each exhibit identified below is filed as a part of this report.
a) Exhibits
Exhibit No. Description
Exhibit 10.1 Credit Agreement dated as of January 7, 1999 as amended and
restated as of February 29, 2000 among Centennial Cellular
Operating Co. LLC, as Borrower; Centennial Puerto Rico
Operations Corp., as PR Borrower; Centennial Communications
Corp., as a Guarantor; the other Guarantors party thereto;
each of the lenders named therein; The Chase Manhattan Bank,
as Co-Lead Arranger and Co-Syndication Agent; Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
as Co-Lead Arranger and Co-Syndication Agent; Bank of
32
<PAGE>
America, N.A., as Arranger and Administrative Agent; and The
Bank of Nova Scotia, as Documentation Agent
Exhibit 27 Financial data schedule (EDGAR filing document only)
b) Reports on Form 8-K
Form 8-K dated February 29, 2000, relating to the Company changing its
name from Centennial Cellular Corp. to Centennial Communications Corp.
effective at the start of trading on Tuesday February 29, 2000.
33
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
April 11, 2000
CENTENNIAL COMMUNICATIONS CORP.
/S/
------------------
Peter W. Chehayl
Chief Financial Officer,
Sr. Vice President and Treasurer
(Chief Financial Officer)
/S/
------------------
Thomas E. Bucks
Sr. Vice President-Controller
(Chief Accounting Officer)
REAFFIRMATION AGREEMENT, dated as of February 29, 2000 (this "Agreement"), among
CENTENNIAL CELLULAR CORP., a Delaware corporation ("CCC"), CENTENNIAL CELLULAR
OPERATING CO. LLC, a Delaware corporation (the "Borrower"), CENTENNIAL PUERTO
RICO OPERATIONS CORP., as PR Borrower (the "PR Borrower"), each Guarantor listed
on the signature pages below (the "Subsidiary Guarantors", and collectively with
CCC, Borrower, PR Borrower and the other Guarantors, the "Reaffirming Parties")
and BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, together
with its successors in such capacity, "Administrative Agent") and as issuing
lender, together with its successors in such capacity (in such capacity,
"Issuing Lender").
WHEREAS the Reaffirming Parties, the Lenders, Issuing Lender, Co-Syndication
Agents (such term and each other capitalized term used but not defined herein
having the meaning assigned in the Effectiveness Agreement referred to below or
the Restated Credit Agreement referred to therein) and Administrative Agent have
entered into the Effectiveness Agreement dated as of the date hereof (the
"Effectiveness Agreement");
WHEREAS the Reaffirming Parties are party to the Security Agreement, the Issuer
Acknowledgments delivered thereunder, the Collateral Assignment of Location
Agreements, the Joinder Agreement and the Century-ML Consent and Agreement
(collectively, the "Collateral Documents");
WHEREAS each Reaffirming Party expects to realize, or has realized, substantial
direct and indirect benefits as a result of Borrower and PR Borrower entering
into the Effectiveness Agreement and as a result of the Restated Credit
Agreement and the Transactions; and
WHEREAS the execution and delivery of this Agreement is a condition precedent to
the effectiveness of the Restated Credit Agreement and to the availability of
credit under the Restated Credit Agreement under Section 7 of the Effectiveness
Agreement;
<PAGE>
NOW, THEREFORE, in consideration of the foregoing, to induce Administrative
Agent, each Lender, Issuing Lender and each Agent to enter into the
Effectiveness Agreement and the Restated Credit Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Reaffirmation/Amendment and Restatement
SECTION 1.01. Reaffirmation. Each of the Reaffirming Parties hereby
(i) consents to the Effectiveness Agreement and the Restated Credit Agreement
and hereby confirms its respective guarantees, pledges, grants of security
interests, acknowledgments and consents under each Collateral Document, as
applicable, and agrees that notwithstanding the effectiveness of the
Effectiveness Agreement and the Restated Credit Agreement such guarantees,
pledges, grants of security interests, acknowledgments and consents shall
continue to be in full force and effect and shall accrue to the benefit of the
Lenders, Issuing Lender and Agents under the Restated Credit Agreement and
(ii) ratifies the Collateral Documents.
SECTION 1.02. Amendment and Restatement. On and after the effectiveness of the
Restated Credit Agreement, (i) each reference in each Collateral Document to the
"Credit Agreement", "thereunder", "thereof" or words of like import shall mean
and be a reference to the Restated Credit Agreement (as such agreement may be
amended, modified or supplemented and in effect from time to time), (ii) the
definition of any term defined in any Collateral Document by reference to the
terms defined in the Credit Agreement shall be amended to be defined by
reference to the defined term in the Restated Credit Agreement, as the same may
be amended, modified or supplemented and in effect from time, (iii) each
reference to "Pledgor" or "Obligor" in each Credit Document shall include
Borrower, PR Borrower and each Guarantor and (iv) the Obligors will update the
information required on the schedules and attachments to the Collateral
Documents to the extent applicable.
ARTICLE II
Representations and Warranties
Each Reaffirming Party hereby represents and warrants, which representations and
warranties shall survive execution and delivery of this Agreement, as follows:
SECTION 2.01. Authority; Enforceability. Such Reaffirming Party has the power
and authority to execute, deliver and carry out the terms and provisions of this
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement. Such Reaffirming Party has
duly executed and delivered this Agreement, and this Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms.
2
<PAGE>
SECTION 2.02. Loan Documents. The representations and warranties of such
Reaffirming Party contained in each Credit Document are true and correct in all
material respects on and as of the Effectiveness Date with the same effect as
though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date.
ARTICLE III
Miscellaneous
SECTION 3.01. Notices. All notices and other communications hereunder shall be
made at the addresses, in the manner and with the effect provided in Section
12.02 of the Restated Credit Agreement.
SECTION 3.02. Credit Document. This Agreement is a Credit Document executed
pursuant to the Restated Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 3.03. Section Captions. Section captions used in this Agreement are for
convenience of reference only and shall not affect the construction of this
Agreement.
SECTION 3.04. Severability. Wherever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
SECTION 3.05. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns.
SECTION 3.06. 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 of which
shall together constitute one and the same agreement. Delivery of an executed
counterpart of a signature page of this Agreement by facsimile transmission
shall be effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 3.07. No Novation. Neither this Agreement nor the execution, delivery or
effectiveness of the Effectiveness Agreement or the Restated Credit Agreement
shall extinguish the obligations for the payment of money outstanding under the
Credit Agreement or the Restated Credit Agreement or discharge or release the
Lien or priority of any Security Document or any other security therefor.
Nothing herein contained shall be construed as a substitution or novation of the
obligations outstanding under the Credit Agreement or the Restated Credit
Agreement or instruments securing the same, which shall remain in full force and
effect, except to any extent modified hereby or by instruments executed
concurrently herewith. Nothing implied in this Agreement or in any other
document contemplated hereby or thereby shall be construed as a release or other
discharge of any of Borrower, PR Borrower or any other Obligor from any of its
obligations and liabilities as a "Borrower", "PR Borrower", "Guarantor" or
"Obligor" under the Credit Agreement or any Security Document. Each of the
Credit Agreement and the Security Agreement shall remain in full force and
effect, until (as applicable) and except to any extent modified hereby or by the
Effectiveness Agreement or in connection herewith or therewith.
3
<PAGE>
SECTION 3.08. Applicable Law. THIS REAFFIRMATION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD OT THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF. EACH REAFFIRMING PARTY
AGREES AS SET FORTH IN SECTION 12.10 OF THE RESTATED CREDIT AGREEMENT AS IF SUCH
SECTION WERE SET FORTH IN FULL HEREIN.
4
<PAGE>
IN WITNESS WHEREOF, each Reaffirming Party and Administrative Agent for the
benefit of the Lenders, the Issuing Lender and the Agents have caused this
Agreement to be duly executed and delivered as of the date first above written.
CENTENNIAL CELLULAR OPERATING CO. LLC
By:
Name:
Title:
5
<PAGE>
CENTENNIAL PUERTO RICO
OPERATIONS CORP.
By:
Name:
Title:
6
<PAGE>
GUARANTORS:
CENTENNIAL CELLULAR CORP.
ALEXANDRIA CELLULAR CORPORATION
BAUCE COMMUNICATIONS, INC.
BAUCE COMMUNICATIONS OF BEAUMONT, INC.
CENTENNIAL ASHE CELLULAR CORP.
CENTENNIAL BEAUREGARD HOLDING CORP.
CENTENNIAL BENTON HARBOR CELLULAR CORP.
CENTENNIAL BENTON HARBOR HOLDING CORP.
CENTENNIAL CALDWELL CELLULAR CORP.
CENTENNIAL CARIBBEAN HOLDING CORP.
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF DEL NORTE
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF LAWRENCE
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF MODOC
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF SACRAMENTO VALLEY
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF SAN FRANCISCO
CENTENNIAL CELLULAR WIRELESS
HOLDING CORP.
CENTENNIAL CLAIBORNE CELLULAR CORP.
CENTENNIAL CLINTON CELLULAR CORP.
CENTENNIAL DESOTO CELLULAR CORP.
CENTENNIAL FLORIDA SWITCH CORP.
CENTENNIAL IBERIA HOLDING CORP.
CENTENNIAL JACKSON CELLULAR CORP.
CENTENNIAL LAFAYETTE CELLULAR CORP.
CENTENNIAL LAKE CHARLES CELLULAR CORP.
CENTENNIAL LOUISIANA HOLDING CORP.
CENTENNIAL MEGA COMM HOLDING CORP.
CENTENNIAL MICHIANA LICENSE COMPANY LLC
CENTENNIAL MICHIGAN RSA 6 CELLULAR CORP.
CENTENNIAL MICHIGAN RSA 7 CELLULAR CORP.
CENTENNIAL PUERTO RICO HOLDING CORP. I
CENTENNIAL PUERTO RICO HOLDING CORP. II
CENTENNIAL PUERTO RICO LICENSE CORP.
CENTENNIAL PUERTO RICO OPERATIONS CORP.
CENTENNIAL RANDOLPH HOLDING CORP.
CENTENNIAL SOUTHEAST LICENSE COMPANY LLC
CENTENNIAL SOUTHWEST LICENSE COMPANY LLC
CENTENNIAL WIRELESS PCS LICENSE CORP.
7
<PAGE>
CENTURY BEAUMONT CELLULAR CORP.
CENTURY CHARLOTTESVILLE CELLULAR CORP.
CENTURY EL CENTRO CORP.
CENTURY ELKHART CELLULAR CORP.
CENTURY INDIANA CELLULAR CORP.
CENTURY LYNCHBURG CELLULAR CORP.
CENTURY MICHIANA CELLULAR CORP.
CENTURY MICHIGAN CELLULAR CORP.
CENTURY ROANOKE CELLULAR CORP. (DE)
CENTURY ROANOKE CELLULAR CORP. (VA)
CENTURY SOUTH BEND CELLULAR CORP.
CENTURY YUMA CELLULAR CORP.
CENTRUY YUMA PAGING CORP.
EL CENTRO CELLULAR CORP.
ELKHART METRONET, INC.
HENDRIX ELECTRONICS, INC.
HENDRIX RADIO COMMUNICATIONS, INC.
INTEGRATED SYSTEMS INC.
LAFAYETTE COMMUNICATIONS, INC.
MICHIANA METRONET, INC.
SOUTH BEND METRONET, INC.
Each as a Guarantor and Pledgor
By:
Name:
Title:
8
<PAGE>
CENTENNIAL BEAUREGARD CELLULAR LLC,
as a Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP.,
a Managing Member
By:
Name:
Title:
9
<PAGE>
CENTENNIAL CELLULAR TRI-STATE OPERATING PARTNERSHIP,
as a Guarantor and Pledgor
By: CENTENNIAL CLINTON CELLULAR CORP.,
as a General Partner
By:
Name:
Title:
CENTENNIAL HAMMOND CELLULAR LLC,
as a Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP.,
a Managing Member
By:
Name:
Title:
CENTENNIAL MOREHOUSE CELLULAR LLC,
as a Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP.,
a Managing Member
By:
Name:
Title:
10
<PAGE>
CENTENNIAL RANDOLPH CELLULAR LLC,
as a Guarantor and Pledgor
By: CENTENNIAL RANDOLPH HOLDING CORP.,
a Managing Member
By:
Name:
Title:
11
<PAGE>
IBERIA CELLULAR TELEPHONE COMPANY LLC,
as a Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP.,
a Managing Member
By:
Name:
Title:
LAFAYETTE CELLULAR TELEPHONE COMPANY,
as a Guarantor and Pledgor
By:
Name:
Title:
MEGA COMM LLC,
as a Guarantor and Pledgor
By: MEGA COMM HOLDING CORP.,
a Managing Member
By:
Name:
Title:
BANK OF AMERICA, N.A., individually and as Administrative Agent and Issuing
Lender,
By:
Name: Julie Schell
Title:
12
<PAGE>
EXHIBIT A
CENTENNIAL CELLULAR CORP.,
as a Guarantor,
and
CENTENNIAL CELLULAR OPERATING CO. LLC,
as Borrower,
and
CENTENNIAL PUERTO RICO OPERATIONS CORP.,
as PR Borrower,
and
THE OTHER GUARANTORS PARTY HERETO
______________________
CREDIT AGREEMENT
Dated as of Januar 7, 1999
as Amended and Restated as of February 29, 2000
______________________
THE CHASE MANHATTAN BANK,
as Co-Lead Arranger and Co-Syndication Agent,
and
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Co-Lead Arranger and Co-Syndication Agent,
and
BANK OF AMERICA, N.A.,
as Arranger and Administrative Agent,
and
THE BANK OF NOVA SCOTIA,
as Documentation Agent,
and
THE LENDERS PARTY HERETO
===============================================================================
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is attached but
is inserted for convenience of reference only.
Page
Section 1. Definitions, Accounting Matters and Rules of
Construction..............................................1
1.01. Certain Defined Terms.......................................1
1.02. Accounting Terms and Determinations........................34
1.03. Classes and Types of Loans.................................34
1.04. Rules of Construction......................................34
Section 2. Commitments, Letters of Credit, Fees, Register, Prepayments
and Replacement of Lenders...............................35
2.01. Loans......................................................35
2.02. Borrowings.................................................38
2.03. Letters of Credit..........................................38
2.04. Termination and Reductions of Commitments..................42
2.05. Fees.......................................................42
2.06. Lending Offices............................................43
2.07. Several Obligations of Lenders.............................43
2.08. Notes; Register............................................43
2.09. Optional Prepayments and Conversions or Continuations of
Loans....................................................44
2.10. Mandatory Prepayments......................................45
2.11. Replacement of Lenders.....................................47
Section 3. Payments of Principal and Interest.........................48
3.01. Repayment of Loans.........................................48
3.02. Interest...................................................49
Section 4. Payments; Pro Rata Treatment; Computations; Etc............50
4.01. Payments...................................................50
4.02. Pro Rata Treatment.........................................51
4.03. Computations...............................................51
4.04. Minimum Amounts............................................51
4.05. Certain Notices............................................51
4.06. Non-Receipt of Funds by Administrative Agent...............52
4.07. Right of Setoff; Sharing of Payments; Etc..................53
Section 5. Yield Protection, Etc......................................54
5.01. Additional Costs...........................................54
5.02. Limitation on Types of Loans...............................55
5.03. Illegality.................................................55
5.04. Treatment of Affected Loans................................55
5.05. Compensation...............................................56
5.06. Net Payments...............................................56
Section 6. Guarantee..................................................58
6.01. The Guarantee..............................................58
ii
<PAGE>
Page
6.02. Obligations Unconditional..................................60
6.03. Reinstatement..............................................60
6.04. Subrogation; Subordination.................................60
6.05. Remedies...................................................60
6.06. Instrument for the Payment of Money........................60
6.07. Continuing Guarantee.......................................60
6.08. General Limitation on Guarantee Obligations................60
Section 7. Conditions Precedent.......................................60
7.01. All Extensions of Credit...................................61
7.02. Determinations Under Section 7.............................62
Section 8. Representations and Warranties.............................62
8.01. Corporate Existence........................................62
8.02. Financial Condition; Etc...................................62
8.03. Litigation.................................................63
8.04. No Breach; No Default......................................63
8.05. Action.....................................................63
8.06. Approvals..................................................64
8.07. [Omitted]..................................................64
8.08. ERISA......................................................64
8.09. Taxes......................................................64
8.10. Investment Company Act; Public Utility Holding Company Act;
Other Restrictions......................................65
8.11. Environmental Matters......................................65
8.12. Environmental Investigations...............................65
8.13. Use of Proceeds............................................66
8.14. Subsidiaries, Etc..........................................66
8.15. Properties.................................................66
8.16. Security Interest; Absence of Financing Statements; Etc....67
8.17. Licenses and Permits; Compliance with Laws.................67
8.18. True and Complete Disclosure...............................67
8.19. Solvency; Etc..............................................67
8.20. Contracts..................................................68
8.21. Labor Matters..............................................68
8.22. FCC Matters and Governmental Matters.......................68
8.23. Subordinated Notes.........................................69
8.24. Year 2000..................................................69
Section 9. Covenants..................................................69
9.01. Financial Statements, Etc..................................69
9.02. Litigation, Etc............................................73
9.03. Existence; Compliance with Law; Payment of Taxes;
Inspection Rights; Performance of Obligations; Etc.......74
9.04. Insurance..................................................74
9.05. Limitation on Lines of Business; Limitation on Activity of
License Subsidiaries;Limitation on Management Agreements.74
9.06. Limitation on Fundamental Changes, Acquisitions or
Dispositions.............................................78
9.07. Limitation on Liens and Negative Pledges...................83
9.08. Prohibition on Disqualified Capital Stock; Limitation on
Indebtedness and Contingent Obligations..................83
iii
<PAGE>
9.09. Limitation on Investments; Limitation on Creation of
Subsidiaries.............................................86
9.10. Limitation on Dividend Payments............................87
9.11. Financial Covenants........................................89
9.12. Pledge or Mortgage of Additional Collateral................91
9.13. Security Interests; Further Assurances.....................92
9.14. Compliance with Environmental Laws.........................92
9.15. Limitation on Transactions with Affiliates.................93
9.16. Limitation on Accounting Changes; Limitation on Investment
Company Status...........................................93
9.17. Limitation on Modifications of Certain Documents, Etc......93
9.18. Interest Rate Protection Agreements........................93
9.19. Limitation on Certain Restrictions Affecting Subsidiaries..93
9.20. Additional Obligors; Licenses To Be Held by License
Subsidiaries.............................................94
9.21. Limitation on Activities of Parent.........................95
9.22. Limitation on Issuance or Dispositions of Equity Interests
of Borrower and Subsidiaries.............................95
9.23. Limitation on Payments or Prepayments of Indebtedness or
Modification of Debt Documents...........................95
9.24. Casualty and Condemnation..................................96
9.25. Limitation on Tax Sharing Arrangements.....................96
9.26. Limitation on Designation of Designated Senior
Indebtedness.............................................96
9.27. No Contractual Bar.........................................96
9.28. Facilities Agreement.......................................96
Section 10. Events of Default..........................................96
Section 11. Agents.....................................................99
11.01. General Provisions.........................................99
11.02. Indemnification...........................................101
11.03. Consents Under Other Credit Documents.....................102
11.04. Collateral Sub-Agents.....................................102
Section 12 Miscellaneous.............................................102
12.01. Waiver....................................................102
12.02. Notices...................................................102
12.03. Expenses, Indemnification, Etc............................102
12.04. Amendments, Etc...........................................104
12.05. Successors and Assigns....................................106
12.06. Assignments and Participations............................107
12.07. Survival..................................................108
12.08. Captions..................................................108
12.09. Counterparts; Interpretation; Effectiveness...............108
12.10. Governing Law; Submission to Jurisdiction; Waivers; Etc...109
12.11. Confidentiality...........................................109
12.12. Independence of Representations, Warranties and Covenants.110
12.13. Severability..............................................110
12.14. Acknowledgments...........................................110
Signatures..............................................................S-1
iv
<PAGE>
ANNEX A - Commitments
SCHEDULE 1.01 - Guarantors (for Obligations of Borrower)
SCHEDULE 8.02(b) - Certain Contingent Obligations
SCHEDULE 8.02(c) - Certain Financial Matters
SCHEDULE 8.03 - Litigation
SCHEDULE 8.09 - Tax Matters
SCHEDULE 8.11 - Environmental Matters
SCHEDULE 8.14 - Subsidiaries, Etc.
SCHEDULE 8.16 - Security Interests
SCHEDULE 8.20 - Certain Contracts
SCHEDULE 8.21 - Labor Matters
SCHEDULE 8.22(b) - License Expiration Dates as of Effectiveness Date
SCHEDULE 9.07 - Certain Existing Liens
SCHEDULE 9.08 - Certain Indebtedness to Remain Outstanding
SCHEDULE 9.09 - Investments
SCHEDULE 9.15 - Existing Affiliate Agreements
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Tranche A Term Loan Note
EXHIBIT A-3 - Form of Tranche A-PR Term Loan Note
EXHIBIT A-4 - Form of Tranche B-PR Term Loan Note
EXHIBIT A-5 - Form of Tranche C-PR Term Loan Note
EXHIBIT A-6 - Form of Swing Loan Note
EXHIBIT B - Form of Intercompany Note
EXHIBIT C-1 - Form of Interest Rate Certificate
EXHIBIT C-2 - Form of Solvency Certificate
EXHIBIT D - Form of Security Agreement
EXHIBIT E-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT E-2 - Form of Opinion of Special FCC Counsel to the Obligors
EXHIBIT F - Form of Notice of Assignment
EXHIBIT G - Form of Notice of Borrowing
EXHIBIT H - Form of Notice of Conversion/Continuation
EXHIBIT I - Form of Joinder Agreement
EXHIBIT J - Form of Section 5.06 Certificate for Lenders
EXHIBIT K - Form of Collateral Assignment of Location Agreements
EXHIBIT L - Form of Assignment Agreement
EXHIBIT M - Form of Perfection Certificate
v
<PAGE>
CREDIT AGREEMENT dated as of January 7, 1999, as amended and restated as of
February 29, 2000, among CENTENNIAL CELLULAR OPERATING CO. LLC, as Borrower;
CENTENNIAL PUERTO RICO OPERATIONS CORP., as PR Borrower; CENTENNIAL CELLULAR
CORP., as a Guarantor; the other Guarantors party hereto; each of the lenders
from time to time party hereto (individually, a "Lender" and, collectively, the
"Lenders"); THE CHASE MANHATTAN BANK, as co-lead arranger and co-syndication
agent (in such capacity, together with its successors in such capacity,
"Chase"); MERRILL LYNCH & CO. and MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, as co-lead arranger and co-syndication agent (in such capacity,
together with its successors in such capacity, and Chase, the "Co-Syndication
Agents"); BANK OF AMERICA, N.A., as arranger and administrative agent (in such
capacity, together with its successors in such capacity, "Administrative
Agent"); THE BANK OF NOVA SCOTIA, as documentation agent (in such capacity,
together with its successors in such capacity, "Documentation Agent").
The parties hereto agree as follows:
Section 1. Definitions, Accounting Matters and Rules of Construction.
1.01. Certain Defined Terms. As used herein, the following terms shall have
the following meanings:
"ABR Loans" shall mean Loans that bear interest at rates based upon the
Alternate Base Rate.
"Acquisition" shall mean, with respect to any Person,any transaction or
series of related transactions for the direct or indirect (a)acquisition of all
or substantially all of the Property of any other Person, or of any business or
division of any other Person, (b) acquisition of in excess of 50% of the Equity
Interests of any other Person, or otherwise causing any other Person to become a
Subsidiary of such Person, or (c) merger or consolidation or any other
combination with any other Person.
"Acquisition Consideration" shall mean the purchase consideration for any
Acquisition and all other payments made and liabilities incurred by any Company
in exchange for, or as part of the purchase price for, any Acquisition, whether
paid in cash or by exchange of Equity Interests (other than of Parent) or of
assets or otherwise and whether payable at or prior to the consummation of such
Acquisition or deferred for payment at any future time, whether or not any such
future payment is subject to the occurrence of any contingency, and includes any
and all payments and liabilities representing the purchase price and any
assumptions of Indebtedness.
"Additional Collateral" see Section 9.12.
"Additional Obligors" see Section 9.20.
"Additional Senior Subordinated Notes Documents" shall mean an indenture
governing the terms and conditions of the Additional Senior Subordinated Notes
and all other documents relating thereto (including any interest escrow
agreement, if applicable) and delivered to Agents, as any such agreement or
document may be amended and in effect from time to time in accordance with its
terms and this Agreement.
"Additional Senior Subordinated Notes" shall mean any senior subordinated
notes of Borrower or PR Borrower or any senior notes of any direct or indirect
parent of Borrower or Centennial Caribbean Holding Corp. for gross proceeds of
up to $300.0 million, including without duplication the senior subordinated
notes or senior notes (as the case may be) issued pursuant to a registered
exchange offer therefor, which notes shall in any event (i) have covenants,
events of default, redemption and repurchase provisions and modification
provisions in the aggregate not materially less favorable to the Companies and
the Lenders than the covenants, events of default, redemption and repurchase
provisions and modification provisions of the Senior Subordinated Notes, as
reasonably determined by Borrower and PR Borrower, (ii) mature after the Final
Maturity Date (or, if later, the final maturity date of any Incremental
Facility), (iii) be unsecured, and (iv) in the case of any such notes issued by
Borrower or PR Borrower have subordination terms substantially similar to the
Senior Subordinated Notes.
<PAGE>
"Adjusted Net Income" shall mean, for any period, the consolidated net
income (loss) for such period, of Borrower and its Consolidated Subsidiaries
calculated on a consolidated basis in accordance with GAAP, adjusted by
excluding (to the extent taken into account in the calculation of such
consolidated net income (loss)) the effect of (a) gains or losses for such
period from Excluded Dispositions and Dispositions not in the ordinary course of
business, and the tax consequences thereof, (b) any non-recurring or
extraordinary items of income (other than the proceeds of business interruption
insurance) or expense for such period and the tax consequences thereof, (c) the
portion of net income (loss) of any Person (other than a Subsidiary) in which
Borrower or any Subsidiary has an ownership interest, except to the extent of
the amount of cash dividends or other cash distributions actually paid to
Borrower or (subject to clause (e) below) any Subsidiary during such period to
the extent not in excess of such Person's net income for such period, (d) the
net income (loss) of any Person combined with Borrower or any Subsidiary on a
"pooling of interests" basis attributable to any period prior to the date of
combination, (e) the net income of any Subsidiary to the extent that the
declaration or payment of dividends or similar distribution by such Subsidiary
was not for the relevant period permitted, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary or its stockholders, and
(f) any net gain from the collection of proceeds of life insurance or "key man"
insurance policies. For the purpose of determining Adjusted Net Income, the
value of handsets reflected on the financial statements of Borrower and its
Consolidated Subsidiaries shall be amortized in accordance with the relevant
amortization policies of Borrower and its Consolidated Subsidiaries as in effect
on the Original Closing Date.
"Administrative Agent" see the introduction hereto.
"Administrative Agent Fee Letter" shall mean a separate fee letter between
Administrative Agent and Parent.
"Advance Date" see Section 4.06.
"Affiliate" shall mean, with respect to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
Notwithstanding the foregoing, solely for purposes of Section 9.15, no Company
shall be deemed an Affiliate of any other Company.
"Affiliate Transaction" see Section 9.15.
"Agent" shall mean any of Administrative Agent, Co-Syndication Agents, and
the Documentation Agent and "Agents" shall mean all of them collectively.
"Agreement" shall mean this Credit Agreement, as amended from time to time.
"Alternate Base Rate" shall mean for any day, a rate per annum that is
equal to the higher of (i) the Federal Funds Rate, plus 0.50%, or (ii) the Prime
Rate.
"Amortization Payment" shall mean each scheduled installment of payments on
the Term Loans as set forth in Section 3.01(b).
"Applicable Lending Office" shall mean, for each Lender and for each Type
of Loan, the "LendingOffice" of such Lender (or of an Affiliate of such Lender)
designated for such type of Loan on the signature pages hereof or such other
office of such Lender (or of an Affiliate of such Lender) as such Lender may
from time to time specify to Administrative Agent and Borrower as the office by
which its Loans of such Type are to be made and maintained.
2
<PAGE>
"Applicable Margin" shall be, for any Type and Class of Loan, when the
Total Leverage Ratio at the end of the most recently ended fiscal quarter is as
set forth in the chart below, the percentage per annum set forth opposite such
Total Leverage Ratio in such chart for such Type and Class of Loan. Any change
in the Total Leverage Ratio shall be effective to adjust the Applicable Margin
as of the date of receipt by Administrative Agent of the Interest Rate
Certificate most recently delivered pursuant to Section 9.01(e). If Borrower
fails to deliver the financial statements or Interest Rate Certificate within
the times specified in Sections 9.01(a), (b) and (e), the Total Leverage Ratio
shall be deemed to be greater than or equal to 7.5:1.0 until Borrower delivers
such Interest Rate Certificate and financial statements.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Revolving Loans,
Tranche A Term Loans Tranche B-PR Term Loans Tranche C-PR Term Loans
and Term A-PR Loans
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
Total Leverage LIBOR ABR LIBOR ABR LIBOR ABR
Tier Ratio MARGIN MARGIN MARGIN MARGIN MARGIN MARGIN
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
I >7.5:1.0 3.00% 2.00% 3.250% 2.250% 3.500% 2.500%
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
II <7.5:1.0 but 2.750% 1.750% 3.250% 2.250% 3.500% 2.500%
>7.0:1.0
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
III <7.0:1.0 but 2.500% 1.500% 3.000% 2.000% 3.250% 2.250%
>6.0:1.0
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
IV <6.0:1.0 but 2.250% 1.250% 3.000% 2.000% 3.250% 2.250%
>5.0:1.0
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
V <5.0:1.0 but 2.000% 1.000% 3.000% 2.000% 3.250% 2.250%
>4.0:1.0
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
VI <4.0:1.0 1.750% 0.750% 3.000% 2.000% 3.250% 2.250%
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
"Applicable Revolving Credit Fee Percentage" shall mean 0.50% per annum;
provided, however, that when the Total Leverage Ratio at the end of the most
recently ended fiscal quarter is less than 5.0:1.0, the Applicable Revolving
Credit Fee Percentage shall mean 0.375%. Any change in the Total Leverage Ratio
shall be effective to adjust the Applicable Revolving Credit Fee Percentage as
of the date of receipt by Administrative Agent of the Interest Rate Certificate
most recently delivered pursuant to Section 9.01(e). If Borrower fails to
deliver the financial statements and Interest Rate Certificate within the times
specified in Sections 9.01(a), (b) and (e), such ratio shall be deemed to be
greater than or equal to 5.0:1.0 until Borrower delivers such Interest Rate
Certificate and financial statements.
"Approved Fund" shall mean, with respect to any Lender that is a fund or
commingled investment vehicle that invests in loans, any other fund that invests
in loans and is managed or advised by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
"Bankruptcy Code" shall mean the United States Federal Bankruptcy Code of
1978 and any analogous law of Puerto Rico.
"Borrower" shall mean Centennial Cellular Operating Co. LLC, a Delaware
limited liability company.
"Business Day" shall mean any day (a) on which commercial banks are not
authorized or required to close in New York City and (b) if such day relates to
a borrowing of, a payment or prepayment of principal of or interest on, a
Continuation or Conversion of or into, or an Interest Period for, a LIBOR Loan
or a notice by Borrower with respect to any such borrowing, payment, prepayment,
Continuation, Conversion or Interest Period, that is also a day on which
dealings in Dollar deposits are carried out in the London interbank market.
"CAP System" shall mean a system that provides long-distance carriers or
end-users with an alternative to the traditional local phone company for local
transmission of private line and transport and special access telecommunications
services in Puerto Rico, the Virgin Islands and other Caribbean nations.
3
<PAGE>
"Capital Expenditures" shall mean, for any period any direct or indirect
(by way of acquisition of securities of a Person or the expenditure of cash or
the incurrences of Indebtedness) expenditures in respect of the purchase or
other acquisition of fixed or capital assets, excluding (i) normal replacement
and maintenance programs properly charged to current operations, (ii) any
expenditure made with the Net Available Proceeds of any Equity Issuance or
Disposition Event to the extent such Net Available Proceeds are not required to
be applied to the prepayment of the Loans in accordance with Section
2.10(a)(iv), (iii) any expenditure made with the proceeds of any Excluded
Disposition, (iv) expenditures in an amount not to exceed the sum of (x) the Net
Available Proceeds of any Casualty Event to the extent such Net Available
Proceeds are not required to be applied to the prepayment of the Loans in
accordance with Section 2.10(a)(i) and (y) the amount of any applicable
insurance deductibles with respect to such Casualty Event to the extent such
amount is applied as set forth in clause (w) of Section 2.10(a)(i) within the
period specified therein, (v) expenditures to effect Permitted Acquisitions or
Investments under Section 9.09(A)(r), and (vi) the purchase price of equipment
to the extent that the consideration therefor consists of used or surplus
equipment being traded in at such time or the proceeds of a concurrent sale of
such used or surplus equipment.
"Capital Lease," as applied to any Person, shall mean any lease of any
Property by that Person as lessee which, in conformity with GAAP, is required to
be classified and accounted for as a capital lease on the balance sheet of that
Person.
"Capital Lease Obligations" shall mean, for any Person, all obligations of
such Person to pay rent or other amounts under a Capital Lease, and, for
purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"Casualty Event" shall mean, with respect to any Property (including Real
Property) of any Person, any loss of title with respect to Real Property or any
loss of or damage to or destruction of, or any condemnation or other taking
(including by any Governmental Authority) of, such Property (including Real
Property) for which such Person or any of its Subsidiaries receives insurance
proceeds or proceeds of a condemnation award or other compensation; provided,
however, no such event shall constitute a Casualty Event if (x) such proceeds or
other compensation in respect thereof is less than $1.0 million and (y) all such
proceeds and other compensation in respect of all such events since the
Effectiveness Date is less than $10.0 million. "Casualty Event" shall include
but not be limited to any taking of any Mortgaged Real Property or Real Property
of any Company or any part thereof, in or by condemnation or other eminent
domain proceedings pursuant to any law, general or special, or by reason of the
temporary requisition of the use or occupancy of any Mortgaged Real Property or
Real Property of any Company or any part thereof, by any Governmental Authority,
civil or military.
"CATV/SMATV" shall mean any system located in the United States, Puerto
Rico, the Virgin Islands or other Caribbean nation that is a community antenna
television system or satellite master antenna television system, as such terms
are commonly understood in the cable television industry.
"Cellular System" shall mean a cellular mobile radio telephone system
constructed and operated in an MSA or an RSA (or any successor territorial
designation) pursuant to a License therefor issued by the FCC.
"Century-ML" shall mean Century-ML Cable Corporation, a Delaware
corporation.
"Century ML Cable Venture" shall mean Century ML Cable Venture, a New York
joint venture.
"CERCLA" see Section 8.11.
4
<PAGE>
"Change of Control" shall mean any transaction or event (including, without
limitation, an issuance, sale or exchange of Equity Interests, a merger or
consolidation, or a dissolution or liquidation) occurring on or after the date
hereof (whether or not approved by the board of directors of Parent) as a direct
or indirect result of which (a) if such transaction or event occurs prior to the
consummation of an Initial Public Offering, the Permitted Holders collectively
fail to beneficially own, directly or indirectly, Equity Interests of Parent
representing at least 40% of the economic interests of all Equity Interests then
outstanding of Parent or the Permitted Holders collectively cease to have the
ability to appoint a majority of the board of directors of Parent; (b) any
Person or any group (other than the Permitted Holders) shall (A) beneficially
own (directly or indirectly) in the aggregate Equity Interests of Parent having
35% or more of the aggregate voting power of all Equity Interests of Parent at
the time outstanding if at such time the Permitted Holders collectively
beneficially own Equity Interests having a lesser aggregate voting power of all
Equity Interests of Parent at the time outstanding or (B) have the right or
power to appoint a majority of the board of directors of Parent; (c) if such
transaction or event is an Initial Public Offering or occurs after the
consummation of an Initial Public Offering, during any period of two consecutive
years beginning on or after the date of such Initial Public Offering,
individuals who at the beginning of such period constituted the board of
directors of Parent (together with any new directors whose election by such
board of directors or whose nomination for election by the shareholders of
Parent was approved by a vote of a majority of the directors of Parent then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute at least a majority of the board of directors of Parent
then in office; (d) any event or circumstance constituting a "change of control"
under the Parent Financing Documents, Senior Subordinated Notes Financing
Documents or any other documentation evidencing or governing any Indebtedness of
any Company in a principal amount in excess of $10.0 million (other than under
the Credit Documents) shall occur which results in an obligation of any Company
to prepay (by acceleration or otherwise), purchase, offer to purchase, redeem or
defease all or a portion of such Indebtedness; or (e) Parent fails to own
beneficially and of record 100% (on a fully diluted basis) of the Equity
Interests of Borrower. For purposes of this definition, the terms "beneficially
own" and "group" shall have the respective meanings ascribed to them pursuant to
Section 13(d) of the Exchange Act, except that a Person or group shall be deemed
to "beneficially own" all securities that such Person or group has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
"Class" see Section 1.03.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended.
"Co-Syndication Agents" see the introduction hereto.
"Collateral" shall mean all of the Pledged Collateral and Mortgaged Real
Property.
"Collateral Account" see Section 10(d) of the Security Agreement.
"Collateral Assignment of Location Agreements" shall mean the Collateral
Assignment of Location Agreements substantially in the form of Exhibit K among
the Obligors and Administrative Agent, as the same may be amended in accordance
with the terms thereof and hereof, or such other agreements reasonably
acceptable to Administrative Agent as shall be necessary to comply with
applicable Requirements of Law and effective to assign to Administrative Agent
(on behalf of the Creditors) the right, title and interest identified therein.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Commitments" shall mean the Revolving Credit Commitments and the Term Loan
Commitments.
"Communications Act" shall mean the United States Communications Act of
1934, and any similar or successor federal statute, and the rules and
regulations of the FCC thereunder, all as amended and as the same may be in
effect from time to time.
"Communications Regulatory Authority" shall mean the FCC, any State PUC,
the PRPSC, the PRTRB and any future federal, state, Puerto Rican, Virgin Island
or Caribbean nation communication regulatory commission, agency, department,
board or authority.
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"Companies" shall mean the Obligors and their respective Subsidiaries; and
"Company" shall mean any of them.
"Consolidated Interest Expense" shall mean, for any period, all interest
expense (including original issue discount, interest paid in kind, commitment
fees, letter of credit fees and the interest component of Capital Leases but
excluding any up-front, underwriting or commitment fees in respect of this
Agreement to the extent accrued on or prior to the Effectiveness Date) of
Borrower and its Consolidated Subsidiaries for such period including all
capitalized interest and the net amounts payable under all Interest Rate
Protection Agreements, net of interest income of Borrower and its Consolidated
Subsidiaries for such period.
"Consolidated Subsidiary" shall mean, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP.
"Contingent Obligation" shall mean, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, with or without
recourse, (a) with respect to any Indebtedness, lease, dividend, letter of
credit or other obligation (the "primary obligations") of another Person (the
"primary obligor"), including any obligation of such Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any security
therefor, (ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (iv)
otherwise to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof (each of (i)-(iv), a "Guaranty Obligation"); (b)
with respect to any Surety Instrument (other than any Letter of Credit) issued
for the account of such Person or as to which such Person is otherwise liable
for reimbursement of drawings or payments; (c) to purchase any materials,
supplies or other property from, or to obtain the services of, another Person if
the relevant contract or other related document or obligation requires that
payment for such materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials, supplies or
other property is ever made or tendered, or such services are ever performed or
tendered if such obligation is intended to provide the equivalent of a
guarantee; or (d) in respect of any Swap Contract; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection or standard contractual indemnities entered into, in each
case in the ordinary course of business. The amount of any Contingent Obligation
shall (x) in the case of a Guaranty Obligation, be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and (y) in the case of
other Contingent Obligations, be equal to the maximum reasonably anticipated
liability in respect thereof.
"Continue," "Continuation" and "Continued" shall refer to the continuation
pursuant to Section 2.09 of a LIBOR Loan from one Interest Period to the next
Interest Period.
"Contractual Obligation" shall mean as to any Person, any provision of any
security issued by such Person or of any mortgage, security agreement, pledge
agreement, indenture, credit agreement, securities purchase agreement, debt
instrument, contract, agreement, instrument or other undertaking (including,
without limitation, any undertaking made to the FCC or any other Communications
Regulatory Authority) to which such Person is a party or by which it or any of
its Property is bound or subject.
"Convert," "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.09 of one Type of Loans into another Type of Loans, which
may be accompanied by the transfer by a Lender (at its sole discretion) of a
Loan from one Applicable Lending Office to another.
"Covered Taxes" see Section 5.06(a).
"Credit Documents" shall mean this Agreement, the Effectiveness Agreement,
the Notes, the Letter of Credit Documents and the Security Documents.
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"Creditor" shall mean (i) any Agent, (ii) the Issuing Lender, (iii) any
Lender, and (iv) any party to a Swap Contract relating to the Loans if at the
date of entering into such Swap Contract such Person was a Lender or an
Affiliate of a Lender.
"Debt Issuance" shall mean the incurrence by any Company of any
Indebtedness after the Effectiveness Date (other than as permitted by Section
9.08 as in effect from time to time).
"Default" shall mean any event or condition that constitutes an Event of
Default or that would become, with notice or lapse of time or both, an Event of
Default.
"Delivery Date" shall mean the date Borrower shall have delivered a
compliance certificate and financial statements in accordance with Section
9.01(a), (b) and (c) in respect of the first fiscal quarter after the date of
depletion of the interest escrow in respect of the Senior Subordinated Notes.
"Disposition" shall mean (i) any conveyance, sale, lease, assignment,
transfer or other disposition (including by way of merger or consolidation and
including any sale-leaseback transaction) of any Property (including receivables
and Equity Interests of any Subsidiary of any Company or Minority Interests of
any Company) (whether now owned or hereafter acquired) by any Company to any
Person other than Borrower or any Subsidiary, (ii) any issuance or sale by any
Subsidiary of its Equity Interests to any Person other than Borrower or any
Subsidiary, and (iii) any liquidating dividend or distribution received by any
Company in respect of any Minority Interest, excluding, however, in each case
any Excluded Disposition.
"Disposition Event" shall mean the receipt by any Company of cash proceeds
or cash distributions of any kind received in consideration for a Disposition of
Property other than Sold Minority Interests.
"Disqualified Capital Stock" shall mean, with respect to any Person, any
Equity Interest of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily redeemable (other
than solely for Qualified Capital Stock), pursuant to a sinking fund obligation
or otherwise, or is redeemable at the sole option of the holder thereof (other
than solely for Qualified Capital Stock) or exchangeable or convertible into
debt securities of the issuer thereof at the sole option of the holder thereof,
in whole or in part, on or prior to the date which is 90 days after the Final
Maturity Date.
"Dividend Payment" shall mean dividends (in cash, Property or obligations)
on, or other payments or distributions on account of, or the irrevocable or
nonrefundable setting apart of money for a sinking or other analogous fund for,
or the purchase, redemption, retirement or other acquisition of, any Equity
Interests or Equity Rights of any Company, but excluding dividends paid through
the issuance of additional shares of Qualified Capital Stock and any redemption
or exchange of any Qualified Capital Stock of such Obligor through the issuance
of Qualified Capital Stock of such Obligor.
"Documentation Agent" see the introduction hereto.
"Dollars" and "$" shall mean lawful money of the United States of America.
"Domestic Subsidiary" shall mean any Subsidiary other than a Foreign
Subsidiary.
"Effectiveness Agreement" shall mean the Effectiveness Agreement dated as
of February 29, 2000, among Borrower, PR Borrower, the Guarantors, certain
Lenders and the Agents.
"Effectiveness Date" shall have the meaning given such term in the
Effectiveness Agreement.
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"Eligible Person" shall mean (i) a commercial bank organized under the laws
of the United States, or any state thereof, and having a combined capital and
surplus of at least $100.0 million; (ii) a commercial bank organized under the
laws of any other country that is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus in a dollar equivalent amount
of at least $100.0 million; provided, however, that such bank is acting through
a branch or agency located in the country in which it is organized or another
country that is also a member of the OECD; (iii) an insurance company, mutual
fund or other entity which is regularly engaged in making, purchasing or
investing in loans or securities; or any other financial institution organized
under the laws of the United States, any state thereof, any other country that
is a member of the OECD or a political subdivision of any such country with
assets, or assets under management, in a dollar equivalent amount of at least
$100.0 million; (iv) any Affiliate of a Lender; (v) any other entity (other than
a natural person) which is an "accredited investor" (as defined in Regulation D
under the United States Securities Act of 1933, as amended) which extends credit
or buys loans as one of its businesses including, but not limited to, insurance
companies, mutual funds and investment funds; and (vi) any other entity
consented to by each of Co-Syndication Agents, Administrative Agent and
Borrower. With respect to any Lender that is a fund or commingled investment
vehicle that invests in loans, any other fund or commingled investment vehicle
that invests in loans and is managed or advised by the same investment advisor
of such Lender or by an Affiliate of such investment advisor shall be treated as
a single Eligible Person.
"Employee Benefit Plan" shall mean an employee benefit plan (as defined in
Section 3(3) of ERISA) that is maintained or contributed to by any ERISA Entity
or with respect to which Borrower or a Subsidiary could incur liability.
"Environmental Claim" shall mean, with respect to any Person, any written
notice, claim, demand or other communication (collectively, a "claim") by any
other Person alleging such Person's liability for any costs, cleanup costs,
response or corrective action costs, damages to natural resources or other
Property, personal injuries, fines or penalties arising out of or resulting from
(i) the presence, Release or threatened Release into the environment, of any
Hazardous Material at any location, whether or not owned by such Person, or (ii)
any violation of any Environmental Law. The term "Environmental Claim" shall
include any claim by any Person seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from the presence of
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment.
"Environmental Laws" shall mean any and all present and future applicable
laws, rules or regulations of any Governmental Authority, any orders, decrees,
judgments or injunctions and the common law in each case as now or hereafter in
effect, relating to pollution or protection of human health, safety or the
environment, including without limitation, ambient air, indoor air, soil, or
surface water, ground water, land or subsurface strata, and natural resources
such as wetlands, flora or fauna, including, without limitation, those relating
to Releases or threatened Releases of Hazardous Materials into the environment,
or otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
"Equity Interests" shall mean, with respect to any Person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, whether outstanding on or
issued after the Effectiveness Date.
"Equity Issuance" shall mean any of (a) any issuance or sale after the
Effectiveness Date by any Company or any other direct or indirect parent of
Borrower (other than by the Permitted Holders) of any Equity Interests
(including any Equity Interests issued upon exercise of any Equity Rights) or
any Equity Rights, or (b) the receipt by any Company after the Effectiveness
Date of any capital contribution (whether or not evidenced by any Equity
Interest issued by the recipient of such contribution) other than from any other
Company, excluding in each case (i) any issuance of common Equity Interests of
Parent (or any other direct or indirect parent of Borrower) to the seller or
sellers in consideration for a Permitted Acquisition or as permitted by Section
9.09(A)(r), (ii) any issuance or sale of Equity Interests in any Subsidiary
(which, for the avoidance of doubt, is treated as a Disposition), (iii) any
issuance or sale by Parent (or any other direct or indirect parent of Borrower)
of Equity Interests of Parent to employees, directors, officers or consultants
pursuant to benefit or compensation arrangements in an amount not to exceed 10%
of the outstanding Equity Interests of Parent, (iv) any issuance of Qualified
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Capital Stock to the extent used as contemplated by the proviso to Section
9.10(c)(iii), (v) any issuance of Equity Interests by any Subsidiary to
directors or nominees if resulting in de minimis proceeds, (vi) any issuance of
any common Equity Interests of Parent (or any other direct or indirect parent of
Borrower) to (x) any of the Permitted Holders or (y) at least one Permitted
Holder and a group of private investors arranged by any Permitted Holder, in
each case the proceeds of which are substantially contemporaneously used to
effect any Permitted Acquisition and (vii) any issuance of Equity Interests by
any Company to another Company as part of the Reorganization.
"Equity Rights" shall mean, with respect to any Person, any outstanding
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any stockholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities convertible
into, any additional shares of Equity Interests of any class, or partnership or
other ownership interests of any type in, such Person.
"ERISA" shall mean the United States Employee Retirement Income Security
Act of 1974, as amended.
"ERISA Entity" shall mean any member of an ERISA Group.
"ERISA Event" shall mean (a) any "reportable event," as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived, the
failure to make by its due date a required installment under Section 412(m) of
the Code with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan; (c) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by any
ERISA Entity of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by any ERISA Entity from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan, or the occurrence of
any event or condition which is reasonably likely to constitute grounds under
ERISA for the termination of or the appointment of a trustee to administer, any
Plan; (f) the incurrence by any ERISA Entity of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g)
the receipt by an ERISA Entity of any notice, or the receipt by any
Multiemployer Plan from any ERISA Entity of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the making of any amendment to any Plan which could
result in the imposition of a lien or the posting of a bond or other security;
or (i) the occurrence of a nonexempt prohibited transaction (within the meaning
of Section 4975 of the Code or Section 406 of ERISA) which is reasonably likely
to result in liability to any Company.
"ERISA Group" shall mean any Company and all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated) under
common control which, together with such Company, are treated as a single
employer under Section 414 of the Code.
"Event of Default" see Section 10.
"Excess Cash Flow" shall mean for the relevant period, (A) the sum of (i)
Operating Cash Flow for such period (calculated for this definition by adding
back the cash portion of all extraordinary or non-recurring items of income
(other than from Dispositions and Excluded Dispositions) to the extent excluded
in the calculation of Adjusted Net Income and by deducting the cash portion of
all extraordinary or non-recurring items of expense to the extent excluded in
the calculation of Adjusted Net Income); (ii) any net decrease in Working
Capital during such period (except to the extent attributable to assets or
Persons subject to a Disposition during such period); and (iii) cash received
from the proceeds of any life insurance or "key man" policies during such
period, minus (B) the sum of (i) cash interest expense (including, without
duplication, cash interest expense under Swap Contracts, cash Capital Lease
expense and commitment fees and interest accruing during such period on the
Senior Subordinated Notes and (if issued by Borrower or any Subsidiary of
Borrower) the Additional Senior Subordinated Notes) of Borrower and its
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Consolidated Subsidiaries for such period to the extent deducted in calculating
Adjusted Net Income; (ii) the sum of all scheduled principal payments (other
than pursuant to Section 2.10(a)(v)) on any Indebtedness (including Capital
Leases and Term Loans pursuant to Section 3.01(b)) of Borrower and its
Consolidated Subsidiaries made during such period from internally generated
funds, all voluntary prepayments of Term Loans made during such period from
internally generated funds and all prepayments of Revolving Credit Loans made
during such period from internally generated funds to the extent accompanied by
a permanent reduction in Revolving Credit Commitments; (iii) Capital
Expenditures made during such period by Borrower and the Subsidiaries to the
extent funded from internally generated funds; (iv) all withholding tax expense
incurred in connection with cross border transactions and all cash income taxes
actually paid by Borrower or any Subsidiary during such period and dividends
paid during such period by Borrower pursuant to Section 9.10(c)(ii); (v) cash
dividends paid during such period by Borrower pursuant to Section 9.10(c)(iii)
to the extent made with internally generated funds; (vi) cash dividends paid
during such period by Borrower pursuant to Section 9.10(d); (vii) cash paid
during such period for any Acquisition or Investment permitted by Section 9.06
or 9.09, in each case to the extent made from internally generated funds; (viii)
any net increases in Working Capital during such period (except to the extent
attributable to assets or Persons subject to an Acquisition during such period);
(ix) solely to the extent not reflected in the calculation of Adjusted Net
Income, cash distributions required to be paid to the minority holders of Equity
Interests in any Consolidated Subsidiary of Borrower pursuant to the partnership
agreement governing such Consolidated Subsidiary as in effect on the
Effectiveness Date; and (x) monitoring and management fees actually paid to any
Permitted Holder during such period by Borrower as permitted by Section 9.15.
"Exchange Act" shall mean the United States Securities Exchange Act of
1934, as amended.
"Exchange Indenture" shall mean the indenture pursuant to which the
Exchange Notes are issued.
"Exchange Notes" see the definition of Senior Subordinated Notes.
"Exchange Offer" see the definition of Senior Subordinated Notes.
"Excluded Dispositions" shall mean (i) Dispositions for fair market value
resulting in no more than $250,000 in aggregate proceeds per Disposition (or
series of related Dispositions) and other Dispositions resulting in up to $10.0
million in aggregate proceeds in any fiscal year (which $10.0 million shall not
include any such $250,000 or less Disposition or series of related
Dispositions); (ii) an exchange of equipment or inventory for other equipment or
inventory, provided that the Company effecting such exchange receives at least
substantially equivalent value in such exchange for the Property disposed of;
(iii) any transaction permitted by Section 9.06 (other than clause (g), (p) or
(q) thereof), any Lien permitted by Section 9.07 and any Investment permitted by
Section 9.09; (iv) any issuance of Equity Interests by any Subsidiary to
directors or nominees if resulting in de minimis proceeds; (v) the sale of
inventory in the ordinary course of business; and (vi) any return by any Company
of assets of All America Cables and Radio, Inc. and its affiliates to the seller
thereof pursuant to the purchase and sale agreements relating to the acquisition
of such assets or related Equity Interests.
"Excluded Taxes" see Section 5.06(a).
"Existing Affiliate Agreements" see Section 9.15.
"Existing Indentures" shall mean each Indenture pursuant to which each
tranche of the Existing Notes were issued.
"Existing Notes" shall mean Parent's (i) $250.0 million aggregate principal
amount of 8 7/8% Senior Notes due 2001 and (ii) $100.0 million aggregate
principal amount of 10 1/8% Senior Notes due 2005.
"FAA" shall mean the United States Federal Aviation Administration.
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"Facilities Agreement" shall mean the Facilities Agreement dated as of
January 2, 1995 among PR Borrower, Century ML Cable Venture and Century-ML, as
the same shall be modified and supplemented and in effect from time to time in
accordance with its terms and this Agreement.
"fair market value" shall mean, with respect to any asset, a price (after
taking into account any liabilities relating to such assets), as determined by
Borrower in good faith, that is within a reasonable range of prices which could
be negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction.
"FCC" shall mean the United States Federal Communications Commission, or
any other similar or successor agency of the federal government administering
the Communications Act.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided, however, that (a) if the day for which such rate is to be
determined is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate quoted to Administrative Agent on such Business Day on
such transactions by three federal funds brokers of recognized standing, as
determined by Administrative Agent.
"Final Maturity Date" shall mean November 30, 2007. If an Incremental
Facility shall be put in place with a later maturity date, the Final Maturity
Date shall be extended to the final maturity thereof.
"Financial Maintenance Covenants" shall mean the covenants set forth in
Section 9.11(a) through (e).
"Fixed Charge Coverage Ratio" shall mean, for any Test Date, the ratio of
(x) Operating Cash Flow for the four fiscal quarters ending on such Test Date to
(y) Fixed Charges for the four fiscal quarters ending on such Test Date.
"Fixed Charges" shall mean, for any period, the sum of (i) Consolidated
Interest Expense for such period to the extent paid or payable in cash during
such period, (ii) the sum of all scheduled principal payments on any
Indebtedness of Borrower and its Consolidated Subsidiaries (including, without
duplication, any lease payments in respect of Capital Leases of Borrower and its
Consolidated Subsidiaries attributable to the principal component thereof for
such period but excluding any prepayment of a type contemplated by Section
2.10), (iii) all cash income tax expense actually paid to any Governmental
Authority by Borrower and its Consolidated Subsidiaries for such period (other
than taxes related to Dispositions or Excluded Dispositions not in the ordinary
course of business), (iv) all dividends paid by Borrower during such period
pursuant to Section 9.10(c)(ii) or pursuant to Section 9.10(d) (other than for
taxes related to Dispositions and Excluded Dispositions not in the ordinary
course of business), and (v) Capital Expenditures during such period to the
extent made from internally generated funds.
"Foreign Plan" shall mean any employee benefit plan, program, policy,
arrangement or agreement maintained or contributed to by, or entered into with,
any Company with respect to employees employed outside the United States (other
than individual employment agreements).
"Foreign Subsidiary" shall mean any direct or indirect Subsidiary organized
outside of the United States as defined in Section 7701(a)(9) of the Code (or
any successor provision).
"Funding Date" shall mean the date of the making of any extension of credit
hereunder (including the Original Closing Date and the Effectiveness Date).
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"GAAP" shall mean generally accepted accounting principles set forth as of
the relevant date in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the
date of determination.
"Governmental Authority" shall mean any government or political subdivision
of the United States, Puerto Rico, the Virgin Islands or any other country or
any agency, authority, board, bureau, central bank, commission, department or
instrumentality thereof or therein, including, without limitation, any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic, or
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to such government or political
subdivision.
"Guarantee" shall mean the guarantee of each Guarantor pursuant to Section
6.
"Guaranteed Obligations" see Section 6.01.
"Guarantors" shall mean Parent, Borrower, PR Borrower, each Subsidiary
(other than any Foreign Subsidiary) listed on Schedule 1.01 and each direct and
indirect Subsidiary (other than any Foreign Subsidiary) that guarantees the
payment of the Obligations of Borrower pursuant to Section 9.20.
"Guaranty Obligation" see the definition of Contingent Obligation.
"Hazardous Material" shall mean any pollutant, contaminant, toxic,
hazardous or extremely hazardous substance, constituent or waste, or any other
constituent, waste, material, compound or substance subject to regulation under
any Environmental Law including, without limitation, petroleum or any petroleum
product, including crude oil or any fraction thereof, polychlorinated biphenyls,
urea-formaldehyde insulation and asbestos.
"in the ordinary course of business" shall mean in the ordinary course of
business of Borrower and the Subsidiaries.
"Incremental Facility" see Section 2.01(f). There is no commitment for all
or any part of any Incremental Facility as of the Effectiveness Date. No Lender
shall have any obligation for any part of any Incremental Facility unless it
shall have expressly consented thereto in writing.
"incur" shall mean, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred" and "incurring" shall have meanings
correlative to the foregoing). Indebtedness of any Person or any of its
Subsidiaries existing at the time such Person becomes a Company (or is merged
into or consolidates with any Company), whether or not such Indebtedness was
incurred in connection with, or in contemplation of, such Person becoming a
Company (or being merged into or consolidated with any Company), shall be deemed
incurred at the time any such Person becomes a Company or merges into or
consolidates with any Company. Neither the accrual of interest, nor the
accretion of accreted value, shall be deemed to be an incurrence.
"Indebtedness" shall mean, for any Person, without duplication, (a) all
indebtedness for borrowed money of such Person; (b) all obligations issued,
undertaken or assumed by such Person as the deferred purchase price of Property
or services (other than trade payables and accrued expenses); (c) all
non-contingent reimbursement or payment obligations of such Person with respect
to Surety Instruments that are not reimbursed within three Business Days (such
as, for example, unpaid reimbursement obligations in respect of a drawing under
a letter of credit); (d) all obligations of such Person evidenced by notes,
bonds, debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of Property or businesses; (e) all
indebtedness of such Person created or arising under any conditional sale or
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other title retention agreement, or incurred as financing, in either case with
respect to Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property (other than operating leases)); (f) all
Capital Lease Obligations of such Person; (g) all indebtedness of other Persons
referred to in clauses (a) through (f) above secured by (or for which the holder
of such indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in Property (including accounts and contracts
rights) owned by such Person, whether or not such Person has assumed or become
liable for the payment of such indebtedness (provided that the amount of
indebtedness shall be deemed to be limited to the fair market value of such
Property if such Person has not assumed or become liable for the payment of such
indebtedness); and (h) all Guaranty Obligations of such Person in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (g) above. Indebtedness shall not include accounts extended by suppliers
in the ordinary course of business in connection with the purchase of goods and
services or customary indemnity obligations incurred in connection with the
Disposition of Property. The Indebtedness of any Person shall include any
Indebtedness of any partnership in which such Person is the general partner.
"Indemnitee" see Section 12.03(b).
"Information Memorandum" shall mean the Confidential Information Memorandum
dated February 2000 distributed in connection with the syndication of the
Commitments and Loans.
"Initial Public Offering" shall mean a primary underwritten public offering
of the common stock of Parent at any time after the Effectiveness Date, other
than any public offering or sale pursuant to a registration statement on Form
S-8 or a comparable form.
"Insolvency Proceeding" shall mean, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or by or
before any other Governmental Authority relating to bankruptcy, insolvency,
reorganization, liquidation, receivership, dissolution, sequestration,
conservatorship, winding-up or relief of debtors (or the convening of a meeting
or the passing of a resolution for or with a view to any of the foregoing), or
(b) any assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other similar arrangement in respect of such Person's
creditors generally or any substantial portion of its creditors.
"Intercompany Note" shall mean a promissory note substantially in the form
of Exhibit B.
"Interest Coverage Ratio" shall mean, for any Test Date, the ratio of (x)
Operating Cash Flow for the four fiscal quarters ending on such Test Date to (y)
Consolidated Interest Expense for the four fiscal quarters ending on such Test
Date to the extent thereof paid or payable in cash during such period; provided,
however, that (1) prior to the Senior Subordinated Notes Interest Trigger Date
(or, with respect to the Additional Senior Subordinated Notes, such later date
when the interest escrow, if any, in respect of the Additional Senior
Subordinated Notes has been depleted), Consolidated Interest Expense shall
exclude interest accruing on the Senior Subordinated Notes and the Additional
Senior Subordinated Notes (if issued by Borrower or any Subsidiary of Borrower),
(2) if the Additional Senior Subordinated Notes are issued by any direct or
indirect parent of Borrower, Consolidated Interest Expense shall, for any period
ending after the Senior Subordinated Notes Interest Trigger Date (or, such later
date when the interest escrow in respect thereof, if any, has been depleted),
include cash interest accruing during such period on the Additional Senior
Subordinated Notes and (3) for any period ending after the Parent Refinanced
Notes Interest Trigger Date, Consolidated Interest Expense shall include cash
interest accruing during such period on the Parent Refinanced Notes.
"Interest Period" shall mean, with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or Converted from an ABR Loan or
the last day of the next preceding Interest Period for such LIBOR Loan and
(subject to the requirements of Sections 2.01(a), 2.01(b), 2.01(c), 2.01(d) and
2.09) ending on the numerically corresponding day in the first, second, third or
sixth calendar month thereafter, as Borrower or PR Borrower may select as
provided in Section 4.05, except that each Interest Period that commences on the
last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for any Revolving
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Credit Loan would otherwise end after the Revolving Credit Commitment
Termination Date, such Interest Period shall end on the Revolving Credit
Commitment Termination Date; (ii) no Interest Period for any Term Loan may
commence before and end after any Principal Payment Date, unless, after giving
effect thereto, the aggregate principal amount of the Term Loans having Interest
Periods that end after such Principal Payment Date shall be equal to or less
than the aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to the payments of principal required to be made
on such Principal Payment Date; (iii) each Interest Period that would otherwise
end on a day that is not a Business Day shall end on the next succeeding
Business Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and (iv)
notwithstanding clauses (i) and (ii) above, no Interest Period shall have a
duration of less than one month and, if the Interest Period for any LIBOR Loan
would otherwise be a shorter period, such Loan shall not be available hereunder
as a LIBOR Loan for such period.
"Interest Rate Certificate" shall mean an Officers' Certificate
substantially in the form of Exhibit C-1, delivered pursuant to Section 9.01(e),
demonstrating in reasonable detail the calculation of the Total Leverage Ratio
as of any Test Date.
"Interest Rate Protection Agreement" shall mean, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"internally generated funds" shall mean funds not generated from the
proceeds of any Loan, Debt Issuance, Equity Issuance, Disposition, insurance
recovery or Indebtedness (in each case without regard to the exclusions from the
definition thereof (other than sales of inventory in the ordinary course of
business)), as reasonably determined by Borrower.
"Investment" shall mean, for any Person: (a) the acquisition (whether for
cash, Property, services or securities or otherwise) of Equity Interests, bonds,
notes, debentures or other securities of any other Person; (b) the making of any
deposit with, or advance, loan or other extension of credit to, any other Person
(including the purchase of Property from another Person subject to an
understanding or agreement, contingent or otherwise, to resell such Property to
such Person); (c) any capital contribution to (by means of any transfer of cash
or other Property to others or any payment for Property or services for the
account or use of others) any other Person; and (d) the entering into, or direct
or indirect incurrence, of any Guaranty Obligation with respect to Indebtedness
or other liability of any other Person.
"Investor Affiliates" shall mean (i) each Affiliate of any Principal
Investor that is not an operating company or controlled by an operating company
and each general partner of each Principal Investor and Affiliate of a Principal
Investor and (ii) any other Person that holds Equity Interests in Parent if any
Principal Investor or Investor Affiliate described in clause (i) above has at
the time of determination the power to vote (or cause to be voted at its
discretion), pursuant to contract, irrevocable proxy or otherwise, the shares
held by such other Person.
"Investors" shall mean the Principal Investors and the Investor Affiliates.
"Issuing Lender" shall mean Bank of America, N.A. or any of its Affiliates,
or such other Lender or Lenders selected by Administrative Agent and reasonably
satisfactory to Borrower, as the issuer of Letters of Credit under Section 2.03,
together with its successors and assigns in such capacity.
"Joinder Agreement" shall mean a Joinder Agreement substantially in the
form of Exhibit I.
"Lease" shall mean any lease, sublease, franchise agreement, license,
occupancy or concession agreement.
"LEC System" shall mean a system providing local telephone services within
a local exchange in Puerto Rico, the Virgin Islands and other Caribbean nations.
"Lender" and "Lenders" see the introduction to this Agreement.
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"Letter of Credit" see Section 2.03.
"Letter of Credit Documents" shall mean, with respect to any Letter of
Credit, collectively, any other agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for (a) the rights and obligations of the parties
concerned or at risk with respect to such Letter of Credit or (b) any collateral
security for any of such obligations, each as the same may be modified and
supplemented and in effect from time to time.
"Letter of Credit Interest" shall mean, for each Revolving Credit Lender,
such Lender's participation interest (or, in the case of the Issuing Lender, the
Issuing Lender's retained interest) in the Issuing Lender's liability under
Letters of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at any time
and in respect of any Letter of Credit, the sum of (a) the undrawn face amount
of such Letter of Credit, plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of Borrower at such time due and payable in respect of
all drawings made under such Letter of Credit.
"LIBOR Base Rate" shall mean, with respect to any LIBOR Loan for any
Interest Period therefor, the rate per annum determined by Administrative Agent
to be the arithmetic mean (rounded to the nearest 1/100th of 1%) of the offered
rates for deposits in Dollars with a term comparable to such Interest Period
that appears on the Dow Jones Page 3750 (as defined below) at approximately
11:00 a.m., London, England time, on the second full Business Day preceding the
first day of such Interest Period; provided, however, that (i) if no comparable
term for an Interest Period is available, the LIBOR Base Rate shall be
determined using the weighted average of the offered rates for the two terms
most nearly corresponding to such Interest Period and (ii) if there shall at any
time no longer exist a Dow Jones Page 3750, "LIBOR Base Rate" shall mean, with
respect to each day during each Interest Period pertaining to LIBOR Loans
comprising part of the same Borrowing, the rate per annum equal to the rate at
which Administrative Agent is offered deposits in Dollars at approximately 11:00
a.m., London, England time, two Business Days prior to the first day of such
Interest Period in the London interbank market for delivery on the first day of
such Interest Period for the number of days comprised therein and in an amount
comparable to its portion of the amount of such LIBOR Loan to be outstanding
during such Interest Period. "Dow Jones Page 3750" shall mean the display
designated as Page 3750 on the Dow Jones (or such other page as may replace such
page on such service for the purpose of displaying the rates at which Dollar
deposits are offered by leading banks in the London interbank deposit market).
"LIBOR Loans" shall mean Loans that bear interest at rates based on rates
referred to in the definition of "LIBOR Rate" in this Section 1.01.
"LIBOR Rate" shall mean, for any LIBOR Loan for any Interest Period
therefor, a rate per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) determined by Administrative Agent to be equal to the LIBOR Base Rate for
such Loan for such Interest Period divided by 1 minus the Reserve Requirement
(if any) for such Loan for such Interest Period.
"Licenses" see Section 8.22(a).
"License Subsidiary" shall mean any Subsidiary of Borrower that (i) is
organized in a state within the United States (or the appropriate foreign
jurisdiction in the case of a License Subsidiary whose only licenses are
licenses granted by Governmental Authorities outside the United States), (ii)
has no assets other than Licenses of the Companies and de minimis other assets
and conducts no activity except holding such Licenses and matters ancillary
thereto and de minimis other activities, (iii) has no liabilities or
obligations, including Contingent Obligations, other than the Guarantee and
liabilities strictly related to its corporate existence incurred in the ordinary
course (except de minimis trade credit or the like) and de minimis other
obligations, and (iv) has no Liens on any License, except, to the extent
permitted by the FCC or the relevant foreign Governmental Authority, Liens under
the Security Documents in favor of Administrative Agent on behalf of the
Creditors.
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"Lien" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, any other type of
preferential arrangement in respect of such Property having the effect of a
security interest or any filing consented to by any Company of any financing
statement under the UCC or any other similar notice of Lien under any similar
notice or recording statute of any Governmental Authority consented to by any
Company, including any easement, right-of-way or other encumbrance on title to
Real Property, and any agreement to give any of the foregoing. For purposes of
the Credit Documents, a Person shall be deemed to own subject to a Lien any
Property that it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement (other than an operating lease) relating to such Property.
"Loans" shall mean the Revolving Credit Loans, the Swing Loans and the Term
Loans.
"Losses" of any Person shall mean the losses, liabilities, claims
(including those based upon negligence, strict or absolute liability and
liability in tort), damages, reasonable expenses, obligations, penalties,
actions, judgments, encumbrances, liens, penalties, fines, suits, reasonable and
documented costs or disbursements of any kind or nature whatsoever (including
reasonable fees and expenses of counsel in connection with any Proceeding
commenced or threatened in writing, whether or not such Person shall be
designated a party thereto) at any time (including following the payment of the
Obligations) incurred by, imposed on or asserted against such Person.
"Majority Lenders" shall mean Lenders holding at least a majority of the
sum of (without duplication) (a) the aggregate principal amount of outstanding
Loans (other than Swing Loans), plus (b) the aggregate amount of all Letter of
Credit Liabilities, plus (c) the aggregate Unutilized Revolving Credit
Commitments then in effect, plus (d) in the case of the Swing Loan Lender only,
the aggregate amount of Swing Loans then outstanding.
"Majority Revolving Credit Lenders" shall mean Lenders holding at least a
majority of the sum of (without duplication) (a) the aggregate principal amount
of outstanding Revolving Credit Loans, plus (b) the aggregate amount of all
Letter of Credit Liabilities, plus (c) the aggregate Unutilized Revolving Credit
Commitments then in effect, plus (d) in the case of the Swing Loan Lender only,
the aggregate amount of Swing Loans then outstanding.
"Majority Term Lenders" shall mean Lenders holding at least a majority of
the aggregate principal amount of outstanding Term Loans.
"Majority Tranche A Term Loan Lenders" shall mean Lenders holding at least
a majority of the aggregate principal amount of outstanding Tranche A Term
Loans.
"Majority Tranche A-PR Term Loan Lenders" shall mean Lenders holding at
least a majority of the aggregate principal amount of outstanding Tranche A-PR
Term Loans.
"Majority Tranche B-PR Term Loan Lenders" shall mean Lenders holding at
least a majority of the aggregate principal amount of outstanding Tranche B-PR
Term Loans.
"Majority Tranche C-PR Term Loan Lenders" shall mean Lenders holding at
least a majority of the aggregate principal amount of outstanding Tranche C-PR
Term Loans.
"Margin Stock" shall mean margin stock within the meaning of Regulations T,
U and X.
"Marketing Agreement" shall mean a material operating or material marketing
agreement between any Obligor and any other party (including, without
limitation, any such agreement with Century-ML).
"Material Adverse Change" shall mean, with respect to any Person, a
material adverse change, or any condition or event that has resulted or could
reasonably be expected to result in a material adverse change, in the financial
condition, business, assets or results of operations of such Person, together
with its Subsidiaries taken as a whole. Unless otherwise indicated, Material
Adverse Change refers to Borrower.
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"Material Adverse Effect" shall mean, any of (a) a material adverse effect,
or any condition or event that has resulted or could reasonably be expected to
result in a material adverse effect, on the business, assets, or results of
operations or financial condition of Borrower, together with the Subsidiaries
taken as a whole, (b) a material adverse effect on the ability of the Obligors
to consummate in a timely manner the Transactions or to perform any of their
material obligations under any Credit Document or (c) a material adverse effect
on the legality, binding effect or enforceability of any Credit Document or any
of the material rights and remedies of the Lenders, the Issuing Lender,
Co-Syndication Agents or any Agent thereunder. In determining whether the
occurrence of any individual event or the existence of any individual condition
would, or the failure of any individual event to occur or any individual
condition to exist would, have a Material Adverse Effect, notwithstanding that
the occurrence of such individual event or the existence of such individual
condition does not, or the failure to occur of such individual event or such
individual condition to exist does not, of itself have such effect, a Material
Adverse Effect shall be deemed to have occurred if the cumulative effect of such
event or condition or failure of event or condition and all other then existing
events or conditions and failures or event or conditions would have a Material
Adverse Effect.
"Merger" shall mean the merger on the Original Closing Date with Parent as
the survivor pursuant to the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger dated as of
July 2, 1998 of Parent, as amended on November 29, 1998 and as amended and in
effect in accordance with its terms and this Agreement.
"Minority Interest" shall mean an Investment (other than a Permitted
Investment) in any Person that is not a Subsidiary.
"Minority Interest Basket" shall mean, at any time, the excess of (A) the
aggregate amount of cash dividends or other cash distributions received by
Borrower since the Original Closing Date and on or prior to such time from the
Minority Interests listed on Schedule 8.14 (or Minority Interests of
substantially equivalent value received in exchange for any such Minority
Interests), net of all capital contributions or taxes required to be paid in
respect thereof over (B) the sum of (i) the aggregate amount (but not to exceed
$10.0 million for any fiscal year) of all Investments made after the Original
Closing Date and outstanding as of such time in Minority Interests pursuant to
Section 9.09(A)(m) or (u) and (ii) the aggregate amount of all dividends paid as
of such time since the Original Closing Date pursuant to Section 9.10(c)(iv).
"MLCC" shall mean Merrill Lynch Capital Corporation.
"MLPF&S" shall mean Merrill Lynch, Pierce, Fenner & Smith Incorporated.
"Mortgage" shall mean an agreement, including, but not limited to, a
mortgage, deed of trust or any other document, creating and evidencing a Lien on
a Mortgaged Real Property, which shall be in form and substance reasonably
satisfactory to Administrative Agent, with such schedules and including such
provisions as shall be necessary to conform such document to applicable or local
law or as shall be customary under local law, as the same may at any time be
amended in accordance with the terms thereof and hereof.
"Mortgaged Real Property" shall mean each Real Property, if any, which
shall be subject to a Mortgage delivered after the Original Closing Date
pursuant to Section 9.12.
"MSA" shall mean any "metropolitan statistical area" as defined and
modified by the FCC for the purpose of licensing public cellular radio
telecommunications service systems.
"Multiemployer Plan" shall mean at any time a multiemployer plan within the
meaning of Section 4001(a)(3) of ERISA (i) to which any member of the ERISA
Group is then making or accruing an obligation to make contributions, (ii) to
which any member of the ERISA Group has within the preceding five plan years
made contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period, or (iii) with respect to
which any Company is reasonably likely to incur liability.
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"NAIC" shall mean the National Association of Insurance Commissioners.
"Net Available Proceeds" shall mean:
(i) in the case of any Disposition Event, the amount of Net Cash Payments
received by any Company in connection with such Disposition Event;
(ii) in the case of any Casualty Event, the aggregate amount of cash
proceeds of insurance, condemnation awards and other compensation received
by any Company in respect of such Casualty Event net of (A) fees and
expenses incurred by such Company in connection with recovery thereof, (B)
repayments of Indebtedness (other than Indebtedness hereunder) to the extent
secured by a Lien on such Property that is permitted hereunder or under the
applicable Security Document, (C) any taxes (including income, transfer,
stamp, duty, customs, withholding and any other taxes) paid or payable by
any Company in respect of the amount so recovered (after application of all
credits and other offsets) and (D) amounts drawn under the Revolving Credit
Facility that are applied to the replacement, restoration or repair of the
Property subject to such Casualty Event; and
(iii) in the case of any Equity Issuance or any Debt Issuance, the
aggregate amount of all cash received by any Company in respect thereof net
of all investment banking fees, discounts and commissions, legal fees,
consulting fees, accountants' fees, underwriting discounts and commissions
and other fees and expenses, actually incurred in connection therewith.
"Net Cash Payments" shall mean, with respect to any Disposition Event, the
aggregate amount of all cash payments (including any cash payments received by
way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and
when received) received by any Company directly or indirectly in connection with
such Disposition Event; provided, however, that Net Cash Payments shall be net
(without duplication) of (i) the amount of all fees and expenses paid by any
Company in connection with such Disposition Event (the "Relevant Disposition");
(ii) any taxes (including income, transfer, stamp, duty, customs, withholding
and any other taxes) paid or estimated to be payable by any Company as a result
of the Relevant Disposition (after application of all credits and other
offsets); (iii) any repayments by any Company of Indebtedness other than the
Obligations to the extent that (a) such Indebtedness is secured by a Lien on the
Property that is the subject of the Relevant Disposition that is permitted
hereunder or under the applicable Security Document and (b) the transferee of
(or holder of a Lien on) such Property requires that such Indebtedness be repaid
as a condition to the purchase or sale of such Property; (iv) amounts required
to be paid to any Person (other than any Company) owning a beneficial interest
in the assets subject to such Relevant Disposition; and (v) appropriate amounts
to be provided by any Company, as a reserve, in accordance with GAAP, against
any liabilities associated with such Relevant Disposition and retained by any
Company after such Relevant Disposition, including, without limitation, pension
and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Relevant Disposition, all as reflected in an Officers'
Certificate delivered to Administrative Agent.
"New Lenders" see Section 2.01(f).
"Non-Qualified Subsidiary" shall mean any Subsidiary other than a Qualified
Subsidiary.
"Non-U.S. Lender" see Section 5.06(b).
"Notes" shall mean the Revolving Credit Notes, the Term Loan Notes and the
Swing Loan Notes.
"Notice of Assignment" shall mean a notice of assignment pursuant to
Section 12.06 substantially in the form of Exhibit F.
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"Notice of Borrowing" shall mean a notice of borrowing substantially in the
form of Exhibit G.
"Obligations" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing to any
Creditor or any of its Related Parties or their respective successors,
transferees or assignees pursuant to the terms of any Credit Document or any
Swap Contract or secured by any of the Security Documents, whether or not the
right of such Person to payment in respect of such obligations and liabilities
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured and
whether or not such claim is discharged, stayed or otherwise affected by any
bankruptcy case or insolvency or liquidation proceeding.
"Obligors" shall mean Borrower, PR Borrower and the Guarantors.
"Officers' Certificate" shall mean, as applied to any corporation, a
certificate executed on behalf of such corporation by its Chairman of the Board
(if an officer) or its Chief Executive Officer or its President or one of its
Vice Presidents (or an equivalent officer) and by its Chief Financial Officer,
Vice President-Finance or its Treasurer (or an equivalent officer) or any
Assistant Treasurer in their official (and not individual) capacities; provided,
however, that every Officers' Certificate with respect to the compliance with a
condition precedent to the making of any Loan or the taking of any other action
hereunder shall include (i) a statement that the officers making or giving such
Officers' Certificate have read such condition and any definitions or other
provisions contained in this Agreement relating thereto, and (ii) a statement as
to whether, in the opinion of the signers, such condition has been complied
with.
"Operating Cash Flow" shall mean, for any period, the sum (without
duplication) of the amounts for such period of Adjusted Net Income, plus, in
each case to the extent deducted in calculating such Adjusted Net Income, (1)
income tax expense, (2) withholding tax expense incurred in connection with
cross border transactions, (3) consolidated interest expense (including in
respect of the Senior Subordinated Notes and (if issued by Borrower or any
Subsidiary of Borrower) the Additional Senior Subordinated Notes), (4)
depreciation and amortization expense, (5) other non-cash items of expense,
other than to the extent requiring an accrual or reserve for future cash
expenses, and (6) monitoring and management fees actually paid to any Permitted
Holder as permitted by Section 9.15 all as determined on a consolidated basis
for Borrower and its Consolidated Subsidiaries, and minus (1) cash dividends or
other distributions paid by Borrower to Parent pursuant to Section 9.10(c)(i)
and (2) distributions received from all Minority Interests during such period to
the extent included in calculating such Adjusted Net Income. Operating Cash Flow
shall be calculated on a pro forma basis and otherwise in accordance with GAAP
to give effect to any Acquisition or Disposition of any System consummated
during the fiscal period of Borrower ended on such Test Date as if each such
Acquisition had been effected on the first day of such period and as if each
such Disposition had been consummated on the day prior to the first day of such
period; provided that any such pro forma calculation may include adjustments for
the pro forma effect of (a) any cost savings accounted for on an annualized
basis as a result of an Acquisition by Borrower or any of its Consolidated
Subsidiaries which, in the good faith judgment of Borrower (as evidenced by an
Officers' Certificate delivered to Administrative Agent), will be eliminated or
realized within one year after the date of such transaction (provided that any
such cost savings are calculated in accordance with Regulation S-X under the
Securities Act of 1933, as amended) or (b) any direct quantifiable savings from
the conversion of roaming expense which Borrower will obtain within one year of
the transaction in the good faith judgment of Borrower from the Acquisition of a
third party which prior to such Acquisition had a contract with Borrower or any
of its Consolidated Subsidiaries for roaming services. For purposes of the
foregoing sentence, when calculating Operating Cash Flow for any Person or
business, Operating Cash Flow and all defined terms used herein (or in any such
defined term) shall be deemed to refer to such Person or business.
"Option" see Section 2.09.
"Organic Document" shall mean, relative to any Person, its certificate of
incorporation, its by-laws, its partnership agreement, its memorandum and
articles of association, share designations or similar organization documents
and all shareholder agreements, voting trusts and similar arrangements
applicable to any of its authorized shares of Equity Interests.
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"Original Closing Date" shall mean January 7, 1999.
"Other Taxes" see Section 5.06(c).
"Parent" shall mean Centennial Cellular Corp. (to be renamed Centennial
Communications Corp. on February 29, 2000).
"Parent Financing" shall mean (x) the purchase by the Investors from Parent
for cash not later than the time of consummation of the Merger of common equity
in an aggregate amount not less than $400.0 million and (y) the issuance and
sale of the Parent Subordinated Notes.
"Parent Financing Documents" shall mean (x) the Merger Agreement and (y)
the Parent Subordinated Notes and the Securities Purchase Agreement dated
December 29, 1998 between Parent, WCAS Capital Partners III, L.P. and the other
purchasers named therein pursuant to which the Parent Subordinated Notes were
issued and all other documents relating thereto and delivered to Agents on or
prior to the Original Closing Date, as any such agreement or document may be
amended and in effect from time to time in accordance with its terms and this
Agreement.
"Parent Refinanced Notes" shall mean the senior notes of Parent issued to
refinance the Parent Subordinated Notes for net proceeds (in excess of the
amount of interest in escrow pursuant to any interest escrow agreement relating
thereto), of not more than an aggregate principal amount sufficient to repay in
full all then outstanding Parent Subordinated Notes Obligations, which notes
shall in any event (i) have covenants, events of default, redemption and
repurchase provisions and modification provisions in the aggregate not
materially less favorable to Parent, Borrower and the Lenders than the
covenants, events of default, redemption and repurchase provisions and
modification provisions of the Senior Subordinated Notes, (ii) mature no earlier
than six months after the maturity date for the Senior Subordinated Notes, (iii)
be unsecured and (iv) require no cash interest payments (other than from an
interest escrow substantially similar to the Senior Subordinated Notes Interest
Escrow Agreement, so long as it will be sufficient to fund the first ten
scheduled semi-annual interest payments thereof) for at least five years after
the issue date thereof.
"Parent Refinanced Notes Documents" shall mean an indenture governing the
terms and conditions of the Parent Refinanced Notes and all other documents
relating thereto (including any interest escrow agreement, if applicable) and
delivered to Agents, as any such agreement or document may be amended and in
effect from time to time in accordance with its terms and this Agreement.
"Parent Refinanced Notes Interest Trigger Date" shall mean the earlier of
(x) the tenth scheduled semi-annual interest payment date on the Parent
Refinanced Notes after the issue date thereof or (y) the first date on which
interest is required to be paid on any Permitted Refinancing only in cash on the
Parent Refinanced Notes (or any one or more refinancings thereof) other than
from an interest escrow arrangement funded at the date of issuance thereof.
"Parent Subordinated Notes" shall mean the Senior Subordinated Notes due
2009 of Parent in an aggregate amount of $180.0 million issued pursuant to the
Parent Financing Documents.
"Parent Subordinated Notes Obligations" shall mean the obligations of
Parent under the Parent Subordinated Notes (including any notes issued to
holders thereof in lieu of cash interest payments in accordance with the Parent
Financing Documents) and the Parent Financing Documents.
"Participant" see Section 12.06(c).
"Payment Date" shall mean any Principal Payment Date and each date on which
interest is due and payable on any Loan.
"Payor" see Section 4.06.
"PBGC" shall mean the United States Pension Benefit Guaranty Corporation or
any successor thereto.
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"PCS System" shall mean a wireless telecommunications system licensed by
the FCC under 47 C.F.R. Part 24 for operation in the "B" frequency block
(1.865/1.880 GHz and 1.945/1.960 GHz) (or by the equivalent foreign authority
for equivalent operation in a foreign jurisdiction) to provide any or all of a
family of digital, wireless mobile or portable and fixed radio communications
services to individuals and businesses in Puerto Rico, the Virgin Islands and
other Caribbean nations.
"Permits" see Section 8.17.
"Permitted Acquisition" shall mean any Acquisition effected in compliance
with Section 9.06(h), (i), (n) or (o).
"Permitted Holders" means the Principal Investors, the Investor Affiliates
and the Permitted Transferees.
"Permitted Investments" shall mean, for any Person: (a) direct obligations
of the United States of America, or of any agency thereof, or obligations
guaranteed as to principal and interest by the United States of America, or by
any agency thereof, in either case maturing not more than one year from the date
of acquisition thereof by such Person; (b) time deposits, certificates of
deposit or bankers' acceptances (including eurodollar deposits) issued by any
bank or trust company organized under the laws of the United States of America
or any state thereof and having capital, surplus and undivided profits of at
least $500.0 million and a deposit rating of investment grade; (c) commercial
paper rated A-1 or better by Standard & Poor's Corporation or P-1 or better by
Moody's Investors Service, Inc., respectively, maturing not more than 180 days
from the date of acquisition thereof by such Person; (d) repurchase obligations
with a term of not more than 30 days for underlying securities of the types
described in clause (a) above entered into with a bank meeting the
qualifications described in clause (b) above; (e) securities with maturities of
six months or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or 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 Corporation or A by Moody's Investors Service, Inc.; or (f)
money market mutual funds that invest primarily in the foregoing items.
"Permitted Liens" see Section 9.07.
"Permitted Refinancing" shall mean, with respect to any Indebtedness or
Contingent Obligation, any refinancing thereof, provided, however, that (w) no
Default or Event of Default shall have occurred and be continuing or would arise
therefrom, (x) any such refinancing Indebtedness shall (I) not be on financial
and other terms that are materially more onerous (as determined by Borrower and
Co-Syndication Agents) in the aggregate to any Company or Creditor than the
Indebtedness or Contingent Obligation being refinanced), (II) not have a stated
maturity or weighted average life that is shorter than the Indebtedness or
Contingent Obligation being refinanced, (III) if the Indebtedness or Contingent
Obligation being refinanced is subordinated by its terms or by the terms of any
agreement or instrument relating to such Indebtedness or Contingent Obligation,
be at least as subordinate to the Obligations as the Indebtedness or Contingent
Obligation being refinanced (and unsecured if the refinanced Indebtedness is
unsecured), and (IV) be in a principal amount that does not exceed the principal
amount so refinanced, plus accrued interest, plus the lesser of (1) the stated
amount of any premium or other payment required to be paid in connection with
such refinancing pursuant to the terms of the Indebtedness or Contingent
Obligation being refinanced and (2) the amount of premium or other payment
actually paid at such time to refinance the Indebtedness, plus, in either case,
the amount of fees and reasonable expenses of any Obligor or any Subsidiary
incurred in connection with such refinancing, and (y) the sole obligor on such
refinancing Indebtedness or Contingent Obligation shall be Parent or the
original obligor on such Indebtedness or Contingent Obligation being refinanced;
provided, however, that (I) any guarantor of the Indebtedness or Contingent
Obligation being refinanced shall be permitted to guarantee the refinancing
Indebtedness and (II) any Obligor shall be permitted to guarantee any such
refinancing of any other Obligor.
"Permitted Transferee" shall mean, with respect to any individual, (i) such
individual's spouse or children (natural or adopted), any trust for such
individual's benefit or the benefit of such individual's spouse or children
(natural or adopted), or any corporation or partnership in which the direct and
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beneficial owner of all of the equity interest is such Person or such
individual's spouse or children (natural or adopted) or any trust for the
benefit of such persons; or (ii) the heirs, executors, administrators or
personal representatives upon the death of such person or upon the incompetency
or disability of such person for purposes of the protection and management of
such individual's assets.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"Plan" shall mean at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code or Section 302 of ERISA
and is maintained or contributed to by any member of the ERISA Group or with
respect to which any Company is reasonably likely to incur liability.
"Pledged Collateral" shall mean all Property pledged pursuant to the
Security Agreement.
"PR Borrower" shall mean Centennial Puerto Rico Operations Corp., a
Delaware corporation.
"PR Systems" shall mean, collectively, the PCS Systems, the CAP Systems and
the LEC Systems of PR Borrower and its Subsidiaries.
"Prepayment Designation Basket" shall mean, at any time, the excess of (A)
$75,000,000 over (B) the aggregate amount of prepayments of the Term Loans as to
which Borrower and/or PR Borrower has relied upon Section 2.09(c)(i) or Section
2.10(b)(i)(A) since the Effectiveness Date to designate the Class of Loan and
the order of application to scheduled Amortization Payments of such prepayment.
"Prime Rate" shall mean for any day, a rate per annum that is equal to the
prime rate of interest established by Administrative Agent from time to time,
changing when and as said corporate base rate changes. The prime rate is not
necessarily the lowest rate charged by Administrative Agent to its customers.
"Principal Investors" shall mean WCAS and Blackstone Capital Partners III
Merchant Banking Fund L.P. and Blackstone Offshore Capital Partners III L.P.
"Principal Office" shall mean the principal office of Administrative Agent,
located on the date hereof at 901 Main Street, 14th Floor, Dallas, Texas 75202
Attention: Agency Services or such other office as may be designated by
Administrative Agent.
"Principal Payment Date" shall mean, with respect to any Term Loan, each
Quarterly Date or other date set forth on Schedule 3.01(b) on which a payment of
principal is due with respect to such Term Loan.
"Prior Liens" shall mean Liens which, pursuant to the provisions of any
Security Document, are or may be superior to the Lien of such Security Document.
"Proceeding" shall mean any claim, counterclaim, action, judgment, suit,
hearing, governmental investigation, arbitration or proceeding, including by or
before any Governmental Authority and whether judicial or administrative.
"Pro Forma Capitalization Table" see Section 8.02(d).
"Pro Forma Date" see Section 8.02(d).
"Pro Forma Debt Service" shall mean, for any period, the sum of (i) the
reasonably anticipated Consolidated Interest Expense of Borrower and its
Consolidated Subsidiaries for such period to the extent to be paid in cash
during such period and assuming prevailing interest rates at the time of
calculation, and (ii) the combined sum of all scheduled principal payments on
any Indebtedness (including, without duplication, the Loans and Capital Leases)
of Borrower and its Consolidated Subsidiaries during such period; provided,
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however, that such Consolidated Interest Expense shall (1) include only interest
that will accrue after the Senior Subordinated Notes Interest Trigger Date (or,
with respect to the Additional Senior Subordinated Notes, such later date when
the interest escrow in respect thereof, if any, is depleted) during such period
on the Senior Subordinated Notes and (if issued by Borrower or any Subsidiary of
Borrower) the Additional Senior Subordinated Notes, (2) include, if the
Additional Senior Subordinated Notes are issued by any direct or indirect parent
of Borrower, for any period ending after the Senior Subordinated Notes Interest
Trigger Date (or such later date when the interest escrow in respect thereof, if
any, has been depleted), cash interest accruing during such period on the
Additional Senior Subordinated Notes, and (3) include interest that accrues on
the Parent Refinanced Notes after the Parent Refinanced Notes Interest Trigger
Date during such period.
"Pro Forma Debt Service Coverage Ratio" shall mean, for any Test Date, the
ratio of Operating Cash Flow for the four fiscal quarters ending on such Test
Date to Pro Forma Debt Service for the four fiscal quarters immediately
following such Test Date.
"Property" shall mean any right, title or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including Equity Interests or other ownership
interests of any Person.
"PRPSC" shall mean the Puerto Rico Public Service Commission.
"PRTRB" shall mean the Telecommunications Regulatory Board of Puerto Rico
created by Act No. 213 of the Legislature of Puerto Rico approved September 12,
1996, or any successor thereto.
"Puerto Rico" shall mean the Commonwealth of Puerto Rico.
"Qualified Capital Stock" shall mean with respect to any Person any Equity
Interests of such Person which is not Disqualified Capital Stock.
"Qualified Subsidiary" shall mean PR Borrower and any Wholly Owned
Subsidiary of Borrower that is a Guarantor and (other than in the case of
License Subsidiaries) has not in reliance on the last sentence of Section
9.20(A) refrained from providing any Collateral otherwise required thereby.
"Quarter" shall mean each three month period ending on February 28 (or 29,
as the case may be), May 31, August 31 and November 30.
"Quarterly Dates" shall mean the last Business Day of each Quarter in each
year, commencing with the last Business Day of February 1999.
"Real Property" shall mean all right, title and interest of any Company
(including, without limitation, any leasehold estate) in and to a parcel of real
property owned or operated by any Company, whether by lease, license or other
use agreement, together with, in each case, all improvements and appurtenant
fixtures, equipment, personal property, easements and other property and rights
incidental to the ownership, lease or operation thereof or thereon.
"Reaffirmation Agreement" shall mean the Reaffirmation Agreement dated as
of February 29, 2000, among Borrower, PR Borrower, the Guarantors and
Administrative Agent.
"redeem" shall mean redeem, repurchase, repay, defease or otherwise acquire
or retire for value; and "redemption" and "redeemed" have correlative meanings.
"refinance" shall mean refinance, renew, extend, replace, defease or
refund, in whole or in part, including successively; and "refinancing" and
"refinanced" have correlative meanings.
"Register" see Section 2.08.
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"Regulation D" shall mean Regulation D (12 C.F.R. Part 204) of the Board of
Governors of the United States Federal Reserve System.
"Regulations T, U and X" shall mean, respectively, Regulation T (12 C.F.R.
Part 220), Regulation U (12 C.F.R. Part 221) and Regulation X (12 C.F.R. Part
224) of the Board of Governors of the United States Federal Reserve System (or
any successor), as the same may be modified and supplemented and in effect from
time to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
after the date hereof in United States Federal, state or foreign law or
regulations (including Regulation D) or the adoption or making after such date
of any interpretation, directive or request applying to a class of banks or
other financial institutions including such Lender of or under any Federal,
state or foreign law or regulations (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority or any other regulatory agency with proper
authority, including non-governmental agencies or bodies, charged with the
interpretation or administration thereof or by the NAIC.
"Reimbursement Obligations" shall mean, at any time, the obligations of
Borrower then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Lender in respect of any drawings under a Letter of Credit.
"Related Parties" see Section 11.01.
"Release" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the environment.
"Reorganization" shall mean the transactions consummated on the
Effectiveness Date under Section 6 of the Effectiveness Agreement.
"Replaced Lender" see Section 2.11.
"Replacement Lender" see Section 2.11.
"Required Payment" see Section 4.06.
"Requirement of Law" shall mean as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
"Reserve Requirement" shall mean, for any Interest Period for any LIBOR
Loan, the average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during such
Interest Period under Regulation D by member banks of the United States Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
"Responsible Officer" shall mean the chief executive officer of Borrower
and the president of Borrower (if not the chief executive officer) and, with
respect to financial matters, the chief financial officer of Borrower.
"Revolving Credit Commitment" shall mean, for each Revolving Credit Lender,
the obligation of such Lender to make Revolving Credit Loans in an aggregate
principal amount at any one time outstanding up to but not exceeding the amount
set opposite the name of such Lender on Schedule 6(a) to the Effectiveness
Agreement under the caption "Revolving Credit Commitment" (as the same may be
reduced from time to time pursuant to Section 2.04 or 2.10 or changed pursuant
to Section 12.06(b)). The initial aggregate principal amount of the Revolving
Credit Commitments is $250.0 million.
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"Revolving Credit Commitment Percentage" shall mean, with respect to any
Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"Revolving Credit Commitment Termination Date" shall mean November 30,
2006. If the Revolving Credit Commitments are increased pursuant to Section
2.01(f), the Revolving Credit Commitment Termination Date with respect to such
increased portion may be extended by the Lenders agreeing to provide such
increase beyond the date specified in the preceding sentence.
"Revolving Credit Commitments" shall mean the aggregate sum of the
Revolving Credit Commitments of all Revolving Credit Lenders.
"Revolving Credit Facility" shall mean the credit facility comprising the
Revolving Credit Commitment of all of the Revolving Credit Lenders.
"Revolving Credit Lenders" shall mean (a) on the date hereof, the Lenders
having Revolving Credit Commitments as set forth on Schedule 6(a) to the
Effectiveness Agreement and (b) thereafter, the Lenders from time to time
holding Revolving Credit Loans and Revolving Credit Commitments after giving
effect to any assignments thereof permitted by Section 12.06(b).
"Revolving Credit Loans" see Section 2.01(a).
"Revolving Credit Notes" shall mean the promissory notes provided for by
Section 2.08(a) and all promissory notes delivered in substitution or exchange
therefor, in each case as the same shall be modified and supplemented and in
effect from time to time.
"RSA" shall mean any "rural service area" as defined and modified by the
FCC for the purpose of licensing public cellular radio telecommunications
service systems.
"Sale and Leaseback Transaction" shall mean any arrangement, directly or
indirectly, with any Person whereby it shall sell or transfer any property, real
or personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred.
"Security Agreement" shall mean a Security Agreement substantially in the
form of Exhibit D among the Obligors and Administrative Agent, as the same may
be amended in accordance with the terms thereof and hereof or such other
agreements reasonably acceptable to Administrative Agent as shall be necessary
to comply with applicable Requirements of Law and effective to grant to
Administrative Agent (on behalf of the Creditors) a perfected first priority
security interest in the Pledged Collateral covered thereby.
"Security Documents" shall mean the Reaffirmation Agreement, the Security
Agreement, the Mortgages (if any), the Collateral Assignment of Location
Agreements and each other security document or pledge agreement required by
applicable local law to grant a valid, perfected security interest in any
Property acquired or developed pursuant to a Permitted Acquisition to the extent
required by Section 9.12 or 9.20, and all UCC or other financing statements or
instruments of perfection required by this Agreement, the Security Agreement or
any Mortgage to be filed with respect to the security interests in Property and
fixtures created pursuant to the Security Agreement or any Mortgage and any
other document or instrument utilized to pledge as collateral for the
Obligations any Property of whatever kind or nature.
"Senior Debt" shall mean, at any date, (i) Total Debt other than
Subordinated Debt plus (ii) cash held pursuant to the Senior Subordinated Notes
Interest Escrow Agreement.
"Senior Leverage Ratio" shall mean, for any Test Date, the ratio of (x)
Senior Debt at such Test Date to (y) Operating Cash Flow for the four fiscal
quarters ending on such Test Date.
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"Senior Subordinated Notes" shall mean the 10 3/4% Senior Subordinated
Notes due 2008 of Borrower in an aggregate principal amount of $370.0 million
issued pursuant to the Senior Subordinated Notes Financing Documents, including
the senior subordinated notes issued pursuant to a registered exchange offer
(the "Exchange Offer") therefor made pursuant to the registration rights
agreement entered into in connection with the issuance thereof on the date of
issuance thereof (the "Exchange Notes").
"Senior Subordinated Notes Financing" shall mean the issuance and sale of
the Senior Subordinated Notes for gross proceeds (in excess of the amount of
interest in escrow pursuant to the Senior Subordinated Notes Interest Escrow
Agreement) of not less than $310.0 million.
"Senior Subordinated Notes Financing Documents" shall mean the Senior
Subordinated Notes Indenture, the Senior Subordinated Notes Interest Escrow
Agreement and all other documents relating thereto and delivered to Agents, as
any such agreement or document may be amended and in effect from time to time in
accordance with its terms and this Agreement.
"Senior Subordinated Notes Indenture" shall mean the Indenture dated
December 14, 1998 pursuant to which the Senior Subordinated Notes were (and the
Exchange Notes will be) issued.
"Senior Subordinated Notes Interest Escrow Agreement" shall mean that
certain Pledge Escrow and Assignment Agreement dated as of December 14, 1998
between Borrower and The Chase Manhattan Bank, as trustee, pursuant to which
proceeds from the Senior Subordinated Notes sufficient to fund the first three
scheduled semi-annual interest payments will be held in escrow for the benefit
of the holders of the Senior Subordinated Notes.
"Senior Subordinated Notes Interest Trigger Date" shall mean the earlier of
(x) the third scheduled semi-annual interest payment date on the Senior
Subordinated Notes after the Original Closing Date or (y) the first date on
which cash interest is payable on any Permitted Refinancing of the Senior
Subordinated Notes (or any one or more refinancings thereof) other than from an
interest escrow arrangement on terms substantially identical to the terms of the
Senior Subordinated Notes Interest Escrow Agreement as in effect on the Original
Closing Date.
"SMR System" shall mean a specialized mobile radio system consisting of
two-way radio service operating in the 800-900 megahertz band.
"Sold Minority Interests" see Section 9.10(c)(v).
"Solvent" and "Solvency" shall mean, for any Person on a particular date,
that on such date (a) the fair value of the Property of such Person is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts and liabilities beyond such Person's ability to pay as such debts
and liabilities mature, (d) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which such Person's Property would constitute an unreasonably small capital and
(e) such Person is able to pay its debts as they become due and payable.
"Specified Wireless System Information" shall mean, for each fiscal quarter
or fiscal year, as the case may be, (i) the number of Cellular System, PCS
System, SMR System, LEC System, CAP System, CATV/SMATV and paging system
subscribers at the beginning of such period, (ii) the number of gross new
Cellular System, PCS System, SMR System, LEC System, CAP System, CATV/SMATV and
paging systems subscribers added and deactivated Cellular System, PCS System,
SMR System, LEC System, CAP System, CATV/SMATV and paging system subscribers
lost during such period, (iii) the number of Cellular System, PCS System, SMR
System, LEC System, CAP System, CATV/SMATV and paging system subscribers at the
end of such period, (iv) Net Pops, (v) monthly churn (as such term is used in
the cellular telecommunications industry), and (vi) roaming revenues for the
applicable period as a percentage of total revenue for the same period.
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"State PUC" shall mean any state public utility commission or any other
state commission, agency, department, board or authority with responsibility for
regulating intrastate and local telecommunications services.
"Statutes" see Section 8.22(e).
"Subordinated Debt" shall mean Indebtedness of any Company that is
contractually subordinated in right of payment to any other Indebtedness of such
Company. No Indebtedness shall be subordinate to any other Indebtedness solely
by virtue of such other Indebtedness being secured and such Indebtedness not
being secured by the same collateral.
"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. Unless the context clearly requires otherwise, all references to
any Subsidiary shall mean a Subsidiary of Borrower.
"Supermajority Lenders" shall mean Lenders holding at least two-thirds of
the sum of (without duplication) (a) the aggregate principal amount of
outstanding Loans (other than Swing Loans), plus (b) the aggregate amount of all
Letter of Credit Liabilities, plus (c) the aggregate unused amount of Unutilized
Revolving Credit Commitments then in effect, plus (d) in the case of the Swing
Loan Lender only, the aggregate amount of the Swing Loans then outstanding.
"Supermajority Lenders of the Affected Class" shall mean Lenders holding at
least two-thirds of the sum of the aggregate amount of the outstanding Loans of
the applicable tranche of Term Loans which would be affected by any
modification, supplement or waiver contemplated by clause (f) to the proviso to
Section 12.04(i).
"Supplemental Indentures" shall mean (i) the Third Supplemental Indenture
dated as of January 7, 1999, to the applicable Existing Indenture, dated as of
November 15, 1993 and the First Supplemental Indenture, dated as of November 15,
1993, between Parent and Bank of Montreal Trust Company and (ii) the Fourth
Supplemental Indenture, dated as of January 7, 1999, to the applicable Existing
Indenture, dated as of November 13, 1993 and the Second Supplemental Indenture,
dated as of May 11, 1995 between Parent and Bank of Montreal Trust Company.
"Surety Instruments" shall mean all letters of credit (including standby
and commercial), bankers' acceptances, bank guarantees, surety bonds and similar
instruments.
"Survey" shall mean a survey of any Mortgaged Real Property (and all
improvements thereon): (i) prepared by a surveyor or engineer licensed to
perform surveys in the state, province or country where such Mortgaged Real
Property is located, (ii) dated (or redated) a date acceptable to the
Administrative Agent, (iii) certified by the surveyor (in a manner acceptable to
Administrative Agent) to Administrative Agent and (iv) complying in all respects
with Requirements of Law.
"Swap Contract" shall mean any agreement entered into (as a bona fide hedge
and not for speculative purposes) (including any master agreement and any
agreement, whether or not in writing, relating to any single transaction) that
is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, foreign exchange agreement, rate cap, collar or
floor agreement, currency swap agreement, cross-currency rate swap agreement,
swaption, currency option or any other similar agreement (including any option
to enter into any of the foregoing) and is designed to protect the Obligors
against fluctuations in interest rates, currency exchange rates, or similar
risks (including any Interest Rate Protection Agreement entered into pursuant to
Section 9.18).
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"Swing Loan Commitment" shall mean the obligation of the Swing Loan Lender
to make or continue Swing Loans hereunder in an aggregate principal amount up to
but not exceeding $30.0 million, as the same may be reduced or terminated
pursuant to Section 2.04 or 2.10 or Section 10, it being understood that the
Swing Loan Commitment is part of the Revolving Credit Commitment of the Swing
Loan Lender, rather than a separate, independent commitment.
"Swing Loan Lender" shall mean Bank of America, N.A. and its successors and
assigns in such capacity.
"Swing Loan Maturity Date" shall mean the Revolving Credit Commitment
Termination Date.
"Swing Loan Notes" shall mean the promissory notes made by Borrower and PR
Borrower evidencing the Swing Loans, in the form of Exhibit A-5.
"Swing Loans" see Section 2.01(g).
"Systems" shall mean CAP Systems, CATV/SMATV Systems, Cellular Systems, LEC
Systems, PCS Systems, SMR Systems, long distance systems and paging systems.
"Tax Returns" see Section 8.09.
"Taxes" shall mean any and all taxes, imposts, duties, charges, fees,
levies or other charges or assessments of whatever nature, including income,
gross receipts, excise, real or personal property, sales, withholding, social
security, retirement, unemployment, occupation, use, service, license, net
worth, payroll, franchise, and transfer and recording, imposed by the Internal
Revenue Service or any taxing authority (whether domestic or foreign, including
any federal, state, U.S. possession, county, local or foreign government or any
subdivision or taxing agency thereof), whether computed on a separate,
consolidated, unitary, combined or any other basis, including interest, fines,
penalties or additions to tax attributable to or imposed on or with respect to
any such taxes, charges, fees, levies or other assessments.
"Term Loan Commitments" shall mean the Tranche A Term Loan Commitments, the
Tranche A-PR Term Loan Commitments, the Tranche B-PR Term Loan Commitments and
the Tranche C-PR Term Loan Commitments, collectively.
"Term Loan Facilities" shall mean the credit facilities comprising the Term
Loan Commitments of all of the Term Loan Lenders.
"Term Loan Lenders" shall mean the Tranche A Term Loan Lenders, the Tranche
A-PR Term Loan Lenders, the Tranche B-PR Term Loan Lenders and the Tranche C-PR
Term Loan Lenders, collectively.
"Term Loan Notes" shall mean the Tranche A Term Loan Notes, the Tranche
A-PR Term Loan Notes, the Tranche B-PR Term Loan Notes and the Tranche C-PR Term
Loan Notes, collectively.
"Term Loan Tranches" shall mean the Term Loans outstanding under the
Tranche A Term Loans, the Tranche A-PR Term Loans, the Tranche B-PR Term Loans
and the Tranche C-PR Term Loans, collectively, and "Term Loan Tranche" shall
mean any of them.
"Term Loans" shall mean the Tranche A Term Loans, the Tranche A-PR Term
Loans, the Tranche B-PR Term Loans and the Tranche C-PR Term Loans,
collectively.
"Test Date" shall mean, for any Financial Maintenance Covenant, the last
day of each fiscal quarter of Borrower included within any period set forth in
the table for such Financial Maintenance Covenant. Compliance with the Financial
Maintenance Covenants shall be tested, as of each Test Date, on the date on
which financial statements pursuant to Section 9.01(a) or (b) have been, or
should have been, delivered for the applicable fiscal period.
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"Title Company" shall mean First American Title Insurance Company or such
other title insurance or abstract company as shall be designated by
Administrative Agent.
"Total Debt" shall mean, at any date, the aggregate amount of Indebtedness
of Borrower and its Consolidated Subsidiaries as of such date determined on a
consolidated basis in accordance with GAAP, net of (A) up to $30.0 million in
cash held by Borrower or any Qualified Subsidiary not in the Collateral Account
and (B) all cash held in the Collateral Account at such date that resulted from
any Disposition of any System of Borrower or any Subsidiary, and (C) prior to
the Senior Subordinated Notes Interest Trigger Date, net of the cash held in the
Senior Subordinated Notes Interest Escrow Agreement.
"Total Leverage Ratio" shall mean, for any Test Date, the ratio of (x) the
sum (without duplication) of (1) Total Debt at such Test Date, plus (2) if the
Additional Senior Subordinated Notes were issued by any direct or indirect
parent of Borrower and if such date is on or after the Senior Subordinated Notes
Interest Trigger Date (or such later date as the interest escrow account in
respect thereof, if any, is depleted), the aggregate principal amount of
Additional Senior Subordinated Notes outstanding on such date, plus (3) if any
Disposition has been effected of any Minority Interest set forth on Schedule
8.14 and the Net Available Proceeds therefrom have not as of such Test Date been
applied to the prepayment of the Loans, an aggregate principal amount of the
Parent Subordinated Notes equal to the amount of such Net Available Proceeds
(not to exceed the aggregate principal amount of the Parent Subordinated Notes
then outstanding), plus (4) if the Parent Refinanced Notes are issued and if
such date is on or after the Parent Refinanced Notes Interest Trigger Date, the
aggregate principal amount of Parent Refinanced Notes outstanding on such date,
plus (5) any Indebtedness issued under Section 9.08(k) to (y) Operating Cash
Flow for the four fiscal quarters ending on such Test Date.
"Tranche A Term Loan Commitment" shall mean, for each Tranche A Term Loan
Lender, the obligation of such Lender to make a Tranche A Term Loan on the
Original Closing Date in an amount up to but not exceeding the amount set
opposite the name of such Lender on Annex A under the caption "Tranche A Term
Loan Commitment" (as the same may have been changed pursuant to Section
12.06(b)).
"Tranche A Term Loan Commitments" shall mean the aggregate sum of the
Tranche A Term Loan Commitment of all the Lenders.
"Tranche A Term Loan Lenders" shall mean the Lenders from time to time
holding Tranche A Term Loans after giving effect to any assignments thereof
permitted by Section 12.06(b).
"Tranche A Term Loan Notes" shall mean the promissory notes provided for by
Section 2.08(a)(ii) and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Tranche A Term Loans" shall mean the loans provided for by Section
2.01(b), which may be ABR Loans and/or LIBOR Loans. The initial aggregate
principal amount of the Tranche A Term Loans on the Effectiveness Date is $325.0
million.
"Tranche A-PR Term Loan Commitment" shall mean, for each initial Tranche
A-PR Term Loan Lender, the obligation of such Lender to make a Tranche A-PR Term
Loan on the Original Closing Date in an amount up to but not exceeding the
amount set opposite the name of such Lender on Annex A under the caption
"Tranche A-PR Term Loan Commitment" (as the same may have been changed pursuant
to Section 12.06(b)).
"Tranche A-PR Term Loan Commitments" shall mean the aggregate sum of the
Tranche A-PR Term Loan Commitment of all the Lenders.
"Tranche A-PR Term Loan Lenders" shall mean the Lenders from time to time
holding Tranche A-PR Term Loans after giving effect to any assignments thereof
permitted by Section 12.06(b).
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"Tranche A-PR Term Loan Notes" shall mean the promissory notes provided for
by Section 2.08(a)(iii) and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Tranche A-PR Term Loans" shall mean the loans provided for by Section
2.01(b), which may be ABR Loans and/or LIBOR Loans. The initial aggregate
principal amount of the Tranche A-PR Term Loans on the Effectiveness Date is
$125.0 million.
"Tranche B-PR Term Loan Commitment" shall mean, for each Tranche B-PR Term
Loan Lender, the obligation of such Lender to make a Tranche B-PR Term Loan on
the Effectiveness Date in an amount up to but not exceeding the amount set
opposite the name of such Lender on Schedule 6(a) to the Effectiveness Agreement
under the caption "Tranche B-PR Term Loan Commitment".
"Tranche B-PR Term Loan Commitments" shall mean the aggregate sum of the
Tranche B-PR Term Loan Commitments of all the Lenders.
"Tranche B-PR Term Loan Lenders" shall mean (a) on the Effectiveness Date,
the Lenders having Tranche B-PR Term Loan Commitments under the Effectiveness
Agreement, and (b) thereafter, the Lenders from time to time holding Tranche
B-PR Term Loans after giving effect to any assignments thereof permitted by
Section 12.06(b).
"Tranche B-PR Term Loan Notes" shall mean the promissory notes provided for
by Section 2.08(a)(vii) and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Tranche B-PR Term Loans" shall mean the loans provided for by Section
2.01(c), which may be ABR Loans and/or LIBOR Loans. The initial aggregate
principal amount of the Tranche B-PR Term Loans on the Effectiveness Date is
$322,187,500.
"Tranche C-PR Term Loan Commitment" shall mean, for each Tranche C-PR Term
Loan Lender, the obligation of such Lender to make a Tranche C-PR Term Loan on
the Effectiveness Date in an amount up to but not exceeding the amount set
opposite the name of such Lender on Schedule 6(a) to the Effectiveness Agreement
under the caption "Tranche C-PR Term Loan Commitment".
"Tranche C-PR Term Loan Commitments" shall mean the aggregate sum of the
Tranche C-PR Term Loan Commitment of all the Lenders.
"Tranche C-PR Term Loan Lenders" shall mean (a) on the Effectiveness Date,
the Lenders having Tranche C-PR Term Loan Commitments under the Effectiveness
Agreement, and (b) thereafter, the Lenders from time to time holding Tranche
C-PR Term Loans after giving effect to any assignments thereof permitted by
Section 12.06(b).
"Tranche C-PR Term Loan Notes" shall mean the promissory notes provided for
by Section 2.08(a)(v) and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"Tranche C-PR Term Loans" shall mean the loans provided for by Section
2.01(d), which may be ABR Loans and/or LIBOR Loans. The initial aggregate
principal amount of the Tranche C-PR Term Loans on the Effectiveness Date is
$222,187,500.
"Transaction Documents" shall mean this Agreement, the Effectiveness
Agreement, the Reaffirmation Agreement and all documents related thereto or to
the Reorganization and all exhibits, appendices, schedules and annexes to any
thereof.
"Transactions" shall mean the Reorganization and the borrowings and other
credit transactions contemplated hereunder on the Effectiveness Date.
"Type" see Section 1.03.
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"UCC" shall mean the Uniform Commercial Code as in effect in the applicable
state, Puerto Rico or other jurisdiction.
"Unutilized Revolving Credit Commitment" shall mean, for any Revolving
Credit Lender, at any time, the excess of such Lender's Revolving Credit
Commitment at such time over the sum of (i) the aggregate outstanding principal
amount of Revolving Credit Loans made by such Lender, (ii) such Lender's
Revolving Credit Commitment Percentage of the aggregate amount of Letter of
Credit Liabilities at such time and (iii) with respect to the Swing Loan Lender
only, the aggregate principal amount of Swing Loans then outstanding.
"Virgin Islands" shall mean the United States Virgin Islands.
"WCAS" shall mean Welsh, Carson, Anderson & Stowe VIII, L.P.
"Wholly Owned Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which all of the Equity Interests
(other than, in the case of a corporation, directors' qualifying shares or
nominee shares required under applicable law) are directly or indirectly owned
or controlled by such Person or one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more Wholly Owned Subsidiaries of such
Person. Unless the context clearly requires otherwise, all references to any
Wholly Owned Subsidiary shall mean a Wholly Owned Subsidiary of Borrower.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part 1 of Subtitle E of Title IV of ERISA.
"Working Capital" shall mean an amount determined for Borrower and the
Consolidated Subsidiaries equal to the sum of all current assets (other than
cash and Permitted Investments) less the sum of all current liabilities (other
than the current portion of long-term Indebtedness).
1.02. Accounting Terms and Determinations. Except as otherwise provided in
this Agreement, all computations and determinations as to accounting or
financial matters (including financial covenants) shall be made in accordance
with GAAP consistently applied for all applicable periods, and all accounting or
financial terms shall have the meanings ascribed to such terms by GAAP. All
financial statements to be delivered pursuant to this Agreement shall be
prepared in accordance with GAAP.
1.03. Classes and Types of Loans. Loans hereunder are distinguished by
"Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a Loan)
refers to whether such Loan is a Revolving Credit Loan, Swing Loan, Tranche A
Term Loan, Tranche A-PR Term Loan, Tranche B-PR Term Loan or Tranche C-PR Term
Loan, each of which constitutes a Class. The "Type" of a Loan refers to whether
such Loan is an ABR Loan or a LIBOR Loan, each of which constitutes a Type.
Loans may be identified by both Class and Type.
1.04. Rules of Construction. (a) In this Agreement and each other Credit
Document, unless the context clearly requires otherwise (or such other Credit
Document clearly provides otherwise), references to (i) the plural include the
singular, the singular include the plural and the part include the whole; (ii)
Persons include their respective permitted successors and assigns or, in the
case of governmental Persons, Persons succeeding to the relevant functions of
such Persons; (iii) agreements (including this Agreement), promissory notes and
other contractual instruments include subsequent amendments, assignments, and
other modifications thereto, but only to the extent such amendments, assignments
or other modifications thereto are not prohibited by their terms or the terms of
any Credit Document; (iv) statutes and related regulations include any
amendments of the same and any successor statutes and regulations; and (v) time
shall be a reference to New York City time. Where any provision herein refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person.
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(b) In this Agreement and each other Credit Document, unless the context
clearly requires otherwise (or such other Credit Document clearly provides
otherwise), (i) "amend" shall mean "amend, restate, amend and restate,
supplement or modify"; and "amended," "amending," and "amendment" shall have
meanings correlative to the foregoing; (ii) in the computation of periods of
time from a specified date to a later specified date, "from" shall mean "from
and including"; "to" and "until" shall mean "to but excluding"; and "through"
shall mean "to and including"; (iii) "hereof," "herein" and "hereunder" (and
similar terms) in this Agreement or any other Credit Document refer to this
Agreement or such other Credit Document, as the case may be, as a whole and not
to any particular provision of this Agreement or such other Credit Document;
(iv) "including" (and similar terms) shall mean "including without limitation"
(and similarly for similar terms); (v) "or" has the inclusive meaning
represented by the phrase "and/or"; (vi) "satisfactory to" any Creditor shall
mean in form, scope and substance and on terms and conditions satisfactory to
such Creditor; (vii) references to "the date hereof" shall mean the date of the
amendment and restatement hereof first set forth above; and (viii) "asset" and
"Property" shall have the same meaning and effect and refer to all tangible and
intangible assets and property, whether real, personal or mixed and of every
type and description.
(c) In this Agreement unless the context clearly requires otherwise, any
reference to (i) an Annex, Exhibit or Schedule is to an Annex, Exhibit or
Schedule, as the case may be, attached to this Agreement and constituting a part
hereof, and (ii) a Section or other subdivision is to a Section or such other
subdivision of this Agreement.
(d) References herein to the taking of any action hereunder of an
administrative nature by Borrower shall be deemed to include a reference to PR
Borrower taking such action or Borrower taking such action on PR Borrower's
behalf or PR Borrower taking such action on Borrower's behalf, as the context
may require, and the Administrative Agent is expressly authorized to accept any
such action taken by Borrower or PR Borrower on its own behalf or on behalf of
the other as having the same effect as if taken by the other.
Section 2. Commitments, Letters of Credit, Fees, Register,
Prepayments, and Replacement of Lenders.
2.01. Loans.
(a) Revolving Credit Loans. Each Revolving Credit Lender severally agrees,
on the terms and conditions of this Agreement, to make revolving credit loans
(the "Revolving Credit Loans") to Borrower and PR Borrower in Dollars during the
period from and including the Effectiveness Date to but not including the
Revolving Credit Commitment Termination Date in an aggregate principal amount at
any one time outstanding not exceeding the amount of the Revolving Credit
Commitment of such Lender as in effect from time to time; provided, however,
that in no event shall the sum of the aggregate principal amount of (without
duplication) all Revolving Credit Loans then outstanding, plus the aggregate
principal amount of Swing Loans then outstanding, plus the aggregate amount of
all Letter of Credit Liabilities at any time exceed the aggregate amount of the
Revolving Credit Commitments as in effect at such time. Subject to the terms and
conditions of this Agreement, during such period Borrower or PR Borrower, as the
case may be, may borrow, repay and reborrow the amount of the Revolving Credit
Commitments by means of ABR Loans and LIBOR Loans and may Convert Revolving
Credit Loans of one Type into Revolving Credit Loans of another Type (as
provided in Section 2.09) or Continue Revolving Credit Loans of one Type as
Revolving Credit Loans of the same Type (as provided in Section 2.09).
(b) (1) Tranche A Term Loans. Each initial Tranche A Term Loan Lender made
a term loan to Borrower in Dollars on the Original Closing Date in an aggregate
principal amount equal to the Tranche A Term Loan Commitment of such Lender.
Subject to the terms and conditions of this Agreement, Borrower may Convert
Tranche A Term Loans of one Type into Tranche A Term Loans of another Type (as
provided in Section 2.09) or Continue Tranche A Term Loans of one Type as
Tranche A Term Loans of the same Type (as provided in Section 2.09).
Tranche A Term Loans that are repaid or prepaid may not be reborrowed.
(2) Tranche A-PR Term Loans. Each initial Tranche A-PR Term Loan Lender
made a term loan to PR Borrower in Dollars on the Original Closing Date in an
aggregate principal amount equal to the Tranche A-PR Term Loan Commitment of
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such Lender. Subject to the terms and conditions of this Agreement, PR Borrower
may Convert Tranche A-PR Term Loans of one Type into Tranche A-PR Term Loans of
another Type (as provided in Section 2.09) or Continue Tranche A-PR Term Loans
of one Type as Tranche A-PR Term Loans of the same Type (as provided in Section
2.09).
Tranche A-PR Term Loans that are repaid or prepaid may not be reborrowed.
(c) Tranche B-PR Term Loans. Each initial Tranche B-PR Term Loan Lender
made a term loan to PR Borrower in Dollars on the Effectiveness Date in an
aggregate amount equal to such Lender's Tranche B-PR Term Loan Commitment to
finance the Transactions and to pay related fees and expenses or in connection
with the prepayment by Borrower of all the Tranche B Term Loans outstanding to
it under Section 6(a) of the Effectiveness Agreement. Subject to the terms and
conditions of this Agreement, PR Borrower may Convert Tranche B-PR Term Loans of
one Type into Tranche B-PR Term Loans of another Type (as provided in Section
2.09) or Continue Tranche B-PR Loans of one Type as Tranche B-PR Term Loans of
the same Type (as provided in Section 2.09).
Tranche B-PR Term Loans that are repaid or prepaid may not be reborrowed.
(d) Tranche C-PR Term Loans. Each initial Tranche C-PR Term Loan Lender
made a term loan to PR Borrower in Dollars on the Effectiveness Date in an
aggregate principal amount equal to such Lender's Tranche C-PR Term Loan
Commitment in connection with the prepayment by Borrower of all the Tranche C
Term Loans outstanding to it under Section 6(b) of the Effectiveness Agreement.
Subject to the terms and conditions of this Agreement, Borrower may Convert
Tranche C-PR Term Loans of one Type into Tranche C-PR Term Loans of another Type
(as provided in Section 2.09) or Continue Tranche C-PR Term Loans of one Type as
Tranche C-PR Term Loans of the same Type (as provided in Section 2.09).
Tranche C-PR Term Loans that are repaid or prepaid may not be reborrowed.
(e) Limit on LIBOR Loans. No more than seven separate Interest Periods in
respect of LIBOR Loans of any Class may be outstanding at any one time.
(f) Incremental Facilities. After the date that is six months after the
Effectiveness Date, Borrower may request that any of the Lenders (or to the
extent that the existing Lenders have not agreed within 20 days to provide any
Incremental Facility herein, new Lenders ("New Lenders") acceptable to
Co-Syndication Agents) agree to provide Commitments to make extensions of credit
hereunder by up to $150.0 million, which amount shall be allocated among the
Revolving Credit Facility and the Term Loan Facilities or one or more new term
loan facilities in amounts and with maturities (including any extended maturity
(in the sole discretion of Agents) for such portion thereof allocated to the
Revolving Credit Facility) acceptable to Agents in their sole discretion and
having terms and provisions no more onerous than those contained in the Credit
Documents; provided, however, that such Incremental Facility shall not become
effective unless at the time of the effectiveness of such Incremental Facility
no Default or Event of Default shall have occurred and be continuing or would
arise therefrom (any such increase or new credit facility, an "Incremental
Facility"). No Agent or Lender shall have any obligation or liability whatsoever
to any Company or any other Person with respect to the approval of any
Incremental Facility or for any refusal to approve, negotiate or consider any
such proposal or for any act or omission related thereto. Notwithstanding
Section 12.04, Borrower, PR Borrower, Co-Syndication Agents and Administrative
Agent may make conforming and other necessary changes to the Credit Documents in
order to integrate any Incremental Facility into the Credit Documents (including
to secure such Incremental Facility).
(g) Swing Loans. Subject to the terms and conditions of this Agreement,
upon request of Borrower or PR Borrower, the Swing Loan Lender agrees to make
one or more Swing Loans to Borrower and/or PR Borrower from time to time from
and including the Effectiveness Date to but excluding the Swing Loan Maturity
Date, up to but not exceeding the amount of the Swing Loan Lender's Swing Loan
Commitment as then in effect. (Such Swing Loans referred to in this Section
2.01(g) now or hereafter made by the Swing Loan Lender to Borrower and/or PR
Borrower from and including and after the Effectiveness Date are hereinafter
collectively called the "Swing Loans.") Prior to the Swing Loan Maturity Date,
Borrower and/or PR Borrower may borrow, repay and reborrow Swing Loans up to the
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Swing Loan Commitment in accordance with the terms of this Agreement. The Swing
Loan Lender shall not make any Swing Loans on or after the Swing Loan Maturity
Date. Notwithstanding anything to the contrary contained in this Section 2.01(g)
or elsewhere in this Agreement, the Swing Loan Lender shall not be obligated,
pursuant to this Section 2.01(g) or otherwise, to make any Swing Loan to or for
the account of Borrower and/or PR Borrower, and Borrower and or PR Borrower
shall not be entitled to borrow, pursuant to this Section 2.01(g), if, after
giving full effect to the requested Swing Loan, the aggregate outstanding amount
of Revolving Credit Loans, plus the aggregate outstanding amount of Swing Loans,
plus the aggregate outstanding Letter of Credit Liabilities would exceed the
aggregate amount of the Revolving Credit Commitments as in effect at such time.
Notwithstanding anything herein or elsewhere to the contrary, the Swing Loans
will be made and maintained only as ABR Loans. The Swing Loan Lender shall not
make any Swing Loan after receiving a written notice from Borrower, PR Borrower
or the Majority Revolving Credit Lenders stating that a Default exists and is
continuing until such time as the Swing Loan Lender shall have received written
notice of (i) rescission of all such notices from the party or parties
originally delivering such notice, (ii) the waiver of such Default by the
Majority Lenders, or (iii) Administrative Agent's good faith determination that
such Default has ceased to exist. Swing Loans shall be made in minimum amounts
of $500,000 and integral multiples of $500,000 above such amount.
Upon the occurrence of a Default, each Revolving Credit Lender shall be
deemed to have purchased (and each Revolving Credit Lender hereby irrevocably
agrees to purchase on a pro rata basis (based upon each Revolving Credit
Lender's Revolving Credit Commitment)) an irrevocable participation in all
outstanding Swing Loans, together with all accrued interest thereon, without any
further action by or on behalf of the Swing Loan Lender, any other Lender,
Borrower, PR Borrower or any other Person. Upon one Business Day's notice from
the Swing Loan Lender, each other Revolving Credit Lender shall deliver to the
Swing Loan Lender an amount equal to its respective participation in such Swing
Loan (as determined pursuant to the immediately preceding sentence) in
immediately available funds. In order to evidence such participation, each
Revolving Credit Lender agrees to enter into a participation agreement at the
request of the Swing Loan Lender in form and substance satisfactory to the Swing
Loan Lender and the Revolving Credit Lender. If any Revolving Credit Lender
fails to make available to the Swing Loan Lender the amount of such Revolving
Credit Lender's participation as provided in this paragraph, the Swing Loan
Lender shall be entitled to recover such amount on demand from such Revolving
Credit Lender, together with interest thereon at the Federal Funds Rate until
such amount is paid in full in immediately available funds. In the event the
Swing Loan Lender receives a payment from Borrower, PR Borrower or any other
Obligor of any amount in which the Revolving Credit Lenders have purchased
participations as provided in this paragraph, the Swing Loan Lender shall
promptly distribute to each Revolving Credit Lender its pro rata share of such
payment. Anything contained in this Agreement or otherwise to the contrary
notwithstanding, (A) each Revolving Credit Lender's obligation to purchase a
participation in each unpaid Swing Loan shall be absolute and unconditional and
shall not be affected by any circumstances, including, without limitation, (1)
any setoff, counterclaim, recoupment, defense or other right which such
Revolving Credit Lender may now or hereafter have against the Swing Loan Lender,
Borrower, PR Borrower or any other Person for any reason whatsoever, (2) the
occurrence or continuation of a Default or an Event of Default, (3) any material
adverse change in the condition of Borrower, PR Borrower or any Subsidiary, (4)
any breach or default of this Agreement or any of the Security Documents by any
Person other than a material breach of the provisions of this Section 2.01(g) by
the Swing Loan Lender or (5) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing, and (B) the Swing
Loan Lender shall not have any obligation to make any Swing Loans if (1)
Borrower or PR Borrower, as applicable, fails for whatever reason to satisfy any
of the conditions precedent set forth in Section 7.02 or (2) any Revolving
Credit Lender fails for whatever reason to comply with its obligations under
this Section 2.01(g).
2.02. Borrowings. Borrower or PR Borrower, as the case may be, shall give
Administrative Agent notice of each borrowing hereunder as provided in Section
4.05. The form of such notice of borrowing shall be substantially in the form of
Exhibit G. Not later than 12:00 noon New York City time on the date specified
for each borrowing hereunder, each Lender shall make available the amount of the
Loan or Loans to be made by it on such date to Administrative Agent, at an
account specified by Administrative Agent maintained at the Principal Office, in
immediately available funds, for the account of Borrower or PR Borrower, as
applicable. Each borrowing of Revolving Credit Loans shall be made by each
Revolving Credit Lender pro rata based on such Lender's Revolving Credit
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Commitment Percentage. The amounts so received by Administrative Agent shall,
subject to the terms and conditions of this Agreement, be made available to
Borrower or PR Borrower, as applicable, by depositing the same, in immediately
available funds, in an account of Borrower or PR Borrower, as applicable,
maintained with Administrative Agent at the Principal Office designated by
Borrower or PR Borrower, as applicable.
2.03. Letters of Credit. Subject to the terms and conditions hereof, the
Revolving Credit Commitments may be utilized, upon the request of Borrower, in
addition to the Revolving Credit Loans provided for by Section 2.01(a), for
standby and commercial documentary letters of credit (herein collectively called
"Letters of Credit") issued by the Issuing Lender for the account of Borrower or
any Subsidiary which is an Obligor (provided, that Borrower shall be a
co-applicant (and jointly and severally liable) with respect to each Letter of
Credit issued for the account of any such Subsidiary); provided, however, that
in no event shall (i) the aggregate amount of all Letter of Credit Liabilities,
plus the aggregate principal amount of the Revolving Credit Loans then
outstanding, plus the aggregate principal amount of Swing Loans then outstanding
exceed at any time the Revolving Credit Commitments as in effect at such time,
(ii) the sum of the aggregate principal amount of Revolving Credit Loans then
outstanding made by any Revolving Credit Lender, plus such Lender's pro rata
share (based on the Revolving Credit Commitments) of the aggregate principal
amount of Swing Loans then outstanding, plus such Lender's pro rata share (based
on the Revolving Credit Commitments) of the aggregate amount of all Letter of
Credit Liabilities exceed such Lender's Revolving Credit Commitment as in effect
at such time, (iii) the outstanding aggregate amount of all Letter of Credit
Liabilities exceed $75.0 million, (iv) the face amount of any Letter of Credit
be less than $500,000, (v) the expiration date of any Letter of Credit extend
beyond the earlier of (x) the fifth Business Day preceding the Revolving Credit
Commitment Termination Date and (y) the date twelve months following the date of
such issuance for standby Letters of Credit or 180 days after the date of such
issuance for commercial documentary Letters of Credit, unless the Majority
Revolving Credit Lenders have approved such expiry date in writing (but never
beyond the fifth Business Day prior to the Revolving Credit Commitment
Termination Date); provided, however, that any standby Letter of Credit may be
automatically extendible for periods of up to one year (but never beyond the
fifth Business Day preceding the Revolving Credit Commitment Termination Date)
so long as such Letter of Credit provides that the Issuing Lender retains an
option satisfactory to the Issuing Lender to terminate such Letter of Credit
prior to each extension date, or (vi) the Issuing Lender issue any Letter of
Credit after it has received notice from Borrower or the Majority Revolving
Credit Lenders stating that a Default exists until such time as the Issuing
Lender shall have received written notice of (x) rescission of such notice from
the Majority Revolving Credit Lenders, (y) waiver of such Default in accordance
with this Agreement or (z) Administrative Agent's good faith determination that
such Default has ceased to exist. The following additional provisions shall
apply to Letters of Credit:
(a) Borrower shall give Administrative Agent at least three Business Days'
irrevocable prior notice (effective upon receipt) pursuant to a Letter of Credit
application satisfactory to the Issuing Lender specifying the date (which shall
be no later than thirty days preceding the Revolving Credit Termination Date)
each Letter of Credit is to be issued and describing in reasonable detail the
proposed terms of such Letter of Credit (including the beneficiary thereof)
(including whether such Letter of Credit is to be a commercial Letter of Credit
or a standby Letter of Credit). Upon receipt of any such notice, Administrative
Agent shall advise the Issuing Lender of the contents thereof. Each Lender
hereby authorizes the Issuing Lender to issue, and perform its obligations
under, Letters of Credit. Letters of Credit shall be issued in accordance with
the customary procedures of the Issuing Lender, which may include an application
for Letters of Credit. The Issuing Lender may refuse to issue any Letter of
Credit the contents of which are not reasonably satisfactory to it. If there is
any conflict between the procedures required by the Issuing Lender and this
Agreement, this Agreement shall govern.
(b) On each day during the period commencing with the issuance by the
Issuing Lender of any Letter of Credit and until such Letter of Credit shall
have expired or been terminated, the Revolving Credit Commitment of each
Revolving Credit Lender shall be deemed to be utilized for all purposes hereof
in an amount equal to such Lender's Revolving Credit Commitment Percentage of
the then undrawn face amount of such Letter of Credit. Each Revolving Credit
Lender (other than the Issuing Lender) agrees that, upon the issuance of any
Letter of Credit hereunder, it shall automatically acquire a participation in
the Issuing Lender's liability under such Letter of Credit in an amount equal to
such Lender's Revolving Credit Commitment Percentage of such liability, and each
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Revolving Credit Lender (other than the Issuing Lender) thereby shall
absolutely, unconditionally and irrevocably assume, as primary obligor and not
as surety, and shall be unconditionally obligated to the Issuing Lender to pay
and discharge when due, its Revolving Credit Commitment Percentage of the
Issuing Lender's liability under such Letter of Credit. The Issuing Lender shall
be deemed to hold a Letter of Credit Liability in an amount equal to its
retained interest in the related Letter of Credit after giving effect to such
acquisition by the Revolving Credit Lenders other than the Issuing Lender of
their participation interests.
(c) Upon the making of any payment to the beneficiary of any Letter of
Credit, the Issuing Lender shall promptly notify Borrower (through
Administrative Agent) of the amount paid by the Issuing Lender and the date on
which payment was made to such beneficiary. Borrower hereby unconditionally
agrees to pay and reimburse the Issuing Lender for the amount of payment under
such Letter of Credit, together with interest thereon at the Alternate Base Rate
plus the Applicable Margin applicable to Revolving Credit Loans from the date
payment was made to such beneficiary to the date on which payment is due, not
later than the next Business Day after the date on which Borrower receives such
notice from the Issuing Lender (or the second Business Day thereafter if such
notice is received on a date that is not a Business Day or after 11:00 a.m. New
York City time on a Business Day). Any such payment due from Borrower and not
paid on the required date shall bear interest at rates specified in Section
3.02(b).
(d) Forthwith upon its receipt of a notice referred to in clause (c) of
this Section 2.03, Borrower shall advise the Issuing Lender whether or not
Borrower intends to borrow hereunder to finance its obligation to reimburse the
Issuing Lender for the amount of the related demand for payment and, if it does,
submit a notice of such borrowing as provided in Section 4.05. In the event that
Borrower fails to so advise Administrative Agent, or if Borrower fails to
reimburse the Issuing Lender for a demand for payment under a Letter of Credit
by the next Business Day after the date of such notice, Administrative Agent
shall give each Revolving Credit Lender prompt notice of the amount of the
demand for payment, specifying such Lender's Revolving Credit Commitment
Percentage of the amount of the related demand for payment.
(e) Each Revolving Credit Lender (other than the Issuing Lender) shall pay
to Administrative Agent for account of the Issuing Lender at the Principal
Office in Dollars and in immediately available funds, the amount of such
Lender's Revolving Credit Commitment Percentage of any payment under a Letter of
Credit upon not less than one Business Day's notice by the Issuing Lender
(through Administrative Agent) to such Revolving Credit Lender requesting such
payment and specifying such amount. Subject to the proviso to the last paragraph
of this Section 2.03, each such Revolving Credit Lender's obligation to make
such payments to Administrative Agent for the account of the Issuing Lender
under this clause (e), and the Issuing Lender's right to receive the same, shall
be absolute and unconditional and shall not be affected by any circumstance
whatsoever, including (i) the failure of any other Revolving Credit Lender to
make its payment under this clause (e), (ii) the financial condition of Borrower
or the existence of any Default or (iii) the termination of the Commitments.
Each such payment to the Issuing Lender shall be made without any offset,
abatement, withholding or reduction whatsoever.
(f) Upon the making of each payment by a Revolving Credit Lender to the
Issuing Lender pursuant to clause (e) above in respect of any Letter of Credit,
such Lender shall, automatically and without any further action on the part of
Administrative Agent, the Issuing Lender or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation
owing to the Issuing Lender by Borrower hereunder and under the Letter of Credit
Documents relating to such Letter of Credit and (ii) a participation in a
percentage equal to such Lender's Revolving Credit Commitment Percentage in any
interest or other amounts payable by Borrower hereunder and under such Letter of
Credit Documents in respect of such Reimbursement Obligation. Upon receipt by
the Issuing Lender from or for the account of Borrower of any payment in respect
of any Reimbursement Obligation or any such interest or other amounts (including
by way of setoff or application of proceeds of any collateral security) the
Issuing Lender shall promptly pay to Administrative Agent for the account of
each Revolving Credit Lender which has satisfied its obligations under clause
(e) above, such Revolving Credit Lender's Revolving Credit Commitment Percentage
of such payment, each such payment by the Issuing Lender to be made in the same
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money and funds in which received by the Issuing Lender. In the event any
payment received by the Issuing Lender and so paid to the Revolving Credit
Lenders hereunder is rescinded or must otherwise be returned by the Issuing
Lender, each Revolving Credit Lender shall, upon the request of the Issuing
Lender (through Administrative Agent), repay to the Issuing Lender (through
Administrative Agent) the amount of such payment paid to such Lender, with
interest at the rate specified in clause (i) of this Section 2.03.
(g) Borrower shall pay to Administrative Agent for the account of the
Issuing Lender in respect of each Letter of Credit a letter of credit commission
in an amount (not less than $500) equal to (x) the rate per annum equal to the
Applicable Margin for Revolving Credit Loans that are LIBOR Loans in effect from
time to time, multiplied by (y) the daily average undrawn face amount of such
Letter of Credit for the period from and including the date of issuance of such
Letter of Credit (i) in the case of a Letter of Credit which expires in
accordance with its terms, to and including such expiration date and (ii) in the
case of a Letter of Credit which is drawn in full or is otherwise terminated
other than on the stated expiration date of such Letter of Credit, to but
excluding the date such Letter of Credit is drawn in full or is terminated, such
fee to be non-refundable and to be paid in arrears quarterly, on each Quarterly
Date, and on the earlier of the Revolving Credit Commitment Termination Date or
the date of the termination of the Revolving Credit Commitments or the date of
such termination, expiration or the Business Day subsequent to notice of a
drawing. The Issuing Lender shall pay to Administrative Agent for the account of
each Revolving Credit Lender (other than the Issuing Lender), from time to time
at reasonable intervals (but in any event at least quarterly), but only to the
extent actually received from Borrower, an amount equal to such Lender's
Revolving Credit Commitment Percentage of all letter of credit commissions
referred to in the first sentence of this clause (g). In addition, Borrower
shall pay to Administrative Agent for account of the Issuing Lender only in
respect of each Letter of Credit a letter of credit issuance fee in an amount
equal to 0.125% per annum multiplied by the original face amount from the issue
date through the expiry date of such Letter of Credit (but in no event less than
$500 per Letter of Credit), such amount to be payable on the date of issuance of
such Letter of Credit, plus all charges, costs and expenses in the amounts
customarily charged by the Issuing Lender from time to time in like
circumstances with respect to the issuance, amendment or transfer of each Letter
of Credit and drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the Issuing Lender
shall deliver (through Administrative Agent) to each Revolving Credit Lender and
Borrower a notice describing the aggregate amount of all Letters of Credit
outstanding at the end of such month. Upon the request of any Revolving Credit
Lender from time to time, the Issuing Lender shall deliver any other information
reasonably requested by such Lender with respect to each Letter of Credit then
outstanding.
(i) To the extent that any Revolving Credit Lender fails to pay an amount
required to be paid pursuant to clause (e) or (f) of this Section 2.03 on the
due date therefor, such Lender shall pay interest to the Issuing Lender (through
Administrative Agent) on such amount from and including such due date to but
excluding the date such payment is made (i) during the period from and including
such due date to but excluding the date three Business Days thereafter, at a
rate per annum equal to the Federal Funds Rate (as in effect from time to time)
and (ii) thereafter, at a rate per annum equal to the post-default rate (as in
effect from time to time) pursuant to Section 3.02(b).
(j) The issuance by the Issuing Lender of any modification or supplement to
any Letter of Credit hereunder that would extend the expiry date or increase the
face amount thereof shall be subject to the same conditions applicable under
this Section 2.03 to the issuance of new Letters of Credit, and no such
modification or supplement shall be issued hereunder unless either (x) the
respective Letter of Credit affected thereby would have complied with such
conditions had it originally been issued hereunder in such modified or
supplemented form or (y) the Majority Revolving Credit Lenders shall have
consented thereto.
(k) Notwithstanding the foregoing, the Issuing Lender shall not be under
any obligation to issue any Letter of Credit if at the time of such issuance,
any order, judgment or decree of any Governmental Authority or arbitrator shall
purport by its terms to enjoin or restrain the Issuing Lender from issuing such
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Letter of Credit or any requirement of law applicable to the Issuing Lender or
any request or directive (whether or not having the force of law) from any
Governmental Authority shall prohibit the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such
Issuing Lender with respect to such Letter of Credit any restriction or reserve
or capital requirement (for which the Issuing Lender is not otherwise
compensated) not in effect on the date hereof. At any time that the Issuing
Lender shall not be under any obligation to issue Letters of Credit pursuant to
this paragraph (k), the Issuing Lender may be replaced by Borrower with another
Lender reasonably acceptable to Administrative Agent upon notice to the Issuing
Lender and Administrative Agent. Upon any such replacement, Administrative Agent
shall notify the Lenders of any such replacement of the Issuing Lender and the
replacement Issuing Lender shall agree to be bound by the applicable provisions
of this Agreement. At the time any such replacement shall become effective,
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Lender pursuant to Section 2.03(g). From and after the effective date of
any such replacement, (i) the successor Issuing Lender shall have all the rights
and obligations of the Issuing Lender under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Lender" shall be deemed to refer to such successor or to any previous
Issuing Lender, or to such successor and all previous Issuing Lenders, as the
context shall require. After the replacement of an Issuing Lender hereunder, the
replaced Issuing Lender shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Lender under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
The obligations of Borrower under this Agreement and any Letter of Credit
Document to reimburse the Issuing Lender for a drawing under a Letter of Credit,
and to repay any drawing under a Letter of Credit converted into Revolving
Credit Loans, shall be unconditional and irrevocable, and shall be paid strictly
in accordance with the terms of this Agreement and each such other Letter of
Credit Document under all circumstances, including the following: (i) any lack
of validity or enforceability of this Agreement or any Letter of Credit
Document; (ii) the existence of any claim, setoff, defense or other right that
Borrower may have at any time against any beneficiary or any transferee of any
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by the
Letter of Credit Documents or any unrelated transaction; (iii) any draft,
demand, certificate or 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; or 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 any defense based upon the failure of
any drawing under a Letter of Credit to conform to the terms of the Letter of
Credit or any non-application or misapplication by the beneficiary of the
proceeds of such drawing; or (iv) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, Borrower or a Guarantor; provided, however, that neither Borrower
nor any Revolving Credit Lender shall be obligated to reimburse the Issuing
Lender for any wrongful payment finally determined by a court of competent
jurisdiction to have been made by the Issuing Lender as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Issuing Lender. To the extent that any provision of any Letter of Credit
Document is inconsistent with the provisions of this Section 2.03, the
provisions of this Section 2.03 shall control.
2.04. Termination and Reductions of Commitments. (a) (i) The aggregate
amount of the Revolving Credit Commitments shall be automatically and
permanently reduced to zero on the Revolving Credit Commitment Termination Date.
(ii) The aggregate amount of Revolving Credit Commitments shall be
permanently reduced on the date any required prepayments described in Section
2.10(a) are required to be made in the amount specified in Section 2.10(b)(ii).
Each such reduction shall apply pro rata to each Revolving Credit Lender's
Revolving Credit Commitment. Concurrently with any such reduction, Borrower
shall comply with Section 2.10(c).
(iii) The aggregate amount of the Tranche A Term Loan Commitments and the
Tranche A-PR Term Loan Commitments were reduced to zero on the Original Closing
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Date. The aggregate amount of the Tranche B-PR Term Loan Commitments and the
Tranche C-PR Term Loan Commitments were automatically and permanently reduced to
zero immediately after the making of the Tranche B-PR Term Loans and the Tranche
C-PR Term Loans on the Effectiveness Date.
(b) Borrower shall have the right at any time or from time to time (without
premium or penalty except breakage costs (if any)) (i) so long as no Revolving
Credit Loans or Letter of Credit Liabilities will be outstanding as of the date
specified for termination, to terminate the Revolving Credit Commitments in
their entirety, and (ii) to reduce the aggregate amount of the Unutilized
Revolving Credit Commitments of all the Revolving Credit Lenders (which shall be
pro rata among such Lenders); provided, however, that (x) Borrower shall give
notice of each such termination or reduction as provided in Section 4.05, and
(y) each partial reduction shall be in an aggregate amount at least equal to
$5.0 million (or a larger multiple of $1.0 million) or, if less, the remaining
Unutilized Revolving Credit Commitments. Any such reduction by Borrower shall be
on behalf of Borrower and PR Borrower.
(c) The Commitments once terminated or reduced may not be reinstated.
2.05. Fees. (a) Borrower shall pay to Administrative Agent for the account
of each Revolving Credit Lender a commitment fee on the daily average amount of
such Lender's Unutilized Revolving Credit Commitment, for the period from and
including the Effectiveness Date to but not including the earlier of the date
such Revolving Credit Commitment is terminated and the Revolving Credit
Commitment Termination Date, at a rate per annum equal to the Applicable
Revolving Credit Fee Percentage. Any accrued commitment fee under this Section
2.05(a) shall be payable in arrears on each Quarterly Date and on the earlier of
the date the Revolving Credit Commitments are terminated and the Revolving
Credit Commitment Termination Date.
(b) Borrower shall pay to Administrative Agent for its own account an
annual administrative fee pursuant to the Administrative Agent Fee Letter.
2.06. Lending Offices. The Loans of each Type made by each Lender shall be
made and maintained at such Lender's Applicable Lending Office for Loans of such
Type.
2.07. Several Obligations of Lenders. The failure of any Lender to make any
Loan to be made by it on the date specified therefor shall not relieve any other
Lender of its obligation to make its Loan on such date, but neither any Lender
nor Administrative Agent shall be responsible for the failure of any other
Lender to make a Loan to be made by such other Lender, and no Lender shall have
any obligation to Administrative Agent or any other Lender for the failure by
such Lender to make any Loan required to be made by such Lender.
2.08. Notes; Register. (a) (i) At the request of any Lender, the Revolving
Credit Loans made by such Lender may be evidenced by one or more promissory
notes of Borrower and PR Borrower, substantially in the form of Exhibit A-1,
dated the Original Closing Date or the Effectiveness Date, as applicable,
payable to such Lender and otherwise duly completed.
(ii) At the request of any Lender, the Tranche A Term Loans made or to be
made by such Lender may be evidenced by one or more promissory notes of
Borrower, substantially in the form of Exhibit A-2, dated the Original Closing
Date, payable to such Lender and otherwise duly completed.
(iii) At the request of any Lender, the Tranche A-PR Term Loans made or to
be made by such Lender may be evidenced by one or more promissory notes of PR
Borrower, substantially in the form of Exhibit A-3, dated the Original Closing
Date, payable to such Lender and otherwise duly completed.
(iv) At the request of any Lender, the Tranche B-PR Term Loans made or to
be made by such Lender may be evidenced by one or more promissory notes of PR
Borrower, substantially in the form of Exhibit A-4, dated the Effectiveness
Date, payable to such Lender and otherwise duly completed.
(v) At the request of any Lender, the Tranche C-PR Term Loans made or to be
made by such Lender may be evidenced by one or more promissory notes of PR
Borrower, substantially in the form of Exhibit A-5, dated the Effectiveness
Date, payable to such Lender and otherwise duly completed.
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(vi) At the request of the Swing Loan Lender, the Swing Loans made by
Administrative Agent shall be evidenced by one or more promissory notes of
Borrower and PR Borrower, substantially in the form of Exhibit A-6, dated the
Closing Date, payable to the Swing Loan Lender and otherwise duly completed.
(b) The date, amount, Type, interest rate and duration of the Interest
Period (if applicable) of each Loan of each Class made by each Lender to
Borrower or PR Borrower (as the case may be), and each payment made on account
of the principal thereof, shall be recorded by such Lender on its books and,
prior to any transfer of any Note evidencing the Loans of such Class held by it,
endorsed by such Lender on the schedule attached to such Note or any
continuation thereof; provided, however, that the failure of such Lender to make
any such recordation or endorsement shall not affect the obligations of Borrower
or PR Borrower (as the case may be) to make a payment when due of any amount
owing hereunder or under such Note.
(c) Borrower and PR Borrower hereby designate Administrative Agent to serve
as their agent, solely for purposes of this Section 2.08, to maintain a register
(the "Register") on which it will record the name and address of each Lender,
the Commitment from time to time of each of the Lenders, the principal amount of
the Loans made by each of the Lenders and each repayment in respect of the
principal amount of the Loans of each Lender. Failure to make any such
recordation or any error in such recordation shall not affect Borrower's or PR
Borrower's obligations in respect of such Loans. The entries in the Register
shall be conclusive, in the absence of manifest error, and Borrower, PR
Borrower, Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Credit Documents, notwithstanding any notice to the contrary. The Register shall
be available for inspection by Borrower, PR Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
2.09. Optional Prepayments and Conversions or Continuations of Loans.
Subject to Section 4.04, Borrower and PR Borrower shall have the right to prepay
Loans, or to Convert Loans of one Type into Loans of another Type or to Continue
Loans of one Type as Loans of the same Type, at any time or from time to time to
be applied as specified by Borrower or PR Borrower, as applicable, and in
accordance with all the terms in this Section 2.09; provided, however, that: (a)
Borrower or PR Borrower, as applicable, shall give Administrative Agent notice
of each such prepayment, Conversion or Continuation as provided in Section 4.05
(and, upon the date specified in any such notice of prepayment, the amount to be
prepaid shall become due and payable hereunder); (b) if LIBOR Loans are prepaid
or Converted other than on the last day of an Interest Period for such Loans,
Borrower or PR Borrower, as applicable, shall at such time pay all expenses and
costs required by Section 5.05; and (c) prepayments of the Term Loans pursuant
to this Section 2.09 shall be applied (i) at the sole election and option of
Borrower or PR Borrower, as applicable, in an amount not to exceed the then
current available Prepayment Designation Basket in any manner among the Term
Loan Tranches and the remaining Amortization Payments thereof as Borrower shall
designate in an Officers' Certificate delivered to Administrative Agent; and
(ii) unless applied in accordance with the foregoing subclause, pro rata among
the Term Loan Tranches based upon the remaining unpaid amounts thereof and as to
the remaining Amortization Payments of each such Term Loan Tranche in any manner
that Borrower shall designate in an Officers' Certificate delivered to
Administrative Agent. Each prepayment made pursuant to this Section 2.09 of the
Tranche B-PR Term Loans or the Tranche C-PR Term Loans made on or prior to the
third anniversary of the Original Closing Date shall be accompanied by a premium
payment in cash of 1% of the aggregate principal amount of such Loan prepaid.
Any prepayment of the Tranche B-PR Term Loans or the Tranche C-PR Term Loans
made in connection with any refinancing of the Loans shall be deemed an optional
prepayment under this Section 2.09 and not a mandatory prepayment of the Term
Loans under Section 2.10.
Notwithstanding the foregoing, in the event that Borrower elects (in its
sole discretion) to provide the option (the "Option") to any of the holders of
Tranche B-PR Term Loans and Tranche C-PR Term Loans to elect (in the absolute
and sole discretion of such holders) not to have all or any part of any
voluntary prepayments applied to such Lender's Tranche B-PR Term Loans or
Tranche C-PR Term Loans, as the case may be, Borrower shall provide written
notice of the Option with respect to such voluntary prepayment at least five
Business Days prior to such voluntary prepayment to Administrative Agent and all
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holders of Tranche B-PR Term Loans and Tranche C-PR Term Loans. Any such holder
may elect to accept such Option (in whole or in part) on or prior to the
Business Day prior to the date of such prepayment. Any such holder who shall not
have provided written acceptance thereof to Administrative Agent on or prior to
the Business Day prior to the date of such prepayment shall be deemed to have
declined such Option. Any amount of such voluntary prepayment so declined
pursuant to the Option shall be applied (i) first, pro rata between the Tranche
A Term Loans and the Tranche A-PR Term Loans and, as to any such Term Loan
Tranche, to the remaining Amortization Payments thereof in any manner that
Borrower shall designate in an Officers' Certificate delivered to Administrative
Agent; and (ii) second, to the extent that no Tranche A Term Loans or Tranche
A-PR Term Loans are outstanding after giving effect to the application required
by the previous clause (i), pro rata between Tranche B-PR Term Loans and Tranche
C-PR Term Loans (based upon the remaining unpaid principal amounts thereof) of
the holders thereof who had not declined prepayment, and, as to any such Term
Loan Tranche, to the remaining Amortization Payments thereunder in any manner
that Borrower shall designate in an Officers' Certificate delivered to
Administrative Agent.
Notwithstanding the foregoing, and without limiting the rights and remedies
of the Lenders under Section 10, in the event that any Event of Default shall
have occurred and be continuing, Administrative Agent may (and at the request of
the Majority Lenders shall) suspend the right of Borrower to Convert any Loan
into a LIBOR Loan, or to Continue any Loan as a LIBOR Loan, in which event all
Loans shall be Converted (on the last day(s) of the respective Interest Periods
therefor) or Continued, as the case may be, as ABR Loans.
Each notice of Conversion or Continuation shall be substantially in the
form of Exhibit H.
2.10. Mandatory Prepayments. (a) Borrower shall prepay the Loans as follows
(each such prepayment to be effected in each case in the manner, order and to
the extent specified in subsection (b) below of this Section 2.10):
(i) Casualty Events. Within one Business Day after any Company receives any
Net Available Proceeds from any Casualty Event, in an aggregate principal amount
equal to 100% of such Net Available Proceeds; provided, however, that
(w) if no Event of Default then exists or would arise therefrom, the
Net Available Proceeds thereof shall not be required to be so applied on
such date to the extent that Borrower has delivered an Officers'
Certificate to Administrative Agent on or prior to such date stating that
such proceeds shall be used to fund the acquisition or construction of
Property used, usable or useful in the business of Borrower and the
Subsidiaries or repair, replace or restore the Property in respect of which
such Casualty Event has occurred, in each case within one year following
the date of the receipt of such Net Available Proceeds, and
(x) if all or any portion of such Net Available Proceeds not required
to be applied to the prepayment of Loans pursuant to the preceding proviso
(w) is not so used within one year after the date of the receipt of such
Net Available Proceeds, such remaining portion shall be applied on the last
day of such period as specified in Section 2.10(b).
(ii) Equity Issuance. Except with respect to the first $125.0 million of
Net Available Proceeds received from Equity Issuances after the Effectiveness
Date, in an aggregate principal amount equal to 50% of the Net Available
Proceeds of all Equity Issuances after the Effectiveness Date.
(iii) Debt Issuance. Upon any Debt Issuance after the Effectiveness Date,
in an aggregate principal amount equal to 100% of the Net Available Proceeds of
such Debt Issuance.
(iv) Disposition Events. Within one Business Day after receipt by any
Company of any Net Available Proceeds from any Disposition Event, in an
aggregate principal amount equal to 100% of the Net Available/Proceeds from such
Disposition Event; provided, however, that
(x) the Net Available Proceeds from any Disposition Event permitted by
Section 9.06(g), (p) or (q) shall not be required to be applied as provided
herein on such date if (1) no Event of Default then exists or would arise
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therefrom, and (2) Borrower delivers an Officers' Certificate to
Administrative Agent on or prior to such date stating that such Net
Available Proceeds shall be reinvested in Property usable or useful in the
business of Borrower or any Subsidiary, in each case within one year
following the date of such Disposition Event (which certificate shall set
forth the estimates of the proceeds to be so expended) (provided, that with
respect to any Disposition of or by a Qualified Subsidiary, such Net
Available Proceeds may only be reinvested in an Obligor or shall be counted
against and be subject to the applicable limits set forth in Sections 9.06
and 9.09), and
(y) if all or any portion of such Net Available Proceeds which are
permitted to be applied to reinvestment pursuant to the terms of this
Section 2.10(a)(iv) is not so used within such one year period, such
remaining portion shall be applied on the last day of such period (or such
earlier date as Borrower determines not to reinvest any portion thereof) as
specified in Section 2.10(b) (it being understood that the foregoing shall
in no way affect the obligation of any Company to obtain the consent of the
Majority Lenders if required pursuant to this Agreement to effect any
Disposition).
(v) Excess Cash Flow. Not later than 95 days after the end of each
fiscal year of Borrower commencing with the fiscal year ended May 31, 2001,
in an aggregate principal amount equal to (A) 75% of Excess Cash Flow for
such fiscal year when the Total Leverage Ratio at the end of such fiscal
year is greater than or equal to 6.0:1.0 (as evidenced in an Officers'
Certificate delivered to Administrative Agent and the Lenders), and (B) 50%
of Excess Cash Flow for any such fiscal year when the Total Leverage Ratio
at the end of such fiscal year is less than 6.0:1.0 (as evidenced in an
Officers' Certificate delivered to Administrative Agent and the Lenders).
(b) Application. The amount of any required prepayments described in
Section 2.10(a) shall be applied as follows:
(i) first, the amount of the required prepayment shall be applied (A)
at the option of Borrower or PR Borrower, as applicable, in an amount not
to exceed the then current available Prepayment Designation Basket, in any
manner among the Term Loan Tranches and the remaining Amortization Payments
thereof as Borrower shall designate in an Officers' Certificate delivered
to Administrative Agent; and (B) unless applied in accordance with the
foregoing subclause (A), to the reduction of Amortization Payments on the
Term Loans required by Section 3.01(b) pro rata among the Term Loan
Tranches based upon the remaining unpaid amounts thereof and pro rata to
the remaining Amortization Payments of such Term Loan Tranche based on the
remaining unpaid amounts thereof; provided, however that any amounts
required to be applied to the payment of Loans pursuant to this clause (B)
from any prepayment made pursuant to Section 2.10(a)(v) shall be applied to
the remaining Amortization Payments of each Term Loan Tranche in the direct
order thereof. Notwithstanding the foregoing, any holder of Tranche B-PR
Term Loans or Tranche C-PR Term Loans at its sole discretion may, with
respect to any mandatory prepayment to be applied as set forth in clause
(B) above, so long as any Tranche A Term Loans or Tranche A-PR Term Loans
are then outstanding (after giving effect to the application of such
required prepayment to the Tranche A Term Loans and Tranche A-PR Term
Loans), elect by written notice provided to Administrative Agent not to
have all or any amount of any such required prepayments applied to such
holder's Tranche B-PR Term Loans or Tranche C-PR Term Loans, as the case
may be, in which case the aggregate amount so declined shall be applied pro
rata between the Tranche A Term Loans and the Tranche A-PR Term Loans and,
as to any such Term Loan Tranche, pro rata to the remaining Amortization
Payments thereof (or, in the case of prepayments made pursuant to Section
2.10(a)(v), in the direct order thereof); provided, however, that to the
extent that the aggregate principal amount of the Tranche A Term Loans and
Tranche A-PR Term Loans after giving effect to such mandatory prepayment is
less than the aggregate amount so declined by the holders of the Tranche
B-PR Term Loans and Tranche C-PR Term Loans, such amount so declined shall
be allocated between the declining holders of the Tranche B-PR Term Loans
and Tranche C-PR Term Loans pro rata based on the remaining aggregate
amount of their amounts declined;
(ii) second, after such time as no Term Loans remain outstanding,
Revolving Credit Commitments shall be permanently reduced (at the same time
that the prepayment of the Term Loans would have been made and assuming an
42
<PAGE>
unlimited amount thereof then outstanding) pro rata in an amount equal to
the remaining amount of any such required prepayment that would have been
applied to the Term Loans (assuming an unlimited amount thereof then
outstanding) and to the extent that, after giving effect to such reduction,
the aggregate principal amount of Revolving Credit Loans, plus the
aggregate principal amount of Swing Loans, plus the aggregate amount of all
Letter of Credit Liabilities would exceed the Revolving Credit Commitments,
Borrower or PR Borrower shall, first, prepay outstanding Revolving Credit
Loans and second, prepay outstanding Swing Loans and, third, provide cover
for Letter of Credit Liabilities as specified in Section 2.10(d), in an
aggregate amount equal to such excess; and
(iii) third, after application of prepayments in accordance with
clauses (i) and (ii) above, Borrower or PR Borrower shall be permitted to
retain any such remaining excess.
Notwithstanding the foregoing, if the amount of any prepayment of Loans
required under this Section 2.10 shall be in excess of the amount of the ABR
Loans at the time outstanding, only the portion of the amount of such prepayment
as is equal to the amount of such outstanding ABR Loans shall be immediately
prepaid and, at the election of Borrower or PR Borrower, the balance of such
required prepayment shall be either (i) deposited in the Collateral Account and
applied to the prepayment of LIBOR Loans on the last day of the then
next-expiring Interest Period for LIBOR Loans (with all interest accruing
thereon for the account of Borrower or PR Borrower, as applicable) or (ii)
prepaid immediately, together with any amounts owing to the Lenders under
Section 5.05. Notwithstanding any such deposit in the Collateral Account,
interest shall continue to accrue on such Loans until prepayment.
(c) Revolving Credit Extension Reductions. Until the Revolving Credit
Commitment Termination Date, Borrower and PR Borrower, as applicable, shall from
time to time immediately prepay the Swing Loans and the Revolving Credit Loans
(and/or provide cover for Letter of Credit Liabilities as specified in Section
2.10(d)) in such amounts as shall be necessary so that at all times the
aggregate outstanding amount of the Revolving Credit Loans, plus the aggregate
outstanding amount of Swing Loans, plus the aggregate outstanding Letter of
Credit Liabilities shall not exceed the Revolving Credit Commitments as in
effect at such time, such amount to be applied, first, to the Swing Loans,
second, to Revolving Credit Loans outstanding and, third, as cover for Letter of
Credit Liabilities outstanding as specified in Section 2.10(d).
(d) Cover for Letter of Credit Liabilities. In the event that Borrower or
PR Borrower shall be required pursuant to this Section 2.10 to provide cover for
Letter of Credit Liabilities, Borrower shall effect the same by paying to
Administrative Agent immediately available funds in an amount equal to the
required amount, which funds shall be retained by Administrative Agent in the
Collateral Account (as provided in the Security Agreement as collateral security
in the first instance for the Letter of Credit Liabilities) until such time as
all Letters of Credit shall have been terminated and all of the Letter of Credit
Liabilities paid in full.
2.11. Replacement of Lenders. Borrower shall have the right, if no Default
then exists, to replace any Lender (the "Replaced Lender") with one or more
other Eligible Persons reasonably acceptable to Co-Syndication Agents
(collectively, the "Replacement Lender") if (x) such Lender is charging Borrower
increased costs pursuant to Section 5.01 or 5.06 in excess of those being
charged generally by the other Lenders or such Lender becomes incapable of
making LIBOR Loans as provided in Section 5.03 and/or (y) as provided in Section
12.04(ii), such Lender refuses to consent to certain proposed amendments,
waivers or modifications with respect to this Agreement; provided, however, that
(i) at the time of any replacement pursuant to this Section 2.11, the
Replacement Lender shall enter into one or more assignment agreements (and with
all fees payable pursuant to Section 12.06 to be paid by the Replacement Lender)
pursuant to which the Replacement Lender shall acquire all of the Commitments
and outstanding Loans of, and in each case Letter of Credit Interests by, the
Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender, an amount equal to the sum of (A) the principal of, and all accrued
interest on, all outstanding Loans of the Replaced Lender, (B) all Reimbursement
Obligations owing to such Replaced Lender, together with all then unpaid
interest with respect thereto at such time, and (C) all accrued, but theretofore
unpaid, fees owing to the Replaced Lender pursuant to Section 2.05, and (y) the
Issuing Lender an amount equal to such Replaced Lender's Revolving Credit
Commitment Percentage of any Reimbursement Obligations (which at such time
43
<PAGE>
remains a Reimbursement Obligation) to the extent such amount was not
theretofore funded by such Replaced Lender, and (ii) all obligations of Borrower
and PR Borrower owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid, but including any amounts which would
be paid to a Lender pursuant to Section 5.05 if Borrower or PR Borrower were
prepaying a LIBOR Loan) shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective
assignment agreement, the payment of amounts referred to in clauses (i) and (ii)
above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of Notes executed by Borrower, or PR Borrower, as the case
may be, the Replacement Lender shall become a Lender hereunder and the Replaced
Lender shall cease to constitute a Lender hereunder and be released of all its
obligations as a Lender, except with respect to indemnification provisions
applicable to the Replaced Lender under this Agreement, which shall survive as
to such Replaced Lender.
Section 3. Payments of Principal and Interest.
3.01. Repayment of Loans.
(a) Revolving Credit and Swing Loans. Each of Borrower and PR Borrower
hereby promises to pay to Administrative Agent for the account of each Lender
the entire outstanding principal amount of such Lender's Revolving Credit Loans
made to Borrower or PR Borrower, as the case may be, and each Revolving Credit
Loan shall mature, on the Revolving Credit Commitment Termination Date. Borrower
hereby promises to pay the Swing Loan Lender for its account the entire
outstanding principal amount of the Swing Loans, and the Swing Loans shall
mature, on the Swing Loan Maturity Date.
(b) (1) Tranche A Term Loans. Borrower hereby promises to pay to
Administrative Agent for the account of the Tranche A Term Loan Lenders, in
repayment of the principal of the Tranche A Term Loans, the amounts set forth on
the chart at the end of this Section 3.01 on the dates set forth on such chart
(subject to adjustment for any prepayments required by Section 2.10 to the
extent actually made).
(2) Tranche A-PR Term Loans. PR Borrower hereby promises to pay to
Administrative Agent for the account of the Tranche A-PR Term Loan Lenders, in
repayment of the principal of the Tranche A-PR Term Loans, the amounts set forth
on the chart at the end of this Section 3.01 on the dates set forth on such
chart (subject to adjustment for any prepayments required by Section 2.10 to the
extent actually made).
(3) Tranche B-PR Term Loans. PR Borrower hereby promises to pay to
Administrative Agent for the account of the Tranche B-PR Term Loan Lenders, in
repayment of the principal of the Tranche B-PR Term Loans, the amounts set forth
on the chart at the end of this Section 3.01 on the dates set forth on such
chart (subject to adjustment for any prepayments required by Section 2.10 to the
extent actually made).
(4) Tranche C-PR Term Loans. PR Borrower hereby promises to pay to
Administrative Agent for the account of the Tranche C-PR Term Loan Lenders, in
repayment of the principal of the Tranche C-PR Term Loans, the amounts set forth
on the chart at the end of this Section 3.01 on the dates set forth on such
chart (subject to adjustment for any prepayments required by Section 2.10 to the
extent actually made).
44
<PAGE>
AMORTIZATION PAYMENTS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TRANCHE
DATE* TRANCHE A A-PR TRANCHE B-PR TRANCHE C-PR
TERM LOANS TERM LOANS TERM LOANS TERM LOANS
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
May 2000 $ 0 $ 0 $ 812,500 $ 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
August 2000 0 0 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
November 2000 0 0 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
February 2001 0 0 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
May 2001 0 0 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
August 2001 0 0 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
November 2001 0 0 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
February 2002 8,125,000 3,125,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
May 2002 8,125,000 3,125,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
August 2002 8,125,000 3,125,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
November 2002 8,125,000 3,125,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
February 2003 12,187,500 4,687,500 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
May 2003 12,187,500 4,687,500 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
August 2003 12,187,500 4,687,500 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
November 2003 12,187,500 4,687,500 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
February 2004 16,250,000 6,250,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
May 2004 16,250,000 6,250,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
August 2004 16,250,000 6,250,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
November 2004 16,250,000 6,250,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
February 2005 20,312,500 7,812,500 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
May 2005 20,312,500 7,812,500 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
August 2005 20,312,500 7,812,500 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
November 2005 20,312,500 7,812,500 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
February 2006 24,375,000 9,375,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
May 2006 24,375,000 9,375,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
August 2006 24,375,000 9,375,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
November 2006 24,375,000 9,375,000 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
February 2007 812,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
May 2007 299,437,500 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
August 2007 562,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
November 2007 205,312,500
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
$325,000,000 $125,000,000 $322,187,500 $222,187,500
- ---------------------------------------------------------------------------------------------------------------
________________________
*Unless otherwise indicated, such date is the last Business Day of the specified month.
</TABLE>
3.02. Interest. (a) Each of Borrower and PR Borrower hereby promises to pay
to Administrative Agent for the account of each Lender interest on the unpaid
principal amount of each Loan made by such Lender to Borrower or PR Borrower, as
the case may be, for the period from and including the date of such Loan to but
excluding the date such Loan shall be paid in full at the following rates per
annum:
(i) during such periods as such Loan is an ABR Loan, the Alternate
Base Rate (as in effect from time to time), plus the Applicable Margin, and
(ii) during such periods as such Loan is a LIBOR Loan, for each
Interest Period relating thereto, the LIBOR Rate for such Loan for such
Interest Period, plus the Applicable Margin.
(b) Overdue principal and, to the extent permitted by law, overdue interest
in respect of each Loan and other overdue amounts owed by any Obligor under the
Credit Documents (including such interest accruing before and after judgment)
shall bear interest at a rate per annum equal to (x) in the case of principal of
any Loans, the rate which is 2% in excess of the rate then borne by such Loans
and (y) in the case of interest or such other amounts, the rate which is 2% in
excess of the rate otherwise applicable to ABR Loans which are Revolving Credit
Loans from time to time. Interest which accrues under this paragraph shall be
payable on demand.
45
<PAGE>
(c) Accrued interest on each Loan shall be payable (i) in the case of an
ABR Loan, quarterly on the Quarterly Dates, (ii) in the case of a LIBOR Loan, on
the last day of each Interest Period therefor and, if such Interest Period is
longer than three months, at three-month intervals following the first day of
such Interest Period and (iii) in the case of any LIBOR Loan, upon the payment
or prepayment thereof or the Conversion of such Loan to a Loan of another Type
(but only on the principal amount so paid, prepaid or Converted), except that
interest payable at the rate set forth in Section 3.02(b) shall be payable from
time to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, Administrative Agent shall give
notice thereof to the Lenders to which such interest is payable and to Borrower.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01. Payments. (a) Except to the extent otherwise provided herein, all
payments of principal, interest, Reimbursement Obligations and other amounts to
be made by Borrower and PR Borrower under this Agreement and the Notes, and,
except to the extent otherwise provided therein, all payments to be made by the
Obligors under any other Credit Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to
Administrative Agent at its account at the Principal Office, not later than
12:00 Noon New York City time on the date on which such payment shall become due
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding Business Day).
(b) Each of Borrower and PR Borrower shall, at the time of making each
payment under this Agreement or any Note for the account of any Lender, specify
(in accordance with Section 2.09 and 2.10, if applicable) to Administrative
Agent (which shall so notify the intended recipient(s) thereof) the Type of
Loans, Reimbursement Obligations or other amounts payable by Borrower or PR
Borrower hereunder to which such payment is to be applied (and in the event that
Borrower or PR Borrower fails to so specify, or if an Event of Default has
occurred and is continuing, Administrative Agent may distribute such payment to
the Lenders for application to the Obligations under the Credit Documents in
such manner as it or the Majority Lenders, subject to Section 4.02, may
determine to be appropriate).
(c) Except to the extent otherwise provided in the second sentence of
Section 2.03(g), each payment received by Administrative Agent or by Issuing
Lender (through Administrative Agent) under this Agreement or any Note for the
account of any Lender shall be paid by Administrative Agent or by Issuing Lender
(through Administrative Agent), as the case may be, to such Lender, in
immediately available funds, (x) if the payment was actually received by
Administrative Agent or by Issuing Lender (through Administrative Agent), as the
case may be, prior to 12:00 Noon (New York City time) on any day, on such day
and (y) if the payment was actually received by Administrative Agent or by
Issuing Lender (through Administrative Agent), as the case may be, after 12:00
Noon (New York City time) on any day, by 1:00 p.m. (New York City time) on the
following Business Day (it being understood that to the extent that any such
payment is not made in full by Administrative Agent or by Issuing Lender
(through Administrative Agent), as the case may be, Administrative Agent shall
pay to such Lender, upon demand, interest at the Federal Funds Rate from the
date such amount was required to be paid to such Lender pursuant to the
foregoing clauses until the date Administrative Agent pays such Lender the full
amount).
(d) If the due date of any payment under this Agreement or any Note would
otherwise fall on a day that is not a Business Day, such date shall be extended
to the next succeeding Business Day, and interest shall be payable for any
principal so extended for the period of such extension.
4.02. Pro Rata Treatment. Except to the extent otherwise provided herein:
(a) each borrowing of Loans of a particular Class from the Lenders under Section
2.01 shall be made from the relevant Lenders, each payment of commitment fee
under Section 2.05 in respect of Commitments of a particular Class shall be made
for account of the relevant Lenders, and each termination or reduction of the
amount of the Commitments of a particular Class under Section 2.04 or 2.10 shall
be applied to the respective Commitments of such Class of the relevant Lenders,
pro rata according to the amounts of their respective Commitments of such Class;
provided, however, that Swing Loans shall be made only by, and interest thereon
shall be paid by Borrower only to, the Swing Loan Lender (subject to such
Lender's obligation in respect of any participation therein purchased by the
other Revolving Credit Lenders as provided in Section 2.01(g)); (b) except as
otherwise provided in Section 5.04, LIBOR Loans of any Class having the same
Interest Period shall be allocated pro rata among the relevant Lenders according
to the amounts of their respective Revolving Credit and Term Loan Commitments
46
<PAGE>
(in the case of the making of Loans) or their respective Revolving Credit and
Term Loans (in the case of Conversions and Continuations of Loans); (c) each
payment or prepayment of principal of Revolving Credit Loans or Term Loans by
Borrower or PR Borrower shall be made for the account of the relevant Lenders
pro rata in accordance with the respective unpaid outstanding principal amounts
of the Loans of such class held by them; and (d) each payment of interest on
Revolving Credit Loans and Term Loans by Borrower or PR Borrower shall be made
for account of the relevant Lenders pro rata in accordance with the amounts of
interest on such Loans then due and payable to the respective Lenders.
4.03. Computations. Interest on LIBOR Loans, commitment fees and Letter of
Credit fees shall be computed on the basis of a year of 360 days and actual days
elapsed (including the first day but excluding the last day) occurring in the
period for which such amounts are payable and interest on ABR Loans and
Reimbursement Obligations shall be computed on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which such amounts are
payable. Notwithstanding the foregoing, for each day that the Alternate Base
Rate is calculated by reference to the Federal Funds Rate, interest on ABR Loans
and Reimbursement Obligations shall be computed on the basis of a year of 360
days and actual days elapsed (including the first day but excluding the last
day).
4.04. Minimum Amounts. Except for mandatory prepayments made pursuant to
Section 2.10 and Conversions or prepayments made pursuant to Section 5.04, each
borrowing, Conversion and prepayment of principal of Loans (other than Swing
Loans, for which the minimum amounts thereof are in Section 2.01(g)) shall be in
an amount at least equal to $1.0 million with respect to ABR Loans and $1.0
million with respect to LIBOR Loans and in multiples of $100,000 in excess
thereof (borrowings, Conversions or prepayments of or into Loans of different
Types or, in the case of LIBOR Loans, having different Interest Periods at the
same time hereunder to be deemed separate borrowings, Conversions and
prepayments for purposes of the foregoing, one for each Type or Interest
Period). Anything in this Agreement to the contrary notwithstanding, the
aggregate principal amount of LIBOR Loans having the same Interest Period shall
be in an amount at least equal to $1.0 million and in multiples of $100,000 in
excess thereof and, if any LIBOR Loans or portions thereof would otherwise be in
a lesser principal amount for any period, such Loans or portions, as the case
may be, shall be ABR Loans during such period.
4.05. Certain Notices. Notices by Borrower or PR Borrower to Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans and of Classes of
Loans, of Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by Administrative Agent by
telephone not later than 11:00 a.m. New York City time (promptly followed by
written notice via telecopier) on the number of Business Days prior to the date
of the relevant termination, reduction, borrowing, Conversion, Continuation or
prepayment or the first day of such Interest Period specified in the table below
(and not later than 11:00 a.m. New York City time on the Business Day of the
borrowing or prepayment in the case of Swing Loans).
<TABLE>
<CAPTION>
NOTICE PERIODS
- ---------------------------------------------------------- --------------------------------------------------------
<S> <C>
Notice Number of Business Days Prior
- ---------------------------------------------------------- --------------------------------------------------------
- ---------------------------------------------------------- --------------------------------------------------------
Termination or reduction of Commitments 2
- ---------------------------------------------------------- --------------------------------------------------------
- ---------------------------------------------------------- --------------------------------------------------------
Borrowing or optional prepayment of, or Conversions
into, ABR Loans (other than Swing Loans) 1
- ---------------------------------------------------------- --------------------------------------------------------
- ---------------------------------------------------------- --------------------------------------------------------
Borrowing or optional prepayment of, Conversions into,
Continuations as, or duration of Interest Periods for,
LIBOR Loans 3
- ---------------------------------------------------------- --------------------------------------------------------
</TABLE>
47
<PAGE>
Each such notice of termination or reduction shall specify the amount and
the Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or prepayment shall specify the Class of
Loans to be borrowed, Converted, Continued or prepaid and the amount (subject to
Section 4.04) and Type of each Loan to be borrowed, Converted, Continued or
prepaid and the date of borrowing, Conversion, Continuation or prepayment (which
shall be a Business Day). Each such notice of the duration of an Interest Period
shall specify the Loans to which such Interest Period is to relate.
Administrative Agent shall promptly notify the Lenders of the contents of each
such notice. In the event that Borrower or PR Borrower fails to select the Type
of Loan, or the duration of any Interest Period for any LIBOR Loan, within the
time period and otherwise as provided in this Section 4.05, such Loan (if
outstanding as a LIBOR Loan) will be automatically Converted into an ABR Loan on
the last day of the then current Interest Period for such Loan or (if
outstanding as an ABR Loan) will remain as, or (if not then outstanding) will be
made as, an ABR Loan.
4.06. Non-Receipt of Funds by Administrative Agent. Unless Administrative
Agent shall have received written notice from a Lender, Borrower or PR Borrower
(the "Payor") prior to the date on which the Payor is to make payment to
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or a payment to Administrative Agent for the
account of one or more of the Lenders hereunder (such payment being herein
called the "Required Payment"), which notice shall be effective upon receipt,
that the Payor does not intend to make the Required Payment to Administrative
Agent, Administrative Agent may assume that the Required Payment has been made
and may, in reliance upon such assumption (but shall not be required to), make
the amount thereof available to the intended recipient(s) on such date; and, if
the Payor has not in fact made the Required Payment to Administrative Agent, the
recipient(s) of such payment shall, on demand, repay to Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date (the "Advance Date") such amount was so
made available by Administrative Agent until the date Administrative Agent
recovers such amount at a rate per annum equal to the Federal Funds Rate for
such day and, if such recipient(s) shall fail promptly to make such payment,
Administrative Agent shall be entitled to recover such amount, on demand, from
the Payor, together with interest as aforesaid; provided, however, that if
neither the recipient(s) nor the Payor shall return the Required Payment to
Administrative Agent within three Business Days of the date such demand was
made, then, retroactively to the Advance Date, the Payor and the recipient(s)
shall each be obligated to pay interest on the Required Payment as follows
(without double recovery):
(i) if the Required Payment shall represent a payment to be made by
Borrower or PR Borrower to the Lenders, Borrower or PR Borrower, as
applicable, and the recipient(s) shall each be obligated retroactively to
the Advance Date to pay interest in respect of the Required Payment at the
rate set forth in Section 3.02(b) (without duplication of the obligation of
Borrower under Section 3.02 to pay interest on the Required Payment at the
rate set forth in Section 3.02(b)), it being understood that the return by
the recipient(s) of the Required Payment to Administrative Agent shall not
limit such obligation of Borrower or PR Borrower, as applicable, under
Section 3.02 to pay interest at the rate set forth in Section 3.02(b) in
respect of the Required Payment and
(ii) if the Required Payment shall represent proceeds of a Loan to be
made by the Lenders to Borrower or PR Borrower, the Payor, Borrower or PR
Borrower, as applicable, shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required Payment pursuant to
Section 3.02, it being understood that the return by Borrower or PR
Borrower, as applicable, of the Required Payment to Administrative Agent
shall not limit any claim Borrower or PR Borrower may have against the
Payor in respect of such Required Payment.
4.07. Right of Setoff; Sharing of Payments; Etc. (a) If any Event of
Default shall have occurred and be continuing, each Obligor agrees that, in
addition to (and without limitation of) any right of setoff, banker's lien or
counterclaim a Lender may otherwise have, each Lender shall be entitled, at its
option (to the fullest extent permitted by law), to set off and apply any
deposit (general or special, time or demand, provisional or final), or other
indebtedness, held by it for the credit or account of such Obligor at any of its
offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans, Reimbursement Obligations or any other
amount payable to such Lender hereunder that is not paid when due (regardless of
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whether such deposit or other indebtedness is then due to such Obligor), in
which case it shall promptly notify such Obligor and Administrative Agent
thereof; provided, however, that such Lender's failure to give such notice shall
not affect the validity thereof.
(b) Each of the Lenders agrees that, if it should receive (other than
pursuant to Section 5) any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right of setoff or banker's
lien, by counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise) which is applicable to the payment of the
principal of, or interest on, the Loans, Reimbursement Obligations or fees, the
sum of which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such amounts then owed and due to
such Lender bears to the total of such amounts then owed and due to all of the
Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Obligor to such
Lenders in such amount as shall result in a proportional participation by all of
the Lenders in such amount; provided, however, that if all or any portion of
such excess amount is thereafter recovered from such Lender, such purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest. Each of Borrower and PR Borrower consents to the foregoing
arrangements.
(c) Each of Borrower and PR Borrower agrees that any Lender so purchasing
such a participation may exercise all rights of setoff, banker's lien,
counterclaim or similar rights with respect to such participation as fully as if
such Lender were a direct holder of Loans or other amounts (as the case may be)
owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such
right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other Indebtedness or
obligation of any Obligor. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01. Additional Costs. (a) If the adoption of, or any change in, in each
case after the date hereof, any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority or the NAIC made subsequent to the date hereof:
(i) shall subject any Lender or Issuing Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of Credit
or any Lender's participation therein, any Letter of Credit Document or any
Loan made by it or change the basis of taxation of payments to such Lender
in respect thereof by any Governmental Authority (except for taxes covered
by or expressly excluded from coverage by Section 5.06 and changes in the
rate of tax on the overall net income of such Lender or its Applicable
Lending Office, or any affiliate thereof or franchise tax by any
Governmental Authority);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender or Issuing Lender which is not otherwise included in
the determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender or Issuing Lender any other
condition (excluding taxes);
and the result of any of the foregoing is to increase the cost to such Lender or
Issuing Lender, by an amount which such Lender or Issuing Lender deems to be
material, of making, converting into, continuing or maintaining LIBOR Loans or
issuing or participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof then, in any such case, Borrower shall promptly pay
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such Lender or Issuing Lender, upon its written demand, any additional amounts
necessary to compensate such Lender or Issuing Lender for such increased cost or
reduced amount receivable. If any Lender or Issuing Lender becomes entitled to
claim any additional amounts pursuant to this subsection, it shall promptly
notify Borrower, through Administrative Agent, of the event by reason of which
it has become so entitled. A certificate as to any additional amounts setting
forth the calculation of such additional amounts pursuant to this Section 5.01
submitted by such Lender or Issuing Lender, through Administrative Agent, to
Borrower shall be conclusive in the absence of clearly demonstrable error.
Without limiting the survival of any other covenant hereunder, this Section 5.01
shall survive the termination of this Agreement and the payment of the Notes and
all other amounts payable hereunder.
(b) In the event that any Lender or Issuing Lender shall have determined
that the adoption after the date hereof of any law, rule, regulation or
guideline regarding capital adequacy (or any change after the date hereof
therein or in the interpretation or application thereof) or compliance by any
Lender or Issuing Lender or any corporation controlling such Lender or Issuing
Lender with any request or directive regarding capital adequacy (whether or not
having the force of law) from any central bank or Governmental Authority or the
NAIC, in each case, made subsequent to the date hereof including, without
limitation, the issuance after the date hereof of any final rule, regulation or
guideline, does or shall have the effect of reducing the rate of return on such
Lender's or Issuing Lender's or such corporation's capital as a consequence of
its obligations hereunder or under any Letter of Credit to a level below that
which such Lender or Issuing Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or Issuing Lender's or such corporation's policies with respect to capital
adequacy) by an amount deemed by such Lender or Issuing Lender to be material,
then from time to time, after submission by such Lender or Issuing Lender to
Borrower (with a copy to Administrative Agent) of a written request therefor,
Borrower shall promptly pay to such Lender or Issuing Lender such additional
amount or amounts as will compensate such Lender or Issuing Lender for such
reduction.
(c) PR Borrower shall reimburse Borrower for any amounts paid under Section
5.01 which are attributable to extensions of credit made to PR Borrower
hereunder.
5.02. Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any LIBOR Base Rate for
any Interest Period:
(i) Administrative Agent determines, which determination shall be
conclusive, absent manifest error, that quotations of interest rates for
the relevant deposits referred to in the definition of "LIBOR Base Rate" in
Section 1.01 are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for LIBOR
Loans as provided herein; or
(ii) if the related Loans are Revolving Credit Loans, the Majority
Revolving Credit Lenders or, if the related Loans are Tranche A Term Loans,
the Majority Tranche A Term Loan Lenders or, if the related Loans are
Tranche A-PR Term Loans, the Majority Tranche A-PR Term Loan Lenders or, if
the related Loans are Tranche B-PR Term Loans, the Majority Tranche B-PR
Term Loan Lenders or, if the related Loans are Tranche C-PR Term Loans, the
Majority Tranche C-PR Term Loan Lenders determine, which determination
shall be conclusive, that the relevant rates of interest referred to in the
definition of "LIBOR Base Rate" in Section 1.01 upon the basis of which the
rate of interest for LIBOR Loans for such Interest Period is to be
determined are not likely adequate to cover the cost to the applicable
Lenders of making or maintaining LIBOR Loans for such Interest Period,
then Administrative Agent shall give Borrower, PR Borrower and each Lender
prompt notice thereof, and so long as such condition remains in effect, the
affected Lenders shall be under no obligation to make additional LIBOR Loans
(but shall make their portion of any additional Borrowings as ABR Loans), to
Continue LIBOR Loans or to Convert ABR Loans into LIBOR Loans and Borrower and
PR Borrower shall, on the last day(s) of the then current Interest Period(s) for
the outstanding LIBOR Loans, either prepay such Loans of such affected Lenders
or Convert such Loans of such affected Lenders into ABR Loans in accordance with
Section 2.09.
5.03. Illegality. Notwithstanding any other provision of this Agreement, in
the event that any change after the date hereof in any Requirement of Law or in
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the interpretation or application thereof shall make it unlawful for any Lender
or Issuing Lender or its Applicable Lending Office to honor its obligation to
make or maintain LIBOR Loans or issue Letters of Credit hereunder (and, in the
sole opinion of such Lender or Issuing Lender, the designation of a different
Applicable Lending Office would either not avoid such unlawfulness or would be
disadvantageous to such Lender or Issuing Lender), then such Lender or Issuing
Lender shall promptly notify Borrower and PR Borrower thereof (with a copy to
Administrative Agent) and such Lender's or Issuing Lender's obligation to make
or Continue, or to Convert Loans of any other Type into, LIBOR Loans or issue
Letters of Credit shall be suspended until such time as such Lender or Issuing
Lender may again make and maintain LIBOR Loans or issue Letters of Credit (in
which case the provisions of Section 5.04 shall be applicable).
5.04. Treatment of Affected Loans. If the obligation of any Lender to make
LIBOR Loans or to Continue, or to Convert ABR Loans into, LIBOR Loans shall be
suspended pursuant to Section 5.03, such Lender's LIBOR Loans shall be
automatically Converted into ABR Loans on the last day(s) of the then current
Interest Period(s) for such LIBOR Loans (or on such earlier date as such Lender
may specify to Borrower or PR Borrower with a copy to Administrative Agent as is
required by law) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 5.03 which gave rise to such
Conversion no longer exist:
(i) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal which would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its ABR
Loans; and
(ii) all Loans which would otherwise be made or Continued by such
Lender as LIBOR Loans shall be made or Continued instead as ABR Loans and
all ABR Loans of such Lender which would otherwise be Converted into LIBOR
Loans shall remain as ABR Loans.
If such Lender gives notice to Borrower or PR Borrower with a copy to
Administrative Agent that the circumstances specified in Section 5.03 which gave
rise to the Conversion of such Lender's LIBOR Loans pursuant to this Section
5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when LIBOR Loans are outstanding, such
Lender's ABR Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding LIBOR Loans and by such Lender are held pro rata (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
5.05. Compensation. (a) Borrower and PR Borrower agree to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (1) default by Borrower or PR
Borrower in payment when due of the principal amount of or interest on any LIBOR
Loan, (2) default by Borrower or PR Borrower in making a borrowing of,
Conversion into or Continuation of LIBOR Loans after Borrower or PR Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (3) default by Borrower or PR Borrower in making any prepayment after
Borrower or PR Borrower has given a notice thereof in accordance with the
provisions of this Agreement, or (4) the making of a payment or a prepayment of
LIBOR Loans on a day which is not the last day of an Interest Period with
respect thereto, including in each case, any such loss (including loss of margin
but not the Applicable Margin) or expense arising from the reemployment of funds
obtained by it or from fees payable to terminate the deposits from which such
funds were obtained.
(b) For the purpose of calculation of all amounts payable to a Lender under
this Section 5.05 each Lender shall be deemed to have actually funded its
relevant LIBOR Loan through the purchase of a deposit bearing interest at the
LIBOR Rate in an amount equal to the amount of the LIBOR Loan and having a
maturity comparable to the relevant Interest Period; provided, however, that
each Lender may fund each of its LIBOR Loans in any manner it sees fit, and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under this subsection. Any Lender requesting compensation pursuant to
this Section 5.05 will furnish to Administrative Agent, Borrower and PR Borrower
a certificate setting forth the basis and amount of such request and such
certificate, absent manifest error, shall be conclusive. Without limiting the
survival of any other covenant hereunder, this covenant shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
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5.06. Net Payments. (a) All payments made by any Obligor hereunder or under
any Note or any Guarantee will be made without setoff, counterclaim or other
defense. Except as provided in Section 5.06(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future Taxes now or hereafter imposed by any Governmental Authority or by any
political subdivision or taxing authority thereof or therein with respect to
such payments (but excluding any Excluded Tax) and all interest, penalties or
similar liabilities with respect thereto (all such Taxes (other than Excluded
Taxes) being referred to collectively as "Covered Taxes"). If any Covered Taxes
are so levied or imposed, each Obligor agrees on a joint and several basis to
pay the full amount of such Covered Taxes, and such additional amounts as may be
necessary so that every payment of all amounts due under this Agreement, the
Guarantees or under any Note, after withholding or deduction for or on account
of any Covered Taxes, will not be less than the amount provided for herein or in
such Note. If any amounts are payable in respect of Covered Taxes pursuant to
the preceding sentence, each Obligor agrees, notwithstanding the definition of
Excluded Taxes, to reimburse on a joint and several basis each Lender, upon the
written request of such Lender, (i) for Taxes imposed on or measured by the net
income or net profits of such Lender pursuant to the laws of the jurisdiction in
which such Lender is organized or in which the principal office or Applicable
Lending Office of such Lender is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction by reason of the making
of payments in respect of Covered Taxes pursuant to this Section (including
pursuant to this sentence) and (ii) for any withholding of Taxes as such Lender
shall determine are payable by, or withheld from, such Lender in respect of
amounts paid in respect of Covered Taxes to or on behalf of such Lender pursuant
to the preceding sentence and in respect of any amounts paid to or on behalf of
such Lender pursuant to this sentence. Each Obligor will furnish to
Administrative Agent within 45 days after the date the payment of any Covered
Taxes is due pursuant to applicable law certified copies of tax receipts or
other documentation reasonably satisfactory to such Lender evidencing such
payment by such Obligor. The Obligors agree to jointly and severally indemnify
and hold harmless each Lender, and reimburse such Lender upon its written
request, for the amount of any Covered Taxes so levied or imposed and paid by
such Lender and any liability (including penalties, additions to tax, interest
and expenses) arising therefrom or with respect thereto.
"Excluded Taxes" shall mean other than as provided in the fourth sentence
of the first paragraph of this Section 5.06(a), any Tax (other than any Other
Taxes) (i) imposed on or measured by the net income or net profits of a Lender
pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or Applicable Lending Office of such
Lender is located or any jurisdiction in which such Lender conducts business or
any subdivision thereof or therein and (ii) imposed on any Lender in the nature
of franchise taxes or other similar taxes imposed as a result of such Lender
doing business in a particular jurisdiction.
(b) Each Lender that is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) (a "Non-U.S. Lender") agrees to deliver to
Borrower and Administrative Agent on or prior to the Closing Date or, in the
case of a Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Section 12.06 (unless the respective Lender was already a
Lender hereunder immediately prior to such assignment or transfer), on the date
of such assignment or transfer to such Lender, (i) two accurate and complete
original signed copies of Internal Revenue Service Form 4224 or 1001 (or
successor forms) certifying to such Lender's entitlement to a complete exemption
from United States withholding tax with respect to payments to be made under
this Agreement and under any Note (or, with respect to any assignee Lender, at
least as extensive as the assigning Lender), or (ii) if the Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver
either Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above,
(x) a certificate substantially in the form of Exhibit J (any such certificate,
a "Section 5.06 Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Lender's entitlement to a complete exemption from United States withholding
tax with respect to payments to be made under this Agreement and under any Note
(or, with respect to any assignee Lender, at least as extensive as the assigning
Lender). In addition, each Lender agrees that from time to time after the
Closing Date, when a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material respect, it will
deliver to Borrower and Administrative Agent two new accurate and complete
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original signed copies of Internal Revenue Service Form 4224 or 1001, or Form
W-8 and a Section 5.06 Certificate, as the case may be, and such other forms as
may be required in order to confirm or establish the entitlement of such Lender
to a continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify Borrower and Administrative Agent of its inability to deliver any such
Form or Certificate, in which case such Lender shall not be required to deliver
any such form or certificate pursuant to this Section 5.06(b) for so long as
such payments may be made from United States withholding tax. Notwithstanding
the foregoing, no Lender shall be required to deliver any such form or
certificate if a change in treaty, law or regulation has occurred prior to the
date on which such delivery would otherwise be required that renders any such
form or certificate inapplicable or would prevent the Lender from duly
completing and delivering any such form or certificate with respect to it and
such Lender so advises Borrower. No Obligor shall be required to indemnify any
Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in
respect of any Covered Taxes to the extent that (i) the obligation to pay such
Covered Taxes would not have arisen but for a failure by such Non-U.S. Lender to
comply with the provisions of this Section 5.06(b) or (ii) if the Internal
Revenue Service properly determines that a Lender is a "conduit entity"
participating in a "conduit financing arrangement" within the meaning of
Treasury Regulation Section 1.881-3 and such additional amounts are in excess of
the amounts that would otherwise have been payable had such Lender not been a
"conduit entity" participating in a "conduit financing arrangement" within the
meaning of Treasury Regulation Section 1.881-3. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 5.06
and except as set forth in Section 12.06(b), each of Borrower and PR Borrower
agrees to pay additional amounts and to indemnify each Lender in the manner set
forth in Section 5.06(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any amounts deducted or
withheld by it as described in the immediately preceding sentence as a result of
any changes after the Original Closing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar Covered
Taxes.
(c) In addition, Borrower and PR Borrower agree to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(d) Any Lender claiming any additional amounts payable pursuant to this
Section 5.06 agrees to use (at the Obligors' expense) reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if the making of such
change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the sole judgment of such
Lender, be otherwise disadvantageous to such Lender.
Section 6. Guarantee.
6.01. The Guarantee. The Guarantors hereby jointly and severally guarantee
as a primary obligor and not as a surety to each Lender, Issuing Lender and
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 (including any interest, fees, costs or charges that
would accrue but for the provisions of the Bankruptcy Code after any bankruptcy
or insolvency petition under the Bankruptcy Code) on the Loans made by the
Lenders to, and the Notes held by each Lender of, Borrower and/or PR Borrower,
as applicable, and all other Obligations from time to time owing to the Lenders,
Issuing Lender or Agents by Borrower and/or PR Borrower, as applicable, under
this Agreement and under the Notes and by any Obligor under any of the other
Credit Documents, and all Obligations of the Obligors to any Creditor and all
Obligations owing to the Issuing Lender under the Letter of Credit Documents, in
each case strictly in accordance with the terms thereof (such obligations being
herein collectively called the "Guaranteed Obligations"). The Guarantors hereby
jointly and severally agree that if Borrower and/or PR Borrower, as applicable,
shall fail to pay in full when due (whether at stated maturity, by acceleration
or otherwise) any of the Guaranteed Obligations, the Guarantors will promptly
pay the same, without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of the Guaranteed
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Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
6.02. Obligations Unconditional. The obligations of the Guarantors under
Section 6.01 are absolute, irrevocable and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of Borrower and/or PR Borrower, as applicable, under this
Agreement, the Notes or any other agreement or instrument referred to herein or
therein, or any substitution, release or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
surety or Guarantor (except for payment in full). Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not alter or impair the liability of the Guarantors
hereunder which shall remain absolute, irrevocable and unconditional under any
and all circumstances as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(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 amended in any
respect, or any right under this Agreement, the Notes or any other Credit
Document or any other agreement or instrument referred to herein or therein
shall be amended or waived in any respect 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;
(iv) any lien or security interest granted to, or in favor of, the
Issuing Lender or any Lender or Agent as security for any of the Guaranteed
Obligations shall fail to be perfected; or
(v) the release of any other Guarantor.
The Guarantors hereby expressly waive diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that the
Issuing Lender or any Agent or any Lender or Affiliate thereof exhaust any
right, power or remedy or proceed against Borrower and/or PR Borrower, as
applicable, 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. The
Guarantors waive any and all notice of the creation, renewal, extension, waiver,
termination or accrual of any of the Guaranteed Obligations and notice of or
proof of reliance by the Issuing Lender, any Lender or Affiliate thereof or any
Agent upon this guarantee or acceptance of this guarantee, and the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred in reliance upon this guarantee, and all dealings between
Borrower and/or PR Borrower, as applicable, and the Issuing Lender, Lenders,
Affiliate thereof and Agents shall likewise be conclusively presumed to have
been had or consummated in reliance upon this guarantee. This guarantee shall be
construed as a continuing, absolute, irrevocable and unconditional guarantee of
payment without regard to any right of offset with respect to the Guaranteed
Obligations at any time or from time to time held by the Issuing Lender,
Lenders, Affiliate thereof and Agents, and the obligations and liabilities of
the Guarantors hereunder shall not be conditioned or contingent upon the pursuit
by the Issuing Lender, Lenders, Affiliate thereof or Agents or any other Person
at any time of any right or remedy against Borrower and/or PR Borrower, as
applicable, or against any other Person which may be or become liable in respect
of all or any part of the Guaranteed Obligations or against any collateral
security or guarantee therefor or right of offset with respect thereto. This
guarantee shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon the Guarantors and the successors and
assigns thereof, and shall inure to the benefit of the Lenders, and their
respective successors and assigns, notwithstanding that from time to time during
the term of this Agreement there may be no Guaranteed Obligations outstanding.
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6.03. Reinstatement. The obligations of the Guarantors under this Section 6
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of Borrower and/or PR Borrower, as applicable, in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise. The Guarantors jointly
and severally agree that they will indemnify the Issuing Lender, each Agent and
each Lender or Affiliate thereof on demand for all reasonable costs and expenses
(including reasonable fees of counsel) incurred by the Issuing Lender, such
Agent or such Lender or Affiliate thereof in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law,
other than any costs or expenses resulting from the gross negligence or bad
faith of such Creditor.
6.04. Subrogation; Subordination. Each Guarantor hereby agrees that until
the indefeasible payment and satisfaction in full in cash 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, whether by
subrogation or otherwise, against Borrower, PR Borrower or any other Guarantor
of any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations. The payment of any amounts due with respect to any indebtedness of
Borrower, PR Borrower or any other Guarantor now or hereafter owing to any
Guarantor by reason of any payment by such Guarantor under the Guarantee in this
Section 6 is hereby subordinated to the prior indefeasible payment in full in
cash of the Guaranteed Obligations. Each Guarantor agrees that it will not
demand, sue for or otherwise attempt to collect any such indebtedness of
Borrower or PR Borrower to such Guarantor until the Obligations shall have been
indefeasibly paid in full in cash. If, notwithstanding the foregoing sentence,
any Guarantor shall prior to the indefeasible payment in full in cash of the
Guaranteed Obligations collect, enforce or receive any amounts in respect of
such indebtedness, such amounts shall be collected, enforced and received by
such Guarantor as trustee for Agents, the Issuing Lender and the Lenders and
Affiliates thereof and be paid over to Administrative Agent on account of the
Guaranteed Obligations without affecting in any manner the liability of such
Guarantor under the other provisions of the guaranty contained herein.
6.05. Remedies. The Guarantors jointly and severally agree that, as between
the Guarantors and the Lenders, the obligations of Borrower and PR Borrower
under this Agreement and the Notes may be declared to be forthwith due and
payable as provided in Section 10 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 10)
for purposes of Section 6.01, notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against Borrower or PR 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 Borrower or PR Borrower, as applicable) shall forthwith become due and
payable by the Guarantors for purposes of Section 6.01.
6.06. Instrument for the Payment of Money. Each Guarantor hereby
acknowledges that the guarantee in this Section 6 constitutes an instrument for
the payment of money, and consents and agrees that any Lender or Agent, at its
sole option, in the event of a dispute by such Guarantor in the payment of any
moneys due hereunder, shall have the right to bring a motion-action under New
York CPLR Section 3213.
6.07. Continuing Guarantee. The guarantee in this Section 6 is a continuing
guarantee, and shall apply to all Guaranteed Obligations whenever arising.
6.08. General Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state, Federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 6.01
would otherwise be held or determined to be void, voidable, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under Section 6.01, then, notwithstanding any
other provision to the contrary, the amount of such liability shall, without any
further action by such Guarantor, any Lender, any Agent or any other Person, be
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automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
Section 7. Conditions Precedent.
7.01. All Extensions of Credit. The obligation of the Lenders to make any
Loan or otherwise extend any credit to Borrower or PR Borrower upon the occasion
of each borrowing or other extension of credit (whether by making a Loan or
issuing a Letter of Credit) hereunder is subject to the conditions precedent
that:
(i) No Default or Event of Default; Representations and Warranties
True. Both immediately prior to the making of such Loan or other extension
of credit and also after giving pro forma effect thereto and to the
intended use thereof:
(a) no Default or Event of Default shall have occurred and be
continuing; and
(b) the representations and warranties made by the Obligors in
Section 8, and by each Obligor in each of the other Credit Documents
to which it is a party, shall be true and complete in all material
respects on and as of the date of the making of such Loan or other
extension of credit with the same force and effect as if made on and
as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date).
(ii) No Legal Bar. The Loans and the use of proceeds thereof shall not
contravene, violate or conflict with, nor involve any Lender in a violation
of, any law, rule, injunction, or regulation or determination of any court
of law or other Governmental Authority.
(iii) No Material Adverse Effect. There shall not have occurred any
Material Adverse Effect.
(iv) Indenture Compliance. Such Loan or other extension of credit
shall be permitted under the debt incurrence test specified under each of
the Senior Subordinated Notes Financing Documents, the Parent Financing
Documents and, if issued, the Additional Senior Subordinated Notes
Documents or there shall be another provision in such documents under which
such Loan or other extension of credit is expressly permitted.
(v) Notice of Borrowing. Administrative Agent shall have received a
Notice of Borrowing duly completed and complying with Section 4.05.
Each Notice of Borrowing or request for the issuance of a Letter of Credit
by Borrower or PR Borrower (as the case may be) hereunder shall constitute a
certification by Borrower to the effect set forth in clauses (i) through (iv)
above as of the date of such borrowing or issuance.
Each notice submitted by Borrower or PR Borrower (as the case may be)
hereunder for an extension of credit hereunder shall constitute a representation
and warranty by Borrower or PR Borrower (as the case may be), as of the date of
such notice and as of the relevant borrowing date or date of issuance of a
Letter of Credit, as applicable, that the conditions in this Section 7.01 have
been satisfied or waived in accordance with the terms hereof.
7.02. Determinations Under Section 7. For purposes of determining
compliance with the conditions specified in Section 7.01, each Lender shall be
deemed to have consented to, approved or accepted or to be satisfied with each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to the Lenders unless an officer of Administrative
Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that Borrower or PR Borrower
(as the case may be), by notice to the Lenders, designates as the proposed date
of the extension of credit, specifying its objection thereto.
Section 8. Representations and Warranties. Each Obligor represents and
warrants to the Creditors that at and as of each Funding Date (in each case
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immediately before and immediately after giving effect to the transactions to
occur on such date (including, with respect to the Effectiveness Date, the
Transactions)):
8.01. Corporate Existence. Each Company: (a) is a corporation, partnership,
limited liability company or other entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization; (b) has
all requisite corporate or other power and authority, and has all governmental
licenses, authorizations, consents and approvals necessary to own its Property
and carry on its business as now being conducted; and (c) is qualified to do
business and is in good standing in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary and, in the case of
clauses (a), (b) and (c) where the failure thereof individually or in the
aggregate is reasonably likely to have a Material Adverse Effect.
8.02. Financial Condition; Etc. (a) Borrower has heretofore delivered to
the Lenders (A) the audited consolidated balance sheets of Parent and its
Subsidiaries as of May 31, 1997, May 31, 1998 and May 31, 1999, and the related
statements of earnings, changes in stockholders' equity and cash flows for the
fiscal years ended on those dates, together with reports thereon by Deloitte &
Touche LLP, certified public accountants, and (B) the unaudited consolidated
balance sheet of Parent and its Subsidiaries as of November 30, 1999, and the
related statements of earnings and cash flows for the fiscal period ended on
November 30, 1999. All of said financial statements, including in each case the
related schedules and notes, are true, complete and correct and have been
prepared in accordance with GAAP consistently applied and present fairly the
financial position of Parent and its Subsidiaries as of the respective dates of
said balance sheets and the results of their operations for the respective
periods covered thereby, subject (in the case of interim statements) to
period-end audit adjustments.
(b) Except as set forth in Schedule 8.02(b) or in the financial statements
or other information referred to in Section 8.02(a), as of the Effectiveness
Date, there are no material liabilities of any Company of any kind required to
be set forth on a balance sheet or in the notes thereto prepared in accordance
with GAAP, whether accrued, contingent, absolute, determined, determinable or
otherwise, and there is no existing condition, situation or set of circumstances
which is reasonably likely to result in such a liability, other than:
(i) liabilities disclosed or provided for in the Schedules hereto and
the reports filed by Parent with the Commission filed prior to the
Effectiveness Date;
(ii) liabilities incurred in the ordinary course of business
consistent with past practice since May 31, 1999, which in the aggregate
are not reasonably likely to have a Material Adverse Effect; and
(iii) liabilities under this Agreement, the Parent Financing
Documents, the Senior Subordinated Notes Financing Documents or liabilities
incurred in connection with the transactions contemplated or permitted
hereby.
(c) Since May 31, 1999 there has been no Material Adverse Change.
(d) The pro forma capitalization table of Parent and its Consolidated
Subsidiaries (the "Pro Forma Capitalization Table"), certified by the chief
financial officer of Parent and Borrower, copies of which have been heretofore
furnished to each Lender, is the capitalization table of Parent and its
Consolidated Subsidiaries as of the date of the latest available balance sheet
of Parent prior to the Effectiveness Date (the "Pro Forma Date"), adjusted to
give effect (as if such events had occurred on such date) to the Transactions to
occur on the Effectiveness Date and the application of the proceeds of all
Indebtedness to be incurred on such date. The Pro Forma Capitalization Table
accurately reflects in all material respects all adjustments necessary to give
effect to the Transactions, was prepared based on good faith assumptions, and
presents fairly in all material respects on a pro forma basis the consolidated
capitalization of Parent and its Consolidated Subsidiaries as at the Pro Forma
Date, adjusted as described above.
8.03. Litigation. Except as set forth in the reports filed by Parent with
the Commission prior to the date hereof or in Schedule 8.03, there is no
Proceeding pending against, or to the knowledge of any Obligor threatened in
writing against or affecting, any Company or any of its respective Properties
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before any Governmental Authority that have a reasonable likelihood of being
adversely determined and that, if determined or resolved adversely to such
Company in accordance with the plaintiff's demands, is reasonably likely to have
a Material Adverse Effect.
8.04. No Breach; No Default. (a) None of the execution, delivery and
performance by any Obligor of any Credit Document or Transaction Document to
which it is a party nor the consummation of the transactions herein and therein
contemplated (including the Transactions) will (i) conflict with or result in a
breach of, or require any consent (which has not been obtained and is in full
force and effect) under, any Organic Document of any Company or any applicable
Requirement of Law or any order, writ, injunction or decree of any Governmental
Authority binding on any Company, or any term or provision of any Contractual
Obligation of any Company or (ii) constitute (with due notice or lapse of time
or both) a default under any such Contractual Obligation, or (iii) result in the
creation or imposition of any Lien (except for the Liens created pursuant to the
Security Documents) upon any Property of any Company pursuant to the terms of
any such Contractual Obligation, except with respect to each of the foregoing
which is not reasonably likely to have a Material Adverse Effect or which is not
reasonably likely to subject any Agent, Lender or Issuing Lender to any material
risk of damages or liability to third parties.
(b) No Company is in default under or with respect to any order, award or
decree of any Governmental Authority or arbitrator binding upon it or any of its
Property in any respect which is reasonably likely to have a Material Adverse
Effect.
(c) No Default or Event of Default has occurred and is continuing.
8.05. Action. Each Company has all necessary corporate power, authority and
legal right to execute, deliver and perform its obligations under each Credit
Document and Transaction Document to which it is a party and to consummate the
transactions herein and therein contemplated; the execution, delivery and
performance by each Company of each Credit Document and Transaction Document to
which it is a party and the consummation of the transactions herein and therein
contemplated have been duly authorized by all necessary corporate action on its
part; and this Agreement has been duly and validly executed and delivered by
each Obligor and constitutes, and each of the Notes and the other Credit
Documents to which it is a party when executed and delivered by such Obligor (in
the case of the Notes, for value) will constitute, its legal, valid and binding
obligation, enforceable against each Obligor in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws of general
applicability from time to time in effect affecting the enforcement of
creditors' rights and remedies and (b) the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
8.06. Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority or any securities
exchange are necessary for the execution, delivery or performance by any Company
of the Credit Documents and the Transaction Documents to which it is a party or
for the legality, validity or enforceability hereof or thereof or for the
consummation of the transactions herein and therein contemplated, except for
filings and recordings in respect of the Liens created pursuant to the Security
Documents and except for consents, authorizations and filings that have been
obtained or made and are in full force and effect or the failure of which to
obtain is not reasonably likely to have a Material Adverse Effect.
8.07. [Omitted]
8.08. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability
is reasonably expected to occur, could be reasonably likely to have a Material
Adverse Effect. The present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than $10.0
million the fair market value of the assets of all such underfunded Plans. Each
member of the ERISA Group is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each
Employee Benefit Plan. Using actuarial assumptions and computation methods
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consistent with subpart 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of any of each ERISA Entity to all Multiemployer Plans in the event
of a complete withdrawal therefrom, as of the close of the most recent fiscal
year of each such Multiemployer Plan, would not reasonably be expected to result
in a Material Adverse Effect.
Each Foreign Plan has been maintained in compliance in all material
respects with its terms and with the requirements of any and all applicable
laws, statutes, rules regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. Neither the
Borrower nor any Subsidiary have incurred any material obligation in connection
with the termination of or withdrawal from any Foreign Plan. The present value
of the accrued benefit liabilities (whether or not vested) under each Foreign
Plan which is funded, determined as of the end of the most recently ended fiscal
year of Borrower or Subsidiary on the basis of actuarial assumptions, each of
which is reasonable, did not materially exceed the current value of the assets
of such Foreign Plan, and for each Foreign Plan which is not funded, the
obligations of such Foreign Plan are properly accrued.
8.09. Taxes. Except as set forth in the balance sheet of Parent as of May
31, 1999, included in the Form 10-K for the fiscal year ended such date
(including the notes thereto) or except as is not reasonably likely to have a
Material Adverse Effect, (i) all tax returns, statements, reports and forms
(including estimated Tax or information returns) (collectively, the "Tax
Returns") required to be filed with any taxing authority by, or with respect to,
each Company have been filed in accordance with all applicable laws; (ii) each
Company has timely paid or made provision for payment of all Taxes shown as due
and payable on Tax Returns that have been so filed, and, as of the time of
filing, each Tax Return correctly reflected the facts regarding income,
business, assets, operations, activities and the status of each Company (other
than Taxes which are being contested in good faith and for which adequate
reserves are reflected on such balance sheet or on other financial statements
subsequently delivered hereunder) and (iii) each Company has made provision for
all Taxes payable by such Company for which no Tax Return has yet been filed.
Except as set forth on Schedule 8.09, (i) as of the Effectiveness Date, no
extension of a statute of limitations relating to material Taxes is in effect
with respect to any Company; (ii) no Company has ever been a member of an
affiliated group of corporations within the meaning of Section 1504 of the Code
other than an affiliated group of corporations of which Parent was the common
parent; and (iii) except as permitted by Section 9.25, there are no material tax
sharing agreements or similar arrangements (including tax indemnity
arrangements) with respect to or involving any Company.
8.10. Investment Company Act; Public Utility Holding Company Act; Other
Restrictions. No Company is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the United States Investment
Company Act of 1940, as amended. No Company is a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the United States Public Utility Holding Company
Act of 1935, as amended. No Obligor is subject to regulation under any law or
regulation which limits its ability to incur Indebtedness, other than Regulation
X of the Board of Governors of the Federal Reserve System.
8.11. Environmental Matters. Except as disclosed in Schedule 8.11 and
except as would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect: (i) each Company is in compliance with and
in the last five years has been in compliance with, and is not subject to
liability under, any Environmental Laws applicable to it and there are no
Environmental Laws, including such Laws which have been formally proposed for
public comment, which would reasonably be expected to result in material
expenditures by any Company, and no such Environmental Laws would reasonably be
expected to interfere in any material way with current or projected operations
of any Company; (ii) no Company has received notice that it or any of their
respective predecessors in interest has been identified as a potentially
responsible party under the United States Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), or any similar
law of any Governmental Authority, nor has any Company received notice that any
Hazardous Materials that it or any of its respective predecessors in interest
has used, generated, stored, treated, handled, transported or disposed of, or
arranged for disposal or treatment of, have been found at any site at which any
Person is conducting or plans to conduct any action pursuant to any
Environmental Law, and no Company, or to the knowledge of the Obligors, any of
their respective predecessors in interest, has disposed of, arranged for the
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disposal or treatment of, or otherwise released Hazardous Materials at any site
at which any Person is conducting or plans to conduct any action under
Environmental Law; (iii) no properties now or formerly owned, leased or operated
by any Company or, to the knowledge of any Obligor, any of their respective
predecessors in interest, are (x) listed or proposed for listing on the National
Priorities List under CERCLA or (y) listed on the Comprehensive Environmental
Response, Compensation and Liability Information System List promulgated
pursuant to CERCLA or (z) included on any similar lists maintained by any
Governmental Authority; (iv) there are no past or present events, conditions,
activities, practices or actions, or any agreements, judgments, decrees or
orders by which any Company is bound, which would reasonably be expected to
prevent any Company's compliance with any Environmental Law, or which would
reasonably be expected to give rise to any liability of any Company under any
Environmental Law, including, without limitation, liability under CERCLA or any
similar state or foreign laws; (v) no Lien has been asserted or recorded, or to
the knowledge of the obligors, threatened, under any Environmental Law with
respect to any asset, facility, inventory or property currently owned, leased or
operated by any Company; (vi) there are no underground storage tanks or related
piping at any property owned, operated or leased by any Company; (vii) no such
tanks or related piping has been removed from such properties; and (viii) no
Company is subject to any Proceeding alleging the violation of, or liability
under, any Environmental Law and, to the knowledge of the Obligors, no such
Proceeding is threatened.
8.12. Environmental Investigations. As of the Effectiveness Date, all
material environmental investigations, studies, audits or assessments which have
been conducted and which are in the possession, custody or control of any
Company relating (i) to the current or prior business, operations, facilities or
Property of any Company or any of their respective predecessors in interest or
(ii) to any facility, Property or other asset now or previously owned, operated,
leased or used by any Company or any of their respective predecessors in
interest have been made available to Agents and the Lenders.
8.13. Use of Proceeds. No Company is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying Margin Stock
and no part of the proceeds of any extension of credit hereunder will be used
directly or indirectly and whether immediately, incidentally or ultimately to
purchase or carry any Margin Stock or to extend credit to others for such
purpose or to refund Indebtedness originally incurred for such purpose.
Following application of the proceeds of each extension of credit hereunder, not
more than 25 percent of the value of the assets (either of Borrower or PR
Borrower individually or of Borrower and its Consolidated Subsidiaries) will be
Margin Stock. Borrower and PR Borrower will use the proceeds of all Loans to
finance the Transactions, pay fees and expenses related thereto, and for general
corporate purposes. If requested by any Lender or Administrative Agent, Borrower
will furnish to Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to
in Regulation U.
8.14. Subsidiaries, Etc. As of the Effectiveness Date (after giving effect
to the Transactions), Parent, Borrower and PR Borrower have no Subsidiaries or
interests (whether direct or indirect) in partnerships, Minority Interests or
business trusts other than the entities set forth on Schedule 8.14. Each
Subsidiary listed on Schedule 8.14 (other than any Foreign Subsidiary or any
non-operating Subsidiary, as indicated on such schedule) is a Guarantor as of
the Effectiveness Date. Each of Parent, Borrower and PR Borrower owns, as of the
Effectiveness Date, the percentage of the issued and outstanding Equity
Interests or other evidences of the ownership of each of their respective
Subsidiaries, partnerships or Minority Interests listed on Schedule 8.14 as set
forth on such Schedule. No such Subsidiary, partnership or Minority Interest has
issued any securities convertible into shares of its Equity Interests (or other
evidence of ownership) or any Equity Rights to acquire such shares or securities
convertible into such shares (or other evidence of ownership), and the
outstanding stock and securities (or other evidence of ownership) of such
Subsidiaries, partnerships or Minority Interests are owned by Parent, Borrower
or PR Borrower, as applicable, free and clear of all Liens and Equity Rights of
others of any kind whatsoever, except for Liens pursuant to the Security
Documents. Parent does not have any direct equity interest in any Person other
than Borrower. All Minority Interests that will be the source of Dividend
Payments pursuant to Section 9.10(c)(iv) or 9.10(c)(v) are expressly identified
on Schedule 8.14 (or were received as substantially equivalent value in exchange
for such Minority Interests) and are owned directly by Borrower or a Qualified
Subsidiary.
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8.15. Properties. Except as otherwise contemplated or provided in the
Mortgages, the other Security Documents or this Agreement, and except for such
exceptions that do not, or are not reasonably likely to, have a Material Adverse
Effect, Borrower or a Subsidiary (i) has good and marketable title to all the
Property reflected in the consolidated balance sheet of Borrower dated May 31,
1999, or in any later financial statements provided hereunder as being owned by
Borrower or any Subsidiary (except Property sold or otherwise disposed of since
the date thereof in the ordinary course of business or as otherwise not
prohibited by the Credit Documents), or acquired after the date thereof, free
and clear of all Liens, except (x) Permitted Liens and (y) such imperfections or
irregularities of title or Liens as do not materially affect the use of the
Properties subject thereto or affected thereby or otherwise materially impair
business operations at such Properties and (ii) is the lessee of all leasehold
estates and is in possession of the Properties purported to be leased
thereunder, and to the knowledge of Borrower, each such lease is valid without
default thereunder by the lessee or lessor. Title to all Property of any Company
is held by such Company free and clear of all Liens except for Permitted Liens.
Except for such exceptions that do not, or are not reasonably likely to
have a Material Adverse Effect, the Properties of Borrower and the Subsidiaries,
taken as a whole, are in good operating condition and repair (ordinary wear and
tear excepted), and constitute all of the assets and properties which are
required for the businesses and operations of Borrower and the Subsidiaries as
presently conducted.
8.16. Security Interest; Absence of Financing Statements; Etc. The Security
Documents, once executed and delivered, will create, in favor of Administrative
Agent for the benefit of the Issuing Lender, Lenders and Agents, as security for
the obligations purported to be secured thereby, a valid and enforceable, and
upon filing or recording with the appropriate Governmental Authorities and
delivery of the applicable documents to Administrative Agent, perfected first
priority security interest in and Lien upon all of the Collateral (and the
proceeds thereof), superior to and prior to the rights of all third persons
other than the holders of Permitted Liens.
Except as set forth on Schedule 8.16 and except for Permitted Liens and the
Liens created by the Security Documents, there is no currently effective
financing statement, security agreement, chattel mortgage, real estate mortgage
or other document filed or recorded with any filing records, registry, or other
public office, that purports to cover, affect or give notice of any Lien on, or
security interest in, any Property of any Company or rights thereunder.
8.17. Licenses and Permits; Compliance with Laws. The Companies hold all
governmental permits, licenses, authorizations, consents and approvals necessary
for the Companies to own, lease, and operate their respective Properties and to
operate their respective businesses as now being conducted (collectively, the
"Permits"), except for Permits the failure of which to obtain is not reasonably
likely to have a Material Adverse Effect. None of the Permits has been modified
in any way that is reasonably likely to have a Material Adverse Effect. All
Permits are in full force and effect except where the failure to be in full
force and effect is not reasonably likely to have a Material Adverse Effect.
The businesses of the Companies are not being conducted in violation of any
applicable law, statute, ordinance, regulation, judgment, Permits, order,
decree, concession, grant or other authorization of any governmental entity,
except for violations that are not reasonably likely to have a Material Adverse
Effect.
There does not exist any judgment, order or injunction prohibiting or
imposing material adverse conditions upon the Transactions, or the performance
by any Company of any of its material obligations under the Credit Documents.
8.18. True and Complete Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of any
Obligor to any Creditor in connection with the negotiation, preparation or
delivery of this Agreement and the other Credit Documents or included herein or
therein or delivered pursuant hereto or thereto or pursuant to the Information
Memorandum, but in each case excluding all projections, whether prior to or
after the Effectiveness Date, when taken as a whole, do not, as of the date such
information was furnished, contain any untrue statement of material fact or omit
to state a material fact necessary in order to make the statements herein or
therein, in light of the circumstances under which they were made, not
materially misleading. The projections and pro forma financial information
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furnished at any time by any Obligor to any Creditor pursuant to this Agreement
have been prepared in good faith based on assumptions believed by Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount and no Obligor, however, makes any representation as to the
ability of any Company to achieve the results set forth in any such projections.
Each Obligor understands that all such statements, representations and
warranties shall be deemed to have been relied upon by the Lenders as a material
inducement to make each extension of credit hereunder.
8.19. Solvency; Etc. As of the Effectiveness Date immediately prior to and
immediately following the consummation of the Transactions and the extensions of
credit to occur on such date each Obligor is and will be Solvent (after giving
effect to Section 6.08(a)).
8.20. Contracts. No Company is in default under any material Contractual
Obligation to which it is a party or by which it is bound, nor, to Borrower's
knowledge, does any condition exist that, with notice or lapse of time or both,
would constitute such default, excluding in any case such defaults that are not
reasonably likely to have a Material Adverse Effect. Schedule 8.20 and the Form
10-K for the fiscal year ended May 31, 1999 filed by Parent with the Commission
accurately and completely list all agreements, if any, among the stockholders
(or any of their Affiliates other than any Company) of Parent on the one hand
and any Company on the other in effect on the date hereof. PR Borrower and each
of its Subsidiaries are in compliance in all material respects with the
requirements of the Facilities Agreement and the Marketing Agreements. PR
Borrower and each of its Subsidiaries are in compliance in all material respects
with the requirements of (and no default has occurred under) all other
contracts, agreements, indentures, mortgages, leases and other instruments
binding on it or its property, assets or operations the violation of which could
have a Material Adverse Effect.
8.21. Labor Matters. Except as set forth in Schedule 8.21, there are no
strikes or other labor disputes against any Company pending or, to the knowledge
of Borrower, threatened which are reasonably likely to have a Material Adverse
Effect.
8.22. FCC Matters and Governmental Matters. (a) Each Company holds all
licenses, permits and other authorizations issued by the FCC or any other
Communications Regulatory Authority (the "Licenses") that are required for the
operations and businesses of the Companies as they are operated on any
applicable date on which a Loan is made or a Letter of Credit is issued
hereunder, in each case where the failure to hold a License, individually or in
the aggregate, is reasonably likely to have a Material Adverse Effect. Without
limiting the foregoing, each Company has received all necessary authorizations
from the FAA for all existing towers that are part of the cellular or microwave
systems operated by the Companies and for any facilities the construction of
which have been approved by the FCC or of which applications or notifications
have been filed for such approval in each case where the failure to obtain such
authorization, individually or in the aggregate, is reasonably likely to have a
Material Adverse Effect.
(b) Schedule 8.22(b) sets forth, as of the Effectiveness Date, the
expiration date for each of the Licenses held by any Company.
(c) The Licenses are valid and in full force and effect, unimpaired by any
condition or restriction or any act or omission by any Company which is
reasonably likely to have a Material Adverse Effect. Except as is not reasonably
likely to have a Material Adverse Effect, there are no modifications,
amendments, applications, revocations, or other proceedings, or complaints
pending or, to the knowledge of Borrower, threatened, with respect to the
Licenses (other than proceedings that apply to the cellular industry generally).
Except as is not reasonably likely to have a Material Adverse Effect, all fees
due and payable to the FCC or any other Communications Regulatory Authority have
been paid and no event has occurred which, with or without the giving of notice
or lapse of time or both, would constitute grounds for revocation or
modification of any Licenses. Borrower does not conduct any microwave operations
on frequencies that are subject to relocation under the FCC's rules, except as
is not reasonably likely to result in a Material Adverse Effect.
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(d) Except where a lack of compliance is not reasonably likely to have a
Material Adverse Effect, (i) all reports required by the Communications Act or
required to be filed with the FCC or any other Communications Regulatory
Authority by any Company have been filed and are accurate and complete in all
material respects and (ii) all reports required to be filed by each Company with
all other governmental or administrative authorities, federal, state and local,
have been filed and are accurate and complete in all material respects.
(e) Except where a lack of compliance is not reasonably likely to have a
Material Adverse Effect, each Company is in compliance with, and their Systems
have been operated in compliance with, the Communications Act and the rules,
regulations, policies and orders of the relevant state public utilities
commissions and the FAA, including, without limitation, the FCC's time and
coverage requirements of 47 C.F.R. 22.142, 22.911, 22.912 and 22.946 (the
"Statutes"). Except as is not reasonably likely to result in a Material Adverse
Effect, no Company has received any written notice to the effect, or otherwise
been advised in writing, that they are not in compliance with any Statutes and
do not have any reason to anticipate that any presently existing circumstances
are reasonably likely to result in violations of any Statutes.
(f) No Company has engaged in any course of conduct that is reasonably
likely to impair the ability of any Company to be the holder of the Licenses or
is aware of any reason why the Licenses might not be renewed in the ordinary
course, why any of the Licenses might be revoked, or why any pending
applications or notifications might not be approved, in each case where the
failure to hold a License, individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect.
8.23. Subordinated Notes. Each of Parent and Borrower has provided to
Agents on the Original Closing Date true, complete and correct copies of the
Parent Financing Documents and the Senior Subordinated Notes Financing
Documents, respectively. All the representations and warranties in the Parent
Financing Documents and the Senior Subordinated Notes Financing Documents were
true and correct in all material respects on and as of the date made. The Parent
Subordinated Notes and the Senior Subordinated Notes and, if issued, the
Additional Senior Subordinated Notes and the Parent Refinanced Notes when both
are issued and sold, will either (a) have been registered or qualified under
applicable federal and state securities laws or (b) be exempt therefrom. The
offering documents for the issuance and sale of the Senior Subordinated Notes
and (if issued) the Additional Senior Subordinated Notes and the Parent
Refinanced Notes, as of its respective date, did not contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statement therein not misleading (it being understood
that no representation or warranty is being made with respect to information in
respect of the initial purchasers thereof expressly provided by them for
inclusion therein).
8.24. Year 2000. Each Company has reviewed their operations with a view to
assessing whether their business or operations will, in the receipt,
transmissions, processing, manipulation, storage, retrieval, retransmission or
other utilization of data, be vulnerable to any significant risk that computer
hardware, software or any equipment containing embedded microchips used in their
business or operations will not in the case of dates or time periods occurring
after December 31, 1999 function at least as effectively as in the case of dates
or time periods occurring prior to January 1, 2000. In addition each Company has
obtained assurances from their respective third party billing providers and
their respective principal sources of cellular equipment that they are
addressing the potential problems of the Year 2000. No Company has reason to
believe that the risks associated with the Year 2000 issue are reasonably likely
to have a Material Adverse Effect.
Section 9. Covenants. Each Obligor, for itself and on behalf of its
Subsidiaries, covenants and agrees with the Creditors that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by Borrower and PR Borrower hereunder:
9.01. Financial Statements, Etc. The Companies shall deliver to
Administrative Agent and each of the Lenders:
(a) Quarterly Financials. As soon as available and in any event within 45
days after the end of each of the first three quarterly fiscal periods of each
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fiscal year beginning with the fiscal quarter ending November 30, 1998,
consolidated statements of operations, cash flows and stockholders' equity of
Borrower and its Consolidated Subsidiaries for such period and for the period
from the beginning of the respective fiscal year to the end of such period, and
the related consolidated balance sheet of Borrower and its Consolidated
Subsidiaries as at the end of such period, setting forth in each case in
comparative form (i) the corresponding consolidated statements of operations,
cash flows and stockholders' equity for the corresponding period in the
preceding fiscal year to the extent such financial statements are available and
(ii) the corresponding budget or plan for such period, accompanied by a
certificate of a Responsible Officer of Borrower, which certificate shall state
that said consolidated financial statements fairly present the consolidated
financial condition, results of operations and cash flows of Borrower and its
Consolidated Subsidiaries in accordance with GAAP, consistently applied, as at
the end of, and for, such period (subject to normal year-end audit adjustments);
(b) Annual Financials. As soon as available and in any event within 90 days
after the end of each fiscal year, (I) consolidated statements of operations,
cash flows and stockholders' equity of Borrower and its Consolidated
Subsidiaries for such year and the related consolidated balance sheet of
Borrower and its Consolidated Subsidiaries as at the end of such year, setting
forth in each case in comparative form (i) the corresponding consolidated
information as of the end of and for the preceding fiscal year to the extent
such financial statements are available and (ii) the corresponding budget or
plan for such period, and accompanied by an opinion, without a going concern or
similar qualification or exception as to scope, thereon of Deloitte & Touche LLP
or other independent certified public accountants of recognized national
standing reasonably acceptable to Co-Syndication Agents and the Majority
Lenders, which opinion shall state that said consolidated financial statements
fairly present the consolidated financial condition, results of operations and
cash flows of Borrower and its Consolidated Subsidiaries as at the end of, and
for, such fiscal year in accordance with GAAP, consistently applied; and (II)
consolidating statements of operations of Borrower and its Consolidated
Subsidiaries for such year and the related consolidating balance sheet of
Borrower and its Consolidated Subsidiaries as at the end of such year, setting
forth in each case in comparative form (i) the corresponding consolidating
information as of the end of and for the preceding fiscal year to the extent
such financial statements are available and (ii) the corresponding budget or
plan for such period; Borrower shall supply such additional information and
detail as to any item or items contained in any such statement that Lenders may
reasonably require; all such financial statements will be prepared in accordance
with GAAP consistently applied;
(c) Compliance Certificate; Performance Certificate.
(i) concurrently with the delivery of the financial statements referred to
in Section 9.01(b), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Event of Default
relating to the Financial Maintenance Covenants, except as specified in such
certificate;
(ii) at the time it furnishes each set of financial statements pursuant to
paragraph (a) or (b) above, (1) a certificate of a senior financial officer of
Borrower (I) to the effect that no Default has occurred and is continuing (or,
if any Default has occurred and is continuing, describing the same in reasonable
detail and describing the action that the Companies have taken and proposes to
take with respect thereto) and (II) setting forth in reasonable detail the
computations necessary to determine whether each Company is in compliance with
Section 9.11 as of the end of the respective quarterly fiscal period or fiscal
year, (2) to the extent not previously disclosed to Administrative Agent, a
listing of any state within the United States where any Obligor keeps inventory
or equipment and of any material licenses arising under the laws of the United
States (or any jurisdiction therein) acquired by any Obligor since the date of
the most recent list delivered pursuant to this clause (2) (or, in the case of
the first such list so delivered, since the Original Closing Date), and (3) any
final accountants' management letters delivered by the independent certified
public accountants reporting on such financial statements to Borrower or any
Subsidiary; and
(iii) at the time the financial statements are furnished pursuant to
Section (A) 9.01(a), an Officers' Certificate, setting forth the Specified
Wireless System Information on a consolidated basis for Borrower and the
Consolidated Subsidiaries for the fiscal quarter covered by such financial
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statements, and (B) 9.01(b), an Officers' Certificate setting forth the
Specified Wireless System Information (i) on a consolidated basis for Borrower
and the Consolidated Subsidiaries and (ii) for each cluster of Cellular Systems,
PCS Systems and SMR Systems owned by Borrower or any Subsidiary with combined
Net Pops at such date for all such Cellular Systems, PCS Systems and SMR Systems
(as the case may be) of 1,000,000 or more, in each case clause (i) and (ii) for
the fiscal year covered by such financial statements;
(d) Other Financial Information. Promptly upon delivery thereof to the
holders of any debt securities or the stockholders of any Company generally,
copies of all financial statements and reports and proxy statements so
delivered, and at the time the same are filed, copies of all financial
statements and reports which Borrower, PR Borrower or Parent may make to or file
with the Commission or any successor or analogous Governmental Authority;
(e) Interest Rate Certificates. Together with the financial statements
delivered pursuant to clause (a) or (b) of this Section 9.01, an Interest Rate
Certificate;
(f) Notice of Default. Promptly after any Company knows or has reason to
believe that any Default has occurred or that any Company is in default of any
material term or provision of the Senior Subordinated Notes Financing Documents,
Parent Financing Documents, Additional Senior Subordinated Notes Documents or
any other agreement or instrument relating to or evidencing material
Indebtedness, a notice of such Default describing the same in reasonable detail
and, together with such notice or as soon thereafter as possible, a description
of the action that the Companies have taken and propose to take with respect
thereto;
(g) Environmental Matters. Written notice of any Environmental Claim
materially affecting any Company, any Mortgaged Real Property or the operations
of any Company and any notice from any Person of (i) the occurrence of any
release, spill or discharge of any Hazardous Material that is reportable under
any Environmental Law, (ii) the commencement of any clean-up pursuant to or in
accordance with any Environmental Law of any Hazardous Material at, on, under or
within the Mortgaged Real Property or any part thereof, (iii) any matters
relating to Hazardous Materials or Environmental Laws that may impair, or
threaten to impair, Lenders' security interest in the Mortgaged Real Property or
any Obligor's ability to perform any of its obligations under this Agreement
when such performance is due or (iv) any other condition, circumstance,
occurrence or event which is reasonably likely to have a Material Adverse
Effect;
(h) Auditors' Reports. Promptly upon receipt thereof, copies of all annual,
interim or special reports submitted to any Company by independent certified
public accountants in connection with each annual, interim or special audit of
such Company's books made by such accountants, including, without limitation,
any management letter commenting on any Company's internal controls submitted by
such accountants to management in connection with their annual audit;
(i) Annual Budgets. As soon as practicable and in any event within 60 days
after the beginning of each fiscal year of Borrower a consolidated plan and
financial forecast for such fiscal year, including without limitation (a) a
forecasted consolidated balance sheet and forecasted consolidated statements of
income and cash flows of Borrower and the Subsidiaries for such fiscal year,
together with calculations demonstrating pro forma compliance for such fiscal
year with Section 9.11 and an explanation of the assumptions on which such
forecasts are based and (b) forecasted consolidated statements of income and
cash flows of Borrower and the Subsidiaries for each quarter of each such fiscal
year, together with an explanation of the assumptions on which such forecasts
are based;
(j) Lien Matters. Written notice of (1) the incurrence of any material Lien
(other than Permitted Liens and other Liens expressly permitted by the terms of
the applicable Security Document) on, or material claim asserted against any of
the Collateral or (2) the occurrence of any other event which is reasonably
likely to materially adversely affect the aggregate value of the Collateral;
(k) Notice of Material Adverse Effect. Written notice of the occurrence of
any Material Adverse Effect or any event or condition which is reasonably likely
to result in any Material Adverse Effect;
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(l) Governmental Filings and Notices. Promptly upon request by
Administrative Agent, copies of any other material reports or documents that
were filed by any Company with any Governmental Agency relating to the
acquisition or maintenance of a material license including, but not limited to,
the FCC or any other Communications Regulatory Authority and copies of any and
all material notices and other material communications from any Federal, state
or local Governmental Authority with respect to any Company;
(m) ERISA Information. Promptly upon the occurrence of any ERISA Event
that, alone or together with any other ERISA Events that have occurred, is
reasonably likely to result in liability to the Companies in an aggregate amount
exceeding $5,000,000, a written notice specifying the nature thereof, what
action the Borrower, its Subsidiaries or other ERISA Entity have taken, are
taking or propose to take with respect thereto, and, when known, any action
taken or threatened by the Internal Revenue Service, Department of Labor, PBGC
or Multiemployer Plan sponsor with respect thereto;
(n) ERISA Filings, Etc. Upon request by the Administrative Agent, copies
of: (i) each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by Borrower, its Subsidiaries or ERISA Affiliate with the Internal
Revenue Service with respect to each Plan; (ii) the most recent actuarial
valuation report for each Plan; (iii) all notices received by Borrower or any of
its Subsidiaries or ERISA Affiliates from a Mutiemployer Plan sponsor or any
governmental agency concerning an ERISA Event; and (iv) such other documents or
governmental reports or filings relating to any Employee Benefit Plan as the
Administrative Agent shall reasonably request;
(o) FCC Notices; Notice of Certain Information Regarding Permitted
Acquisitions. Promptly upon (1) receipt thereof, copies of any material adverse
notice or reports regarding any Company from the FCC, the PRPSC, the PRTRB or
any other Communications Regulatory Authority, (2) receipt of notice of (A) any
forfeiture, non-renewal, cancellation, termination, revocation, suspension,
impairment or material adverse modification of any material License held by any
Company, or any notice of default or forfeiture with respect to any such
License, or (B) any refusal by any Communications Regulatory Authority to renew
or extend any material license, permit, certification or other authorization
(including any License) held by any Company, an Officers' Certificate specifying
the nature of such event, the period of existence thereof, and what action the
Companies are taking and propose to take with respect thereto, and (3) the
consummation of any Permitted Acquisition involving aggregate Acquisition
Consideration and projected Investments in excess of $50.0 million, a written
notice setting forth with respect to the business acquired, all of the data
required to be set forth in Schedule 8.22(b) with respect to such business and
the Licenses and any other licenses, permits, certifications and other
authorizations from any other Communications Regulatory Authority required in
connection with the operation of such business (as if the date of consummation
of such Permitted Acquisition were the Effectiveness Date);
(p) Name and Location Changes; New Subsidiaries. Prompt written notice to
the Administrative Agent of the creation or acquisition of any Subsidiary and,
with respect to each Obligor, prompt written notice to the Administrative Agent
of any change (i) in such Company'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, (ii) in the location of such Obligor's chief executive office, its
principal place of business, any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
owned by it is located (including the establishment of any such new office or
facility), (iii) in such Company's identity or corporate structure, (iv)
resulting in any tangible Collateral being located in any jurisdiction in which
a financing statement must be, but has not been, filed in order to perfect
Administrative Agent's Liens, or (v) in such Company's Federal Taxpayer
Identification Number (to the extent applicable); each Company will not effect
or permit any change referred to in the preceding sentence unless all filings
have been made under the Uniform Commercial Code or otherwise that are required
in order for Administrative Agent to continue at all times following such change
to have a valid, legal and perfected security interests in all the Collateral;
and
(q) Miscellaneous. Promptly, such financial and other information with
respect to any Company as any Creditor may from time to time reasonably request.
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9.02. Litigation, Etc. Borrower shall promptly give to Administrative Agent
and each Lender notice of all Proceedings, and (except to the extent that any
such notice would, in the reasonable opinion of outside counsel to Borrower,
waive attorney client privilege) any material development thereof, affecting any
Company, except Proceedings which are not reasonably likely to have a Material
Adverse Effect.
9.03. Existence; Compliance with Law; Payment of Taxes; Inspection Rights;
Performance of Obligations; Etc. Each Company shall (i) preserve and maintain
its legal existence and all of its material rights, privileges and franchises;
provided, however, that nothing in this Section 9.03 shall prohibit any
transaction expressly permitted under Section 9.06, (ii) except as is not
reasonably likely to have a Material Adverse Effect, comply with the
requirements of all applicable laws, rules, regulations and orders of
Governmental Authorities, (iii) except as is not reasonably likely to have a
Material Adverse Effect, timely file true, accurate and complete tax returns
required by all Governmental Authorities and pay and discharge all Taxes,
assessments and governmental charges or levies imposed on it or on its income or
profits or on any of its Property prior to the date on which any material
penalties attach thereto (except for any such Tax, assessment, charge or levy
the payment of which is being contested in good faith and by proper proceedings
and against which adequate reserves are being maintained in accordance with
GAAP); (iv) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted, except to the
extent that the failure to do so with respect to any such Property is not
reasonably likely to have a Material Adverse Effect; (v) permit representatives
of any Creditor during normal business hours and, except during the existence of
any Default, upon reasonable prior notice, to examine, copy and make extracts
from its books and records, to inspect its Properties, and to discuss its
business and affairs with its officers and employees, all to the extent
reasonably requested by such Creditor; (vi) upon reasonable notice, allow, with
the presence of Borrower if Borrower so elects to participate, and subject to
reasonable requirements of confidentiality, including requirements imposed by
law or by contract, a Co-Syndication Agent, Administrative Agent or any
representative chosen by the Majority Lenders to consult with Borrower's
independent public accountants and auditors with respect to the financial
affairs of the Companies and authorize such accountants to disclose to such
Co-Syndication Agent, Administrative Agent or any representative chosen by the
Majority Lenders and the Lenders (and such Co-Syndication Agent, Administrative
Agent or representative to the Creditors) any and all financial statements and
other supporting financial documents and schedules including copies of any
management letter with respect to the business, financial condition and other
affairs of the Companies; at the request of a Co-Syndication Agent,
Administrative Agent or any representative chosen by the Majority Lenders,
Borrower shall deliver a letter addressed to such accountants instructing them
to comply with the provisions of this Section 9.03(vi); (vii) perform in all
material respects all of its Contractual Obligations, except where such failure
to so perform, singly or in the aggregate with all other such failures, is not
reasonably likely to have a Material Adverse Effect; and (viii) keep proper
books of record and accounts, in which full and correct entries shall be made of
all financial transactions and the Property and business of each Company in
accordance with GAAP in effect from time to time or as otherwise required by
applicable rules and regulations of any Governmental Authority having
jurisdiction over such Company.
9.04. Insurance. (A) Each Company shall maintain, with financially sound
and reputable insurers, insurance of the kinds and in the amounts customarily
insured against by companies engaged in the same or similar business and
similarly situated (including business interruption insurance). Each Company
shall pay all insurance premiums payable by it as and when due.
(B) All policies of insurance required to be maintained by any Company must
name Administrative Agent on behalf of Issuing Lender, Lenders and Agents, as
mortgagees (in the case of property insurance) or additional insured (in the
case of liability insurance), as applicable, or certificate holder (in the case
of workers' compensation insurance) and must provide that no cancellation,
non-renewal or modification (including reduced coverage) of the policies will be
made without thirty days' prior written notice to Administrative Agent and if
the insurance carrier shall have received written notice from Administrative
Agent of the occurrence and continuance of an Event of Default, the insurance
carrier shall pay all proceeds otherwise payable to any Company under such
policies (other than directors' and officers' liability insurance policies and
other than proceeds of liability policies which a Company will distribute to a
third party in respect of an insured claim of such party) directly to
Administrative Agent.
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(C) The Obligors shall give immediate written notice of any loss in excess
of $10.0 million to the insurance carrier and to Administrative Agent.
(D) If at any time the area in which any Mortgaged Real Property is located
is designated (i) a "flood hazard area" in any Flood Insurance Rate Map
published by the Federal Emergency Management Agency (or any successor agency),
Borrower shall obtain flood insurance in such total amount as Administrative
Agent or the Majority Lenders may from time to time require, and otherwise
comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973, as amended from time to time, or (ii) a "Zone
1" area, Borrower shall obtain earthquake insurance in such total amount as
Administrative Agent or the Majority Lenders may require.
9.05. Limitation on Lines of Business; Limitation on Activity of License
Subsidiaries; Limitation on Management Agreements. No Company shall directly or
indirectly, engage to any material extent in any line or lines of business
activity other than the business of the type conducted by the Companies,
respectively, as of the Effectiveness Date, any business in telecommunications
or cable television, or any business related, ancillary or complementary
thereto. No License Subsidiary shall engage in any business or incur any
liabilities other than the ownership of its Licenses and the execution, delivery
and performance of the Credit Documents to which it is a party, activities
incidental to the foregoing and other de minimis liabilities and activities,
except that License Subsidiaries in Puerto Rico may have a limited number of
employees and de minimis liabilities and activities as contemplated by Borrower
as of the Effectiveness Date. No Company shall, directly or indirectly, enter
into any management or similar agreement with any Person other than with any one
or more Principal Investors and Investor Affiliates (other than (i) employment
or consulting agreements entered into in the ordinary course of business, (ii)
such agreements entered into with holders of substantial minority interests in
Non-Qualified Subsidiaries operating in Caribbean nations (other than Puerto
Rico) which do not confer voting control of such Subsidiaries on such minority
holders and (iii) operating and management agreements with respect to Minority
Interests).
9.06. Limitation on Fundamental Changes, Acquisitions or Dispositions. No
Company shall, directly or indirectly, in a single transaction or series of
transactions, (1) merge, consolidate or amalgamate with or into any Person
(other than pursuant to the Reorganization), or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), (2) effect any Acquisition,
or (3) effect any Disposition (or agree to do any of the foregoing).
Notwithstanding the foregoing provisions of this Section 9.06, each of the
following shall be permitted if and to the extent complying with the Parent
Financing Documents, the Senior Subordinated Notes Financing Documents and the
Additional Senior Subordinated Notes Documents (and any Permitted Refinancing of
any thereof) as from time to time in effect (if then in effect):
(a) purchases and sales of Property (other than business units) in the
ordinary course of business;
(b) the pledge of the Collateral pursuant to the Security Documents
and the incurrence of any Permitted Lien;
(c) the merger, consolidation, dissolution or liquidation of (1) any
Subsidiary with or into (i) Borrower or PR Borrower if Borrower or PR
Borrower shall be the continuing or surviving corporation or (ii) any
Qualified Subsidiary (other than PR Borrower) if a Qualified Subsidiary
shall be the continuing or surviving corporation, (2) in any transaction in
which no person other than Borrower, PR Borrower or a Qualified Subsidiary
receives any consideration, any Subsidiary that is not a Qualified
Subsidiary with or into any Qualified Subsidiary, and (3) any Subsidiary
that is not a Qualified Subsidiary with or into any other Subsidiary that
is not a Qualified Subsidiary;
(d) Dispositions by any Company to Borrower or to any Qualified
Subsidiary or by any Subsidiary that is not a Qualified Subsidiary to any
other Subsidiary that is not a Qualified Subsidiary;
(e) Dispositions of used, worn out, obsolete or surplus Property by
any Company in the ordinary course of business; provided, however, that the
proceeds thereof shall be reinvested in the business of Borrower or any
Subsidiary within one year of such Disposition;
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(f) sale or discount, in each case without recourse, of accounts
receivable past due arising in the ordinary course of business, but only in
connection with the compromise or collection thereof; provided, however,
that in no event may any Company enter into any factoring or securitization
program with respect to receivables;
(g) Borrower or any Subsidiary may effect any Disposition (other than
any Disposition of Equity Interests in Borrower (other than Equity
Interests acquired by Parent and duly pledged under the Security Agreement)
or, except as permitted by Section 9.06(q), PR Borrower or any direct
parent thereof) for fair market value provided that (1) the aggregate book
value of all assets subject to such Dispositions does not exceed at any
time for all such Dispositions since the Effectiveness Date for Borrower
and the Subsidiaries in the aggregate 10% of total consolidated assets of
the Borrower and the Subsidiaries immediately prior to giving effect to
such Disposition and (2) the assets and operations subject to all such
Dispositions consummated in any fiscal year shall not have accounted for
more than 10% of Operating Cash Flow for the immediately preceding fiscal
year; provided further, however, that not less than 80% of the
consideration received in respect of such Disposition is paid in cash or
cash equivalents and the Net Available Proceeds therefrom are applied as
specified in Section 2.10(a)(iv) to prepay Loans or to be reinvested in
other property usable or useful in the business of the Borrower and its
Subsidiaries (and if such Disposition is of or by a Qualified Subsidiary,
such reinvestment shall be made in an Obligor or shall be counted against
and be subject to the limits set forth in Sections 9.06 and 9.09); it is
expressly understood that dispositions that are part of swap transactions
are permitted under this Section 9.06(g) subject to satisfaction of the
foregoing requirements and subject to the final paragraph of this Section
9.06;
(h) Acquisitions by Borrower or any Qualified Subsidiary of all or
substantially all the assets of, or Equity Interests in an amount
sufficient to make such Person a Wholly Owned Subsidiary in, a Person or
division or business unit engaged in a line or lines of business permitted
by Section 9.05 if, immediately after giving effect thereto:
(i) no Default then exists or would result therefrom;
(ii) after giving pro forma effect in accordance with GAAP to such
Acquisition, Borrower shall be in compliance with all covenants set forth
in Section 9.11 as of the Test Date immediately prior to the consummation
thereof (assuming, for purposes of Section 9.11, that such Acquisition, and
all other Permitted Acquisitions consummated since the first day of the
relevant measurement period for each financial covenant set forth in
Section 9.11 ending on or prior to the date of such Acquisition, had
occurred on the first day of such relevant measurement period) and, if such
Acquisition involves aggregate Acquisition Consideration and projected
Investments in an amount greater than $50.0 million, Borrower shall have
delivered to Co-Syndication Agents, Administrative Agent and the Lenders
not later than three Business Days prior to the consummation of such
Acquisition an Officers' Certificate certifying that such Acquisition
complies with this Section 9.06(h) (which shall have attached thereto
backup data and calculations showing such compliance in such detail as the
Co-Syndication Agents and the Administrative Agent may from time to time
reasonably request);
(iii) the Properties acquired in connection with any such Acquisition
shall be free and clear of any Liens, other than Permitted Liens;
(iv) the board of directors of the acquired Person shall not have
indicated privately at the time of consummation of the Acquisition to any
Company or publicly its opposition to the consummation of such Acquisition;
(v) such Acquisition shall be effected through Borrower or a Qualified
Subsidiary and the Person or business acquired shall at the time of
consummation of such Acquisition be merged or combined or consolidated with
or into a Qualified Subsidiary or shall be at the time of consummation
thereof a Qualified Subsidiary and all actions required to be taken with
respect to any assets or Person acquired in such acquisition under Sections
9.12 and 9.20 shall have been taken;
(vi) prior to the completion of any such Acquisition, Borrower shall,
and shall cause its Subsidiaries to, obtain material approvals and consents
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of all Governmental Authorities and all material consents of other Persons
(including without limitation the FCC and each other Communications
Regulatory Authority), in each case that are necessary or advisable in
connection with the transfer of any Licenses and the continued operation of
the System or business being acquired in substantially the manner proposed
to be conducted following the consummation of such Acquisition; and
(vii) contemporaneously with or as soon as practicable after the
completion of any such Acquisition, Borrower shall, and shall cause its
Subsidiaries to, transfer to a License Subsidiary any Licenses acquired in
connection with such Acquisition (other than Licenses on which the Lenders
shall have an enforceable first priority perfected Lien and on which no
other Person shall have any Lien); it is expressly understood that
Acquisitions that are part of swap transactions are permitted under this
Section 9.06(h) subject to the satisfaction of the foregoing requirements
with respect to such Acquisition and subject to the final paragraph of this
Section 9.06;
(i) the Acquisition of the Puerto Rico cable television assets of
Pegasus Communications Corp. on substantially the terms contemplated by the
Information Memorandum for aggregate Acquisition Consideration not to
exceed $180.0 million;
(j) transfers resulting from any casualty or condemnation of Property;
(k) licenses or sublicenses by any Company of software, trademarks and
other intellectual property and general intangible and leases, licenses or
subleases of other property in the ordinary course of business and which do
not materially interfere with the business of any Company;
(l) any consignment arrangements or similar arrangements for the sale
of assets in the ordinary course of business of any Company;
(m) the liquidation in the ordinary course of business of (A)
Permitted Investments and (B) Investments made pursuant to Section
9.09(A)(a);
(n) the Acquisition of All America Cables and Radio, Inc. and related
assets on substantially the terms contemplated by the Information
Memorandum for aggregate Acquisition Consideration not to exceed $30.0
million plus assumed Indebtedness that is in compliance with the last
paragraph of Section 9.08;
(o) Acquisitions or investments in joint ventures or Minority
Interests not otherwise permitted hereunder by Borrower or any Subsidiary;
provided, however, that (1) the sole consideration provided therefor by any
Company consists of (A) common Equity Interests of Parent or the proceeds
of any common Equity Interests of Parent and/or (B) other Acquisition
Consideration and Investments in an aggregate amount for such Acquisition
or Investment that when taken together with the aggregate amount of the
Acquisition Consideration for all the Acquisitions and investment
consideration for all Investments consummated under this Section 9.06(o)
and the aggregate amount of all Investments made under Section 9.09(A)(m)
since the Effectiveness Date shall not exceed (net of return of capital of
(but not return on) any such Acquisition Consideration or Investment)
$250.0 million, provided that the aggregate amount of such Acquisition
Consideration and Investments as of any date after the first anniversary of
the Effectiveness Date shall not exceed the lesser of (i) $250.0 million
and (ii) an amount equal to the sum of (I) $125.0 million plus (II) the
aggregate amount of such Acquisition Consideration and Investments
outstanding as of such first anniversary of the Effectiveness Date, plus
(III) the aggregate amount of Acquisition Consideration and Investments
that the Borrower or any Subsidiaries are obligated to pay or make after
such first anniversary pursuant to contractual commitments to third parties
existing on such first anniversary that were entered into in connection
with an Acquisition or Investment partially effected prior to such first
anniversary (provided that the amount referred to in this clause (III)
shall only be available to make such Acquisitions or Investments pursuant
to such commitments), in each case net of return of capital of (but not
return on) any such Acquisition Consideration and Investments, and (2) such
Acquisition shall comply with each of clauses (i), (ii), (iii), (iv), and
(vi) of Section 9.06(h) (with references therein to Section 9.06(h) being
deemed references to this Section 9.06(o)) and Section 9.20; and provided
further that (x) in the event that after any Acquisition of or Investment
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in any such Subsidiary or Person all the requirements of Section 9.06(h)
shall have been satisfied for such Subsidiary or Person, compliance with
the limits set forth in this Section 9.06(o) and in Section 9.09(A)(m)
shall be determined without including any Acquisition Consideration for or
Investment in such Person or Subsidiary previously made in reliance on this
Section 9.06(o) or Section 9.09(A)(m) and (y) the aggregate amount of such
Acquisition Consideration and Investments outstanding at any time that are
attributable to Minority Investments shall not exceed $50.0 million, in
each case net of return of capital of (but not return on) any such
Acquisition Consideration and Investments; it is expressly understood that
acquisitions or investments that are part of swap transactions are
permitted under this Section 9.06(o) subject to the satisfaction of the
foregoing requirements with respect to such acquisition or investment and
subject to the final paragraph of this Section 9.06;
(p) Sale and Leaseback Transactions permitted by Section 9.08(o);
(q) Borrower and the Subsidiaries may effect the sale of Equity
Interests of PR Borrower or Centennial Caribbean Holding Corp. in any
public offering of shares so long as (1) after giving effect thereto,
Borrower owns directly or indirectly not less than 80% of the Equity
Interests then outstanding in such Subsidiary and (2) the Net Available
Proceeds thereof are applied as required by Section 2.10(a)(iv); and
(r) any Investment expressly permitted under Section 9.09.
For purposes of clarification, the lease of cell sites owned by any Company
shall not be prohibited hereunder. Subject to Section 12.04, to the extent the
Majority Lenders waive the provisions of this Section 9.06 with respect to the
sale or other disposition of any Collateral or property, or any Collateral or
property is sold or otherwise disposed of as permitted by this Section 9.06
(other than to any Obligor), (x) such Collateral in each case shall be sold or
otherwise disposed of free and clear of the Liens created by the Security
Documents and Administrative Agent shall take such actions as are appropriate in
connection therewith and (y) in the event that the Collateral or property sold
or disposed of consists of all the Equity Interests of a Subsidiary owned by the
Companies, such Subsidiary shall be released from all its obligations under the
Credit Documents and the Administrative Agent shall take such actions as are
appropriate in connection therewith.
For purposes of clarification, it is understood and agreed that swap
transactions in which the Companies acquire or dispose of Subsidiaries and other
interests are permitted within the requirements of this Section 9.06 and that
the following rules shall apply to swap transactions for purposes of determining
compliance with the above provisions:
(i) if the acquired swapped business or businesses or interests
constitute a Permitted Acquisition under Section 9.06(h), the book value of
the assets disposed of for purposes of Section 9.06(g) in respect of the
Disposition shall be deemed to consist solely of the assets received by the
Companies other than such acquired swapped businesses or interests; and
(ii) if the acquired swapped business or businesses or interests do
not constitute a Permitted Acquisition under Section 9.06(h), (A) the
Acquisition Consideration therefor for purposes of Section 9.06(o) shall be
deemed to be the fair market value of all the consideration given by the
Companies less any part of such consideration consisting of a Non-Qualified
Subsidiary or Minority Interest or the assets thereof and less the amount
of any cash consideration received by the Companies in such swap and less
the fair market value of all other assets (other than Non-Qualified
Subsidiaries, Minority Interests and Equity Interests therein) received by
the Companies in such swap that will be owned by an Obligor and constitute
Collateral and (B) the book value of the assets disposed of for purposes of
Section 9.06(g) in respect of the Disposition shall be deemed to consist
solely of the assets received by the Companies, other than such acquired
swapped businesses or interests, plus the fair market value of any part of
such swapped business or businesses or interests consisting of a
Non-Qualified Subsidiary or Minority Interest or the assets thereof.
9.07. Limitation on Liens and Negative Pledges. No Company shall, directly
or indirectly, create, incur, assume or suffer to exist any Lien upon or with
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respect to any of their respective Property, whether now owned or hereafter
acquired, except, with respect to Collateral, for Liens expressly permitted by
the applicable Security Document and except for the following (so long as
complying with the Parent Financing Documents, the Parent Refinanced Notes
Documents, the Senior Subordinated Notes Financing Documents, the Additional
Senior Subordinated Notes Documents (and any Permitted Refinancing of any
thereof) from time to time in effect (if then in effect)), which are herein
collectively referred to as "Permitted Liens":
(a) Liens (including any Prior Liens) in existence on the
Effectiveness Date and identified in Schedule 9.07;
(b) Liens imposed by any Governmental Authority for taxes, assessments
or charges (other than any de minimis taxes, assessments or charges) not
yet due or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of the Companies, in accordance with GAAP;
(c) Liens imposed by law which were incurred in the ordinary course of
business, such as carriers', warehousemen's, landlords' and mechanics'
Liens and other similar Liens arising in the ordinary course of business,
including in connection with the buildout and development of Systems, in
each case for sums the payment of which is not required by Section 9.03;
(d) pledges or deposits under workers' compensation, unemployment
insurance and other social security legislation (including the Federal
Employer's Liability Act) or the deposits securing the liability to
insurance carriers, in each case arising in the ordinary course of
business;
(e) pledges or deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business under insurance or self
insurance agreements;
(f) easements, rights-of-way, restrictions or minor defects or
irregularities in title imposed by law or incurred in the ordinary course
of business and encumbrances consisting of zoning restrictions, easements,
licenses, restrictions on the use of Real Property or minor imperfections
in title thereto which, in the aggregate, are not material in amount, and
which do not in any case materially detract from the value of the Real
Property subject thereto or interfere with the ordinary conduct of the
business of any Company;
(g) Liens upon Property acquired after the Effectiveness Date by
Borrower or any Subsidiary, which Liens either (A) existed on such Property
before the time of its acquisition and were not created in anticipation
thereof, or (B) were created solely for the purpose of securing
Indebtedness representing, or incurred to finance or refinance, the cost of
such Property or improvements thereon; provided, however, that (1) no such
Lien shall extend to or cover any Property of any Company other than the
Property so acquired and improvements thereon and proceeds thereof, and (2)
the principal amount of Indebtedness secured by any such Lien shall at no
time exceed 100% of the fair market value of such Property at the time it
was acquired or constructed;
(h) Liens existing on any Property of any Person at the time such
Property is acquired or such Person becomes a Subsidiary or is merged or
consolidated with or into a Subsidiary and, in each case, not created in
contemplation of or in connection with such event; provided, however, that
such Liens do not extend to any other Property of any Company;
(i) Liens not otherwise permitted hereunder (on Property other than
the Collateral) securing obligations of any Company at any time not
exceeding in the aggregate $10.0 million;
(j) Liens securing obligations under Swap Contracts with any Creditor
to the extent such Swap Contract relates to the Loans and only so long as
the Obligations are secured by the same collateral on at least a pari passu
basis;
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(k) Liens consisting of judgment or judicial attachment Liens
(including pre-judgment attachment) in existence less than 60 days after
the entry thereof or the enforcement of which is effectively stayed or
payment of which is covered in full (subject to a customary deductible) by
insurance or which do not otherwise result in an Event of Default under
Section 10(h) or (n);
(l) Liens securing obligations in respect of Capital Leases solely on
Property (including improvements thereto and the proceeds thereof) subject
to such Capital Leases;
(m) any obligations or duties affecting any of the Property of any
Company to any municipality or public authority with respect to any
franchise, grant, license or permit which do not materially impair the use
of such Property for the purposes for which it is held and restrictions on
the transfer of assets imposed by the FCC or the Communications Act or
other regulatory authorities in effect generally on all Persons subject
thereto;
(n) leases or subleases granted to third Persons not interfering in
any material respect with the business of any Company;
(o) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(p) any interest or title of a lessor or sublessor under any lease
permitted by this Agreement;
(q) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods so long as such Liens attach only to the imported
goods;
(r) Liens arising out of consignment or similar arrangements for the
sale of goods entered into by any Company in the ordinary course of
business;
(s) Liens created under this Agreement and/or the other Credit
Documents;
(t) Liens granted pursuant to the Senior Subordinated Notes Interest
Escrow Agreement securing the Senior Subordinated Notes as such Senior
Subordinated Notes Interest Escrow Agreement was in effect on the Original
Closing Date and solely with respect to the Property contemplated thereby
on the Original Closing Date and Liens granted pursuant to any interest
escrow agreement securing the Additional Senior Subordinated Notes or the
Parent Refinanced Notes so long as solely covering Property of the type
contemplated by the Senior Subordinated Notes Interest Escrow Agreement;
(u) Liens that are contractual rights of setoff;
(v) Liens arising in connection with buy/sell agreements related to
Equity Interests of any Person that is not a Wholly Owned Subsidiary;
(w) any Lien arising by operation of law pursuant to Section 107(l) of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. 9607(l), for costs or damages which are not yet
due (by virtue of a written demand for payment by a Governmental Authority)
or which are being contested in compliance with the standard set forth in
Section 9.03(iii); provided that Borrower is in full compliance with all
obligations hereunder including without limitation Sections 9.14 and
12.03(b); and provided, further, that the liability of Borrower and the
Subsidiaries with respect to the matters giving rise to all such Liens
shall not, in the reasonable estimate of Administrative Agent, exceed $2.0
million;
(x) Liens disclosed in any title insurance policies delivered pursuant
to Section 9.12 and permitted under Section 9.12(iii)(7); and
(y) any extension, renewal or replacement of the foregoing; provided,
however, that the Liens permitted by this Section 9.07(y) shall not cover
any additional principal amount of Indebtedness or Property (other than
like Property substituted for Property covered by such Lien).
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Except with respect to (i) specific Property encumbered pursuant to a Lien
permitted to be incurred pursuant to this Section 9.07, (ii) specific Property
to be sold pursuant to an executed agreement with respect to a Disposition or
Excluded Disposition consummated in accordance with this Agreement, (iii)
customary non-assignment clauses or (iv) Property the pledge of which is limited
by law, and except as contemplated by the Security Agreement, no Company will
directly or indirectly, enter into any agreement on or after the Effectiveness
Date prohibiting or restricting in any manner (directly or indirectly and
including by way of covenant, representation or warranty or event of default)
the creation or assumption of any Lien upon its Property to secure obligations
under the Credit Documents, whether now owned or hereafter acquired, except
pursuant to the Credit Documents, the Senior Subordinated Notes Financing
Documents, the Additional Senior Subordinated Notes Documents, the Parent
Refinanced Notes Documents and any Permitted Refinancing of any thereof (so long
as such Parent Refinanced Notes Documents or any such Permitted Refinancing is
not more restrictive in such regard than the Senior Subordinated Notes Financing
Documents as in effect on the Original Closing Date and expressly allows for
Liens securing the Obligations).
For purposes of clarification, the lease of cell sites owned by any Company
shall not be prohibited hereunder.
9.08. Prohibition on Disqualified Capital Stock; Limitation on Indebtedness
and Contingent Obligations. No Company shall directly or indirectly issue or
permit to be outstanding any Disqualified Capital Stock. No Company shall,
directly or indirectly, incur any Indebtedness or any Contingent Obligation,
except (each of which shall be given independent effect) for the following (so
long as complying with the Parent Financing Documents , the Parent Refinanced
Notes Documents the Senior Subordinated Notes Financing Documents and the
Additional Senior Subordinated Notes Documents (and any Permitted Refinancing of
any thereof) from time to time in effect (if then in effect)):
(a) the Loans and the other Obligations (including the Guarantees)
under the Credit Documents;
(b) the Existing Notes, the Senior Subordinated Notes, the Parent
Subordinated Notes (but only so long as not a direct or indirect obligation
of Borrower or any Subsidiary), other Indebtedness and Contingent
Obligations outstanding on the Effectiveness Date and listed in Schedule
9.08 and specified on Schedule 9.08 as to remain outstanding after the
Effectiveness Date (less the aggregate amount of any permanent prepayments
or repayments thereof) and, in the case of the Senior Subordinated Notes,
the Parent Subordinated Notes and any such Indebtedness listed on Schedule
9.08, Permitted Refinancings thereof;
(c) Indebtedness and Contingent Obligations of Borrower or any
Subsidiary owing to Borrower or any Qualified Subsidiary; provided,
however, that (1) if such Indebtedness is owed by a Non-Qualified
Subsidiary to any Obligor, such Indebtedness shall be subject to the
limitations set forth in Section 9.09(A)(m), (s) or (u) and (2) such
Indebtedness and Contingent Obligations shall not be held by any Person
other than Borrower or a Qualified Subsidiary and shall not be subordinate
to any other Indebtedness or Contingent Obligations or other obligation of
the obligor unless also subordinated to the Loans on terms no less
favorable to the Lenders than that of any other creditor;
(d) Contingent Obligations in respect of operating leases;
(e) Indebtedness and Contingent Obligations arising from honoring a
check, draft or similar instrument against insufficient funds; provided,
however, that such Indebtedness is extinguished within two Business Days of
its incurrence;
(f) Swap Contracts not entered into for any speculative purpose
entered into to protect the Obligors against fluctuations in interest
rates, currency exchange rates, or similar risks (including any Interest
Rate Protection Agreement entered into pursuant to Section 9.18);
(g) Contingent Obligations of Borrower or any Qualified Subsidiary in
respect of Indebtedness or other liabilities of Borrower or any Subsidiary
to the extent that the existence of such Indebtedness or other liabilities
is not prohibited under this Agreement;
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(h) Contingent Obligations in connection with Dispositions permitted
under Section 9.06, arising in connection with indemnification and other
agreements in respect of any contract relating to such Disposition, not to
exceed the consideration received or to be received by Borrower or any
Subsidiary (which consideration shall be deemed to exclude any obligation
of any third Person incurred in connection with the acquisition of the
Property which is the subject of such Disposition) in connection with such
sale;
(i) Subject to the final paragraph of this Section 9.08, Indebtedness
and Contingent Obligations of Borrower and the Subsidiaries secured by
Liens permitted under Section 9.07(g) or (l) (and extensions, renewals or
replacements of such Liens pursuant to Section 9.07(y)) not exceeding $30.0
million in the aggregate at any time outstanding for Borrower and the
Subsidiaries collectively;
(j) Subject to the final paragraph of this Section 9.08, Indebtedness
of a Person that becomes a Subsidiary after the date hereof; provided,
however, that (1) such Indebtedness existed at the time such Person became
a Subsidiary and was not created in connection with or in anticipation
thereof, (2) immediately after giving effect to the acquisition of such
Person by Borrower no Default shall have occurred and be continuing, and
(3) the aggregate amount of Indebtedness outstanding at any time pursuant
to this Section 9.08(j) shall not exceed (together with any Indebtedness of
such Person that refinances such Indebtedness, provided that such
refinancing Indebtedness has a weighted average maturity greater than, and
a principal amount that does not exceed, that of the Indebtedness being
refinanced) $50.0 million for all Subsidiaries at any time;
(k) Subject to the final paragraph of this Section 9.08, Indebtedness
and Contingent Obligations incurred by any Company not to exceed in the
aggregate at any time outstanding $50.0 million in the aggregate for all
Companies;
(l) Indebtedness of any Company to (including obligations in respect
of letters of credit for the benefit of) any Person providing worker's
compensation, health, disability or other employee benefits or property,
casualty or liability insurance to any Company;
(m) Indebtedness or Contingent Obligation of any Company in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations and trade letters of credit, in each case provided in the
ordinary course of business, including those incurred to secure health,
safety and environmental obligations in the ordinary course of business,
and any extension, renewal or refinancing thereof to the extent the amount
of refinancing Indebtedness or Contingent Obligations is not greater than
the amount of Indebtedness or Contingent Obligations being refinanced;
(n) any Additional Senior Subordinated Notes and any Contingent
Obligation of any Obligor in respect thereof (which Contingent Obligations
shall be subordinated to the Obligations on customary market terms for
senior subordinated obligations of debtors such as the Companies and be
subject to customary release provisions) so long as at the time of the
incurrence thereof and after giving pro forma effect thereto Borrower would
be in compliance with all Financial Maintenance Covenants and no Default
has occurred and is continuing or would arise therefrom, and Permitted
Refinancings thereof;
(o) Subject to the final paragraph of this Section 9.08, Capital Lease
Obligations incurred by Borrower and the Subsidiaries in respect of any
Sale and Leaseback Transaction not to exceed (x) with respect to any such
transaction involving Borrower's or any of its Subsidiaries' towers, in the
aggregate, $20.0 million at any time, or with the prior approval of the
terms and conditions thereof by the Administrative Agent and the
Co-Syndication Agents, $50.0 million at any time, and (y) with respect to
other assets, in the aggregate, $50.0 million at any time; provided,
however, that such Sale and Leaseback Transaction involves a sale of
Property by Borrower or a Subsidiary solely for cash consideration on terms
not less favorable than would prevail in an arm's-length transaction and
(i) except in the case of obligations under clause (x) above, such
obligation results from a financing transaction to acquire Property and
occurs within 270 days after the acquisition of such Property, (ii) results
in an operating lease not involving any Company, or (iii) results in a
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Capital Lease Obligation or an operating lease entered into for any
purpose; provided, that the proceeds of any such Sale and Leaseback
Transaction in reliance upon this clause (iii) shall be deemed subject to
Section 2.10(a)(iv);
(p) any Parent Refinanced Notes incurred solely to repay in full the
Parent Subordinated Notes Obligations so long as at the time of the
incurrence thereof the Parent Subordinated Notes Obligations are repaid in
full and after giving pro forma effect thereto Borrower would be in
compliance with all Financial Maintenance Covenants and no Default then
exists or would arise therefrom, and Permitted Refinancings thereof; and
(q) Indebtedness or Contingent Obligations expressly permitted under
Section 9.09 and not otherwise permitted under this Section 9.08.
Notwithstanding anything to the contrary in this Agreement, no License
Subsidiary shall incur any Indebtedness or Contingent Obligation other than the
Guarantee and such obligations as are contemplated by the definition of "License
Subsidiary" or Section 9.05.
All intercompany debt shall be unsecured and subordinate in right of
payment (to the same extent as the subordination provisions set forth in Exhibit
B hereto) to the Obligations. Each Obligor, by its execution and delivery of
this Agreement, hereby agrees to subordinate its right of payment under any
intercompany debt owed to it by Borrower or any Subsidiary to the full and
complete payment and performance of the Obligations. No Obligor shall incur any
Subordinated Debt or any Contingent Obligation in respect of any Subordinated
Debt unless otherwise permitted by the foregoing exceptions listed as clauses
(a) through (r) above and unless such Subordinated Debt or Contingent Obligation
shall be subordinated to the Obligations at least to the same extent and for so
long as such Subordinated Debt or the Subordinated Debt in respect of which such
Contingent Obligation is incurred is subordinated to such other Indebtedness. No
intercompany debt may be evidenced by any note or other instrument except as
expressly required hereby or in any case in which such note or instrument has
been duly pledged under the Security Agreement.
Notwithstanding any other provision of this Agreement, the aggregate amount
of Indebtedness and Contingent Obligations that may be outstanding by the
Non-Qualified Subsidiaries at any time under clauses (i), (j), (k), and (o)
above is $30.0 million.
9.09. Limitation on Investments; Limitation on Creation of Subsidiaries.
(A) No Company shall, directly or indirectly, make or permit to remain
outstanding any Investments, except for the following (so long as complying with
the Parent Financing Documents, the Senior Subordinated Notes Financing
Documents and the Additional Senior Subordinated Notes Documents(and any
Permitted Refinancing of any thereof) from time to time in effect (if then in
effect)):
(a) operating deposit accounts and certificates of deposit with banks
in the ordinary course of business;
(b) Permitted Investments and Investments that were Permitted
Investments when made;
(c) (i) Investments by any Company in Borrower or any Qualified
Subsidiary, (ii) Investments constituting Permitted Acquisitions under
Section 9.06(h) or (i) in any Subsidiary if as a result thereof or in
connection therewith such Subsidiary becomes a Qualified Subsidiary and
(iii) Investments constituting Permitted Acquisitions under Section 9.06(n)
or (o) (provided that no Investment will be permitted in respect of any
Subsidiary with respect to which Borrower or PR Borrower has not complied
with Section 9.20 and that no Non-Qualified Subsidiary may own any Equity
Investment in any Qualified Subsidiary);
(d) Investments outstanding on the Effectiveness Date and identified
in Schedule 9.09 and any renewals, amendments and replacements thereof that
do not increase the amount thereof;
(e) Investments that constitute Indebtedness or Contingent Obligations
permitted under Section 9.08;
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(f) advances, loans or extensions of credit by any Company to (1)
employees of any Company in the ordinary course of business; provided,
however, that the aggregate amount of all such loans, advances and
extensions of credit (other than pursuant to clause (2) of this Section
9.09(A)(f)) shall not at any time exceed in the aggregate $3.0 million
(without giving effect to any write-down or write-off thereof) and (2)
employees of any Company in connection with stock option plans so long as
(x) such loans do not involve cash payments by any Company and (y) no
Company incurs any obligations at any time to repurchase the stock so
purchased;
(g) (i) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business and (ii) prepayments and other credits to
suppliers made in the ordinary course of business;
(h) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security or similar legislation;
(i) pledges or deposits in connection with (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money),
leases or statutory obligations, (ii) contingent obligations on surety or
appeal bonds, and (iii) other non-delinquent obligations of a like nature,
in each case incurred in the ordinary course of business;
(j) Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(k) additional Investments in any Non-Qualified Subsidiary to the
extent that such Investments reflect an increase in the stockholders'
equity of such Subsidiary resulting solely from retained earnings of such
Subsidiary;
(l) Liens not prohibited by this Agreement;
(m) Investments by any Company in any Non-Qualified Subsidiary or any
Minority Interest or in any other Person so long as no Default shall have
occurred and be continuing or result from the making of such Investment;
provided, however, that (1) the aggregate amount of all such Investments
made since the Effectiveness Date shall not when taken together with the
aggregate amount of the Acquisition Consideration for all the Acquisitions
consummated under Section 9.06(o) since the Effectiveness Date exceed (net
of return of capital of (but not return on) any such Acquisition
Consideration or Investment) $250.0 million, provided that the aggregate
amount of such Investments and Acquisition Consideration as of any date
after the first anniversary of the Effectiveness Date shall not exceed the
lesser of (i) $250.0 million and (ii) an amount equal to the sum of (I)
$125.0 million plus (II) the aggregate amount of such Acquisition
Consideration and Investments outstanding as of such first anniversary date
of the Effectiveness Date plus (III) the aggregate amount of Acquisition
Consideration and Investments that the Borrower or any Subsidiaries are
obligated to pay or make after such first anniversary pursuant to
contractual commitments to third parties existing on such first anniversary
that were entered into in connection with an Acquisition or Investment
partially effected prior to such first anniversary (provided that the
amount referred to in this clause (III) shall only be available to make
such Acquisitions or Investments pursuant to such commitments), in each
case, net of return of capital of (but not return on) any such Acquisition
Consideration and Investments, and (2) all such Investments shall to the
extent possible be evidenced by intercompany notes, which shall be pledged
to Administrative Agent pursuant to the Security Agreement to the extent
required by Section 9.20; and provided further that (x) in the event that
after any Acquisition of or Investment in any such Subsidiary or Person all
the requirements of Section 9.06(h) shall have been satisfied for such
Subsidiary or Person, compliance with the limits set forth in this Section
9.09(A)(m) and Section 9.06(o) shall be determined without including any
Acquisition Consideration for or Investment in such Person or Subsidiary
previously made in reliance on this Section 9.09(A)(m) or Section 9.06(o),
and (y) the aggregate amount of such Investments and Acquisition
Consideration outstanding at any time that are attributable to Minority
Investments shall not exceed $50.0 million, in each case, net of return of
capital of (but not return on) any such Acquisition Consideration and
Investments;
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(n) Borrower or any Subsidiary may hold the Equity Interests of any
Subsidiary existing on the Effectiveness Date or created or acquired
thereafter in accordance with the provisions hereof and any additional
Equity Interests issued in exchange therefor or as a dividend thereon;
(o) Investments consisting of prepayments and other credits to
suppliers in the ordinary course of business;
(p) Investments consisting of Permitted Acquisitions;
(q) Investment in Minority Interests to the extent forming part of the
assets acquired in a Permitted Acquisition so long as such Minority
Interests do not comprise more than 20% of the consolidated assets of the
entity acquired as set forth in the financial statements related thereto,
provided that the aggregate amount of such Investments made after the
Effectiveness Date does not exceed $50.0 million (net of return of (but not
return on) capital) when taken together with the aggregate amount of
Investments and Acquisition Consideration outstanding at any time under
Section 9.06(o) or 9.09(A)(m) that are attributable to Minority
Investments;
(r) Investments (other than Acquisitions) made with Equity Interests
of Parent;
(s) Investments in All America Cables and Radio, Inc. in addition to
the Acquisition Consideration paid therefor in an aggregate amount not to
exceed $140,000,000, provided that all such Investments shall be evidenced
by Intercompany Notes to the extent practicable, which shall be pledged to
Administrative Agent pursuant to the Security Agreement;
(t) Investments consisting of non-cash consideration received in the
form of notes, securities or similar obligations in connection with any
permitted Disposition, provided that the aggregate amount of such
Investments made in connection with Dispositions other than those made
under Section 9.06(g) and outstanding at any time shall not exceed $10.0
million;
(u) other Investments in an aggregate amount (net of return of capital
of but not return on) not to exceed $5.0 million at any time; and
(v) operating contracts between Companies in the ordinary course of
business that are not intended to be Investments and are not entered into
on a basis that is systematically disadvantageous to the Obligors.
(B) No Company shall, directly or indirectly, create or acquire any
Subsidiary without the prior written consent of the Majority Lenders, which
consent shall not be unreasonably withheld; provided, however, that (1) the
provisions of this Section 9.09(B) shall not require the Majority Lenders'
consent for (I) the creation or acquisition of direct or indirect Wholly Owned
Subsidiaries so long as Section 9.20 is complied with at the time of formation
or acquisition thereof and (II) the creation or acquisition of any Subsidiary
which is not a Wholly Owned Subsidiary so long as the Investment made in
connection therewith complies with Section 9.09(A) and so long as Section 9.20
is complied with at the time of formation or acquisition thereof; and (2) all
Investments in any Subsidiary, including in connection with the creation or
acquisition thereof, must comply with Section 9.09(A).
9.10. Limitation on Dividend Payments. No Company shall, directly or
indirectly, declare or make any Dividend Payment at any time, except:
(a) any Subsidiary may declare and make Dividend Payments to Borrower
or any Subsidiary and to minority interest holders in such Subsidiary if
made on a pro rata basis to all holders of Equity Interests in such
Subsidiary at the same time except that no Qualified Subsidiary may make
any Dividend Payment to any Non-Qualified Subsidiary;
(b) Dividend Payments on the date of consummation of the
Reorganization necessary to consummate the Transactions in accordance with
the Transaction Documents;
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(c) so long as no Default has occurred and is continuing or would
arise therefrom, Borrower may make Dividend Payments to Parent if the
proceeds thereof are used at the time of such Dividend Payment by Parent
(and Parent may use such Dividend Payments by Borrower as set forth below):
(i) to pay out-of-pocket expenses, for administrative, legal and
accounting services provided by third parties incurred in the ordinary
course of business for professional services, or to pay franchise fees and
similar costs;
(ii) to pay taxes of the Companies as part of a consolidated, combined
or unitary tax filing group or of the separate operations of Parent which
are actually due and payable arising from the ownership of the Equity
Interests of Borrower by Parent (not to exceed in any event the amount of
tax that Borrower and the Subsidiaries would otherwise pay if not part of
such filing group);
(iii) to redeem Equity Interests (other than Disqualified Capital
Stock) held by current or former employees or directors of any Company (or
their estates or beneficiaries of their estates) upon the death,
disability, retirement or termination of employment or directorship, as the
case may be, pursuant to any agreement in effect on the Effectiveness Date
as in effect on the Effectiveness Date and pursuant to other agreements on
substantially similar terms entered into after the Effectiveness Date;
provided, however, that the aggregate cash consideration paid, or
distributions made, pursuant to this clause (c)(iii) shall not exceed $5.0
million in any fiscal year ending after the Effectiveness Date (with any
unused portion of such amount being available for use in the next
succeeding fiscal year), except to the extent paid with the proceeds of a
substantially contemporaneous issuance of Qualified Capital Stock of Parent
(or any other direct or indirect parent of Borrower);
(iv) to pay regularly scheduled interest payments due on the Parent
Subordinated Notes at the time of such Dividend Payment as set forth in the
Parent Financing Documents; provided, however, any such Dividend Payments
made pursuant to this clause (iv) shall not exceed the Minority Interest
Basket and shall not be made any earlier than the Business Day prior to the
due date of such interest;
(v) to the extent regularly scheduled interest payments due on the
Parent Subordinated Notes are not satisfied by Dividend Payments allowed by
clause (iv) of this Section 9.10(c), if Borrower or any Subsidiary shall
have effected the Disposition of any Minority Interest pursuant to Section
9.06 (the "Sold Minority Interests"), to pay regularly scheduled interest
payments due on the Parent Subordinated Notes; provided, however, that (1)
any such Dividend Payments made pursuant to this clause (v) shall not
exceed the sum of the amounts included in the definition of Minority
Interest Basket pursuant to clause (A) thereof in respect of all such Sold
Minority Interests for the twelve months prior to each such Disposition,
(2) no such Dividend may be paid unless at the time of the making thereof
Borrower could incur $1.00 of additional Indebtedness pursuant to the first
paragraph of Section 4.11 of the Senior Subordinated Notes Indenture
(without giving effect to any waiver or amendment granted in respect
thereof by the holders of the Senior Subordinated Notes unless made in
accordance with the consent of the Majority Lenders) and (3) no such
Dividend Payment shall be made any earlier than the Business Day prior to
the due date of such interest; and
(vi) to pay monitoring and management fees permitted to be paid under
Section 9.15(j); and
(d) so long as no Default under Section 10(a), (d), (e), (f) or (g) or
with respect to Section 9.11 has occurred and is continuing or would arise
therefrom, Borrower may after the Senior Subordinated Notes Interest
Trigger Date (with respect to the Additional Senior Subordinated Notes (if
issued by any parent of Borrower)) or the Parent Refinanced Notes Trigger
Date (with respect to the Parent Refinanced Notes) make Dividend Payments
to any direct or indirect parent of Borrower not earlier than the second
Business Day prior to the due date of any scheduled interest payment on the
Additional Senior Subordinated Notes or the Parent Refinanced Notes if the
proceeds thereof are used at the time of such Dividend Payment by such
parent to pay, on the scheduled semiannual interest payments dates,
interest accrued on the Additional Senior Subordinated Notes or the Parent
Refinanced Notes, as the case may be, subsequent to (1) with respect to the
Additional Senior Subordinated Notes, the Senior Subordinated Notes
Interest Trigger Date (or such later date when the interest escrow in
respect thereof, if any, has been depleted) and (2) with respect to the
Parent Refinanced Notes, the Parent Refinanced Notes Interest Trigger Date.
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9.11. Financial Covenants.
(a) Maximum Total Leverage Ratio. The Total Leverage Ratio shall not,
as of any Test Date during any period set forth in the table below, exceed
the ratio set forth opposite such period in the table below:
-------------------------------------------------------- --------------
Period Ratio
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
Effectiveness 9.00
Date - 5/31/00
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/00 - 8/31/00 8.75
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
9/1/00 - 11/30/00 8.50
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
12/1/00 - 2/28/01 8.00
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
3/1/01 - 5/31/01 7.75
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/01 - 8/31/01 7.25
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
9/1/01 - 11/30/01 7.00
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
12/1/01 - 2/28/02 6.75
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
3/1/02 - 5/31/02 6.50
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/02 - 8/31/02 6.25
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
9/1/02 - 11/30/02 6.00
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
12/1/02 - 2/28/03 5.75
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
3/1/03 - 5/31/03 5.25
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/03 - 8/31/03 5.00
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
9/1/03 - 11/30/03 4.75
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
12/1/03 and thereafter 4.50
-------------------------------------------------------- --------------
(b) Maximum Senior Leverage Ratio. The Senior Leverage Ratio shall
not, as of any Test Date during any period set forth in the table below,
exceed the ratio set forth opposite such period in the table below:
-------------------------------------------------------- --------------
Period Ratio
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
Effectiveness
Date - 5/31/00 7.00
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/00 - 8/31/00 6.50
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
9/1/00 - 11/30/00 6.25
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
12/1/00 - 2/28/01 6.00
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
3/1/01 - 5/31/01 5.75
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/01 - 8/31/01 5.50
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
9/1/01 - 11/30/01 5.25
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
12/1/01 - 2/28/02 5.00
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
3/1/02 - 5/31/02 4.75
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/02 - 8/31/02 4.50
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
9/1/02 - 2/28/03 4.25
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
3/1/03 - 5/31/03 4.00
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/03 - 8/31/03 3.75
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
9/1/03 - 2/29/04 3.50
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
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3/1/04 - 5/31/04 3.25
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/04 and thereafter 3.00
-------------------------------------------------------- --------------
(c) Minimum Interest Coverage Ratio. The Interest Coverage Ratio shall
not, as of any Test Date during any period set forth in the table below, be
less than the ratio set forth opposite such period in the table below:
-------------------------------------------------------- --------------
Period Ratio
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
Effectiveness
Date - 5/31/01 1.35
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/01 - 8/31/01 1.40
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
9/1/01 - 2/28/02 1.45
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
3/1/02 - 8/31/02 1.50
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
9/1/02 - 2/29/04 1.75
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
3/1/04 - 2/28/05 2.00
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
3/1/05 - 2/28/06 2.25
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
3/1/06 and thereafter 2.50
-------------------------------------------------------- --------------
(d) Minimum Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio shall not, as of any Test Date during any period set forth in the
table below, be less than the ratio set forth opposite such period in the
table below:
-------------------------------------------------------- --------------
Period Ratio
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/00 and thereafter 1.00
-------------------------------------------------------- --------------
(e) Minimum Pro Forma Debt Service Coverage Ratio. The Pro Forma Debt
Service Coverage Ratio shall not, as of any Test Date during any period set
forth in the table below, be less than the ratio set forth opposite such
period in the table below:
-------------------------------------------------------- --------------
Period Ratio
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
12/1/00 - 5/31/01 1.10
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/01 - 5/31/02 1.15
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/02 - 5/31/03 1.20
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/03 - 5/31/04 1.25
-------------------------------------------------------- --------------
-------------------------------------------------------- --------------
6/1/04 and thereafter 1.30
-------------------------------------------------------- --------------
(f) Limitation on Capital Expenditures. The aggregate amount of
Capital Expenditures made by the Companies in any period set forth below
shall not exceed the amount set forth opposite such period below:
----------------------------------------------- -----------------------
Period Amount
----------------------------------------------- -----------------------
----------------------------------------------- -----------------------
Original Closing
Date - 11/30/99 $135.0 million
----------------------------------------------- -----------------------
----------------------------------------------- -----------------------
12/1/99 - 11/30/00 $115.0 million
----------------------------------------------- -----------------------
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; provided that to the extent Capital Expenditures made in any period above are
less than the amount set forth above for such period, such unused amount may be
carried forward to the succeeding period set forth above; and provided further
that additional Capital Expenditures in an amount not to exceed $60,000,000 may
be made during the period ending November 30, 2000, in connection with the
buildout of the business of All America Cables and Radio, Inc..
9.12. Pledge or Mortgage of Additional Collateral. In the case of each
Obligor, promptly, and in any event within 30 days, after the acquisition of any
Property of the type that would have constituted Collateral at the Effectiveness
Date (including the Equity Interests of any Subsidiary hereafter created or
acquired) other than Real Property (the "Additional Collateral") and after the
creation or acquisition of any Subsidiary, each Company shall take all action
reasonably necessary or desirable (to the extent permitted by applicable
Contractual Obligations existing on the Effectiveness Date), if any, including
the execution and delivery of all such agreements, assignments, documents,
registers and instruments (including amendments to the Credit Documents) and the
filing of appropriate financing statements or other documents under the
provisions of the UCC or applicable requirements of any Governmental Authority
in each of the offices where such filing is necessary or appropriate, to grant
(in the reasonable judgment of Administrative Agent or the Majority Lenders) to
Administrative Agent, for the benefit of the Creditors, a duly perfected first
priority Lien on such Property pursuant to appropriate Security Documents
(subject to Permitted Liens); provided, however, that (1) in no event shall any
Foreign Subsidiary be required to pledge assets, and (2) with respect to the
Equity Interests of Subsidiaries, Borrower, PR Borrower and the Domestic
Subsidiaries need only pledge 65% of the Equity Interests of Foreign
Subsidiaries and no Equity Interests of any Subsidiary that is both a Foreign
Subsidiary and not a direct Subsidiary of Borrower, PR Borrower or any Domestic
Subsidiary need be pledged.
In the event that, after the Effectiveness Date, any Obligor (including any
Subsidiary created or acquired on or after the Effectiveness Date but excluding
any Foreign Subsidiary) acquires or holds a fee interest with a fair market
value of $7.5 million or more in any Real Property, such Company shall notify
Administrative Agent and, if requested by Majority Lenders or Administrative
Agent, (i) to the extent permitted by applicable Contractual Obligations
existing on the Effectiveness Date, take such actions and execute such documents
as Administrative Agent or the Majority Lenders shall reasonably require to
confirm the Lien of an existing Mortgage, if applicable, or to create a new
Mortgage on such additional Real Property and (ii) cause to be delivered to
Administrative Agent, on behalf of the Creditors, the documents and instruments
reasonably requested by Administrative Agent, including, without limitation, the
items set forth in Section 7.01 in respect of Mortgaged Real Property. If
reasonably requested by Administrative Agent or the Majority Lenders, Borrower
shall obtain at its sole expense and as soon as practicable but in any event not
later than 45 days after request therefor, Phase 1 environmental reports from an
environmental engineering firm reasonably acceptable to Administrative Agent
with respect to any Real Property held by any Company if not delivered on or
prior to the Effectiveness Date.
With respect to each such Real Property, each such Company shall cause to
be delivered to Administrative Agent, on behalf of the Creditors, the following
documents and instruments (to the extent permitted by Contractual Obligations
existing on the Effectiveness Date):
(i) a Mortgage encumbering each Mortgaged Real Property in favor of
Administrative Agent, for the benefit of the Creditors, in form for
recording in the recording office of each jurisdiction where each such
Mortgaged Real Property is situated, together with such other documentation
as shall be required to create a lien under applicable law, and other
similar statements as are contemplated by counsel for Administrative Agent
and the Lenders, all of which shall be in form and substance reasonably
satisfactory to Administrative Agent, which Mortgage and other instruments
shall be effective to create a first priority Lien on such Mortgaged Real
Property subject to no Liens other than Prior Liens applicable to such
Mortgaged Real Property;
(ii) with respect to each Mortgaged Real Property, such consents, lien
waivers, approvals, estoppels, tenant subordination agreements or other
instruments as necessary or as shall be reasonably deemed required by
Administrative Agent to consummate the transactions contemplated hereby or
to grant the Lien contemplated by the Mortgage; and
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(iii) to the extent requested by the Administrative Agent, the
following documents and instruments:
(1) with respect to each Mortgaged Real Property, if required to
obtain the title insurance coverage (if any) required by Administrative
Agent, a Survey;
(2) with respect to each Mortgaged Real Property, policies or
certificates of insurance as reasonably required by the Mortgage relating
thereto;
(3) with respect to each Mortgaged Real Property, judgment, tax and
other lien searches in form and substance satisfactory to Administrative
Agent;
(4) evidence acceptable to Administrative Agent of payment by Borrower
of all title insurance premiums (if any), search and examination charges,
survey costs, mortgage recording taxes and related charges required for the
recording of the Mortgages and issuance of the title insurance policies (if
any) referred to in this Section 9.12;
(5) with respect to each Real Property or Mortgaged Real Property,
copies of all material leases in which any Company holds the landlord's or
the tenant's interest, each of which shall be reasonably acceptable to
Administrative Agent;
(6) with respect to each Mortgaged Real Property, an Officer's
Certificate that as of the date thereof there (a) has been issued and is in
effect, to the extent required, a valid and proper certificate of occupancy
of local or foreign equivalent (if any) for the use then being made of such
Mortgaged Real Property, (b) has not occurred any uncured material Casualty
Event of any Mortgaged Real Property and (c) except as may be disclosed in
the Survey of such Mortgaged Real Property delivered pursuant to subclause
(iii)(1) of this Section 9.12 above, are no material disputes regarding
boundary lines, location, encroachment or possession of such Mortgaged Real
Property and no state of facts existing which could reasonably be expected
to give rise to any such claim;
(7) if required by Administrative Agent or Majority Lenders, a policy
(or commitment to issue a policy) of title insurance insuring (or
committing to insure) the Lien of such Mortgage as a valid first priority
Lien on the real property and fixtures described therein in such amount not
to exceed 100% of the fair market value thereof as Administrative Agent may
reasonably require which policy (or commitment) shall (a) be issued by the
Title Company or another title insurance company acceptable to
Administrative Agent, (b) include such reinsurance arrangements (with
provisions for direct access) as shall be reasonably acceptable to
Administrative Agent, (c) have been supplemented by such endorsements (or
where such endorsements are not available, opinions of special counsel or
other professionals acceptable to Administrative Agent) as shall be
reasonably requested by Administrative Agent, (d) include such affidavits
and instruments of indemnifications by Borrower and the applicable
Subsidiary as shall be reasonably required to induce such title insurance
company to issue the policy or policies (or commitment) and endorsements
contemplated in this paragraph (7), and (e) contain no exceptions to title
other than exceptions for Prior Liens; and
(8) with respect to each Mortgaged Real Property, all such other items
as shall be necessary in the opinion of counsel to the Lenders to create a
valid perfected first priority mortgage in such Mortgaged Real Property.
The costs of all actions taken by the parties in connection with the pledge
of Additional Collateral or in connection with any Mortgage, including
reasonable costs of counsel for Administrative Agent, shall be paid by the
Obligors promptly following written demand.
9.13. Security Interests; Further Assurances. Each Company shall, promptly,
upon the reasonable request of Administrative Agent or any Lender, at Borrower's
expense, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or
cause to be registered, filed or recorded, in an appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise deemed by Administrative Agent reasonably
necessary or desirable for the continued validity, perfection and priority of
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the Liens on the Collateral covered thereby, or obtain any consents, including,
without limitation, landlord or similar lien waivers and consents, as may be
necessary or appropriate in connection therewith.
Each Company shall deliver or cause to be delivered to Administrative Agent
from time to time such other documentation, consents, authorizations, approvals
and orders in form and substance reasonably satisfactory to Administrative Agent
as Administrative Agent shall reasonably deem necessary to perfect or maintain
the Liens on the Collateral.
Upon the exercise by Administrative Agent or the Lenders of any power,
right, privilege or remedy pursuant to any Credit Document which requires any
consent, approval, registration, qualification or authorization of any
Governmental Authority, each Company shall execute and deliver all applications,
certifications, instruments and other documents and papers that Administrative
Agent or the Lenders may be so required to obtain.
9.14. Compliance with Environmental Laws. (a) Each Company shall comply
with all Environmental Laws, and will keep or cause all Real Property to be kept
free of any Liens under Environmental Laws, unless failure to do so could not
reasonably be expected to have a Material Adverse Effect or subject any Agent,
Lender or Issuing Lender to any material risk of damages or liability; (b) in
the event of the presence of any Hazardous Material at, on, under or emanating
from any Real Property which would reasonably be expected to result in liability
under or a violation of any Environmental Law, in each case which could
reasonably be expected to have a Material Adverse Effect, each Company shall
undertake, and/or cause any of their respective tenants or occupants to
undertake, at their sole expense, any action required pursuant to Environmental
Laws to mitigate and eliminate such presence; provided, however, that no Company
shall be required to comply with any order or directive which is being contested
in good faith and by proper proceedings so long as it has maintained adequate
reserves with respect to such compliance to the extent required in accordance
with GAAP; (c) each Company shall promptly notify Administrative Agent of the
occurrence of any event specified in clause (b) of this Section 9.14 and shall
periodically thereafter keep Administrative Agent informed of any material
actions taken in response to such event and the results of such actions; and (d)
at the written request of Administrative Agent at any time and from time to
time, such Obligor will provide, at such Obligor's sole cost and expense, an
environmental site assessment (including, without limitation, the results of any
groundwater or other testing, conducted if Administrative Agent directs that
such testing be conducted) concerning any Real Property now or hereafter owned,
leased or operated by any Company, conducted by an environmental consulting firm
proposed by such Obligor and approved by Administrative Agent indicating the
presence or absence of Hazardous Materials and the potential cost of any
required investigation or other response or any corrective action in connection
with any Hazardous Materials on, at, under or emanating from such Real Property;
provided, however, that such request may be made only if (a) there has occurred
and is continuing an Event of Default, (b) Administrative Agent reasonably
believes that any Company or any such Real Property is not in material
compliance with Environmental Law or (c) circumstances exist that reasonably
could be expected to form the basis of an Environmental Claim against such
Company or any such Real Property which would have a Material Adverse Effect. If
any Obligor fails to provide the same within 60 days after such request was
made, Administrative Agent may but is under no obligation to conduct the same,
and such Obligor shall grant and hereby grants to Administrative Agent and its
agents access to such Real Property and specifically grants Administrative Agent
an irrevocable non-exclusive license, subject to the rights of tenants, to
undertake such an assessment, all at such Obligor's sole cost and expense.
9.15. Limitation on Transactions with Affiliates. No Company shall,
directly or indirectly: enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
Property, the rendering of any service, or a merger or consolidation), with or
for the benefit of any Affiliate (an "Affiliate Transaction") unless such
Affiliate Transaction is (i) otherwise not prohibited under this Agreement and
(ii) on fair and reasonable terms that are not less favorable to such Company
than those that are reasonably obtainable at the time in an arm's-length
transaction with a Person that is not such an Affiliate; provided, however, that
the following shall be permitted: (a) Dividend Payments permitted by Section
9.10; (b) fees and compensation paid to, and customary indemnity and
reimbursement provided on behalf of, officers, directors and employees of any
Company in the ordinary course of business; (c) loans or advances to employees
permitted by Section 9.09; (d) so long as no Event of Default shall have
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occurred and be continuing, transactions and agreements contemplated by any
management agreements so long as the terms and conditions thereof are reasonably
satisfactory to Co-Syndication Agents; (e) transactions and agreements in
existence on the Original Closing Date and listed in Schedule 9.15 (as such
agreements were in effect on the Original Closing Date, the "Existing Affiliate
Agreements") and the transactions pursuant to the Existing Affiliate Agreements;
(f) any employment agreements entered into by any Company in the ordinary course
of business; (g) any purchase by any Permitted Holder of Equity Interests of
Parent or any purchase by Parent of Equity Interests of Borrower or any
contribution by Parent to the equity capital of Borrower, provided that any
Equity Interests of Borrower purchased by Parent shall be pledged to
Administrative Agent on behalf of the Lenders pursuant to the Security
Documents; (h) transactions in which Borrower delivers to Co-Syndication Agents,
Administrative Agent and the Lenders a letter from an independent financial
advisor acceptable to Co-Syndication Agents, Administrative Agent and the
Majority Lenders stating that such transaction is fair to such Company from a
financial point of view; (i) the existence of, or the performance by any Company
of its obligations under the terms of, the Merger Agreement, or any agreement
contemplated thereunder (including any registration rights agreement or purchase
agreement related thereto) to which it was a party as of the Original Closing
Date and any similar agreements which it may enter into thereafter; provided,
however, that the existence of, or the performance by any such Company of
obligations under any future amendment to any such existing agreement or under
any similar agreement entered into after the Original Closing Date shall only be
permitted by this clause (i) to the extent that the terms of any such amendment
or new agreement are not otherwise disadvantageous to the Lenders in any
material respect; (j) so long as no Event of Default shall have occurred and be
continuing, payment of monitoring or management or similar fees payable to the
Principal Investors and their Affiliates in an aggregate amount in any fiscal
year not in excess of $1.0 million (plus reasonable expenses in connection
therewith); (k) so long as no Event of Default shall have occurred and be
continuing payments by Parent, Borrower or any of their respective Subsidiaries
to any Permitted Holder made for any financial advisory, financing, underwriting
or placement services or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or divestitures,
which payments are approved by a majority of the board of directors of Parent in
good faith; and (l) the Transactions.
9.16. Limitation on Accounting Changes; Limitation on Investment Company
Status. No Company shall make or permit any change in (i) accounting policies or
reporting practices, except immaterial changes and except as required by
generally accepted accounting principles or (ii) its fiscal year end (May 31 of
each year). No Obligor shall be or become an investment company subject to the
registration requirements under the United States Investment Company Act of
1940, as amended.
9.17. Limitation on Modifications of Certain Documents, Etc. No Company
shall, directly or indirectly, consent to any modification, supplement or waiver
of, or amend, in any manner which could reasonably be expected to be materially
adverse to the Lenders, any of the provisions of any Organic Document. No
material change that could reasonably be expected to be adverse to the Creditors
may be made to the Merger Agreement, any Supplemental Indenture, or any of the
Marketing Agreements, Century M-L Consent and Agreement or the Facilities
Agreement.
9.18. Interest Rate Protection Agreements. Borrower shall obtain, on or
within 90 days after the Original Closing Date, Interest Rate Protection
Agreements having terms and with counterparties reasonably satisfactory to
Co-Syndication Agents as shall result in effectively limiting the interest cost
to the Companies of at least 50% of the aggregate principal amount of then
outstanding Total Debt of the Companies for a period of at least three years
from the date the Initial Interest Rate Protection Agreements were obtained.
9.19. Limitation on Certain Restrictions Affecting Subsidiaries. No Company
shall, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any direct or indirect encumbrance or restriction on the
ability of any Subsidiary to (a) pay dividends or make any other distributions
on such Subsidiary's Equity Interests or any other interest or participation in
its profits owned by any Company, or pay any Indebtedness or any other
obligation owed to any Company, (b) make Investments in or to any Company, or
(c) transfer any of its Property to any Company. The foregoing shall not
prohibit (i) any such encumbrances or restrictions existing under or by reason
of (x) applicable law, (y) the Credit Documents or (z) the Senior Subordinated
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Notes Financing Documents as in effect on the Original Closing Date, the
Additional Senior Subordinated Notes Documents, the Parent Refinanced Notes
Documents, and any Permitted Refinancing of any thereof so long as such
restriction in such Additional Senior Subordinated Notes Documents, the Parent
Refinanced Notes Documents or such Permitted Refinancing is not more
disadvantageous to the Creditors or Borrower than the Senior Subordinated Notes
Financing Documents as in effect on the Original Closing Date, (ii) restrictions
on the transfer of assets subject to a Lien permitted under Section 9.07, (iii)
customary restrictions on subletting or assignment of any lease governing a
leasehold interest of any Company, (iv) restrictions on the transfer of any
Property subject to a Disposition permitted under this Agreement and (v)
customary restrictions in joint venture agreements or similar agreements
relating to non-Wholly Owned Subsidiaries.
9.20. Additional Obligors; Licenses To Be Held by License Subsidiaries. (A)
Upon any Company creating or acquiring any Subsidiary (other than any Foreign
Subsidiary) after the Effectiveness Date (each such Subsidiary referred to
herein as an "Additional Obligor" and collectively as the "Additional
Obligors"), Borrower and PR Borrower shall (i) cause each such Subsidiary that
is a Wholly Owned Subsidiary to execute and deliver all such agreements,
guarantees, documents and certificates (including any amendments to the Credit
Documents and a Joinder Agreement) as Administrative Agent or the Majority
Lenders may reasonably request and do such other acts and things as
Administrative Agent or the Majority Lenders may reasonably request in order to
have such Subsidiary guarantee the Obligations in accordance with the terms of
the Credit Documents, (ii) promptly, to the extent permitted by Contractual
Obligations existing on the Effectiveness Date, (I) execute and deliver to
Administrative Agent such amendments to the Security Documents as Administrative
Agent deems necessary or advisable in order to grant to Administrative Agent,
for the benefit of the Lenders, a perfected first priority security interest in
the Equity Interests and debt securities of such new Subsidiary which are owned
by Borrower, PR Borrower or any Subsidiary and required to be pledged pursuant
to the Security Agreement, (II) deliver to Administrative Agent the certificates
representing such Equity Interests and debt securities, together with (A) in the
case of such Equity Interests, undated stock powers endorsed in blank, and (B)
in the case of such debt securities, endorsed in blank, in each case executed
and delivered by a Responsible Officer of Borrower or such Subsidiary, as the
case may be, (III) to the extent permitted by Contractual Obligations existing
on the Effectiveness Date, cause such new Subsidiary to take such actions
necessary or advisable to grant to Administrative Agent for the benefit of the
Creditors a perfected first priority security interest in the collateral
described in the Security Agreement with respect to such new Subsidiary,
including, without limitation, the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Security Agreement or
by law or as may be reasonably requested by Administrative Agent, and (IV) if
reasonably requested by Administrative Agent, deliver to Administrative Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to
Administrative Agent. All Subsidiaries operating in Puerto Rico will be
organized in a U.S. jurisdiction except to the extent that (x) a substantial
minority partner or stockholder shall object thereto or (y) that would result in
material adverse tax or regulatory consequences to the Companies or as
contemplated by the next sentence. None of the foregoing actions shall be
required if such action would be a violation of applicable law or, in the
reasonable judgment of Administrative Agent in consultation with the Borrower,
the expense, tax or regulatory consequences or difficulty of taking such action
would not, in light of the benefits that would accrue to the Lenders, justify
taking such action.
(B) The Obligors shall cause all Licenses (other than Licenses on which the
Lenders shall have an enforceable first priority perfected Lien and on which no
other Person shall have any Lien) of any Company (other than Subsidiaries that
are not Wholly Owned) to be held by one or more License Subsidiaries, except
that if any Company shall acquire (including by merger) any Person that holds a
License, Borrower shall cause such License to be transferred to a License
Subsidiary within 90 days of such acquisition, provided, however, that the
preceding clause shall not apply to any Certificate of Territorial Authority
issued by the State of Indiana, or any agency thereof, to any Company so long as
the Companies cannot comply with the preceding clause because any Requirement of
Laws of such State or agency would prohibit or impair the operation of the
business of such Company pursuant to or in compliance with such Certificate of
Territorial Authority; provided, further that, if at any time compliance with
the aforementioned provision would no longer prohibit or impair the operation of
the business of such Company, such Company shall theretofore comply within 120
days of the date on which such Company learned that such compliance was no
longer prohibited, and provided further that such action shall not be required
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to be taken if it would be a violation of applicable law or, in the reasonable
judgment of Administrative Agent in consultation with the Borrower, the expense,
tax or regulatory consequences or difficulty of taking such action would not, in
light of the benefits that would accrue to the Lenders, justify taking such
action.
9.21. Limitation on Activities of Parent. Parent shall not conduct any
business, incur any obligations (other than under the agreements relating to the
Merger Agreement, the Credit Documents, Parent Financing Documents, Senior
Subordinated Notes Financing Documents, the Additional Senior Subordinated Notes
Documents and the Parent Refinanced Notes Documents, as applicable) or hold or
acquire any assets (other than the Equity Interests of Borrower).
9.22. Limitation on Issuance or Dispositions of Equity Interests of
Borrower and Subsidiaries. Borrower shall not issue any of its Equity Interests
or Equity Rights or permit any Person to own any of its Equity Interests or
Equity Rights other than Parent. Parent shall not, directly or indirectly,
effect any Disposition of any Equity Interests or Equity Rights of Borrower,
other than the pledge thereof pursuant to the Security Agreement. Except as
permitted by Section 9.06(q), neither Borrower nor any Subsidiary shall effect
the Disposition of any Equity Interests of any Subsidiary unless all Equity
Interests in such Subsidiary owned by Borrower and the Subsidiaries are sold in
accordance with the Credit Documents, upon which sale the Guarantee by such
Subsidiary shall be automatically deemed to be released.
9.23. Limitation on Payments or Prepayments of Indebtedness or Modification
of Debt Documents. No Company shall, directly or indirectly:
(a) make any payment or prepayment (optional or otherwise) on or
redemption of or any payments in redemption, defeasance or repurchase
(whether in cash, securities or other Property) of the Senior Subordinated
Notes, the Parent Subordinated Notes, any Existing Notes, any Additional
Senior Subordinated Notes, any Parent Refinanced Notes or any Permitted
Refinancing of any of the foregoing, except (1) regularly scheduled
mandatory payments of interest, (2) the conversion or exchange of any
Indebtedness into shares of common Equity Interests of Parent, and (3) the
exchange of Senior Subordinated Notes, Additional Senior Subordinated Notes
or Parent Refinanced Notes for exchange notes, as contemplated by the
respective definitions thereof;
(b) amend, supplement, waive or otherwise modify any of the provisions
of any Senior Subordinated Notes Financing Document, Parent Financing
Documents, Additional Senior Subordinated Notes Document, Parent Refinanced
Notes Document or any Existing Indenture (or any Permitted Refinancing of
any thereof):
(i) which shortens the fixed maturity, or increases the rate or
shortens the time of payment of interest or dividends on, or increases the
amount or shortens the time of payment of any principal, liquidation
preference or premium payable whether at maturity, at a date fixed for
prepayment or by acceleration or otherwise of such Indebtedness, or
increases the amount of, or accelerates the time of payment of, any fees
payable in connection therewith;
(ii) which relates to the affirmative or negative covenants, events of
default, redemption or repurchase provisions, or remedies under the
documents or instruments evidencing such Indebtedness and the effect of
which is to subject any Company to any materially more onerous or more
restrictive provisions; or
(iii) which effects and changes to the subordination provisions (or
related definitions) therein or otherwise materially adversely affects the
interests of the Creditors as senior creditors or the interests of the
Creditors under this Agreement or any other Credit Document in any respect;
or
(c) effect any material change in the Senior Subordinated Notes
Indenture in connection with the Exchange Offer or enter into an Exchange
Indenture which is different in any material respect from the Senior
Subordinated Notes Indenture in connection with the Exchange Offer in each
case unless the terms thereof are reasonably acceptable to Agents and the
Majority Lenders.
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9.24. Casualty and Condemnation. Each Company will furnish to
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any material portion of the Collateral or the
commencement of any action or proceeding for the taking of any material portion
of the Collateral or any part thereof or interest therein under power of eminent
domain or by condemnation or similar proceeding.
9.25. Limitation on Tax Sharing Arrangements. No Company shall enter into
or permit to exist any tax sharing agreement or similar arrangement unless the
same shall have been reviewed by, and consented to, by Agents.
9.26. Limitation on Designation of Designated Senior Indebtedness. Borrower
shall not, nor shall it permit any Subsidiary to, designate any Indebtedness or
other obligation, other than Indebtedness under the Credit Documents, as
"Designated Senior Indebtedness," as such term is defined in the Senior
Subordinated Notes Indenture, the Additional Senior Subordinated Notes Documents
or any Permitted Refinancing of any thereof, or any comparable designation that
confers upon the holders of such Indebtedness or other obligation (or any Person
acting on their behalf) the right to initiate blockage periods under the Senior
Subordinated Notes Indenture, the Additional Senior Subordinated Notes Documents
or any other Indebtedness or other obligation of any Company. Borrower shall
cause all the Indebtedness under the Credit Documents to constitute at all times
"Designated Senior Indebtedness" under the Senior Subordinated Notes Indenture,
the Additional Senior Subordinated Notes Documents and any Permitted Refinancing
of any thereof.
9.27. No Contractual Bar. No Company shall enter into or permit to exist
any Contractual Obligation that will prevent any Company from complying with
Sections 9.12 or 9.20.
9.28. Facilities Agreement. PR Borrower agrees to (i) request under Section
1 of the Facilities Agreement to lease such additional capacity, cable and
fibers on the Fiber Network (as defined therein) as may be necessary, in the
reasonable commercial judgment of PR Borrower, for the operation of the PR
Systems, (ii) notify Agents of any failure of either other party thereto to
comply with its obligations thereunder in any material respect and (iii) take
such action, if any, as may be reasonably requested by the Majority Lenders in
their reasonable commercial judgment to enforce its rights and remedies against
such other party in respect of any such failure to comply with such obligations
in any material respect provided that any such action shall not be prohibited by
law or by the Facilities Agreement.
Section 10. Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) (i) Borrower or PR Borrower shall default in the payment when due
(whether at stated maturity upon prepayment or repayment or acceleration or
otherwise) of any principal of any Loan or Reimbursement Obligation, or
(ii) Borrower or PR Borrower shall default in the payment when due of
interest on any Loan or any Reimbursement Obligation or any fee or any
other amount payable by it hereunder or under any other Credit Document
when due and such default under this clause (ii) shall have continued
unremedied for three or more Business Days; or
(b) Any Company shall default in the payment when due of any principal
of or interest on any of its Indebtedness (other than the Loans)
aggregating $15.0 million or more, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created, after giving effect to any consents or waivers relating thereto
obtained before the expiration of any such period of grace; or any event
specified in any note, agreement, indenture or other document evidencing or
relating to any Indebtedness aggregating $15.0 million or more shall occur
if the effect of such event (after giving effect to any consents or waivers
relating thereto obtained before the expiration of any such period of
grace) is to cause, or (with the giving of notice if required) to permit
the holder or holders of such Indebtedness (or a trustee or agent on behalf
of such holder or holders) to cause, such Indebtedness to become due, or to
be prepaid in full (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity; or
(c) Any representation or warranty made or deemed made in any Credit
Document (or in any modification or supplement thereto) by any Company or
in any certificate furnished to any Creditor pursuant to the provisions
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thereof, shall prove to have been false or misleading as of the time made,
deemed made or furnished in any material respect; or
(d) Any Obligor shall default in the performance of any of its
obligations under any of Sections 9.01(f), 9.06 through 9.11, 9.15, 9.17
through 9.24 or 9.26 through 9.28; or Borrower shall default in the
performance of its obligations under Section 9.01(e) or (k) and such
default shall continue unremedied for at least five Business Days; or any
Obligor shall default in the performance of any of its other obligations in
this Agreement, the Security Documents or the Letter of Credit Documents
and such default shall continue unremedied for a period of at least thirty
days after written notice thereof to such Obligor and Borrower by
Administrative Agent or the Majority Lenders; or
(e) Any Company shall not, or shall admit in writing its inability to,
or be generally unable to, pay its debts as such debts become due; or
(f) Any Company shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its Property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence
or consents to any Insolvency Proceeding, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of debts, (v)
fail to controvert within 60 days or in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
Insolvency Proceeding, or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
(g) (i) Any Insolvency Proceeding is commenced or filed against any
Company, or any writ, judgment, warrant of attachment, execution or similar
process is issued or levied against any Company, and either (1) such
proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded, within 60 days after commencement, filing or levy
or (2) such proceeding shall not be actively contested by such Company;
(ii) any Company admits the material allegations of a petition against it
in any Insolvency Proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any Insolvency Proceeding; (iii) any
Company acquiesces in the appointment of a receiver, receiver and manager,
trustee, custodian, conservator, liquidator, mortgagee in possession (or
agent therefor), or other similar person for itself or a substantial
portion of its Property or business; or (iv) an order of relief against any
Company shall be entered in any Insolvency Proceeding; or
(h) A final judgment or judgments for the payment of money in excess
of $15.0 million in the aggregate (exclusive of judgment amounts to the
extent covered by insurance) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against any
Company and the same shall not be discharged (or provision shall not be
made for such discharge), vacated or bonded pending appeal, or a stay of
execution thereof shall not be procured, within 60 days from the date of
entry thereof and such Company shall not, within said period of 60 days, or
such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(i) An ERISA Event or noncompliance with respect to Foreign Plans
shall have occurred that when taken together with all other ERISA Events
and noncompliance with respect to Foreign Plans that have occurred, is
reasonably likely to result in liability of any Company in an aggregate
amount exceeding $15.0 million; or
(j) Any Change of Control shall occur; or
(k) Any Security Document after delivery thereof by any Obligor at any
time shall cease to be in full force and effect or shall for any reason
fail to create or cease to maintain a valid and duly perfected first
priority security interest in and Lien upon (subject to Permitted Liens and
other Liens expressly permitted by the terms of the applicable Security
Document) any material portion of the Collateral; or
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(l) Any Guarantee ceases to be in full force and effect (other than in
connection with the release thereof authorized by Section 9.22); or
(m) Any Credit Document or any material provision thereof shall at any
time and for any reason be declared by a court of competent jurisdiction to
be null and void, or a Proceeding shall be commenced by any Company or any
other Person, or by any Governmental Authority, seeking to establish the
invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or any Company shall repudiate or
deny in writing that it has any liability or obligation for the payment of
principal or interest or other obligations purported to be created under
any Credit Document; or
(n) Any non-monetary judgment, order or decree is entered against any
Company which is reasonably likely to have a Material Adverse Effect, and
there shall be any period of 45 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(o) One or more Licenses shall be terminated or revoked such that any
Company is no longer able to operate the related System or any portion
thereof and retain the revenue received therefrom or one or more Licenses
shall fail to be renewed at the stated expiration thereof such that any
Company is no longer able to operate the related System or any portion
thereof and retain the revenue received therefrom, except with respect to
any of the foregoing in the event that the termination, revocation or
failure to renew is with respect to any License that is not material (it
being understood that material Licenses shall include (but not be limited
to) any License relating to 10% or more of Operating Cash Flow of Borrower
for the most recently ended two consecutive fiscal quarters); or
(p) Century-ML shall suffer the cancellation, non-renewal or adverse
modification of any one or more approvals, authorizations, licenses,
franchises or other permissions of any governmental, judicial, regulatory
or other agencies if such cancellation, non-renewal or adverse modification
renders the continued performance by it of its obligations under the
Facilities Agreement unlawful, or the Facilities Agreement shall be
terminated, shall expire or shall be materially adversely modified, unless
PR Borrower shall have secured alternative arrangements satisfactory to the
Majority Lenders to substitute for benefits provided by the Facilities
Agreement for the operation by PR Borrower of the PR Systems; or
(q) The subordination provisions relating to the Senior Subordinated
Notes, Additional Senior Subordinated Notes (if issued by Borrower), any
Subordinated Debt or any Contingent Obligation in respect of any
Subordinated Debt (the "Subordination Provisions") shall fail in any
material respect to be enforceable by the Lenders (which have not
effectively waived the benefits thereof) in accordance with the terms
thereof, or any Obligation shall fail to constitute Senior Indebtedness (as
defined in the Senior Subordinated Notes, the Additional Senior
Subordinated Notes (if issued by Borrower) or any other Subordinated Debt),
or any Obligor shall, directly or indirectly, disavow or contest in any
manner any of the Subordination Provisions;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (e), (f) or (g) of this Section 10 with respect to Borrower or PR
Borrower, Administrative Agent may, and upon written direction of the Majority
Lenders shall, by notice to Borrower, terminate the Commitments and/or declare
the principal amount then outstanding of, and the accrued interest on, the
Loans, the Reimbursement Obligations and all other amounts payable by Borrower
and PR Borrower hereunder and under the Notes (including any amounts payable
under Section 5.05 or 5.06) to be forthwith due and payable, whereupon such
amounts shall be immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by Borrower and PR Borrower, reduce any claim to judgment, take any other
action permitted by law and/or take any action permitted to be taken by the
Security Documents during the existence of an Event of Default; and (2) in the
case of the occurrence of an Event of Default referred to in clause (e), (f) or
(g) of this Section 10 with respect to Borrower or PR Borrower, the Commitments
shall automatically be terminated and the principal amount then outstanding of,
and the accrued interest on, the Loans, the Reimbursement Obligations and all
other amounts payable by Borrower and PR Borrower hereunder and under the Notes
(including any amounts payable under Section 5.05 or 5.06) shall automatically
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become immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by Borrower
and PR Borrower.
In addition, Borrower agrees, upon the occurrence and during the
continuance of any Event of Default if Administrative Agent has declared the
principal amount then outstanding of, and accrued interest on, the Revolving
Credit Loans, and all other amounts payable to the Revolving Credit Lenders
hereunder and under the Notes evidencing such Loans to be due and payable, it
may and shall, if requested by the Majority Revolving Credit Lenders through
Administrative Agent (and, in the case of any Event of Default referred to in
clause (e), (f) or (g) of this Section 10 with respect to Borrower or PR
Borrower, forthwith, without any demand or the taking of any other action by
Administrative Agent or such Lenders) provide cover for the Letter of Credit
Liabilities by paying to Administrative Agent immediately available funds in an
amount equal to the then aggregate undrawn face amount of all Letters of Credit,
which funds shall be held by Administrative Agent in the Collateral Account as
collateral security in the first instance for the Letter of Credit Liabilities
and be subject to withdrawal only as provided in the Security Agreement.
Section 11. Agents.
11.01. General Provisions. Each of the Lenders, the Agents and the Issuing
Lender hereby irrevocably appoints the Agents as its agents and authorizes each
Agent to take such actions on its behalf and to exercise such powers as are
delegated to such Agent by the terms hereof and the Security Documents, together
with such actions and powers as are reasonably incidental thereto.
Administrative Agent agrees to give promptly to each Lender a copy of each
notice or other document received by it pursuant to any Credit Document (other
than any that are required to be delivered to the Lenders by any Obligor).
The Lender or other financial institution serving as any Agent or Issuing
Lender hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not such
Agent or Issuing Lender, and such bank and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of business with any
Company or other Affiliate thereof as if it were not such Agent or Issuing
Lender hereunder.
No Agent or Issuing Lender shall have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) no Agent or Issuing Lender shall be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) no Agent or Issuing Lender shall have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that such Agent or Issuing
Lender is required to exercise in writing by the Majority Lenders (or such other
number or percentage of the Lenders as shall be required by Section 12.04), and
(c) except as expressly set forth herein, no Agent or Issuing Lender shall have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Company that is communicated to or obtained by the
financial institution serving as such Agent or Issuing Lender or any of its
Affiliates in any capacity. No Agent or Issuing Lender shall be liable for any
action taken or not taken by it with the consent or at the request of the
Majority Lenders (or such other number or percentage of the Lenders as shall be
required by Section 12.04) or in the absence of its own gross negligence or
willful misconduct. No Agent shall be deemed to have knowledge of any Default
unless and until written notice thereof is given to Administrative Agent and
such Agent by Borrower or a Lender, and no Agent or Issuing Lender shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or any
other Credit Document, (ii) the contents of any certificate, report or other
document delivered hereunder or under any other Credit Document or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
Credit Document or any other agreement, instrument or document, (v) the
satisfaction of any condition set forth in Section 7 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to such
Agent or (vi) making a determination that any condition precedent set forth in
Section 7 that is to be to such Agent's satisfaction is satisfied.
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Each Agent and Issuing Lender shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent and Issuing
Lender also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. Each Agent and Issuing Lender may consult with
legal counsel (who may be counsel for Borrower), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts. Each Agent and Issuing Lender may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with such
Agent or Issuing Lender. Each Agent and Issuing Lender shall be fully justified
in failing or refusing to take any action under this Agreement or any other
Credit Document unless it shall first receive such advice or concurrence of the
Majority Lenders (or, if so specified by this Agreement, all Lenders or such
other number or percentage of the Lenders as shall be required by Section 12.04)
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action (it being
understood that this provision shall not release Administrative Agent from
performing any action with respect to Borrower expressly required to be
performed by it pursuant to the terms hereof) under this Agreement. Each Agent
and Issuing Lender shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance with a request of the Majority Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
Each Agent and Issuing Lender may perform any and all of its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by such Agent or Issuing Lender and reasonably acceptable to Borrower.
Each Agent, Issuing Lender and any such sub-agent may perform any and all of its
duties and exercise its rights and powers through their respective Affiliates,
directors, officers, employees, agents and advisors ("Related Parties"). The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and Issuing Lender and any
such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities of such Agent or Issuing Lender.
Subject to the appointment and acceptance of a successor Agent as provided
in this paragraph, any Agent may resign at any time by notifying the Lenders,
the Issuing Lender (with respect to Administrative Agent only) and Borrower.
Upon any such resignation, the Majority Lenders shall have the right to appoint
a successor which, so long as no Event of Default is continuing, shall be
reasonably acceptable to Borrower. If no successor shall have been so appointed
by the Majority Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders and the Issuing Lender, appoint a successor
Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank which, so long as no Event of Default is continuing,
shall be reasonably acceptable to Borrower. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. The fees payable by Borrower to a successor Agent shall
be the same as those payable to its predecessor unless otherwise agreed between
Borrower and such successor. After the Agent's resignation hereunder, the
provisions of this Section 11 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting
as such Agent.
Each Lender acknowledges that it has, independently and without reliance
upon any Agent, Issuing Lender or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent, Issuing Lender or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
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taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder. No Agent or Issuing Lender shall be
deemed a trustee or other fiduciary on behalf of any party.
11.02. Indemnification. Each Lender agrees to indemnify and hold harmless
each Agent and the Issuing Lender (to the extent not reimbursed under Section
12.03, but without limiting the obligations of any Obligor under Section 12.03),
ratably in accordance with the aggregate principal amount of the respective
Commitments of and/or Loans and Reimbursement Obligations held by the Lenders
(or, if all of the Commitments shall have been terminated or expired, ratably in
accordance with the aggregate outstanding amount of the Loans and Reimbursement
Obligations held by the Lenders), for any and all liabilities (including
pursuant to any Environmental Law), obligations, losses, damages, penalties,
actions, judgments, deficiencies, suits, costs, expenses (including reasonable
attorney's fees) or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against such Agent or Issuing Lender
(including by any Lender) arising out of or by reason of any investigation in or
in any way relating to or arising out of any Credit Document or any other
documents contemplated by or referred to therein for any action taken or omitted
to be taken by such Agent or Issuing Lender under or in respect of any of the
Credit Documents or other such documents or the transactions contemplated
thereby (including the costs and expenses that the Obligors are obligated to pay
under Section 12.03, and including also any payments under any indemnity granted
pursuant to Section 19 of the Security Agreement, or to any Financial
Intermediary referred to in Section 10 of the Security Agreement to which
remittances in respect of Receivables, as defined in the Securities Agreement,
are to be made but excluding, unless a Default has occurred and is continuing,
normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or of any such other documents; provided, however, that no Lender shall
be liable for any of the foregoing to the extent they are determined by a court
of competent jurisdiction in a final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of the party to be indemnified.
The agreements set forth in this Section 11.02 shall survive the payment of all
Loans and other obligations hereunder and shall be in addition to and not in
lieu of any other indemnification agreements contained in any other Credit
Document.
11.03. Consents Under Other Credit Documents. Except as otherwise provided
in this Agreement and the other Credit Documents, Administrative Agent may, with
the prior consent of the Majority Lenders (but not otherwise), consent to any
modification, supplement or waiver under any of the other Credit Documents.
11.04. Collateral Sub-Agents. Each Lender by its execution and delivery of
this Agreement agrees, as contemplated by Section 10(g) of the Security
Agreement, that, in the event it shall hold any Permitted Investments referred
to therein, such Permitted Investments shall be held in the name and under the
control of such Lender, and such Lender shall hold such Permitted Investments as
a collateral sub-agent for Administrative Agent thereunder. Each Obligor by its
execution and delivery of this Agreement hereby consents to the foregoing.
Section 12. Miscellaneous.
12.01. Waiver. No failure on the part of any Creditor to exercise and no
delay in exercising, and no course of dealing with respect to, any right, power
or privilege under any Credit Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege under any
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
12.02. Notices. All notices, requests and other communications provided for
herein and under the Security Documents (including any modifications of, or
waivers, requests or consents under, this Agreement) shall be given or made in
writing (including by facsimile) delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof (or
as to PR Borrower or any Guarantor, as so specified for Borrower) or, as to any
party, at such other address as shall be designated by such party in a notice to
each other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
facsimile or personally delivered or, in the case of a mailed notice, upon
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receipt, in each case given or addressed as aforesaid. Any Notice of Borrowing
or Notice of Continuation/Conversion shall be deemed to have been received when
actually received.
12.03. Expenses, Indemnification, Etc. (a) The Obligors, jointly and
severally, agree to pay or reimburse:
(i) the Issuing Lender, Co-Syndication Agents, Documentation Agent and
Administrative Agent for all of their reasonable out-of-pocket costs and
expenses (including the reasonable fees and expenses of one legal counsel
(and all local counsel (including in Puerto Rico) deemed necessary by
Agents)) in connection with (1) the negotiation, preparation, execution and
delivery of the Credit Documents and the extension of credit hereunder, (2)
the negotiation or preparation of any modification, supplement or waiver of
any of the terms of any Credit Document (whether or not consummated or
effective) and (3) the syndication of the Loans and Commitments;
(ii) each of the Lenders, the Issuing Lender, Co-Syndication Agents
and Administrative Agent for all reasonable out-of-pocket costs and
expenses of the Lenders, the Issuing Lender, Co-Syndication Agents and
Administrative Agent (including the reasonable fees and expenses of legal
counsel) in connection with (1) any enforcement or collection proceedings
resulting from any Default, including all manner of participation in or
other involvement with (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, (y) judicial or
regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated), (2) the enforcement of this Section
12.03 and (3) any documentary taxes; and
(iii) Administrative Agent for all reasonable costs, expenses, taxes,
assessments and other charges (including reasonable fees and disbursements
of counsel) incurred in connection with any filing, registration, recording
or perfection of any security interest contemplated by any Credit Document
or any other document referred to therein.
(b) The Obligors, jointly and severally, hereby agree to indemnify each
Creditor and their respective Affiliates, directors, trustees, officers,
employees and agents (each, an "Indemnitee") from, and hold each of them
harmless against, and that no Indemnitee will have any liability for, any and
all Losses incurred by any of them (including any and all Losses incurred by any
Agent or the Issuing Lender to any Lender, whether or not any Creditor is a
party thereto) directly or indirectly arising out of or by reason of or relating
to the negotiation, execution, delivery, performance, administration or
enforcement of any Credit Document, any of the transactions contemplated by the
Credit Documents (including the Transactions), any breach by any Company, as
applicable, of any representation, warranty, covenant or other agreement
contained in any of the Credit Documents in connection with any of the
Transactions, the use or proposed use of any of the Loans or Letters of Credit,
the issuance of or performance under any Letter of Credit or the use of any
collateral security for the Loans (including the exercise by any Creditor of the
rights and remedies or any power of attorney with respect thereto and any action
or inaction in respect thereof), but excluding any such Losses to the extent
finally determined by a court of competent jurisdiction in a final and
nonappealable judgment to have arisen from the gross negligence or bad faith of
the Indemnitee.
Without limiting the generality of the foregoing, the Obligors, jointly and
severally, will indemnify each Creditor and each other Indemnitee from, and hold
each Creditor and each other Indemnitee harmless against, any Losses described
in the preceding sentence arising under any Environmental Law as a result of (A)
the past, present or future operations of any Company (or any predecessor in
interest to any Company), (B) the past, present or future condition of any site
or facility owned, operated, leased or used at any time by any Company (or any
such predecessor in interest), or (C) any Release or threatened Release of any
Hazardous Materials at, on, under or from any such site or facility, including
any such Release or threatened Release that shall occur during any period when
any Creditor shall be in possession of any such site or facility following the
exercise by such Creditor of any of its rights and remedies hereunder or under
any of the Security Documents; provided, however, that the indemnity hereunder
shall be subject to the exclusions from indemnification set forth in the
preceding sentence.
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To the extent that the undertaking to indemnify and hold harmless set forth
in this Section 12.03 or any other provision of any Credit Document providing
for indemnification is unenforceable because it is violative of any law or
public policy or otherwise, the Obligors, jointly and severally, shall
contribute the maximum portion that each of them is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by any of the Persons indemnified hereunder.
The Obligors also agree that no Indemnitee shall have any liability
(whether direct or indirect, in contract or tort or otherwise) for any Losses to
any Obligor or any Obligor's security holders or creditors resulting from,
arising out of, in any way related to or by reason of any matter referred to in
any indemnification or expense reimbursement provisions set forth in this
Agreement or any other Credit Document, except to the extent that any Loss is
determined by a court of competent jurisdiction in a final nonappealable
judgment to have resulted from the gross negligence or bad faith of such
Indemnitee.
The Obligors agree that, without the prior written consent of
Administrative Agent, Co-Syndication Agents and the Majority Lenders which
consent shall not be unreasonably withheld, no Obligor will settle, compromise
or consent to the entry of any judgment in any pending or threatened Proceeding
in respect of which indemnification is reasonably likely to be sought under the
indemnification provisions of this Section 12.03 (whether or not any Indemnitee
is an actual or potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional written release of each
Indemnitee from all liability arising out of such Proceeding and does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnitee and does not involve any payment of money or
other value by any Indemnitee or any injunctive relief or factual findings or
stipulations binding on any Indemnitee.
12.04. Amendments, Etc. (i) No provision of any Credit Document may be
amended, modified or supplemented except by an instrument in writing signed by
the Obligors party thereto and the Majority Lenders, or by the Obligors party
thereto and Administrative Agent acting with the written consent of the Majority
Lenders, and no provision of any Credit Document may be waived except by an
instrument in writing signed by the Obligors party thereto and the Majority
Lenders, or by the Obligors party thereto and Administrative Agent acting with
the written consent of the Majority Lenders; provided, however, that:
(a) no amendment, modification, supplement or waiver shall, unless by
an instrument signed by each Lender or by Administrative Agent acting with
the written consent of each Lender (with the consent of Lenders having
Obligations directly affected thereby in the case of clauses (I), (II) or
(IV) (it being understood that the consent of no other Lender or Agent is
needed in each such case)): (I) extend the scheduled final maturity of any
Loan or Note, or extend the stated expiration date of any Letter of Credit
beyond the Revolving Credit Commitment Termination Date (it being
understood that the termination date of any Incremental Facility, if part
of the Revolving Credit Facility or a new term loan facility, may be a date
later than the Revolving Credit Commitment Termination Date or the Final
Maturity Date, respectively, without requiring the consent of any Lender),
or reduce the rate of interest (other than any waiver of any increase in
the interest rate applicable to any of the Loans pursuant to clause (b) of
Section 3.02) or fees thereon, or extend the time of payment of interest or
fees thereon, or reduce the principal amount thereof, or make any change to
the definition of Applicable Margin or Applicable Revolving Credit Fee
Percentage (other than in connection with the addition of relevant margins
relating to new term loan facilities comprising part of any Incremental
Facility), or make any change to the last two sentences of the first
paragraph of Section 2.09, (II) extend the final maturity of any of the
Commitments (or reinstate any Commitment terminated pursuant to Section 10)
(it being understood that the addition of any Incremental Facility with a
longer maturity by itself shall not be deemed to be an extension of a
Commitment that is required of each Lender), (III) change the currency in
which any Obligation is payable, (IV) amend the terms of this Section 12.04
or clause (iv) of Section 12.06(b), Section 4.07, 5 or 11.03 (other than to
make conforming changes relating to any Incremental Facility ), (V) reduce
the percentages specified in the definition of the term "Majority Lenders"
or "Supermajority Lenders" or amend any provision of any Credit Document
requiring the consent of all the Lenders or reduce any other percentage of
the Lenders required to make any determinations or waive any rights
hereunder or to modify any provision hereof (it being understood that any
Incremental Facility shall be, and with the consent of the Majority
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Lenders, other additional extensions of credit pursuant to this Agreement
may be, included in the determination of the Majority Lenders and
Supermajority Lenders without notice to or consent of any other Lender or
Agent on substantially the same basis as the Commitments (and related
extensions of credit) are included on the Closing Date), (VI) release any
Guarantor from its obligations under Section 6 (unless permitted by this
Agreement), (VII) consent to the assignment or transfer by any Obligor of
any of its rights and obligations under any Credit Document except in a
transaction permitted by Section 9.06, (VIII) release all or substantially
all the Collateral or terminate the Lien under any Credit Document in
respect of all or substantially all the Collateral (except as permitted by
the Credit Documents) or agree to additional obligations (other than the
Obligations and any Incremental Facility and any other extensions of credit
under this Agreement consented to by the Majority Lenders) being secured by
the Collateral or (IX) amend Section 12.03 or any other indemnification and
expense reimbursement provision set forth in any Credit Document (it being
understood that, notwithstanding the foregoing, any prepayment required by
Section 2.10(a) may be waived or amended by the Majority Lenders);
(b) no such amendment or waiver shall increase the Commitments of any
Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that amendments or waivers of conditions
precedent, covenants or Defaults shall not constitute an increase of the
Commitment of any Lender);
(c) any modification or supplement of or waiver with respect to
Section 11 which affects any Agent in its capacity as such shall require
the consent of such Agent;
(d) no consent of any Lender need be obtained, and Administrative
Agent is hereby authorized, to release any Lien securing the Obligations on
Property which is the subject of any disposition permitted by the Credit
Documents and to release any Guarantee of a Subsidiary upon the sale of all
of the Equity Interests of such Subsidiary in accordance with the Credit
Documents;
(e) subject to clause (a)(I) above of this proviso to this Section
12.04(i), the consent of all of the Lenders of the affected Term Loan
Tranche shall be required with respect to any extension of any scheduled
Amortization Payment or any reduction in the amount of any scheduled
Amortization Payment (except in accordance with Section 2.09 or Section
2.10) (it being understood that, subject to clause (f) below of this
Section 12.04, any prepayment required by Section 2.10 (and any
corresponding reduction of the Revolving Credit Commitments) may be
modified, supplemented or waived by the Majority Lenders);
(f) no modification, supplement or waiver shall, unless by an
instrument signed by the Supermajority Lenders of the Affected Class or by
Administrative Agent acting with the written consent of the Supermajority
Lenders of the Affected Class (it being understood that the consent of no
other Lender or Agent is needed), change the timing of the receipt or the
application of mandatory prepayments hereunder as among the Tranche A Term
Loans, the Tranche A-PR Term Loans, the Tranche B-PR Term Loans and the
Tranche C-PR Term Loans or the order in which any such prepayment is
applied to the Tranche A Term Loans, the Tranche A-PR Term Loans, Tranche
B-PR Term Loans or Tranche C-PR Term Loans (although any required
prepayment set forth in Section 2.10 may otherwise be modified,
supplemented or waived by the Majority Lenders); provided, however, that if
an Incremental Facility is extended as an increase in the Tranche B-PR Term
Loans or the Tranche C-PR Term Loans or as a new term loan facility, such
increase in the Tranche B-PR Term Loans or the Tranche C-PR Term Loans and
such new term loan facility may be treated on the same terms (including pro
rata application of prepayments) as the Tranche B-PR Term Loans Term Loans
and the Tranche C-PR Term Loans without such consent;
(g) no reduction of the percentage specified in the definition of
"Majority Revolving Credit Lenders," "Majority Tranche A Term Loan
Lenders," "Majority Tranche A-PR Term Loan Lenders," "Majority Tranche B-PR
Lenders," or "Majority Tranche C-PR Term Loan Lenders" shall be made
without the consent of each Revolving Credit Lender, each Tranche A Term
Loan Lender, each Tranche A-PR Term Loan Lender, each Tranche B-PR Term
Loan Lender or each Tranche C-PR Term Loan Lender, respectively (it being
understood that only the Lenders of the Class of such Loan to which such
definition relates need consent to any such reduction and that any
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Incremental Facility shall be (to the extent being an increase in any such
facility), and, with the consent of the Majority Lenders, other additional
extensions of credit pursuant to this Agreement may be, included in any
such definition without notice to or consent of any other Lender or Agent
on substantially the same terms as the Commitments (and related extensions
of credit) are included on the Original Closing Date);
(h) no reduction of the percentage specified in the definition of (I)
"Majority Term Lenders" shall be made without the consent of the Majority
Tranche A Term Loan Lenders, the Majority Tranche A-PR Term Loan Lenders,
the Majority Tranche B-PR Term Loan Lenders and the Majority Tranche C-PR
Term Loan Lenders or (II) "Supermajority Lenders of the Affected Class"
shall be made without the consent of each Term Loan Lender (it being
understood, that no consent of any other Lender or Agent is needed and that
any Incremental Facility shall be (to the extent being an increase in any
such facility), and, with the consent of the Majority Lenders, additional
extensions of credit pursuant to this Agreement may be, included in either
such definition without notice to or consent of any other Lender or Agent
on substantially the same terms as the Commitments (and related extensions
of credit) are included on the Original Closing Date);
(i) no amendment or waiver shall affect the rights or duties of the
Issuing Lender in its capacity as such or alter the obligation of any
Revolving Credit Lender pursuant to Section 2.03(e) or 2.03(f) without the
consent of the Issuing Lender;
(j) no consent of any Lender need be obtained to effect any amendment
of any Credit Document necessary to comply with Section 9.12 or Section
9.20 or as permitted by Section 2.01(f);
(k) no amendment, modification, supplement or waiver may be made to
any condition precedent to any extension of credit under the Revolving
Credit Facility set forth in subsection 7.01 without the written consent of
the Majority Revolving Credit Lenders, it being understood that no
amendment to or waiver of any representation or warranty or any covenant
contained in this Agreement or any other Credit Document, or of any
Default, shall be deemed to be effective for purposes of determining
whether the conditions precedent set forth in subsection 7.01 to the making
of any extension of credit under the Revolving Credit Loans have been
satisfied unless the Majority Revolving Credit Lenders shall have consented
to such amendment or waiver;
(l) no amendments or waiver shall make any change to Section 2.01(g)
or the definitions of "Swing Loan Commitment," "Swing Loan Maturity Date"
or "Swing Loans" or the "Swing Loan Notes" without the consent of the Swing
Loan Lender.
(ii) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
Section 12.04(i)(a) (other than clause (I) of such section), the consent of
the Majority Lenders is obtained but the consent of one or more of such
other Lenders whose consent is required is not obtained, then Borrower
shall have the right to replace one or more of such non-consenting Lender
or Lenders (so long as all non-consenting Lenders are so replaced) with one
or more Replacement Lenders pursuant to Section 2.11 so long as at the time
of such replacement each such Replacement Lender consents to the proposed
change, waiver, discharge or termination; provided, however, that Borrower
shall not have the right to replace a Lender solely as a result of the
exercise of such Lender's rights (and the withholding of any required
consent by such Lender) pursuant to clause (I) of Section 12.04(i)(a).
12.05. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
12.06. Assignments and Participations. (a) No Obligor may assign its
respective rights or obligations hereunder or under the Notes or any other
Credit Document without the prior written consent of all of the Lenders, except
in a transaction permitted by Section 9.06.
(b) Each Lender may assign to any Eligible Person any of its Loans, its
Notes, its Letter of Credit Interests and its Commitments (but only with the
consent (which shall not be unreasonably withheld, delayed or conditioned) of
Borrower, Administrative Agent and, in the case of the Revolving Credit
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Commitments, the Issuing Lender); provided, however, that (i) no consent of
Borrower, Administrative Agent, or the Issuing Lender shall be required in the
case of any assignment to another Lender or any Lender's Affiliate or an
Approved Fund of any Lender (in which case, the assignee and assignor Lenders
shall give notice of the assignment to Administrative Agent); (ii) no consent of
Borrower, Administrative Agent or Issuing Lender need be obtained if any Event
of Default shall have occurred and be continuing; (iii) each assignment, other
than to a Lender or any Lender's Affiliate or an Approved Fund of any Lender and
other than any assignment effected by any Agent or any of their respective
Affiliates in connection with the syndication of the Commitments and/or Loans or
otherwise, shall be in an aggregate amount of at least $2.5 million (or $1.0
million in the case of any assignments of Tranche B-PR Term Loans or Tranche
C-PR Term Loans) unless the assigning Lender's exposure is reduced to $0 or
unless Borrower and Administrative Agent otherwise consent and (iv) in no event
may any such assignment be made to any Obligor or any of its Affiliates without
consent of all Lenders. Any assignment of a Loan shall be effective only upon
appropriate entries with respect thereto being made in the Register (and each
Note shall expressly so provide). Any assignment or transfer of a Loan shall be
registered on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan (if a Note was issued in respect
thereof), accompanied by an instrument in writing substantially in the form of
Exhibit F, and upon consent thereto by Borrower, Administrative Agent and the
Issuing Lender to the extent required above (none of which consents to be
unreasonably withheld or delayed), one or more new Notes (if requested by the
New Lender) in the same aggregate principal amount shall be issued to the
designated assignee and the old Notes shall be returned by Administrative Agent
to Borrower marked "cancelled". Upon execution and delivery by the assignee to
Borrower and Administrative Agent of an instrument in writing substantially in
the form of Exhibit F, and upon consent thereto by Borrower, Administrative
Agent and the Issuing Lender to the extent required above (none of which
consents to be unreasonably withheld or delayed), and in the case of a Loan,
upon appropriate entries being made in the Register the assignee shall have, to
the extent of such assignment (unless otherwise provided in such assignment with
the consent of Administrative Agent), the obligations, rights and benefits of a
Lender hereunder holding the Commitment(s), Loans (or portions thereof) and
Letter of Credit Interests assigned to it (in addition to the Commitment(s),
Letter of Credit Interests and Loans, if any, theretofore held by such assignee)
and the assigning Lender shall, to the extent of such assignment, be released
from the Commitment(s) (or portion(s) thereof) so assigned. Upon any such
assignment by any Lender (other than to any Affiliate of such Lender or any
Approved Fund of such Lender and other than any assignment by any Agent or any
of their respective Affiliates) the assignee Lender shall pay a fee of $3,500 to
Administrative Agent. Upon any such assignment, certain rights and obligations
of the assigning Lender shall survive as set forth in Section 12.07. Each
assignment shall be made pursuant to an agreement substantially in the form of
Exhibit L. Administrative Agent shall promptly upon request provide
Co-Syndication Agents such information regarding assignments as Co-Syndication
Agents may request.
(c) A Lender may sell or agree to sell to one or more other Persons a
participation in all or any part of any Loans and Letter of Credit Interests
held by it, or in its Commitments, in which event each purchaser of a
participation (a "Participant") shall be entitled to the rights and benefits of
the provisions of Section 5 (provided, however, that no Participant shall be
entitled to receive any greater amount pursuant to Section 5 than the transferor
Lender would have been entitled to receive in respect of the participation
effected by such transferor Lender had no participation occurred) with respect
to its participation in such Loans, Letter of Credit Interests and Commitments
as if such Participant were a "Lender" for purposes of said Section, but, except
as otherwise provided in Section 4.07(c), shall not have any other rights or
benefits under this Agreement or any Note or any other Credit Document (the
Participant's rights against such Lender in respect of such participation to be
those set forth in the agreements executed by such Lender in favor of the
Participant). All amounts payable by Borrower to any Lender under Section 5 in
respect of Loans, Letter of Credit Interests and its Commitments shall be no
greater than the amount that would have applied if such Lender had not sold or
agreed to sell any participation in such Loans, Letter of Credit Interests and
Commitments, and as if such Lender were funding each of such Loan, Letter of
Credit Interests and Commitments in the same way that it is funding the portion
of such Loan, Letter of Credit Interests and Commitments in which no
participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Credit Document, except that such Lender may
agree with the Participant that it will not, without the consent of the
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Participant, agree to any modification or amendment set forth in subclauses (I),
(II), (III) or (VIII) of clause (a) of the proviso to Section 12.04 to the
extent such Lender's consent is required therefor.
(d) In addition to the assignments and participations permitted under the
foregoing provisions of this Section 12.06, any Lender may assign and pledge all
or any portion of its Loans and its Notes to any United States Federal Reserve
Bank as collateral security pursuant to Regulation A of the Board of Governors
of the Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank and, in the case of a Lender that is an investment fund, any such
Lender may assign or pledge all or any portion of its Loans and its Notes to its
trustee or any creditor or representative of creditors in support of its
obligations to its trustee or creditors, without notice to or consent of
Borrower, Administrative Agent, Co-Syndication Agents or Issuing Lender. No such
assignment shall release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning any Company in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants) subject, however, to and so
long as the recipient agrees to be bound by the provisions of Section 12.11. In
addition, each Agent may furnish any information concerning any Obligor or any
of its Affiliates in such Agent's possession to any Affiliate of such Agent,
subject, however, to the provisions of Section 12.11. The Obligors shall assist
any Lender in effectuating any assignment or participation pursuant to this
Section 12.06 (including during syndication) in whatever manner such Lender
reasonably deems necessary, including participation in meetings with prospective
transferees.
12.07. Survival. The obligations of the Obligors under Sections 5.01, 5.05,
5.06 and 12.03, the obligations of each Guarantor under Section 6.03, and the
obligations of the Lenders under Sections 5.06 and 11.02, shall survive the
repayment of the Loans and Reimbursement Obligations and the termination of the
Commitments and, in the case of any Lender that may assign any interest in its
Commitments, Loans or Letter of Credit Interest hereunder, shall (to the extent
relating to such time as it was a Lender) survive the making of such assignment,
notwithstanding that such assigning Lender may cease to be a "Lender" hereunder.
In addition, each representation and warranty made, or deemed to be made by a
notice of any extension of credit, herein or pursuant hereto shall be considered
to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and the Notes and the making of any
extension of credit hereunder, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that Administrative Agent or
any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty and regardless of whether any such representation or
warranty under the Merger Agreement survives the Merger.
12.08. Captions. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
12.09. Counterparts; Interpretation; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to Administrative Agent
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof, other than the separate
engagement letter (to the extent specified therein as surviving) and the
separate fee letters with certain of the Agents and their affiliates, which are
not superseded and survive. Except as provided in Section 7.01, this Agreement
shall become effective when it shall have been executed by Administrative Agent
and when Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
12.10. Governing Law; Submission to Jurisdiction; Waivers; Etc. Each Credit
Document shall be governed by, and construed in accordance with, the law of the
State of New York, without regard to the principles of conflicts of laws thereof
(except in the case of the other Credit Documents, to the extent otherwise
99
<PAGE>
expressly stated therein). Each Obligor hereby irrevocably and unconditionally:
(I) submits for itself and its Property in any Proceeding relating to any Credit
Document to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
Supreme Court of the State of New York sitting in New York County, the courts of
the United States of America for the Southern District of New York, and
appellate courts from any thereof; (II) consents that any such Proceeding may be
brought in any such court and waives trial by jury and any objection that it may
now or hereafter have to the venue of any such Proceeding in any such court or
that such Proceeding was brought in an inconvenient court and agrees not to
plead or claim the same; (III) agrees that service of process in any such
Proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to Borrower
at its address set forth on the signature page hereto or at such other address
of which Administrative Agent shall have been notified pursuant thereto; and
(IV) 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.
12.11. Confidentiality. Each Lender agrees to keep confidential information
obtained by it pursuant hereto and the other Credit Documents confidential in
accordance with such Lender's customary practices and agrees that it will only
use such information in connection with the transactions contemplated by this
Agreement and not disclose any of such information other than (a) to such
Lender's employees, representatives, directors, attorneys, auditors, agents,
professional advisors, trustees or affiliates who are advised of the
confidential nature of such information or 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 provision of this
Section 12.11, such Lender being liable for any breach of confidentiality by any
Person described in this clause (a)), (b) to the extent such information
presently is or hereafter becomes available to such Lender on a non-confidential
basis from any source of such information that is in the public domain at the
time of disclosure, (c) to the extent disclosure is required by law (including
applicable securities laws), regulation, subpoena or judicial order or process
(provided that notice of such requirement or order shall be promptly furnished
to Borrower unless such notice is legally prohibited) or requested or required
by bank, securities, insurance or investment company regulations or auditors or
any administrative body or commission (including the Securities Valuation Office
of the NAIC) to whose jurisdiction such Lender may be subject, (d) to any rating
agency to the extent required in connection with any rating to be assigned to
such Lender, (e) to assignees or participants or prospective assignees or
participants who agree to be bound by the provisions of this Section 12.11, (f)
to the extent required in connection with any litigation between any Obligor and
any Creditor with respect to the Loans or this Agreement and the other Credit
Documents or (g) with Borrower's prior written consent.
12.12. Independence of Representations, Warranties and Covenants. The
representations, warranties and covenants contained herein shall be independent
of each other and no exception to any representation, warranty or covenant shall
be deemed to be an exception to any other representation, warranty or covenant
contained herein unless expressly provided, nor shall any such exception be
deemed to permit any action or omission that would be in contravention of
applicable law. Notwithstanding anything herein to the contrary, any matter
identified on a Schedule to this Agreement shall be deemed to be set forth on
all other Schedules to this Agreement for purposes of determining compliance
with any of the representations, warranties or covenants contained herein.
12.13. Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
12.14. Acknowledgments. The Obligors hereby acknowledge that: (a) each of
them has been advised by counsel in connection with the negotiation, execution
and delivery of the Credit Documents; (b) no Creditor has any fiduciary or
similar relationship to any Obligor and the relationship between the Creditors
on the one hand, and the Obligors, on the other hand, is solely that of debtor
and creditor; and (c) no joint venture exists among the Creditors or among the
Obligors and the Creditors.
[Signature Pages Follow]
100
<PAGE>
SCHEDULE 1.01
GUARANTORS
Centennial Cellular Corp.
Alexandria Cellular Corporation
Alexandria Cellular License Corporation
Bauce Communications, Inc.
Bauce Communications of Beaumont, Inc.
Centennial Ashe Cellular Corp.
Centennial Beauregard Cellular LLC
Centennial Beauregard Holding Corp.
Centennial Benton Harbor Cellular Corp.
Centennial Benton Harbor Holding Corp.
Centennial Caldwell Cellular Corp.
Centennial Cellular Telephone Company of Del Norte
Centennial Cellular Telephone Company of Lawrence
Centennial Cellular Telephone Company of Modoc
Centennial Cellular Telephone Company of Sacramento Valley
Centennial Cellular Telephone Company of San Francisco
Centennial Cellular Tri-State Operating Partnership
Centennial Cellular Wireless Holding Corp.
Centennial Claiborne Cellular Corp.
Centennial Clinton Cellular Corp.
Centennial DeSoto Cellular Corp.
Centennial Hammond Cellular LLC
Centennial Iberia Holding Corp.
Centennial Lafayette Cellular Corp.
Centennial Lake Charles Cellular Corp.
Centennial Louisiana Holding Corp.
Centennial Mega Comm Holding Corp.
Centennial Michigan RSA 6 Cellular Corp.
Centennial Michigan RSA 7 Cellular Corp.
Centennial Morehouse Cellular LLC
Centennial Puerto Rico Wireless Corporation
Centennial Randloph Cellular LLC
Centennial Randolph Holding Corp.
Centennial Wireless PCS License Corp.
Centennial Wireless PCS Operations Corp.
Century Beaumont Cellular Corp.
Century Charlottesville Cellular Corp.
Century El Centro Corp.
Century Elkhart Cellular Corp.
Century Lynchburg Cellular Corp.
Century Michiana Cellular Corp.
Century Roanoke Cellular Corp. (DE)
Century Roanoke Cellular Corp. (VA)
Century South Bend Cellular Corp.
Century Yuma Cellular Corp.
El Centro Cellular Corporation
Elkhart Metronet, Inc.
Hendrix Electronics, Inc.
Hendrix Radio Communications, Inc.
Iberia Cellular Telephone Company LLC
Lafayette Communications, Inc.
Mega Comm LLC
Michiana Metronet, Inc.
South Bend Metronet, Inc.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> May-31-2000
<PERIOD-END> Feb-29-2000
<CASH> 50,203
<SECURITIES> 19,704
<RECEIVABLES> 79,223
<ALLOWANCES> 13,628
<INVENTORY> 9,148
<CURRENT-ASSETS> 146,554
<PP&E> 494,084
<DEPRECIATION> 138,754
<TOTAL-ASSETS> 1,068,789
<CURRENT-LIABILITIES> 115,884
<BONDS> 1,539,850
0
0
<COMMON> 944
<OTHER-SE> (587,889)
<TOTAL-LIABILITY-AND-EQUITY> 1,068,789
<SALES> 368,423
<TOTAL-REVENUES> 368,423
<CGS> 71,955
<TOTAL-COSTS> 257,447
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 110,347
<INCOME-PRETAX> 578
<INCOME-TAX> 2,186
<INCOME-CONTINUING> 9,485
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,485
<EPS-BASIC> 0.10
<EPS-DILUTED> 0.10
</TABLE>
