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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED: SEPTEMBER 30, 1999
[ ] 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 0-25314
e.spire COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-1947746
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
133 NATIONAL BUSINESS PARKWAY, ANNAPOLIS JUNCTION, MD 20701
(Address of principal executive offices)
(301) 361-4200
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date:
The number of shares at e.spire Common Stock, Par Value $0.01 outstanding on
November 8, 1999 was 51,122,783.
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e.spire COMMUNICATIONS, INC.
FORM 10 -- Q
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION
<S> <C>
Item 1. Financial Statements
Condensed Consolidated Balance Sheets -- September 30, 1999
(unaudited) and December 31, 1998 1
Condensed Consolidated Statements of Operations -- Three and Nine
Months Ended September 30, 1999 and 1998 (unaudited) 2
Condensed Consolidated Statements of Cash Flows -- Nine Months Ended
September 30, 1999 and 1998 (unaudited) 3
Notes to Unaudited Condensed Consolidated Interim Financial Statements 4
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 6
Item 3. Quantitative and Qualitative Disclosures about Market Risk 14
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 15
Item 2. Changes in Securities 15
Item 6. Exhibits and reports on Form 8-K 16
Signatures....................................................................... 17
Index of Exhibits................................................................ 18
</TABLE>
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PART I
FINANCIAL INFORMATION
ITEM 1 -- FINANCIAL STATEMENTS
e.spire COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
($ IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
-------------- --------------
(unaudited)
ASSETS
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 74,399 $ 328,758
Restricted cash and investments 18,487 30,769
Trade accounts receivable, net of allowance for doubtful accounts of
$21,297 and $5,581 at September 30, 1999 and December 31,
1998, respectively 99,542 42,254
Unbilled revenue 18,991 12,093
Other current assets 5,699 8,742
-------------- --------------
Total current assets 217,118 422,616
-------------- --------------
Inventory, Networks, equipment and furniture, gross 811,597 561,954
Less: accumulated depreciation and amortization (139,329) (76,020)
-------------- --------------
672,268 485,934
Deferred financing fees, net of accumulated amortization of $11,749 and $7,855
at September 30, 1999 and December 31, 1998, respectively 45,687 42,184
Intangible assets, net of accumulated amortization of
$9,715 and $3,897 at September 30, 1999 and December 31, 1998, respectively 8,940 14,743
Restricted cash and investments 0 15,125
Other assets 3,102 2,355
-------------- --------------
Total assets $ 947,115 $ 982,957
============== ==============
LIABILITIES, REDEEMABLE STOCK, AND STOCKHOLDERS' DEFICIT
Current Liabilities:
Accounts payable $ 69,339 $ 66,647
Accrued employee costs 11,649 1,682
Other accrued liabilities 11,155 8,894
Notes payable - current portion 110,000 2,188
Obligations under capital leases - current portion 6,332 3,607
Accrued interest 7,456 13,864
-------------- --------------
Total current liabilities 215,931 96,882
-------------- --------------
Long Term Liabilities:
Notes payable, less current portion 734,103 723,105
Obligations under capital leases, less current portion 32,850 20,915
Other long-term liabilities 4,045 2,745
-------------- --------------
Total liabilities 986,929 843,647
-------------- --------------
Redeemable stock
14 3/4% Redeemable Preferred Stock due 2008 82,610 70,136
12 3/4% Junior Redeemable Preferred Stock due 2009 188,359 170,908
-------------- --------------
Total redeemable stock 270,969 241,044
Stockholders equity (deficit):
Common Stock, $0.01 par value, 125,000,000 shares authorized, 50,536,407 and
48,446,064 shares, respectively, issued and outstanding 505 484
Additional paid-in capital 235,831 258,317
Accumulated deficit (547,119) (360,535)
-------------- --------------
Total stockholders' deficit (310,783) (101,734)
-------------- --------------
Total liabilities, redeemable stock and stockholders' deficit $ 947,115 $ 982,957
============== ==============
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
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e.spire COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
($ IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
For the three months ended September 30, For the nine months ended September 30,
----------------------------------------- -----------------------------------------
1999 1998 1999 1998
----------------- -------------------- ------------------ ------------------
(unaudited) (unaudited)
<S> <C> <C> <C> <C>
Revenues:
Telecommunications services $ 45,461 $ 34,002 $ 130,249 $ 89,120
Network Technologies services 22,031 11,458 58,636 19,561
----------------- ------------------ ------------------ ----------------
Total revenues 67,492 45,460 188,885 108,681
Cost of sales:
Telecommunications services 31,170 25,517 87,787 67,644
Network Technologies services 10,582 3,680 30,463 5,150
----------------- ------------------ ------------------ ----------------
Total cost of sales 41,752 29,197 118,250 72,794
Gross profit:
Telecommunications services 14,291 8,485 42,462 21,476
Network Technologies services 11,449 7,778 28,173 14,411
----------------- ------------------ ------------------ ----------------
Total gross profit 25,740 16,263 70,635 35,887
Operating Expenses
Selling, general and administrative 45,494 28,685 119,547 70,139
Noncash compensation expense 2,384 1,562 7,577 4,989
Depreciation and amortization 25,362 11,551 69,039 28,934
----------------- ------------------ ------------------ ----------------
Total Operating Expenses 73,240 41,798 196,163 104,062
Loss from Operations (47,500) (25,535) (125,528) (68,175)
Nonoperating income/expenses
Interest and other income (a) (1,791) (6,930) (9,309) (16,921)
Interest and other expense 24,310 20,171 70,365 52,062
----------------- ------------------ ------------------ ----------------
Net loss (70,019) (38,776) (186,584) (103,316)
Preferred stock dividends and accretion 10,305 9,022 30,002 26,122
----------------- ------------------ ------------------ ----------------
Net loss applicable to common stockholders $ (80,324) $ (47,798) $ (216,586) $ (129,438)
================= ================== ================== ================
Basic and diluted net loss per common share $ (1.60) $ (1.00) $ (4.37) $ (2.97)
================= ================== ================== ================
Weighted average number of common
shares outstanding 50,267,001 47,732,934 49,550,227 43,574,670
================= ================== ================== ================
</TABLE>
See accompanying notes to consolidated financial statements.
(a) For the three months ended September 30, 1999, Interest and other income
includes a $71 loss associated with the sale of switched resale lines. For the
nine months ended September 30, 1999, Interest and other income includes a $359
gain associated with the sale of switched resale lines.
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e.spire COMMUNICATIONS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
($ IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
For the nine months ended September 30,
1999 1998
-------------------- --------------------
<S> <C> <C>
Cash flows from operating activities
Net Loss $ (186,584) $ (103,316)
Adjustments to reconcile net loss to net cash used in operating activities
Depreciation and amortization 69,039 28,934
Interest deferral and accretion 43,373 24,573
Amortization of deferred financing fees 3,894 2,805
Noncash compensation 7,577 4,088
Non-monetary revenue (17,958) (9,002)
Changes in operating assets and liabilities:
Trade accounts receivable (46,228) (27,389)
Other current assets 3,043 (1,481)
Other assets (747) (571)
Accounts payable 2,692 29,952
Other accrued liabilities 1,043 (815)
-------------------- --------------------
Net cash used in operating activities (120,856) (52,222)
Cash flows from investing activities
Restricted cash related to network activities 2,139
Network development costs and purchases of equipment and furniture (229,741) (149,365)
-------------------- --------------------
Net cash used in investing activities (227,602) (149,365)
Cash flows from financing activities
Issuance of notes payable 110,000 224,959
Issuance of common stock - 134,261
Payment of dividends for preferred stock (85) -
Payment of notes payable (34,563) -
Payment of lease obligation (5,242) (1,978)
Payment of deferred financing fees (7,397) (21,312)
Restricted cash related to financing activities 25,268 27,364
Exercise of warrants, options and other 6,118 14,707
-------------------- --------------------
Net cash provided by financing activities 94,099 378,001
Net (decrease) increase in cash & cash equivalents (254,359) 176,414
Cash and cash equivalents - beginning of period 328,758 260,837
==================== ====================
Cash and cash equivalents - end of period $ 74,399 $ 437,251
==================== ====================
Supplemental disclosure of cash flow information:
Interest paid $ 35,207 $ 30,048
Assets acquired under capital lease $ 19,902 $ 37,025
Dividends declared with preferred stock $ 27,348 $ 23,989
Increase in intangibles $ 14 $ 1
Accrual of stock bonuses $ 6,077 $ 1,859
Stock issued under purchase agreements $ - $ 2,515
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
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e.spire COMMUNICATIONS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
NOTE 1: BASIS OF PRESENTATION
The condensed consolidated financial statements include the accounts of
e.spire Communications, Inc. ("e.spire" or the "Company") and its wholly-owned
subsidiaries. All material intercompany accounts and transactions have been
eliminated in consolidation.
The condensed consolidated balance sheet as of September 30, 1999, the
condensed consolidated statements of operations for the three and nine months
ended September 30, 1999 and 1998, and the condensed consolidated statements of
cash flows for the nine months ended September 30, 1999 and 1998, have been
prepared by the Company, without audit. In the opinion of management, all
adjustments, which include normal recurring adjustments necessary to present
fairly the financial position, results of operations and cash flows at September
30, 1999, and for all periods presented, have been made. Certain amounts in the
1998 condensed consolidated statements have been reclassified to conform to the
1999 presentation. Operating results for the three and nine months ended
September 30, 1999, are not necessarily indicative of the operating results for
the full year.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted. The Company believes that the disclosures
provided are adequate to make the information presented not misleading. These
financial statements should be read in conjunction with the audited financial
statements and the related notes included in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998.
NOTE 2: SIGNIFICANT ACCOUNTING POLICIES
RESTRICTED CASH AND INVESTMENTS
The Company has provided performance bonds and letters of credit in various
cities in connection with its operations, resulting in a restriction to cash
amounting to approximately $3,362,000 at September 30, 1999, and $1,223,000 at
December 31, 1998. The face amount of all bonds and letters of credit is
approximately $21,681,000 as of September 30, 1999, and $12,292,000 as of
December 31, 1998. In addition, as of September 30, 1999, the Company currently
has approximately $15,125,000 in an escrow account to fund the next interest
payment of its 13 3/4 % senior notes due 2007. The escrow account is invested in
cash equivalents consisting of government and commercial securities.
USE OF ESTIMATES
The preparation of the condensed consolidated financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities; and disclosure of contingent assets and liabilities at the dates of
the consolidated financial statements and the reported amounts of revenue and
expenses during the reporting period. Actual results may differ from those
estimates.
RISKS AND UNCERTAINTIES
A significant portion of the Company's cash resources are committed for
existing obligations. However, management anticipates that the Company's current
cash resources and amounts available under the $200 million Senior Secured
Credit Facilities (the "Credit Facilities"), assuming the Company receives a
waiver to the Credit Facilities in order to remedy its default (see Note 3),
are sufficient to fund the Company's continuing negative cash flow and required
capital expenditures into 2000. To meet its remaining operating and capital
requirements and to successfully implement its strategy, the Company will be
required to sell additional equity securities, increase its existing Credit
Facilities, acquire additional credit facilities or sell additional debt
securities, certain of which may require the consent of the Company's debt
holders. Also, the Company is currently exploring additional sources of
financing, including increases in capital leases. There can be no assurance that
the Company will be able to obtain the additional financing necessary to
satisfy its cash requirements or to implement its strategy successfully, in
which event the
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Company will be unable to fund its ongoing operations, which would have a
material adverse effect on its business, results of operations and financial
condition.
The Company has recorded revenue of approximately $13.6 million and $32.4
million, respectively, for the three and nine months ended September 30, 1999
and approximately $4.8 million and $11.4 million for the same period of 1998 for
reciprocal compensation relating to the transport and termination of local
traffic primarily to Internet Service Providers ("ISPs") from customers of
Incumbent Local Exchange Carriers ("ILECs") pursuant to various interconnection
agreements. These ILECs have not paid and have disputed the majority of these
charges, based on the belief that such calls are not local traffic, as defined
by the various agreements and under state and federal laws and public policies.
As of September 30, 1999, the Company has received approximately $9.8 million
for reciprocal compensation. The resolution of these disputes will be based on
rulings by state public utility commissions ("PUCs"), the Federal Communications
Commission ("FCC"), the courts and/or commercial arbitrators. The FCC ruled that
ISP-bound traffic is jurisdictionally "interstate in nature", but delegated to
state PUCs the decision of whether reciprocal compensation must be paid under
the terms of local interconnection agreements. e.spire has obtained favorable
rulings from the Georgia and Florida PSCs requiring payment of past due
reciprocal compensation in those states, although those rulings have been
appealed by the ILEC. e.spire has several pending proceedings before state PSCs
and commercial arbitrators to collect these amounts. The Company has
outstanding trade accounts receivable related to reciprocal compensation of
approximately $44.8 million at September 30, 1999. Although there can be no
assurance that future regulatory, or arbitration rulings will be favorable to
the Company, and, the timing of receipts cannot be predicted at this time, the
Company believes that these amounts are ultimately collectible.
Certain of the Company's interconnection agreements with the ILECs have
expired or soon will expire. The Company believes that there is a high
probability that the future rates for reciprocal compensation under new
interconnection agreements, some of which are currently in negotiation, may be
significantly less than current rates.
NOTE 3: FINANCING ACTIVITIES
To date, the Company has funded the construction of its networks and its
operations with external financings, as described in the Liquidity and Capital
Resources section of Management's Discussion and Analysis of Financial Condition
and Results of Operations.
On August 12, 1999, the Company closed the Credit Facilities consisting of
a $35 million revolver, a $55 million multiple draw term loan each with a 6.5
year maturity, and a $110 million term loan with a 7 year maturity. Of the
Credit Facilities, a total of $164 million was immediately available to the
Company, of which the Company drew $110 million. The remaining $36 million
becomes available if the Company is able to complete an additional junior
capital raise of at least $100 million. Also, the Credit Facilities contain an
Incremental Facility of up to an additional $100 million, although no lender is
obligated to participate in the Incremental Facility.
In addition, the Credit Facilities contain financial covenants with which
the Company must comply. The Company is not in compliance with the financial
covenants as of September 30, 1999. Absent a waiver, a default exists under the
Credit Facilities and allows the lenders to accelerate the maturity of the
borrowings under the Credit Facilities. Any such acceleration could also result
in the acceleration of other obligations of the Company, including the 2005
Notes, 2006 Notes, 2007 Notes and 2008 Notes. In the event of an acceleration of
its outstanding debt obligations, the Company would not have sufficient
liquidity to meet its obligations.
The Company is presently seeking, and believes that it is likely to obtain
the waiver to the Credit Facilities in order to remedy its default thereunder.
There can be no assurance that the Company will be successful in obtaining the
waiver that it is seeking or that it will be successful in avoiding acceleration
of its debt obligations. The Company has classified the amounts outstanding
under the Credit Facilities as a current liability in the accompanying unaudited
Condensed Consolidated Balance Sheets.
With the proceeds of the Credit Facilities, the Company retired a secured
credit facility in the amount of $35 million with Newcourt Commercial Finance
Corporation on August 12, 1999.
NOTE 4: NEW ACCOUNTING PRONOUNCEMENTS
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In June 1998, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standard No. 133, " Accounting for Derivative
Instruments and Hedging Activities," which is effective for all quarters of all
fiscal years beginning June 15, 2000. The Company is currently assessing the
impact of this standard.
In June 1999, the FASB issued FASB Interpretation No. 43 ("FIN 43"), "Real
Estate Sales: An interpretation of FASB Statement No. 66," which is effective
for all transactions entered into after June 30, 1999. Under FIN 43, sales,
capital leases and indefeasible rights of use ("IRUs") of dark fiber, conduit
and capacity related to fiber optic cable systems may be required to be
accounted for under FASB No. 66 based upon the terms of the transaction and,
components of asset involved. The Company believes that its sales capital
leases and IRUs of dark fiber, conduit and fiber optic cable systems, to the
extent title is transferred, will continue to meet the criteria for sales type
lease accounting. Although management believes FIN 43 will not have any effect
on its cash flows and should not have a material effect on its accounting
policies, consolidated financial condition or results of operations, accounting
practice and authoritative guidance is currently evolving in the industry,
accounting profession and regulatory authorities, with resolution expected
within the the next several months.
NOTE 5: SEGMENT REPORTING
During 1998, the Company adopted Statement of Financial Accounting Standard
No. 131 , "Disclosures about Segments of an Enterprise and Related Information."
The Company has identified two reportable segments: Telecommunications services
and Network Technologies services. The Telecommunications services segment
provides special access, local switched voice, data transmission, and Internet
services, over the Company's own facilities, over facilities the Company has
long-term lease agreements for and on a limited resale basis. The Network
Technologies services segment offers construction services, including the sale
of IRUs on portions of e.spire's networks to Interexchange Carriers ("IXCs") and
other customers, fiber optic network design and project management services. The
Company's reportable segments are strategic business units that offer different
products and services. They are managed separately because each business unit
requires different technology and marketing strategies.
The Company evaluates the performance of each segment based on revenues from
third parties and gross margin, which are separately disclosed on the condensed
consolidated statement of operations for each segment. The reportable total
assets for Telecommunications services and Network Technologies services are
approximately $903.3 million and $43.8 million, respectively at September 30,
1999. Network Technologies services assets primarily consist of accounts
receivable and property, plant and equipment that are specifically identifiable
with Network Technologies.
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ITEM 2 -- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and other sections herein,
including statements regarding the development of the Company's businesses, the
markets for the Company's services and products, the Company's anticipated
capital expenditures, and other similar statements are forward-looking
statements (as such term is defined in the Private Securities Litigation Reform
Act of 1995) which can be identified as any statement that does not relate
strictly to historical or current facts. Forward-looking statements use such
words as plans, expects, will, will likely result, are expected to, will
continue, is anticipated, estimate, project, believes, anticipates, intends,
may, should, continue, seek, could and other similar expressions. Although the
Company believes that its expectations are based on reasonable assumptions, it
can give no assurance that its expectations will be achieved. The important
factors that could cause actual results to differ materially from those in the
forward-looking statements herein (the "Cautionary Statements") include, without
limitation, the Company's degree of financial leverage, risks associated with
debt service requirements and interest rate fluctuations, risks associated with
acquisitions and the integration thereof, the impact of restriction under the
Company's financial instruments, dependence on availability of transmission
facilities, regulation risks including the impact of the Telecommunications Act
of 1996, contingent liabilities, the impact of competitive services and pricing,
the ability of the Company to successfully implement its strategies, as well as
the other risks referenced from time to time in the Company's filings with the
SEC, including the Company's Form 10-K for the year ended December 31, 1998. All
subsequent written and oral forward-looking statements attributable to the
Company or persons acting on its behalf are expressly qualified in their
entirety by the Cautionary Statements. The Company does not undertake any
obligation to release publicly any revisions to such forward-looking statements
to reflect events or circumstances after the date hereof or to reflect the
occurrence of unanticipated events.
OVERVIEW
e.spire seeks to be a leading facilities-based integrated communications
provider ("ICP") to small- and medium-sized businesses. The Company is one of
the first Competitive Local Exchange Carriers ("CLECs") to combine the provision
of voice services, such as dedicated access, local, and long distance, with
advanced data services, such as frame relay, asynchronous transfer mode ("ATM"),
dedicated Internet service, and dial-up Internet and web hosting services. The
Company currently offers voice services in 38 U.S. markets where it has
state-of-the-art local fiber optic networks and offers data services in 48 U.S.
markets where it provides access to 388 data points-of-presence ("POPs").
Through its subsidiary, ACSI Network Technologies, Inc. ("ACSI NT"), e.spire
also offers network design and construction services, including the sale of IRUs
on portions of e.spire's networks to IXCs and other customers. Customers include
CLECs, IXCs, corporations, and municipalities in selected markets throughout the
U.S.
While the ILECs, such as BellSouth, SBC Communications, Bell Atlantic, U S
West, and GTE, still dominate most local markets given their long history of
monopoly control, regulatory changes have clearly mandated their markets to be
subject to competition. Enabled by the Federal Telecommunications Act of 1996,
e.spire can bundle a broader suite of service offerings over a wider geography
and price more competitively, than its Regional Bell Operating Company
competitors. Moreover, e.spire has state-of-the-art network technology, compared
to most of the legacy systems and infrastructure of the ILECs. These competitive
advantages have enabled the Company to compete thus far and create the
opportunity for future increases in market penetration. The Company targets
small- and medium-sized businesses for fully bundled voice and high-speed data
services, a niche that the Company believes is largely underserved by the ILECs
and other CLECs.
As of September 30, 1999, e.spire had 131,965 local access lines in service,
of which approximately 92% were on-switch. These lines represent approximately
8,000 customers. The Company's facilities-based network infrastructure is
designed to provide services to customers seeking end-to-end connectivity. As of
September 30, 1999, e.spire's infrastructure was comprised of 3,797 route miles
of fiber in its 38 local voice markets throughout the Southeast and Eastern
seaboard of the United States, 28 Lucent 5ESS voice switches, 110 central office
co-locations, and approximately 26,000 backbone long-haul route miles in its
leased coast-to-coast broadband data network. Further complementing the data
infrastructure, e.spire has 388 data POPs which are a combination of both
e.spire's infrastructure and various network-to-network interconnection
arrangements. e.spire is a Tier 1 Internet provider and has more than 50 public
and private peering arrangements to date,
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which should ensure robust connectivity to all Internet destinations. e.spire
provides dedicated and dial-up Internet service and web hosting through its
wholly owned subsidiary, CyberGate, Inc.
In the third quarter of 1999, e.spire announced the lighting of its 182-mile
network in New York. In addition, e.spire recently initiated services in five
new Tier 1 cities, Atlanta, South Florida (Ft. Lauderdale/Miami), Philadelphia,
Washington, DC/Northern Virginia and San Antonio, with local fiber-optic
networks and Lucent 5ESS-2000 digital voice switches. Also, the Company has
completed its 194-mile long-haul data, Internet and voice connection of its
fiber-optic networks in New York City, Philadelphia, Baltimore and Washington,
DC/Northern Virginia.
The development of the Company's business and the construction, acquisition
and expansion of its networks require significant capital expenditures, a
substantial portion of which are incurred before realization of revenues. These
expenditures, together with the associated early operating expenses, have
resulted and will continue to result in a negative cash flow until an adequate
customer base is established. However, as the Company's customer base grows, the
Company expects that as a facilities-based provider, incremental revenues can be
generated with decreasing incremental operating expenses, which will provide
positive contributions to cash flow. The Company has made specific strategic
decisions to build high-capacity networks with broad market coverage, which
initially increases its level of capital expenditures and operating losses.
However, the Company believes that over the long term, this strategy will
enhance the Company's financial performance by increasing the traffic flow over
its network.
TELECOMMUNICATIONS SERVICES
e.spire's Telecommunications services include local, long distance, special
access services, high-speed data and Internet services, including dial-up and
dedicated Internet access, web hosting, frame relay, and ATM. To become a single
source provider of voice and data services, e.spire has introduced an integrated
product line offering bundled local and long distance together with data and
Internet services. The Company also provides value-added services such as web
hosting, messaging and e-commerce solutions, custom network services (which
includes design, installation, maintenance, hardware, and configuration of a
customer's network), and firewall services (security and monitoring of a
customer's network). In the first quarter of 1999, the Company announced that it
signed an agreement with Covad Communications, Inc. ("Covad") that enables it to
offer digital subscriber line ("DSL") service, a high-speed enabling technology
providing a "last mile" connection to the customer. e.spire is completing its
DSL beta-testing phase with Covad, and expects to introduce its first DSL
service by the end of the fourth quarter of 1999, starting in selected e.spire
markets.
The Company is already expanding its data and Internet offerings to some of
the larger Tier 1 markets across the U.S. During the third quarter of 1999,
e.spire launched dedicated and dial-up Internet service to small- and
medium-sized business customers in 25 cities where it already provides local
switched services.
NETWORK TECHNOLOGIES SERVICES
Through its ACSI NT subsidiary, e.spire designs and constructs high-speed,
advanced fiber-optic networks for third parties, such as other CLECs, IXCs,
corporations, and municipalities. ACSI NT sells IRUs on portions of e.spire's
networks to IXCs and other customers. ACSI NT provides expertise for
engineering, and construction processes and outsources the actual physical
construction work to subcontractors. ACSI NT performs preliminary market
analysis and site assessments, develops business plans, manages liability risk,
and construction, installs fiber, and monitors completed networks.
The continued growth of the Internet and bandwidth-intensive advanced data
services, together with deregulation and technology improvements, has generated
increasing demand for telecommunications network design and construction. ACSI
NT has demonstrated its expertise in building virtually all of e.spire's
high-quality networks for e.spire's own use. It has leveraged its network
expertise to third parties, by developing a business that is low risk,
opportunistic, and a diversified source of revenues with healthy margins, all
with a limited use of the Company's capital.
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RESULTS OF OPERATIONS
REVENUES
The Company reported an increase in total revenues of $22.0 million, or 49%,
to $67.5 million for the three months ended September 30, 1999, compared with
revenues of $45.5 million for the three months ended September 30, 1998, as
discussed below. For the nine months ended September 30, 1999, total revenues
increased $80.2 million, or 74%, to $188.9 million from $108.7 million for the
same period of 1998, as discussed below.
TELECOMMUNICATIONS SERVICES
The Company reported an increase in Telecommunications services revenues of
$11.5 million, or 34%, to $45.5 million for the quarter ended September 30,
1999, compared with revenues of $34.0 million for the quarter ended September
30, 1998. For the nine months ended September 30, 1999, Telecommunications
services revenues increased $41.2 million, or 46% to $130.3 million from $89.1
million for the nine months ended September 30, 1998. Included in
Telecommunications services are revenues from the dedicated access, switched
local, long distance, and reciprocal compensation and data/Internet products.
The increase in revenues was attributable to the Company's continued greater
presence and expansion in its markets. The increase was principally due to
increased reciprocal compensation revenue as discussed below and increases in
the Company's bundled service offerings such as e.spire Platinum and Gold. The
Company's revenue during the third quarter of 1999 was adversely affected by
increased revenue reserves for customer churn, related in part to the Company's
previously announced elimination of its local switched resale business.
The Company also increased the number of route miles, fiber miles,
co-locations, buildings connected, voice switches and data POPs. Between
September 30, 1999 and September 30, 1998, the Company increased route miles by
2,146 miles, or 130% and increased fiber miles by 25,878 or 17%. Of the 2,146
route miles added over the 12 month period, 1,670 route miles are long haul
connections between selected local metropolitan fiber networks of the Company,
with an associated 7,000 fiber miles. Co-locations increased by 34 or 45% and
buildings connected increased by 1,371, or 49%. Lucent 5ESS switches deployed
increased to 28 as of September 30, 1999, from 18 as of September 30, 1998. In
addition, the growth is attributable to the Company's leased coast-to-coast
broadband network infrastructure by which it delivers both ATM and frame relay
products via its 388 data POPs, which are a combination of both e.spire's
infrastructure and various network-to-network interconnection arrangements. The
number of data POPs has increased to 388 as of September 30, 1999, from 223 as
of September 30, 1998. Net access lines installed increased by 16,091, or 14% to
131,965 at September 30, 1999, from 115,874 at September 30, 1998. In line with
the Company's previously announced initiative to eliminate local switched
resale, over 60,000 resale lines have been eliminated from the access line base
through forced attrition and a multi-phase sale. At September 30, 1999,
approximately 92% of total installed lines were "on-switch" versus approximately
43% as of September 30, 1998.
Included in Telecommunications services revenues is reciprocal compensation
of approximately $13.6 million and $4.8 million, for the three months ended
September 30, 1999 and 1998, respectively, and approximately $32.4 million and
$11.4 million for the nine months ended September 30, 1999 and 1998,
respectively. Reciprocal compensation relates to the transport and termination
of local traffic, primarily to ISPs from ILEC customers, pursuant to various
interconnection agreements. These ILECs have not paid and have disputed the
majority of these charges based on the belief that such calls are not local
traffic as defined by the various agreements and under state and federal law and
public policies. As of September 30, 1999, the Company has received
approximately $9.8 million for reciprocal compensation. The resolution of these
disputes will be based on rulings by state PUCs, the FCC, the courts and/or
commercial arbitrators. The FCC ruled that ISP-bound traffic is jurisdictionally
"interstate in nature" but delegated to state PUCs the decision of whether
reciprocal compensation must be paid under the terms of local interconnection
agreements. e.spire has obtained favorable rulings from the Georgia and Florida
PSCs requiring payment of past due reciprocal compensation in those states,
although those rulings have been appealed by the ILEC. e.spire has several
pending proceedings before state PSCs and commercial arbitrators to collect
these amounts. Although there can be no assurance that future regulatory or
arbitration rulings will be favorable to the Company, and, the timing of
receipts cannot be predicted at this time, the Company believes that these
amounts are ultimately collectible.
NETWORK TECHNOLOGIES SERVICES
Network Technologies services revenues increased $10.5 million, or 92%, to
$22.0 million for the three months ended
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September 30, 1999, compared with revenues of $11.5 million for the three months
ended September 30, 1998. For the nine month periods ended September 30, 1999
and 1998, Network Technologies services revenues increased $39.0 million, or
200%, to $58.6 million from $19.6 million, respectively. The increase in
revenues is attributable to the continued growth in the size and number of
construction contracts in this expanded operation. The Network Technologies
services segment offers construction services, including the sale of IRUs on
portions of e.spire's networks to IXCs and other customers, fiber optic network
design and project management services. Also, included in Network Technologies
revenues are revenues for construction contracts and grants of IRUs on portions
of e.spire's networks to IXCs and other customers. The Company recognized
approximately $2.5 million and $14.4 million for the three and nine months
ended September 30, 1999, respectively, in revenues from agreements to exchange
IRU multiple fibers along certain sections of e.spire's networks for dissimilar
assets or for IRUs on other companies networks with substantial cash payments.
Included in the three and nine months ended September 30, 1999, are revenues of
approximately $10.7 million and $30.0 million, respectively, derived from
contracts with three major customers. The Company expects to see continued
increases in revenues from Network Technologies due to future growth and
expansion in this line of business. The Company's current revenue recognition
policies for Network Technologies services could be adversely effected by the
final resolution of FIN 43. See Note 4 of the Notes to Unaudited Condensed
Consolidated Interim Financial Statements.
COST OF SALES
For the quarter ended September 30, 1999, compared with the quarter ended
September 30, 1998, total cost of sales increased $12.6 million, or 43%, to
$41.8 million from $29.2 million for the three months ended September 30, 1998,
as discussed below. Cost of sales increased $45.5 million, or 62%, to $118.3
million for the nine months ended September 30, 1999 from $72.8 million for the
same period of 1998, as discussed below.
TELECOMMUNICATIONS SERVICES
Cost of sales for Telecommunications services increased $5.7 million, or
22%, to $31.2 million for the quarter ended September 30, 1999, from $25.5
million for the same period of 1998. For the nine months ended September 30,
1999, Telecommunications services cost of sales increased $20.2 million, or 30%,
to $87.8 million from $67.6 million for the nine months ended September 30,
1998. These increases relate to growth in the delivery of switched, data and
special access services and the addition of engineering and operations personnel
dedicated to supporting the network infrastructure.
Included in cost of sales are costs of Telecommunications services paid to
IXCs, ILECs and others for leased telecommunications facilities, access and
services. Such costs increased approximately $4.9 million to approximately $27.4
million for the three months ended September 30, 1999, from approximately $22.5
million for the three months ended September 30, 1998. For the nine months ended
September 30, 1999, these costs increased approximately $20.4 million to $79.4
million compared with $59.0 million for the same period of 1998. In addition,
network related personnel costs such as employee salaries and benefits are also
included in cost of sales. For the three months ended September 30, 1999 and
1998, these costs increased approximately $0.7 million, or 23%, to approximately
$3.7 million from $3.0 million, respectively. For the nine months ended
September 30, 1999 and 1998, these costs decreased approximately $0.3 million to
approximately $8.3 million from $8.6 million, respectively.
NETWORK TECHNOLOGIES SERVICES
Cost of sales for Network Technologies services increased $6.9 million, to
approximately $10.6 million for the quarter ended September 30, 1999, compared
with $3.7 million for the same period of 1998. For the nine months ended
September 30, 1999, cost of sales increased $25.3 million to $30.5 million from
$5.2 million for the same period of 1998. Included in Network Technologies cost
of sales are direct materials and labor associated with the construction of
networks and costs associated with contracted services. Increases in the costs
are attributable to the increased growth in this expanded line of business. The
Company expects this growth to continue into the future as the Network
Technologies segment continues to expand.
GROSS MARGIN
For the quarter ended September 30, 1999, total gross margin increased 230
basis points to 38.1 percent from 35.8 percent for the quarter ended September
30, 1998, as discussed below. Gross margin increased 440 basis points to 37.4
percent for the nine months ended September 30, 1999, from 33.0 percent for the
same period of 1998, as discussed below.
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TELECOMMUNICATIONS SERVICES
Telecommunications services gross margin increased 640 basis points to 31.4
percent for the quarter ended September 30, 1999 from 25.0 percent for the same
period of 1998. For the nine months ended September 30, 1999, telecommunications
services gross margin increased 850 basis points to 32.6 percent from 24.1
percent for the nine months ended September 30, 1998. These increases were
primarily due to increases in sales volume, which resulted in increases in
reciprocal compensation as described above. Furthermore, the Company continues
to achieve network cost savings through negotiations with vendors.
NETWORK TECHNOLOGIES SERVICES
Network Technologies services gross margin decreased 1,590 basis points to
52.0 percent for the three months ended September 30, 1999 from 67.9 percent for
the three months ended September 30, 1998. For the nine months ended September
30, 1999, Network Technologies services gross margin decreased 2,570 basis
points to 48.0 percent from 73.7 percent for the nine months ended September 30,
1998. The decrease was due to the broader mix of projects that Network
Technologies services has performed as the operations continue to grow. The
Company expects 1999 margins to be more consistent with future performance.
OPERATING EXPENSES
SELLING, GENERAL AND ADMINISTRATIVE
For the quarter ended September 30, 1999, selling, general and
administrative ("SG&A") expenses increased $16.8 million, or 59%, to $45.5
million from $28.7 million for the same period of 1998, as discussed below. SG&A
expenses increased $49.4 million, or 70%, to $119.5 million for the nine months
ended September 30, 1999 from $70.1 million for the same period of 1998, as
discussed below.
Included in SG&A expenses are personnel costs such as employee salaries,
benefits and commissions. Such costs increased $9.2 million, to $16.7 million
for the quarter ended September 30, 1999 from $7.5 million for the quarter ended
September 30, 1998. For the nine months ended September 30, 1999, these costs
increased approximately $23.7 million to $46.2 million compared with $22.5
million for the same period of 1998. Also, included in SG&A expenses are
operating costs such as rent, advertising, general administrative and office
expenses. These expenses increased $7.6 million, to $28.8 million for the
quarter ended September 30, 1999 from $21.2 million for the quarter ended
September 30, 1998. For the nine months ended September 30, 1999, these costs
increased approximately $25.8 million to $73.4 million compared with $47.6
million for the same period of 1998.
Increases in SG&A are the result of increases in the Company's personnel
that are necessary to support and grow the Company's operations. Costs directly
related to the increase in personnel include salaries, benefits, bonuses and
commissions. Another significant portion of the SG&A increase is due to
backoffice expenses such as professional services costs which have been
necessary to maintain and improve existing processes. In addition, increases in
costs for facilities and related expenses have been incurred due to an increased
number of office locations and facilities. Also, in connection with the
Company's growth in revenue, bad debt allowances have increased. Costs
associated with Year 2000 remediation efforts have also contributed to the
increases. The Company continues to monitor on an ongoing basis its SG&A costs
to evaluate any costs that can be eliminated.
NON-CASH STOCK COMPENSATION
Non-cash stock compensation expense increased $0.8 million, or 53%, to $2.4
million for the quarter ended September 30, 1999, from $1.6 million for the
quarter ended September 30, 1998. Non-cash stock compensation expenses increased
$2.6 million, or 52%, to $7.6 million for the nine months ended September 30,
1999 from $5.0 million for the same period of 1998.
Included in non-cash compensation are accruals for the issuance of common
stock in connection with performance bonuses and costs of grants of employee
stock options. Costs associated with the accrual for performance bonuses were
approximately $2.0 million and $1.0 million for the quarters ended September 30,
1999 and 1998, respectively, and $6.1 million and $3.3
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million for the nine months ended September 30, 1999 and 1998, respectively. The
costs for the compensation associated with stock option plans was approximately
$0.4 million for the quarter ended September 30, 1999, and $0.6 million for the
same period of 1998. For the nine months ended September 30, 1999, stock option
plan costs were approximately $1.5 million compared with $1.7 million for the
nine months of 1998.
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DEPRECIATION AND AMORTIZATION
Depreciation and amortization expenses increased $13.8 million, or 120%, to
$25.4 million for the quarter ended September 30, 1999, from $11.6 million for
the quarter ended September 30, 1998. Depreciation and amortization expenses
increased $40.1 million, or 139%, to $69.0 million for the nine months ended
September 30, 1999 from $28.9 million for the same period of 1998. These
increases were due to an increase in gross property, plant and equipment to
$811.6 million at September 30, 1999, compared with capital assets of $467.5
million at September 30, 1998.
INTEREST AND OTHER INCOME
Interest and other income decreased $5.1 million, or 74%, to $1.8 million
for the quarter ended September 30, 1999, from $6.9 million for the quarter
ended September 30, 1998. Interest and other income decreased $7.6 million, or
45%, to $9.3 million for the nine months ended September 30, 1999 from $16.9
million for the same period of 1998. Included in interest and other income for
the three months ended September 30, 1999 is a loss of approximately $0.1
million and for the nine months ended September 30, 1999, a gain of
approximately $0.4 million associated with the sale of certain resale customer
lines and the related accounts receivable. The sale of the customer base was
part of the Company's strategy to eliminate its switched resale business. The
decrease in interest and other income reflects a decrease in the unrestricted
cash and cash equivalents balance of $388.9 million from $481.8 million at
September 30, 1998 to $92.9 million at September 30, 1999. These funds have been
invested in commercial paper, U.S. Government Securities and money market
instruments.
INTEREST AND OTHER EXPENSE
Interest and other expense increased $4.1 million, or 21%, to $24.3 million
for the quarter ended September 30, 1999, from $20.2 million for the quarter
ended September 30, 1998. Interest and other expense increased $18.3 million, or
35%, to $70.4 million for the nine months ended September 30, 1999 from $52.1
million for the same period of 1998. The increase was primarily due to the
accrual of interest related to the 10 5/8% Senior Discount Notes due 2008 (the
"2008 Notes") which were issued in July 1998 and the interest incurred in
connection with the Credit Facilities. Furthermore, the accrual of interest
related to the 13% Senior Discount Notes due 2005 (the "2005 Notes"), the 12
3/4% Senior Discount Notes due 2006 (the "2006 Notes") and the interest expense
associated with the Company's capital leases also contributed to the increase in
interest expense.
EBITDA
Earnings before interest, taxes, depreciation and amortization ("EBITDA")
decreased by $7.4 million, or 60%, to a loss of $19.8 million for the quarter
ended September 30, 1999, from a loss of $12.4 million for the same period of
1998. EBITDA decreased $14.2 million, or 41% to $48.5 million for the nine
months ended September 30, 1999 from $34.3 million for the same period of 1998.
The decrease was due to the increases in cost of sales and SG&A expenses which
offset the increases in revenues as discussed above. Also, the Company's EBITDA
during the third quarter of 1999 was adversely affected by increased revenue
reserves for customer churn, related in part to the Company's previously
announced elimination of its local switched resale business.
EBITDA consists of net income (loss) before net interest, income taxes,
depreciation and amortization, non-cash stock compensation and, for the quarter
and year-to-date periods ended September 30, 1999, includes a gain of
approximately $0.4 million associated with the sale of certain resale customer
lines and the related accounts receivable. EBITDA is a measure commonly used in
the telecommunications industry and is presented to assist in understanding the
Company's operating results. However, it is not intended to represent cash flow
or results of operations in accordance with generally accepted accounting
principles.
NET LOSS & NET LOSS APPLICABLE TO COMMON STOCKHOLDERS
As a result of the previously discussed increases in revenues, cost of
sales, operating expenses, depreciation and amortization, and interest income
and expense, net loss increased $31.2 million, or 81%, to $70.0 million for the
quarter ended September 30, 1999, from a loss of $38.8 million for the quarter
ended September 30, 1998. Net loss increased $83.3 million, or 81% to $186.6
million for the nine months ended September 30, 1999 from $103.3 million for the
same period of 1998. Furthermore, net loss applicable to common stockholders
increased $32.5 million, or 68%, to $80.3 million for the quarter ended
September 30, 1999, from a loss of $47.8 million for the same period of 1998.
For the nine months ended September 30, 1999, net loss applicable to common
stockholders increased $87.2 million, or 67%, to $216.6 million from $129.4
million for
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the same period of 1998. These increases to net loss applicable to common
stockholders are attributable to the changes mentioned above, as well as an
increase in preferred stock dividends and accretion related to the 14 3/4%
Preferred Stock and the 12 3/4% Preferred Stock.
LIQUIDITY AND CAPITAL RESOURCES
The Company's further development and enhancement of new services, the
continued development, construction, expansion, operation and potential
acquisition of networks will require substantial capital expenditures. The
funding of these expenditures is dependent upon the Company's ability to raise
substantial financing. From the Company's inception through September 30, 1999,
the Company has raised net proceeds of approximately $1.2 billion from debt and
equity financings. The Company's cash, cash equivalents and restricted cash
decreased $281.8 million for the nine months ended September 30, 1999, due to
capital expended for the expansion of the Company's infrastructure and services
and to fund negative cash flow, including principal and interest payments. The
Company expects to incur additional capital expenditures for the expansion of
its infrastructure and services and to fund negative cash flow in the future. At
September 30, 1999, the Company had approximately $92.9 million of cash, cash
equivalents and restricted cash available for such purposes. Also, the Company
has an additional $54 million available, contingent upon the Company obtaining a
waiver related to the Company's default under the Credit Facilities as discussed
below. In addition, the Company would have an additional $36 million available
under the Credit Facilities if it is able to complete an additional junior
capital raise of at least $100 million. The Company continues to consider
potential acquisitions or other arrangements that may fit the Company's
strategic plan. Any such acquisitions or arrangements that the Company might
consider are likely to require additional equity or debt financing, which the
Company will seek to obtain as required and which may also require that the
Company obtain the consent of its debt holders.
On August 12, 1999, the Company closed the Credit Facilities which consists
of a $35 million revolver, a $55 million multiple draw term loan, each with a
6.5 year maturity, and a $110 million term loan with a 7 year maturity. Of the
Credit Facilities, a total of $164 million was immediately available to the
Company. The remaining $36 million will become available if the Company is able
to complete an additional junior capital raise of at least $100 million. Also,
the Credit Facilities contain an Incremental Facility of up to an additional
$100 million, although no lender is obligated to participate in the Incremental
Facility. As of September 30, 1999, the Company had $110 million outstanding
under the Credit Facilities. In conjunction with the Credit Facilities, the
Company retired a $35 million credit facility with Newcourt Commercial Finance
Corporation on August 12, 1999.
The Credit Facilities are secured by the capital stock of all of the
restricted subsidiaries of the Company and the assets of the Company and its
restricted subsidiaries, including promissory notes representing intercompany
indebtedness. In addition, the Credit Facilities contain certain covenants,
which impose restrictions on the Company and its restricted subsidiaries. These
include, without limitation, restrictions on the declaration or payment of
dividends with respect to the capital stock of the Company, the conduct of
certain activities, certain investments, the creation of additional liens or
indebtedness, the disposition of assets, transactions with affiliates and
fundamental changes.
In addition, the Credit Facilities contain financial covenants with which
the Company must comply. The Company is not in compliance with the financial
covenants as of September 30, 1999 and, as a result a default exists under the
Credit Facilities. Absent a waiver from the lender group, this default negates
any additional borrowings and allows the lenders to accelerate the maturity of
the borrowings under the Credit Facilities. Any such acceleration could also
result in the acceleration of other obligations of the Company, including the
2005 Notes, 2006 Notes, 2007 Notes and 2008 Notes. In the event of an
acceleration of its outstanding debt obligations, the Company would not have
sufficient liquidity to meet its obligations.
The Company is presently seeking, and believes that it is likely to obtain a
waiver under the Credit Facilities of its non-compliance with the financial
covenants in order to remedy its default thereunder. However, there can be no
assurance that the Company will be successful in obtaining the waiver that it is
seeking or that it will be successful in avoiding acceleration of its debt
obligations. The Company has classified the amounts outstanding under the Credit
Facilities as a current liability in the accompanying unaudited Condensed
Consolidated Balance Sheet.
A significant portion of the Company's cash resources are committed to
existing obligations. However, management anticipates that the Company's current
cash resources, assuming the Company receives a waiver to the Credit
Facilities, are sufficient to fund the Company's continuing negative cash flow
and required capital expenditures into 2000. To meet its additional remaining
capital requirements and to successfully implement its strategy, the Company
will be required to sell additional equity securities, increase its existing
Credit Facilities, acquire additional credit
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facilities or sell additional debt securities. The Company is currently
exploring additional sources of financing including increases to its existing
capital lease programs. Accordingly, there can be no assurance that the Company
will be able to obtain the additional financing necessary to satisfy its cash
requirements or to implement its strategy successfully, in which event the
Company will be unable to fund its ongoing operations, which would have a
material adverse effect on its business, results of operations and financial
condition.
On November 14, 1995, the Company completed a private offering of the 2005
Notes and warrants from which the Company received approximately $96.1 million
in net proceeds. The 2005 Notes will accrue to an aggregate principal amount of
$190.0 million by November 1, 2000, after which cash interest will accrue and
be payable on a semi-annual basis.
On March 21, 1996, the Company completed a private offering of the 2006 Notes
from which the Company received net proceeds of approximately $61.8 million. The
2006 Notes will accrue to an aggregate principal amount of $120.0 million by
April 1, 2001, after which cash interest will accrue and be payable on a
semi-annual basis.
On July 10, 1997, the Company completed the issuance and sale of 75,000 units
(the "Unit Offering"), consisting of 14 3/4% Redeemable Preferred Stock due 2008
and warrants (the "Unit Warrants") from which the Company received net proceeds
of approximately $67.7 million. Dividends on the 14 3/4% Preferred Stock accrue
from the date of issuance, are cumulative and are payable quarterly in arrears,
at a rate per annum of 14 3/4% of the liquidation preference per share.
Dividends on the 14 3/4% Preferred Stock will be paid, at the Company's option,
either in cash or by the issuance of additional shares of 14 3/4% Preferred
Stock; provided, however, that after June 30, 2002, to the extent and for so
long as the Company is not precluded from paying cash dividends on the 14 3/4%
Preferred Stock by the terms of any then outstanding indebtedness or any other
agreement or instrument to which the Company is then subject, the Company shall
pay dividends on the 14 3/4% Preferred Stock in cash.
On July 23, 1997, the Company completed the sale of the 2007 Notes. Of the
total net proceeds of $204.3 million, the Company placed $70.0 million
representing funds sufficient to pay the first 5 interest payments on the 2007
Notes into an escrow account for the benefit of the holders thereof. Payments of
interest on the 2007 Notes are payable semi-annually, and began in January 1998.
In October 1997, the Company issued the 12 3/4% Preferred Stock from which the
Company received net proceeds of approximately $146.0 million. Dividends on the
12 3/4% Preferred Stock accrue from the date of issuance, are cumulative and are
payable quarterly in arrears, at a rate per annum of 12 3/4% of the liquidation
preference per share. Dividends on the 12 3/4% Preferred Stock will be paid, at
the Company's option, either in cash or by the issuance of additional shares of
12 3/4% Preferred Stock; provided, however, that after October 15, 2002, to the
extent and for so long as the Company is not precluded from paying cash
dividends on the 12 3/4% Preferred Stock by the terms of any agreement or
instrument governing any of its then outstanding indebtedness, the Company shall
pay dividends on the 12 3/4% Preferred Stock in cash.
On March 31, 1998, the Company restructured certain leases resulting in a
change from operating to capital lease treatment. This transaction resulted in
capital lease obligations totaling $39.2 million, included in liabilities as of
September 30, 1999.
On July 24, 1998, the Company completed a private placement of 10 5/8% Senior
Discount Notes due 2008 yielding net proceeds to the Company of approximately
$225 million. The 2008 Notes will accrue to an aggregate principal amount of
$375 million by July 2008. The 2008 Notes will require payment of cash interest
semi-annually in arrears beginning January 1, 2004.
YEAR 2000 PROGRAM
The Year 2000 problem is the result of computer programs being written using
two digits rather than four to define the applicable year. Any of the Company's
computer programs that have date-sensitive software may recognize a date using
"00" as the year 1900 rather than the Year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including among
other things, a temporary inability to process transactions, send invoices or
engage in similar normal business activities.
Overview of Company Year 2000 Preparations
The Company began preparing for Year 2000 in 1997 by establishing a Year
2000 Readiness Program. The Company subsequently established a company-wide Year
2000 Program Management Office ("PMO"). The PMO leads the Company's Year 2000
Readiness efforts, with support from a consulting firm, which is Year 2000
certified by the Information Technology
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Association of America. The Company has completed a comprehensive systems
assessment of its Year 2000 readiness. The assessment reviewed both the hardware
and software for the Company's telecommunications network, information systems,
network construction and Internet services. The Company is near completion of
its remediation and contingency planning efforts.
Year 2000 Readiness and Testing
The Company has evaluated its network structure, telecommunications software
and hardware, and systems against the testing results of the Telco Year 2000
Forum and the Alliance for Telecommunications Industry Solutions. According to
this evaluation, the Company believes that its telecommunications network is
Year 2000 compliant. The Company has evaluated and, if necessary, tested,
mission critical systems used in network construction and determined that these
systems are Year 2000 compliant. The Company has evaluated and, if necessary,
tested, mission critical systems used for delivery of Internet services and
believes that these systems are also Year 2000 compliant. For the purposes of
this disclosure, the Company defines the term "mission critical" to mean: any
component or system involved in the delivery of telecommunication, internet or
network construction services.
To the best of its current knowledge, substantially all of the Company's
non-mission critical systems and functional areas are believed to be Year 2000
compliant. In the case of its critical back office business applications, the
determination of Year 2000 readiness was made on the basis of real time date
testing. In the case of non-critical back office business information systems,
the Company relied on vendor representations. Items were deemed to be critical
if they directly impacted the Company's ability to deliver its services.
The Company has also established a process to assess the Year 2000 readiness
of certain of its vendors and business partners to determine whether, as a
corporate entity, these businesses will survive the turn of the century, and, as
a result, support the Company. The Company identified 127 of these entities and
has completed its assessment of their Year 2000 readiness. The Company has
placed these entities into one of four categories based on its evaluation. For
entities in the lowest category of Year 2000 readiness, alternate vendors and
business partners may be chosen.
Costs of the Company's Year 2000 Program
As of September 30, 1999, the Company has incurred approximately $3.0
million cumulatively for the initial Year 2000 Assessment Report, inventory
database and validation, remediation and contingency planning efforts. The total
cost of the Year 2000 project is currently expected to be no more than the $5 to
$6 million originally estimated and will be expensed as incurred and funded with
existing cash resources. The costs of the project and the date on which the
Company believes it will complete the Year 2000 modifications are based on
management's best estimates, which were derived from numerous assumptions of
future events, including the continued availability of certain resources, third
party modification plans and other factors. However, there can be no guarantee
that these estimates will be achieved, and actual results could differ
materially from those anticipated.
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Risks to the Company
There are many risks to the Company associated with the Year 2000 issue.
These risks include outages in the Company's telecommunications network,
critical technology and information systems. While the Company has taken steps
to mitigate the possibility of outages, an outage could have a material adverse
affect on the Company. An outage might prevent the Company from delivering data,
connecting calls, completing construction projects, or hosting Internet
services. A further risk is the failure of other companies to remediate their
own Year 2000 problems. If third party vendors do not remediate prior to the
Year 2000, the most reasonably likely worst case scenario is that the Company
may have significant problems associated with service fulfillment, billing,
trouble reporting and service providing. Third party failures could have a
material adverse impact on the Company. The Company is not presently aware of
any third party Year 2000 issue that is likely to result in this kind of
disruption.
The Company's Contingency Plans
The Company's Year 2000 plan includes risk assessment and contingency
planning processes that are designed to provide alternative courses of action
for the Company to follow if any of the remediation efforts are not successful,
or if a supplier's processes or products are not Year 2000 ready. The Company
has completed the initial phase of its contingency planning process. Final
contingency plans are being developed by the Company's business process owners,
in consultation with the Company's Year 2000 consultants, to address both minor
and catastrophic events occurring as a result of the Year 2000. Throughout the
remainder of the year, the Company will test, assess, and if necessary modify
these contingency plans.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
The Company's long-term debt includes both fixed and variable rate
instruments. The fair market value of the Company's fixed rate long-term debt is
sensitive to changes in interest rates. The Company runs the risk that market
rates will decline and the required payments will exceed those based on current
market rate. Under its current policies, the Company does not use interest rate
derivative instruments to manage its exposure to interest rate changes.
19
<PAGE> 20
PART II
OTHER INFORMATION
ITEM 1 - LEGAL PROCEEDINGS
The Company and its subsidiaries are currently parties to routine litigation
incidental to their business, none of which, individually or in the aggregate,
are expected to have a material adverse effect on the Company. The Company and
its subsidiaries are parties to various court appeals and regulatory arbitration
proceedings relating to certain of the Company's interconnection agreements and
continue to participate in regulatory proceedings before the FCC and state
regulatory agencies
ITEM 6 -- EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------------ -----------------------------------------------------------------------
<S> <C>
10.1 $200 million Senior Secured Credit Facility Credit Agreement
10.2 Lease agreement between e.spire Communications, Inc. and CMD Properties
10.3 Lease agreement between e.spire Communications, Inc. and Colgate Drive
Associates, L.P.
11 Statement re computation of per share earnings
27 Financial Data Schedule
99 Supplemental Financial Information
</TABLE>
(b) Reports on Form 8-K
On July 8, 1999, e.spire filed an 8-K announcing that the Company had authorized
Goldman Sachs Credit Partners L.P., as Syndication Agent, to seek to arrange
$200 million of 6.5-7.0 year Senior Secured Credit Facilities consisting of $125
million secured pro rata facilities unfunded at closing and a $75 million
secured term loan facility funded at closing; with The Bank of New York serving
as Administrative Agent; First Union National Bank serving as Documentation
Agent; and Newcourt Capital, e.spire's principal then existing secured lender,
serving as Collateral Agent.
On October 28, 1999, e.spire issued a press release announcing its financial
results for the quarter ended September 30, 1999 and a press release announcing
the resignation of its Chief Financial Officer.
On November 1, 1999, e.spire issued a press release announcing that William R.
Huff and Frederick Galland have been named to its Board of Directors. e.spire
also announced that Olivier L. Trouveroy and Benjamin P. Giess had resigned from
e.spire's Board of Directors, effective October 29, 1999.
20
<PAGE> 21
SIGNATURES
In accordance with the requirements of the Securities Exchange Act of 1934,
the registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
<TABLE>
<S> <C>
e.spire Communications, Inc.
----------------------------
(Registrant)
/s/ Anthony J. Pompliano
------------------------
Anthony J. Pompliano,
November 15, 1999 Chairman and Chief Executive Officer
/s/ John Polchin
----------------
John Polchin
November 15, 1999 Interim Chief Financial Officer
</TABLE>
21
<PAGE> 22
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE NO.
- --- ----------- --------
<S> <C> <C>
10.1 $200 million Senior Secured Credit Facility Credit Agreement E-1
10.2 Lease agreement between e.spire Communications, Inc. and
CMD Properties, Inc. E-2
10.3 Lease agreement between e.spire Communications, Inc. and
Colgate Drive Associates, L.P. E-3
11 Statement re: computation of per-share earnings (loss) E-4
27 Financial Data Schedules E-5
99 Supplemental Financial Information E-6
</TABLE>
22
<PAGE> 1
EXHIBIT 10.1
EXECUTION
================================================================================
CREDIT AGREEMENT
DATED AS OF AUGUST 11, 1999
AMONG
e.spire COMMUNICATIONS, INC.
e.spire FINANCE CORPORATION
AS BORROWERS,
THE LENDERS LISTED HEREIN,
AS LENDERS,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
AS SOLE LEAD ARRANGER AND SYNDICATION AGENT,
THE BANK OF NEW YORK,
AS ADMINISTRATIVE AGENT,
FIRST UNION NATIONAL BANK,
AS DOCUMENTATION AGENT
AND
NEWCOURT COMMERCIAL FINANCE CORPORATION,
AS COLLATERAL AGENT
================================================================================
<PAGE> 2
e.spire COMMUNICATIONS, INC.
e.spire FINANCE CORPORATION
CREDIT AGREEMENT
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 1. DEFINITIONS...........................................................................2
1.1 Certain Defined Terms.................................................................2
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement.........................................................32
1.3 Other Definitional Provisions and Rules of Construction..............................32
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS...........................................33
2.1 Commitments; Making of Loans; the Register; Notes....................................33
2.2 Interest on the Loans................................................................41
2.3 Fees.................................................................................45
2.4 Prepayments and Reductions in Commitments; General Provisions Regarding
Payments; Application of Proceeds of Collateral and Payments Under Subsidiary
Guaranty.............................................................................46
2.5 Use of Proceeds......................................................................54
2.6 Special Provisions Governing Eurodollar Rate Loans...................................55
2.7 Increased Costs; Taxes; Capital Adequacy.............................................57
2.8 Obligation of Lenders to Mitigate....................................................61
SECTION 3. CONDITIONS TO LOANS..................................................................62
3.1 Conditions to Series C Term Loans....................................................62
3.2 Conditions to All Loans..............................................................67
SECTION 4. BORROWERS' REPRESENTATIONS AND WARRANTIES............................................67
4.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries........68
4.2 Authorization of Borrowing, etc......................................................69
4.3 Financial Condition..................................................................70
4.4 No Material Adverse Change; No Restricted Junior Payments............................70
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C>
4.5 Title to Properties; Liens; Real Property............................................71
4.6 Litigation; Adverse Facts............................................................71
4.7 Payment of Taxes.....................................................................71
4.8 Performance of Agreements; Materially Adverse Agreements; Material Contracts.........72
4.9 Governmental Regulation..............................................................72
4.10 Securities Activities................................................................72
4.11 Employee Benefit Plans...............................................................72
4.12 Certain Fees.........................................................................73
4.13 Environmental Protection.............................................................73
4.14 Employee Matters.....................................................................74
4.15 Solvency.............................................................................74
4.16 Matters Relating to Collateral.......................................................74
4.17 Disclosure...........................................................................75
SECTION 5. BORROWERS' AFFIRMATIVE COVENANTS.....................................................75
5.1 Financial Statements and Other Reports...............................................76
5.2 Corporate Existence, etc.............................................................80
5.3 Payment of Taxes and Claims; Tax Consolidation.......................................81
5.4 Maintenance of Properties; Insurance; Application of Net
Insurance/Condemnation Proceeds......................................................81
5.5 Inspection Rights; Audits of Inventory and Accounts Receivable; Lender Meeting.......83
5.6 Compliance with Laws, etc............................................................83
5.7 Environmental Review and Investigation, Disclosure, Etc.; Company's Actions
Regarding Hazardous Materials Activities, Environmental Claims and Violations
of Environmental Laws................................................................83
5.8 Execution of Subsidiary Guaranty and Personal Property Collateral Documents by
Certain Subsidiaries and Future Subsidiaries.........................................85
5.9 Prepayment of Master Note............................................................87
5.10 Interest Rate Protection.............................................................87
5.11 Year 2000 Compliance.................................................................87
SECTION 6. BORROWERS' NEGATIVE COVENANTS........................................................88
6.1 Indebtedness.........................................................................88
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C>
6.2 Liens and Related Matters............................................................89
6.3 Investments; Joint Ventures..........................................................90
6.4 Contingent Obligations...............................................................91
6.5 Restricted Junior Payments...........................................................91
6.6 Financial Covenants..................................................................92
6.7 Excess Cash Balances.................................................................97
6.8 Restriction on Fundamental Changes; Asset Sales......................................97
6.9 Acquisitions.........................................................................98
6.10 Sales and Lease-Backs................................................................98
6.11 Sale or Discount of Receivables......................................................99
6.12 Transactions with Shareholders and Affiliates........................................99
6.13 Disposal of Subsidiary Stock.........................................................99
6.14 Conduct of Business..................................................................99
6.15 Amendments or Waivers of Certain Related Agreements.................................100
6.16 Fiscal Year.........................................................................100
6.17 Master Note and Intercompany Purchase Money Note....................................100
SECTION 7. EVENTS OF DEFAULT...................................................................101
7.1 Failure to Make Payments When Due...................................................101
7.2 Default in Other Agreements.........................................................101
7.3 Breach of Certain Covenants.........................................................101
7.4 Breach of Warranty..................................................................101
7.5 Other Defaults Under Loan Documents.................................................101
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc................................102
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc..................................102
7.8 Judgments and Attachments...........................................................102
7.9 Dissolution.........................................................................103
7.10 Employee Benefit Plans..............................................................103
7.11 Change in Control...................................................................103
7.12 Invalidity of Subsidiary Guaranty; Failure of Security; Repudiation of
Obligations.........................................................................103
7.13 Licenses............................................................................104
SECTION 8. AGENTS..............................................................................105
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<S> <C> <C>
8.1 Appointment.........................................................................105
8.2 Powers and Duties; General Immunity.................................................106
8.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness....................................................................108
8.4 Right to Indemnity..................................................................108
8.5 Successor Administrative Agent and Swing Line Lender................................108
8.6 Collateral Documents and Guaranties.................................................109
SECTION 9. MISCELLANEOUS.......................................................................110
9.1 Assignments and Participations in Loans.............................................110
9.2 Expenses............................................................................113
9.3 Indemnity...........................................................................113
9.4 Set-Off; Security Interest in Deposit Accounts......................................114
9.5 Ratable Sharing.....................................................................115
9.6 Amendments and Waivers..............................................................115
9.7 Notices.............................................................................116
9.8 Survival of Representations, Warranties and Agreements..............................116
9.9 Failure or Indulgence Not Waiver; Remedies Cumulative...............................117
9.10 Marshalling; Payments Set Aside.....................................................117
9.11 Severability........................................................................117
9.12 Obligations Several; Independent Nature of Lenders' Rights..........................117
9.13 Headings............................................................................118
9.14 Applicable Law......................................................................118
9.15 Successors and Assigns..............................................................118
9.16 Consent to Jurisdiction and Service of Process......................................118
9.17 Waiver of Jury Trial................................................................119
9.18 Confidentiality.....................................................................119
9.19 Maximum Amount......................................................................120
9.20 Entire Agreement....................................................................120
9.21 Counterparts; Effectiveness.........................................................120
SIGNATURE PAGES ....................................................................................S-1
</TABLE>
-iv-
<PAGE> 6
EXHIBITS
I FORM OF SERIES A NOTICE OF BORROWING
II FORM OF SERIES B/SERIES C/INCREMENTAL LOANS NOTICE OF BORROWING
III FORM OF NOTICE OF CONVERSION/CONTINUATION
IV FORM OF SERIES A REVOLVING NOTE
V FORM OF SERIES B TERM NOTE
VI FORM OF SERIES C TERM NOTE
VII FORM OF SWING LINE NOTE
VIII FORM OF COMPLIANCE CERTIFICATE
IX FORM OF OPINIONS OF COUNSEL TO LOAN PARTIES
X FORM OF MARYLAND, FLORIDA, AND VIRGINIA LOCAL COUNSEL OPINIONS
XI FORM OF LOCAL COUNSEL UCC OPINIONS
XII FORM OF OPINION OF O'MELVENY & MYERS LLP
XIII FORM OF REGULATORY COUNSEL OPINIONS
XIV FORM OF ASSIGNMENT AGREEMENT
XV [INTENTIONALLY OMITTED]
XVI FORM OF CERTIFICATE RE NON-BANK STATUS
XVII FORM OF COMPANY GUARANTY
XVIII FORM OF MASTER NOTE
XIX FORM OF INTERCOMPANY PURCHASE MONEY NOTE
XX FORM OF INTERCOMPANY NOTE
XXI FORM OF FINANCE SUB INTERCOMPANY PLEDGE AND SECURITY AGREEMENT
XXII FORM OF SUBSIDIARY GUARANTY
XXIII FORM OF FINANCE SUB AND OTHER SUBSIDIARY PLEDGE AND SECURITY
AGREEMENT
XXIV FORM OF INTERCOMPANY PLEDGE AND SECURITY AGREEMENT
XXV FORM OF COLLATERAL ACCOUNT AGREEMENT
XXVI FORM OF INCREMENTAL FACILITY SUPPLEMENT
XXVII FORM OF COMPANY PLEDGE AND SECURITY AGREEMENT
-v-
<PAGE> 7
SCHEDULES
1.2 UNRESTRICTED SUBSIDIARIES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
3.1 INTERCONNECTION AGREEMENTS
4.1 SUBSIDIARIES OF COMPANY
4.1E LICENSES
4.2C GOVERNMENTAL CONSENTS
4.6 LITIGATION
4.14 EMPLOYEE MATTERS
6.1 CERTAIN EXISTING INDEBTEDNESS
6.2 CERTAIN EXISTING LIENS
6.3 CERTAIN EXISTING INVESTMENTS
6.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
-vi-
<PAGE> 8
An extra section break has been inserted above this paragraph. Do not
delete this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
i
<PAGE> 9
e.spire COMMUNICATIONS, INC.
e.spire FINANCE CORPORATION
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of August 11, 1999, and entered into
by and among e.spire COMMUNICATIONS, INC., a Delaware corporation ("COMPANY"),
e.spire FINANCE CORPORATION, a Delaware corporation ("FINANCE SUB"; Company and
Finance Sub are each individually referred to herein as a "BORROWER" and
collectively as "BORROWERS"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES HEREOF (each individually referred to herein as a "LENDER" and
collectively as "LENDERS"), GOLDMAN SACHS CREDIT PARTNERS L.P., as sole lead
arranger (in such capacity, "ARRANGER") and syndication agent (in such capacity,
"SYNDICATION AGENT"), THE BANK OF NEW YORK ("BNY"), as administrative agent for
Lenders (in such capacity, "ADMINISTRATIVE AGENT"), FIRST UNION NATIONAL BANK,
as documentation agent (in such capacity, "DOCUMENTATION AGENT"), and NEWCOURT
COMMERCIAL FINANCE CORPORATION, as collateral agent (in such capacity,
"COLLATERAL AGENT").
R E C I T A L S
WHEREAS, Company has formed Finance Sub as a Wholly Owned Subsidiary
(terms used in these Recitals without definition have the meanings assigned to
such terms in subsection 1.1) to obtain the working capital credit facility
described below and to facilitate providing purchase money financing of
Telecommunications Assets for its Subsidiaries;
WHEREAS, Company desires that Lenders extend (i) to Finance Sub, a
revolving credit facility in the principal amount of $35 million, the Series A
Revolving Loans, to be used to finance capital expenditures and for working
capital and other general corporate purposes, including permitted acquisitions,
(ii) to Company, a multi-draw term credit facility in the principal amount of
$55 million, the Series B Term Loans, and (iii) to Company, a term credit
facility in the principal amount of $110 million, the Series C Term Loans, in
the case of (ii) and (iii) to be used solely to provide purchase money financing
for the acquisition, construction or improvement of Telecommunications Assets of
Company and its Restricted Subsidiaries;
WHEREAS, Company shall loan to Finance Sub all of the proceeds of its
borrowings under the Series B Term Loans and Series C Term Loans, which loans to
Finance Sub shall be evidenced by the Master Note and secured by a pledge of the
Intercompany Purchase Money Notes and security therefor and all other assets of
Finance Sub, pursuant to the Finance Sub Intercompany Pledge and Security
Agreement;
WHEREAS, Finance Sub intends from time to time to loan to Restricted
Subsidiaries the proceeds of its borrowings under the Master Note, the proceeds
of such loans to be used by such Restricted Subsidiaries to finance the cost of
the acquisition, construction or improvement of Telecommunications Assets; such
loans to be evidenced by the Intercompany Purchase Money Notes and to be secured
by all of the assets of such Restricted Subsidiaries pursuant to the
Intercompany Pledge and Security Agreement;
1
<PAGE> 10
WHEREAS, Company has agreed to guarantee the Obligations of Finance Sub
hereunder and under the other Loan Documents and desires to secure all of its
Obligations hereunder and under the other Loan Documents by granting to
Administrative Agent, on behalf of Lenders, a First Priority pledge of the
Master Note, together with all security therefor and a First Priority security
interest in all other assets of Company and a First Priority pledge of all of
the Capital Stock of Finance Sub, pursuant to the Company Pledge and Security
Agreement;
WHEREAS, each of the Restricted Subsidiaries of Finance Sub have agreed
to guarantee the Obligations of Finance Sub hereunder and under the other Loan
Documents with respect to extensions of credit under the Series A Loan
Commitments; and
WHEREAS, each of Finance Sub and the Subsidiary Guarantors desire to
secure all of its respective Obligations under the Loan Documents with respect
to extensions of credit under the Series A Loan Commitments by granting to
Administrative Agent, on behalf of Lenders, a First Priority pledge of all of
the Capital Stock of each of its Restricted Subsidiaries and all of its other
assets, pursuant to the Finance Sub and Other Subsidiary Pledge and Security
Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrowers, Lenders, Arranger,
Syndication Agent, Documentation Agent, and Administrative Agent agree as
follows:
SECTION 1.
DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following
meanings:
"ACSI NETWORK SALES" means Asset Sales by ACSI Network
Technologies, Inc. in the ordinary course of its business of designing
and constructing networks for sale to other Persons.
"ADDITIONAL NOTES" means unsecured senior or subordinated notes
issued by Company after the Closing Date which (i) have terms that are
no more restrictive to Company and its Subsidiaries (including without
limitation in terms of covenants, events of default, grace periods and
other rights granted to the holders thereof) than the Existing Senior
Notes, (ii) have no required payments of principal until after the
Series C Maturity Date and (iii) are not guaranteed by any Subsidiary of
Company.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate
Determination Date with respect to an Interest Period for a Eurodollar
Rate Loan, the rate per annum obtained by dividing (i) (a) the per annum
rate for deposits in Dollars for a period corresponding to the duration
of the relevant Interest Period which appears on Telerate Page 3750 at
approximately 11:00 a.m. (London time) on such Interest Rate
Determination Date or (b) if such rate does not appear on Telerate Page
3750 on such Interest Rate Determination Date, the per annum rate
(rounded upward to the nearest 1/16 of 1%) at which deposits in Dollars
are offered by Administrative Agent to first class banks in the London
interbank market, in the approximate amount of Administrative Agent's
relevant Eurodollar Loan
2
<PAGE> 11
(which principal amount shall be deemed to be $1,000,000 in the event
Administrative Agent is not making, converting to or continuing a
Eurodollar Rate Loan) and having a maturity approximately equal to such
Interest Period, at approximately 11:00 a.m. (London time) on such
Interest Rate Determination Date by (ii) a percentage equal to 100%
minus the stated maximum rate of all reserve requirements (including any
marginal, emergency, supplemental, special or other reserves) applicable
on such Interest Rate Determination Date to any member bank of the
Federal Reserve System in respect of "Eurocurrency liabilities" as
defined in Regulation D (or any successor category of liabilities under
Regulation D). The reference to Telerate Page 3750 in this definition
shall be construed to be a reference to the relevant page or any other
page that may replace such page on the Telerate service or any other
service that may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rate for deposit in Dollars.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any
successor Administrative Agent appointed pursuant to subsection 8.5A.
"AFFECTED LENDER" has the meaning assigned to that term in
subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common
control with, that Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting
securities or by contract or otherwise.
"AGENT" means, individually, each of Arranger, Syndication
Agent, Documentation Agent, Collateral Agent and Administrative Agent
and "AGENTS" means Arranger, Syndication Agent, Documentation Agent,
Collateral Agent and Administrative Agent, collectively.
"AGGREGATE PERCENTAGE OF COMMITMENTS FUNDED" means the
percentage obtained by dividing (i) the average of the daily principal
amount of Series A Revolving Loans and Series B Term Loans outstanding
during the Pricing Period by (ii) the average of the daily principal
amount of Series A Revolving Loan Commitments and Series B Term Loan
Commitments outstanding during the Pricing Period. For purposes of this
definition, the principal amount of Series B Term Loan Commitments
outstanding shall be the original amounts of the Series B Term Loan
Commitments as reduced by any scheduled, voluntary or mandatory
reductions pursuant to subsection 2.4.
"AGREEMENT" means this Credit Agreement dated as of August 11,
1999, as it may be amended, supplemented or otherwise modified from time
to time.
3
<PAGE> 12
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, with respect to
any Pricing Period, the per annum rate set forth below corresponding to
the Aggregate Percentage of Loan Commitments Funded in effect for such
Pricing Period:
<TABLE>
<CAPTION>
===============================================================================
AGGREGATE PERCENTAGE APPLICABLE
OF COMMITMENTS COMMITMENT FEE
FUNDED PERCENTAGE
- -------------------------------------------------------------------------------
<S> <C>
Less than or equal to 33% 1.75%
- -------------------------------------------------------------------------------
Greater than 33% but less than or 1.25%
equal to 67%
- -------------------------------------------------------------------------------
More than 67% 0.75%
===============================================================================
</TABLE>
Notwithstanding anything to the contrary in the foregoing, (i)
until the first Pricing Determination Date and at any time when an Event
of Default has occurred and is continuing, the Applicable Commitment Fee
Percentage shall be the percentage per annum corresponding to an
Aggregate Percentage of Commitments Funded of less than or equal to 33%
and (ii) the Applicable Commitment Fee Percentage with respect to any
Incremental Facility Commitment shall be the percentage per annum set
forth in the Incremental Facility Supplement.
"APPLICABLE MARGIN" means (i) with respect to Series C Term
Loans, 4.50% for Eurodollar Rate Loans and 3.50% for Base Rate Loans and
(ii) with respect to Series A Revolving Loans and Series B Term Loans
(a) 4.00% for Eurodollar Rate Loans and 3.00% for Base Rate Loans until
Company's Consolidated Adjusted EBITDA has been a positive number for
two consecutive Fiscal Quarters as set forth in the Compliance
Certificates delivered by Company to Administrative Agent pursuant to
clause (iii) of subsection 5.1 (the date of satisfaction of such
condition being the "RATE ADJUSTMENT DATE"), and (b) from and after the
Rate Adjustment Date, with respect to any Pricing Period, the rate per
annum rate set forth below corresponding to the Leverage Ratio in effect
for such Pricing Period:
<TABLE>
<CAPTION>
==================================================================================
APPLICABLE MARGIN
- ----------------------------------------------------------------------------------
LEVERAGE EURODOLLAR
RATIO RATE LOANS BASE RATE LOANS
- ----------------------------------------------------------------------------------
<S> <C> <C>
Greater than 10:1 3.75% 2.75%
- ----------------------------------------------------------------------------------
Less than 10:1 but greater 3.50% 2.50%
than or equal to 8:1
- ----------------------------------------------------------------------------------
Less than 8:1 but greater 3.25% 2.25%
than or equal to 6:1
- ----------------------------------------------------------------------------------
Less than 6:1 3.00% 2.00%
==================================================================================
</TABLE>
4
<PAGE> 13
Notwithstanding anything to the contrary in the foregoing, (i) at any
time when an Event of Default has occurred and is continuing, the
Applicable Margin for Series A Revolving Loans and Series B Term Loans
shall be 4.00% for Eurodollar Rate Loans and 3.00% for Base Rate Loans,
and (ii) the Applicable Margin with respect to any Incremental Loan
shall be the per annum rate set forth in the Incremental Facility
Supplement.
"ARRANGER" has the meaning assigned to that term in the
introduction to this Agreement.
"ASSET SALE" means the sale, conveyance, transfer, assignment or
other disposition by Company or any of its Restricted Subsidiaries to
any Person other than Company or any of its Restricted Subsidiaries of
(i) any of the Capital Stock of any Restricted Subsidiary, (ii)
substantially all of the assets of any division or line of business of
Company or any Restricted Subsidiary, or (iii) any other assets (whether
tangible or intangible) of Company or any Restricted Subsidiary other
than assets sold in the ordinary course of business to the extent the
aggregate value of such assets sold in any single transaction or related
series of transactions does not exceed $150,000. Notwithstanding
anything herein to the contrary, dispositions of assets pursuant to Use
Agreements shall constitute Asset Sales.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of Exhibit XIV annexed hereto.
"AUDITOR'S LETTER" means a letter in form and substance
satisfactory to Arranger and Administrative Agent acknowledged and
agreed to by Company and KPMG Peat Marwick LLP and delivered to Arranger
and Administrative Agent pursuant to subsection 3.1M.
"BNY" has the meaning assigned to that term in the introduction
to this Agreement.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor
statute.
"BASE RATE" means, at any time, the higher of (i) the Prime Rate
or (ii) the rate which is 1/2 of 1% in excess of the Federal Funds
Effective Rate.
"BASE RATE LOANS" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in subsection 2.2A.
"BUSINESS DAY" means (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York or is a
day on which banking institutions located in such state are authorized
or required by law or other governmental action to close, and (ii) with
respect to all notices, determinations, fundings and payments in
connection with the Adjusted Eurodollar Rate or any Eurodollar Rate
Loans, any day that is a Business Day described in clause (i) above and
that is also a day for trading by and between banks in Dollar deposits
in the interbank eurodollar market.
5
<PAGE> 14
"CAPITAL LEASE OBLIGATION" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other
indebtedness arrangement conveying the right to use) real or personal
property of such Person which is required to be classified and accounted
for as a capital lease or a liability on the face of a balance sheet of
such Person prepared in accordance with GAAP and the stated maturity
thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a penalty.
"CAPITAL STOCK" means, (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case
of a partnership, partnership interests, whether general or limited,
(iv) in the case of a limited liability company, membership interests
and (v) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distribution
of assets of, the issuing Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH BALANCES" means, with respect to any Person, as of any
date of determination, the aggregate Dollar amount of Cash and Cash
Equivalents held by such Person, excluding any Cash or Cash Equivalents
held in an escrow or other restricted account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
securities issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America
is pledged in support thereof); (ii) time deposits and certificates of
deposit of any commercial bank organized in the United States having
capital and surplus in excess of $500,000,000 with a maturity date not
more than one year from the date of acquisition; (iii) repurchase
obligations with a term of not more than seven days for underlying
security of the types described in clause (i) above entered into with
any bank meeting the qualification specified in clause (ii) above; (iv)
direct obligations issued by any state of the United States of America
or any political subdivision of any such state or any public
instrumentality thereof maturing, or subject to tender at the option of
the holder thereof within 90 calendar days after the date of acquisition
thereof and, at the time of acquisition, having a rating of A or better
from Standard & Poor's Ratings Group ("STANDARD & POOR'S") or A-2 or
better from Moody's Investors Service, Inc. ("MOODY'S"); (v) commercial
paper issued by the parent corporation of any commercial bank organized
in the United States having capital and surplus in excess of
$500,000,000 and commercial paper issued by others having one of the two
highest ratings obtainable from either Standard & Poor's or Moody's and
in each case maturing within 90 days after the date of acquisition; (vi)
overnight bank deposits and bankers acceptances at any commercial bank
organized in the United States having capital and surplus in excess of
$500,000,000; (vii) deposits available for withdrawal on demand with a
commercial bank organized in the United States having capital and
surplus in excess of $500,000,000; and
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<PAGE> 15
(viii) investments in money market funds substantially all of whose
assets comprise securities of the types described in clauses (i) through
(vi).
"CERTIFICATES OF DESIGNATION" means, collectively, (i) the
Certificate of Designation of the Powers, Preferences and Relative,
Participating, Optional and Other Special Rights of 14.75% Redeemable
Preferred Stock due 2008 and Qualifications, Limitations and
Restrictions Thereof and (ii) the Certificate of Designation of the
Powers, Preferences and Relative, Participating, Optional and Other
Special Rights of Preferred Stock and Qualifications, Limitations and
Restrictions Thereof of 12 3/4% Series A Junior Redeemable Preferred
Stock Due 2009 and 12 3/4% Series B Junior Redeemable Preferred Stock
Due 2009, in each case of Company.
"CERTIFICATE RE NON-BANK STATUS" means a certificate
substantially in the form of Exhibit XVI annexed hereto delivered by a
Lender to Administrative Agent pursuant to subsection 2.7B(iii).
"CLOSING DATE" means the date on or before August 11, 1999.
"COLLATERAL" means, collectively, all of the real, personal and
mixed property (including Capital Stock) of Loan Parties in which Liens
are purported to be granted pursuant to the Collateral Documents as
security for the Obligations.
"COLLATERAL ACCOUNT AGREEMENT" means the Collateral Account
Agreement executed and delivered by Company and Administrative Agent on
the Closing Date, substantially in the form of XXV annexed hereto, as
such Collateral Account Agreement may hereafter be amended, supplemented
or otherwise modified from time to time.
"COLLATERAL DOCUMENTS" collectively, the Company Pledge and
Security Agreement, the Finance Sub Intercompany Pledge and Security
Agreement, the Finance Sub and Other Subsidiary Pledge and Security
Agreement, the Intercompany Pledge and Security Agreement, the
Collateral Account Agreement and all other instruments or documents
delivered by any Loan Party pursuant to this Agreement or any of the
other Loan Documents, in order to grant to Administrative Agent, on
behalf of Lenders, or to another Loan Party, a lien on any real,
personal or mixed property of such Loan Party as security for the
Obligations or any obligations of such Loan Party under the Master Note
or Intercompany Purchase Money Note.
"COMMITMENTS" means the commitments of Lenders to make Loans
(including Incremental Loans, if any) as set forth in subsection 2.1A.
"COMMUNICATIONS ACT" means the Communications Act of 1934, as
amended (including, without limitation, the Telecommunications Act of
1996), or any successor statute or statutes thereto, and all Regulations
thereunder, in each case as from time to time in effect.
"COMMUNICATIONS REGULATORY AUTHORITY" means the FCC, any State
PUC and any future federal, state or local communications regulatory
commission, agency, department, board or authority.
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<PAGE> 16
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPANY GUARANTY" means the Company Guaranty executed and
delivered by Company on the Closing Date, substantially in the form of
Exhibit XVII annexed hereto, as such Company Guaranty may thereafter be
amended, supplemented or otherwise modified from time to time.
"COMPANY PLEDGE AND SECURITY AGREEMENT" means the Company Pledge
and Security Agreement executed and delivered by Company on the Closing
Date, substantially in the form of Exhibit XXVII annexed hereto, as such
Company Pledge and Security Agreement may thereafter be amended,
supplemented or otherwise modified from time to time.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit VIII annexed hereto delivered to Administrative
Agent and Lenders by Company pursuant to subsection 5.1(iii).
"CONFIDENTIAL INFORMATION MEMORANDUM" means that certain
Confidential Information Memorandum dated July, 1999, relating to the
Loans.
"CONSOLIDATED ADJUSTED EBITDA" means, with respect to any Person
for any period, the sum for such Person for such period of Consolidated
Net Income plus, to the extent reflected in the income statement of such
Person for such period from which Consolidated Net Income is determined,
without duplication, (i) Consolidated Interest Expense, (ii) provisions
for taxes based on income, (iii) total depreciation expense, (iv) total
amortization expense, (v) any non-cash expense related to the issuance
to employees or non-employees of such Person of Capital Stock or options
to purchase Capital Stock of such Person and (vi) any charge related to
any premium or penalty paid in connection with redeeming or retiring any
Indebtedness prior to its stated maturity and minus, (a) interest income
and (b) to the extent reflected in the income statement of such Person
for such period, any non-cash credits that have the effect of increasing
Consolidated Net Income of such Person for such period, all of the
foregoing as determined on a consolidated basis for Company and its
Restricted Subsidiaries in conformity with GAAP.
"CONSOLIDATED ADJUSTED TOTAL DEBT" means, as at any date of
determination, the aggregate stated balance sheet amount of all
Indebtedness of Company and its Restricted Subsidiaries minus the
aggregate Cash Balances of Company and its Restricted Subsidiaries
(excluding any Cash Balances held in an escrow account or other
restricted account other than the Collateral Account), determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED ANNUALIZED EBITDA" means, as of the last day of
any Fiscal Quarter, Consolidated Adjusted EBITDA for such Fiscal Quarter
multiplied by four.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
sum of the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a
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<PAGE> 17
liability and including Capital Lease Obligations) by Company and its
Restricted Subsidiaries during that period that, in conformity with
GAAP, are included in "additions to property, plant or equipment" or
comparable items reflected in the consolidated statement of cash flows
of Company and its Restricted Subsidiaries.
"CONSOLIDATED CASH CAPITAL EXPENDITURES" means, for any period,
Consolidated Capital Expenditures for such period excluding, however,
any such expenditures not made in Cash.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, (i)
Consolidated Interest Expense for such period excluding, however, any
interest expense not payable in Cash (including amortization of discount
and amortization of debt issuance costs) plus (ii) cash dividends paid
by Company on the Preferred Stock.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of
determination, the total assets of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on
a consolidated basis which may properly be classified as current
liabilities in conformity with GAAP.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount
(if positive) equal to (i) the sum, without duplication, of the amounts
for such period of (a) Consolidated Adjusted EBITDA and (b) the
Consolidated Working Capital Adjustment minus (ii) the sum, without
duplication, of the amounts for such period of (a) voluntary and
scheduled repayments of Consolidated Total Debt (excluding repayments of
Loans, except to the extent the Commitments, are permanently reduced in
connection with such repayments), (b) Consolidated Cash Capital
Expenditures (net of any proceeds of any related financings with respect
to such expenditures), (c) Cash paid to make Telecommunications
Acquisitions to the extent permitted by subsection 6.9, (d) Consolidated
Cash Interest Expense, and (e) the provision for current taxes based on
income of Company and its Restricted Subsidiaries and payable in Cash
with respect to such period.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum
(without duplication) of the amounts for such period of (i) Consolidated
Cash Interest Expense, (ii) scheduled principal payments made on
Consolidated Total Debt, (iii) Consolidated Cash Capital Expenditures
and (iv) provisions for current taxes based on income of Company and its
Restricted Subsidiaries and payable in Cash with respect to such period,
all of the foregoing as determined on a consolidated basis for Company
and its Restricted Subsidiaries in conformity with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense (including Capital Lease Obligations and capitalized
interest) of Company and its Restricted Subsidiaries on a consolidated
basis with respect to all outstanding
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<PAGE> 18
Indebtedness of Company and its Restricted Subsidiaries, including all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net costs under
Interest Rate Agreements, but excluding, however, any amounts referred
to in subsection 2.3 payable to Agents and Lenders on or before the
Closing Date.
"CONSOLIDATED NET INCOME" means, for any period, the net income
(or loss) of Company and its Restricted Subsidiaries on a consolidated
basis for such period taken as a single accounting period determined in
conformity with GAAP; provided that there shall be excluded (i) the
income (or loss) of any Person (other than a Restricted Subsidiary of
Company) in which any other Person (other than Company or any of its
Restricted Subsidiaries) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to Company
or any of its Restricted Subsidiaries by such Person during such period,
(ii) the income (or loss) of any Person accrued prior to the date it
becomes a Restricted Subsidiary of Company or is merged into or
consolidated with Company or any of its Restricted Subsidiaries or that
Person's assets are acquired by Company or any of its Restricted
Subsidiaries, (iii) the income of any Restricted Subsidiary of Company
to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that income is not at the
time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary, (iv)
any after-tax gains or losses attributable to Asset Sales or returned
surplus assets of any Pension Plan, and (v) (to the extent not included
in clauses (i) through (iv) above) any net extraordinary gains or net
non-cash extraordinary losses.
"CONSOLIDATED QUARTERLY ADJUSTED REVENUES" means, as at any date
of determination, the aggregate stated income statement amount of
revenue of Company and its Restricted Subsidiaries for the applicable
Fiscal Quarter minus reciprocal compensation revenue for the applicable
Fiscal Quarter, determined on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED SENIOR DEBT" means, as at any date of
determination, the aggregate stated balance sheet amount of all
Indebtedness of Company and its Restricted Subsidiaries permitted to be
outstanding under subsections 6.1(i) and (vi), determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED TOTAL DEBT" means, as at any date of
determination, the aggregate stated balance sheet amount of all
Indebtedness of Company and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of
determination, the excess of Consolidated Current Assets over
Consolidated Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period
on a consolidated basis, the amount (which may be a negative number) by
which Consolidated Working Capital as of the beginning of such period
exceeds (or is less than) Consolidated Working Capital as of the end of
such period.
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<PAGE> 19
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person
(i) with respect to any Indebtedness, lease, dividend or other
obligation of another if the primary purpose or intent thereof by the
Person incurring the Contingent Obligation is to provide assurance to
the obligee of such obligation of another that such obligation of
another will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof,
(ii) with respect to any letter of credit issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement
of drawings, or (iii) under Hedge Agreements. Contingent Obligations
shall include (a) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by
such Person of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and (c)
any liability of such Person for the obligation of another through any
agreement (contingent or otherwise) (1) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether
in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (2) to maintain the solvency or any balance sheet item,
level of income or financial condition of another if, in the case of any
agreement described under subclauses (1) or (2) of this sentence, the
primary purpose or intent thereof is as described in the preceding
sentence. The amount of any Contingent Obligation shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation is
made and (b) the maximum amount for which such Person may be liable
pursuant to the terms of the instrument creating such Contingent
Obligation, unless such primary obligation and maximum amount are not
stated or determinable, in which case the amount of such Contingent
Obligation shall be the maximum reasonably anticipated liability in
respect to such Contingent Obligation.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material
indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any
of its properties is bound or to which it or any of its properties is
subject.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic
cap or other similar agreement or arrangement to which Company or any of
its Subsidiaries is a party.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union or
like organization, other than an account evidenced by a negotiable
certificate of deposit.
"DOCUMENTATION AGENT" has the meaning assigned that term in the
introduction to this Agreement.
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<PAGE> 20
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"ELIGIBLE ASSIGNEE" means (i) (a) a commercial bank organized
under the laws of the United States or any state thereof; (b) a savings
and loan association or savings bank organized under the laws of the
United States or any state thereof; (c) a commercial bank organized
under the laws of any other country or a political subdivision thereof;
provided that (1) such bank is acting through a branch or agency located
in the United States or (2) such bank is organized under the laws of a
country that is a member of the Organization for Economic Cooperation
and Development or a political subdivision of such country; and (d) any
other entity which is an "accredited investor" (as defined in Regulation
D under the Securities Act) which extends credit or buys loans as one of
its businesses including insurance companies, mutual funds and lease
financing companies; and (ii) any Lender, any Affiliate of any Lender
and, with respect to any Lender that is an investment fund that invests
in commercial loans, any other investment fund that invests in
commercial loans and that is managed or advised by the same investment
advisor as such Lender or by an Affiliate of such investment advisor;
provided that no Affiliate of Company shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is or was maintained or
contributed to by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, written notice,
written notice of violation, claim, action, suit, proceeding, written
demand, written abatement order or other written order or directive
(conditional or otherwise), by any governmental authority or any other
Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection with any
Hazardous Materials or any actual or alleged Hazardous Materials
Activity, or (iii) in connection with any actual or alleged damage,
injury, threat or harm to health, safety, natural resources or the
environment.
"ENVIRONMENTAL LAWS" means any and all current or future
statutes, ordinances, orders, rules, regulations, judgments,
Governmental Authorizations, or any other requirements of governmental
authorities relating to (i) environmental matters, including those
relating to any Hazardous Materials Activity, (ii) the generation, use,
storage, transportation or disposal of Hazardous Materials, or (iii)
occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare as relating to
the environment, in any manner applicable to Company or any of its
Subsidiaries or any Facility, including the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9601 et
seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section
1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Federal Water Pollution Control Act (33
U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401
et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et
seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.
Section 136 et seq.), the Occupational Safety and Health Act (29 U.S.C.
Section 651 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et
seq.) and the Emergency
12
<PAGE> 21
Planning and Community Right-to-Know Act (42 U.S.C. Section 11001 et
seq.), each as amended or supplemented, any analogous present or future
state or local statutes or laws, and any regulations promulgated
pursuant to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any
corporation which is a member of a controlled group of corporations
within the meaning of Section 414(b) of the Internal Revenue Code of
which that Person is a member; (ii) any trade or business (whether or
not incorporated) which is a member of a group of trades or businesses
under common control within the meaning of Section 414(c) of the
Internal Revenue Code of which that Person is a member; and (iii) any
member of an affiliated service group within the meaning of Section
414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member.
"ERISA EVENT" means (i) a "reportable event" within the meaning
of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision for
30-day notice to the PBGC has been waived by regulation); (ii) the
failure to meet the minimum funding standard of Section 412 of the
Internal Revenue Code with respect to any Pension Plan (whether or not
waived in accordance with Section 412(d) of the Internal Revenue Code)
or the failure to make by its due date a required installment under
Section 412(m) of the Internal Revenue Code with respect to any Pension
Plan or the failure to make any required contribution to a Multiemployer
Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to
terminate such plan in a distress termination described in Section
4041(c) of ERISA; (iv) the withdrawal by Company, any of its
Subsidiaries or any of their respective ERISA Affiliates from any
Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in liability pursuant to Section 4063
or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition
which might constitute grounds under ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan; (vi) the
imposition of liability on Company, any of its Subsidiaries or any of
their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA, by reason of the application of Section 4212(c) of ERISA or on
account of any liabilities arising by virtue of any former ERISA
Affiliate of Company or any of its Subsidiaries under ERISA or the Code
with respect to the period such entity was an ERISA Affiliate; (vii) the
withdrawal of Company, any of its Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within
the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan or the receipt by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates of notice from any Multiemployer Plan that
it is in reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA, or that it intends to terminate or has terminated under
Section 4041A or 4042 of ERISA; (viii) the assertion of a material claim
(other than routine claims for benefits) against any Employee Benefit
Plan other than a Multiemployer Plan or the assets thereof, or against
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<PAGE> 22
Company, any of its Subsidiaries or any of their respective ERISA
Affiliates in connection with any Employee Benefit Plan; (ix) receipt
from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any
trust forming part of any Pension Plan to qualify for exemption from
taxation under Section 501(a) of the Internal Revenue Code; or (x) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension
Plan.
"EURODOLLAR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"EVENT OF DEFAULT" means each of the events set forth in Section
7.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXISTING CREDIT AGREEMENT" means that certain Loan and Security
Agreement dated as of December 30, 1997 between Company and Newcourt
Capital Corp. (as successor-in-interest to AT&T Commercial Finance
Corporation, as amended prior to the Closing Date.
"EXISTING SENIOR NOTE INDENTURES" means the indentures pursuant
to which the Existing Senior Notes were issued, as such indentures may
be amended from time to time to the extent permitted under subsection
6.15.
"EXISTING SENIOR NOTES" means Company's (i) $190,000,000 in
initial aggregate principal amount of 13% Senior Discount Notes due
2005, (ii) $120,000,000 in initial aggregate principal amount of 12 3/4%
Senior Discount Notes due 2006, (iii) $220,000,000 in initial aggregate
principal amount of 13 3/4% Senior Notes due 2007, and (iv) $375,000,000
in initial aggregate principal amount of 10.625% Senior Discount Notes
due 2008.
"FACILITIES" means any and all real property (including all
buildings, fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by Company or
any of its Subsidiaries or any of their respective predecessors or
Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
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<PAGE> 23
"FINANCE SUB" has the meaning assigned to that term in the
introduction to this Agreement.
"FINANCE SUB AND OTHER SUBSIDIARY PLEDGE AND SECURITY AGREEMENT"
means, the Finance Sub and Other Subsidiary Pledge and Security
Agreement executed and delivered by Finance Sub and its Subsidiaries on
the Closing Date, substantially in the form of Exhibit XXIII annexed
hereto, as such agreement may be amended, supplemented or otherwise
modified from time to time.
"FINANCE SUB INTERCOMPANY PLEDGE AND SECURITY AGREEMENT" means
the Finance Sub Intercompany Pledge and Security Agreement executed and
delivered by Finance Sub and Company on the Closing Date, substantially
in the form of Exhibit XXI annexed hereto, as such agreement may
hereafter be amended, supplemented or otherwise modified from time to
time to the extent permitted under subsection 6.15.
"FINANCIAL PLAN" has the meaning assigned to that term in
subsection 5.1(xii).
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i)
such Lien has priority over any other Lien on such Collateral (other
than Liens permitted pursuant to subsections 6.2A(iii) and (iv)) and
(ii) such Lien is the only Lien (other than Permitted Encumbrances and
Liens permitted pursuant to subsection 6.2) to which such Collateral is
subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries ending on December 31 of each calendar year. For purposes
of this Agreement, any particular Fiscal Year shall be designated by
reference to the calendar year in which such Fiscal Year ends.
"FUNDING AND PAYMENT OFFICE" means (i) the office of
Administrative Agent and Swing Line Lender located at One Wall Street,
16th Floor, New York, New York 10268 or (ii) such other office of
Administrative Agent and Swing Line Lender as may from time to time
hereafter be designated as such in a written notice delivered by
Administrative Agent and Swing Line Lender to Company and each Lender.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting
principles set forth in 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 in such other statements by such other
entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances
as of the date of determination.
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<PAGE> 24
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or
from any federal, state or local governmental authority, agency or
court.
"GSCP" means Goldman Sachs Credit Partners L.P., a Bermuda
limited partnership.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous waste", "acutely hazardous waste", "radioactive
waste", "biohazardous waste", "pollutant", "toxic pollutant",
"contaminant", "restricted hazardous waste", "infectious waste", "toxic
substances", or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or
the indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity,
reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of
similar import under any applicable Environmental Laws); (ii) any oil,
petroleum, petroleum fraction or petroleum derived substance; (iii) any
drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or
geothermal resources; (iv) any flammable substances or explosives; (v)
any radioactive materials; (vi) any asbestos-containing materials; (vii)
urea formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing polychlorinated
biphenyls; (ix) pesticides; and (x) any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
governmental authority pursuant to Environmental Laws.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, or
threatened activity, event or occurrence involving any Hazardous
Materials, including the use, manufacture, possession, storage, holding,
presence, existence, location, Release, threatened Release, discharge,
placement, generation, transportation, processing, construction,
treatment, abatement, removal, remediation, disposal, disposition or
handling of any Hazardous Materials, and any corrective action or
response action with respect to any of the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or
currency values, respectively.
"INCREMENTAL FACILITY COMMITMENT" means the commitment of a
Lender, if any, to make an Incremental Loan to Company pursuant to
subsection 2.1A(vi), and "INCREMENTAL FACILITY COMMITMENTS" means such
commitments of all Lenders and Eligible Assignees in the aggregate.
"INCREMENTAL FACILITY COMMITMENT DATE" means the effective date
of the Incremental Facility Supplement, if any.
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"INCREMENTAL FACILITY EXPOSURE" means, with respect to any
Lender having an Incremental Facility Commitment as of any date of
determination prior to the termination of the Incremental Facility
Commitments, that Lender's Incremental Facility Commitment and
thereafter, the aggregate outstanding principal amount of the
Incremental Loans of that Lender.
"INCREMENTAL FACILITY MATURITY DATE" means the date the
Incremental Facility Commitments terminate and all Incremental Loans are
due and payable in full which shall correspond to the Maturity Date of
the Series B Term Loans or Series C Term Loans, as elected by Company
and as set forth in the Incremental Facility Supplement.
"INCREMENTAL FACILITY SUPPLEMENT" means a supplement to this
Agreement executed and delivered by Company, Administrative Agent,
Syndication Agent, Requisite Lenders, and the Lenders and New
Incremental Facility Lenders providing Incremental Facility Commitments
substantially in the form of Exhibit XXVI annexed hereto, which shall
set forth (a) the aggregate amount of the Incremental Facility
Commitments and the amount of the Incremental Facility Commitment of
each Lender and (b) the Incremental Facility Maturity Date, the
Applicable Margin, the Applicable Commitment Fee Percentage, the
amortization schedule, any prepayment fees or other fees and any
restrictions on availability or requirements for mandatory borrowings
within specified time periods. Except as set forth in clauses (a) and
(b) of this definition, no other terms of the Incremental Facility shall
be set forth in the Incremental Facility Supplement.
"INCREMENTAL LOAN" means a Loan made by a Lender to Company
pursuant to subsection 2.1A(vi) and "INCREMENTAL LOANS" means any such
Loan or Loans, collectively.
"INCREMENTAL NOTES" means (i) the promissory notes, if any, of
Company issued pursuant to subsection 2.1E and (ii) any promissory notes
issued by Company pursuant to the last sentence of subsection 9.1B(i) in
connection with assignments of the Incremental Commitments and
Incremental Loans of any Lenders, in each case substantially in the form
of Schedule C annexed to the Incremental Facility Supplement, as they
may be amended, restated, replaced, supplemented or otherwise modified
from time to time.
"INDEBTEDNESS", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) all Capital Lease Obligations,
(iii) notes payable and drafts accepted representing extensions of
credit whether or not representing obligations for borrowed money, (iv)
any obligation owed for all or any part of the deferred purchase price
of property or services (excluding any such obligations incurred under
ERISA), which purchase price is (a) due more than six months from the
date of incurrence of the obligation in respect thereof or (b) evidenced
by a note or similar written instrument, and (v) all indebtedness
secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have
been assumed by that Person or is nonrecourse to the credit of that
Person. Obligations under Interest Rate Agreements and Currency
Agreements constitute (1) in the case of Hedge
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Agreements, Contingent Obligations, and (2) in all other cases,
Investments, and in neither case constitute Indebtedness.
"INDEMNITEE" has the meaning assigned to that term in subsection
9.3.
"INTELLECTUAL PROPERTY" means all patents, trademarks,
tradenames, trade secrets, service marks, copyrights, technology,
know-how, formulae and processes used in or necessary for the conduct of
the business of Company and its Subsidiaries as currently conducted that
are material to the condition (financial or otherwise), business or
operations of Company and its Subsidiaries, taken as a whole.
"INTERCOMPANY LOAN DOCUMENTS" means the Master Note, the
Intercompany Purchase Money Note, the Intercompany Note, the
Intercompany Pledge and Security Agreement and the Finance Sub
Intercompany Pledge and Security Agreement.
"INTERCOMPANY NOTE" means the promissory note executed by
Company and its Restricted Subsidiaries evidencing intercompany
Indebtedness (other than Indebtedness required to be evidenced by the
Master Note or Intercompany Purchase Money Notes), substantially in the
form of Exhibit XX annexed hereto, as such document may be amended,
supplemented or otherwise modified from time to time to the extent
permitted by subsection 6.15.
"INTERCOMPANY PLEDGE AND SECURITY AGREEMENT" means the
Intercompany Pledge and Security Agreement executed and delivered by
each Restricted Subsidiary on the Closing Date, and to be executed and
delivered by each new Restricted Subsidiary from time to time thereafter
in accordance with Subsection 5.8, substantially in the form of Exhibit
XXIV annexed hereto, as such document may be amended, supplemented or
otherwise modified from time to time to the extent permitted by
subsection 6.15.
"INTERCOMPANY PURCHASE MONEY NOTE" means the promissory note
executed by the Restricted Subsidiaries in favor of Finance Sub
evidencing any and all loans made by Finance Sub to each Restricted
Subsidiary from proceeds of loans made by Company to Finance Sub under
the Master Note, substantially in the form of Exhibit XIX annexed
hereto, as such document may be amended, supplemented or otherwise
modified from time to time to the extent permitted by subsection 6.15.
"INTERCONNECTION AGREEMENT" means an agreement entered into with
an incumbent provider of local exchange telephone service in accord with
Sections 251 and 252 of the Communications Act.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate
Loan, each March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Closing Date, and
(ii) with respect to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan; provided that in the case of
each Interest Period of longer than three months "Interest Payment Date"
shall also include the date that is three months after the commencement
of such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
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"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement or arrangement to which Company or any of its
Restricted Subsidiaries is a party.
"INTEREST RATE DETERMINATION DATE" means, with respect to any
Interest Period, the second Business Day prior to the first day of such
Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter, and any
successor statute.
"INVENTORY" means, with respect to any Person as of any date of
determination, all goods, merchandise and other personal property which
are then held by such Person for sale or lease, including raw materials
and work in process.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by Company or any Restricted Subsidiary of, or of a
beneficial interest in, any Securities of any other Person (including
any Subsidiary of Company), (ii) any direct or indirect redemption,
retirement, purchase or other acquisition for value, by any Subsidiary
of Company from any Person other than Company or any of its
Subsidiaries, of any equity Securities of such Subsidiary, (iii) any
direct or indirect loan, advance or capital contribution by Company or
any of its Subsidiaries to any other Person, including all indebtedness
and accounts receivable from that other Person that are not current
assets or did not arise from sales to that other Person in the ordinary
course of business, or (iv) Interest Rate Agreements or Currency
Agreements not constituting Hedge Agreements. The amount of any
Investment shall be (a) the original cost of such Investment plus (b)
the cost of all additions thereto, without any adjustments for increases
or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment minus (c) the lesser of (1) the aggregate
amount of any repayments, redemptions, dividends or other distributions
thereon or proceeds from the sale thereof, in each case to the extent of
any Cash payments (including any Cash received by way of deferred
payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) actually received by
Company or any of its Restricted Subsidiaries in connection therewith,
and (2) the aggregate amount described in the immediately preceding
clauses (a) and (b).
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal
form; provided that in no event shall any corporate Subsidiary of any
Person be considered to be a Joint Venture to which such Person is a
party.
"LENDER" and "LENDERS" means the persons identified as "Lenders"
and listed on the signature pages of this Agreement or New Incremental
Facility Lenders which shall become Lenders pursuant to an Incremental
Facility Supplement upon the Incremental Facility Commitment Date,
together with their successors and permitted assigns pursuant to
subsection 9.1, and the term "Lenders" shall include Swing Line Lender
unless the context otherwise requires.
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"LEVERAGE RATIO" means, as of the last day of any Fiscal
Quarter, the ratio of (i) Consolidated Total Debt to (ii) Consolidated
Annualized EBITDA, in each case as set forth in the most recent
Compliance Certificate delivered by Company to Administrative Agent
pursuant to clause (iii) of subsection 5.1.
"LICENSES" means all licenses, authorizations, certifications,
waivers and permits required from any Communications Regulatory
Authority acting under the Communications Act or State Law.
"LIEN" means any lien (statutory or otherwise), mortgage,
pledge, hypothecation, assignment, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement
to give any security interest) and any option, trust or other priority
or preferential arrangement having the practical effect of any of the
foregoing.
"LOAN" or "LOANS" means one or more of the Series A Revolving
Loans, Series B Term Loans, Series C Term Loans or Incremental Loans, if
any, or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the
Incremental Facility Supplement, if any, the Company Guaranty, the
Subsidiary Guaranty, the Collateral Documents and the Intercompany Loan
Documents.
"LOAN PARTY" means each of Finance Sub, Company and any
Restricted Subsidiaries from time to time executing a Loan Document, and
"LOAN PARTIES" means all such Persons, collectively.
"MANAGEMENT SHARES" means shares of Capital Stock in Company
issued to management of Company from and after the Closing Date.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as
in effect from time to time.
"MASTER NOTE" means the Master Note executed by Finance Sub on
the Closing Date in favor of Company to evidence any and all loans made
by Company to Finance Sub from the proceeds of Series B Term Loans,
Series C Term Loans or Incremental Loans, if any, substantially in the
form of Exhibit XVIII annexed hereto, as such Master Note may thereafter
be amended, supplemented or otherwise modified from time to time to the
extent permitted by subsection 6.15.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets, condition (financial
or otherwise) or prospects of Company or any of its Restricted
Subsidiaries or (ii) the impairment of the ability of any Loan Party to
perform, or of Administrative Agent or Lenders to enforce, the
Obligations.
"MATERIAL CONTRACT" means any contract or other arrangement to
which Company or any of its Subsidiaries is a party (other than the Loan
Documents) for which
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breach, nonperformance, cancellation or failure to renew would
reasonably be expected to have a Material Adverse Effect.
"MATURITY DATE" means (i) February 11, 2006 with respect to the
Series A Revolving Loans and Series B Term Loans and (ii) August 11,
2006 with respect to the Series C Term Loans; provided that, in any
case, the Maturity Date shall be (a) November 1, 2004, if Company has
not refinanced the 13% Senior Notes due 2005 by November 1, 2004 and (b)
April 1, 2005, if Company has not refinanced the 12-3/4% Senior Notes
due 2006 by April 1, 2005.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale,
Cash payments (including any Cash received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but
only as and when so received) received from such Asset Sale, net of any
bona fide direct costs incurred in connection with such Asset Sale,
including (i) income taxes reasonably estimated to be actually payable
within two years of the date of such Asset Sale as a result of any gain
recognized in connection with such Asset Sale and (ii) payment of the
outstanding principal amount of, premium or penalty, if any, and
interest on any Indebtedness (other than the Loans) that is secured by a
Lien on the stock or assets in question and that is required to be
repaid under the terms thereof as a result of such Asset Sale.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments or
proceeds received by Company or any Restricted Subsidiary (i) under any
business interruption or casualty insurance policy in respect of a
covered loss thereunder or (ii) as a result of the taking of any assets
of Company or any Restricted Subsidiary by any Person pursuant to the
power of eminent domain, condemnation or otherwise, or pursuant to a
sale of any such assets to a purchaser with such power under threat of
such a taking, in each case net of any actual and reasonable documented
costs incurred by Company or any Restricted Subsidiary in connection
with the adjustment or settlement of any claims of Company or such
Restricted Subsidiary in respect thereof.
"NEW INCREMENTAL FACILITY LENDER" means a Person meeting the
requirements of the definition of Eligible Assignee and approved by
Administrative Agent and Syndication Agent (such approval not to be
unreasonably withheld) whom Company requests to provide an Incremental
Facility Commitment.
"NON-RECOURSE INDEBTEDNESS" means Indebtedness as to which (i)
neither Company nor any of its Restricted Subsidiaries (a) provides
credit support (including any undertaking, agreement or instrument that
would constitute Indebtedness), (b) is directly or indirectly liable (as
a guarantor or otherwise)) or (c) constitutes the lender and (ii) no
default with respect to such Indebtedness (including any rights which
the holders thereof may have to take enforcement action against the
relevant Subsidiary or its assets) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness of
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Company or its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity.
"NOTES" means one or more of the Series A Revolving Notes,
Series B Term Notes, Series C Term Notes or Incremental Notes, if any,
or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form
of Exhibit I or Exhibit II annexed hereto delivered by Company or
Finance Sub, as the case may be, to Administrative Agent pursuant to
subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially
in the form of Exhibit III annexed hereto delivered by Company or
Finance Sub, as the case may be, to Administrative Agent pursuant to
subsection 2.2D with respect to a proposed conversion or continuation of
the applicable basis for determining the interest rate with respect to
the Loans specified therein.
"OBLIGATIONS" means all obligations of every nature of each Loan
Party from time to time owed to Agents, Lenders or their respective
Affiliates or any of them under the Loan Documents, whether for
principal, interest (including interest that would become due but for
the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code, 11 U.S.C. Section 362(a)), fees, expenses,
indemnification or otherwise.
"OFFICERS' CERTIFICATE" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of
the board (if an officer) or its president or one of its vice presidents
and by its chief financial officer or its treasurer; provided that every
Officers' Certificate with respect to the compliance with a condition
precedent to the making of any Loans hereunder shall include (i) a
statement that the officer or officers making or giving such Officers'
Certificate have read such condition and any definitions or other
provisions contained in this Agreement relating thereto, (ii) a
statement that, in the opinion of the signers, they have made or have
caused to be made such examination or investigation as is necessary to
enable them to express an informed opinion as to whether or not such
condition has been complied with, and (iii) a statement as to whether,
in the opinion of the signers, such condition has been complied with.
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any
corporation, its certificate or articles of incorporation and its
bylaws, (ii) with respect to any limited partnership, its certificate of
limited partnership and its partnership agreement, (iii) with respect to
any general partnership, its partnership agreement, (iv) with respect to
any limited liability company, its articles or certificate of
organization and its operating agreement and (v) with respect to any
other entity, its equivalent organizational, governing documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal
Revenue Code or Section 302 of ERISA.
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"PERMITTED ENCUMBRANCES" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or by ERISA, any such Lien relating
to or imposed in connection with any Environmental Claim, and any such
Lien expressly prohibited by any applicable terms of any of the
Collateral Documents):
(i) Liens for taxes, assessments or governmental charges
or claims the payment of which is not, at the time, required by
subsection 5.3;
(ii) statutory Liens of landlords, statutory Liens of
banks and rights of set-off, statutory Liens of carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and
other Liens imposed by law, in each case incurred in the
ordinary course of business (a) for amounts not yet overdue or
(b) for amounts that are overdue and that (in the case of any
such amounts overdue for a period in excess of 10 days) are
being contested in good faith by appropriate proceedings, so
long as (1) such reserves or other appropriate provisions, if
any, as shall be required by GAAP shall have been made for any
such contested amounts, and (2) in the case of a Lien with
respect to any portion of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion
of the Collateral on account of such Lien;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, government contracts, trade
contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money), so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any portion of
the Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an
Event of Default under subsection 7.8;
(v) leases or subleases granted to third parties in
accordance with any applicable terms of the Collateral Documents
and not interfering in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries or
resulting in a material diminution in the value of any
Collateral as security for the Obligations and rights granted to
third parties under Use Agreements;
(vi) easements, rights-of-way, restrictions,
encroachments, and other minor defects or irregularities in
title, in each case which do not and will not interfere in any
material respect with the ordinary conduct of the business of
Company or any of its Subsidiaries or result in a material
diminution in the value of any Collateral as security for the
Obligations;
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(vii) any (a) interest or title of a lessor or sublessor
under a lease, (b) restriction or encumbrance that the interest
or title of such lessor or sublessor may be subject to, or (c)
subordination of the interest of the lessee or sublessee under
such lease to any restriction or encumbrance referred to in the
preceding clause (b), so long as the holder of such restriction
or encumbrance agrees to recognize the rights of such lessee or
sublessee under such lease;
(viii) Liens arising from filing UCC financing
statements relating solely to leases permitted by this
Agreement;
(ix) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties
in connection with the importation of goods;
(x) any zoning or similar law or right reserved to or
vested in any governmental office or agency to control or
regulate the use of any real property; and
(xi) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the
ordinary course of business of Company and its Subsidiaries.
"PERMITTED HOLDERS" means the Huff Alternative Income Fund,
L.P., ING Equity Partners, L.P.I., Apex Investment Fund I, L.P., Apex
Investment Fund II, L.P., The Productivity Fund II, L.P. and Anthony J.
Pompliano and the respective Affiliates (other than Company and its
Restricted Subsidiaries) of each of the foregoing.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies,
limited liability partnerships, joint stock companies, Joint Ventures,
associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities,
and governments (whether federal, state or local, domestic or foreign,
and including political subdivisions thereof) and agencies or other
administrative or regulatory bodies thereof.
"PLEDGED COLLATERAL" means, collectively, the "Pledged
Collateral" as defined in the Company Pledge and Security Agreement, the
Finance Sub and Other Subsidiary Pledge and Security Agreement, and the
Finance Sub Intercompany Pledge and Security Agreement.
"POTENTIAL EVENT OF DEFAULT" means a condition, act or event
that, with the giving of notice or lapse of time or both, would
constitute an Event of Default.
"PREFERRED STOCK" means, collectively, the 12 3/4% Junior
Redeemable Preferred Stock due 2009 issued by Company and the 14 3/4%
Redeemable Preferred Stock due 2008 issued by Company.
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"PRICING DETERMINATION DATE" means any date on which Company
delivers financial statements to Administrative Agent and Lenders
pursuant to clause (i) or (ii) of subsection 5.1 (accompanied by a
Compliance Certificate delivered by Company pursuant to clause (iii) of
subsection 5.1).
"PRICING PERIOD" means (i) initially, the period commencing on
the Closing Date and ending on the initial Pricing Determination Date
and (ii) thereafter, any period commencing on the day immediately
following a Pricing Determination Date and ending on the next succeeding
Pricing Determination Date.
"PRIME RATE" means the rate that BNY publicly announces from
time to time as its prime lending rate, as in effect from time to time
its Funding and Payment Office. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged
to any customer. BNY or any other Lender may make commercial loans or
other loans at rates of interest at, above or below the Prime Rate.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Series A Revolving Loan
Commitment or the Series A Revolving Loans of any Lender or any
participations in any Swing Line Loans purchased by any Lender, the
percentage obtained by dividing (a) the Series A Revolving Loan Exposure
of that Lender by (b) the aggregate Series A Revolving Loan Exposure of
all Lenders, (ii) with respect to all payments, computations and other
matters relating to the Series B Term Loan Commitment or the Series B
Term Loans of any Lender the percentage obtained by dividing (a) the
Series B Term Loan Exposure of that Lender by (b) the aggregate Series B
Term Loan Exposure of all Lenders, (iii) with respect to all payments,
computations and other matters relating to the Series C Term Loan
Commitment or the Series C Term Loans of any Lender, the percentage
obtained by dividing (a) the Series C Term Loan Exposure of that Lender
by (b) the aggregate Series C Term Loan Exposure of all Lenders, (iv)
with respect to all payments, computations and other matters relating to
any Incremental Facility Commitment or any Incremental Loan of any
Lender, the percentage obtained by dividing (a) the Incremental Loan
Exposure of that Lender by (b) the aggregate Incremental Loan Exposure
of all Lenders, and (v) for all other purposes with respect to each
Lender, the percentage obtained by dividing (a) the sum of the Series A
Revolving Loan Exposure of that Lender plus the Series B Term Loan
Exposure of that Lender plus the Series C Term Loan Exposure of that
Lender plus any Incremental Loan Exposure of that Lender by (b) the sum
of the aggregate Series A Revolving Loan Exposure of all Lenders plus
the aggregate Series B Term Loan Exposure of all Lenders plus the
aggregate Series C Term Loan Exposure of all Lenders plus the aggregate
Incremental Loan Exposure, if any, of all Lenders in any such case as
the applicable percentage may be adjusted by the execution of the
Incremental Facility Supplement and by assignments permitted pursuant to
subsection 9.1. The initial Pro Rata Share of each Lender for purposes
of each of clauses (i), (ii), (iii) and (v) of the preceding sentence is
set forth opposite the name of that Lender in Schedule 2.1 annexed
hereto.
"PURCHASE MONEY DEBT ALLOWANCE" has the meaning given such term
in the Existing Senior Note Indentures.
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"REFUNDED SWING LINE LOANS" has the meaning assigned to that
term in subsection 2.1A(v).
"REGISTER" has the meaning assigned to that term in subsection
2.1D.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"RELATED AGREEMENTS" means, collectively, the (i) Existing
Senior Note Indentures and Existing Senior Notes and (ii) the Company
Certificate of Designation.
"RELATED TELECOMMUNICATIONS BUSINESS" means the business of
being an inter-exchange carrier, a competitive local exchange carrier,
an incumbent local exchange carrier, an internet service provider, a
long-distance reseller, a backbone data provider or a data local
exchange carrier, the business of designing, constructing, selling and
leasing of telecommunications network infrastructure or the business of
owning fiber for telecommunications purposes.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the indoor or
outdoor environment (including the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), including the movement of any Hazardous Materials through
the air, soil, surface water or groundwater.
"REQUISITE LENDERS" means Lenders having or holding more than
50% of the sum of the aggregate Series A Revolving Loan Exposure of all
Lenders plus the aggregate Series B Term Loan Exposure of all Lenders
plus the aggregate Series C Term Loan Exposure of all Lenders plus the
aggregate Incremental Loan Exposure, if any, of all Lenders.
"RESTRICTED JUNIOR PAYMENT" shall mean (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Company now or hereafter outstanding, except a dividend
payable solely in shares of that class of stock to the holders of that
class, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any
shares of any class of stock of Company now or hereafter outstanding,
(iii) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock of Company now or hereafter outstanding, and (iv) any
payment or prepayment of principal of, premium, if any, or interest on,
or redemption, purchase, retirement, defeasance (including in-substance
or legal defeasance), sinking fund or similar payment with respect to
any Subordinated Indebtedness, the Existing Senior Notes or any
Additional Notes.
"RESTRICTED SUBSIDIARY" means each direct and indirect
subsidiary of Company currently existing or hereafter formed or acquired
which is not an Unrestricted Subsidiary.
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"RESTRUCTURING" means (i) the formation of Finance Sub as a
Wholly Owned Subsidiary of Company and (ii) the contribution by Company
to Finance Sub of all issued and outstanding Capital Stock of the
Restricted Subsidiaries.
"RESTRUCTURING DOCUMENTS" mean, collectively, each agreement,
document or certificate executed in connection with the Restructuring.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in
any profit-sharing agreement or arrangement, options, warrants, bonds,
debentures, notes, or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of
interest, shares or participations in temporary or interim certificates
for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SERIES A REVOLVING LOANS" means the Loans made by Lenders to
Company pursuant to subsection 2.1A(i).
"SERIES A REVOLVING LOAN COMMITMENT" means the commitment of a
Lender to make Series A Revolving Loans to Company pursuant to
subsection 2.1A(i), and "SERIES A REVOLVING LOAN COMMITMENTS" means such
commitments of all Lenders in the aggregate.
"SERIES A REVOLVING LOAN EXPOSURE" means, with respect to any
Lender as of any date of determination (i) prior to the termination of
the Series A Revolving Loan Commitments, that Lender's Series A
Revolving Loan Commitment and (ii) after the termination of the Series A
Revolving Loan Commitments, the aggregate outstanding principal amount
of the Series A Revolving Loans of that Lender.
"SERIES A REVOLVING LOAN NOTES" means any promissory notes of
Company issued pursuant to subsection 2.1E(i)(a) or the last sentence of
subsection 9.1B(i) in connection with assignments of the Series A
Revolving Loan Commitments or Series A Revolving Loans of any Lenders,
in each case substantially in the form of Exhibit IV annexed hereto, as
they may be amended, supplemented or otherwise modified from time to
time.
"SERIES B TERM LOAN COMMITMENT" means the commitment of a Lender
to make Series B Term Loans to Company pursuant to subsection 2.1A(ii),
and "SERIES B TERM LOAN COMMITMENTS" means such commitments of all
Lenders in the aggregate.
"SERIES B TERM LOAN EXPOSURE" means, with respect to any Lender
as of any date of determination (i) prior to the termination of the
Series B Term Loan Commitments, that Lender's Series B Term Loan
Commitment and (ii) after the termination of the Series B Term Loan
Commitments, the aggregate outstanding principal amount of the Series B
Term Loans of that Lender.
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"SERIES B TERM LOANS" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(ii).
"SERIES B TERM NOTES" means any promissory notes issued by
Company pursuant to subsection 2.1E(i)(b) or the last sentence of
subsection 9.1B(i) in connection with assignments of the Series B Term
Loan Commitments and Series B Term Loans of any Lenders, in each case
substantially in the form of Exhibit V annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"SERIES C TERM LOAN COMMITMENT" means the commitment of a Lender
to make Series C Term Loans to Company pursuant to subsection 2.1A(iii),
and "SERIES C TERM LOAN COMMITMENTS" means such commitments of all
Lenders in the aggregate.
"SERIES C TERM LOAN EXPOSURE" means, with respect to any Lender
as of any date of determination (i) prior to the funding of the Series C
Term Loan Commitments, that Lender's Series C Term Loan Commitment and
(ii) after the funding of the Series C Term Loan Loans, the aggregate
outstanding principal amount of the Series C Term Loans of that Lender.
"SERIES C TERM LOANS" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(iii).
"SERIES C TERM NOTES" means any promissory notes issued by
Company pursuant to subsection 2.1E(i)(c) or the last sentence of
subsection 9.1B(i) in connection with assignments of the Series C Term
Loan Commitments and Series C Term Loans of any Lenders, in each case
substantially in the form of Exhibit VI annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"SOLVENT" means, with respect to any Person, that as of the date
of determination both (i) (a) the then fair saleable value of the
property of such Person is (1) greater than the total amount of
liabilities (including contingent liabilities) of such Person and (2)
not less than the amount that will be required to pay the probable
liabilities on such Person's then existing debts as they become absolute
and matured considering all financing alternatives and potential asset
sales reasonably available to such Person; (b) such Person's capital is
not unreasonably small in relation to its business or any contemplated
or undertaken transaction; and (c) such Person does not intend to incur,
or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such
Person is "solvent" within the meaning given that term and similar terms
under applicable laws relating to fraudulent transfers and conveyances.
For purposes of this definition, the amount of any contingent liability
at any time shall be computed as the amount that, in light of all of the
facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.
"STATE LAW" means any state law pertaining to or regulating
intrastate and local telecommunications services, or any successor
statute or statutes thereto, and all State Regulations pursuant to such
State Law, in each case as from time to time in effect.
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"STATE PUC" means any state public utility commission or any
other state commission, agency, department, board or authority with
responsibility for regulating intrastate and local telecommunications
services.
"STATE REGULATIONS" means all rules, regulations, written
policies, orders and decisions of any State PUC.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of Company
subordinated in right of payment to the Obligations.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or
other business entity of which more than 50% of the total voting power
of shares of stock or other ownership interests entitled (without regard
to the occurrence of any contingency) to vote in the election of the
Person or Persons (whether directors, managers, trustees or other
Persons performing similar functions) having the power to direct or
cause the direction of the management and policies thereof is at the
time owned or controlled, directly or indirectly, by that Person or one
or more of the other Subsidiaries of that Person or a combination
thereof.
"SUBSIDIARY GUARANTOR" means any Restricted Subsidiary of
Company (other than Finance Sub) that executes and delivers a
counterpart of the Subsidiary Guaranty on the Closing Date or from time
to time thereafter pursuant to subsection 5.8.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty executed and
delivered by existing Restricted Subsidiaries of Company on the Closing
Date and to be executed and delivered by additional Restricted
Subsidiaries of Company from time to time thereafter in accordance with
subsection 5.8, substantially in the form of Exhibit XXII annexed
hereto, as such Subsidiary Guaranty may hereafter be amended,
supplemented or otherwise modified from time to time.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to that
term in subsection 9.1D.
"SWING LINE LENDER" means BNY, or any Person serving as a
successor Administrative Agent hereunder, in its capacity as Swing Line
Lender hereunder.
"SWING LINE LOAN COMMITMENT" means the commitment of Swing Line
Lender to make Swing Line Loans to Company pursuant to subsection
2.1A(v).
"SWING LINE LOANS" means the Loans made by Swing Line Lender to
Company pursuant to subsection 2.1A(v).
"SWING LINE NOTE" means (i) the promissory note of Company
issued pursuant to subsection 2.1E(ii) on the Closing Date and (ii) any
promissory note issued by Company to any successor Administrative Agent
and Swing Line Lender pursuant to the last sentence of subsection 8.5B,
in each case substantially in the form of Exhibit VII annexed hereto, as
it may be amended, supplemented or otherwise modified from time to time.
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"SYNDICATION AGENT" has the meaning assigned to that term in the
introduction to this Agreement.
"TAX" or "TAXES" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed; provided that "TAX ON THE OVERALL NET
INCOME" of a Person shall be construed as a reference to a tax imposed
by the jurisdiction in which that Person is organized or in which that
Person's principal office (and/or, in the case of a Lender, its lending
office) is located or in which that Person (and/or, in the case of a
Lender, its lending office) is deemed to be doing business on all or
part of the net income, profits or gains (whether worldwide, or only
insofar as such income, profits or gains are considered to arise in or
to relate to a particular jurisdiction, or otherwise) of that Person
(and/or, in the case of a Lender, its lending office).
"TELECOMMUNICATIONS ACQUISITIONS" means acquisitions by Finance
Sub or its Restricted Subsidiaries of Persons principally engaged in a
Related Telecommunications Business, provided that the Person acquired
shall become a Wholly Owned Restricted Subsidiary and a Subsidiary
Guarantor.
"TELECOMMUNICATIONS ASSETS" means, with respect to any Person,
assets (including, without limitation, rights-of-way, trademarks and
licenses to use copyrighted material), that are utilized by such Person,
directly or indirectly, in a Telecommunications Business.
Telecommunications Assets shall include stock, joint venture or
partnership interests in another Person; provided that substantially all
of the assets of such other Person consist of Telecommunications Assets.
"TELECOMMUNICATIONS BUSINESS" means the business of (i)
transmitting, or providing services relating to the transmission of,
voice, video or data through owned or leased transmission facilities,
(ii) creating, developing or marketing communications-related network
equipment, software and other devices for use in (i) above or (iii)
evaluating, participating or pursuing any other activity or opportunity
that is related to those specified in (i) or (ii) above.
"TOTAL GROSS CAPITALIZATION" means the (i) sum of (a)
Consolidated Total Debt plus (b) paid-in capital which shall include (1)
preferred stock and (2) stock issued to employees as compensation in the
ordinary course of business consistent with past practice but shall
exclude (3) additional equity issued as pay-in-kind dividends on issued
and outstanding equity securities and (4) any warrants for equity
securities issued in connection with Securities evidencing Indebtedness
and which shall be determined without giving effect to any accumulated
deficits resulting from operations minus (ii) the aggregate cumulative
amount of Investments made by Company or its Restricted Subsidiaries
from and after the Closing Date pursuant to subsection 6.3(vii).
"TOTAL NET CAPITALIZATION" means the (i) sum of (a) Consolidated
Adjusted Total Debt plus (b) paid-in capital which shall include (1)
preferred stock and (2) stock issued to employees as compensation in the
ordinary course of business consistent with past
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practice but shall exclude (3) additional equity issued as pay-in-kind
dividends on issued and outstanding equity securities and (4) any
warrants for equity securities issued in connection with Securities
evidencing Indebtedness and which shall be determined without giving
effect to any accumulated deficits resulting from operations minus (ii)
the aggregate cumulative amount of Investments made by Company or its
Restricted Subsidiaries from and after the Closing Date pursuant to
subsection 6.3(vii).
"TOTAL UTILIZATION OF SERIES A REVOLVING LOAN COMMITMENTS"
means, as at any date of determination, the sum of (i) the aggregate
principal amount of all outstanding Series A Revolving Loans (other than
Series A Revolving Loans made for the purpose of repaying any Refunded
Swing Line Loans) plus (ii) the aggregate principal amount of all
outstanding Swing Line Loans.
"TRANSACTION COSTS" means the fees, costs and expenses payable
by Company on or before the Closing Date in connection with the
transactions contemplated by the Loan Documents and the Related
Agreements.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
"UNRESTRICTED SUBSIDIARY" means (i) each direct and indirect
Subsidiary of Company which is designated as an Unrestricted Subsidiary
on Schedule 1.2 annexed hereto and (ii) each other indirect Subsidiary
of Company formed or acquired after the Closing Date which is designated
by the Board of Directors of Company as an Unrestricted Subsidiary;
provided, however, that in the case of each of clauses (i) and (ii), (a)
such Subsidiary has total assets of $1,000 or less or the designation of
such Subsidiary as an Unrestricted Subsidiary is effective immediately
upon such Person becoming a Subsidiary of Company, (b) such Subsidiary
has no Indebtedness other than Non-Recourse Indebtedness, (c) neither
Company nor any Restricted Subsidiary is party to any agreement which
requires Company or any Restricted Subsidiaries to maintain or preserve
such Subsidiary's financial condition or to cause such Subsidiary to
achieve any specified financial or operating results and (d) such
Subsidiary constitutes an "Unrestricted Subsidiary" under each indenture
pursuant to which Company has outstanding Indebtedness. If, at any time,
any Unrestricted Subsidiary would fail to meet any of the foregoing
requirements to constitute an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary and any Indebtedness
of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary as of such date. Notice of the designation of any Subsidiary
of Company as an Unrestricted Subsidiary shall be set forth in an
Officers' Certificate delivered to Administrative Agent.
"USE AGREEMENT" means any agreement pursuant to which Company or
any Restricted Subsidiary sells ownership rights to, or rights to use
(on an indefeasible right of use basis or otherwise), fiber optic cable,
fiber conduits, innerducts, switches or similar assets.
"VOTING STOCK" means, with respect to any Person, Capital Stock
of such Person which ordinarily has voting power for the election of
directors (or persons performing
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similar functions) of such Person, whether at all times or only so long
as no senior class of securities has such voting power by reason of any
contingency.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i)
the sum of the product obtained by multiplying (a) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment, by (ii) the then outstanding principal amount of such
Indebtedness.
"WHOLLY OWNED" means, with respect to any Person, a Subsidiary
of such Person all of the outstanding Capital Stock or other equity
interests (other than directors' qualifying shares) of which shall at
the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly
Owned Subsidiaries of such Person.
"YEAR 2000 COMPLIANT" means, with respect to any Person, that
all software, hardware, firmware, equipment, goods or systems material
to the business operations or financial condition of such Person, will
properly perform date sensitive functions before, during and after the
year 2000.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS UNDER
AGREEMENT.
Except as otherwise expressly provided in this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii) and (xii) of
subsection 5.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 5.1(iv)). Calculations in connection with
the definitions, covenants and other provisions of this Agreement shall utilize
accounting principles and policies in conformity with those used to prepare the
financial statements referred to in subsection 4.3. If there is any change in
the accounting principles and policies applicable to Company and its
Subsidiaries in accordance with GAAP after the date hereof, Borrowers and the
Lenders may (but shall not be obligated to) amend the definitions, covenants and
other provisions of this Agreement to take into account such changes in
accounting principles and policies.
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
References to "Sections" and "subsections" shall be to Sections and subsections,
respectively, of this Agreement unless otherwise specifically provided. The use
herein of the word "include" or "including", when following any general
statement, term or matter, shall not be construed to limit such statement, term
or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not nonlimiting language (such
as "without limitation" or
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"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
21. COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
(A) COMMITMENTS. Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Company herein set
forth, each Lender hereby severally agrees to make the Loans described in
subsections 2.1A(i), 2.1A(ii), 2.1A(iii) and 2.1A(iv) and Swing Line Lender
hereby agrees to make the Loans described in subsection 2.1A(v). The Lenders may
(but shall not be obligated to) agree to make the Loans described in Subsection
2.1A(vi) in accordance with the terms and conditions set forth therein.
(i) Series A Revolving Loans. Each Lender severally agrees,
subject to the limitations set forth below with respect to the maximum
amount of Series A Revolving Loans permitted to be outstanding from time
to time, to lend to Finance Sub from time to time during the period
commencing the day after the Closing Date to but excluding the Maturity
Date an aggregate amount not exceeding its Pro Rata Share of the
aggregate amount of the Series A Revolving Loan Commitments to be used
for the purposes identified in subsection 2.5A. The original amount of
each Lender's Series A Revolving Loan Commitment is set forth opposite
its name on Schedule 2.1 annexed hereto and the aggregate original
amount of the Series A Revolving Loan Commitments is $35,000,000;
provided that the Series A Revolving Loan Commitments of Lenders shall
be adjusted to give effect to any assignments of the Series A Revolving
Loan Commitments pursuant to subsection 9.1B; and provided, further
that the amount of the Series A Revolving Loan Commitments shall be
reduced from time to time by the amount of any reductions thereto made
pursuant to Subsections 2.4A(i), 2.4B(ii) and 2.4B(iii). Each Lender's
Series A Revolving Loan Commitment shall expire on the Maturity Date
and all Series A Revolving Loans and all other amounts owed hereunder
with respect to the Series A Revolving Loans and Series A Revolving
Loan Commitments shall be paid in full no later than that date. Amounts
borrowed under this subsection 2.1A(i) may be repaid and reborrowed to
but excluding the Maturity Date.
(ii) Series B Term Loans. Each Lender severally agrees, subject
to the limitations set forth below with respect to the maximum amount of
Series B Term Loans permitted to be outstanding from time to time, to
lend to Company during the period from the day after the Closing Date to
but excluding August 11, 2003 an amount equal to its Pro Rata Share of
the aggregate amount of the Series B Term Loan Commitments to be used
for the purposes identified in subsection 2.5B. The original amount of
each Lender's Series B Term Loan Commitment is set forth opposite its
name on Schedule 2.1 annexed hereto and the aggregate original amount of
the Series B Term Loan Commitments is $55,000,000; provided that the
Series B Term Loan Commitments of Lenders shall be adjusted to give
effect to any assignments of the Series B Term Loan Commitments pursuant
to subsection 9.1B. Each Lender's Series B Term Loan
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Commitment shall expire on August 10, 2003 and any unfunded Series B
Term Loan Commitments shall automatically terminate on such date.
Company may make multiple borrowings under the Series B Term Loan
Commitments, subject to (a) the limitations set forth in Section 2.1B,
(b) that there shall be no more than six borrowings under the Series B
Term Loan Commitments and (c) no more than one borrowing per calendar
month may be made under the Series B Term Loan Commitments. All Series B
Term Loans and all other amounts owed hereunder with respect to the
Series B Term Loans and the Series B Term Loan Commitments shall be paid
in full no later than the Maturity Date. Amounts borrowed under this
subsection 2.1A(ii) and repaid may not be reborrowed.
(iii) Series C Term Loans. Each Lender severally agrees to lend
to Company on the Closing Date an amount equal to its Pro Rata Share of
the aggregate amount of the Series C Term Loan Commitments to be used
for the purposes identified in subsection 2.5B. The original amount of
each Lender's Series C Term Loan Commitment is set forth opposite its
name on Schedule 2.1 annexed hereto and the aggregate original amount of
the Series C Term Loan Commitments is $110,000,000; provided that the
Series C Term Loan Commitments of Lenders shall be adjusted to give
effect to any assignments of the Series C Term Loan Commitments pursuant
to subsection 9.1B. Company may make one borrowing under the Series C
Term Loan Commitments. All Series C Term Loans and all other amounts
owed hereunder with respect to the Series C Term Loans and the Series C
Term Loan Commitments shall be paid in full no later than the Maturity
Date. Amounts borrowed under this subsection 2.1A(iii) and repaid may
not be reborrowed.
(iv) Limitations on Loans. Anything contained in this Agreement
to the contrary notwithstanding, the Loans shall be subject to the
following limitations: (a) in no event shall the Total Utilization of
Series A Revolving Loan Commitments at any time exceed the Series A
Revolving Loan Commitments then in effect; (b) in no event shall the sum
of the aggregate principal amounts of Series B Term Loans, Series C Term
Loans and Incremental Loans, if any, outstanding exceed 80% of the cost
of the acquisition, construction or improvement of the
Telecommunications Assets acquired, constructed or improved with the
proceeds of such Loans; (c) in no event shall the sum of the aggregate
principal amounts of Series B Term Loans, Series C Term Loans and
Incremental Loans, if any, outstanding, plus the aggregate amount of any
Indebtedness outstanding in accordance with subsection 6.1(vi) exceed
the Purchase Money Debt Allowance; and (d) the Total Utilization of
Series A Revolving Loan Commitments plus the aggregate principal amount
of Series B Term Loans outstanding shall not exceed $54,000,000 at any
time prior to the date on which Company shall have received aggregate
gross proceeds of at least $100,000,000 from the issuance after the
Closing Date of (1) Capital Stock of Company and/or (2) Additional
Notes.
(v) Swing Line Loans. Swing Line Lender hereby agrees, subject
to the limitations set forth below with respect to the maximum amount of
Swing Line Loans permitted to be outstanding from time to time, to make
a portion of the Series A Revolving Loan Commitments available to
Finance Sub from time to time during the period from the Closing Date to
but excluding the Maturity Date by making Swing Line Loans to Finance
Sub in an aggregate amount not exceeding the amount of the Swing
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Line Loan Commitment to be used for the purposes identified in
subsection 2.5A, provided that such Swing Line Loans, when aggregated
with Swing Line Lender's outstanding Series A Revolving Loans then in
effect, shall not exceed Swing Line Lender's Series A Revolving Loan
Commitment. The original amount of the Swing Line Loan Commitment is
$5,000,000; provided that any reduction of the Series A Revolving Loan
Commitments made pursuant to subsection 2.4A(ii), 2.4B(ii) or 2.4B(iii)
which reduces the aggregate Series A Revolving Loan Commitments to an
amount less than the then current amount of the Swing Line Loan
Commitment shall result in an automatic corresponding reduction of the
Swing Line Loan Commitment to the amount of the Series A Revolving Loan
Commitments, as so reduced, without any further action on the part of
Finance Sub, Administrative Agent or Swing Line Lender. The Swing Line
Loan Commitment shall expire on the Maturity Date and all Swing Line
Loans and all other amounts owed hereunder with respect to the Swing
Line Loans shall be paid in full no later than that date. Amounts
borrowed under this subsection 2.1A(v) may be repaid and reborrowed to
but excluding the Maturity Date.
With respect to any Swing Line Loans which have not been
voluntarily prepaid by Finance Sub pursuant to subsection 2.4B(i), Swing
Line Lender may, at any time in its sole and absolute discretion,
deliver to Administrative Agent (with a copy to Company), no later than
10:00 A.M. (New York City time) on the first Business Day in advance of
the proposed Funding Date, a notice (which shall be deemed to be a
Notice of Borrowing given by Finance Sub) requesting Lenders to make
Series A Revolving Loans that are Base Rate Loans on such Funding Date
in an amount equal to the amount of such Swing Line Loans (the "REFUNDED
SWING LINE LOANS") outstanding on the date such notice is given which
Swing Line Lender requests Lenders to prepay. Anything contained in this
Agreement to the contrary notwithstanding, (i) the proceeds of such
Series A Revolving Loans made by Lenders other than Swing Line Lender
shall be immediately delivered by Administrative Agent to Swing Line
Lender (and not to Finance Sub) and applied to repay a corresponding
portion of the Refunded Swing Line Loans and (ii) on the day such Series
A Revolving Loans are made, Swing Line Lender's Pro Rata Share of the
Refunded Swing Line Loans shall be deemed to be paid with the proceeds
of a Series A Revolving Loan made by Swing Line Lender, and such portion
of the Swing Line Loans deemed to be so paid shall no longer be
outstanding as Swing Line Loans and shall no longer be due under the
Swing Line Note, if any, of Swing Line Lender but shall instead
constitute part of Swing Line Lender's outstanding Series A Revolving
Loans and shall be due under the Series A Revolving Note, if any, of
Swing Line Lender. Finance Sub hereby authorizes Administrative Agent
and Swing Line Lender to charge Finance Sub's accounts with
Administrative Agent and Swing Line Lender (up to the amount available
in each such account) in order to immediately pay Swing Line Lender the
amount of the Refunded Swing Line Loans to the extent the proceeds of
such Series A Revolving Loans made by Lenders, including the Series A
Revolving Loan deemed to be made by Swing Line Lender, are not
sufficient to repay in full the Refunded Swing Line Loans. If any
portion of any such amount paid (or deemed to be paid) to Swing Line
Lender should be recovered by or on behalf of Finance Sub from Swing
Line Lender in bankruptcy, by assignment for the benefit of creditors or
otherwise, the loss of the amount so recovered shall be ratably shared
among all Lenders in the manner contemplated by subsection 9.5.
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If for any reason (a) Series A Revolving Loans are not made upon
the request of Swing Line Lender as provided in the immediately
preceding paragraph in an amount sufficient to repay any amounts owed to
Swing Line Lender in respect of any outstanding Swing Line Loans or (b)
the Series A Revolving Loan Commitments are terminated at a time when
any Swing Line Loans are outstanding, each Lender shall be deemed to,
and hereby agrees to, have purchased a participation in such outstanding
Swing Line Loans in an amount equal to its Pro Rata Share (calculated,
in the case of the foregoing clause (b), immediately prior to such
termination of the Series A Revolving Loan Commitments) of the unpaid
amount of such Swing Line Loans together with accrued interest thereon.
Upon one Business Day's notice from Swing Line Lender, each Lender shall
deliver to Swing Line Lender an amount equal to its respective
participation in same day funds at the Funding and Payment Office. In
order to further evidence such participation (and without prejudice to
the effectiveness of the participation provisions set forth above), each
Lender agrees to enter into a separate participation agreement at the
request of Swing Line Lender in form and substance reasonably
satisfactory to Swing Line Lender. In the event any Lender fails to make
available to Swing Line Lender the amount of such Lender's participation
as provided in this paragraph, Swing Line Lender shall be entitled to
recover such amount on demand from such Lender together with interest
thereon at the rate customarily used by Swing Line Lender for the
correction of errors among banks for three Business Days and thereafter
at the Base Rate. In the event Swing Line Lender receives a payment of
any amount in which other Lenders have purchased participations as
provided in this paragraph, Swing Line Lender shall promptly distribute
to each such other Lender its Pro Rata Share of such payment.
Anything contained herein to the contrary notwithstanding, each
Lender's obligation to make Series A Revolving Loans for the purpose of
repaying any Refunded Swing Line Loans pursuant to the second preceding
paragraph and each Lender's obligation to purchase a participation in
any unpaid Swing Line Loans pursuant to the immediately preceding
paragraph shall be absolute and unconditional and shall not be affected
by any circumstance, including (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against
Swing Line Lender, Company, Finance Sub or any other Person for any
reason whatsoever; (b) the occurrence or continuation of an Event of
Default or a Potential Event of Default; (c) any adverse change in the
business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company or any of its Subsidiaries; (d) any
breach of this Agreement or any other Loan Document by any party
thereto; or (e) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided that such
obligations of each Lender are subject to the condition that (1) Swing
Line Lender believed in good faith that all conditions under Section 4
to the making of the applicable Refunded Swing Line Loans or other
unpaid Swing Line Loans, as the case may be, were satisfied at the time
such Refunded Swing Line Loans or unpaid Swing Line Loans were made or
(2) the satisfaction of any such condition not satisfied had been waived
in accordance with subsection 9.6 prior to or at the time such Refunded
Swing Line Loans or other unpaid Swing Line Loans were made.
(vi) Optional Incremental Facility. Subject to the provisions of
this subsection 2.1A(vi), Company may at any time prior to the fourth
anniversary of the Closing Date
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<PAGE> 45
request Incremental Facility Commitments be provided hereunder in an
aggregate amount of not less than $10,000,000 and not more than
$100,000,000. In the event that Company desires to request Incremental
Facility Commitments hereunder, (i) Company shall request each Agent and
Lender and may request, in its discretion, New Incremental Facility
Lenders, to provide Incremental Facility Commitments; provided that no
Lender or Agent shall be obligated to provide an Incremental Facility
Commitment. In the event one or more Lenders or New Incremental Facility
Lenders agree to provide Incremental Facility Commitments, Company, such
Lenders or New Incremental Facility Lenders, Administrative Agent and
Syndication Agent shall enter into an Incremental Facility Supplement.
The Incremental Facility Maturity Date and the amortization schedule for
the Incremental Facility shall be, at the option of Company, the same as
the Maturity Date and amortization schedule for either the Series B Term
Loans or the Series C Term Loans. From and after the Incremental
Facility Commitment Date to but excluding the Incremental Facility
Maturity Date, each Lender or New Incremental Facility Lender becoming a
Lender pursuant to the Incremental Facility Supplement severally agrees,
subject to the terms and conditions of this Agreement, to lend to
Company an amount not exceeding its Pro Rata Share of the aggregate
amount of the Incremental Facility Commitments for the purposes
identified in subsection 2.5B. The Incremental Facility Commitments of
each Lender shall be adjusted to give effect to any assignments of the
Incremental Facility Commitments pursuant to subsection 9.1B. Except as
expressly provided in this subsection 2.1A(vi) and the Incremental
Facility Supplement, the Incremental Facility Commitments shall be
subject to all the terms and conditions of this Agreement.
Notwithstanding anything herein to the contrary, any Incremental
Facility Commitments provided hereunder shall be subject to the
following conditions: (a) the proceeds of the Incremental Loans shall be
used as set forth in subsection 2.5B; (b) in no event shall the
aggregate amount of Incremental Loans outstanding at any time exceed the
Incremental Facility Commitments then in effect; (c) in no event shall
the sum of the aggregate principal amounts of Series B Term Loans,
Series C Term Loans and Incremental Loans, if any, outstanding exceed
80% of the cost of the acquisition, construction or improvement of the
Telecommunications Assets acquired, constructed or improved with the
proceeds of such Loans; and (d) in no event shall the sum of the
aggregate principal amounts of Series B Term Loans, Series C Term Loans
and Incremental Loans, if any, outstanding, plus the aggregate amount of
any Indebtedness outstanding in accordance with subsection 6.1(vi)
exceed the Purchase Money Debt Allowance.
(B) BORROWING MECHANICS. Series A Revolving Loans (other than Loans made
pursuant to a request by Swing Line Lender pursuant to subsection 2.1A(v) for
the purpose of repaying any Refunded Swing Line Loans) or Series B Term Loans or
Series C Term Loans or Incremental Loans, if any, made on any Funding Date shall
be in an aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount. Whenever Finance Sub desires Lenders to
make Series A Revolving Loans, it shall deliver to Administrative Agent a Notice
of Borrowing in the form of Exhibit I annexed hereto, and whenever Company
desires Lenders to make Series B Term Loans, Series C Term Loans, or Incremental
Loans, if any, it shall deliver to Administrative Agent a Notice of Borrowing in
the form of Exhibit II annexed
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<PAGE> 46
hereto, in each case no later than 10:00 a.m. (New York time) at least three
Business Days in advance of the proposed Funding Date (in the case of a
Eurodollar Rate Loan) or one day in advance of the proposed Funding Date (in the
case of a Base Rate Loan). Swing Line Loans made on any Funding Date shall be in
an aggregate minimum of $1,000,000 and integral multiples of $500,000 in excess
of that amount. Whenever Finance Sub desires that Swing Line Lender make a Swing
Line Loan, it shall deliver to Administrative Agent a Notice of Borrowing no
later than 12:00 Noon (New York City time) on the proposed Funding Date. The
Notice of Borrowing shall specify (i) the proposed Funding Date (which shall be
a Business Day), (ii) the amount and type of Loans requested, (iii) in the case
of Swing Line Loans and Loans made on the Closing Date, that such Loans shall be
Base Rate Loans, (iv) in the case of Loans not made on the Closing Date, whether
such Loans shall be Base Rate Loans or Eurodollar Rate Loans, and (v) in the
case of any Loans requested to be made as Eurodollar Rate Loans, the initial
Interest Period requested therefor. Loans (other than Swing Line Loans) may be
continued as or converted into Base Rate Loans and Eurodollar Rate Loans in the
manner provided in subsection 2.2D. In lieu of delivering the above-described
Notice of Borrowing, the applicable Borrower may give Administrative Agent
telephonic notice by the required time of any proposed borrowing under this
subsection 2.1B; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Borrowing to Administrative Agent on or
before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability to
either Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of such
Borrower or for otherwise acting in good faith under this subsection 2.1B, and
upon funding of Loans by Lenders in accordance with this Agreement pursuant to
any such telephonic notice the applicable Borrower shall have effected Loans
hereunder.
Each Borrower shall notify Administrative Agent prior to the funding of
any Loans in the event that any of the matters to which such Borrower is
required to certify in the applicable Notice of Borrowing is no longer true and
correct as of the applicable Funding Date, and the acceptance by such Borrower
of the proceeds of any Loans shall constitute a re-certification by such
Borrower, as of the applicable Funding Date, as to the matters to which such
Borrower is required to certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and the applicable Borrower shall be bound to make a
borrowing in accordance therewith.
(C) DISBURSEMENT OF FUNDS. All Loans (other than Swing Line Loans) under
this Agreement shall be made by Lenders simultaneously and proportionately to
their respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt by Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice
in lieu thereof), Administrative
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<PAGE> 47
Agent shall notify each Lender or Swing Line Lender, as the case may be, of the
proposed borrowing. Each Lender shall make the amount of its Loan available to
Administrative Agent not later than 12:00 Noon (New York City time) on the
applicable Funding Date, and Swing Line Lender shall make the amount of its
Swing Line Loan available to Administrative Agent not later than 2:00 P.M. (New
York City time) on the applicable Funding Date, in each case in same day funds
in Dollars, at the Funding and Payment Office. Except as provided in subsection
2.1A(v) with respect to Series A Revolving Loans used to repay Refunded Swing
Line Loans, upon satisfaction or waiver of the conditions precedent specified in
subsections 3.1 (in the case of Loans made on the Closing Date) and 3.2 (in the
case of all Loans), Administrative Agent shall make the proceeds of such Loans
available to the applicable Borrower on the applicable Funding Date by causing
an amount of same day funds in Dollars equal to the proceeds of all such Loans
received by Administrative Agent from Lenders, to be credited to an account
designated in writing by the applicable Borrower.
Unless Administrative Agent shall have been notified by any Lender prior
to the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to the applicable Borrower a corresponding amount on such Funding
Date. If such corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall be entitled to
recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Funding Date until the date such amount
is paid to Administrative Agent, at the customary rate set by Administrative
Agent for the correction of errors among banks for three Business Days and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon Administrative Agent's demand therefor, Administrative
Agent shall promptly notify the applicable Borrower and the applicable Borrower
shall immediately pay such corresponding amount to Administrative Agent together
with interest thereon, for each day from such Funding Date until the date such
amount is paid to Administrative Agent, at the rate payable under this Agreement
for Base Rate Loans. Nothing in this subsection 2.1C shall be deemed to relieve
any Lender from its obligation to fulfill its Commitments hereunder or to
prejudice any rights that the applicable Borrower may have against any Lender as
a result of any default by such Lender hereunder.
(D) THE REGISTER.
(i) Administrative Agent shall maintain, at its address referred
to in subsection 9.7, a register for the recordation of the names and
addresses of Lenders and the Commitments and Loans (whether or not
evidenced by a Note) of each Lender from time to time (the "REGISTER").
The Register shall be available for inspection by Borrowers or any
Lender at any reasonable time and from time to time upon reasonable
prior notice.
(ii) Administrative Agent shall record in the Register the
Series A Revolving Loan Commitment, Series B Term Loan Commitment,
Series C Term Loan Commitment and Incremental Facility Commitment, if
any, and the Series A Revolving Loans, Series
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<PAGE> 48
B Term Loans, Series C Term Loans and Incremental Loans, if any, from
time to time of each Lender, the Swing Line Loan Commitment and the
Swing Line Loans from time to time of Swing Line Lender, and each
repayment or prepayment in respect of the principal amount of the Series
A Revolving Loans, Series B Term Loans, Series C Term Loans or
Incremental Loans, if any, of each Lender or the Swing Line Loans of
Swing Line Lender. Any such recordation shall be conclusive and binding
on Company and each Lender, absent manifest error; provided that failure
to make any such recordation, or any error in such recordation, shall
not affect any Lender's Commitments or Company's Obligations in respect
of any applicable Loans.
(iii) Each Lender shall record on its internal records
(including the Notes held by such Lender) the amount of each Series A
Revolving Loan, Series B Term Loan, Series C Term Loan and Incremental
Loan, if any, made by it and each payment in respect thereof. Any such
recordation shall be conclusive and binding on Borrowers, absent
manifest error; provided that failure to make any such recordation, or
any error in such recordation, shall not affect any Lender's Commitments
or either Borrower's Obligations in respect of any applicable Loans; and
provided, further that in the event of any inconsistency between the
Register and any Lender's records, the recordations in the Register
shall govern.
(iv) Borrowers, Administrative Agent and Lenders shall deem and
treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment or
Loan shall be effective, in each case unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been
accepted by Administrative Agent and recorded in the Register as
provided in subsection 9.1B(ii). Prior to such recordation, all amounts
owed with respect to the applicable Commitment or Loan shall be owed to
the Lender listed in the Register as the owner thereof, and any request,
authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register
as a Lender shall be conclusive and binding on any subsequent holder,
assignee or transferee of the corresponding Commitments or Loans.
(v) Each Borrower hereby designates BNY to serve as such
Borrower's agent solely for purposes of maintaining the Register as
provided in this subsection 2.1D, and Company hereby agrees that, to the
extent BNY serves in such capacity, BNY and its officers, directors,
employees, agents and affiliates shall constitute Indemnitees for all
purposes under subsection 9.3.
(E) NOTES. Upon request of any Lender, the applicable Borrower shall
execute and deliver (i) to each Lender (or to Administrative Agent for that
Lender) (a) a Series A Revolving Loan Note substantially in the form of Exhibit
IV annexed hereto to evidence that Lender's Series A Revolving Loans, in the
principal amount of that Lender's Series A Revolving Commitment and with other
appropriate insertions, (b) a Series B Term Note substantially in the form of
Exhibit V annexed hereto to evidence that Lender's Series B Term Loans, in the
principal amount of that Lender's Series B Term Loan Commitment and with other
appropriate insertions, and (c) a Series C Term Note substantially in the form
of Exhibit VI annexed hereto
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<PAGE> 49
to evidence that Lender's Series C Term Loans, in the principal amount of that
Lender's Series C Term Loan Commitment and with other appropriate insertions,
and (ii) to Swing Line Lender (or to Administrative Agent for Swing Line Lender)
a Swing Line Note substantially in the form of Exhibit VII annexed hereto to
evidence Swing Line Lender's Swing Line Loans, in the principal amount of the
Swing Line Loan Commitment and with other appropriate insertions. Upon the
execution and delivery of any Incremental Facility Supplement pursuant to
subsection 2.1A(vi), upon request of any Lender, Company shall execute and
deliver to each applicable Lender (or to Administrative Agent for that Lender),
an Incremental Note to evidence that Lender's Incremental Facility Commitment
(as set forth in the Incremental Facility Supplement) and with other appropriate
insertions.
2.2 INTEREST ON THE LOANS.
(A) RATE OF INTEREST. Subject to the provisions of subsections 2.6 and
2.7, each Loan (other than Swing Line Loans) shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate or
the Adjusted Eurodollar Rate. Subject to the provisions of subsection 2.7, each
Swing Line Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Base Rate. The applicable basis for determining
the rate of interest with respect to any Loan (other than Swing Line Loans)
shall be selected by Company initially at the time a Notice of Borrowing is
given with respect to such Loan pursuant to subsection 2.1B. The basis for
determining the interest rate with respect to any Loan (other than Swing Line
Loans) may be changed from time to time pursuant to subsection 2.2D. If on any
day a Loan is outstanding with respect to which notice has not been delivered to
Administrative Agent in accordance with the terms of this Agreement specifying
the applicable basis for determining the rate of interest, then for that day
that Loan shall bear interest determined by reference to the Base Rate.
Subject to the provisions of subsections 2.2E and 2.7, the Loans shall
bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate plus
the relevant Applicable Margin (as in effect from time to time); or
(ii) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus the relevant Applicable Margin (as in effect from
time to time during the applicable Interest Period).
(B) INTEREST PERIODS. In connection with each Eurodollar Rate Loan, the
applicable Borrower may, pursuant to the applicable Notice of Borrowing or
Notice of Conversion/Continuation, as the case may be, select an interest period
(each an "INTEREST PERIOD") to be applicable to such Loan, which Interest Period
shall be, at the applicable Borrower's option, either a one-, two-, three- or
six-month period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan
shall commence on the Funding Date in respect of such Loan, in the case
of a Loan initially made as a
41
<PAGE> 50
Eurodollar Rate Loan, or on the date specified in the applicable Notice
of Conversion/Continuation, in the case of a Loan converted to a
Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation, each successive Interest Period shall
commence on the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clauses (v), (vi), (vii) and (viii) of this
subsection 2.2B, end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Loans
shall extend beyond the Maturity Date for such Loans;
(vi) no Interest Period with respect to any portion of the
Series A Revolving Loans shall extend beyond the date on which a
permanent reduction of the Series A Revolving Loan Commitments is
scheduled to occur unless the sum of (a) the aggregate principal amount
of Series A Revolving Loans that are Base Rate Loans plus (b) the
aggregate principal amount of Series A Revolving Loans that are
Eurodollar Rate Loans with Interest Periods expiring on or before such
date plus (c) the excess of the Series A Revolving Loan Commitments then
in effect over the aggregate principal amount of the Series A Revolving
Loans then outstanding equals or exceeds the permanent reduction of the
Series A Revolving Loan Commitments that is scheduled to occur on such
date;
(vii) no Interest Period with respect to any portion of the
Series B Term Loans or Series C Term Loans shall extend beyond a date on
which Company is required to make a scheduled payment of principal of
the Series B Term Loans or Series C Term loans, as the case may be,
unless the sum of (a) the aggregate principal amount of Series B Term
Loans or Series C Term Loans, as the case may be, that are Base Rate
Loans plus (b) the aggregate principal amount of Series B Term Loans or
Series C Term Loans, as the case may be, that are Eurodollar Rate Loans
with Interest Periods expiring on or before such date equals or exceeds
the principal amount required to be paid on the Series B Term Loans or
Series C Term Loans, as the case may be, on such date;
(viii) no Interest Period with respect to any portion of the
Incremental Loans, if any, shall extend beyond the date upon which a
permanent reduction of the Incremental Facility Commitments, if any, is
scheduled to occur unless the sum of (a) the aggregate principal amount
of Incremental Loans that are Base Rate Loans plus (b) the aggregate
principal amount of Incremental Loans that are Eurodollar Rate Loans
with Interest
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<PAGE> 51
Periods expiring on or before such date plus (c) the excess of the
Incremental Facility Commitment then in effect over the aggregate
principal amount of the Incremental Loans then outstanding equals or
exceeds the permanent reduction of the Incremental Facility Commitment
that is scheduled to occur on such date;
(ix) there shall be no more than ten (10) Interest Periods
outstanding at any time; and
(x) in the event a Borrower fails to specify an Interest Period
for any Eurodollar Rate Loan in the applicable Notice of Borrowing or
Notice of Conversion/Continuation, such shall be deemed to have selected
an Interest Period of one month.
(C) INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity).
(D) CONVERSION OR CONTINUATION. Subject to the provisions of subsection
2.6, each Borrower shall have the option (i) to convert at any time all or any
part of its outstanding Loans equal to $5,000,000 and integral multiples of
$1,000,000 in excess of that amount from Loans bearing interest at a rate
determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon the expiration of
any Interest Period applicable to a Eurodollar Rate Loan, to continue all or any
portion of such Loan equal to $5,000,000 and integral multiples of $1,000,000 in
excess of that amount as a Eurodollar Rate Loan; provided, however, that a
Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
expiration date of an Interest Period applicable thereto.
The applicable Borrower shall deliver a Notice of
Conversion/Continuation to Administrative Agent no later than 10:00 A.M. (New
York City time) at least one Business Day in advance of the proposed conversion
date (in the case of a conversion to a Base Rate Loan) and at least three
Business Days in advance of the proposed conversion/continuation date (in the
case of a conversion to, or a continuation of, a Eurodollar Rate Loan). A Notice
of Conversion/Continuation shall specify (i) the proposed
conversion/continuation date (which shall be a Business Day), (ii) the amount
and type of the Loan to be converted/continued, (iii) the nature of the proposed
conversion/continuation, (iv) in the case of a conversion to, or a continuation
of, a Eurodollar Rate Loan, the requested Interest Period, and (v) in the case
of a conversion to, or a continuation of, a Eurodollar Rate Loan, that no
Potential Event of Default or Event of Default has occurred and is continuing.
In lieu of delivering the above-described Notice of Conversion/Continuation,
such Borrower may give Administrative Agent telephonic notice by the required
time of any proposed conversion/continuation under this subsection 2.2D;
provided that such notice shall be promptly confirmed in writing by delivery of
a Notice of Conversion/Continuation to Administrative Agent on or before the
proposed conversion/continuation date. Upon receipt of written or telephonic
notice of any proposed conversion/continuation under this subsection 2.2D,
Administrative Agent shall promptly transmit such notice by telefacsimile or
telephone to each Lender.
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Neither Administrative Agent nor any Lender shall incur any liability to
either Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of such Borrower
or for otherwise acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to any Loans in accordance with this Agreement pursuant to any
such telephonic notice the applicable Borrower shall have effected a conversion
or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Conversion/Continuation for conversion to, or continuation of, a
Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate Determination Date, and the applicable
Borrower shall be bound to effect a conversion or continuation in accordance
therewith.
(E) DEFAULT INTEREST. Any principal payments on the Loans not paid when
due and, to the extent permitted by applicable law, any interest payments on the
Loans or any fees or other amounts owed hereunder not paid when due, in each
case whether at stated maturity, by notice of prepayment, by acceleration or
otherwise, shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable on demand at a rate which is 2% per annum in excess of the interest rate
otherwise payable under this Agreement with respect to the applicable Loans (or,
in the case of any such fees and other amounts, at a rate which is 2% per annum
in excess of the interest rate otherwise payable under this Agreement for Base
Rate Loans); provided that, in the case of Eurodollar Rate Loans, upon the
expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Loans shall thereupon become
Base Rate Loans and shall thereafter bear interest payable upon demand at a rate
which is 2% per annum in excess of the interest rate otherwise payable under
this Agreement for Base Rate Loans. Payment or acceptance of the increased rates
of interest provided for in this subsection 2.2E is not a permitted alternative
to timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of Administrative Agent or
any Lender.
(F) COMPUTATION OF INTEREST. Interest on the Loans shall be computed (i)
in the case of Base Rate Loans, on the basis of a 365-day or 366-day year, as
the case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of
a 360-day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate
Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate
Loan, as the case may be, shall be included, and the date of payment of such
Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the
date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the
case may be, shall be excluded; provided that if a Loan is repaid on the same
day on which it is made, one day's interest shall be paid on that Loan.
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2.3 FEES.
(A) COMMITMENT FEES.
(i) Company agrees to pay to Administrative Agent, for
distribution to each Lender having a Series A Revolving Loan Commitment
in proportion to that Lender's Pro Rata Share, commitment fees for the
period from and including the Closing Date to and excluding the Maturity
Date equal to the average of the daily excess of the Series A Revolving
Loan Commitments over the sum of the aggregate principal amount of
outstanding Series A Revolving Loans (but not any outstanding Swing Line
Loans) multiplied by the Applicable Commitment Fee Percentage per annum,
such commitment fees to be calculated on the basis of a 360-day year and
the actual number of days elapsed and to be payable quarterly in arrears
on March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Closing Date, and
ending on the Maturity Date.
(ii) Company agrees to pay to Administrative Agent, for
distribution to each Lender having a Series B Term Loan Commitment in
proportion to that Lender's Pro Rata Share, commitment fees for the
period from and including the Closing Date to and excluding the Maturity
Date equal to the average of the daily excess of the Series B Term Loan
Commitments over the sum of the aggregate principal amount of
outstanding Series B Term Loans multiplied by the Applicable Commitment
Fee Percentage per annum, such commitment fees to be calculated on the
basis of a 360-day year and the actual number of days elapsed and to be
payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year, commencing on the first such date to occur
after the Closing Date, and ending on the Maturity Date.
(iii) Company agrees to pay to Administrative Agent, for
distribution to each Lender having an Incremental Facility Commitment,
if any, in proportion to that Lender's Pro Rata Share, commitment fees
for the period from and including the applicable Incremental Facility
Commitment Date to and excluding the termination date for the
Incremental Facility Commitments equal to the average of the daily
excess of the Incremental Facility Commitments over the aggregate
principal amount of Incremental Loans outstanding, multiplied by (b) the
Applicable Commitment Fee Percentage per annum specified in the
Incremental Facility Supplement, such commitment fees to be calculated
on the basis of a 360-day year and the actual number of days elapsed and
to be payable quarterly in arrears on March 31, June 30, September 30
and December 31 of each year, commencing on the first such date to occur
after the Incremental Facility Commitment Date, and ending on the date
of termination of the Incremental Facility Commitments.
(B) OTHER FEES. Borrowers agree to pay to Arranger and Administrative
Agent such other fees in the amounts and at the times separately agreed upon
between Company, Arranger and Administrative Agent.
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2.4 PREPAYMENTS AND REDUCTIONS IN COMMITMENTS; GENERAL PROVISIONS REGARDING
PAYMENTS; APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER SUBSIDIARY
GUARANTY.
(A) SCHEDULED REDUCTIONS OF COMMITMENTS AND REPAYMENTS OF LOANS.
(i) Scheduled Reductions of Series A Revolving Loan Commitments.
The Series A Revolving Loan Commitments shall be permanently reduced on
the dates and in the amounts set forth below:
<TABLE>
<CAPTION>
===============================================================
SCHEDULED REDUCTION
OF SERIES A REVOLVING
DATE LOAN COMMITMENTS
- ---------------------------------------------------------------
<S> <C>
November 11, 2005 $12,500,000
- ---------------------------------------------------------------
February 11, 2006 $22,500,000
===============================================================
</TABLE>
; provided that the scheduled reductions of the Series A Revolving Loan
Commitments set forth above shall be reduced in connection with any
voluntary or mandatory reductions of the Series A Revolving Loan
Commitments in accordance with subsection 2.4B(iv).
(ii) Scheduled Payments of Series B Term Loans. Company shall
make payments of principal on the Series B Term Loans in installments on
the dates and in the amounts set forth below:
<TABLE>
<CAPTION>
============================================================
SCHEDULED REPAYMENT OF
DATE SERIES B TERM LOANS
- ------------------------------------------------------------
<S> <C>
November 11, 2003 $4,500,000
- ------------------------------------------------------------
February 11, 2004 $4,500,000
- ------------------------------------------------------------
May 11, 2004 $4,500,000
- ------------------------------------------------------------
August 11, 2004 $4,500,000
- ------------------------------------------------------------
November 11, 2004 $6,750,000
- ------------------------------------------------------------
February 11, 2005 $6,750,000
- ------------------------------------------------------------
May 11, 2005 $6,750,000
- ------------------------------------------------------------
August 11, 2005 $6,750,000
- ------------------------------------------------------------
November 11, 2005 $10,000,000
============================================================
</TABLE>
; provided that each scheduled installment of principal of the Series B
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory repayments of the Series B Term Loans in
accordance with subsection 2.4B(iv).
46
<PAGE> 55
(iii) Scheduled Payments of Series C Term Loans. Company shall
make payments of principal on the Series C Term Loans in installments on
the dates and in the amounts set forth below:
<TABLE>
<CAPTION>
================================================================
SCHEDULED REPAYMENT OF
DATE SERIES C TERM LOANS
- ----------------------------------------------------------------
<S> <C>
November 11, 2003 $275,000
- ----------------------------------------------------------------
February 11, 2004 $275,000
- ----------------------------------------------------------------
May 11, 2004 $275,000
- ----------------------------------------------------------------
August 11, 2004 $275,000
- ----------------------------------------------------------------
November 11, 2004 $275,000
- ----------------------------------------------------------------
February 11, 2005 $275,000
- ----------------------------------------------------------------
May 11, 2005 $275,000
- ----------------------------------------------------------------
August 11, 2005 $275,000
- ----------------------------------------------------------------
November 11, 2005 $275,000
- ----------------------------------------------------------------
February 11, 2006 $275,000
- ----------------------------------------------------------------
May 11, 2006 $275,000
- ----------------------------------------------------------------
August 11, 2006 $106,975,000
================================================================
</TABLE>
; provided that each scheduled installment of principal of the Series C
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory repayments of the Series C Term Loans in
accordance with subsection 2.4B(iv).
(iv) Scheduled Reductions of Incremental Facility Commitments
and Repayments of Incremental Loans . The Incremental Facility
Commitments and Incremental Loans, if any, shall be permanently reduced
or repaid as provided in the Incremental Facility Supplement.
(B) PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN COMMITMENTS.
(i) Voluntary Prepayments. Borrowers may, upon not less than one
Business Day's prior written or telephonic notice, in the case of Base
Rate Loans, and three Business Days' prior written or telephonic notice,
in the case of Eurodollar Rate Loans, in each case given to
Administrative Agent by 12:00 Noon (New York City time) on the date
required and, if given by telephone, promptly confirmed in writing to
Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or
telephone to each Lender), at any time and from time to time prepay any
Loans on any Business Day in whole or in part in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess of
that amount; provided, however, that with respect to any Eurodollar Rate
Loan prepaid prior to the expiration of the Interest Period applicable
thereto, Borrowers shall pay all amounts payable pursuant to subsection
2.6D. Notice of prepayment having been given as
47
<PAGE> 56
aforesaid, the principal amount of the Loans specified in such notice
shall become due and payable on the prepayment date specified therein.
Any such voluntary prepayment shall be applied as specified in
subsection 2.4B(iv).
(ii) Voluntary Reductions of Commitments. Borrowers may, upon
not less than three Business Days' prior written or telephonic notice
confirmed in writing to Administrative Agent (which original written or
telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from time to
time terminate in whole or permanently reduce in part, without premium
or penalty, (a) the Series A Revolving Loan Commitments in an amount up
to the amount by which the Series A Revolving Loan Commitments exceed
the Total Utilization of Series A Revolving Loan Commitments at the time
of such proposed termination or reduction, (b) the Series B Term Loan
Commitments in an amount up to the amount by which the Series B Term
Loan Commitments exceed the Series B Term Loans outstanding at the time
of such proposed termination or reduction or (c) the Incremental
Facility Commitments in an amount up to the amount by which the
Incremental Facility Commitments exceed the aggregate principal amount
of all outstanding Incremental Loans at the time of such proposed
termination or reduction; provided that any such partial reduction of
the Series A Revolving Loan Commitments, Series B Term Loan Commitments
or Incremental Facility Commitments shall be in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess of
that amount. Borrower's notice to Administrative Agent shall designate
the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such termination
or reduction of the Series A Revolving Loan Commitments, Series B Term
Loan Commitments or Incremental Facility Commitments shall be effective
on the date specified in Borrower's notice and shall reduce the Series A
Revolving Loan Commitments, Series B Term Loan Commitment or Incremental
Facility Commitment of each Lender proportionately to its Pro Rata
Share. Any such voluntary reduction of the Series A Revolving Loan
Commitments, Series B Term Loan Commitments or Incremental Facility
Commitments shall be applied as specified in subsection 2.4B(iv).
(iii) Mandatory Prepayments and Mandatory Reductions of
Commitments. The Loans shall be prepaid and/or the Series A Revolving
Loan Commitments, Series B Term Loan Commitments and the Incremental
Facility Commitments, if any, shall be permanently reduced in the
amounts and under the circumstances set forth below, all such
prepayments and/or reductions to be applied as set forth below or as
more specifically provided in subsection 2.4B(iv):
(a) Prepayments and Reductions From Net Asset Sale
Proceeds. No later than the first Business Day following the
date of receipt by Company or any of its Restricted Subsidiaries
of any Net Asset Sale Proceeds in respect of any Asset Sale
(excluding (1) Asset Sales relating to dispositions of assets
pursuant to Use Agreements to the extent any initial payment
thereunder is less than $5,000,000 and (2) ACSI Network Sales),
Company or Finance Sub, as applicable, shall prepay the Loans,
and the Series A Revolving Loan Commitments, the Series B Term
Loan Commitments and the Incremental Facility Commitments, if
any, shall be permanently reduced in an aggregate
48
<PAGE> 57
amount equal to such Net Asset Sale Proceeds. Notwithstanding
the foregoing, as long as no Event of Default or Potential
Event of Default shall have occurred and be continuing, Company
or Finance Sub, as applicable, shall not be required to make
any mandatory prepayment pursuant to this subsection
2.4B(iii)(a) to the extent the Net Asset Sale Proceeds are
reinvested in Telecommunications Assets used by Company and its
Restricted Subsidiaries in the conduct of its business within
270 days from the date of receipt thereof. If upon any Asset
Sale, Company elects to reinvest the Net Asset Sale Proceeds as
permitted under this subsection 2.4B(iii)(a), (1) no later than
the first Business Day following the consummation of such Asset
Sale, Company shall deliver an Officers' Certificate to
Administrative Agent demonstrating the derivation of the Net
Asset Sale Proceeds of such Asset Sale from the gross sales
prices thereof and certifying the portion of such proceeds
which Company elects to reinvest in Telecommunications Assets
and certifying that no Event of Default or Potential Event of
Default shall have occurred and be continuing and (2) upon the
expiration of 270 days after the date of receipt of the Net
Asset Sale Proceeds certified as being scheduled for
reinvestment, Company shall deliver to Administrative Agent an
Officers' Certificate indicating the amount of Net Asset Sale
Proceeds reinvested as of such date, the assets in which such
Net Asset Sale Proceeds have been reinvested, and the amount of
any remaining Net Asset Sale Proceeds which shall be applied to
prepay the Loans and/or reduce the Commitments as set forth in
this subsection 2.4B(iii)(a).
(b) Prepayments and Reductions from Net
Insurance/Condemnation Proceeds. No later than the second
Business Day following the date of receipt by Administrative
Agent or by Company or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds that are required to be applied
to prepay the Loans and reduce the Series A Revolving Loan
Commitments, the Series B Term Loan Commitments and the
Incremental Facility Commitments, if any, pursuant to the
provisions of subsection 5.4C, Company or Finance Sub, as
applicable, shall prepay the Loans and the Series A Revolving
Loan Commitments, the Series B Term Loan Commitments and the
Incremental Facility Commitments, if any, shall be permanently
reduced in an aggregate amount equal to the amount of such Net
Insurance/Condemnation Proceeds.
(c) Prepayments and Reductions from Consolidated Excess
Cash Flow. In the event that there shall be Consolidated Excess
Cash Flow for any Fiscal Year (commencing with Fiscal Year
2002), Company or Finance Sub, as applicable, shall, no later
than 100 days after the end of such Fiscal Year, prepay the
Loans and/or the Series A Revolving Loan Commitments, the Series
B Term Loan Commitments and the Incremental Facility
Commitments, if any, shall be permanently reduced in an
aggregate amount equal to 75% of such Consolidated Excess Cash
Flow.
(d) Prepayments Due to Restrictions of Series A
Revolving Loan Commitments and Incremental Facility Commitments.
Finance Sub shall from time to time prepay first the Swing Line
Loans and second the Series A Revolving
49
<PAGE> 58
Loans to the extent necessary (1) so that the Total Utilization
of Series A Revolving Loan Commitments shall not at any time
exceed the Series A Revolving Loan Commitments then in effect
and (2) to give effect to the limitations set forth in
subsections 2.1A(i), 2.1A(iv) and the second paragraph of
2.1A(v). Company shall from time to time prepay the Series B
Term Loans, Series C Term Loans, and Incremental Loans to the
extent necessary to give effect to the limitations set forth in
subsection 2.1A(iv) and the second paragraph of subsection
2.1A(vi).
(e) Prepayments Due to Payments of Master Note. Company
shall, from time to time, prepay the Series B Term Loans, the
Series C Term Loans and Incremental Loans, if any, to the extent
necessary so that the aggregate outstanding amount of Series B
Term Loans, the Series C Term Loans and Incremental Loans, if
any, shall not at any time exceed the aggregate amount
outstanding under the Master Note.
(f) Calculations of Net Proceeds Amounts, Additional
Prepayments and Reductions Based on Subsequent Calculations.
Concurrently with any prepayment of the Loans and reductions of
the Series A Revolving Loan Commitments, the Series B Term Loan
Commitments and the Incremental Facility Commitments pursuant to
subsections 2.4B(iii)(a)-(c), Company shall deliver to
Administrative Agent an Officers' Certificate demonstrating the
calculation of the amount (the "NET PROCEEDS AMOUNT") of the
applicable Net Asset Sale Proceeds or Net Insurance/Condemnation
Proceeds (as such terms are defined in subsections 2.4B(iii)(a)
and (b) respectively) or the applicable Consolidated Excess Cash
Flow, as the case may be, that gave rise to such prepayment
and/or reduction. In the event that Company shall subsequently
determine that the actual Net Proceeds Amount was greater than
the amount set forth in such Officers' Certificate, Company or
Finance Sub, as applicable, shall promptly make an additional
prepayment of the Loans (and/or, if applicable, the Series A
Revolving Loan Commitments, the Series B Term Loan Commitments
and the Incremental Facility Commitments, if any, shall be
permanently reduced) in an amount equal to the amount of such
excess, and Company shall concurrently therewith deliver to
Administrative Agent an Officers' Certificate demonstrating the
derivation of the additional Net Proceeds Amount resulting in
such excess.
(iv) Application of Prepayments and Reductions of Commitments.
(a) Application of Voluntary Prepayments by Type of
Loans and Order of Maturity. Any voluntary prepayments pursuant
to subsection 2.4B(i) shall be applied as specified by the
Borrower in the applicable notice of prepayment; provided that
in the event the Borrower fails to specify the Loans to which
any such prepayment shall be applied, such prepayment shall be
applied (1) if made by Finance Sub, first to repay outstanding
Swing Line Loans to the full extent thereof, and second to repay
outstanding Series A Revolving Loans, if any, to the full extent
thereof, and (2) if made by Company, first to repay outstanding
Series B Term Loans, Series C Term Loans and Incremental Loans,
if
50
<PAGE> 59
any, on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) to the full extent
thereof and then to reduce scheduled reductions of the
Commitments or installments of principal set forth in
subsections 2.4A(ii), 2.4A(iii) and 2.4A(iv) on a pro rata
basis.
(b) Application of Mandatory Prepayments by Type of
Loans. Any amount (the "APPLIED AMOUNT") required to be applied
as a mandatory prepayment of the Loans and/or a reduction of the
Commitments pursuant to subsections 2.4B(iii)(a)-(c) shall be
applied first, to prepay the outstanding Series B Term Loans,
Series C Term Loans and Incremental Loans, if any, on a pro rata
basis (in accordance with the respective outstanding principal
amounts thereof) and shall be applied to reduce scheduled
installments of principal on the Series B Term Loans, Series C
Term Loans and Incremental Loans, if any, pursuant to
subsections 2.4A(ii), (iii) and (iv) in inverse order of
maturity; second, to the extent of any remaining portion of the
Applied Amount, to prepay Swing Line Loans to the full extent
thereof and to permanently reduce the Series A Revolving Loan
Commitments by the amount of such prepayment; third, to the
extent of any remaining portion of the Applied Amount, to prepay
Series A Revolving Loans to the full extent thereof and to
further permanently reduce the Series A Revolving Loan
Commitments by the amount of such prepayment; and fourth, to the
extent of any remaining portion of the Applied Amount, to
further permanently reduce first, the Series B Loan Commitments
and Incremental Facility Commitments, if any, on a pro rata
basis (in accordance with the respective outstanding principal
amounts thereof) to the full extent thereof and second, to
further permanently reduce the Series A Revolving Loan
Commitments to the full extent thereof.
(c) Application of Prepayments to Base Rate Loans and
Eurodollar Rate Loans. Any prepayment of Loans shall be applied
first to Base Rate Loans to the full extent thereof before
application to Eurodollar Rate Loans, in each case in a manner
which minimizes the amount of any payments required to be made
pursuant to subsection 2.6D.
(d) Application of Unscheduled Reductions of
Commitments. Any voluntary reduction of the Series A Revolving
Loan Commitments, Series B Term Loan Commitments or Incremental
Facility Commitments, if any, pursuant to subsection 2.4B(ii)
shall be applied to reduce the scheduled reductions of the
Series A Revolving Loan Commitments set forth in subsection
2.4A(i), Series B Term Loan repayments set forth in 2.4A(ii) or
any scheduled reductions of the Incremental Facility Commitments
set forth in the Incremental Facility Supplement on a pro rata
basis. Any mandatory reduction of Series A Revolving Loan
Commitments, Series B Term Loan Commitments or Incremental
Facility Commitments, if any, pursuant to subsection 2.4B(iii)
shall be applied to reduce the scheduled reductions of the
Series A Revolving Loan Commitments or scheduled installments of
principal on the Series B Term Loan Loans set forth in
subsection 2.4A(i) and 2.4(ii) or any scheduled reductions of
the Incremental Facility Commitments set forth in the
Incremental Facility Supplement in inverse order of maturity.
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<PAGE> 60
(v) Prepayment Fees. If any portion of the Series C Term Loans
is prepaid on or prior to the second anniversary of the Closing Date,
Company shall pay to Administrative Agent, for distribution to Lenders
having Series C Term Loans so prepaid in accordance with their Pro Rata
Shares, a fee equal to (1) 3.00% of the principal amount of Series C
Term Loans so prepaid during the period commencing on the Closing Date
and ending on the day prior to the first anniversary of the Closing Date
and (2) 2.00% of the principal amount of Series C Term Loans so prepaid
during the period commencing on the first anniversary of the Closing
Date and ending on the second anniversary of the Closing Date. Upon any
prepayment of any Incremental Facility Loans, Company shall pay any
applicable prepayment fees set forth in the Incremental Facility
Supplement.
(C) GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. All payments by each Borrower of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in Dollars in same day funds, without defense,
setoff or counterclaim, free of any restriction or condition, and
delivered to Administrative Agent not later than 12:00 Noon (New York
City time) on the date due at the Funding and Payment Office for the
account of Lenders; funds received by Administrative Agent after that
time on such due date shall be deemed to have been paid by such Borrower
on the next succeeding Business Day.
(ii) Application of Payments to Principal and Interest. All
payments in respect of the principal amount of any Loan shall include
payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments shall be applied to the payment of
interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and
interest payments in respect of Loans shall be apportioned among all
outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Administrative
Agent shall promptly distribute to each Lender, at its primary address
set forth below its name on the appropriate signature page hereof or at
such other address as such Lender may request, its Pro Rata Share of all
such payments received by Administrative Agent and the commitment fees
of such Lender when received by Administrative Agent pursuant to
subsection 2.3. Notwithstanding the foregoing provisions of this
subsection 2.4C(iii), if, pursuant to the provisions of subsection 2.6C,
any Notice of Conversion/Continuation is withdrawn as to any Affected
Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall
give effect thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may
be.
52
<PAGE> 61
(v) Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon of all Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has
been paid; provided that the failure to make (or any error in the making
of) a notation of any Loan made under such Note shall not limit or
otherwise affect the obligations of Borrowers hereunder or under such
Note with respect to any Loan or any payments of principal or interest
on such Note.
(D) APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER SUBSIDIARY
GUARANTY.
(i) Application of Proceeds of Collateral. Except as provided in
subsection 2.4B(iii)(a) with respect to prepayments from Net Asset Sale
Proceeds, all proceeds received by Administrative Agent in respect of
any sale of, collection from, or other realization upon all or any part
of the Collateral under any Collateral Document may, in the discretion
of Administrative Agent, be held by Administrative Agent as Collateral
for, and/or (then or at any time thereafter) applied in full or in part
by Administrative Agent against, the applicable Secured Obligations (as
defined in such Collateral Document) in the following order of priority:
(a) To the payment of all costs and expenses of such
sale, collection or other realization, including reasonable
compensation to Administrative Agent and its agents and counsel,
and all other expenses, liabilities and advances made or
incurred by Administrative Agent in connection therewith, and
all amounts for which Administrative Agent is entitled to
indemnification under such Collateral Document and all advances
made by Administrative Agent thereunder for the account of the
applicable Loan Party, and to the payment of all costs and
expenses paid or incurred by Administrative Agent in connection
with the exercise of any right or remedy under such Collateral
Document, all in accordance with the terms of this Agreement and
such Collateral Document;
(b) thereafter, to the extent of any excess such
proceeds, to the payment of all other such Secured Obligations
for the ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such
proceeds, to the payment to or upon the order of such Loan Party
or to whosoever may be lawfully entitled to receive the same or
as a court of competent jurisdiction may direct.
(ii) Application of Payments Under Subsidiary Guaranty. All
payments received by Administrative Agent under the Subsidiary Guaranty
shall be applied promptly from time to time by Administrative Agent in
the following order of priority:
(a) To the payment of the costs and expenses of any
collection or other realization under the Subsidiary Guaranty,
including reasonable compensation to Administrative Agent and
its agents and counsel, and all expenses, liabilities and
53
<PAGE> 62
advances made or incurred by Administrative Agent in connection
therewith, all curvy in accordance with the terms of this
Agreement and the Subsidiary Guaranty;
(b) thereafter, to the extent of any excess such
payments, to the payment of all other Guarantied Obligations (as
defined in the Subsidiary Guaranty) for the ratable benefit of
the holders thereof; and
(c) thereafter, to the extent of any excess such
payments, to the payment to the applicable Subsidiary Guarantor
or to whosoever may be lawfully entitled to receive the same or
as a court of competent jurisdiction may direct.
(iii) Ratable Sharing of Proceeds of Collateral and Subsidiary
Guaranty. Any and all amounts received by Administrative Agent in
connection with the enforcement of any of the Collateral Documents or
the Subsidiary Guaranty or in connection with a distribution in a
bankruptcy, insolvency or similar proceeding to be applied against any
of the Obligations hereunder shall be shared ratably by all Lenders
hereunder in accordance with their Pro Rata Shares (as determined
pursuant to clause (v) of the definition thereof) (provided however,
that for purposes of such calculation, the Series B Term Loan Exposure
and the Incremental Loan Exposure of each Lender shall be determined in
accordance with clauses (ii) and (iv), respectively, whether or not the
Series B Term Loan Commitments or the Incremental Facility Commitments
have terminated), irrespective of whether the Obligations of all Lenders
or only the Obligations of Lenders having outstanding Series A Revolving
Loans, Series B Term Loans, Series C Term Loans or Incremental Loans are
secured by the Collateral with respect to which such amounts are
received or guaranteed by the Subsidiary Guaranty.
2.5 USE OF PROCEEDS.
(A) SERIES A REVOLVING LOANS. The proceeds of the Series A Revolving
Loans shall be applied by Finance Sub for working capital and for other general
corporate purposes, including the financing of capital expenditures from time to
time.
(B) SERIES B TERM LOANS, SERIES C TERM LOANS AND INCREMENTAL LOANS. The
proceeds of the Series B Term Loans, Series C Term Loans and Incremental Loans,
if any, shall be applied by Company solely to finance the acquisition,
construction or improvement of Telecommunications Assets of Company and its
Restricted Subsidiaries; provided that Company shall use all proceeds of any
Series B Term Loans, Series C Term Loans and Incremental Loans, if any, to make
intercompany loans to Finance Sub pursuant to the Master Note which shall be
secured by the Finance Sub Pledge and Security Agreement, and Finance Sub shall
in turn make intercompany loans of such proceeds to the applicable Restricted
Subsidiary of Finance Sub pursuant to the Intercompany Purchase Money Note which
shall be secured by the Intercompany Pledge and Security Agreement.
(C) MARGIN REGULATIONS. No portion of the proceeds of any borrowing
under this Agreement shall be used by Company or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation U, Regulation T or
54
<PAGE> 63
Regulation X of the Board of Governors of the Federal Reserve System or any
other regulation of such Board or to violate the Exchange Act, in each case as
in effect on the date or dates of such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to Eurodollar Rate Loans as
to the matters covered:
(A) DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 10:00 A.M. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Company or
Finance Sub, as applicable, and each Lender.
(B) INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the interbank Eurodollar market adequate and fair means
do not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by telefacsimile or by telephone confirmed
in writing) to Company or Finance Sub, as applicable, and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to,
Eurodollar Rate Loans until such time as Administrative Agent notifies Company
or Finance Sub, as applicable, and Lenders that the circumstances giving rise to
such notice no longer exist and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by either Borrower with respect to the Loans in
respect of which such determination was made shall be deemed to be rescinded by
such Borrower.
(C) ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the
event that on any date any Lender shall have determined (which determination
shall be final and conclusive and binding upon all parties hereto but shall be
made only after consultation with Company and Administrative Agent) that the
making, maintaining or continuation of its Eurodollar Rate Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not be
unlawful) or (ii) has become impracticable, or would cause such Lender material
hardship, as a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the interbank Eurodollar market,
then, and in any such event, such Lender shall be an "AFFECTED LENDER" and it
shall on that day give notice (by telefacsimile or by telephone confirmed in
writing) to Borrowers and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other Lender).
Thereafter (a) the obligation of the Affected Lender to make Loans as, or to
convert Loans to, Eurodollar Rate Loans shall be suspended until such notice
shall be withdrawn by the Affected Lender, (b) to the extent such determination
by the Affected Lender relates to a
55
<PAGE> 64
Eurodollar Rate Loan then being requested by a Borrower pursuant to a Notice of
Borrowing or a Notice of Conversion/Continuation, the Affected Lender shall make
such Loan as (or convert such Loan to, as the case may be) a Base Rate Loan, (c)
the Affected Lender's obligation to maintain its outstanding Eurodollar Rate
Loans (the "AFFECTED LOANS") shall be terminated at the earlier to occur of the
expiration of the Interest Period then in effect with respect to the Affected
Loans or when required by law, and (d) the Affected Loans shall automatically
convert into Base Rate Loans on the date of such termination. Notwithstanding
the foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by a Borrower
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, such
Borrower shall have the option, subject to the provisions of subsection 2.6D, to
rescind such Notice of Borrowing or Notice of Conversion/Continuation as to all
Lenders by giving notice (by telefacsimile or by telephone confirmed in writing)
to Administrative Agent of such rescission on the date on which the Affected
Lender gives notice of its determination as described above (which notice of
rescission Administrative Agent shall promptly transmit to each other Lender).
Except as provided in the immediately preceding sentence, nothing in this
subsection 2.6C shall affect the obligation of any Lender other than an Affected
Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate
Loans in accordance with the terms of this Agreement.
(D) COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Each Borrower shall compensate each Lender, upon written request by that Lender
(which request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including any interest paid by that
Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate
Loans and any loss, expense or liability sustained by that Lender in connection
with the liquidation or re-employment of such funds) which that Lender may
sustain: (i) if for any reason (other than a default by that Lender) a borrowing
of any Eurodollar Rate Loan does not occur on a date specified therefor in a
Notice of Borrowing or a telephonic request for borrowing, or a conversion to or
continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment (including any prepayment
pursuant to subsection 2.4B(i)) or other principal payment or any conversion of
any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan, (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by such Borrower, or (iv) as a consequence of any other default
by such Borrower in the repayment of its Eurodollar Rate Loans when required by
the terms of this Agreement.
(E) BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
(F) ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had actually funded each of
its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of
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such Eurodollar deposit from an offshore office of that Lender to a domestic
office of that Lender in the United States of America; provided, however, that
each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit
and the foregoing assumptions shall be utilized only for the purposes of
calculating amounts payable under this subsection 2.6 and under subsection 2.7A.
(G) EURODOLLAR RATE LOANS AFTER DEFAULT. After the occurrence of and
during the continuation of a Potential Event of Default or an Event of Default
and upon notice to such effect to Borrowers from the Administrative Agent or
Requisite Lenders which notice may be delivered after delivery of a Notice of
Borrowing or Notice of Conversion/Continuation but prior to the funding or
continuation or conversion of Loans pursuant thereto, (i) no Borrower may elect
to have a Loan be made or maintained as, or converted to, a Eurodollar Rate Loan
after the expiration of any Interest Period then in effect for that Loan and
(ii) subject to the provisions of subsection 2.6D, any Notice of Borrowing or
Notice of Conversion/Continuation given by a Borrower with respect to a
requested borrowing or conversion/continuation that has not yet occurred shall
be deemed to be rescinded by such Borrower.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
(A) COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of subsection 2.7B (which shall be controlling with respect to the
matters covered thereby), in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to
any additional Tax (other than any Tax on the overall net income of such
Lender) with respect to this Agreement or any of its obligations
hereunder or any payments to such Lender (or its applicable lending
office) of principal, interest, fees or any other amount payable
hereunder;
(ii) imposes, modifies or holds applicable any reserve
(including any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with respect to
Eurodollar Rate Loans that are reflected in the definition of Adjusted
Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a
Tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations hereunder or the interbank Eurodollar market;
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and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, the applicable Borrower shall promptly
pay to such Lender, upon receipt of the statement referred to in the next
sentence, such additional amount or amounts (in the form of an increased rate
of, or a different method of calculating, interest or otherwise as such Lender
in its sole discretion shall determine) as may be necessary to compensate such
Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Lender shall deliver as soon as reasonably
practicable to each Borrower (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender by such Borrower under this subsection
2.7A, which statement shall be conclusive and binding upon all parties hereto
absent manifest error.
(B) WITHHOLDING OF TAXES.
(i) Payments to Be Free and Clear. All sums payable by each
Borrower under this Agreement and the other Loan Documents shall (except
to the extent required by law) be paid free and clear of, and without
any deduction or withholding on account of, any Tax (other than a Tax on
the overall net income of any Lender) imposed, levied, collected,
withheld or assessed by or within the United States of America or any
political subdivision in or of the United States of America or any other
jurisdiction from or to which a payment is made by or on behalf of
Company or by any federation or organization of which the United States
of America or any such jurisdiction is a member at the time of payment.
(ii) Grossing-up of Payments. If a Borrower or any other Person
is required by law to make any deduction or withholding on account of
any such Tax from any sum paid or payable by such Borrower to
Administrative Agent or any Lender under any of the Loan Documents:
(a) Such Borrower shall notify Administrative Agent of
any such requirement or any change in any such requirement as
soon as Company becomes aware of it;
(b) Such Borrower shall pay any such Tax before the date
on which penalties attach thereto, such payment to be made (if
the liability to pay is imposed on such Borrower) for its own
account or (if that liability is imposed on Administrative Agent
or such Lender, as the case may be) on behalf of and in the name
of Administrative Agent or such Lender;
(c) the sum payable by such Borrower in respect of which
the relevant deduction, withholding or payment is required shall
be increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, Administrative
Agent or such Lender, as the case may be, receives on the due
date a net sum equal to what it would have received had no such
deduction, withholding or payment been required or made; and
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(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within
30 days after the due date of payment of any Tax which it is
required by clause (b) above to pay, such Borrower shall deliver
to Administrative Agent evidence satisfactory to the other
affected parties of such deduction, withholding or payment and
of the remittance thereof to the relevant taxing or other
authority;
provided that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the date hereof (in the case of each Lender listed on the
signature pages hereof) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each other
Lender) in any such requirement for a deduction, withholding or payment
as is mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date of
this Agreement or at the date of such Assignment Agreement, as the case
may be, in respect of payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is not a U.S. person as defined in
Section 7701(a)(30) of the Code (for purposes of this subsection
2.7B(iii), a "NON-US LENDER") shall deliver to Administrative
Agent for transmission to Borrowers, on or prior to the Closing
Date (in the case of each Lender listed on the signature pages
hereof) or on or prior to the date of the Assignment Agreement
pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the
determination of Borrowers or Administrative Agent (each in the
reasonable exercise of its discretion), (1) two original copies
of Internal Revenue Service Form 1001 or 4224 (or any successor
forms), properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations
issued thereunder to establish that such Lender is exempt from
United States federal income tax with respect to any payments to
such Lender of principal, interest, fees or other amounts
payable under any of the Loan Documents or (2) if such Lender is
not a "bank" or other Person described in Section 881(c)(3) of
the Internal Revenue Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224 pursuant to clause (1) above,
a Certificate re Non-Bank Status together with two original
copies of Internal Revenue Service Form W-8 (or any successor
form), properly completed and duly executed by such Lender,
together with any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations
issued thereunder to establish that such Lender is not subject
to deduction or withholding of United States federal income tax
with respect to any payments to such Lender of interest payable
under any of the Loan Documents.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters pursuant to subsection
2.7B(iii)(a) hereby agrees, from time to time after the initial
delivery by such Lender of such forms, certificates or other
evidence,
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whenever a lapse in time or change in circumstances renders such
forms, certificates or other evidence obsolete or inaccurate in
any material respect, that such Lender shall promptly (1)
deliver to Administrative Agent for transmission to Borrowers
two new original copies of Internal Revenue Service Form 1001 or
4224, or a Certificate re Non-Bank Status and two original
copies of Internal Revenue Service Form W-8, as the case may be,
properly completed and duly executed by such Lender, together
with any other certificate or statement of exemption required in
order to confirm or establish that such Lender is not subject to
deduction or withholding of United States federal income tax
with respect to payments to such Lender under the Loan Documents
or (2) notify Administrative Agent and Borrowers of its
inability to deliver any such forms, certificates or other
evidence.
(c) Borrowers shall not be required to pay any
additional amount to any Non-US Lender under clause (c) of
subsection 2.7B(ii) if such Lender shall have failed to satisfy
the requirements of clause (a) or (b)(1) of this subsection
2.7B(iii); provided that if such Lender shall have satisfied the
requirements of subsection 2.7B(iii)(a) on the Closing Date (in
the case of each Lender listed on the signature pages hereof) or
on the date of the Assignment Agreement pursuant to which it
became a Lender (in the case of each other Lender), nothing in
this subsection 2.7B(iii)(c) shall relieve Borrowers of its
obligation to pay any additional amounts pursuant to clause (c)
of subsection 2.7B(ii) in the event that, as a result of any
change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such
Lender is not subject to withholding as described in subsection
2.7B(iii)(a).
(iv) Payment of Refunds. If the Administrative Agent or any
Lender receives a refund in respect of any Taxes paid by a Borrower
pursuant to Section 2.7(B)(ii)(b), which in the reasonable judgment of
such Lender is allocable to such payment, it shall promptly pay such
refund, together with any other amounts paid by the relevant Borrower in
connection with such Taxes, to such Borrower, net of all out-of-pocket
expenses of such Lender incurred in obtaining such refund, provided,
however, that such Borrower agrees to promptly return such refund to the
Administrative Agent or the applicable Lender, as the case may be, if it
receives notice from the Administrative Agent or applicable Lender that
such Administrative Agent or Lender is required to repay such refund.
(C) CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined
that the adoption, effectiveness, phase-in or applicability after the date
hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any governmental authority, central bank, the National
Association of Insurance Commissioners, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank, the National Association of Insurance
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Commissioners or comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of, or with reference to, such Lender's Loans or
Commitments or participations therein or other obligations hereunder with
respect to the Loans to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy) by
an amount which such Lender deems material, then from time to time, within five
Business Days after receipt by Borrowers from such Lender of the statement
referred to in the next sentence, the applicable Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction. Such Lender
shall deliver to Borrowers (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis of the calculation of
such additional amounts, which statement shall be conclusive and binding upon
all parties hereto absent manifest error; provided that Borrowers shall not be
required to compensate a Lender pursuant to this subsection 2.7C for any amounts
incurred more than six months prior to the date that such Lender notifies
Borrowers of such Lender's intention to claim compensation therefor, except
that, if the circumstances giving rise to such claim have a retroactive effect,
then such six-month period shall be extended to include the period of such
retroactive effect.
(D) SUBSTITUTE LENDERS. In the event Company is required under the
provisions of this subsection 2.7 to make payments in a material amount to any
Lender or in the event any Lender fails to lend to Borrowers in accordance with
this Agreement, Borrowers may, so long as no Event of Default or Potential Event
of Default shall have occurred and be continuing, elect to terminate such Lender
as a party to this Agreement; provided that, concurrently with such termination,
(i) each Borrower shall pay that Lender all principal, interest and fees and
other amounts (including without limitation, amounts, if any, owed under this
subsection 2.7) owed to such Lender through such date of termination, (ii)
another financial institution satisfactory to Administrative Agent (or if
Administrative Agent is also the Lender to be terminated, the successor
Administrative Agent) shall agree, as of such date, to become a Lender for all
purposes under this Agreement (whether by assignment or amendment) and to assume
all obligations of the Lender to be terminated as of such date, and (iii) all
documents and supporting materials necessary, in the judgment of Administrative
Agent (or if Administrative Agent is also the Lender to be terminated, the
successor Administrative Agent), to evidence the substitution of such Lender
shall have been received and approved by Administrative Agent as of such date.
2.8 OBLIGATION OF LENDERS TO MITIGATE.
Each Lender agrees that, as promptly as practicable after the officer of
such Lender responsible for administering the Loans of such Lender becomes aware
of the occurrence of an event or the existence of a condition that would cause
such Lender to become an Affected Lender or that would entitle such Lender to
receive payments under subsection 2.7, it will, to the extent not inconsistent
with the internal policies of such Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans of such Lender through another
lending office of such Lender, or (ii) take such other measures as such Lender
may deem reasonable, if as a result thereof the circumstances which would cause
such Lender to be an Affected Lender
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would cease to exist or the additional amounts which would otherwise be required
to be paid to such Lender pursuant to subsection 2.7 would be materially reduced
and if, as determined by such Lender in its sole discretion, the making,
issuing, funding or maintaining of such Commitments or Loans through such other
lending office or in accordance with such other measures, as the case may be,
would not otherwise materially adversely affect such Commitments or Loans or the
interests of such Lender; provided that such Lender will not be obligated to
utilize such other lending office pursuant to this subsection 2.8 unless Company
agrees to pay all incremental expenses incurred by such Lender as a result of
utilizing such other lending office as described in clause (i) above. A
certificate as to the amount of any such expenses payable by Company pursuant to
this subsection 2.8 (setting forth in reasonable detail the basis for requesting
such amount) submitted by such Lender to Company (with a copy to Administrative
Agent) shall be conclusive absent manifest error.
SECTION 3.
CONDITIONS TO LOANS
The obligations of Lenders to make Loans hereunder are subject to the
satisfaction of the following conditions.
3.1 CONDITIONS TO SERIES C TERM LOANS.
The obligations of Lenders to make the Series C Term Loans on the
Closing Date are, in addition to the conditions precedent specified in
subsection 3.2, subject to prior or concurrent satisfaction of the following
conditions:
(A) LOAN PARTY DOCUMENTS. On or before the Closing Date, Borrowers
shall, and shall cause each other Loan Party to, deliver to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following with respect
to each Borrower or such Loan Party, as the case may be, each, unless otherwise
noted, dated the Closing Date:
(i) Copies of the Organizational Documents of such Person,
certified by the Secretary of State of its jurisdiction of organization
if such certification is generally available and in each other case, by
its secretary or assistant secretary;
(ii) To the extent generally available, a good standing
certificate from the Secretary of State of its jurisdiction of
organization and, to the extent requested by Arranger or Administrative
Agent, each other State in which such Person is qualified as a foreign
entity to do business and a certificate or other evidence of good
standing as to payment of any applicable franchise or similar taxes from
the appropriate taxing authority of each of such jurisdictions, each
dated a recent date prior to the Closing Date;
(iii) Resolutions of the Board of Directors, board of managers
or other required authorizing authority of such Person approving and
authorizing the execution, delivery and performance of the Loan
Documents and Related Agreements to which it is a party, certified as of
the Closing Date by the corporate secretary or an assistant secretary of
such Person as being in full force and effect without modification or
amendment;
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(iv) Signature and incumbency certificates of the officers of
such Person executing the Loan Documents to which it is a party;
(v) Executed originals of the Loan Documents to which such
Person is a party; and
(vi) Such other documents as Arranger or Administrative Agent
may reasonably request.
(B) NO MATERIAL ADVERSE EFFECT. Since December 31, 1998 no Material
Adverse Effect (in the opinions of Arranger and Administrative Agent) shall have
occurred.
(C) MATTERS RELATING TO CERTAIN EXISTING INDEBTEDNESS OF COMPANY AND ITS
SUBSIDIARIES. On the Closing Date, Company and its Restricted Subsidiaries shall
have (i) repaid in full all Indebtedness outstanding under the Existing Credit
Agreement, (ii) terminated any commitments to lend or make other extensions of
credit thereunder, (iii) delivered to Arranger and Administrative Agent all
documents or instruments (including without limitation termination statements,
releases and reconveyances of mortgages) necessary to release all Liens securing
Indebtedness or other obligations of Company and its Restricted Subsidiaries
thereunder and pay-off and release letters, all in form and substance
satisfactory to Administrative Agent and Arranger, and (iv) made arrangements
satisfactory to Arranger and Administrative Agent with respect to the
cancellation of any letters of credit issued thereunder.
(D) CONSUMMATION OF RESTRUCTURING. (i) Finance Sub shall have been duly
organized as a corporation in form and substance satisfactory to Arranger and
Administrative Agent and the Restructuring shall have been consummated in
accordance with the Restructuring Documents, which shall be in form and
substance satisfactory to Arranger and Administrative Agent, and (ii) Arranger
and Administrative Agent shall have received an officer's certificate of Company
certifying that, as of the Closing Date, each transaction constituting the
Restructuring has been duly authorized by all necessary action of the Loan
Parties, their respective Subsidiaries and all other Persons, and each such
transaction has been consummated in accordance with all applicable laws.
(E) MASTER NOTE, INTERCOMPANY NOTES AND PLEDGE AND SECURITY AGREEMENTS.
(i) The Master Note and Finance Sub Intercompany Pledge and Security Agreement
shall have been executed and delivered by Finance Sub to Company, together with
all other documents including without limitation UCC-1 financing statements
required to perfect the security interests granted to Company thereunder and
(ii) each Restricted Subsidiary (other than Finance Sub) (after giving effect to
the Restructuring) shall have executed and delivered a counterpart signature
page to the Intercompany Purchase Money Note and a counterpart signature page to
the Intercompany Pledge and Security Agreement to Finance Sub, together with all
other documents including without limitation UCC-1 financing statements required
to perfect the security interests granted to Finance Sub thereunder.
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(F) LICENSES; COMPLIANCE WITH COMMUNICATIONS ACT AND STATE LAW; OTHER
NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS.
(i) Licenses. Each material License with respect to the business
of Company and its Restricted Subsidiaries shall be in full force and
effect.
(ii) Compliance with Communications Act and State Law. Company
and its Subsidiaries shall be in compliance with the Communications Act
and State Law in all material respects.
(iii) Necessary Governmental Authorizations and Consents.
Company shall have obtained any Governmental Authorization and all
consents of other Persons, in each case that are necessary in connection
with transactions contemplated by the Loan Documents and the continued
operation of the business conducted by Company and its Subsidiaries, and
each of the foregoing shall be in full force and effect, in each case
other than those the failure to obtain or maintain which, either
individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect.
(iv) Interconnection Agreements. Except as set forth on Schedule
3.1 annexed hereto, Company or its Subsidiaries, as applicable, shall
have executed such Interconnection Agreements as may be necessary for
the current or intended operation of business conducted by Company and
its Subsidiaries, and each such Interconnection Agreement shall be in
full force and effect.
(G) RELATED AGREEMENTS. Administrative Agent and Arranger shall have
received executed or conformed copies of each of the Related Agreements and any
amendments thereto on or before the Closing Date, certified pursuant to an
officer's certificate as being true and correct copies of each of the Related
Agreements and all amendments thereto on or before the Closing Date.
(H) SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY. Each of Arranger
and Administrative Agent shall have received evidence satisfactory to it that
Borrowers and Subsidiary Guarantors shall have taken or caused to be taken all
such actions, executed and delivered or caused to be executed and delivered all
such agreements, documents and instruments, and made or caused to be made all
such filings and recordings (other than the filing or recording of items
described in clauses (iii), (iv) and (v) below) that may be necessary or, in the
opinion of Arranger and Administrative Agent, desirable in order to create in
favor of Administrative Agent, for the benefit of Lenders, a valid and (upon
such filing and recording) perfected First Priority security interest in the
entire personal and mixed property Collateral. Such actions shall include the
following:
(i) Schedules to Collateral Documents. Delivery to
Administrative Agent of accurate and complete schedules to all of the
applicable Collateral Documents.
(ii) Stock Certificates and Instruments. Delivery to
Administrative Agent of (a) certificates (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in blank
and otherwise satisfactory in form and substance to Administrative
Agent) representing all Capital Stock pledged pursuant to Company
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Pledge and Security Agreement and the Finance Sub and Other Subsidiary
Pledge and Security Agreements and (b) all promissory notes or other
instruments (duly endorsed, where appropriate, in a manner satisfactory
to Administrative Agent) evidencing any Collateral;
(iii) Lien Searches and UCC Termination Statements. Arranger and
Administrative Agent shall have received (a) the results of a recent
search, by a Person satisfactory to Arranger and Administrative Agent,
of all effective UCC financing statements and fixture filings and all
judgment and tax lien filings which may have been made with respect to
any personal or mixed property of any Loan Party, together with copies
of all such filings disclosed by such search, and (b) UCC termination
statements duly executed by all applicable Persons for filing in all
applicable jurisdictions as may be necessary to terminate any effective
UCC financing statements or fixture filings disclosed in such search
(other than any such financing statements or fixture filings in respect
of Liens permitted to remain outstanding pursuant to the terms of this
Agreement).
(iv) UCC Financing Statements and Fixture Filings. Delivery to
Administrative Agent of UCC financing statements and, where appropriate,
fixture filings, duly executed by each applicable Loan Party with
respect to all personal and mixed property Collateral of such Loan
Party, for filing in all jurisdictions as may be necessary or, in the
opinion of Arranger and Administrative Agent, desirable to perfect the
security interests created in such Collateral pursuant to the Collateral
Documents;
(v) Opinions of Local Counsel. Delivery to Arranger and
Administrative Agent of an opinion of counsel substantially in the form
of Exhibit XI annexed hereto (which counsel shall be reasonably
satisfactory to Arranger and Administrative Agent) under the laws of
such jurisdictions, as requested by Administrative Agent and Arranger,
in which any Loan Party or any personal or mixed property Collateral is
located, with respect to the creation and perfection of the security
interests in favor of Administrative Agent in such Collateral and such
other matters governed by the laws of such jurisdiction regarding such
security interests as Arranger and Administrative Agent may reasonably
request, in each case in form and substance reasonably satisfactory to
Arranger and Administrative Agent.
(I) FINANCIAL STATEMENTS. On or before the Closing Date, Lenders shall
have received from Company (i) audited financial statements of Company and its
Subsidiaries for the Fiscal Year ended December 31, 1998, consisting of balance
sheets and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows for such Fiscal Year, (ii) unaudited
financial statements of Company and its Subsidiaries as at March 31, 1999;
consisting of a balance sheet and the related consolidated and consolidating
statements of income, stockholders' equity and cash flows for the six-month
period ending on such date, all in reasonable detail and certified by the chief
financial officer of Company that they fairly present the financial condition of
Company and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to changes
resulting from audit and normal year-end adjustments, and (iii) unaudited
financial statements of Company and its Subsidiaries as of the month most
recently ended, consisting of a balance sheet
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and related consolidated and consolidating statements of income, stockholders'
equity and cash flows for the period ending on such date.
(J) EVIDENCE OF INSURANCE. Arranger and Administrative Agent shall have
received a certificate from Company's insurance broker or other evidence
satisfactory to it that all insurance required to be maintained pursuant to
subsection 5.4 is in full force and effect and that Administrative Agent on
behalf of Lenders has been named as additional insured and/or loss payee
thereunder to the extent required under subsection 5.4.
(K) OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders shall have received (i)
originally executed copies of one or more favorable written opinions of (a)
Simpson Thacher & Bartlett, counsel for Loan Parties, and Riley M. Murphy,
Executive Vice President Legal and Regulatory Affairs and General Counsel of
Company, (b) local corporate counsel in Maryland, Florida and Virginia and (c)
Kelley, Drye & Warren, regulatory counsel for Loan Parties, in each case in form
and substance reasonably satisfactory to Administrative Agent and Arranger and
its counsel, dated as of the Closing Date and setting forth substantially the
matters in the opinions designated in Exhibits IX, X and XIII annexed hereto and
as to such other matters as Administrative Agent or Arranger acting on behalf of
Lenders may reasonably request and (ii) evidence satisfactory to Arranger and
Administrative Agent that Company has requested such counsel to deliver such
opinions to Lenders.
(L) OPINIONS OF ARRANGER'S COUNSEL. Lenders shall have received
originally executed copies of one or more favorable written opinions of
O'Melveny & Myers LLP, counsel to Arranger, dated as of the Closing Date,
substantially in the form of Exhibit XII annexed hereto and as to such other
matters as Arranger may reasonably request.
(M) AUDITOR'S LETTER. Arranger and Administrative Agent shall have
received an executed Auditor's Letter.
(N) COMMITMENT LETTER, FEE LETTER AND PAYMENT OF FEES. The Commitment
Letter and Fee Letter, each dated June 3, 1999, by and between Arranger and
Company shall be in full force and effect and duly and validly binding upon
Company. Company shall have paid to Arranger and Administrative Agent, for
distribution (as appropriate) to Arranger, Administrative Agent and Lenders, the
fees due and payable on the Closing Date referred to in subsection 2.3.
(O) REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. Borrowers
shall have delivered to Arranger and Administrative Agent an officer's
certificate of Borrowers, in form and substance satisfactory to Arranger and
Administrative Agent, to the effect that the representations and warranties in
Section 4 hereof are true, correct and complete in all material respects on and
as of the Closing Date to the same extent as though made on and as of that date
(or, to the extent such representations and warranties specifically relate to an
earlier date, that such representations and warranties were true, correct and
complete in all material respects on and as of such earlier date) and that
Borrowers shall have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be performed or
satisfied by it on or before the Closing Date except as otherwise disclosed to
and agreed to in writing by Arranger, Administrative Agent and Requisite
Lenders.
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Each Lender by delivering each its signature page to this Agreement and
funding its initial Loans, if any, on the Closing Date shall be deemed to have
acknowledged receipt of, and consented to and approved (as long as substantially
in the form delivered to Lenders, including any changed pages thereto delivered
to Lenders), each Loan Document and each other document required to be approved
by Requisite Lenders or Lenders, as applicable.
3.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are
subject to the prior satisfaction of all of the conditions set forth in
subsection 3.1 and to the following further conditions precedent:
(A) Administrative Agent shall have received before that Funding Date,
in accordance with the provisions of subsection 2.1B, an originally executed
Notice of Borrowing, in each case signed by the chief executive officer, the
chief financial officer or the treasurer of the applicable Borrower or by any
executive officer of such Borrower designated by any of the above-described
officers on behalf of such Borrower in a writing delivered to Administrative
Agent.
(B) As of that Funding Date:
(i) The representations and warranties contained herein and in
the other Loan Documents shall be true, correct and complete in all
material respects on and as of that Funding Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date,
in which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier
date;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such
Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default;
(iii) Each Loan Party shall have performed in all material
respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or before
that Funding Date; and
(iv) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender
from making the Loans to be made by it on that Funding Date.
SECTION 4.
BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans and to induce other Lenders to purchase participations therein, each
Borrower represents and warrants to each Lender, on the date of this Agreement
and on each Funding Date, that the following statements are true, correct and
complete:
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4.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
(A) ORGANIZATION AND POWERS. Each Loan Party is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
as specified in Schedule 4.1 annexed hereto. Each Loan Party has all requisite
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Loan
Documents to which it is a party and to carry out the transactions contemplated
thereby.
(B) QUALIFICATION AND GOOD STANDING. Each Loan Party is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and could not reasonably be expected to have a Material Adverse Effect.
(C) CONDUCT OF BUSINESS. Loan Parties are engaged only in the businesses
permitted to be engaged in pursuant to subsection 6.14.
(D) SUBSIDIARIES. All of the Subsidiaries of Company are identified in
Schedule 4.1 annexed hereto, as said Schedule 4.1 may be supplemented from time
to time pursuant to the provisions of subsection 5.1(xv). The Capital Stock of
each of the Subsidiaries of Company identified in Schedule 4.1 annexed hereto
(as so supplemented) is duly authorized, validly issued, fully paid and
nonassessable and none of such Capital Stock constitutes Margin Stock. Each of
the Subsidiaries of Company identified in Schedule 4.1 annexed hereto (as so
supplemented) is duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of organization set forth therein, has all
requisite power and authority to own and operate its properties and to carry on
its business as now conducted and as proposed to be conducted, and is qualified
to do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, in each
case except where failure to be so qualified or in good standing or a lack of
such corporate power and authority has not had and could not reasonably be
expected to have a Material Adverse Effect. Schedule 4.1 annexed hereto (as so
supplemented) correctly sets forth the ownership interest of Company and each of
its Subsidiaries in each of the Subsidiaries of Company identified therein.
(E) REGULATORY AUTHORIZATIONS.
(i) Licenses. Except as set forth in Part I of Schedule 4.1E
annexed hereto, each of the Loan Parties has obtained all licenses,
permits, certifications or other authorizations required by the
Communications Regulatory Authorities under the Communications Act,
State Law and local law in order to carry out its business and
operations as presently conducted and as proposed to be conducted,
including the provision of the telecommunications services set forth in
any Licenses except to the extent the failure to obtain such licenses,
permits, certifications or other authorizations would not individually
or in the aggregate have a Material Adverse Effect. Part II of Schedule
4.1E annexed hereto accurately lists all Licenses, including their
expiration dates, held by each of the Loan Parties as of the date of
this Agreement. Each such License was duly and validly issued by the
FCC, the appropriate State PUC or local
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governmental authority pursuant to procedures which materially comply
with all requirements of all applicable federal, state or local laws and
is in full force and effect except to the extent the failure to be in
full force and effect could not reasonably be expected individually or
in the aggregate to have a Material Adverse Effect. None of the Loan
Parties has any knowledge of the occurrence of any event or the
existence of any circumstance which, in the reasonable judgment of such
Loan Party, is likely to lead to the revocation, suspension, non-renewal
or adverse modification of any material Licenses.
(ii) Compliance with Applicable Laws. The Loan Parties are in
compliance with the terms of all applicable Regulations except to the
extent noncompliance could not reasonably be expected individually or in
the aggregate to have a Material Adverse Effect. Each of the Loan
Parties has duly filed in a timely manner all filings, including tariff
filings, required by the FCC, any State PUC or any local governmental
authority to be filed by such Loan Party as a precondition to the
provision of the telecommunications services which it offers except to
the extent failure to do so could not reasonably be expected
individually or in the aggregate to have a Material Adverse Effect. None
of the Loan Parties is a party as a defendant to, or is aware of any
overt threat of, any litigation, proceeding, action, notice of violation
or apparent liability, order to show cause, order of forfeiture, formal
or informal complaint, inquiry or investigation by or before the FCC,
any State PUC or any local governmental authority with jurisdiction over
the services which it offers as to which there is a reasonable
possibility of an adverse determination and, which if adversely
determined, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
4.2 AUTHORIZATION OF BORROWING, ETC.
(A) AUTHORIZATION OF BORROWING. The execution, delivery and performance
of the Loan Documents have been duly authorized by all necessary action on the
part of each Loan Party that is a party thereto.
(B) NO CONFLICT. The execution, delivery and performance by Loan Parties
of the Loan Documents to which they are parties and the consummation of the
transactions contemplated by the Loan Documents do not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable to
any Loan Party or any of its Subsidiaries, the Organizational Documents of any
Loan Party or any of its Subsidiaries or any order, judgment or decree of any
court or other agency of government binding on any Loan Party or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation of
any Loan Party or any of its Subsidiaries, (iii) result in or require the
creation or imposition of any Lien upon any of the properties or assets of any
Loan Party or any of its Subsidiaries (other than any Liens created under any of
the Loan Documents in favor of Administrative Agent on behalf of Lenders), or
(iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of any Loan Party or any of its
Subsidiaries, except for such approvals or consents which will be obtained on or
before the Closing Date and disclosed in writing to Lenders.
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(C) GOVERNMENTAL CONSENTS. The execution, delivery and performance by
Loan Parties of the Loan Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by, any federal, state or other governmental authority
or regulatory body except (i) consents, authorizations, filings and notices
described in Schedule 4.2C annexed hereto, which consents, authorizations,
filings and notices have been obtained or made and are in full force and effect
and (ii) filings referred to in subsections 3.1H and 4.16.
(D) BINDING OBLIGATION. Each of the Loan Documents has been duly
executed and delivered by each Loan Party that is a party thereto and is the
legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
4.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders' request, the
following financial statements and information: (i) the audited consolidated
balance sheets of Company and its Subsidiaries as at December 31, 1998 and the
related consolidated statements of income, stockholders' equity and cash flows
of Company and its Subsidiaries for the Fiscal Year then ended and (ii) the
unaudited consolidated balance sheet of Company and its Subsidiaries as at March
31, 1999 and the related unaudited consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for the six
months then ended. All such statements were prepared in conformity with GAAP and
fairly present, in all material respects, the financial position (on a
consolidated basis of the entities described in such financial statements as at
the respective dates thereof and the results of operations and cash flows (on a
consolidated basis) of the entities described therein for each of the periods
then ended, subject, in the case of any such unaudited financial statements, to
changes resulting from audit and normal year-end adjustments. Neither Company
nor its Subsidiaries has (and except as expressly permitted by this Agreement,
will not following the funding of the initial Loans have) any Contingent
Obligation, contingent liability or liability for taxes, long-term lease or
unusual forward or long-term commitment that is not reflected in the foregoing
financial statements or the notes thereto and which in any such case is material
in relation to the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company or any of its Subsidiaries.
4.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since December 31, 1998, no event or change has occurred that has caused
or evidences, either in any case or in the aggregate, a Material Adverse Effect.
Neither Company nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Junior Payment or agreed to do so except as permitted by subsection 6.5.
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4.5 TITLE TO PROPERTIES; LIENS; REAL PROPERTY.
(A) TITLE TO PROPERTIES; LIENS. Each of the Loan Parties has (i) good,
sufficient and legal title to (in the case of fee interests in real property),
(ii) valid leasehold interests in (in the case of leasehold interests in real or
personal property), or (iii) good title to (in the case of all other personal
property), all of their respective properties and assets reflected in the
financial statements referred to in subsection 4.3 or in the most recent
financial statements delivered pursuant to subsection 5.1, in each case except
for assets disposed of since the date of such financial statements in the
ordinary course of business or as otherwise permitted under subsection 6.8.
Except as permitted by this Agreement, all such properties and assets are free
and clear of Liens.
(B) REAL PROPERTY. Each material lease, sublease or assignment of lease
(together with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting each interest of any Loan Party in any real
property, regardless of whether such Loan Party is the Landlord or tenant
(whether directly or as an assignee or successor in interest) under such lease,
sublease or assignment is in full force and effect and no Borrower has knowledge
of any material default that has occurred and is continuing thereunder, and each
such agreement constitutes the legally valid and binding obligation of each
applicable Loan Party, enforceable against such Loan Party in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles.
4.6 LITIGATION; ADVERSE FACTS.
There are no actions, suits, proceedings, arbitrations or governmental
investigations (whether or not purportedly on behalf of any Loan Party or any of
its Subsidiaries) at law or in equity, or before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (including any Environmental Claims) that
are pending or, to the knowledge of either Borrower, threatened against any Loan
Party or any of its Subsidiaries or any property of any Loan Party or any of its
Subsidiaries and that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No Loan Party nor any of its
Subsidiaries (i) is in violation of any applicable laws (including Environmental
Laws) that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect, or (ii) is subject to or in default with
respect to any final judgments, writs, injunctions, decrees, rules or
regulations of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
4.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 5.3, all material tax
returns and reports of Company and its Subsidiaries required to be filed by any
of them have been timely filed, and all material taxes shown on such tax returns
to be due and payable and all material assessments, fees and other governmental
charges upon Company and its Subsidiaries and upon their respective properties,
assets, income, businesses and franchises which are due and payable have been
paid
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when due and payable. Neither Borrower knows of any material proposed tax
assessment against any Loan Party or any of its Subsidiaries which is not being
actively contested by such Loan Party or such Subsidiary in good faith and by
appropriate proceedings; provided that such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have been
made or provided therefor.
4.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS; MATERIAL
CONTRACTS.
(A) No Loan Party nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.
(B) No Loan Party nor any of its Subsidiaries is a party to or is
otherwise subject to any agreements or instruments or any charter or other
internal restrictions which, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
4.9 GOVERNMENTAL REGULATION.
No Loan Party nor any of its Subsidiaries is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation (other than Regulation X of the Board of
Governors of the Federal Reserve System) which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
4.10 SECURITIES ACTIVITIES.
No Loan Party nor any of its Subsidiaries (i) is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock or (ii) will use the proceeds
of any Loans to purchase Margin Stock or in any manner whatsoever to cause a
violation of Regulation U of the Board of Governors of the Federal Reserve
System.
4.11 EMPLOYEE BENEFIT PLANS.
(A) Each Loan Party and each of their respective ERISA Affiliates are in
material compliance with all applicable provisions and requirements of ERISA and
the regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan, except where the failure to comply or perform could not
reasonably be expected to result in a Material Adverse Effect. Each Employee
Benefit Plan which is intended to qualify under Section 401(a) of the Internal
Revenue Code has received a favorable determination letter from the IRS and
nothing, to the best knowledge of the Loan Parties, has occurred with respect to
the operation of an Employee Benefit Plan since the date of such letter which
would reasonably be expected to cause it to be no longer valid or effective.
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(B) No ERISA Event has occurred or is reasonably expected to occur that
could reasonably be expected to have a Material Adverse Effect.
(C) As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), does not exceed an amount, which if immediately due
and payable, could reasonably be expected to have a Material Adverse Effect.
(D) As of the most recent valuation date for each Multiemployer Plan for
which the actuarial report has been provided to Borrowers, the potential
liability of Loan Parties and their respective ERISA Affiliates for a complete
withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of
ERISA), when aggregated with such potential liability for a complete withdrawal
from all Multiemployer Plans, could not reasonably be expected to have a
Material Adverse Effect.
4.12 CERTAIN FEES.
No broker's or finder's fee or commission will be payable with respect
to this Agreement or any of the transactions contemplated hereby, and Borrowers
hereby indemnify Lenders against, and agree that each of them will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
4.13 ENVIRONMENTAL PROTECTION.
(i) No Loan Party nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding
written order, consent decree or settlement agreement with any Person
relating to (a) any Environmental Law, (b) any Environmental Claim, or
(c) any Hazardous Materials Activity that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect;
(ii) No Loan Party nor any of its Subsidiaries has received any
letter or request for information under Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C.
Section 9604) or any comparable state law;
(iii) There are and, to Borrowers' knowledge, have been no
conditions, occurrences, or Hazardous Materials Activities which could
reasonably be expected to form the basis of an Environmental Claim
against any Loan Party or any of its Subsidiaries that, individually or
in the aggregate, could reasonably be expected to have a Material
Adverse Effect;
(iv) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, no Loan Party
nor any of its Subsidiaries nor, to Borrower's knowledge, any
predecessor of Company or any of its Subsidiaries has filed any notice
under any Environmental Law indicating past or present treatment of
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Hazardous Materials at any Facility, and no Loan Party or any of its
Subsidiaries' operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste, as defined under 40
C.F.R. Parts 260-270 or any state equivalent;
(v) Compliance with all current or, to the best knowledge of
each Loan Party, reasonably foreseeable future requirements pursuant to
or under Environmental Laws could not, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect.
Notwithstanding anything in this subsection 4.13 to the contrary, no
event or condition has occurred or is occurring with respect to any Loan Party
or any of its Subsidiaries relating to any Environmental Law, any Release of
Hazardous Materials, or any Hazardous Materials Activity which individually or
in the aggregate has had or could reasonably be expected to have a Material
Adverse Effect.
4.14 EMPLOYEE MATTERS.
Except as set forth in Schedule 4.14 annexed hereto, no Loan Party or
any of its Subsidiaries is as of the date hereof, a party to any collective
bargaining agreement and, to the knowledge of any Loan Party, no union
representation question exists as of the date hereof with respect to the
employees of any Loan Party or any of its Subsidiaries. There is no strike, work
stoppage, slowdown, lockout or any other labor dispute pending, or to the
knowledge of Borrowers threatened, involving any Loan Party or any of its
Subsidiaries that individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect.
4.15 SOLVENCY.
Each Loan Party is and, upon the incurrence of any Obligations by such
Loan Party on any date on which this representation is made, will be, Solvent.
4.16 MATTERS RELATING TO COLLATERAL.
(A) CREATION, PERFECTION AND PRIORITY OF LIENS. The execution and
delivery of the Collateral Documents by Loan Parties, together with (i) the
actions taken on or prior to the date hereof pursuant to subsections 3.1H and
5.8 and (ii) the delivery to Administrative Agent of any Pledged Collateral not
delivered to Administrative Agent at the time of execution and delivery of the
applicable Collateral Document (all of which Pledged Collateral has been so
delivered) are effective to create in favor of Administrative Agent for the
benefit of Lenders, as security for the respective Secured Obligations (as
defined in the applicable Collateral Document in respect of any Collateral), a
valid and perfected First Priority Lien on all of the Collateral, and all
filings and other actions necessary or desirable to perfect and maintain the
perfection and First Priority status of such Liens have been duly made or taken
and remain in full force and effect, other than the filing of any UCC financing
statements delivered to Administrative Agent for filing (but not yet filed) and
the periodic filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Administrative Agent.
(B) GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for either
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(i) the pledge or grant by any Loan Party of the Liens purported to be created
in favor of Administrative Agent pursuant to any of the Collateral Documents or
(ii) the exercise by Administrative Agent of any rights or remedies in respect
of any Collateral (whether specifically granted or created pursuant to any of
the Collateral Documents or created or provided for by applicable law), except
for filings or recordings contemplated by subsection 4.16A and except as may be
required, in connection with the disposition of any Pledged Collateral, by laws
generally affecting the offering and sale of securities.
(C) ABSENCE OF THIRD-PARTY FILINGS. Except such as may have been filed
in favor of Administrative Agent as contemplated by subsection 4.16A and in
respect of Liens permitted under subsection 6.2A, no effective UCC financing
statement, fixture filing or other instrument similar in effect covering all or
any part of the Collateral is on file in any filing or recording office.
(D) MARGIN REGULATIONS. The pledge of the Pledged Collateral pursuant to
the Collateral Documents does not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
INFORMATION REGARDING COLLATERAL. All information supplied to
Administrative Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
4.17 DISCLOSURE.
As of the date hereof or if later the Closing Date, no representation or
warranty of any Loan Party or any of its Subsidiaries contained in the
Confidential Information Memorandum or in any Loan Document or in any other
document, certificate or written statement furnished to Lenders by or on behalf
of any Loan Party or any of its Subsidiaries for use in connection with the
transactions contemplated by this Agreement contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances in which the same were made. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by management of Borrowers to be reasonable
at the time made, it being recognized by Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected
results. There are no facts known (or which should upon the reasonable exercise
of diligence be known) as of the date hereof or if later the Closing Date, to
either Borrower (other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect and that have not been disclosed herein or in such other
documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
SECTION 5.
BORROWERS' AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations unless
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Requisite Lenders shall otherwise give prior written consent, such Borrower
shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 5.
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Each Borrower will maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of financial statements in
conformity with GAAP. Company will deliver to Administrative Agent and Lenders:
(i) Quarterly Financials: as soon as available and in any event
within 45 days after the end of each Fiscal Quarter, (a) the
consolidated balance sheet of Company and its Subsidiaries as at the end
of such Fiscal Quarter and the related consolidated statements of
income, stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the Financial Plan for
the current Fiscal Year, all in reasonable detail and certified by the
chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments, and (b) a
narrative report describing the operations of Company and its
Subsidiaries in the form prepared for presentation to senior management
for such Fiscal Quarter and for the period from the beginning of the
then current Fiscal Year to the end of such Fiscal Quarter;
(ii) Year-End Financials: as soon as available and in any event
within 90 days after the end of each Fiscal Year, (a) the consolidated
balance sheet of Company and its Subsidiaries as at the end of such
Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for
such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and the corresponding
figures from the Financial Plan for the Fiscal Year covered by such
financial statements, all in reasonable detail and certified by the
chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, (b) a
narrative report describing the operations of Company and its
Subsidiaries in the form prepared for presentation to senior management
for such Fiscal Year, and (c) in the case of such consolidated financial
statements, a report thereon of KPMG Peat Marwick LLP or other
independent certified public accountants of recognized national standing
selected by Company and satisfactory to Administrative Agent, which
report shall be unqualified, shall express no doubts about the ability
of Company and its Subsidiaries to continue as a going concern, and
shall state that such consolidated financial statements fairly present,
in all material respects, the consolidated financial position of Company
and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent
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with prior years (except as otherwise disclosed in such financial
statements) and that the examination by such accountants in connection
with such consolidated financial statements has been made in accordance
with generally accepted auditing standards;
(iii) Officers' and Compliance Certificates: together with each
delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (i) and (ii) above, (a) an Officers'
Certificate of Company stating that the signers have reviewed the terms
of this Agreement and have made, or caused to be made under their
supervision, a review in reasonable detail of the transactions and
condition of Company and its Subsidiaries during the accounting period
covered by such financial statements and that such review has not
disclosed the existence during or at the end of such accounting period,
and that the signers do not have knowledge of the existence as at the
date of such Officers' Certificate, of any condition or event that
constitutes an Event of Default or Potential Event of Default, or, if
any such condition or event existed or exists, specifying the nature and
period of existence thereof and what action Company has taken, is taking
and proposes to take with respect thereto; and (b) a Compliance
Certificate demonstrating in reasonable detail compliance during and at
the end of the applicable accounting periods with the restrictions
contained in Section 6, in each case to the extent compliance with such
restrictions is required to be tested at the end of the applicable
accounting period;
(iv) Reconciliation Statements: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 4.3, the
consolidated financial statements of Company and its Subsidiaries
delivered pursuant to subdivisions (i), (ii) or (xii) of this subsection
5.1 will differ in any material respect from the consolidated financial
statements that would have been delivered pursuant to such subdivisions
had no such change in accounting principles and policies been made, then
(a) together with the first delivery of financial statements pursuant to
subdivision (i), (ii), or (xii) of this subsection 5.1 following such
change, consolidated financial statements of Company and its
Subsidiaries for (1) the current Fiscal Year to the effective date of
such change and (2) the two full Fiscal Years immediately preceding the
Fiscal Year in which such change is made, in each case prepared on a pro
forma basis as if such change had been in effect during such periods,
and (b) together with each delivery of financial statements pursuant to
subdivision (i), (ii) or (xii) of this subsection 5.1 following such
change, a written statement of the chief accounting officer or chief
financial officer of Company setting forth the differences (including
any differences that would affect any calculations relating to the
financial covenants set forth in subsection 6.6) which would have
resulted if such financial statements had been prepared without giving
effect to such change;
(v) Accountants' Certification: together with each delivery of
consolidated financial statements of Company and its Subsidiaries
pursuant to subdivision (ii) above, a written statement by the
independent certified public accountants giving the report thereon (a)
stating that their audit examination has included a review of the terms
of this Agreement and the other Loan Documents as they relate to
accounting matters, (b) stating whether, in connection with their audit
examination, any condition or event that constitutes an Event of Default
or Potential Event of Default has come to their attention
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and, if such a condition or event has come to their attention,
specifying the nature and period of existence thereof; provided that
such accountants shall not be liable by reason of any failure to obtain
knowledge of any such Event of Default or Potential Event of Default
that would not be disclosed in the course of their audit examination,
and (c) stating that based on their audit examination nothing has come
to their attention that causes them to believe either or both that the
information contained in the certificates delivered therewith pursuant
to subdivision (iii) above is not correct or that the matters set forth
in the Compliance Certificates delivered therewith pursuant to clause
(b) of subdivision (iii) above for the applicable Fiscal Year are not
stated in accordance with the terms of this Agreement;
(vi) Accountants' Reports: promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Company and its Subsidiaries made by such accountants,
including any comment letter submitted by such accountants to management
in connection with their annual audit;
(vii) SEC Filings and Press Releases: promptly upon their
becoming available, copies of (a) all financial statements, reports,
notices and proxy statements sent or made available generally by Company
to its security holders or by any Subsidiary of Company to its security
holders other than Company or another Subsidiary of Company, (b) all
regular and periodic reports and all registration statements (other than
on Form S-8 or a similar form) and prospectuses, if any, filed by
Company or any of its Subsidiaries with any securities exchange or with
the Securities and Exchange Commission, and (c) all press releases and
other statements made available generally by Company or any of its
Subsidiaries to the public concerning material developments in the
business of Company or any of its Subsidiaries;
(viii) Events of Default, etc.: promptly upon any officer of
Company obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender has given any notice (other than to
Administrative Agent) or taken any other action with respect to a
claimed Event of Default or Potential Event of Default, (b) that any
Person has given any notice to Company or any of its Subsidiaries or
taken any other action with respect to a claimed default or event or
condition of the type referred to in subsection 7.2, (c) of any
condition or event that would be required to be disclosed in a current
report filed by Company with the Securities and Exchange Commission on
Form 8-K (Items 1, 2, 4, 5 and 6 of such Form as in effect on the date
hereof) if Company were required to file such reports under the Exchange
Act, or (d) of the occurrence of any event or change that has caused or
evidences, or could reasonably be expected to cause or evidence, either
in any case or in the aggregate, a Material Adverse Effect, an Officers'
Certificate specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action
taken by any such Person and the nature of such claimed Event of
Default, Potential Event of Default, default, event or condition, and
what action Company has taken, is taking and proposes to take with
respect thereto;
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(ix) Litigation or Other Proceedings: promptly upon any officer
of Company obtaining knowledge of (a) the institution of, or
non-frivolous threat of, any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration against or affecting any Loan Party or any of its
Subsidiaries or any property of any Loan Party or any of its
Subsidiaries (collectively, "PROCEEDINGS") not previously disclosed in
writing by Company to Lenders or (b) any material development in any
Proceeding that, in any case:
(1) if adversely determined, has a reasonable
possibility of giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a
result of, the transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to
evaluate such matters;
(x) ERISA Events: promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event that could reasonably be
expected to have a Material Adverse Effect, a written notice specifying
the nature thereof, what action Loan Parties or any of their respective
ERISA Affiliates has taken, is taking or proposes to take with respect
thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect
thereto;
(xi) ERISA Notices: with reasonable promptness, copies of (a) if
requested by Administrative Agent, each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by Loan
Parties or any of their respective ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan; (b) all notices
received by Loan Parties or any of their respective ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event that could
reasonably be expected to have a Material Adverse Effect; and (c) copies
of such other documents or governmental reports or filings relating to
any Employee Benefit Plan as Administrative Agent shall reasonably
request;
(xii) Financial Plans: as soon as practicable and in any event
no later than 45 days after the end of each Fiscal Year, a consolidated
plan and financial forecast for the next succeeding Fiscal Year (the
"FINANCIAL PLAN"), consisting of (a) a forecasted consolidated balance
sheet and forecasted consolidated statements of income and cash flows of
Company and its Subsidiaries for such Fiscal Year, together with a pro
forma Compliance Certificate for such Fiscal Year and an explanation of
the assumptions on which such forecasts are based, (b) forecasted
consolidated statements of income and cash flows of Company and its
Subsidiaries for each month of such Fiscal Year, together with an
explanation of the assumptions on which such forecasts are based, and
(c) such other information and projections as any Lender may reasonably
request;
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(xiii) Insurance: as soon as practicable and in any event by the
last day of each Fiscal Year, a report in form and substance
satisfactory to Administrative Agent outlining all material insurance
coverage maintained as of the date of such report by Company and its
Subsidiaries and all material insurance coverage planned to be
maintained by Company and its Subsidiaries in the immediately succeeding
Fiscal Year;
(xiv) Board of Directors: with reasonable promptness, written
notice of any change in the Board of Directors of Company;
(xv) New Subsidiaries: promptly upon any Person becoming a
Subsidiary of Company, a written notice setting forth with respect to
such Person (a) the date on which such Person became a Subsidiary of
Company and (b) all of the data required to be set forth in Schedule 4.1
annexed hereto with respect to all Subsidiaries of Company (it being
understood that such written notice shall be deemed to supplement
Schedule 4.1 annexed hereto for all purposes of this Agreement);
(xvi) Licenses, etc.: promptly upon (a) receipt of notice of (1)
any forfeiture, non-renewal, cancellation, termination, revocation,
suspension, impairment or material modification of any material License
held by Company or any of its Subsidiaries, or any notice of default or
forfeiture with respect to any such material License, or (2) any refusal
by any Communications Regulatory Authority to renew or extend any such
material License, an Officers' Certificate specifying the nature of such
event, the period of existence thereof, and what action Company or its
Subsidiaries are taking and propose to take with respect thereto, and
(b) any acquisition of a Related Telecommunications Business, a written
notice setting forth with respect to the business acquired all of the
data required to be set forth in Schedule 4.1E under subsection 4.1E
with respect to such business and the material Licenses required in
connection with the operation of such business (it being understood that
such written notice shall be deemed to supplement Schedule 4.1E annexed
hereto for all purposes of this Agreement);
(xvii) UCC Search Report: As promptly as practicable after the
Closing Date or the date of delivery to Administrative Agent of any
subsequent UCC financing statements executed by any Loan Party pursuant
to subsection 3.1H(iv) or 5.8A, upon request of Administration Agent,
copies of completed UCC searches evidencing the proper filing, recording
and indexing of all such UCC financing statements and listing all other
effective financing statements that name such Loan Party as debtor,
together with copies of all such other financing statements not
previously delivered to Administrative Agent by or on behalf of Company
or such Loan Party; and
(xviii) Other Information: with reasonable promptness, such
other information and data with respect to Company or any of its
Subsidiaries as from time to time may be reasonably requested by any
Lender.
5.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 6.8, each Borrower will, and will
cause each of its Restricted Subsidiaries to, at all times preserve and keep in
full force and effect its corporate
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existence and all rights and franchises material to its business; provided,
however that neither Company nor any of its Restricted Subsidiaries shall be
required to preserve any such right or franchise if the Board of Directors of
Company or such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of Company or such Subsidiary,
as the case may be, and that the loss thereof is not disadvantageous in any
material respect to Company, such Subsidiary or Lenders.
5.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
(A) Company will, and will cause each of its Subsidiaries to, pay all
material taxes, assessments and other governmental charges imposed upon it or
any of its properties or assets or in respect of any of its income, businesses
or franchises before any material penalty accrues thereon, and all material
claims (including claims for labor, services, materials and supplies) for sums
that have become due and payable and that by law have or may become a Lien upon
any of its properties or assets, prior to the time when any material penalty or
fine shall be incurred with respect thereto; provided that no such charge or
claim need be paid if it is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, so long as (1) such
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor and (2) in the case of a
charge or claim which has or may become a Lien against any of the Collateral,
such contest proceedings conclusively operate to stay the sale of any portion of
the Collateral to satisfy such charge or claim.
(B) Neither Borrower will, nor will it permit any of its Subsidiaries
to, file or consent to the filing of any consolidated income tax return with any
Person (other than Company or any of its Subsidiaries).
5.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/CONDEMNATION PROCEEDS.
(A) MAINTENANCE OF PROPERTIES. Each Borrower will, and will cause each
of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Company and its Subsidiaries
(including all Intellectual Property) and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements thereof.
(B) INSURANCE. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry. Without limiting the generality
of the foregoing, Company will maintain or cause to be maintained replacement
value casualty insurance on the Collateral under such policies of insurance,
with such insurance companies, in such amounts, with such deductibles, and
covering such risks as are at all times satisfactory to Administrative Agent in
its commercially reasonable judgment.
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Each such policy of insurance shall (a) name Administrative Agent for the
benefit of Lenders as an additional insured thereunder as its interests may
appear and (b) in the case of each business interruption and casualty insurance
policy, contain a loss payable clause or endorsement, satisfactory in form and
substance to Administrative Agent, that names Administrative Agent for the
benefit of Lenders as the loss payee thereunder and provides for at least 30
days prior written notice to Administrative Agent of any modification or
cancellation of such policy.
(C) APPLICATION OF NET INSURANCE/CONDEMNATION PROCEEDS.
(i) Business Interruption Insurance. Upon receipt by Company or
any of its Restricted Subsidiaries of any business interruption
insurance proceeds constituting Net Insurance/Condemnation Proceeds, (a)
so long as no Event of Default or Potential Event of Default shall have
occurred and be continuing, Company or such Subsidiary may retain and
apply such Net Insurance/Condemnation Proceeds for working capital
purposes, and (b) if an Event of Default or Potential Event of Default
shall have occurred and be continuing, Company shall apply an amount
equal to such Net Insurance/Condemnation Proceeds to prepay the Loans
(and/or the Commitments shall be reduced) as provided in subsection
2.4B(iii)(b);
(ii) Casualty Insurance/Condemnation Proceeds. Upon receipt by
Company or any of its Restricted Subsidiaries of any Net
Insurance/Condemnation Proceeds other than from business interruption
insurance, (a) so long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, Company may deliver to
Administrative Agent an Officers' Certificate setting forth the amount
of the Net Insurance/Condemnation Proceeds that Company or such
Subsidiary intends to use such Net Insurance Condemnation Proceeds
within 270 days of such date of receipt to pay or reimburse the costs of
repairing, restoring or replacing the assets in respect of which such
Net Insurance/Condemnation Proceeds were received or to reinvest in
equipment or other Telecommunications Assets and Company shall, or shall
cause one or more of its Subsidiaries to, promptly and diligently apply
such to pay or reimburse the costs of repairing, restoring or replacing
the assets in respect of which such Net Insurance/Condemnation Proceeds
were received or reinvest all or a portion thereof in equipment or other
Telecommunications Assets or, to the extent not so applied or
reinvested, to prepay the Loans (and/or the Commitments shall be
reduced) as provided in subsection 2.4B(iii)(b), and (b) if an Event of
Default or Potential Event of Default shall have occurred and be
continuing, Company shall apply an amount equal to such Net
Insurance/Condemnation Proceeds to prepay the Loans (and/or the
Commitments shall be reduced) as provided in subsection 2.4B(iii)(b).
(iii) Net Insurance/Condemnation Proceeds Received by
Administrative Agent. Upon receipt by Administrative Agent of any Net
Insurance/Condemnation Proceeds as loss payee, (a) if and to the extent
Company would have been required to apply such Net
Insurance/Condemnation Proceeds (if it had received them directly) to
prepay the Loans and/or reduce the Commitments, Administrative Agent
shall, and Company hereby authorizes Administrative Agent to, apply such
Net Insurance/Condemnation Proceeds to prepay the Loans (and the
Commitments shall be reduced) as provided in subsection 2.4B(iii)(b),
and (b) to the extent the foregoing clause
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(a) does not apply, Administrative Agent shall deliver such Net
Insurance/Condemnation Proceeds to Company, and Company shall, or shall
cause one or more of its Subsidiaries to, promptly and diligently apply
such Net Insurance/Condemnation Proceeds in accordance with subsection
5.4C(i)(a) or 5.4C(ii)(a), as applicable.
5.5 INSPECTION RIGHTS; AUDITS OF INVENTORY AND ACCOUNTS RECEIVABLE; LENDER
MEETING.
(A) INSPECTION RIGHTS. Each Borrower shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by any Lender
to visit and inspect any of the properties of Company or of any of its
Subsidiaries, to inspect, copy their financial and accounting records, and to
discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants (provided that Company may, if it so chooses,
be present at or participate in any such discussion), all upon reasonable notice
and at such reasonable times during normal business hours and as often as may
reasonably be requested.
(B) LENDER MEETING. Each Borrower will, upon the request of Arranger,
Administrative Agent or Requisite Lenders, participate in a meeting of
Administrative Agent and Lenders once during each Fiscal Year to be held at
Company's corporate offices (or at such other location as may be agreed to by
Company and Administrative Agent) at such time as may be agreed to by Company
and Administrative Agent.
5.6 COMPLIANCE WITH LAWS, ETC.
Each Borrower shall comply, and shall cause each of its Subsidiaries to
comply, with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority (including all Environmental Laws),
noncompliance with which could reasonably be expected to cause, individually or
in the aggregate, a Material Adverse Effect.
5.7 ENVIRONMENTAL REVIEW AND INVESTIGATION, DISCLOSURE, ETC.; COMPANY'S
ACTIONS REGARDING HAZARDOUS MATERIALS ACTIVITIES, ENVIRONMENTAL CLAIMS AND
VIOLATIONS OF ENVIRONMENTAL LAWS.
(A) ENVIRONMENTAL REVIEW AND INVESTIGATION. Each Borrower agrees that
Administrative Agent may, from time to time and in its reasonable discretion,
(i) retain, at Company's expense, an independent professional consultant to
review any environmental audits, investigations, analyses and reports relating
to Hazardous Materials prepared by or for any Loan Party and (ii) in the event
(a) Administrative Agent reasonably believes that any Loan Party has breached
any representation, warranty or covenant contained in subsection 4.6, 4.13, 5.6
or 5.7 which individually or in the aggregate could reasonably be expected to
have a Material Adverse Effect or that there has been a violation of
Environmental Laws which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect at any Facility or by Company or any
of its Subsidiaries at any other location or (b) an Event of Default has
occurred and is continuing, conduct its own investigation of any Facility;
provided that, in the case of any Facility no longer owned, leased, operated or
used by Company or any of its Subsidiaries, Company shall only be obligated to
use commercially reasonable efforts to obtain permission for Administrative
Agent's professional consultant to conduct an investigation of such Facility.
For purposes of conducting such a review and/or investigation, each Borrower to
the extent it has the
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power and authority to do so hereby grants to Administrative Agent and its
agents, employees, consultants and contractors the right to enter into or onto
any Facilities currently owned, leased, operated or used by Company or any of
its Subsidiaries and to perform such tests on such property (including taking
samples of soil, groundwater and suspected asbestos-containing materials) as are
reasonably necessary in connection therewith. Any such investigation of any
Facility shall be conducted, unless otherwise agreed to by Borrowers and
Administrative Agent, during normal business hours and, to the extent reasonably
practicable, shall be conducted so as not to interfere with the ongoing
operations at such Facility or to cause any damage or loss to any property at
such Facility. Borrowers and Administrative Agent hereby acknowledge and agree
that any report of any investigation conducted at the request of Administrative
Agent pursuant to this subsection 5.7A will be obtained and shall be used by
Administrative Agent and Lenders for the purposes of Lenders' internal credit
decisions, to monitor and police the Loans and to protect Lenders' security
interests, if any, created by the Loan Documents. Administrative Agent agrees to
deliver a copy of any such report to Borrowers with the understanding that each
Borrower acknowledges and agrees that (1) it will indemnify and hold harmless
Administrative Agent and each Lender from any costs, losses or liabilities
relating to such Borrower's use of or reliance on such report, (2) neither
Administrative Agent nor any Lender makes any representation or warranty with
respect to such report, and (3) by delivering such report to each Borrower,
neither Administrative Agent nor any Lender is requiring or recommending the
implementation of any suggestions or recommendations contained in such report.
(B) ENVIRONMENTAL DISCLOSURE. Borrowers will deliver to Administrative
Agent and Lenders:
(i) Environmental Audits and Reports. As soon as practicable
following receipt thereof, copies of all material and non-privileged
environmental audits, investigations, analyses and reports of any kind
or character, whether prepared by personnel of Company or any of its
Subsidiaries or by independent consultants, governmental authorities or
any other Persons, with respect to significant environmental matters at
any Facility which, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect or with respect to
any Environmental Claims which, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
(ii) Notice of Certain Releases, Remedial Actions, Etc. Promptly
upon the occurrence thereof, written notice describing in reasonable
detail (a) any Release required to be reported to any federal, state or
local governmental or regulatory agency under any applicable
Environmental Laws that could individually or in the aggregate
reasonably be expected to have a Material Adverse Effect, (b) any
remedial action taken by Company or any other Person in response to (1)
any Hazardous Materials Activities the existence of which has a
reasonable possibility of resulting in one or more Environmental Claims
that could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, or (2) any Environmental Claims that
could, individually or in the aggregate, reasonably be expected to have
a reasonable possibility of resulting in a Material Adverse Effect.
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(iii) Written Communications Regarding Environmental Claims,
Releases, Etc. As soon as practicable following the sending or receipt
thereof by Company or any of its Subsidiaries, a copy of any and all
material and non-privileged written communications with respect to (a)
any Environmental Claims that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, (b) any
Release required to be reported to any federal, state or local
governmental or regulatory agency that could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, and
(c) any request for information from any governmental agency that
suggests such agency is investigating whether Company or any of its
Subsidiaries may be potentially responsible for any Hazardous Materials
Activity that could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
(iv) Notice of Certain Proposed Actions Having Environmental
Impact. Prompt written notice describing in reasonable detail (a) any
proposed acquisition of stock, assets, or property by Company or any of
its Subsidiaries that could reasonably be expected to (1) expose Company
or any of its Subsidiaries to, or result in, Environmental Claims that
could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect or (2) affect the ability of Company or any of
its Subsidiaries to maintain in full force and effect all material
Governmental Authorizations required under any Environmental Laws for
their respective operations and (b) any proposed action to be taken by
Company or any of its Subsidiaries to commence manufacturing or other
industrial operations or to modify current operations in a manner that
could reasonably be expected to subject Company or any of its
Subsidiaries to any additional obligations or requirements under any
Environmental Laws that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(v) Other Information. With reasonable promptness, such other
non-privileged documents and information as from time to time may be
reasonably requested by Administrative Agent in relation to any matters
disclosed pursuant to this subsection 5.7.
(C) BORROWERS' ACTIONS REGARDING ENVIRONMENTAL CLAIMS AND VIOLATIONS OF
ENVIRONMENTAL LAWS. Each Borrower shall promptly take, and shall cause each of
its Subsidiaries promptly to take, any and all actions necessary to (i) cure any
violation of applicable Environmental Laws by Company or its Subsidiaries that
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect except when, and only to the extent that, such
Borrower's or such Subsidiary's obligation to comply with Environmental Laws is
being contested in good faith by such Borrower or Subsidiary, and (ii) make an
appropriate response to any Environmental Claim against Company or any of its
Subsidiaries and discharge any obligations it may have to any Person thereunder
where failure to do so could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
5.8 EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY COLLATERAL
DOCUMENTS BY CERTAIN SUBSIDIARIES AND FUTURE SUBSIDIARIES.
(A) EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY COLLATERAL
DOCUMENTS. In the event that any Person becomes a Restricted Subsidiary of
Finance Sub after the date
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hereof, Borrowers will promptly notify Administrative Agent of that fact and
cause such Restricted Subsidiary (i) to execute and deliver to Administrative
Agent counterparts of the Subsidiary Guaranty, the Finance Sub and Other
Subsidiary Pledge and Security Agreement, the Intercompany Pledge and Security
Agreement and the Intercompany Purchase Money Note and (ii) to take all such
further actions and execute all such further documents and instruments
(including actions, documents and instruments comparable to those described in
subsection 3.1H) as may be necessary or requested by Administrative Agent.
(B) SUBSIDIARY ORGANIZATIONAL DOCUMENTS, LEGAL OPINIONS, ETC. Borrowers
shall deliver to Administrative Agent, together with the documents required to
be delivered pursuant to subsection 5.8A (the "SUBSIDIARY DOCUMENTS"), (i)
certified copies of such Subsidiary's Organizational Documents certified by the
Secretary of State of its jurisdiction of organization, if such certification is
generally available, and in each other case by its secretary or assistant
secretary together with, to the extent generally available, a good standing
certificate from the Secretary of State of the jurisdiction of its organization
and each other state in which such Person is qualified as a foreign entity to do
business, and a certificate or other evidence of good standing as to payment of
any applicable franchise or similar taxes from the appropriate taxing authority
of each of such jurisdictions, each to be dated a recent date prior to their
delivery to Administrative Agent, (ii) a certificate executed by the secretary
or an assistant secretary of such Restricted Subsidiary as to (a) the fact that
the attached resolutions of the Board of Directors or board of managers or other
required authorizing authority of such Restricted Subsidiary approving and
authorizing the execution, delivery and performance of such Subsidiary Documents
are in full force and effect and have not been modified or amended and (b) the
incumbency and signatures of the officers of such Restricted Subsidiary
executing such Subsidiary Documents, and (iv) a favorable opinion of counsel to
such Restricted Subsidiary, in form and substance satisfactory to Administrative
Agent and its counsel, as to (a) the due organization and good standing of such
Restricted Subsidiary, (b) the due authorization, execution and delivery by such
Subsidiary of such Subsidiary Documents, (c) the enforceability of such
Subsidiary Documents against such Subsidiary, (d) such other matters (including
matters relating to the creation and perfection of Liens in any Collateral
pursuant to such Subsidiary Documents) as Administrative Agent may reasonably
request, all of the foregoing to be satisfactory in form and substance to
Administrative Agent and its counsel.
(C) FOREIGN SUBSIDIARIES. Notwithstanding anything in the foregoing
subsection 5.8A to the contrary, in the event that (i) any Person becomes a
Subsidiary of Finance Sub after the date hereof and such Subsidiary is a
controlled foreign corporation (as defined in Section 957(a) or a successor
provision of the Internal Revenue Code) and (ii) the execution of a counterpart
of the Subsidiary Guaranty and the Collateral Documents required to be executed
by such Subsidiary pursuant to this subsection 5.8A or such Subsidiary
continuing to be a party to the Subsidiary Guaranty and the Collateral
Documents, if previously executed, will result in material negative tax
consequences to Company, then the Lenders hereby agree to enter into an
amendment to this Agreement providing that (a) such foreign subsidiary shall not
be required to execute counterparts of the Subsidiary Guaranty or the Collateral
Documents or shall be released from the Subsidiary Guaranty and Collateral
Documents to which it is a party, if previously executed, and (b) Finance Sub or
its Subsidiaries, as the case may be, shall only be required to pledge, or
continue to pledge, 65% of the Capital Stock of such foreign subsidiary,
pursuant to the Collateral Documents, if permitted under applicable foreign law,
or pursuant to an additional
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<PAGE> 95
pledge agreement or other documentation in conformity with applicable foreign
law to perfect Administrative Agent's security interest in such Capital Stock;
provided that (1) Borrowers shall agree to such amendments to this Agreement as
Lenders reasonably determine are necessary with respect to such foreign
subsidiary and (2) such amendment shall otherwise be in form and substance
reasonably satisfactory to Requisite Lenders. It being understood that if
following any such amendment in accordance with this subsection 5.8C, (x)
Administrative Agent or Requisite Lenders and Company reasonably determine at
any time that additional pledges of Capital Stock of any such foreign subsidiary
in excess of the 65% of the outstanding Capital Stock of such foreign subsidiary
or a guarantee from, or other creditors rights or security interests in the
assets of, any such foreign subsidiary (such additional pledged stock,
guaranties and creditors' rights and security interests in assets, collectively,
"ADDITIONAL SECURITY") may be obtained without Company incurring any material
tax liabilities, or (y) Administrative Agent and Requisite Lenders agree to pay
any additional tax liabilities incurred in connection with the taking of
Additional Security, Company shall cause such Additional Security to be granted
to Administrative Agent for the benefit of Lenders, together with such
supporting opinions of counsel and other documents as Administrative Agent or
Requisite Lenders shall reasonably request consistent with the documents
required to be delivered pursuant to subsection 5.8A.
5.9 PREPAYMENT OF MASTER NOTE.
Finance Sub shall from time to time prepay the Master Note to the extent
necessary so that the aggregate outstanding amount under the Master Note shall
not at any time exceed the aggregate principal amounts outstanding under the
Intercompany Purchase Money Note.
5.10 INTEREST RATE PROTECTION.
For the period beginning 60 days after the Closing Date until the third
anniversary of the Closing Date, Borrowers shall maintain in effect one or more
Interest Rate Agreements such that not less than 50% of Consolidated Total Debt
of Company and its Restricted Subsidiaries bears interest at a fixed rate or is
capped or swapped into a fixed rate pursuant to an Interest Rate Agreement, each
such Interest Rate Agreement to be in form and substance satisfactory to
Administrative Agent.
5.11 YEAR 2000 COMPLIANCE.
Borrowers shall perform all acts reasonably necessary to ensure that
Company and its Restricted Subsidiaries become Year 2000 Compliant in a timely
manner. Such acts shall include, without limitation, performing a comprehensive
review and assessment of all of Company and its Restricted Subsidiaries' systems
and adopting a detailed plan, with itemized budget, for the remediation,
monitoring and testing of such systems. Borrowers shall, immediately upon
request, provide to Administrative Agent such certifications or other evidence
of Company and its Restricted Subsidiaries' compliance with the terms of this
subsection 5.11 as Administrative Agent may from time to time request.
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<PAGE> 96
SECTION 6.
BORROWERS' NEGATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations unless Requisite Lenders shall otherwise give
prior written consent, each Borrower shall perform, and shall cause each
Restricted Subsidiary to perform, all covenants in this Section 6.
6.1 INDEBTEDNESS.
Borrowers shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Borrowers may become and remain liable with respect to the
Obligations;
(ii) Company may remain liable with respect to the Existing
Senior Notes;
(iii) Company may become and remain liable with respect to
Additional Notes, provided, however, that Company shall be in pro forma
compliance with the covenants contained in this Agreement after giving
effect to the issuance thereof;
(iv) Company and its Restricted Subsidiaries may become and
remain liable with respect to Contingent Obligations permitted by
subsection 6.4 and, upon any matured obligations actually arising
pursuant thereto, the Indebtedness corresponding to the Contingent
Obligations so extinguished;
(v) Company and any Restricted Subsidiary of Company may become
and remain liable with respect to Indebtedness to Company or any
Restricted Subsidiary of Company; provided that all such intercompany
Indebtedness shall be evidenced by intercompany promissory notes in the
form of the Master Note, the Intercompany Purchase Money Note or the
Intercompany Note, as applicable; and
(vi) (a) Company and its Restricted Subsidiaries may become and
remain liable with respect to existing Indebtedness described in
Schedule 6.1 annexed hereto, (b) Company may become and remain liable
with respect to Capital Lease Obligations and purchase money
Indebtedness, the proceeds of which are used within 180 days of the
incurrence thereof to purchase Telecommunications Assets in the ordinary
course of business, provided that (1) such Capital Lease Obligations and
purchase money Indebtedness are not secured by any Lien on any asset of
Company or any Restricted Subsidiary other than such assets purchased
with the proceeds of such Indebtedness and (2) at least 75% of the
purchase price plus installation costs of such assets is provided by the
proceeds of such Indebtedness, and (c) Company may become and remain
liable with respect to Indebtedness incurred to extend, renew or
refinance, in whole or in part, Indebtedness permitted under clauses (a)
and (b) of this clause (vi), provided that (1) the principal amount of
such refinancing Indebtedness does not exceed the principal amount of,
premium, if any, and accrued interest on, the Indebtedness being
refinanced immediately prior to such extension, renewal or refinancing
and (2) such refinancing
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<PAGE> 97
Indebtedness has a final maturity date not earlier than the maturity
date of the Indebtedness being refinanced and a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity
of the Indebtedness being refinanced; provided that at no time shall (x)
the aggregate principal amount of Indebtedness outstanding under this
subsection 6.1(vi) exceed $150,000,000 or (y) the sum of the aggregate
principal amount of Indebtedness outstanding under this subsection
6.1(vi) plus the sum of the aggregate principal amounts of Series B Term
Loans, Series C Term Loans and Incremental Loans, if any, outstanding
exceed the Purchase Money Debt Allowance.
6.2 LIENS AND RELATED MATTERS.
(A) PROHIBITION ON LIENS. Borrowers shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create, incur, assume or
permit to exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Borrowers or any of its Restricted Subsidiaries, whether now
owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the Uniform Commercial Code of any State or under any
similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Existing Liens described in Schedule 6.2 annexed hereto;
and
(iv) Liens securing Indebtedness permitted pursuant to
subsection 6.1(vi), provided that such Liens relate solely to the assets
financed with such Indebtedness.
(B) NO FURTHER NEGATIVE PLEDGES. Except with respect to specific
property encumbered to secure payment of particular Indebtedness (including
Indebtedness permitted under subsection 6.1(vi)) or to be sold pursuant to an
executed agreement with respect to an Asset Sale, neither Borrower nor any of
its Restricted Subsidiaries shall enter into any agreement (other than any
agreement prohibiting only the creation of Liens securing Subordinated
Indebtedness) prohibiting the creation or assumption of any Lien upon any of its
properties or assets, whether now owned or hereafter acquired (other than in
connection with Additional Notes permitted under subsection 6.1(iii), provided
that the covenants regarding Liens are no more restrictive to Company and its
Subsidiaries than those in the Existing Senior Note Indentures).
(C) NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Except as provided herein, each Borrower will not, and will not
permit any Restricted Subsidiaries to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any such Restricted Subsidiary to (i) pay dividends or make
any other distributions on any of such Restricted Subsidiary's Capital Stock
owned by Company or any other Restricted Subsidiary of Company, (ii) repay or
prepay any Indebtedness owed by such Restricted Subsidiary to Company or any
other Restricted Subsidiary of Company, (iii) make loans or advances to Company
or any other Restricted Subsidiary of
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<PAGE> 98
Company, or (iv) transfer any of its property or assets to Company or any other
Restricted Subsidiary of Company, except for such encumbrances or restrictions
existing under or by reason of (a) any restrictions existing under the Loan
Documents and (b) any restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement that has been entered into in connection with
the disposition of all or substantially all of the Capital Stock or assets of
such Restricted Subsidiary.
6.3 INVESTMENTS; JOINT VENTURES.
Borrowers shall not, and shall not permit any Restricted Subsidiaries
to, directly or indirectly, make or own any Investment in any Person, including
any Joint Venture, except:
(i) Company and its Restricted Subsidiaries may make and own
Investments in Cash and Cash Equivalents;
(ii) Company and its Restricted Subsidiaries may make
intercompany loans to the extent permitted under subsection 6.1(v);
(iii) Company and its Restricted Subsidiaries may continue to
own the Investments owned by them and described on Schedule 6.3 annexed
hereto;
(iv) Company and its Restricted Subsidiaries may continue to own
the Investments owned by them as of the Closing Date (after giving
effect to the Restructuring) in any Subsidiaries of Company;
(v) Company and its Restricted Subsidiaries may make additional
Investments in Restricted Subsidiaries;
(vi) Company and its Restricted Subsidiaries may make and own
Telecommunications Acquisitions to the extent permitted by subsection
6.9;
(vii) Company and its Restricted Subsidiaries may make and own
Investments in Unrestricted Subsidiaries, Joint Ventures or other
Persons; provided that the aggregate amount of such Investments does not
exceed $20,000,000 at any time;
(viii) Company and its Restricted Subsidiaries may make loans
and advances to members of management of Company, provided that the
aggregate amount of such management loans outstanding shall not exceed
$2,200,000 at any time; and
(ix) Company and its Restricted Subsidiaries may make
Investments consisting of notes received in connection with any Asset
Sale permitted pursuant to subsection 6.7; provided that in each case
the principal amount of such notes received shall not exceed 25% of the
total consideration received for the assets or property sold in such
Asset Sale and any promissory note or notes received in connection with
any single Asset Sale or series of related Asset Sales in excess of
$200,000 shall be pledged to Administrative Agent, for the benefit of
Lenders, to secure the Obligations.
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<PAGE> 99
6.4 CONTINGENT OBLIGATIONS.
Borrowers shall not, and shall not permit any Restricted Subsidiaries
to, directly or indirectly, create or become or remain liable with respect to
any Contingent Obligation, except:
(i) Company may become and remain liable with respect to
Contingent Obligations in respect of the Company Guaranty, and
Restricted Subsidiaries of Company may become and remain liable with
respect to Contingent Obligations in respect of the Subsidiary Guaranty;
(ii) Company may become and remain liable with respect to
Contingent Obligations under Hedge Agreements;
(iii) Company and its Restricted Subsidiaries, as applicable,
may remain liable with respect to Contingent Obligations described in
Schedule 6.4 annexed hereto;
(iv) Company may become and remain liable with respect to
standby letters of credit provided by Company in the ordinary course of
business in an aggregate principal amount not to exceed $20,000,000 at
any time outstanding; and
(v) Company may become and remain liable with respect to
guaranties of liabilities of Restricted Subsidiaries and Restricted
Subsidiaries may become and remain liable with respect to guaranties of
liabilities of other Restricted Subsidiaries, in each case to the extent
such guarantied liabilities are permitted to be incurred hereunder.
6.5 RESTRICTED JUNIOR PAYMENTS.
Company shall not, directly or indirectly, declare, order, pay, make or
set apart any sum for any Restricted Junior Payment; provided that so long as no
Event of Default or Potential Event of Default shall have occurred and be
continuing or shall be caused thereby:
(i) Company may make regularly scheduled interest payments in
respect of the Existing Senior Notes and any Additional Notes in
accordance with the terms of, and only to the extent required by, and
subject to the subordination provisions, if any, contained in, the
Existing Senior Note Indentures or any indenture or indentures pursuant
to which any Additional Notes are issued;
(ii) Company may declare and pay regularly scheduled dividends
in respect of the Preferred Stock, provided that (a) the Leverage Ratio
is equal to or less than 5.0:1.0, and (b) Company shall be in compliance
with the Minimum Fixed Charge Coverage Ratio covenant set forth in
subsection 6.6B(ii) and each other applicable covenant under subsection
6.6 after giving pro forma effect to such dividend;
(iii) Company may repurchase or redeem outstanding Capital Stock
of Company with the net proceeds received by Company from the issuance
of its Capital Stock of the same class or Capital Stock which is junior
to the Capital Stock being repurchased or redeemed, and Company may make
Cash payments to repurchase or
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<PAGE> 100
redeem fractional shares of Capital Stock in connection with such
repurchase or redemption in an amount not to exceed $100,000 in any
Fiscal Year;
(iv) to the extent Company makes any issuance of Additional
Notes, Company may use the net Cash proceeds from such Additional Notes
to redeem, repurchase or defease Indebtedness of Company and its
Restricted Subsidiaries; and
(v) Company may repurchase Capital Stock of Company held by
members of management of Company or any Restricted Subsidiary pursuant
to any management equity subscription agreement or stock option plan of
Company or upon the death or termination of employment of such member of
management; provided that the aggregate purchase price paid for all such
Capital Stock shall not exceed the sum of $2,000,000 plus the aggregate
cash proceeds received by Company from the issuance of Management Shares
after the Closing Date.
6.6 FINANCIAL COVENANTS
(A) PHASE 1 FINANCIAL COVENANTS. From the Closing Date through September
30, 2001, Borrowers shall comply with the following financial covenants:
(i) Consolidated Adjusted Total Debt to Total Net
Capitalization; and Consolidated Senior Debt to Total Gross
Capitalization. As of the last day of any Fiscal Quarter, (a) Borrowers'
ratio of Consolidated Adjusted Total Debt to Total Net Capitalization
shall not exceed (1) 0.65:1 during the period from the Closing Date
through December 31, 1999, (2) 0.70:1 during the period from January 1,
2000 through June 30, 2000 or (3) 0.75:1 for the period from July 1,
2000 through September 30, 2001 and (b) Borrowers' ratio of Consolidated
Senior Debt to Total Gross Capitalization shall not exceed 0.25:1.
(ii) Minimum Consolidated Quarterly Adjusted Revenues. As of the
last day of any Fiscal Quarter specified below, Borrowers shall not
permit Consolidated Quarterly Adjusted Revenue for such Fiscal Quarter
to be less than the correlative amount indicated below:
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<PAGE> 101
<TABLE>
<CAPTION>
================================================================================
MINIMUM CONSOLIDATED
QUARTER ENDED QUARTERLY ADJUSTED REVENUE
- --------------------------------------------------------------------------------
<S> <C>
September 30, 1999 $ 49,500,000
- --------------------------------------------------------------------------------
December 31, 1999 55,000,000
- --------------------------------------------------------------------------------
March 31, 2000 64,500,000
- --------------------------------------------------------------------------------
June 30, 2000 77,500,000
- --------------------------------------------------------------------------------
September 30, 2000 91,750,000
- --------------------------------------------------------------------------------
December 31, 2000 105,000,000
- --------------------------------------------------------------------------------
March 31, 2001 108,500,000
- --------------------------------------------------------------------------------
June 30, 2001 123,250,000
- --------------------------------------------------------------------------------
September 30, 2001 139,000,000
================================================================================
</TABLE>
(iii) Minimum Consolidated Adjusted EBITDA. As of the last day
of any Fiscal Quarter specified below, Borrowers shall not permit
Consolidated Adjusted EBITDA for such Fiscal Quarter to be less than the
correlative amount indicated:
<TABLE>
<CAPTION>
===========================================================================
QUARTER ENDED MINIMUM EBITDA
- ---------------------------------------------------------------------------
<S> <C>
September 30, 1999 $ (15,000,000)
- ---------------------------------------------------------------------------
December 31, 1999 (11,500,000)
- ---------------------------------------------------------------------------
March 31, 2000 (15,500,000)
- ---------------------------------------------------------------------------
June 30, 2000 (7,500,000)
- ---------------------------------------------------------------------------
September 30, 2000 (1,000,000)
- ---------------------------------------------------------------------------
December 31, 2000 7,000,000
- ---------------------------------------------------------------------------
March 31, 2001 6,500,000
- ---------------------------------------------------------------------------
June 30, 2001 13,500,000
- ---------------------------------------------------------------------------
September 30, 2001 21,500,000
===========================================================================
</TABLE>
(B) PHASE 2 FINANCIAL COVENANTS. From and after September 30, 2001
(except as otherwise specified), Borrowers shall comply with the following
financial covenants:
(i) Minimum Interest Coverage Ratio. Borrowers shall not permit
the ratio of (a) Consolidated Adjusted EBITDA to (b) Consolidated Cash
Interest Expense, as of the last day of any Fiscal Quarter for the
Fiscal Quarter then ended during any of the periods set forth below to
be less than the correlative ratio indicated:
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<PAGE> 102
<TABLE>
<CAPTION>
======================================================================
MINIMUM INTEREST
QUARTER ENDED COVERAGE RATIO
- ----------------------------------------------------------------------
<S> <C>
December 31, 2001 1.00:1
- ----------------------------------------------------------------------
March 31, 2002 1.00:1
- ----------------------------------------------------------------------
June 30, 2002 1.25:1
- ----------------------------------------------------------------------
September 30, 2002 1.25:1
- ----------------------------------------------------------------------
December 31, 2002 1.25:1
- ----------------------------------------------------------------------
March 31, 2003 1.25:1
- ----------------------------------------------------------------------
June 30, 2003 1.25:1
- ----------------------------------------------------------------------
September 30, 2003 1.25:1
- ----------------------------------------------------------------------
December 31, 2003 1.25:1
- ----------------------------------------------------------------------
March 31, 2004 1.50:1
- ----------------------------------------------------------------------
June 30, 2004 1.50:1
- ----------------------------------------------------------------------
September 30, 2004 1.50:1
- ----------------------------------------------------------------------
December 31, 2004 1.50:1
- ----------------------------------------------------------------------
March 31, 2005 1.75:1
- ----------------------------------------------------------------------
June 30, 2005 1.75:1
- ----------------------------------------------------------------------
September 30, 2005 2.00:1
- ----------------------------------------------------------------------
December 31, 2005 2.00:1
- ----------------------------------------------------------------------
March 31, 2006 2.25:1
- ----------------------------------------------------------------------
June 30, 2006 2.50:1
- ----------------------------------------------------------------------
September 30, 2006 2.75:1
- ----------------------------------------------------------------------
December 31, 2006 3.00:1
- ----------------------------------------------------------------------
March 31, 2007 3.00:1
- ----------------------------------------------------------------------
June 30, 2007 3.00:1
======================================================================
</TABLE>
(ii) Minimum Fixed Charge Coverage Ratio. From and after
December 31, 2003, Borrowers shall not permit the ratio of (a)
Consolidated Adjusted EBITDA to (b) Consolidated Fixed Charges as of the
last day of any Fiscal Quarter for the Fiscal Quarter then ended to be
less than (i) 0.75:1 during the period from and including December 31,
2003 through September 30, 2004, (ii) 1.00:1 during the period from and
including December 31, 2004 through September 30, 2005 or (iii) 1.10:1
thereafter.
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<PAGE> 103
(iii) Maximum Leverage Ratio. Borrowers shall not permit (a) the
ratio of Consolidated Senior Debt to Consolidated Annualized EBITDA or
(b) the ratio of Consolidated Total Debt to Consolidated Annualized
EBITDA as of the last day of any Fiscal Quarter ending during any of the
periods set forth below to exceed the correlative ratios indicated:
<TABLE>
<CAPTION>
==================================================================
SENIOR TOTAL
QUARTER ENDED DEBT RATIO DEBT RATIO
- ------------------------------------------------------------------
<S> <C> <C>
December 31, 2001 4.00:1 12.50:1
- ------------------------------------------------------------------
March 31, 2002 4:00:1 11.00:1
- ------------------------------------------------------------------
June 30, 2002 4:00:1 10.00:1
- ------------------------------------------------------------------
September 30, 2002 4:00:1 9.00:1
- ------------------------------------------------------------------
December 31, 2002 4:00:1 7.25:1
- ------------------------------------------------------------------
March 31, 2003 3.50:1 6.75:1
- ------------------------------------------------------------------
June 30, 2003 3.50:1 6.50:1
- ------------------------------------------------------------------
September 30, 2003 3.50:1 6.00:1
- ------------------------------------------------------------------
December 31, 2003 3:00:1 5.50:1
- ------------------------------------------------------------------
March 31, 2004 3:00:1 5.25:1
- ------------------------------------------------------------------
June 30, 2004 3:00:1 5.00:1
- ------------------------------------------------------------------
September 30, 2004 3:00:1 4.75:1
- ------------------------------------------------------------------
December 31, 2004 3:00:1 4.25:1
- ------------------------------------------------------------------
March 31, 2005 3:00:1 4.25:1
- ------------------------------------------------------------------
June 30, 2005 3:00:1 4.25:1
- ------------------------------------------------------------------
September 30, 2005 3:00:1 4.00:1
- ------------------------------------------------------------------
December 31, 2005 3:00:1 4.00:1
- ------------------------------------------------------------------
March 31, 2006 3:00:1 4.00:1
- ------------------------------------------------------------------
June 30, 2006 3:00:1 4.00:1
- ------------------------------------------------------------------
September 30, 2006 3:00:1 4.00:1
- ------------------------------------------------------------------
December 31, 2006 3:00:1 4.00:1
- ------------------------------------------------------------------
March 31, 2007 3:00:1 4.00:1
- ------------------------------------------------------------------
June 30, 2007 3:00:1 4.00:1
==================================================================
</TABLE>
(iv) Certain Calculations. With respect to calculations of
Consolidated Adjusted EBITDA, Consolidated Cash Interest Expense and
Consolidated Quarterly
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<PAGE> 104
Adjusted Revenues for purposes of determining compliance with
subsections 6.6A(ii) and (iii) and 6.6B(i), (ii) and (iii), for any
Fiscal Quarter during which any Telecommunications Acquisition permitted
under this Agreement was consummated or any Asset Sale (as defined in
clauses (i) or (ii) of the definition of Asset Sale) permitted under
this Agreement was consummated, such calculations shall be made on a pro
forma basis assuming, in each case, that such Telecommunications
Acquisition or such Asset Sale was consummated on the first day of the
applicable Fiscal Quarter. All such calculations shall be in form and
substance satisfactory to Arranger and Administrative Agent.
(C) CONSOLIDATED CASH CAPITAL EXPENDITURES. From and after Closing Date,
Borrowers shall not, and shall not permit any Restricted Subsidiaries to make or
incur Consolidated Cash Capital Expenditures, in any Fiscal Year indicated
below, in an aggregate amount in excess of the corresponding amount (the
"MAXIMUM CONSOLIDATED CASH CAPITAL EXPENDITURES AMOUNT") set forth below
opposite such Fiscal Year; provided that the Maximum Consolidated Cash Capital
Expenditures Amount for any Fiscal Year shall be increased by an amount equal to
the excess, if any, (but in no event more than 50% of such excess) of the
Maximum Consolidated Cash Capital Expenditures Amount for the previous Fiscal
Year (as adjusted in accordance with this proviso) over the actual amount of
Consolidated Cash Capital Expenditures for such previous Fiscal Year:
<TABLE>
<CAPTION>
================================================================================
FISCAL YEAR MAXIMUM CONSOLIDATED CASH
ENDED CAPITAL EXPENDITURES
- --------------------------------------------------------------------------------
<S> <C>
1999 $320,000,000
- --------------------------------------------------------------------------------
2000 $275,000,000
- --------------------------------------------------------------------------------
2001 $210,000,000
- --------------------------------------------------------------------------------
2002 $200,000,000
- --------------------------------------------------------------------------------
2003 $200,000,000
- --------------------------------------------------------------------------------
2004 $200,000,000
- --------------------------------------------------------------------------------
2005 $150,000,000
- --------------------------------------------------------------------------------
2006 $150,000,000
- --------------------------------------------------------------------------------
2007 $150,000,000
================================================================================
</TABLE>
Notwithstanding anything in the foregoing to the contrary, Company and its
Restricted Subsidiaries shall not be permitted to make or incur Consolidated
Cash Capital Expenditures in excess of $20,000,000, except (i) within existing
markets of Company and its Restricted Subsidiaries as of the Closing Date or
(ii) by ACSI Network Technologies, Inc. to design and build networks for third
parties in the ordinary course of its business, at any time prior to the date on
which Company shall have received aggregate gross proceeds of at least
$100,000,000 from the issuance after the Closing Date of (1) Capital Stock of
Company and/or (2) Additional Notes.
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<PAGE> 105
6.7 EXCESS CASH BALANCES.
To the extent that at any time the Cash Balances of Company exceed
$25,000,000 (such excess being the "EXCESS CASH BALANCES"), Company shall
promptly transfer the amount of any Excess Cash Balances either to (i) the
Collateral Account (as defined in the Collateral Account Agreement) in which
Administrative Agent shall have a perfected First Priority security interest as
security for Company's Obligations under the Loan Documents, on the terms and
conditions set forth in the Collateral Account Agreement or (ii) Finance Sub.
6.8 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES.
Company shall at no time create, acquire or otherwise have any direct
Subsidiary other than Finance Sub. Borrowers shall not, and shall not permit any
Restricted Subsidiary to, alter the corporate, capital or legal structure of
Borrowers or any Restricted Subsidiaries, or enter into any transaction of
merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or
sublessor), transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets, whether now
owned or hereafter acquired, except:
(i) any Restricted Subsidiary of Company may be merged with or
into any Wholly Owned Subsidiary Guarantor, or be liquidated, wound up
or dissolved, or all or any part of its business, property or assets may
be conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to any Wholly Owned Subsidiary
Guarantor; provided that, in the case of such a merger, such Wholly
Owned Subsidiary Guarantor shall be the continuing or surviving
corporation;
(ii) Borrowers and Restricted Subsidiaries may dispose of
obsolete, worn out or surplus property in the ordinary course of
business;
(iii) Borrowers and Restricted Subsidiaries may sell or
otherwise dispose of assets in transactions that do not constitute Asset
Sales; provided that the consideration received for such assets shall be
in an amount at least equal to the fair market value thereof;
(iv) subject to subsection 6.13, Borrowers and Restricted
Subsidiaries may during any Fiscal Year make Asset Sales of assets which
generated revenues comprising not more than 15% of consolidated revenues
of Company and its Restricted Subsidiaries for the prior Fiscal Year;
provided that (a) the consideration received for such assets shall be in
an amount at least equal to the fair market value thereof; (b) 75% of
the consideration received shall be Cash; and (c) the proceeds of such
Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(v) Company may issue (a) common stock and (b) preferred stock,
provided that the terms of such preferred stock are approved by
Requisite Lenders;
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<PAGE> 106
(vi) Borrowers and Restricted Subsidiaries may make Asset Sales
consisting of dispositions of assets pursuant to Use Agreements,
provided that the proceeds of such Asset Sales shall be applied as
required pursuant to subsection 2.4B(iii)(a); and
(vii) ACSI Network Technologies, Inc. may make ACSI Network
Sales.
6.9 ACQUISITIONS.
Borrowers shall not, and shall not permit any Restricted Subsidiaries
to, acquire by purchase or otherwise all or substantially all of the business,
property or fixed assets of, or stock or other evidence of beneficial ownership
of, any Person or any division or line of business of any Person, except:
(i) Company and its Restricted Subsidiaries may make
Consolidated Cash Capital Expenditures permitted under subsection 6.6C;
(ii) Telecommunications Acquisitions; provided that (a) the
aggregate cumulative consideration (including assumption of
Indebtedness) for all such acquisitions following the Closing Date shall
not exceed (1) $50,000,000 for the period from the Closing Date to the
later of (x) the date on which the Series B Term Loans may be fully
drawn in accordance with the limitations on borrowing set forth in
Section 2.1A(iv), and (y) January 1, 2001 (the later of such dates being
the "INCREASE DATE"), and the aggregate cumulative Cash consideration
for all such acquisitions during such period shall not exceed
$25,000,000, or (2) from and after the Increase Date, the aggregate
cumulative consideration (including assumption of Indebtedness) for all
such acquisitions since the Closing Date shall not exceed $100,000,000,
and the aggregate cumulative Cash consideration since the Closing Date
shall not exceed $50,000,000 and (b) at least five Business Days prior
to the date of the consummation of such acquisition, Company shall
deliver to the Lenders and Administrative Agent projected financial
statements for Company and its Restricted Subsidiaries on a consolidated
basis through the Maturity Date giving pro forma effect to such
acquisition demonstrating that Borrowers shall be in pro forma
compliance with all of the covenants contained in this Agreement through
the Maturity Date.
In the event Borrowers desire to obtain the consent of Requisite Lenders
to any acquisition not otherwise permitted under this subsection 6.9, Company
shall notify Administrative Agent. Administrative Agent shall notify Lenders as
soon as practicable following receipt of a request for consent to an acquisition
from Company and shall cooperate with Company in seeking to obtain Requisite
Lenders' approval or disapproval of such request within a commercially
reasonable time period taking into account all relevant factors at the time of
such request.
6.10 SALES AND LEASE-BACKS.
Borrowers shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (i) which Borrowers or any Restricted
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Subsidiary has sold or transferred or is to sell or transfer to any other Person
(other than Borrower or any Restricted Subsidiaries) or (ii) which Borrowers or
any Restricted Subsidiary intends to use for substantially the same purpose as
any other property which has been or is to be sold or transferred by Company or
any Restricted Subsidiary to any Person (other than Borrower or any Restricted
Subsidiaries) in connection with such lease.
6.11 SALE OR DISCOUNT OF RECEIVABLES.
Borrowers shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, sell with recourse, or discount or otherwise sell for
less than the face value thereof, any of its notes or accounts receivable.
Nothing in this subsection 6.11 shall prevent Borrowers or any Restricted
Subsidiary from (i) settling an account with the obligor thereon for less than
the face value of such account if in the ordinary course of business it is
determined that such settlement is necessary to collect such account or (ii)
selling delinquent accounts at a discount to a third party for collection
purposes.
6.12 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Borrowers shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder of 5% or more of any class of equity Securities of
Company or with any Affiliate of Company or of any such holder, on terms that
are less favorable to Borrower or that Restricted Subsidiary, as the case may
be, than those that would be obtained at the time from Persons who are not such
a holder or Affiliate; provided that the foregoing restriction shall not apply
to (i) any transaction between Borrowers and any of its Wholly Owned
Subsidiaries or between any of its Wholly Owned Subsidiaries or (ii) reasonable
and customary fees paid or stock options awarded to members of the Boards of
Directors of Borrowers and their Restricted Subsidiaries.
6.13 DISPOSAL OF SUBSIDIARY STOCK.
Except for any sale of 100% of the Capital Stock of a Subsidiary in
compliance with subsection 6.8, Borrowers shall not:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of Capital Stock or other equity
Securities of any Restricted Subsidiaries, except to qualify directors
if required by applicable law; or
(ii) permit any Restricted Subsidiary directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any shares of
Capital Stock or other equity Securities of any Restricted Subsidiaries
(including such Subsidiary), except to Company, another Restricted
Subsidiary of Company, or to qualify directors if required by applicable
law.
6.14 CONDUCT OF BUSINESS.
From and after the Closing Date, Borrowers shall not, and shall not
permit any Restricted Subsidiary to, engage in any business other than the
telecommunications businesses engaged in
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by Company and its Restricted Subsidiaries on the Closing Date and similar or
related businesses and such other lines of business as may be consented to by
Requisite Lenders. From and after the Closing Date, Company shall not engage in
any business or activities other than (a) owning the stock of Finance Sub, (b)
performing its obligations under the Loan Documents, Existing Senior Notes and
Existing Senior Note Indentures and under the Additional Notes and any
agreements governing such Additional Notes, (c) activities associated with the
maintenance of its corporate existence and with respect to the payment of
consolidated tax liabilities of Company and its Subsidiaries and (c) the making
of Restricted Junior Payments to the extent permitted under subsection 6.5. From
and after the Closing Date, no Subsidiary of Company shall be principally
engaged in a Telecommunications Business unless such Subsidiary is a direct or
indirect Wholly Owned Subsidiary of Finance Sub and no Subsidiary of Company
shall be formed or acquired to principally engage in the Telecommunications
Business unless such Subsidiary is a direct or indirect Wholly Owned Subsidiary
of Finance Sub.
6.15 AMENDMENTS OR WAIVERS OF CERTAIN RELATED AGREEMENTS.
Neither Company nor any of its Subsidiaries will agree to any amendment
to, or request any waiver of (other than a waiver for which no fee is paid and
no other concessions or considerations are granted by Company or its
Subsidiaries), or waive any of their respective rights under, any of the Related
Agreements (other than any amendment or waiver described in the next succeeding
sentence) without in each case obtaining the prior written consent of
Administrative Agent and Requisite Lenders to such amendment, request or waiver
and giving notice to Arranger. Notwithstanding the foregoing, Company and its
Subsidiaries may agree to amend or waive any provisions of the Related
Agreements (i) to cure any ambiguity, to correct or supplement any provision
therein which may be defective or inconsistent with any other provision therein,
or (ii) to comply with the Trust Indenture Act of 1939, as amended, or (iii) to
make modifications of a technical or clarifying nature or which are no less
favorable to the Lenders, in the reasonable opinion of Administrative Agent and
Requisite Lenders, than the provisions of the Related Agreements as in effect on
the Closing Date (for the purposes of this subsection 6.15, any amendment,
modification or change which would extend the maturity or reduce the amount of
any payment of principal on the Existing Senior Notes or which would reduce the
rate or extend the date for payment of interest thereon, provided that no fee is
payable in connection therewith, shall be deemed to be an amendment,
modification or change that is no less favorable to the Lenders). Neither
Company, Finance Sub nor any Restricted Subsidiary shall agree to any amendment
or any waiver of any of the Intercompany Loan Documents without the prior
written consent of Requisite Lenders.
6.16 FISCAL YEAR
Borrowers shall not change their Fiscal Year-end from December 31.
6.17 MASTER NOTE AND INTERCOMPANY PURCHASE MONEY NOTE.
Borrowers shall not permit at any time the aggregate principal amount
outstanding under the Master Note to differ from (i) the aggregate principal
amount of Series B Term Loans, Series C Term Loans and Incremental Loans, if
any, outstanding or (ii) the aggregate principal amount outstanding under the
Intercompany Purchase Money Note.
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SECTION 7.
EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT") shall
occur:
7.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by either Borrower to pay any installment of principal of any
Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; or failure by either
Borrower to pay any interest on any Loan or any fee or any other amount due
under this Agreement within five days after the date due; or
7.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of either Borrower or any of its Subsidiaries to pay when
due any principal of or interest on or any other amount payable in respect of
one or more items of Indebtedness (other than Indebtedness referred to in
subsection 7.1) or Contingent Obligations in an individual principal amount of
$2,000,000 or more or with an aggregate principal amount of $5,000,000 or more,
in each case beyond the end of any grace period provided therefor; or (ii)
breach or default by either Borrower or any of its Subsidiaries with respect to
any other material term of (a) one or more items of Indebtedness or Contingent
Obligations in the individual or aggregate principal amounts referred to in
clause (i) above or (b) any loan agreement, mortgage, indenture or other
agreement relating to such item(s) of Indebtedness or Contingent Obligation(s),
if the effect of such breach or default is to cause, or to permit the holder or
holders of that Indebtedness or Contingent Obligation(s) (or a trustee on behalf
of such holder or holders) to cause, that Indebtedness or Contingent
Obligation(s) to become or be declared due and payable prior to its stated
maturity or the stated maturity of any underlying obligation, as the case may be
(upon the giving or receiving of notice, lapse of time, both, or otherwise); or
7.3 BREACH OF CERTAIN COVENANTS.
Failure of either Borrower to perform or comply with any term or
condition contained in subsections 2.5 or 5.2 or Section 6 of this Agreement; or
7.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement made by
any Loan Party in any Loan Document or in any statement or certificate at any
time given by any Loan Party in writing pursuant hereto or thereto or in
connection herewith or therewith shall be false in any material respect on the
date as of which made; or
7.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or compliance with
any term contained in this Agreement or any of the other Loan Documents, other
than any such term referred to in any other subsection of this Section 7, and
such default shall not have been remedied or waived within 30 days after the
earlier of (i) an officer of such Loan Party becoming
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aware of such default or (ii) receipt by Borrowers of notice from Administrative
Agent or any Lender of such default; or
7.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of any Loan Party in an involuntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, which decree or order is not stayed; or any
other similar relief shall be granted under any applicable federal or state law;
or (ii) an involuntary case shall be commenced against any Loan Party under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over any
Loan Party, or over all or a substantial part of its property, shall have been
entered; or there shall have occurred the involuntary appointment of an interim
receiver, trustee or other custodian of any Loan Party for all or a substantial
part of its property; or a warrant of attachment, execution or similar process
shall have been issued against any substantial part of the property of any Loan
Party, and any such event described in this clause (ii) shall continue for 60
days unless dismissed, bonded or discharged; or
7.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Any Loan Party shall have an order for relief entered with respect
to it or commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or any
Loan Party shall make any assignment for the benefit of creditors; or (ii) any
Loan Party shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due; or the Board of
Directors of any Loan Party (or any committee thereof) shall adopt any
resolution or otherwise authorize any action to approve any of the actions
referred to in clause (i) above or this clause (ii); or
7.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $2,000,000 or (ii)
in the aggregate at any time an amount in excess of $5,000,000 (in either case
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
any Loan Party or any of their respective assets and shall remain undischarged,
unvacated, unbonded or unstayed for a period of 60 days (or in any event later
than five days prior to the date of any proposed sale thereunder); or
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7.9 DISSOLUTION.
Any order, judgment or decree shall be entered against any Loan Party
decreeing the dissolution or split up of such Loan Party and such order shall
remain undischarged or unstayed for a period in excess of 30 days; or
7.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually or in the
aggregate results in or would reasonably be expected to result in liability of
any Loan Party or any of their respective ERISA Affiliates in excess of
$2,000,000 during the term of this Agreement; or there shall exist as of the
most recently ended plan year an amount of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for
all Pension Plans (excluding for purposes of such computation any Pension Plans
with respect to which assets exceed benefit liabilities), which exceeds
$5,000,000 and which if required to be fully paid could reasonably be expected
to have a Material Adverse Effect; or
7.11 CHANGE IN CONTROL.
(i) Company shall cease to own 100% of the outstanding Capital Stock of
Finance Sub; (ii) any "Change of Control" shall occur under the Existing Senior
Note Indentures; or (iii) any "Person" or "group" (within the meaning of
Sections 13(d)(3) and 14(d)(2) of the Exchange Act or any successor provision to
either of the foregoing, including any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(i) under the Exchange Act), other than any Permitted Holder, becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more
than 35% of the total voting power of all classes of the Voting Stock of Company
and/or warrants or options to acquire such Voting Stock, calculated on a fully
diluted basis, and such voting power percentage is greater than or equal to the
total voting power percentage then beneficially owned by the Permitted Holders
in the aggregate; or (iv) during any period of two consecutive years,
individuals who at the beginning of such period constituted the board of
directors of Company (together with any new directors whose election or
appointment by such board or whose nomination for election by the shareholders
of Company was approved by a vote of a majority of the directors 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 a majority of the board of directors then in office; or
7.12 INVALIDITY OF SUBSIDIARY GUARANTY; FAILURE OF SECURITY; REPUDIATION OF
OBLIGATIONS.
At any time after the execution and delivery thereof, (i) the Subsidiary
Guaranty for any reason, other than the satisfaction in full of all Obligations,
shall cease to be in full force and effect (other than in accordance with its
terms) or shall be declared to be null and void, (ii) any Collateral Document or
Intercompany Loan Document shall cease to be in full force and effect (other
than by reason of a release of Collateral thereunder in accordance with the
terms hereof or thereof, the satisfaction in full of the Obligations or any
other termination of such Collateral Document in accordance with the terms
hereof or thereof) or shall be declared null and void, or Administrative Agent
shall not have or shall cease to have a valid and perfected First Priority
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Lien in any Collateral purported to be covered thereby in each case for any
reason other than the failure of Administrative Agent or any Lender to take any
action within its control, or (iii) any Loan Party shall contest the validity or
enforceability of any Loan Document or Intercompany Loan Document in writing or
deny in writing that it has any further liability, including with respect to
future advances by Lenders, under any Loan Document to which it is a party; or
7.13 LICENSES.
Any of the following shall occur, the result of which would reasonably
be expected to have a Material Adverse Effect: (i) any material License shall be
cancelled, terminated, rescinded, revoked, suspended, materially impaired or
otherwise finally denied renewal, or shall cease to be in full force and effect;
(ii) any proceeding shall have been instituted by or shall have been commenced
before any court or any Communications Regulatory Authority that would
reasonably be expected to result in (a) cancellation, termination, rescission,
revocation, material impairment, suspension or denial of renewal of a material
License, or (b) a modification of a material License in a material adverse
respect or a renewal thereof on terms that materially and adversely affect the
economic or commercial value or usefulness thereof; or (iii) any material
Interconnection Agreement shall be terminated, reformed, suspended or otherwise
materially impaired, or shall be renegotiated and renewed or replaced on terms
that materially and adversely affect the economic or commercial value or
usefulness thereof, whether by action of the parties thereto or by action of or
under, modification to, or rescinding of the Communications Act, State Law or
any Regulations, in whole or in part:
THEN (i) upon the occurrence of any Event of Default described in subsection 7.6
or 7.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans and (b) all other Obligations shall automatically become immediately due
and payable, without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by Borrowers, and the obligation
of each Lender to make any Loan and (ii) upon the occurrence and during the
continuation of any other Event of Default, Administrative Agent shall, upon the
request or with the consent of Requisite Lenders, by written notice to
Borrowers, (1) declare all or any portion of the amounts described in clauses
(a) and (b) above to be, and the same shall forthwith become, immediately due
and payable, and the obligation of each Lender to make any Loan hereunder shall
thereupon terminate and (2) subject to the terms of the Loan Documents, take any
and all other actions requested by Requisite Lenders; provided that the
foregoing shall not affect in any way the obligations of Lenders to purchase
participations in any unpaid Swing Line Loans as provided in subsection 2.1A(v).
Notwithstanding anything contained in the second preceding paragraph, if
at any time within 60 days after an acceleration of the Loans pursuant to clause
(ii) of such paragraph Borrowers shall pay all arrears of interest and all
payments on account of principal which shall have become due otherwise than as a
result of such acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other than
non-payment of the principal of and accrued interest on the Loans, in each case
which is due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to subsection 9.6, then Requisite Lenders, by written notice to
Borrowers, may at their option rescind and annul such acceleration and its
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consequences; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right consequent thereon. The
provisions of this paragraph are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and are not intended,
directly or indirectly, to benefit Borrowers, and such provisions shall not at
any time be construed so as to grant Borrowers the right to require Lenders to
rescind or annul any acceleration hereunder or to preclude Administrative Agent
or Lenders from exercising any of the rights or remedies available to them under
any of the Loan Documents, even if the conditions set forth in this paragraph
are met.
SECTION 8.
AGENTS
8.1 APPOINTMENT.
(A) APPOINTMENT OF AGENTS. GSCP is hereby appointed Arranger and
Syndication Agent hereunder, and each Lender hereby authorizes Arranger and
Syndication Agent to act as its agent in accordance with the terms of this
Agreement and the other Loan Documents. BNY is hereby appointed Administrative
Agent hereunder and under the other Loan Documents and each Lender hereby
authorizes Administrative Agent to act as its agent in accordance with the terms
of this Agreement and the other Loan Documents. First Union National Bank is
hereby appointed Documentation Agent hereunder and Newcourt Commercial Finance
Corporation is hereby appointed Collateral Agent hereunder and each Lender
hereby authorizes Documentation Agent and Collateral Agent to act as its agent
in accordance with the terms of this Agreement and the other Loan Documents.
Each Agent hereby agrees to act upon the express conditions contained in this
Agreement and the other Loan Documents, as applicable. The provisions of this
Section 8 are solely for the benefit of Agents and Lenders and Borrowers shall
have no rights as a third party beneficiaries of any of the provisions thereof.
In performing its functions and duties under this Agreement, each Agent shall
act solely as an agent of Lenders and does not assume and shall not be deemed to
have assumed any obligation towards or relationship of agency or trust with or
for Borrowers or any of their Subsidiaries. Each of Arranger and Syndication
Agent, without consent of or notice to any party hereto, may assign any and all
of its rights or obligations hereunder to any of its Affiliates. As of the
Closing Date, all obligations of Arranger, Syndication Agent, Documentation
Agent and Collateral Agent hereunder shall terminate other than the obligations
of Syndication Agent under subsection 2.1A(vi).
(B) APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the purpose of
this Agreement and the other Loan Documents that there shall be no violation of
any law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or trustee in such
jurisdiction. It is recognized that in case of litigation under this Agreement
or any of the other Loan Documents, and in particular in case of the enforcement
of any of the Loan Documents, or in case Administrative Agent deems that by
reason of any present or future law of any jurisdiction it may not exercise any
of the rights, powers or remedies granted herein or in any of the other Loan
Documents or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that Administrative Agent appoint an
additional individual or institution as a separate trustee, co-trustee,
collateral agent or collateral co-agent (any such additional individual or
institution being referred to herein
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individually as a "SUPPLEMENTAL COLLATERAL AGENT" and collectively as
"SUPPLEMENTAL COLLATERAL AGENTS").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either Agent or such Supplemental Collateral Agent, and (ii) the provisions of
this Section 8 and of subsections 9.2 and 9.3 that refer to Administrative Agent
shall inure to the benefit of such Supplemental Collateral Agent and all
references therein to Administrative Agent shall be deemed to be references to
Administrative Agent and/or such Supplemental Collateral Agent, as the context
may require.
Should any instrument in writing from Company or any other Loan Party be
required by any Supplemental Collateral Agent so appointed by Administrative
Agent for more fully and certainly vesting in and confirming to him or it such
rights, powers, privileges and duties, Company shall, or shall cause such Loan
Party to, execute, acknowledge and deliver any and all such instruments promptly
upon request by Administrative Agent. In case any Supplemental Collateral Agent,
or a successor thereto, shall die, become incapable of acting, resign or be
removed, all the rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall vest in and be exercised
by Administrative Agent until the appointment of a new Supplemental Collateral
Agent.
8.2 POWERS AND DUTIES; GENERAL IMMUNITY.
(A) POWERS; DUTIES SPECIFIED. Each Lender irrevocably authorizes each
Agent to take such action on such Lender's behalf and to exercise such powers,
rights and remedies hereunder and under the other Loan Documents as are
specifically delegated or granted to such Agent by the terms hereof and thereof,
together with such powers, rights and remedies as are reasonably incidental
thereto. Each Agent shall have only those duties and responsibilities that are
expressly specified in this Agreement and the other Loan Documents. Each Agent
may exercise such powers, rights and remedies and perform such duties by or
through its agents or employees. No Agent shall have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon any Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.
(B) NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be responsible
to any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral
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statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by any of Agent to Lenders
or by or on behalf of either Borrower to any Agent or any Lender in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of either Borrower or any other Person
liable for the payment of any Obligations, nor shall any Agent be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or as to the existence
or possible existence of any Event of Default or Potential Event of Default.
Anything contained in this Agreement to the contrary notwithstanding,
Administrative Agent shall not have any liability arising from confirmations of
the amount of outstanding Loans or the component amounts thereof.
(C) EXCULPATORY PROVISIONS. None of Agents nor any of their respective
officers, partners, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by any Agent under or in connection with any of
the Loan Documents except to the extent caused by such Agent's gross negligence
or willful misconduct. Each Agent shall be entitled to refrain from any act or
the taking of any action (including the failure to take an action) in connection
with this Agreement or any of the other Loan Documents or from the exercise of
any power, discretion or authority vested in it hereunder or thereunder unless
and until such Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 9.6) and, upon receipt of such instructions from
Requisite Lenders (or such other Lenders, as the case may be), such Agent shall
be entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Borrowers and their Subsidiaries),
accountants, experts and other professional advisors selected by it; and (ii) no
Lender shall have any right of action whatsoever against any Agent as a result
of such Agent acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 9.6).
(D) AGENT ENTITLED TO ACT AS LENDER. The agency hereby created shall in
no way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, each
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include each Agent
in its individual capacity. Any Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Company or any of its Affiliates as if
it were not performing the duties specified herein, and may accept fees and
other consideration from Borrowers for services in connection with this
Agreement and otherwise without having to account for the same to Lenders.
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8.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of the Loan Parties in
connection with the making of the Loans hereunder and that it has made and shall
continue to make its own appraisal of the creditworthiness of the Loan Parties.
No Agent shall have any duty or responsibility, either initially or on a
continuing basis, to make any such investigation or any such appraisal on behalf
of Lenders or to provide any Lender with any credit or other information with
respect thereto, whether coming into its possession before the making of the
Loans or at any time or times thereafter, and no Agent shall have any
responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
8.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been
reimbursed by Borrowers, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against such
Agent in exercising its powers, rights and remedies or performing its duties
hereunder or under the other Loan Documents or otherwise in its capacity as such
Agent in any way relating to or arising out of this Agreement or the other Loan
Documents; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. If any indemnity furnished to any Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished.
8.5 SUCCESSOR ADMINISTRATIVE AGENT AND SWING LINE LENDER.
(A) SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may resign at
any time by giving 30 days' prior written notice thereof to Lenders and
Borrowers, and Administrative Agent may be removed at any time with or without
cause by an instrument or concurrent instruments in writing delivered to
Borrowers and Administrative Agent and signed by Requisite Lenders. Upon any
such notice of resignation or any such removal, Requisite Lenders shall have the
right, upon five Business Days' notice to Borrowers, to appoint a successor
Administrative Agent, which successor Administrative Agent shall, unless an
Event of Default shall have occurred and be continuing, be subject to approval
of Borrowers (such approval not to be unreasonably withheld or delayed). Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring or removed Administrative Agent and the retiring or
removed Administrative Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring or removed Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Section 8 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
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(B) SUCCESSOR SWING LINE LENDER. Any resignation or removal of
Administrative Agent pursuant to subsection 8.5A shall also constitute the
resignation or removal of BNY or its successor as Swing Line Lender, and any
successor Administrative Agent appointed pursuant to subsection 8.5A shall, upon
its acceptance of such appointment, become the successor Swing Line Lender for
all purposes hereunder. In such event (i) Company shall prepay any outstanding
Swing Line Loans made by the retiring or removed Administrative Agent in its
capacity as Swing Line Lender, (ii) upon such prepayment, the retiring or
removed Administrative Agent and Swing Line Lender shall surrender the Swing
Line Note held by it to Company for cancellation, and (iii) Company shall issue
a new Swing Line Note to the successor Administrative Agent and Swing Line
Lender substantially in the form of Exhibit VII annexed hereto, in the principal
amount of the Swing Line Loan Commitment then in effect and with other
appropriate insertions.
8.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Administrative Agent, on
behalf of and for the benefit of Lenders, to enter into each Collateral Document
as secured party and to be the agent for and representative of Lenders under the
Subsidiary Guaranty, and each Lender agrees to be bound by the terms of each
Collateral Document and the Subsidiary Guaranty; provided that Administrative
Agent shall not (i) enter into or consent to any material amendment,
modification, termination or waiver of any provision contained in any Collateral
Document or the Subsidiary Guaranty or (ii) release any Collateral (except as
otherwise expressly permitted or required pursuant to the terms of this
Agreement or the applicable Collateral Document), in each case without the prior
consent of Requisite Lenders (or, if required pursuant to subsection 9.6, all
Lenders); provided further, however, that, without further written consent or
authorization from Lenders, Administrative Agent may execute any documents or
instruments necessary to (a) release any Lien encumbering any item of Collateral
that is the subject of a sale or other disposition of assets permitted by this
Agreement or to which Requisite Lenders have otherwise consented or (b) release
any Subsidiary Guarantor from the Subsidiary Guaranty if all of the Capital
Stock of such Subsidiary Guarantor is sold to any Person (other than an
Affiliate of Company) pursuant to a sale or other disposition permitted
hereunder or to which Requisite Lenders have otherwise consented. In the event
Collateral is sold in an Asset Sale permitted hereunder or otherwise consented
to by Requisite Lenders, Administrative Agent may, without further consent or
authorization from Lenders, release the Liens granted under the Collateral
Documents on the Collateral that is the subject of such Asset Sale concurrently
with the consummation of such Asset Sale; provided that Administrative Agent
shall have received (i) reasonable, and in any event not less than 30 days'
prior written notice of such Asset Sale from Company unless a shorter notice
period is agreed to by Administrative Agent; (ii) an Officers' Certificate (1)
certifying that no Event of Default or Potential Event of Default shall have
occurred and be continuing as of the date of such release of Collateral, (2)
setting forth a detailed description of the Collateral subject to such Asset
Sale, and (3) certifying that such Asset Sale is permitted under this Agreement
and that all conditions precedent to such Asset Sale under this Agreement have
been met; and (iii) Administrative Agent shall have received all Net Cash
Proceeds of Asset Sale, if any, required to be applied to repay Secured
Obligations under this Agreement. Upon payment in full of all of the Obligations
and termination of the Commitments, Administrative Agent shall release the Liens
on such Collateral granted pursuant to the Collateral Documents. Upon any
release of Collateral pursuant to the foregoing, Administrative Agent
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shall, at Borrowers' expense, execute and deliver such documents (without
recourse or representation or warranty) as reasonably requested to evidence such
release. Anything contained in any of the Loan Documents to the contrary
notwithstanding, Company, Administrative Agent and each Lender hereby agree that
(1) no Lender shall have any right individually to realize upon any of the
Collateral under any Collateral Document or to enforce the Subsidiary Guaranty,
it being understood and agreed that all powers, rights and remedies under the
Collateral Documents and the Subsidiary Guaranty may be exercised solely by
Administrative Agent for the benefit of Lenders in accordance with the terms
thereof, and (2) in the event of a foreclosure by Administrative Agent on any of
the Collateral pursuant to a public or private sale, Administrative Agent or any
Lender may be the purchaser of any or all of such Collateral at any such sale
and Administrative Agent, as agent for and representative of Lenders (but not
any Lender or Lenders in its or their respective individual capacities unless
Requisite Lenders shall otherwise agree in writing) shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price for
any collateral payable by Administrative Agent at such sale.
SECTION 9.
MISCELLANEOUS
9.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS.
(A) GENERAL. Subject to subsection 9.1B, each Lender shall have the
right at any time to (i) sell, assign or transfer to any Eligible Assignee, or
(ii) sell participations to any Person in, all or any part of its Commitments or
any Loan or Loans made by it or any other interest herein or in any other
Obligations owed to it; provided that no such sale, assignment, transfer or
participation shall, without the consent of Borrowers, require Borrowers to file
a registration statement with the Securities and Exchange Commission or apply to
qualify such sale, assignment, transfer or participation under the securities
laws of any state; provided further that no such sale, assignment or transfer
described in clause (i) above shall be effective unless and until an Assignment
Agreement effecting such sale, assignment or transfer shall have been accepted
by Administrative Agent and recorded in the Register as provided in subsection
9.1B(ii); and provided further that, anything contained herein to the contrary
notwithstanding, the Swing Line Loan Commitment and the Swing Line Loans of
Swing Line Lender may not be sold, assigned or transferred as described in
clause (i) above to any Person other than a successor Administrative Agent and
Swing Line Lender to the extent contemplated by subsection 8.5. Except as
otherwise provided in this subsection 9.1, no Lender shall, as between Borrowers
and such Lender, be relieved of any of its obligations hereunder as a result of
any sale, assignment or transfer of, or any granting of participations in, all
or any part of its Commitments or the Loans, or the other Obligations owed to
such Lender.
(B) ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Each Commitment, Loan or
participation therein, or other Obligation may (a) be assigned in any
amount to another Lender, or to an Affiliate of the assigning Lender or
another Lender, with the giving of notice to Borrowers and
Administrative Agent or (b) be assigned in an aggregate amount
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of not less than $5,000,000 in the case of the Series A Revolving Loan
Commitments and Series A Revolving Loans and $1,000,000 in the case of
the Series B Term Loan Commitments and Series B Term Loans, the Series C
Term Loans and the Incremental Loans, if any (in each case, other than
for assignments to other Lenders or Affiliates of such Lender or other
Lenders) (or such lesser amount as shall constitute the aggregate amount
of the Commitments, Loans, and other Obligations of the assigning
Lender) to any other Eligible Assignee with the giving of notice to
Borrowers and with the consent of Company (except upon the occurrence
and during the continuance of an Event of Default) and Administrative
Agent (which consent of Company and Administrative Agent shall not be
unreasonably withheld or delayed). To the extent of any such assignment
in accordance with either clause (a) or (b) above, the assigning Lender
shall be relieved of its obligations with respect to its Commitments,
Loans, or other Obligations or the portion thereof so assigned. The
parties to each such assignment shall execute and deliver to
Administrative Agent, for its acceptance and recording in the Register,
an Assignment Agreement, together with a processing and recordation fee
of $3,500 with respect to assignments by any Lender (other than GSCP) to
any person and $500 with respect to assignments by or to GSCP, and such
forms, certificates or other evidence, if any, with respect to United
States federal income tax withholding matters as the assignee under such
Assignment Agreement may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii)(a). Upon such execution, delivery,
acceptance and recordation, from and after the effective date specified
in such Assignment Agreement, (1) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment Agreement, shall
have the rights and obligations of a Lender hereunder and (2) the
assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment Agreement, relinquish its rights (other than any rights which
survive the termination of this Agreement under subsection 9.8B) and be
released from its obligations under this Agreement (and, in the case of
an Assignment Agreement covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto. The Commitments hereunder shall
be modified to reflect the Commitment of such assignee and any remaining
Commitment of such assigning Lender and, if any such assignment occurs
after the issuance of any Notes hereunder, the assigning Lender shall,
upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its applicable Notes to Administrative Agent for
cancellation, and thereupon, upon the request of the assignee and/or the
assigning Lender, new Notes shall be issued to the assignee and/or to
the assigning Lender, substantially in the form of Exhibit IV, Exhibit V
or Exhibit VI annexed hereto, as the case may be, with appropriate
insertions, to reflect the new Commitments and/or Incremental Loans, as
the case may be, of the assignee and/or the assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in
Register. Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing and recordation fee referred to
in subsection 9.1B(i) and any forms, certificates or other evidence with
respect to United States federal income tax withholding matters that
such assignee may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii)(a),
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Administrative Agent shall, if Administrative Agent and Company have
consented to the assignment evidenced thereby (in each case to the
extent such consent is required pursuant to subsection 9.1B(i)), (a)
accept such Assignment Agreement by executing a counterpart thereof as
provided therein (which acceptance shall evidence any required consent
of Administrative Agent to such assignment), (b) record the information
contained therein in the Register, and (c) give prompt notice thereof to
Company. Administrative Agent shall maintain a copy of each Assignment
Agreement delivered to and accepted by it as provided in this subsection
9.1B(ii).
(C) PARTICIPATIONS. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the regularly scheduled maturity of any
portion of the principal amount of or interest on any Loan allocated to such
participation or (ii) a reduction of the principal amount of or the rate of
interest payable on any Loan allocated to such participation, and all amounts
payable by Company hereunder (including amounts payable to such Lender pursuant
to subsections 2.6D and 2.7) shall be determined as if such Lender had not sold
such participation. Company and each Lender hereby acknowledge and agree that,
solely for purposes of subsections 9.4 and 9.5, (a) any participation will give
rise to a direct obligation of Company to the participant and (b) the
participant shall be considered to be a "Lender".
(D) ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the assignments
and participations permitted under the foregoing provisions of this subsection
9.1, any Lender may assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender, and its Notes (i) to any 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 or (ii) to a trustee in connection with a Loan securitization transaction;
provided that (i) no Lender shall, as between Borrowers and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall any Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
(E) INFORMATION. Each Lender may furnish any information concerning the
Loan Parties in the possession of that Lender from time to time to assignees and
participants (including prospective assignees and participants), subject to
subsection 9.18.
(F) REPRESENTATIONS OF LENDERS. Each Lender listed on the signature
pages hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (i) of the definition thereof; (ii) that it has experience
and expertise in the making of or investing in loans such as the Loans; and
(iii) that it will make its Loans for its own account in the ordinary course of
its business and without a view to distribution of such Loans within the meaning
of the Securities Act or the Exchange Act or other federal securities laws (it
being understood that, subject to the provisions of this subsection 9.1, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such Assignment Agreement
are incorporated herein by this reference.
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9.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Borrowers agree, jointly and severally, to pay promptly (i) all the
actual and reasonable costs and expenses of preparation of the Loan Documents
and any consents, amendments, waivers or other modifications thereto; (ii) all
the costs of furnishing all opinions by counsel for Borrowers (including any
opinions requested by Lenders as to any legal matters arising hereunder) and of
Borrowers' performance of and compliance with all agreements and conditions on
its part to be performed or complied with under this Agreement and the other
Loan Documents including with respect to confirming compliance with
environmental, insurance and solvency requirements; (iii) the reasonable fees,
expenses and disbursements of counsel to Arranger and counsel to Administrative
Agent (in each case including allocated costs of internal counsel) in connection
with the negotiation, preparation, execution and administration of the Loan
Documents and any consents, amendments, waivers or other modifications thereto
and any other documents or matters requested by Borrowers; (iv) all the actual
costs and reasonable expenses of creating and perfecting Liens in favor of
Administrative Agent on behalf of Lenders pursuant to any Collateral Document,
including filing and recording fees, expenses and taxes, stamp or documentary
taxes, search fees, title insurance premiums, and reasonable fees, expenses and
disbursements of counsel to Arranger and counsel to Administrative Agent and of
counsel providing any opinions that Arranger, Administrative Agent or Requisite
Lenders may request in respect of the Collateral Documents or the Liens created
pursuant thereto; (v) all the actual costs and reasonable expenses and
disbursements of any auditors, accountants or appraisers and any environmental
or other consultants, advisors and agents employed or retained by Administrative
Agent or Arranger and its counsel; (vi) all the actual costs and reasonable
expenses disbursements of any consultants, advisors and agents employed or
retained by Administrative Agent and its counsel; (vii) all other actual and
reasonable costs and expenses incurred by Syndication Agent, Arranger or
Administrative Agent in connection with the syndication of the Commitments and
the negotiation, preparation and execution of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (viii) after the occurrence of an Event
of Default, all costs and expenses, including reasonable attorneys' fees
(including allocated costs of internal counsel) and costs of settlement,
incurred by Arranger, Administrative Agent and Lenders in enforcing any
Obligations of or in collecting any payments due from any Loan Party hereunder
or under the other Loan Documents by reason of such Event of Default (including
in connection with the sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Subsidiary Guaranty) or in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or pursuant to any
insolvency or bankruptcy proceedings.
9.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection 9.2,
whether or not the transactions contemplated hereby shall be consummated,
Borrowers agree, jointly and severally, to defend (subject to Indemnitees'
selection of counsel), indemnify, pay and hold harmless Agents and Lenders, and
the officers, partners, directors, employees, agents and affiliates of any of
Agents and Lenders (collectively called the "INDEMNITEES"), from and against any
and all Indemnified Liabilities (as hereinafter defined); provided that neither
Borrower shall have any
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obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise solely from the
gross negligence or willful misconduct of that Indemnitee as determined by a
final, non-appealable judgment of a court of competent jurisdiction.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively, any and
all liabilities, obligations, losses, damages (including natural resource
damages), penalties, actions, judgments, suits, claims (including Environmental
Claims), costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action
necessary to remove, remediate, clean up or abate any Hazardous Materials
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make the Loans hereunder or the use or intended use of the proceeds thereof, or
any enforcement of any of the Loan Documents (including any sale of, collection
from, or other realization upon any of the Collateral or the enforcement of the
Subsidiary Guaranty)), (ii) the statements contained in the commitment letter
delivered by any Lender to Company with respect thereto, or (iii) any
Environmental Claim or any Hazardous Materials Activity relating to or arising
from, directly or indirectly, any past or present activity, operation, land
ownership, or practice of Company or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this subsection 9.3 may be unenforceable in whole or in
part because they are violative of any law or public policy, Borrowers shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
9.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under applicable law
and not by way of limitation of any such rights, upon the occurrence of any
Event of Default each Lender is hereby authorized by Borrowers at any time or
from time to time, without notice to Borrowers or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, including Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time held or owing by that Lender to
or for the credit or the account of such Borrower against and on account of the
obligations and liabilities of such Borrower to that Lender under this Agreement
and the other Loan Documents, including all claims of any nature or description
arising out of or connected with this Agreement or any other Loan Document,
irrespective of whether or not (i) that Lender shall have made any demand
hereunder or (ii) the
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principal of or the interest on the Loans or any other amounts due hereunder
shall have become due and payable pursuant to Section 7 and although said
obligations and liabilities, or any of them, may be contingent or unmatured.
Borrowers hereby further grant to Administrative Agent and each Lender a
security interest in all deposits and accounts maintained with Administrative
Agent or such Lender as security for the Obligations.
9.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall, whether
by voluntary payment (other than a voluntary prepayment of Loans made and
applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, fees and other
amounts then due and owing to that Lender hereunder or under the other Loan
Documents (collectively, the "AGGREGATE AMOUNTS DUE" to such Lender) which is
greater than the proportion received by any other Lender in respect of the
Aggregate Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (i) notify Administrative Agent and each
other Lender of the receipt of such payment and (ii) apply a portion of such
payment to purchase participations (which it shall be deemed to have purchased
from each seller of a participation simultaneously upon the receipt by such
seller of its portion of such payment) in the Aggregate Amounts Due to the other
Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by
all Lenders in proportion to the Aggregate Amounts Due to them; provided that if
all or part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of either Borrower or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations shall be returned
to such purchasing Lender ratably to the extent of such recovery, but without
interest. Borrowers expressly consent to the foregoing arrangement and agrees
that any holder of a participation so purchased may exercise any and all rights
of banker's lien, set-off or counterclaim with respect to any and all monies
owing by Borrowers to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
9.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any provision of
the Loan Documents, or consent to any departure by Loan Parties therefrom, shall
in any event be effective without the written concurrence of Requisite Lenders;
provided that no such amendment, modification, termination, waiver or consent
shall, without the consent of each Lender (with Obligations directly affected in
the case of the following clause (i)): (i) extend the scheduled final maturity
of any Loan or Note or waive, reduce or postpone any scheduled reductions of the
Commitments or scheduled repayments of the Loans pursuant to subsection 2.4A or
reduce the rate of interest on any Loan (other than any waiver of any increase
in the interest rate applicable to any Loan pursuant to subsection 2.2E) or any
commitment fees payable hereunder, or extend the time for payment of any such
interest or fees, or reduce the principal amount of any Loan, or increase the
aggregate principal amount of any of the Commitments, or (ii) amend, modify,
terminate or waive any provision of subsection 2.4D(iii),
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subsection 9.5 or this subsection 9.6, (iii) reduce the percentage specified in
the definition of "Requisite Lenders", (iv) consent to the assignment or
transfer by either Borrower of any of its rights and obligations under this
Agreement or (v) release all or substantially all of the Collateral or all or
substantially all of the Subsidiary Guarantors from the Subsidiary Guaranty
except as expressly provided in the Loan Documents; provided, further that no
such amendment, modification, termination or waiver shall (a) increase the
Commitments of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that no amendment, modification or
waiver of any condition precedent, covenant, Potential Event of Default or Event
of Default shall constitute an increase in the Commitment of any Lender, and
that no increase in the available portion of any Commitment of any Lender shall
constitute an increase in such Commitment of such Lender); (b) amend, modify,
terminate or waive any provision of subsection 2.1A(v) or any other provision of
this Agreement relating to the Swing Line Loan Commitment or the Swing Line
Loans without the consent of Swing Line Lender; or (c) amend, modify, terminate
or waive any provision of Section 8 as the same applies to any Agent, or any
other provision of this Agreement as the same applies to the rights or
obligations of any Agent, in each case without the consent of such Agent.
Administrative Agent may, but shall have no obligation to, with the concurrence
of any Lender, execute amendments, modifications, waivers or consents on behalf
of that Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on Borrowers in any case shall entitle Borrowers to any other or further
notice or demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this subsection 9.6
shall be binding upon each Lender at the time outstanding, each future Lender
and, if signed by Borrowers, on Borrowers.
9.7 NOTICES.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; provided that notices to Arranger, Syndication Agent or
Administrative Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature pages hereof or (i) as to Borrowers and
Administrative Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent.
9.8 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(A) All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
hereunder.
(B) Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Borrowers set forth in subsections 2.6D, 2.7, 9.2,
9.3 and 9.4 and the agreements
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of Lenders set forth in subsections 8.2C, 8.4 and 9.5 shall survive the payment
of the Loans and the termination of this Agreement.
9.9 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Administrative Agent or any Lender in
the exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
9.10 MARSHALLING; PAYMENTS SET ASIDE.
Neither Administrative Agent nor any Lender shall be under any
obligation to marshal any assets in favor of Company or any other party or
against or in payment of any or all of the Obligations. To the extent that
either Borrower makes a payment or payments to Administrative Agent or Lenders
(or to Administrative Agent for the benefit of Lenders), or Administrative Agent
or Lenders enforce any security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law, common
law or any equitable cause, then, to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
9.11 SEVERABILITY.
In case any provision in or obligation under this Agreement or the Notes
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
9.12 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
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9.13 HEADINGS.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
9.14 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
INCONSISTENT CONFLICTS OF LAWS PRINCIPLES.
9.15 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 9.1). Neither Borrowers'
rights or obligations hereunder nor any interest therein may be assigned or
delegated by Borrowers without the prior written consent of all Lenders.
9.16 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST EITHER BORROWER ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 9.7; (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT; (V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
SUCH BORROWER IN THE COURTS OF ANY OTHER JURISDICTION; AND (VI) AGREES THAT THE
PROVISIONS OF THIS SUBSECTION 9.16 RELATING TO JURISDICTION AND VENUE SHALL BE
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BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL
OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
9.17 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 9.17 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
9.18 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained pursuant to
the requirements of this Agreement which has been identified as confidential by
Borrowers in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with prudent lending
or investing practices, it being understood and agreed by Borrowers that in any
event a Lender may make disclosures to Affiliates of such Lender or disclosures
reasonably required by any bona fide assignee, transferee or participant in
connection with the contemplated assignment or transfer by such Lender of any
Loans or any participations therein (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such
information and will have agreed to keep such information confidential) or
disclosures required by any governmental agency or representative thereof or by
the National Association of Insurance Commissioners or pursuant to legal
process; provided that, unless specifically prohibited by applicable law or
court order, each Lender shall notify Borrowers of any request by any
governmental agency or representative thereof (other than any such request in
connection with any examination of the financial condition of such Lender by
such governmental agency) for disclosure of any such non-public information
prior to disclosure
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of such information; and provided, further that in no event shall any Lender be
obligated or required to return any materials furnished by Company or any of its
Subsidiaries.
9.19 MAXIMUM AMOUNT.
(A) It is the intention of Borrowers and Lenders to conform strictly to
the usury and similar laws relating to interest from time to time in force, and
all agreements between Borrowers, Administrative Agent and Lenders, whether now
existing or hereafter arising and whether oral or written, are hereby expressly
limited so that in no contingency or event whatsoever, whether by acceleration
of maturity hereof or otherwise, shall the amount paid or agreed to be paid in
the aggregate to Lenders or to Administrative Agent on behalf of Lenders as
interest hereunder or under the other Loan Documents or in any other security
agreement given to secure the Obligations, or in any other document evidencing,
securing or pertaining to the indebtedness evidenced hereby or thereby, exceed
the maximum amount permissible under applicable usury or such other laws (the
"MAXIMUM AMOUNT"). If under any circumstances whatsoever fulfillment of any
provision hereof, or of any of the other Loan Documents, at the time performance
of such provision shall be due, shall involve exceeding the Maximum Amount,
then, ipso facto, the obligation to be fulfilled shall be reduced to the Maximum
Amount. For the purposes of calculating the actual amount of interest paid
and/or payable hereunder in respect of laws pertaining to usury or such other
laws, all sums paid or agreed to be paid to Lenders for the use, forbearance or
detention of the indebtedness of Company evidenced hereby, outstanding from time
to time shall, to the extent permitted by applicable law, be amortized, pro
rated, allocated and spread from the date of disbursement of the proceeds of the
Loans until payment in full of all of such indebtedness, so that the actual rate
of interest on account of such indebtedness is uniform throughout the term
hereof. The terms and provisions of this subsection shall control and supersede
every other provision of all agreements between Company, Administrative Agent
and Lenders.
(B) If under any circumstances Lenders shall receive an amount which
would exceed the Maximum Amount, such amount shall be deemed a payment in
reduction of the principal amount of the Loans and shall be treated as a
voluntary prepayment under subsection 2.4B(i), and shall be so applied in
accordance with subsection 2.4B(iv) hereof, or if such amount exceeds the unpaid
balance of the Loans and any other indebtedness of Company in favor of Lenders,
the excess shall be deemed to have been a payment made by mistake and shall be
refunded to Company.
9.20 ENTIRE AGREEMENT.
This Agreement, together with the other Loan Documents and other
documents delivered pursuant hereto and thereto, represent the entire agreement
among the parties hereto with respect to the subject matter hereof and supersede
all prior agreements and understandings of the parties relating to the subject
matter hereof.
9.21 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties
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hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document. This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto and receipt by Company and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: e.spire COMMUNICATIONS, INC.
By:
---------------------------------
David L. Piazza
Chief Financial Officer
Notice Address:
133 National Business Parkway, Suite 200
Annapolis Junction, MD 20701
FINANCE SUB: e.spire FINANCE CORPORATION
By:
---------------------------------
David L. Piazza
Treasurer/Chief Financial Officer
Notice Address:
133 National Business Parkway, Suite 200
Annapolis Junction, MD 20701
S-1
<PAGE> 131
AGENTS AND LENDERS GOLDMAN SACHS CREDIT PARTNERS L.P.,
individually, as Arranger and as
Syndication Agent
By:
---------------------------------
Authorized Signatory
Notice Address:
Goldman Sachs Credit Partners L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention:
Telecopy:
THE BANK OF NEW YORK, individually and as
Administrative Agent
By:
---------------------------------
Name:
Title:
Notice Address:
-------------------------------------
-------------------------------------
-------------------------------------
S-2
<PAGE> 132
FIRST UNION NATIONAL BANK,
individually and as Documentation Agent
By:
-------------------------------
Authorized Signatory
Notice Address:
-----------------------------------
-----------------------------------
-----------------------------------
NEWCOURT COMMERCIAL FINANCE CORPORATION,
individually and as Collateral Agent
By:
--------------------------------
Name:
Title:
Notice Address:
-----------------------------------
-----------------------------------
-----------------------------------
S-3
<PAGE> 133
LENDERS: -----------------------------------
By:
--------------------------------
Name:
Title:
Notice Address:
-----------------------------------
-----------------------------------
-----------------------------------
S-4
<PAGE> 1
EXHIBIT 10.2
================================================================================
CMD 101 (2/99)
NO STOPS OR BASE YEARS
OFFICE LEASE
WITH
E.SPIRE COMMUNICATIONS, INC.
SUITES: 130/150, 200, and 300
BUILDING: Commercial Place II, Oakland Park, Florida
================================================================================
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
<S> <C>
ARTICLE 1. BASIC PROVISIONS.............................................1
ARTICLE 2. TERM AND COMMENCEMENT........................................3
ARTICLE 3. ARTICLE 3: BASE RENT AND ADDITIONAL RENT.....................4
ARTICLE 4. CONDITION OF PREMISES........................................7
ARTICLE 5. QUIET ENJOYMENT..............................................8
ARTICLE 6. UTILITIES AND SERVICES.......................................8
ARTICLE 7. USE, COMPLIANCE WITH LAWS, AND RULES.........................10
ARTICLE 8. MAINTENANCE AND REPAIRS......................................12
ARTICLE 9. ALTERATIONS AND LIENS........................................12
ARTICLE 10. INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS................15
ARTICLE 11. CASUALTY DAMAGE.............................................16
ARTICLE 12. CONDEMNATION................................................18
ARTICLE 13. ASSIGNMENT AND SUBLETTING...................................18
ARTICLE 14. PERSONAL PROPERTY, RENT AND OTHER TAXES.....................22
ARTICLE 15. LANDLORD'S REMEDIES.........................................23
ARTICLE 16. SECURITY DEPOSIT............................................27
ARTICLE 17. ATTORNEYS' FEES, JURY TRIAL AND VENUE.......................27
ARTICLE 18. SUBORDINATION, ATTORNMENT AND LENDER PROTECTION.............28
ARTICLE 19. ESTOPPEL CERTIFICATES.......................................29
ARTICLE 20. RIGHTS RESERVED BY LANDLORD.................................29
ARTICLE 21. LANDLORD'S RIGHT TO CURE....................................31
ARTICLE 22. INDEMNIFICATION.............................................31
ARTICLE 23. RETURN OF POSSESSION........................................32
ARTICLE 24. HOLDING OVER................................................33
ARTICLE 25. NOTICES.....................................................33
ARTICLE 26. REAL ESTATE BROKERS.........................................34
ARTICLE 27. NO WAIVER...................................................34
ARTICLE 28. TELECOMMUNICATION LINES.....................................34
ARTICLE 29. HAZARDOUS MATERIALS.........................................36
ARTICLE 30. DEFINITIONS.................................................38
ARTICLE 31. OFFER.......................................................43
ARTICLE 32. MISCELLANEOUS...............................................44
ARTICLE 33. ENTIRE AGREEMENT............................................46
EXHIBITS......................................Listed in Article 1.0
</TABLE>
i
<PAGE> 3
OFFICE LEASE
THIS OFFICE LEASE ("Lease") is made and entered into as of the 13th
day of July, 1999, by and between CMD PROPERTIES, INC. ("Landlord"), an
Illinois corporation, and E.SPIRE COMMUNICATIONS, INC. ("Tenant"), a Delaware
corporation.
ARTICLE 1. BASIC PROVISIONS
This Article contains the basic lease provisions between Landlord and
Tenant.
<TABLE>
<CAPTION>
<S> <C> <C>
A. BUILDING: Commercial Place II, 3250 W. Commercial Place, Oakland
Park, Florida 33309 (the "Property", as further
described, in Article 30).
B. PREMISES: Suites 130/150, 200 and 300 located on the first,
second and third floors of the Building as outlined or
hatched on Exhibits A-1, A-2 and A-3 hereto.
C. COMMENCEMENT DATE: The earlier of: (i) Tenant's occupancy of the Premises
for business purposes, or (ii) October 1, 1999,
("Outside Date"), all subject to Article 2. However,
if Landlord takes longer than five (5) business days
to execute and send by national overnight mail courier
to Tenant at least one (1) fully executed original of
this Lease, after receiving three (3) originals
executed by Tenant, then the Outside Date shall be
deferred by one (1) day for each such day beyond five
(5) business days.
D. EXPIRATION DATE: September 30, 2009, subject to Articles 2 and 4.
E. RENTABLE AREA: The rentable area of the Premises shall be deemed to be
60,671 square feet, and the rentable area of the
Property shall be deemed to be 83,336 square feet, for
purposes of this Lease, subject to Article 30.
F. TENANT'S SHARE: Seventy-two and 80/1 CO percent (72.80%), subject to
Articles 3 and 30.
G. BASE RENT: Tenant shall pay monthly Base Rent pursuant to the
following schedule and as described in Article 3:
</TABLE>
<TABLE>
<CAPTION>
-------------------------------------------------------------
PERIOD MONTHLY BASE RENT
-------------------------------------------------------------
<S> <C>
Commencement Date - September 30, 2000 $63,198.96
-------------------------------------------------------------
October 1, 2000 - September 30, 2001 $65,094.93
-------------------------------------------------------------
October 1, 2001 - September 30,2002 $67,047.77
-------------------------------------------------------------
October 1, 2002 - September 30, 2003 $69,059.21
-------------------------------------------------------------
October 1, 2003 - September 30, 2004 $71 ,130.98
-------------------------------------------------------------
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
-------------------------------------------------------------
PERIOD MONTHLY BASE RENT
-------------------------------------------------------------
<S> <C>
October 1, 2004 - September 30, 2005 $73,264.91
-------------------------------------------------------------
October 1, 2005:- September 31, 2006 $75,462.86
-------------------------------------------------------------
October 1, 2006 - September 30, 2007 $77,726.75
-------------------------------------------------------------
October 1, 2007 - September 30, 2008 $80,058.55
-------------------------------------------------------------
October 1, 2008 - Expiration Date $82,460.31
-------------------------------------------------------------
</TABLE>
H. ADDITIONAL RENT: Tenant shall pay Tenant's Share of Taxes and Expenses
as further described in Article 3. Tenant's initial
estimated such payment shall be $33,318.49 per month.
I. PERMITTED USE: (i) executive and administrative offices, (ii) a
telecommunications call center operation on one floor,
(iii) other permitted uses as specified in this Lease,
including but not limited to Article 28, and (iv) a
telecommunications equipment room ("Telecommunications
Equipment Room") in up to 15,000 square feet of
rentable area at the back of the Premises on the first
floor of the Building as further shown on Exhibit A-J
hereto, and in which Tenant may install and operate
Tenant's Telecommunications Room Equipment, subject to
Article 7 and the other provisions of this Lease.
"Tenant's Telecommunications Room Equipment" shall
mean the following equipment of Tenant located in the
Telecommunications Equipment Room (and Tenant's
Generator and related equipment as described in
Exhibit E hereto): (a) telecommunications switching
equipment and/or transport nodes and
telecommunications equipment of Tenant's customers,
(b) AC and DC power equipment, sealed batteries, (c)
projection and computer equipment to facilitate
network management and monitoring, (d) computer and
data processing equipment, (e) dial-up modem equipment
and (f) all other related equipment, cabling, wiring
and accessories.
J. LETTER OF CREDIT: $500,000, as provided in Exhibits I and I-1.
K. BROKER: CB Richard Ellis, Inc., subject to Article 26.
L. LANDLORD'S NOTICE ADDRESS (SUBJECT TO ARTICLE 25):
c/o CMD Realty Investors, Inc., Suite 135, 2500
Meridian Parkway, Durham, North Carolina 27713, Attn.:
Regional Manager; with copies c/o CMD Realty
Investors, Inc., 227 West Monroe Street, Suite 3900,
2
<PAGE> 5
Chicago, Illinois 60606, Attn.: General Counsel and
Attn.: Asset Manager.
M. TENANT'S NOTICE ADDRESS (SUBJECT TO ARTICLE 25):
e.spire Communications, Inc., 133 National Business
Parkway, Suite 200, Annapolis Junction, Maryland
20701, Attn.: Director of Real Estate, with a copy to
General Counsel
With a copy to: e.spire Communications, Inc.,
Commercial Place, 3250 W. Commercial Place, Oakland
Park, Florida 33309
N. RENT PAYMENTS: Rent shall be paid to Landlord do The First National
Bank of Chicago, P.O. Box 93150, Chicago, Illinois
60673-3150, or such other address as to which Landlord
shall provide advance notice.
O. EXHIBITS: This Lease includes, and incorporates by this
reference:
<TABLE>
<S> <C> <C> <C>
Exhibit A: Premises Exhibit G: Extension Options
Exhibit B: Rules Exhibit H: Expansion Provisions
Exhibit C: Work Letter Exhibit I: Letter of Credit Requirements
Exhibit D: Roof Antenna Exhibit I-I: Letter of Credit - Form
Exhibit E: Emergency Generator Exhibit J: Landlord's Subordination of Lien
Exhibit F: Tenant Exterior Sign
</TABLE>
The foregoing provisions shall be interpreted and applied in accordance
with the other provisions of this Lease. The terms of this Article, and the
terms defined in Article 30 and other Articles, shall have the meanings
specified therefor when used as capitalized terms in other provisions of this
Lease or related documentation (except as expressly provided to the contrary
therein).
ARTICLE 2. TERM AND COMMENCEMENT
A. TERM. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises for the Term, subject to the other provisions of this
Lease. The term ("Term") of this Lease shall commence on the Commencement Date
and end on the Expiration Date set forth in Article 1, unless sooner terminated
as provided in this Lease, subject to adjustment as provided below and the
other provisions of this Lease.
B. EARLY POSSESSION AND CONSTRUCTION. Subject to the provisions set
forth herein, Landlord shall permit Tenant and its contractors to enter the
Premises in order to perform the Work in accordance with Exhibit C (such Work
shall not be considered occupancy for business purposes under Article 1 .C) on
the date ("Possession Date")
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<PAGE> 6
that is: (i) the later of one (1) business day after mutual execution and
delivery of this Lease, or (ii) such later date on which Tenant shall have
furnished Landlord with required certificates of insurance under this Lease and
a copy of a valid building permit for such Work. In connection with any such
early access and entry to the Premises prior to the Commencement Date, Tenant
shall comply with all terms and provisions of this Lease, including the
insurance requirements, except those provisions requiring the payment of Rent.
C. ADJUSTMENTS AND CONFIRMATION. If the Commencement Date occurs prior
to the Outside Date, the Expiration Date shall not be changed as a result.
Tenant shall execute a confirmation of the Commencement Date in such form as
Landlord may reasonably provide; any failure to respond within thirty (30) days
after requested shall be deemed an acceptance of the matters set forth in
Landlord's confirmation. With respect to the immediately preceding sentence,
Tenant's confirmation shall only be signed by an officer of Tenant at the level
of Vice President or above, and such confirmation shall be forwarded by
Landlord to Tenant by certified mail, return receipt requested. If Tenant
disagrees with Landlord's adjustment of such date, Tenant shall pay Rent and
perform all other obligations commencing on the date determined by Landlord,
subject to prompt refund or credit when the matter is mutually resolved.
ARTICLE 3. BASE RENT AND ADDITIONAL RENT
A. BASE RENt. Commencing on the Commencement Date, Tenant shall pay
Landlord the monthly Base Rent set forth in Article 1 in advance on or before
the first day of each calendar month during the Term; provided, Tenant shall
pay Base Rent (and Tenant's estimated Share of Taxes and Expenses and Florida
rent tax thereon) for the first full calendar month for which Base Rent shall
be due (and any initial partial month) when Tenant executes this Lease.
B. TAXES AND EXPENSES. Tenant shall pay Landlord Tenant's Share of
Taxes and Expenses in the manner described below. The foregoing capitalized
terms shall have the meanings specified therefor in Articles 1 and 30.
C. PAYMENTS.
(i) Landlord may reasonably estimate in advance the amounts Tenant shall
owe for Taxes and Expenses for any full or partial calendar year of the Term. In
such event, Tenant shall pay such estimated amounts, on a monthly basis, on or
before the first day of each calendar month, together with Tenant's payment of
Base Rent. Such estimate may be reasonably adjusted in writing from time to time
by Landlord. Landlord's initial estimate is set forth in Article 1.H.
(ii) Within 120 days after the end of each calendar year, or as soon
thereafter as practicable, Landlord shall provide a statement (the "Statement")
to Tenant showing: (a) the amount of actual Taxes and Expenses for such calendar
year, with a listing of amounts for reasonable categories of Expenses, (b) any
amount paid by Tenant towards Taxes and Expenses during such calendar year on an
estimated basis, and (c)
4
<PAGE> 7
any further revised estimate of Tenant's obligations for Taxes and Expenses for
the current calendar year.
(iii) If the Statement shows that Tenant's estimated payments were less
than Tenant's actual obligations for Taxes and Expenses for such year, Tenant
shall pay the difference within thirty (30) days after Landlord delivers the
Statement. If the Statement shows that Tenant's estimated payments exceeded
Tenant's actual obligations for Taxes and Expenses, Landlord shall credit the
difference against the payment of Rent next due. If the Term shall have expired
and no further Rent shall be due, Landlord shall provide a refund of such
difference within thirty (30) days.
(iv) If the Statement shows a further increase in Tenant's estimated
payments for the current calendar year, Tenant shall: (a) thereafter pay the
new estimated amount until Landlord further revises such estimated amount, and
(b) pay the difference between the new and former estimates for the period from
January 1 of the current calendar year through the month in which the Statement
is sent within thirty (30) days after Landlord delivers the Statement.
(v) In lieu of providing one Statement covering both Taxes and Expenses,
Landlord may provide separate statements, at the same or different times. So
long as Tenant's obligations hereunder are not materially adversely affected
thereby, Landlord reserves the right to reasonably change, from time to time,
the manner or timing of Tenant's payments for Taxes and Expenses.
D. TAX REFUNDS, PROTEST COSTS, FISCAL YEARS AND SPECIAL ASSESSMENTS.
Landlord shall each year: (i) credit against Taxes any refunds received during
such year, whether or not for a prior year, (ii) include in Taxes any
additional amount paid during such year involving an adjustment to Taxes for a
prior year due to error by the taxing authority, supplemental assessment, or
other reason, (iii) for Taxes payable in installments over more than one year,
include only the minimum amounts payable each year and any interest thereon,
and (iv) include, in either Taxes or Expenses, any fees for attorneys,
consultants and experts, and other costs paid during such year in attempting to
protest, appeal or otherwise seek to reduce or minimize Taxes, whether or not
successful. Notwithstanding anything to the contrary contained in this Lease,
if any taxing authority, at any time, uses a fiscal year other than a current
calendar year, Landlord may elect to require payments by Tenant upon written
notice based on: (a) amounts paid or payable during each calendar year without
regard to such fiscal years, or (b) amounts paid or payable for or during each
fiscal tax year.
E. GROSSING UP AND TENANT'S SHARE ADJUSTMENTS. In order to allocate
variable Expenses (i.e., those items that vary based on occupancy levels, such
as janitorial and utility costs) among those parties who are leasing space when
the Property is not fully occupied during all or a portion of any calendar
year, Landlord may reasonably determine the amount of such variable Expenses
that would have been paid had the Property been fully occupied, and the amount
so determined shall be deemed to have been the amount of Expenses for such year
(rather than adjusting Tenant's Share by subtracting vacant space from the
denominator). Similarly, if Landlord is not
5
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furnishing any particular utility or service to a tenant during any period (the
cost of which, if performed by Landlord, would be included in Expenses),
Landlord may for such period exclude the rentable area of such tenant from the
rentable area of the Property in computing Tenant's Share of the component of
Expenses for such utility or service. "Tenant's Share" shall be subject to such
other adjustments as are provided in the definition thereof in Article 30
below.
F. PRORATIONS; PAYMENTS AFTER TERM ENDS. If the Term commences on a day
other than the first day of a calendar month or ends on a day other than the
last day of a calendar month, the Base Rent and any other amounts payable on a
monthly basis shall be prorated on a per diem basis for such partial calendar
months. If the Base Rent is scheduled to increase under Article 1 other than on
the first day of a calendar month, the amount for such month shall be prorated
on a per diem basis to reflect the number of days of such month at the then
current and increased rates, respectively. If the Term commences other than on
January 1, or ends other than on December 31, Tenant's obligations to pay
amounts towards Taxes and Expenses for such first or final calendar years shall
be prorated on a per diem basis to reflect the portion of such years included
in the Term. Tenant's obligations to pay Taxes and Expenses (or any other
amounts) accruing during, or relating to, the period prior to expiration or
earlier termination of this Lease, shall survive such expiration or
termination.
G. LANDLORD'S ACCOUNTING PRACTICES AND RECORDS TENANT'S REVIEW RIGHTS.
Landlord shall maintain records respecting Taxes and Expenses and determine the
same in accordance with sound accounting and management practices consistently
applied in accordance with this Lease. Although this Lease contemplates the
general computation of Taxes and Expenses on a cash basis, Landlord shall make
reasonable and appropriate accrual adjustments to ensure that each calendar
year includes substantially the same recurring items. Landlord reserves the
right to apply a full accrual system of accounting so long as the same is
consistently applied and Tenant's obligations are not materially adversely
affected. Tenant or its representative shall have the right to review such
records by sending notice to Landlord no later than ninety (90) days following
the furnishing of the Statement specifying such records as Tenant reasonably
desires to review. Such review shall be subject to the continuing condition
that Tenant not be in Default, and subject to reasonable scheduling by Landlord
during normal business hours at the place or places where such records are
normally kept. No later than forty-five (45) days after Landlord makes such
records available for review, Tenant shall send Landlord notice specifying any
exceptions that Tenant takes to matters included in such Statement, Tenant's
detailed reasons for each exception which support a conclusion that such
exception properly identifies an error in such Statement, and a complete copy
of the review report. Such Statement shall be considered final and binding on
Tenant, except as to matters to which exception is taken after review of
Landlord's records in the foregoing manner and within the foregoing times. The
foregoing times for sending Tenant's notices hereunder are critical to
Landlord's budgeting process, and are therefore of the essence of this
Paragraph. If Tenant takes timely exception as provided herein, Landlord may
seek certification from an independent certified public accountant or financial
consultant (who shall be subject to Tenant's reasonable approval) as to the
proper amount of Taxes and Expenses or
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the items as to which Tenant has taken exception. In such case: (i) such
certification shall be considered final and binding on both parties (except as
to additional amounts not then known or omitted by error), and (ii) Tenant
shall pay Landlord for the cost of such certification, unless it shows that the
portion of Taxes and Expenses under review were overstated by a net amount of
five percent (5%) or more. Pending review of such records and resolution of any
exceptions, Tenant shall pay Tenant's Share of Taxes and Expenses in the
amounts shown on such Statement, subject to credit, refund or additional
payment within thirty (30) days after any such exceptions are resolved.
H. GENERAL PAYMENT MATTERS. Base Rent, Taxes, Expenses and any other
amounts which Tenant is or becomes obligated to pay Landlord under this Lease
or other agreement entered in connection herewith are sometimes herein referred
to collectively as "Rent," and all remedies applicable to the non-payment of
rent shall be applicable thereto. Tenant shall pay Rent in good funds and legal
tender of the United States of America, together with any applicable sales tax
or other taxes on Rent as further described in Article 14. Tenant shall pay
Rent without any deduction, recoupment, set-off or counterclaim, and without
relief from any valuation or appraisement laws, except as may be expressly
provided in this Lease. No delay by Landlord in providing the Statement (or
separate statements) shall be deemed a default by Landlord or a waiver of
Landlord's right to require payment of Tenant's obligations for actual or
estimated Taxes or Expenses. In no event shall a decrease in Taxes or Expenses
serve to decrease Base Rent. Landlord may apply payments received from Tenant
to any obligations of Tenant then accrued, without regard to such obligations
as may be designated by Tenant.
ARTICLE 4. CONDITION OF PREMISES
Tenant has inspected, or had an opportunity to inspect, the Premises
(and portions of the Property, Systems and Equipment providing access to or
serving the Premises), and agrees to accept the same "as is" without any
agreements, representations, understandings or obligations on the part of
Landlord to perform any alterations, repairs or improvements, except for latent
defects of which Tenant notifies Landlord within twelve (12) months following
the Commencement Date (or such longer time as may be reasonably required for
latent defects that Tenant does not, or could not reasonably be expected to,
discover within such time), and except as expressly provided under this Lease.
Notwithstanding the foregoing to the contrary, Landlord hereby represents that
to Landlord's actual knowledge as of the date of this Lease (i) the Equipment
and Systems (as defined in Article 30) are in good working order, and (ii)
there are no current material violations of Laws, including but not limited to
Laws governing Hazardous Materials or the Americans With Disabilities Act and
related state statutes, affecting Tenant's use of the Premises or common areas
of the Property. "Landlord's actual knowledge" herein means the actual
knowledge, without investigation, of the Regional Manager for the management
company for the Property. The parties agree that Tenant shall perform certain
Work to the Premises, and Landlord shall provide an Allowance therefor, as
further described in Exhibit C attached hereto.
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ARTICLE 5. QUIET ENJOYMENT
Landlord agrees that, if Tenant timely pays the Rent and performs the
terms and provisions hereunder, Tenant shall hold the Premises during the Term
free of lawful claims by any party acting by or through Landlord, subject to
all other terms and provisions of this Lease.
ARTICLE 6. UTILITIES AND SERVICES
A. STANDARD LANDLORD UTILITIES AND SERVICES. Landlord shall provide the
following utilities and services (the cost of which shall be included in
Expenses) consistent with comparable office buildings in the vicinity:
(i) Water from city mains for drinking, lavatory and toilet purposes
only, at those points of supply provided for nonexclusive general use of
tenants at the Property, or points of supply in the Premises installed by or
with Landlord's written consent for such purposes.
(ii) Passenger elevator service at all times (subject to changes in the
number of elevators in service after Building Hours or at other times), and
freight elevator service (subject to scheduling by Landlord), in common with
Landlord and other parties.
(iii) Cleaning and trash removal in and about the Premises comparable to
that provided as a standard service by landlords for office space in comparable
office buildings in the vicinity, except for the Telecommunications Equipment
Room (as to which Tenant shall arrange for cleaning and trash removal through
Landlord's janitorial contractor for the Property).
(iv) Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion and in accordance with applicable Law, for
occupancy of the Premises as offices during Building Hours (as defined in
Article 30), except that Landlord shall have no obligation to provide such
services for the Telecommunications Equipment Room (as to which Tenant shall
install and operate a separate HVAC unit, and shall properly repair, maintain
and replace such HVAC unit, including a contract for regular inspection and
servicing by a qualified contractor reasonably designated or approved by
Landlord in writing).
(v) Electricity for building-standard overhead office lighting fixtures,
and equipment and accessories customary for offices, where: (a) Tenant uses an
amount of electricity that is generally consistent with average office use at
comparable office buildings in the vicinity, as reasonably determined by
Landlord, (b) the Systems and Equipment are suitable, and the safe and lawful
capacity thereof is not exceeded, and (c) sufficient capacity remains at all
times for other existing and future tenants, as reasonably determined by
Landlord. Notwithstanding the foregoing, Tenant shall make arrangements
directly with the applicable utility or municipality reasonably designated by
Landlord, to purchase and pay separately for all electricity consumed in or for
the Telecommunications Equipment Room (including, but not limited to,
electricity for
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Tenant's equipment therein, overhead lighting, special HVAC and fire
suppression equipment serving the Telecommunications Equipment Room), and shall
install separate meters in connection therewith as part of Tenant's Work under
Exhibit B hereto.
B. ADDITIONAL UTILITIES AND SERVICES. Landlord shall seek to provide
such extra utilities or services as Tenant may from time to time request, if
the same are reasonable and feasible for Landlord to provide and do not involve
modifications or additions to the Property or existing Systems and Equipment,
and if Landlord shall receive Tenant's request within a reasonable period prior
to the time such extra utilities or services, are required. Landlord may comply
with written or oral requests by any officer or employee of Tenant, unless
Tenant shall notify Landlord of, or Landlord shall request, the names of
authorized individuals (up to 3 for each floor on which the Premises are
located) and procedures for written requests. Tenant shall pay, for any extra
utilities or services, such standard reasonable charges as Landlord shall from
time to time establish, Landlord's out-of-pocket costs for architects,
engineers, consultants and other parties relating to such extra utilities or
services, and a fee equal to five percent (5%) of such costs (provided,
Landlord's standard overtime HVAC charges shall not require an additional such
percentage thereon, and any electricity costs charged to Tenant shall be at the
rate that Landlord pays, without mark-up). All payments for such extra
utilities or services shall be due at the same time as the installment of Base
Rent with which the same are billed, or if billed separately, shall be due
within thirty (30) days after such billing. Landlord shall not be responsible
for inadequate air-conditioning or ventilation whenever the use or occupancy of
the Premises exceeds the normal capacity or design loads of, affects the
temperature or humidity otherwise maintained by, or otherwise adversely affects
the operation of, the Systems and Equipment for the Property, whether due to
items of equipment or machinery generating heat, above-normal concentrations of
personnel or equipment, or alterations to the Premises made by or through
Tenant without balancing the air or installing supplemental HVAC equipment. In
any such case, with at least fifteen (15) days advance notice to Tenant,
Landlord may: (i) elect to balance the air and/or install, operate, maintain
and replace such supplemental HVAC equipment during the Term, at Tenant's
reasonable expense, as an extra utility or service, or (ii) require that Tenant
arrange for the same as Work under Article 9. Notwithstanding the foregoing to
the contrary, in lieu of charging separately for additional services, Landlord
may reasonably elect from time to time, consistent with practices at comparable
office buildings in the vicinity, to expand the amounts of services and
utilities available without separate charge, in which case the costs thereof
shall be included in Expenses.
C. MONITORING. Landlord may install and operate meters, submeters or
any other reasonable system for monitoring or estimating any services or
utilities used by Tenant in excess of those required to be provided by Landlord
under this Article (including a system for Landlord's engineer to reasonably
estimate any such excess usage). If such system indicates such excess services
or utilities, Tenant shall pay Landlord's charges and fees as described in
Paragraph B above for installing and operating such system and any
supplementary air-conditioning, ventilation, heat, electrical or other systems
or equipment (or adjustments or modifications to the existing
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Systems and Equipment) which Landlord may make, and Landlord's charges for such
amount of excess services or utilities used by Tenant.
D. INTERRUPTIONS AND CHANGES. Landlord shall have no liability for
interruptions, variations, shortages, failures, changes in quality, quantity,
character or availability of any utilities or services caused by repairs,
maintenance, replacements, alterations (including any freon retrofit work),
labor controversies, accidents, inability to obtain services, utilities or
supplies, governmental or utility company acts or omissions, requirements,
guidelines or requests, or other causes beyond Landlord's reasonable control
(or under any circumstances with respect to utilities or services not required
to be provided by Landlord hereunder). Under no circumstances whatsoever shall
any of the foregoing be deemed an eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof, serve to abate Rent, or relieve
Tenant from performance of Tenant's obligations under this Lease. However, in
any such event after receiving notice, Landlord shall use commercially
reasonable efforts to restore such utilities or services required to be
provided hereunder to reasonable levels.
E. ABATEMENT OF RENT. Notwithstanding Paragraph D above to the
contrary, if: (a) any services or utilities required to be provided by Landlord
hereunder are interrupted or discontinued as a result of Landlord's (or its
agent's or employee's) negligence or any other cause (provided such
interruption or discontinuance is not caused by Tenant and/or any Transferees
(or their respective employees or agents), and Tenant is unable to and does not
use, the Premises (or any portion thereof exceeding 5,000 square feet of
rentable area) as a result of such interruption or discontinuance, and (b)
Tenant shall have given written notice respecting such interruption or
discontinuance to Landlord, and Landlord shall have failed to cure such
interruption or discontinuance within: (i) four (4) consecutive business days
after receiving such notice (if such interruption or discontinuance is a result
of Landlord's (or its agent's or employee's) negligence), or (ii) thirty (30)
consecutive days after receiving such notice (if such interruption or
discontinuance is not the result of Landlord's (or its agent's or employee's)
negligence, then Base Rent hereunder shall thereafter be abated (in proportion
to the number of square feet of rentable area that Tenant is unable to and does
not use as a result, as reasonably determined by Landlord) until such time as
such services or utilities are restored or Tenant begins using the Premises
again, whichever shall first occur. Notwithstanding anything to the contrary
contained herein, if Tenant, or its contractors, or their respective officers,
employees, invitees or agents, delay Landlord in restoring the utilities or
services, Landlord shall have additional time to complete the restoration equal
to such delay and Tenant shall pay Landlord all Rent for the period of such
delay. Tenant's continued use of the Telecommunications Equipment Room by using
the Generator under Exhibit E hereto shall be deemed to be continued use of the
Telecommunications Room for purposes of this provision.
ARTICLE 7. USE, COMPLIANCE WITH LAWS, AND RULES
A. USE OF PREMISES. Tenant shall use the Premises only for the
permitted use identified in Article 1, and no other purpose whatsoever, subject
to the other provisions of this Article and this Lease. Unless expressly
permitted in Article 1, Tenant
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shall not use or permit the Premises to be used as a: (i) medical, dental,
psychology, psychiatry or science office or laboratory, (ii) telemarketing
"boiler-room" sales marketing operation where the business objective is to
obtain new customers (as opposed to customer service call center where the
business objective is primarily to assist existing customers and secondarily to
market additional services to such existing customers), (iii) "executive suite"
or "legal suite" multi-party shared offices operation, (iv) travel agency or
reservation center, (v) retail real estate brokerage, retail stock brokerage,
or retail bank or financial institution, (vi) computerized vehicle sales, loan
or "finder" service, (vii) social-welfare office or governmental,
quasi-governmental, trade association or union office or activities, (ix)
employment, placement, recruiting or clerical support agency, (x) radio or
television studio or broadcasting or recording facility, or (xi) school,
educational facility or training center (except for training that is ancillary
to general office use and does not require parking in excess of code
requirements for general office use).
B. COMPLIANCE WITH LAWS. Tenant shall comply with all Laws relating to
the Premises and Tenant's use of the Premises and Property, and shall promptly
reimburse Landlord for any actual expenses Landlord incurs for work or other
matters relating to areas outside of the Premises in order to comply with Laws
as a result of Tenant's use of the Premises or Property; provided, Tenant shall
not be required by this provision to perform structural improvements to the
Premises that involve a significant capital expenditure and will result in a
benefit to Landlord extending beyond the Term, as it may be extended, unless
required by a Law pertaining to: (i) Tenant's particular use of the Premises
(as opposed to a Law that applies to office tenants in general), (ii) Work
performed by or for Tenant or any Transferee (i.e., excluding any improvements
or work that Landlord is required to perform under this Lease), or (iii) other
acts or omissions of Tenant or any Transferee.
C. RULES. Tenant shall comply with the Rules set forth in Exhibit B
attached hereto (the "Rules"). Landlord shall have the right, by notice to
Tenant, to reasonably amend such Rules and supplement the same with other
reasonable Rules relating to the Property, or the reasonable promotion of
safety, care, efficiency, cleanliness or good order therein. Although Landlord
shall not discriminate against Tenant in the enforcement of the Rules, nothing
herein shall be construed to give Tenant or any other Person any claim, demand
or cause of action against Landlord arising out of the violation of Laws or the
Rules by any other tenant or visitor of the Property, or out of the
enforcement, modification or waiver of the Rules by Landlord in any particular
instance. If there should be a conflict between the other provisions of this
Lease and the Rules, the other provisions of this Lease shall prevail.
D. OTHER REQUIREMENTS. So long as Tenant receives written notification
of the applicable requirements, Tenant shall not use or permit the Premises or
Property to be used in a way that will: (i) violate the requirements of
Landlord's insurers, the American Insurance Association, or any board of
underwriters, (ii) cause a cancellation of Landlord's policies, impair the
insurability of the Property, or increase, as a direct result of Tenant's
operations, Landlord's premiums (any such increase shall be paid by Tenant
without such payment being deemed permission to continue such activity or a
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waiver of any other remedies of Landlord), or (iii) violate the requirements of
any Lenders, the certificates of occupancy issued for the Premises or the
Property, or any other requirements, covenants, conditions or restrictions
affecting the Property at any time (provided none of the foregoing shall
prohibit normal office use of the Premises in compliance with the other
provisions of this Lease).
ARTICLE 8. MAINTENANCE AND REPAIRS
Except for customary cleaning and trash removal provided by Landlord
under Article 6, casualty damage to be repaired by Landlord under Article 11,
Tenant shall keep and maintain (or cause to be kept and maintained) the
Premises in good and sanitary condition, working order and repair, in
compliance with all applicable Laws as described in Article 7, and as required
under other provisions of this Lease, including the Rules (including any carpet
and other flooring material, paint and wall-coverings, doors, windows,
ceilings, interior surfaces of walls, lighting, plumbing and other fixtures,
alterations, improvements, and special HVAC and other systems and equipment in
or exclusively serving the Premises whether installed by Landlord or Tenant).
In the event that any repairs, maintenance or replacements are required, Tenant
shall promptly arrange for the same either: (i) through Landlord for such
reasonable charges as Landlord may establish from time to time, payable within
thirty (30) days after billing, or (ii) by engaging such contractors as
Landlord shall first designate or approve in writing (such approval not to be
unreasonably withheld, conditioned or delayed) to perform such work, all in a
first class, workmanlike manner approved by Landlord in advance in writing
(such approval not to be unreasonably withheld, conditioned or delayed) and
otherwise in compliance with Article 9 respecting "Work". Tenant shall pay
Landlord for any repairs, maintenance and replacements to areas of the Property
outside the Premises caused, in whole or in part, as a direct result of moving
any furniture, fixtures, or other property to or from the Premises, or
otherwise by Tenant or its employees, agents, contractors, or visitors
(notwithstanding anything to the contrary contained in this Lease). Except as
provided in the preceding sentence, or for damage covered under Article 11,
Landlord shall keep the roof, structure, Systems and Equipment, and common
areas of the Property in good and sanitary condition, working order and repair
(the cost of which shall be included in Expenses to the extent permitted in the
definition thereof in Article 30).
ARTICLE 9. ALTERATIONS AND LIENS
A. ALTERATIONS AND APPROVAL. Tenant shall not attach any fixtures,
equipment or other items to the Premises, or paint or make any other additions,
changes, alterations or improvements to the Premises or the Systems and
Equipment serving the Premises (all such work is referred to collectively
herein as the "Work"), without the prior written consent of Landlord (such
consent not to be unreasonably withheld, conditioned or delayed). Landlord
shall not unreasonably withhold, delay or condition consent, except that
Landlord reserves the right to withhold consent in Landlord's sole good faith
discretion for Work affecting the structure, safety, efficiency or security of
the Property or Premises, the Systems and Equipment, or the appearance of the
Premises from any common or public areas. Landlord may only require removal
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of Work installed by or for Tenant as provided under Article 23.
Notwithstanding the foregoing to the contrary, Tenant may perform cosmetic Work
in the Premises (i.e., consisting of paint, carpeting and/or wall-coverings),
without Landlord's consent provided: (i) Tenant shall give reasonable advance
notice to, and shall coordinate the scheduling of such work with, Landlord,
(ii) such Work shall not cost more than $25,000 in the aggregate in any twelve
(12) month period, and (iii) such Work shall be subject to all other provisions
of this Lease, including, but not limited to, the other provisions of this
Article and the Rules attached hereto as Exhibit B.
B. APPROVAL CONDITIONS. Landlord reserves the right to impose
reasonable requirements as a condition of such consent or otherwise in
connection with the Work, including requirements that Tenant: (i) use parties
contained on Landlord's approved list (if reputable and available on
commercially reasonable terms) or submit for Landlord's prior written approval
the names, addresses and background information concerning all architects,
engineers, contractors, subcontractors and suppliers Tenant proposes to use,
(ii) submit for Landlord's written approval detailed plans and specifications
prepared by licensed and competent architects and engineers, (iii) obtain and
post permits, (iv) provide additional insurance, bonds and/or other reasonable
security and/or documentation protecting against damages, liability and liens,
(v) permit Landlord or its representatives to inspect the Work at reasonable
times, and (vi) comply with such other reasonable requirements as Landlord may
impose concerning the manner and times in which such Work shall be done.
Landlord may require that all Work that requires Landlord's consent hereunder
be performed under Landlord's reasonable and timely supervision. If Landlord
consents, inspects, supervises, recommends or designates any architects,
engineers, contractors, subcontractors or suppliers, the same shall not be
deemed a warranty as to the adequacy of the design, workmanship or quality of
materials, or compliance of the Work with the plans and specifications or any
Laws.
C. PERFORMANCE OF WORK. All Work shall be performed: (i) in a
thoroughly first class, professional and workmanlike manner, (ii) only with
materials that are new, high quality, and free of material defects (except that
the foregoing shall not prevent Tenant from installing trade fixtures that may
not be brand new or entirely free of defects, so long as they are generally in
good condition and quality consistent with the condition and quality of the
Property), (iii) only by parties, and strictly in accordance with plans,
specifications, and other matters, approved or designated by Landlord in
advance in writing (if Landlord's consent is required under Paragraph A), (iv)
so as not to adversely affect the Systems and Equipment or the structure of the
Property, (v) diligently to completion and so as to avoid any disturbance,
disruption or inconvenience to other tenants and the operation of the Property,
and (vi) in compliance with all Laws, the Rules and other provisions of this
Lease, and such other reasonable requirements as Landlord may impose concerning
the manner and times in which such Work shall be done. Any floor, wall or
ceiling coring work or penetrations or use of noisy or heavy equipment which
may interfere with the conduct of business by other tenants at the Property
shall, at Landlord's option, be performed at times other than Building Hours
(at Tenant's sole cost). If Tenant fails to perform the Work as required herein
or the materials supplied fail to comply herewith or with the specifications
approved by
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Landlord, and Tenant fails to cure such failure within 48 hours after written
notice by Landlord (except notice shall not be required in emergencies),
Landlord shall have the right to stop the Work until such failure is cured
(which shall not limit Landlord's other remedies and shall not serve to abate
the Rent or Tenant's other obligations under this Lease). Upon completion of
any Work hereunder, Tenant shall provide Landlord with "as built" plans, copies
of all construction contracts, and proof of payment for all labor and
materials.
D. LIENS. Tenant shall pay all costs for the Work when due. Tenant
shall keep the Property, Premises and this Lease free from any mechanic's,
materialman's, architect's, engineer's or similar liens or encumbrances, and
any claims therefor, or stop or violation notices, in connection with any Work.
No work which Tenant is permitted or required to do shall be deemed to be for
the immediate use and benefit of Landlord; all such work being for Tenant's
immediate use and benefit in the conduct of Tenant's business, so that no
mechanic's or other lien shall be allowed against the estate of Landlord by
reason of any work required or consent given by Landlord to Tenant to improve
the Premises. Tenant shall remove any such claim, lien or encumbrance, or stop
or violation notices of record, by recording a lien release bond as required by
statute (if Tenant is disputing the lien) or otherwise within thirty (30) days
after notice by Landlord. If Tenant fails to do so, Landlord may pay the amount
(or any portion thereof) or take such other action as Landlord deems necessary
to remove such claim, lien or encumbrance, or stop or violation notices,
without being responsible for investigating the validity thereof. The amount so
paid and costs incurred by Landlord shall be deemed additional Rent under this
Lease payable upon demand, without limitation as to other remedies available to
Landlord.
E. LIEN FREE CONTRACTS AND NOTICE OF COMMENCEMENT. Tenant shall,
pursuant to this provision and Section 713.10, Florida Statutes (1989) notify
any and all contractors, subcontractors, suppliers, materialmen or laborers
(hereinafter collectively referred to as "contractors") that this Lease
expressly provides that Landlord's interest shall not be subject to liens for
improvements made by Tenant; if Tenant fails to so notify any such contractor
of this prohibition, such failure shall render any contract between Tenant and
any such contractor, voidable at the option of such contractor. On or before
the construction commencement date, Tenant shall have executed and recorded in
the office of the public records of the county in which the Property is
located, a "Notice of Commencement" pursuant to Florida Statute Section 713.13
(1989) in form reasonably satisfactory to Landlord. A certified copy of said
Notice of Commencement shall be posted visibly on Premises in accordance with
the requirements for posting a building permit by the building and zoning
department of the county in which the Property is located. In the event that
the Notice of Commencement is recorded more than 30 days prior to the actual
commencement of construction, Tenant shall timely record and post another
Notice of Commencement in the same form as the original notice.
F. LANDLORD'S FEES AND COSTS. Tenant shall pay Landlord a fee for
reviewing, scheduling, monitoring, supervising, and providing access for or in
connection with the Work (except where Landlord's consent is not required
hereunder),
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in an amount equal to three percent (3%) of the total cost of the Work
(including costs of plans and permits therefor), and Landlord's out-of-pocket
costs, including any costs for security, utilities, trash removal, temporary
barricades, janitorial, engineering, architectural or consulting services, and
other matters in connection with the Work, payable within fifteen (15) days
after billing.
ARTICLE 10. INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS
A. REQUIRED INSURANCE. Tenant shall maintain during the Term: (i)
commercial general liability ("CGL") insurance, with limits of not less than
$1,000,000 for personal injury, bodily injury or death, and property damage or
destruction (including loss of use thereof), combined single limit, for any one
occurrence, and $2,000,000 in the aggregate per policy year, with endorsements:
(a) for contractual liability covering Tenant's indemnity obligations under
this Lease, excluding any and all customary exclusions, and (b) adding
Landlord, the management company for the Property, and other parties reasonably
designated by Landlord, as additional insureds, and (ii) primary,
noncontributory, extended coverage or "all-risk" property damage insurance
(including installation floater insurance during any alterations or
improvements that Tenant makes to the Premises) covering any alterations or
improvements beyond any work or allowance provided by Landlord under this
Lease, and Tenant's personal property, business records, fixtures and
equipment, for damage or other loss caused by fire or other casualty or cause
including, but not limited to, vandalism and malicious mischief, theft,
sprinkler leakage, bursting or stoppage of pipes, explosion, business
interruption, and other insurable risks in amounts not less than the full
insurable replacement value of such property (subject to reasonable deductible
amounts). Landlord agrees to maintain, as part of Expenses, during the Term,
commercial general liability insurance, and property damage insurance on the
Property, covering such risks and in such amounts as Landlord shall deem
commercially reasonable, and such other insurance as Landlord shall deem
commercially reasonable (subject to such deductibles, self-insurance retention
amounts, blanket and umbrella policy arrangements or other features as Landlord
deems commercially reasonable); provided, (i) such commercial general liability
insurance shall be at least One Million Dollars ($1,000,000.00) per occurrence
and Two Million Dollars ($2,000,000.00) general aggregate, and (ii) such
property damage insurance shall cover the Building, and leasehold improvements
to the extent provided or paid for by Landlord, and shall be in the amount of
full replacement cost, excluding basements, footings and foundations (subject,
in each case, to such deductibles, self-insurance retention amounts, blanket
and umbrella policy arrangements or other features as Landlord deems
commercially reasonable).
B. CERTIFICATES AND OTHER MATTERS. Tenant shall provide Landlord with
certificates evidencing the coverage required hereunder prior to or upon the
Commencement Date, or Tenant's entry to the Premises for delivery of materials
or construction of improvements or any other purpose (whichever first occurs).
Such certificates shall state that such insurance coverage may not be reduced,
canceled or allowed to expire without at least thirty (30) days' prior written
notice to Landlord, and shall include, as attachments, originals of the
additional insured endorsements to
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Tenant's CGL policy required above. Tenant shall provide renewal certificates
to Landlord at least thirty (30) days prior to expiration of such policies.
Except as provided to the contrary herein, any insurance carried by Landlord or
Tenant shall be for the sole benefit of the party carrying such insurance.
Tenant's insurance policies shall be primary to all policies of Landlord and
any other additional insureds (whose policies shall be deemed excess and
non-contributory). All insurance required hereunder shall be provided by
responsible insurers authorized to do business in the State in which the
Property is located, and shall have a general policy holder's rating of at
least A- and a financial rating of at least VIII in the then current edition of
Best's Insurance Reports. Landlord disclaims any representation as to whether
the foregoing coverages will be adequate to protect Tenant.
C. MUTUAL WAIVER OF CLAIMS AND SUBROGATION. The parties hereby mutually
waive all claims against each other for all property losses (e.g., excluding
auto liability insurance and workers compensation) covered or required to be
covered hereunder by their respective insurance policies, and waive all rights
of subrogation of their respective insurers; for purposes hereof, any
deductible amount shall be treated as though it were recoverable under such
policies. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUCH MUTUAL WAIVER OF
CLAIMS SHALL APPLY REGARDLESS OF THE NEGLIGENCE OF THE OTHER PARTY OR ITS
AFFILIATES, AGENTS OR EMPLOYEES. The parties agree that their respective
insurance policies are now, or shall be, endorsed such that said waiver of
subrogation shall not affect the right of the insured to recover thereunder.
ARTICLE 11. CASUALTY DAMAGE
A. RESTORATION. Tenant shall promptly notify Landlord of any damage to
the Premises by fire or other casualty. If the Premises or any common areas of
the Property providing access thereto shall be damaged by fire or other
casualty, Landlord shall use available insurance proceeds to restore the same.
Such restoration shall be to substantially the same condition as prior to the
casualty, except for modifications required by zoning and building codes and
other Laws or by any Lender, any other modifications to the common areas deemed
desirable by Landlord (provided access to the Premises is not materially
impaired), and except that Landlord shall not be required to repair or replace
any of Tenant's furniture, furnishings, fixtures, systems or equipment, or any
alterations or improvements in excess of any work or allowance provided by
Landlord under this Lease. Tenant shall reasonably cooperate in approving any
plans for repairs to the Premises hereunder, and in vacating the Premises to
the extent reasonably required to avoid any interference or delay in Landlord's
repair work. Promptly following completion of Landlord's work, Tenant shall
repair and replace Tenant's furniture, furnishings, fixtures, systems or
equipment, and any alterations or improvements made by Tenant in excess of
those provided by Landlord, subject to and in compliance with the other
provisions of this Lease.
B. ABATEMENT OF RENT. With respect to the matters covered under this
Article 11, Landlord shall not be liable for any inconvenience or annoyance to
Tenant or its visitors, or injury to Tenant's business resulting in any way
from such damage or the
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repair thereof. However, Landlord shall allow Tenant a proportionate abatement
of Rent from the date of the casualty through the date that Landlord
substantially completes Landlord's repair obligations hereunder (or the date
that Landlord would have substantially completed such repairs, but for delays
by Tenant or any other occupant of the Premises, or any of their agents,
employees, invitees, Transferees and contractors), provided such abatement: (i)
shall apply only to the extent the Premises are untenantable, wholly or partly,
for the purposes permitted under this Lease and not used by Tenant as a result
thereof, based proportionately on the square footage of the Premises so
affected and not used, and (ii) shall not apply if Tenant or any of its agents
or employees caused the damage through intentional misconduct.
C. TERMINATION OF LEASE BY LANDLORD. Notwithstanding the foregoing to
the contrary, in lieu of performing the restoration work, Landlord may elect to
terminate this Lease by notifying Tenant in writing of such termination within
ninety (90) days after the date of damage (such termination notice to include a
termination date providing at least thirty (30) days for Tenant to vacate the
Premises), if the Property shall be materially damaged by intentional
misconduct of Tenant or any of its agents or employees or if the Property shall
be damaged by fire or other casualty or cause such that: (i) repairs to the
Premises and access thereto cannot reasonably be completed within 120 days
after the casualty without the payment of overtime or other premiums, (ii) more
than twenty-five percent (25%) of the Premises is affected by the damage and
fewer than twenty-four (24) months remain in the Term, or any material damage
occurs to the Premises during the last twelve (12) months of the Term, (iii)
any Lender shall require that the insurance proceeds or any material portion
thereof be used to retire the Mortgage debt (or shall terminate the ground
lease, as the case may be), or the damage is not fully covered, except for
reasonable deductible amounts, by Landlord's insurance policies, or (iv) the
cost of the repairs, alterations, restoration or improvement work would exceed
thirty-five percent (35%) of the replacement value of the Building (whether or
not the Premises are affected by the damage). Tenant agrees that the abatement
of Rent provided herein shall be Tenant's sole recourse in the event of such
damage, and waives any other rights Tenant may have under any applicable Law to
perform repairs or terminate the Lease by reason of damage to the Premises or
Property, except as provided in Paragraph D below.
D. TERMINATION OF LEASE BY TENANT. Notwithstanding Paragraph C above to
the contrary, Tenant may terminate this Lease if Tenant is unable to use all or
a substantial portion of the Premises as a result of fire or other casualty,
not caused by intentional misconduct of Tenant or its employees or agents, and:
(i) Landlord fails to commence the restoration work within sixty (60) days
after the damage occurs, or (ii) such work is estimated (which estimate
Landlord shall provide within sixty (60) days following the casualty), to take
more than 210 days to substantially complete after being commenced, or (iii)
Landlord fails to substantially complete such work within 210 days after
commencing the same, or (iv) more than 25% of the Premises is affected by the
damage, and fewer than 12 months remain in the Term. In order to exercise any
of the foregoing termination rights, Tenant must send Landlord at least sixty
(60) days (but not more than 120 days) advance notice specifying the basis for
termination, and such notice must be given no later than fifteen (15) days
following the occurrence of the
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condition serving as the basis for the termination right invoked by Tenant
(i.e., as described in subclauses (i) through (iv)). Such termination rights
shall not be available to Tenant if: (a) Landlord substantially completes the
repairs to the Premises and access thereto within thirty (30) days after
Tenant's notice, or (b) Landlord provides Tenant with new premises under
Article 20 or otherwise and access thereto within thirty (30) days after
Tenant's notice. Notwithstanding anything to the contrary contained herein, if
Tenant, or its officers, employees, contractors, invitees or agents delay
Landlord in performing the repairs, Landlord shall have additional time to
complete the work equal to such delay and Tenant shall pay Landlord all Rent
for the period of such delay.
ARTICLE 12. CONDEMNATION
If an area of the Premises or Property shall be taken by power of eminent
domain or condemned by a competent authority or by conveyance in lieu thereof
for public or quasi-public use ("Condemnation"), including any temporary
taking, so as to materially impair Tenant's ability to use any material portion
of the Telecommunications Equipment Room, or more than twenty percent (20%) of
the other areas of the Premises, Tenant may terminate this Lease by notice to
Landlord within thirty (30) days after Tenant receives notice of the
Condemnation, such termination to be effective on the date possession for such
use is so taken. If a Condemnation includes or affects a material portion of
the Building or Property outside of the Premises, Landlord may elect to
terminate this Lease upon at least thirty (30) days' prior notice to Tenant.
The parties further agree that: (a) if this Lease is terminated, all Rent shall
be apportioned as of the date of such termination or the date of such taking,
whichever shall first occur, (b) if the taking is temporary, Rent shall not be
abated for the period of the taking, but Tenant may seek a condemnation award
therefor (and the Term shall not be extended thereby), and (c) if this Lease is
not terminated but any part of the Premises is permanently taken, the Rent
shall be proportionately abated based on the square footage of the Premises so
taken. Landlord shall be entitled to receive the entire award or payment in
connection with such Condemnation and Tenant hereby assigns to Landlord any
interest therein for the value of Tenant's unexpired leasehold estate or any
other claim and waives any right to participate therein, except that Tenant
shall have the right to file any separate claim available to Tenant for a
temporary taking of the leasehold as described above, and for moving expenses
and any taking of Tenant's personal property, provided such award is separately
payable to Tenant.
ARTICLE 13. ASSIGNMENT AND SUBLETTING
A. TRANSFERS. Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed as further described below: (i) assign, mortgage, pledge, hypothecate,
encumber, or permit any lien to attach to, or otherwise transfer, this Lease or
any interest hereunder, by operation of Law or otherwise, (ii) sublet the
Premises or any part thereof, or (iii) permit the use of the Premises by any
Persons other than Tenant and its employees (all of the foregoing are
hereinafter sometimes referred to collectively as "Transfers" and any Person to
whom any Transfer is made or sought to be made is hereinafter sometimes
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referred to as a "Transferee"). If Tenant shall desire Landlord's consent to
any Transfer, Tenant shall notify Landlord in writing, which notice shall
include: (a) the proposed effective date (which shall not be less than thirty
(30) nor more than 180 days after Tenant's notice, provided that if Landlord
consents earlier than thirty (30) days, the effective date may be advanced to
the date of Landlord's consent), (b) the portion of the Premises to be
Transferred (herein called the "Subject Space"), (c) the terms of the proposed
Transfer and the consideration therefor, the name, address and background
information concerning the proposed Transferee, and a true and complete copy of
all proposed Transfer documentation, (d) financial statements (balance sheets
and income/expense statements for the current and prior year) of the proposed
Transferee, in form and detail reasonably satisfactory to Landlord, certified
by an officer, partner or owner of the Transferee, and (e) any other reasonable
information to enable Landlord to determine the financial responsibility,
character, and reputation of the proposed Transferee, nature of such
Transferee's business and proposed use of the Subject Space or as Landlord may
reasonably request. Any Transfer made without complying with this Article
shall, at Landlord's option, be null, void and of no effect, or shall
constitute a Default under this Lease. Whether or not Landlord shall grant
consent, Tenant shall pay $500 towards Landlord's review and processing
expenses, as well as any reasonable legal fees incurred by Landlord, within
thirty (30) days after Landlord's written request.
B. APPROVAL. Landlord will not unreasonably withhold, condition or
delay its consent to any proposed Transfer of the Subject Space to the
Transferee on the terms specified in Tenant's notice. The parties hereby agree
that it shall be reasonable under this Lease and under any applicable Law for
Landlord to withhold consent to any proposed Transfer where one or more of the
following applies (without limitation as to other reasonable grounds for
withholding consent): (i) the Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality or nature of the
Property or other tenants of the Property, (ii) the Transferee intends to use
the Subject Space for purposes which are not permitted under this Lease, (iii)
the Subject Space is not regular in shape with appropriate means of ingress and
egress suitable to satisfy code requirements, would result in more than a
reasonable number of occupants, or would require materially increased services
by Landlord, (iv) the Transferee is a government (or agency or instrumentality
thereof), (v) the proposed Transferee or any affiliate thereof is an occupant
of the Property (or of any complex in which the Property is located) or has
negotiated (e.g., where a written proposal is made from one party to the other)
to lease space in the Property (or in such complex) from Landlord during the
prior three (3) months, (vi) the proposed Transferee does not have, in
Landlord's good faith determination, or a reasonable financial condition in
relation to the obligations to be assumed in connection with the Transfer,
(vii) the Transfer involves a partial or collateral assignment, a mortgage or
other encumbrance on this Lease, a sub-sublease or an assignment of a sublease,
(viii) the proposed Transfer involves conversion, merger or consolidation of
Tenant into a limited liability company or limited liability partnership which
would have the legal effect of releasing Tenant from any obligations under this
Lease, (ix) the proposed Transfer would cause Landlord to be in violation of
any Laws or any other lease, Mortgage or agreement to which Landlord is a
party, or would give a tenant of the Property a right to cancel its lease, or
(x) Tenant has
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committed and failed to cure a Default. If Tenant disagrees with Landlord's
decision to deny approval, Tenant's sole remedy shall be to seek immediate
declaratory and injunctive relief, and to recover attorneys' fees and costs as
a prevailing party under Article 17.
C. TRANSFER PREMIUMS. If Landlord consents to a Transfer (excluding
Transfers under Paragraphs G and H below), and as a condition thereto which the
parties hereby agree is reasonable, Tenant shall retain fifty percent (50%) of
any Transfer Premium, and shall pay Landlord fifty percent (50%) of any
Transfer Premium, derived by Tenant from such Transfer. "Transfer Premium"
shall mean: (i) for a lease assignment, all consideration paid or payable
therefor, and (ii) for a sublease, all rent, additional rent or other
consideration paid by such Transferee in excess of the Rent payable by Tenant
under this Lease (on a monthly basis during the Term, and on a per rentable
square foot basis, if less than all of the Premises is transferred). In any
such computation, Tenant: (a) may subtract any reasonable direct out-of-pocket
costs incurred in connection with such Transfer, such as advertising costs,
brokerage commissions, attorneys' fees and leasehold improvements for the
Subject Space, and (b) shall include in the "Transfer Premium" any so-called
"key money" or other bonus amount paid by Transferee to Tenant, and any
payments in excess of fair market value for services rendered by Tenant to
Transferee or in excess of fair market value for assets, fixtures, inventory,
equipment or furniture transferred by Tenant to Transferee. If part of the
consideration for such Transfer shall be payable other than in cash, Landlord's
share of such non-cash consideration shall be in such form as is reasonably
satisfactory to Landlord. Tenant shall pay the percentage of the Transfer
Premium due Landlord hereunder within thirty (30) days after Tenant receives
any Transfer Premium from the Transferee.
D. RECAPTURE. Notwithstanding anything to the contrary contained in
this Article, Landlord shall have the option, by giving notice to Tenant within
thirty (30) days after receipt of Tenant's notice of any proposed Transfer, to
recapture the Subject Space. Such recapture notice shall cancel and terminate
this Lease with respect to the Subject Space as of the date stated in Tenant's
notice as the effective date of the proposed Transfer (or at Landlord's option,
such notice shall cause the Transfer to be made to Landlord or its agent or
nominee, in which case the parties shall execute reasonable Transfer
documentation promptly thereafter). If this Lease shall be canceled with
respect to less than the entire Premises, the Rent herein shall be prorated on
the basis of the number of rentable square feet retained by Tenant in
proportion to the number of rentable square feet contained in the Premises,
this Lease as so amended shall continue thereafter in full force and effect,
and upon request of either party the parties shall execute written confirmation
of the same. Tenant shall surrender and vacate the Subject Space when required
hereunder in accordance with Article 23, and any failure to do so shall be
subject to Article 24. Notwithstanding the foregoing to the contrary,
Landlord's recapture rights hereunder shall not apply to Transfers under
Paragraphs G or H below, or with respect to any sublease where Tenant is not,
and will not as a result of such sublease, be subleasing more than 10,000
square feet of rentable area of the Premises, in the aggregate, unless fewer
than twelve (12) months will then remain in the Term on the commencement date
of such sublease.
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E. TERMS OF CONSENT. If Landlord consents to a Transfer: (i) the terms
and conditions of this Lease, including Tenant's liability for the Subject
Space, shall in no way be deemed to have been waived or modified, unless
otherwise expressly agreed upon in writing by Landlord, (ii) such consent shall
not be deemed consent to any further Transfer by either Tenant or a Transferee,
(iii) no Transferee shall succeed to any rights provided in this Lease or any
amendment hereto to extend the Term of this Lease, expand the Premises, or
lease other space, any such rights being deemed personal to the initial Tenant,
unless otherwise expressly agreed upon in writing by Landlord, (iv) Tenant
shall deliver to Landlord, promptly after execution, an original executed copy
of all documentation pertaining to the Transfer in form reasonably acceptable
to Landlord, and (v) if there is a Transfer Premium, Tenant shall furnish a
complete statement, certified by an independent certified public accountant or
Tenant's financial officer, setting forth in detail the computation of any
Transfer Premium that Tenant has derived and shall derive from such Transfer.
Landlord or its authorized representatives shall have the right at reasonable
times (e.g., during normal business hours and limited to a reasonable number of
times per year based on the number of Transfers during such year) to audit the
books, records and papers of Tenant and any Transferee relating to any Transfer
for purposes of determining the Transfer Premium, and shall have the right to
make copies thereof. If the Transfer Premium respecting any Transfer shall be
found to have been understated, Tenant shall pay the deficiency within fifteen
(15) days after demand (and if understated by more than five percent (5%),
Tenant shall include with such payment Landlord's costs of such audit). Any
sublease hereunder shall be subordinate and subject to the provisions of this
Lease, and if this Lease shall be terminated during the term of any sublease,
whether based on Default or mutual agreement, Landlord shall have the right to:
(a) deem such sublease as merged and canceled and repossess the Subject Space
by any lawful means, or (b) require that such subtenant attorn to and recognize
Landlord as its landlord under such sublease with respect to obligations
arising thereafter, subject to the terms of Landlord's standard form of
attornment documentation. If Tenant shall commit a Default under this Lease
(and fail to cure beyond the applicable cure period), Landlord is hereby
irrevocably authorized to direct any Transferee to make all payments under or
in connection with the Transfer directly to Landlord (which Landlord shall
apply toward Tenant's obligations under this Lease).
F. CERTAIN TRANSFERS. For purposes of this Lease, the term "Transfer"
shall also include, and all of the foregoing provisions shall apply to: (i) the
conversion, merger or consolidation of Tenant into a limited liability company
or limited liability partnership, (ii) if Tenant is a partnership or limited
liability company, the withdrawal or change, voluntary, involuntary or by
operation of law, of a majority of the partners or members, or a transfer of a
majority of partnership or membership interests, within a twelve month period,
or the dissolution of the partnership or company, and (iii) if Tenant is a
closely held corporation (i.e., whose stock is not publicly held and not traded
through an exchange or over the counter), the dissolution, merger,
consolidation or other reorganization of Tenant, or within a twelve month
period: (a) the sale or other transfer of more than an aggregate of 50% of the
voting shares of Tenant (other than to immediate family members by reason or
gift or death) or (b) the sale, mortgage, hypothecation or pledge of more than
an aggregate of 50% of Tenant's net assets.
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G. TRANSFERS TO TENANT AFFILIATES. Notwithstanding anything to the
contrary in this Article, the initial named Tenant herein may, without
Landlord's consent, assign this Lease (or sublease the Premises, in whole or in
part) to any party (herein referred to as a "Tenant Affiliate") which directly
or indirectly: (i) wholly owns or controls Tenant, (ii) is wholly owned or
controlled by Tenant, (iii) is under common ownership or control with Tenant,
or (iv) into which Tenant or any of the foregoing parties is merged,
consolidated or reorganized, or to which all or substantially all of Tenant's
assets or any such other party's assets are sold, so long as the resulting
entity will be an on-going business with a net worth and financial condition at
least as strong as that of the initial named Tenant herein (and in the event of
such a sale of all or substantially all of Tenant's assets to any party, Tenant
shall include an assignment and assumption of this Lease as part of the assets
transferred thereunder); provided: (a) Landlord shall receive at least thirty
(30) days advance notice describing the structure of the transaction, the
parties involved, and the financial information required herein, certified by
an officer of Tenant and/or the Transferee, and a copy of the executed transfer
document (in form reasonably acceptable to Landlord consistent with the
foregoing provisions) promptly after execution, (b) Tenant shall remain liable
for all of Tenant's obligations under this Lease, (c) the Transferee shall
expressly assume all of Tenant's obligations under this Lease, and (d) this
provision shall not be deemed consent to any further sublease, assignment or
other Transfer. Landlord acknowledges that Tenant has advised Landlord that
Cybergate, Inc., a Florida corporation, and ACS Network Technologies, a
Maryland corporation, are Tenant Affiliates.
H. TENANT'S CO-LOCATION EQUIPMENT ARRANGEMENTS. Notwithstanding
anything to the contrary contained in this Article, the parties agree that
Tenant shall have the right, without Landlord's further approval, the payment
of Transfer Premiums, or the exercise of Landlord's option to recapture under
Paragraph D above, to permit certain other parties to use certain portions of
the Telecommunications Equipment Room in the Premises subject to the following
conditions: (i) such arrangements shall involve the licensing of rack space for
purposes of installing, replacing, repairing, inspecting and operating
telecommunications equipment, and related use of Tenant's Telecommunications
Room Equipment and the fiber-optic lines that Tenant installs in the easements
as described in Article 28, (ii) such arrangements shall be made with Tenant's
telecommunications customers or clients, (iii) such arrangements shall not
involve any reconfiguring, partitioning or subdividing of the Premises, other
than rack space (unless Tenant obtains Landlord's approval and complies with
Article 9), (iv) within ten (10) days after reasonably requested from time to
time, Tenant shall provide Landlord a written list of such parties (which
Landlord shall keep confidential consistent with Article 32.K), and such other
information as Landlord may reasonably request, and (v) such arrangements shall
be subject and subordinate to all other provisions of this Lease.
ARTICLE 14. PERSONAL PROPERTY, RENT AND OTHER TAXES
Tenant shall pay, prior to delinquency, all taxes, charges or other
governmental impositions assessed against or levied upon all fixtures,
furnishings, personal property, built-in and modular furniture, and systems and
equipment located in or exclusively
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serving the Premises, notwithstanding that certain such items may become
Landlord's property under Article 23 upon termination of the Lease. Whenever
possible, Tenant shall cause all such items to be assessed and billed
separately from the other property of Landlord. In the event any such items
shall be assessed and billed with the other property of Landlord, Tenant shall
pay Landlord Tenant's share of such taxes, charges or other governmental
impositions within thirty (30) days after Landlord delivers a statement and a
copy of the assessment or other documentation showing the amount of impositions
applicable to Tenant's property. Tenant shall pay any rent tax, sales tax,
service tax, transfer tax, value added tax, or any other applicable tax on the
Rent, utilities or services herein, the privilege of renting, using or
occupying the Premises or collecting Rent therefrom, or otherwise respecting
this Lease or any other document entered in connection herewith.
ARTICLE 15. LANDLORD'S REMEDIES
A. DEFAULT. The occurrence of any one or more of the following events
shall constitute a "Default" by Tenant and shall give rise to Landlord's
remedies set forth in Paragraph B below: (i) failure to make when due any
payment of Rent, unless such failure is cured within five (5) business days
after notice; (ii) failure to observe or perform any term or condition of this
Lease other than the payment of Rent (or the other matters expressly described
herein), unless such failure is cured within any period of time following
notice expressly provided with respect thereto in other Articles hereof, or
otherwise within a reasonable time, but in no event more than thirty (30) days
following notice (provided, if the nature of Tenant's failure is such that more
time is reasonably required in order to cure, Tenant shall not be in Default if
Tenant commences to cure promptly within such period, diligently seeks and
keeps Landlord reasonably advised of efforts to cure such failure to
completion); (iii) failure to cure immediately upon notice thereof any
condition which is hazardous, interferes with another tenant or the operation
or leasing of the Property, or may cause the imposition of a fine, penalty or
other remedy on Landlord or its agents or affiliates, (iv) violating Article 13
respecting Transfers, or abandoning the Premises ("abandonment" under this
Lease shall mean vacating or failing to occupy the Premises for more than
thirty (30) days while Tenant is delinquent in paying Rent), or (v) (a) making
by Tenant or any guarantor of this Lease ("Guarantor") of any general
assignment for the benefit of creditors, (b) filing by or for reorganization or
arrangement under any Law relating to bankruptcy or insolvency (unless, in the
case of a petition filed against Tenant or such Guarantor, the same is
dismissed within thirty (30) days), (c) appointment of a trustee or receiver to
take possession of substantially all of Tenant's assets located in the Premises
or of Tenant's interest in this Lease, where possession is not restored to
Tenant within thirty (30) days, (d) Tenant's or any Guarantor's convening of a
meeting of its creditors or any class thereof for the purpose of effecting a
moratorium upon or composition of its debts, or (e) a violation by Tenant or
any affiliate of Tenant under any other lease or agreement with Landlord or any
affiliate thereof which is not cured within the time permitted for cure
thereunder. If Tenant violates the same term or condition of this Lease on two
(2) occasions during any twelve (12) month period, and Landlord has provided
notice to Tenant thereof within thirty (30) days following each such violation,
then Landlord shall have the right to exercise all remedies for any further
violations of the same term or
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condition during that twelve (12) month period without providing further notice
or an opportunity to cure such violation. The notice and cure periods herein
are intended to satisfy and run concurrently with any notice and cure periods
provided by Law, and shall not be in addition thereto.
B. REMEDIES. If a Default occurs, Landlord shall have the rights and
remedies hereinafter set forth to the extent permitted by Law, which shall be
distinct, separate and cumulative with and in addition to any other right or
remedy allowed under any Law or other provision of this Lease (provided
however, Landlord shall not be afforded double recovery):
(1) Landlord may terminate Tenant's right of possession, reenter and
repossess the Premises by detainer suit, summary proceedings or other lawful
means, with or without terminating this Lease (except as required by Law), and
recover from Tenant: (i) any unpaid Rent as of the termination date, (ii) the
amount by which: (a) any unpaid Rent which would have accrued after the
termination date during the balance of the Term exceeds (b) the reasonable
rental value of the Premises under a lease substantially similar to this Lease,
taking into account, among other things, the condition of the Premises, market
conditions, the period of time the Premises may reasonably remain vacant before
Landlord is able to re-lease the same to a suitable replacement tenant, and
Costs of Reletting (as defined in Paragraph H below) that Landlord may incur in
order to enter such replacement lease, and (iii) any other amounts necessary to
compensate Landlord for all damages proximately caused by Tenant's failure to
perform its obligations under this Lease. For purposes of computing the amount
of Rent herein that would have accrued after the termination date, Tenant's
obligations for Taxes and Expenses shall be projected based upon the average
rate of increase in such items from the Commencement Date through the
termination date (or if such period shall be less than three years, then based
on Landlord's reasonable estimates). The amounts computed in accordance with
the foregoing subclauses (a) and (b) shall both be discounted in accordance
with accepted financial practice at the rate of six percent (6%) per annum to
the then present value.
(2) Landlord may terminate Tenant's right of possession, reenter and
repossess the Premises by detainer suit, summary proceedings or other lawful
means, with or without terminating this Lease (except as required by Law), and
recover from Tenant: (i) any unpaid Rent as of the date possession is
terminated, (ii) any unpaid Rent which thereafter accrues (as or after it
accrues) during the Term from the date possession is terminated through the
time of judgment (or which may have accrued from the time of any earlier
judgment obtained by Landlord), less any consideration received from
replacement tenants as further described and applied pursuant to Paragraph H,
below, and (iii) any other amounts necessary to compensate Landlord for all
damages proximately caused by Tenant's failure to perform its obligations under
this Lease, including all Costs of Reletting (as defined in Paragraph H below).
Tenant shall pay any such amounts to Landlord as the same accrue or after the
same have accrued from time to time upon demand. At any time after terminating
Tenant's right to possession as provided herein, Landlord may terminate this
Lease as provided in
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clause (1) above by notice to Tenant and may pursue such other remedies as may
be available to Landlord under this Lease or Law.
C. MITIGATION OF DAMAGES. If Landlord terminates this Lease or Tenant's
right to possession, Landlord shall be obligated to mitigate Landlord's damages
if and to the extent required by applicable Law, subject to the following: (i)
Landlord shall be required only to use reasonable efforts to mitigate, which
shall not exceed such efforts as Landlord generally uses to lease other space
at the Property, (ii) Landlord will not be deemed to have failed to mitigate if
Landlord or its affiliates lease any other portions of the Property or other
projects owned by Landlord or its affiliates in the same geographic area,
before reletting all or any portion of the Premises, and (iii) any failure to
mitigate as described herein with respect to any period of time shall only
reduce the Rent and other amounts to which Landlord is entitled hereunder by
the reasonable rental value of the Premises during such period, taking into
account the factors described in clause B(1) above. In recognition that the
value of the Property depends on the rental rates and terms of leases therein,
Landlord's rejection of a prospective replacement tenant based on an offer of
rentals below Landlord's published rates for new leases of comparable space at
the Property at the time in question, or at Landlord's option, below the rates
provided in this Lease, or containing terms less favorable than those contained
herein, shall not give rise to a claim by Tenant that Landlord failed to
mitigate Landlord's damages. If Landlord has not terminated this Lease or
Tenant's right to possession, Landlord shall have no obligation to mitigate
under any circumstances and may permit the Premises to remain vacant or
abandoned; in such case, Tenant may seek to mitigate damages by attempting to
sublease the Premises or assign this Lease pursuant to Article 13.
D. RELETTING. If this Lease or Tenant's right to possession is
terminated, or Tenant abandons the Premises, Landlord may: (i) enter and secure
the Premises, change the locks, install barricades, remove any improvements,
fixtures or other property of Tenant therein, perform any decorating,
remodeling, repairs, alterations, improvements or additions and take such other
actions as Landlord shall reasonably determine in Landlord's sole discretion to
prevent damage or deterioration to the Premises or prepare the same for
reletting, and (ii) relet all or any portion of the Premises (separately or as
part of a larger space), for any rent, use or period of time (which may extend
beyond the Term hereof), and upon any other terms as Landlord shall determine
in Landlord's sole discretion, directly or as Tenant's agent (if permitted or
required by applicable Law). The consideration received from such reletting
shall be applied pursuant to the terms of Paragraph H hereof, and if such
consideration, as so applied, is not sufficient to cover all Rent and damages
to which Landlord may be entitled hereunder, Tenant shall pay any deficiency to
Landlord as the same accrues or after the same has accrued from time to time
upon demand, subject to Paragraph C and the other provisions hereof.
E. SPECIFIC PERFORMANCE, COLLECTION OF RENT AND ACCELERATION. Landlord
shall at all times have the right without prior demand or notice except as
required by applicable Law to: (i) seek any declaratory, injunctive or other
equitable relief, and specifically enforce this Lease or restrain or enjoin a
violation of any provision hereof,
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and Tenant hereby waives any right to require that Landlord post a bond or
other security in connection therewith, and (ii) sue for and collect any unpaid
Rent which has accrued. Notwithstanding anything to the contrary contained in
this Lease, to the extent not expressly prohibited by applicable Law, in the
event of any Default by Tenant, Landlord may terminate this Lease or Tenant's
right to possession and accelerate and declare all Rent reserved for the
remainder of the Term to be immediately due and payable; provided the Rent so
accelerated shall be discounted in accordance with accepted financial practice
at the rate of five percent (5%) per annum to the then present value, and
Landlord shall, after receiving payment of the same from Tenant, be obligated
to turn over to Tenant any actual net reletting proceeds (net of all Costs of
Reletting) thereafter received during the remainder of the Term, up to the
amount so received from Tenant pursuant to this provision.
F. LATE CHARGES, INTEREST, AND RETURNED CHECKS. Tenant shall pay, as
additional Rent, a service charge of Two Hundred Fifty Dollars ($250.00) or
five percent (5%) of the delinquent amount, whichever is greater, if any
portion of Rent is not received within five days after due. In addition, any
Rent not paid when due shall accrue interest from the due date at the Default
Rate until payment is received by Landlord. Such service charges and interest
payments shall not be deemed consent by Landlord to late payments, nor a waiver
of Landlord's right to insist upon timely payments at any time, nor a waiver of
any remedies to which Landlord is entitled as a result of the late payment of
Rent. If Landlord receives two (2) or more checks from Tenant which are
returned by Tenant's bank for insufficient funds, Landlord may require that all
checks thereafter be bank certified or cashier's checks (without limiting
Landlord's other remedies). All bank service charges resulting from any
returned checks shall be borne by Tenant. Notwithstanding the foregoing to the
contrary, Landlord shall not impose late charges on the first late payment in
any calendar year; provided, this limitation on late charges is granted as a
special accommodation and a personal right, and shall no longer apply in the
event of any assignment of this Lease.
G. LANDLORD'S CURE OF TENANT VIOLATIONS. If Tenant fails to perform any
obligation under this Lease within the time permitted for cure under this Lease
after notice thereof by Landlord (except that no notice shall be required in
emergencies), Landlord shall have the right (but not the duty), to perform such
obligation on behalf and for the account of Tenant. In such event, Tenant shall
reimburse Landlord upon demand, as additional Rent, for all expenses incurred
by Landlord in performing such obligation together with an amount equal to five
percent (5%) thereof for Landlord's overhead, and interest thereon at the
Default Rate from the date such expenses were incurred. Landlord's performance
of Tenant's obligations hereunder shall not be deemed a waiver or release of
Tenant therefrom.
H. OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations and additions, reletting, or any other action or omission by
Landlord shall be construed as an election by Landlord to terminate this Lease
or Tenant's right to possession, nor shall the same operate to release Tenant
in whole or in part from any of Tenant's obligations hereunder, unless express
notice of such intention is sent by Landlord to Tenant (and if applicable Law
permits, and Landlord shall not have expressly terminated
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this Lease in writing, then any termination shall be deemed a termination of
Tenant's right of possession only). Landlord may bring suits for amounts owed
by Tenant hereunder or any portions thereof, as the same accrue or after the
same have accrued, and no suit or recovery of any portion due hereunder shall
be deemed a waiver of Landlord's right to collect all amounts to which Landlord
is entitled hereunder, nor shall the same serve as any defense to any
subsequent suit brought for any amount not theretofore reduced to judgment.
Landlord may pursue one or more remedies against Tenant and need not make an
election of remedies until findings of fact are made by a court of competent
jurisdiction. All rent and other consideration paid by any replacement tenants
shall be applied at Landlord's option: (i) first, to the Costs of Reletting,
(ii) second, to the payment of all costs of enforcing this Lease against Tenant
or any Guarantor, (iii) third, to the payment of all interest and service
charges accruing hereunder, (iv) fourth, to the payment of Rent theretofore
accrued, and (v) with the residue, if any, to be held by Landlord and applied
to the payment of Rent and other obligations of Tenant as the same become due
(and with any remaining residue to be retained by Landlord). "Costs of
Reletting" shall include all costs and expenses incurred by Landlord for any
repairs or other matters described in Paragraph D above, brokerage commissions,
advertising costs, reasonable attorneys' fees, and any other reasonable costs
and incentives incurred in order to enter into leases with replacement tenants.
Landlord shall be under no obligation to observe or perform any provision of
this Lease on its part to be observed or performed which accrues while Tenant
is in Default hereunder. The times set forth herein for the curing of Defaults
by Tenant are of the essence of this Lease. Tenant agrees that the notice and
cure rights set forth herein contain the entire agreement of the parties
respecting such matters, and hereby waives any right otherwise available under
any Law to redeem or reinstate this Lease or Tenant's right to possession after
this Lease or Tenant's right to possession is properly and lawfully terminated
hereunder.
ARTICLE 16. SECURITY DEPOSIT
[INTENTIONALLY OMITTED)
ARTICLE 17. ATTORNEYS' FEES, JURY TRIAL AND VENUE
In the event of any litigation or arbitration between the parties
relating to this Lease, the Premises or Property (including pretrial, trial,
appellate, administrative, bankruptcy or insolvency proceedings), the
prevailing party shall be entitled to recover its reasonable attorneys' fees
and costs as part of the judgment, award or settlement therein. In the event of
a breach of this Lease by either party which does not result in litigation but
which causes the non-breaching party to incur attorneys' fees or costs, the
breaching party shall reimburse such reasonable fees and costs to the
non-breaching party upon demand. If either party or any of its officers,
directors, trustees, beneficiaries, partners, agents, affiliates or employees
shall be made a party to any litigation or arbitration commenced by or against
the other party and is not clearly at fault, the other party shall pay all
reasonable costs, expenses and attorneys' fees incurred by such parties in
connection with such litigation. IN THE INTEREST OF
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OBTAINING A SPEEDIER AND LESS COSTLY HEARING OF ANY DISPUTE, LANDLORD AND
TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY AGAINST THE OTHER ARISING OUT OF OR RELATING TO THIS
LEASE, THE PREMISES OR THE PROPERTY. Although such jury waiver is intended to
be self-operative and irrevocable, Landlord and Tenant each further agree, if
requested, to confirm such waivers in writing at the time of commencement of
any such action, proceeding or counterclaim. Any action or proceeding brought
by either party against the other for any matter arising out of or in any way
relating to this Lease, the Premises or the Property, shall be heard in the
court having jurisdiction where the Property is located.
ARTICLE 18. SUBORDINATION, ATTORNMENT AND LENDER PROTECTION
This Lease is subject and subordinate to all Mortgages now or
hereafter placed upon the Property, and all other encumbrances and matters of
public record applicable to the Property. Whether before or after any
foreclosure or power of sale proceedings are initiated or completed by any
Lender or a deed in lieu is granted (or any ground lease is terminated), Tenant
agrees, upon written request of any such Lender or any purchaser at such sale,
to attorn and pay Rent to such party, and recognize such party as Landlord
(provided such Lender or purchaser shall agree not to disturb Tenant's
occupancy so long as Tenant does not Default hereunder and fail to cure beyond
the applicable cure period, on a form of agreement customarily used by, or
otherwise reasonably acceptable to, such party). However, in the event of
attornment, no Lender shall be: (i) liable for any act or omission of Landlord,
or subject to any offsets or defenses which Tenant might have against Landlord
(arising prior to such Lender becoming Landlord under such attornment), (ii)
liable for any security deposit or bound by any prepaid Rent not actually
received by such Lender, or (iii) bound by any future modification of this
Lease not consented to by such Lender. Any Lender may elect to make this Lease
prior to the lien of its Mortgage by written notice to Tenant, and if the
Lender of any prior Mortgage shall require, this Lease shall be prior to any
subordinate Mortgage; such elections shall be effective upon written notice to
Tenant, or shall be effective as of such earlier or later date set forth in
such notice. Tenant agrees to give any Lender by certified mail, return receipt
requested, a copy of any notice of default served by Tenant upon Landlord,
provided that prior to such notice Tenant has been notified in writing (by way
of service on Tenant of a copy of an assignment of leases, or otherwise) of the
address of such Lender. Tenant further agrees that if Landlord shall have
failed to cure such default within the time permitted Landlord for cure under
this Lease, any such Lender whose address has been provided to Tenant shall
have an additional period of thirty (30) days in which to cure (or such
additional time as may be required due to causes beyond such Lender's
reasonable control, including time to obtain possession of the Property by
appointment of receiver, power of sale or judicial action). Except as expressly
provided to the contrary herein, the provisions of this Article shall be
self-operative; however Tenant shall execute and deliver, within thirty (30)
days after request therefor, such documentation as Landlord or any Lender may
request from time to time, whether prior to or after a foreclosure or power of
sale proceeding is initiated or completed, a deed in lieu is delivered, or a
ground lease is
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terminated, in order to further confirm or effectuate the matters set forth in
this Article in recordable form.
ARTICLE 19. ESTOPPEL CERTIFICATES
Tenant shall from time to time, within ten (10) days after Landlord
delivers its estoppel statement form, execute, acknowledge and deliver a
statement certifying: (i) that this Lease is unmodified and in full force and
effect or, if modified, stating the nature of such modification and certifying
that this Lease as so modified, is in full force and effect (or specifying the
ground for claiming that this Lease is not in force and effect), (ii) the dates
to which the Rent has been paid, and the amount of any Security Deposit, (iii)
that Tenant is in possession of the Premises, and paying Rent on a current
basis with no offsets, defenses or claims, or specifying the same if any are
claimed, (iv) that there are not, to Tenant's knowledge, any uncured defaults
on the part of Landlord or Tenant, or specifying the same if any are claimed,
and (v) certifying such other matters as Landlord may reasonably request, or as
may be requested by Landlord's current or prospective Lenders, insurance
carriers, auditors, and prospective purchasers (and including a comparable
certification statement from any subtenant respecting its sublease). Any such
statement may be relied upon by any such parties. If Tenant shall fail to
execute and return such statement within the time required herein, and shall
fail to do so within ten (10) additional days following a second written
request, Tenant shall be in Default, and shall be deemed to have agreed with
the matters set forth therein (which shall not be in limitation of Landlord's
other remedies).
ARTICLE 20. RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, and except for Tenant's
rights expressly granted in this Lease, Landlord reserves full rights to
control the Property (which rights may be exercised without subjecting Landlord
to claims for constructive eviction, abatement of Rent, damages or other claims
of any kind), including more particularly, but without limitation, the
following rights: (a) limit or prevent access to the Property, (b) shut down
elevator service, (c) activate elevator emergency controls, and (d) otherwise
take such action or preventative measures deemed necessary by Landlord for the
safety of tenants of the Property or the protection of the Property and other
property located thereon or therein (but this provision shall impose no duty on
Landlord to take such actions, and no liability for actions taken in good
faith).
A. GENERAL MATTERS. To: (i) change the name or street address of the
Property or designation of the Premises (provided Landlord gives Tenant at
least thirty (30) days advance notice, and reimburses Tenant for reasonable
costs for reasonable supplies of Tenant's stationary and business cards that
can no longer be used as a result of such change upon reasonable evidence
thereof), (ii) install and maintain signs on and about the Property, and grant
any other Person the right to do so, subject to Tenant's rights under Exhibit
F, (iii) retain at all times, and use in appropriate instances, keys to all
doors within and into the Premises (subject to the Paragraph B concerning
Secure Areas), (iv) grant to any Person the right to conduct any business or
render any service at the Property, whether or not the same are similar to the
use permitted Tenant
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by this Lease, (v) have access for Landlord and other tenants of the Property
to any mail chutes located on the Premises according to the rules of the United
States Postal Service (and to install or remove such chutes), and (vi) in case
of fire, invasion, insurrection, riot, civil disorder, public excitement or
other dangerous condition, or threat thereof:
B. ACCESS TO PREMISES. Subject to the following provisions, to enter
the Premises in order to: (i) inspect, (ii) supply cleaning service or other
services to be provided Tenant hereunder (except for the Secure Areas as
described below), (iii) show the Premises to current and prospective Lenders,
insurers, purchasers, governmental authorities, and their representatives, and
during the last nine (9) months of Tenant's occupancy, show the Premises to
prospective tenants and leasing brokers, and (iv) decorate, remodel or alter
the Premises if Tenant abandons the Premises at any time or vacates the same
during the last 120 days of the Term (without thereby terminating this Lease),
and (v) perform any work or take any other actions under Paragraph C below, or
exercise other rights of Landlord under this Lease or applicable Laws. If
Tenant requests that any such non-disruptive access occur before or after
Building Hours, and Landlord schedules the work accordingly, Tenant shall pay
all overtime and other additional costs in connection therewith. In connection
with any such access to the Premises, except in emergencies or for cleaning or
other routine services to be provided to Tenant under this Lease, Landlord
shall: (a) provide reasonable advance written or oral notice to Tenant's
on-site manager or other appropriate person, and (b) take reasonable steps to
minimize any disruption to Tenant's business. Notwithstanding anything
contained in this Lease to the contrary, Tenant shall have the right to
reasonably designate certain limited areas within the Premises, such as the
Telecommunications Equipment Room, as secure areas ("Secure Areas") which may
be locked by Tenant and to which Landlord shall not have the key or other
method of access (such as key cards or security codes), except when a Tenant
employee or representative is present. Tenant acknowledges that Landlord's lack
of access to the Secure Areas may impair the ability of Landlord or other
persons (including, without limitation, fire and police personnel) to respond
to emergency situations in or affecting the Secure Areas. Tenant waives and
releases all claims, demands, liabilities, losses and expenses (collectively,
"claims") which may arise or occur as a result of any delay or difficulty in
gaining, or inability to gain, access to the Secure Areas by Landlord or other
persons (including, without limitation, fire and police personnel) in emergency
situations, and Tenant shall defend, indemnify and hold Landlord and its agents
and employees harmless from any claims, damages, losses and expenses, including
damage to the doors to the Secure Areas arising therefrom. Landlord shall have
no obligation to provide any cleaning services to the Secure Areas.
C. CHANGES TO THE PROPERTY. Subject to the last sentence of this
Paragraph, to: (i) paint and decorate the Property and Common Areas, (ii)
perform repairs or maintenance, and (iii) make replacements, restorations,
renovations, alterations, additions and improvements, structural or otherwise
(including freon retrofit work), in and to the Property or any part thereof,
including any adjacent building, structure, facility, land, street or alley, or
change the uses thereof (other than Tenant's permitted use under this Lease),
including changes, reductions or additions of corridors,
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entrances, doors, lobbies, parking facilities and other areas, structural
support columns and shear walls, elevators, stairs, escalators, mezzanines,
solar tint windows or film, kiosks, planters, sculptures, displays, and other
amenities and features therein, and changes relating to the connection with or
entrance into or use of the Property or any other adjoining or adjacent
building or buildings, now existing or hereafter constructed. In connection
with such matters, Landlord may erect scaffolding, barricades and other
structures, open ceilings, close entry ways, restrooms, elevators, stairways,
corridors, parking and other areas and facilities, and take such other actions
as Landlord deems appropriate. However, Landlord shall: (a) maintain reasonable
access to the Premises, and (b) in connection with entering the Premises,
comply with the last sentence of Paragraph B above (including reasonable
advance notice and minimizing any disruption as further described in subclauses
(a) and (b) of Paragraph B above).
ARTICLE 21. LANDLORD'S RIGHT TO CURE
If Landlord shall fail to perform any obligation under this Lease
required to be performed by Landlord, Landlord shall not be deemed to be in
default hereunder nor subject to any claims for damages of any kind, unless
such failure shall have continued for a period of thirty (30) days after notice
thereof by Tenant (provided, if the nature of Landlord's failure is such that
more time is reasonably required in order to cure, Landlord shall not be in
default if Landlord commences to cure within such period and thereafter
diligently seeks to cure such failure to completion). If Landlord shall default
and fail to cure as provided herein, Tenant shall have such rights and remedies
as may be available to Tenant under applicable Laws, subject to the other
provisions of this Lease; provided, Tenant shall have no right of self-help to
perform repairs or any other obligation of Landlord, and shall have no right to
withhold, set-off or abate Rent, or terminate this Lease, except as may be
expressly provided in this Lease.
ARTICLE 22. INDEMNIFICATION
Subject to the provisions of Articles 10 and 11, Tenant shall defend,
indemnify and hold Landlord harmless from and against any and all claims,
demands, losses, penalties, fines, fees, charges, assessments, liabilities,
damages, judgments, orders, decrees, actions, administrative or other
proceedings, costs and expenses (including reasonable attorneys' and expert
witness fees, and court costs, and any and all costs of remediating Hazardous
Materials), arising from: (i) any violation or breach of this Lease or
applicable Law by any Tenant Parties (as defined below), (ii) damage, loss or
injury to persons, property or business directly arising out of any Tenant
Party's use of the Premises or Property, or out of any other act or omission of
any Tenant Parties, and (iii) any other damage, loss or injury to persons,
property or business occurring in, about or from the Premises, except to the
extent that such other damage, loss or injury to persons, property or business
as specified in subclauses (i), (ii) and (iii) hereinabove is caused by the
negligence or intentional misconduct of Landlord (or its agents or employees).
For purposes of this provision, "Tenant Parties" shall mean Tenant, any other
occupant of the Premises and any of their respective agents, employees,
invitees, and Transferees. Subject to Articles 10 and 11 and the other
provisions of this Lease, and excluding matters covered by Tenant's foregoing
indemnity obligations, Landlord
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shall defend, indemnify and hold harmless Tenant from and against claims,
demands, losses, penalties, fines, fees, charges, assessments, liabilities,
damages, judgments, orders, decrees, actions, administrative or other
proceedings, costs and expenses (including reasonable attorneys' and expert
witness fees, and court costs, and any and all costs of remediating Hazardous
Materials), arising in the Premises or common areas of the Property involving
loss of life or damage or injury to persons or property to the extent caused by
any intentional misconduct or negligent acts of, or a breach of this Lease by,
Landlord or Landlord's agents, employees, or invitees.
ARTICLE 23. RETURN OF POSSESSION
A. GENERAL PROVISIONS. At the expiration or earlier termination of this
Lease or Tenant's right of possession, Tenant shall vacate and surrender
possession of the entire Premises in the condition required under Article 8 and
the Rules, ordinary wear and tear and casualty damage not caused by Tenant
excepted, shall surrender all keys and key cards, and any parking transmitters,
stickers or cards to Landlord, and shall remove all personal property and
office trade fixtures that may be readily removed without damage to the
Premises or Property, and all of Tenant's Telecommunications Room Equipment,
subject to the following provisions.
B. LANDLORD'S PROPERTY. Excluding Tenant's Roof Items under Exhibit D,
and excluding Tenant's Telecommunications Room Equipment (and that of Tenant's
customers under Article 13.H), and excluding Tenant's Lines and Equipment as
defined in Article 28, all other improvements, fixtures and other items,
including ceiling light fixtures, HVAC equipment, plumbing fixtures, hot water
heaters, fire suppression and sprinkler systems, Lines under Article 28,
built-in shelves and cabinets, interior partitioning, interior stairs, wall
coverings, carpeting and other flooring, blinds, drapes and window treatments,
in or serving the Premises, whether installed by Tenant or Landlord, and any
other items installed or provided by Landlord or at Landlord's expense
(including any modular furniture provided or paid for by Landlord), shall be
Landlord's property and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant, unless Landlord elects otherwise
as further provided in Paragraph C below.
C. REMOVAL OF ITEMS BY TENANT. Notwithstanding the foregoing to the
contrary, if prior to expiration or earlier termination of this Lease or within
thirty (30) days thereafter Landlord so directs by notice, Tenant shall
promptly remove such of the items described in Paragraph B above as are
designated in such notice and restore the Premises to the condition prior to
the installation of such items in a good and workmanlike manner; provided,
Landlord shall not require removal of any such items that: (i) already existed
in the Premises before this Lease and Tenant's occupancy of the Premises, or
(ii) involve customary office improvements that are installed by or for Tenant
pursuant to the provisions of this Lease (including any Exhibit hereto), except
to the extent that Landlord shall have expressly reserved such right in writing
in connection with Landlord's approval Tenant shall fail to remove any items
from the Premises as required hereunder, of the plans for such improvements.
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D. TENANT'S FAILURE TO REMOVE ITEMS. If Landlord may do so and Tenant
shall pay Landlord's charges therefor upon demand. All such property removed
from the Premises by Landlord pursuant to any provisions of this Lease or any
Law may be handled or stored by Landlord at Tenant's expense, and Landlord
shall in no event be responsible for the value, preservation or safekeeping
thereof. All such property not removed from the Premises or retaken from
storage by Tenant within thirty (30) days after expiration or earlier
termination of this Lease or Tenant's right to possession shall, at Landlord's
option, be conclusively deemed to have been conveyed by Tenant to Landlord as
if by bill of sale without payment by Landlord. Unless prohibited by applicable
Law, Landlord shall have a lien against such property for the costs incurred in
removing and storing the same.
ARTICLE 24. HOLDING OVER
Unless Landlord expressly agrees otherwise in writing (e.g., if the
parties are actively negotiating an extension, and Landlord grants a temporary
holdover right in writing in connection therewith), Tenant shall pay Landlord
150% for the first thirty (30) days, and thereafter 200%, of the amount of Rent
then applicable prorated on a per diem basis for each day that Tenant shall
fail to vacate or surrender possession of the Premises or any part thereof
after expiration or earlier termination of this Lease as required under Article
23, together with all damages (direct and consequential) sustained by Landlord
on account thereof; provided, Tenant shall not be liable for consequential
damages unless Tenant holds over without Landlord's written agreement for more
than thirty (30) days. Tenant shall pay such amount of Rent monthly in advance
(subject to refund of any partial month occupancy prorated on a per diem
basis), and such other amounts on demand. The foregoing provisions, and
Landlord's acceptance of any such amounts, shall not serve as permission for
Tenant to hold-over, nor serve to extend the Term (although Tenant shall remain
a tenant-at-sufferance bound to comply with all other provisions of this Lease
until Tenant properly vacates the Premises, including Article 23), and Landlord
shall have such other remedies to recover possession of the Premises as may be
available to Landlord under applicable Laws.
ARTICLE 25. NOTICES
Except as expressly provided to the contrary in this Lease, every notice
or other communication to be given by either party to the other with respect
hereto or to the Premises or Property, shall be in writing and shall not be
effective, for any purpose unless the same shall be served personally or by
national air courier service, or United States certified mail, return receipt
requested, postage prepaid, to the parties at the addresses set forth in
Article 1, or such other address or addresses as Tenant or Landlord may from
time to time designate by notice given as above provided. Every notice or other
communication hereunder shall be deemed to have been given as of the third
business day following the date of such mailing (or as of any earlier date
evidenced by a receipt from such national air courier service or the United
States Postal Service) or immediately if couriered as evidenced by a signed
receipt. Notices not sent
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in accordance with the foregoing shall be effective when received by the
parties at the addresses required herein.
ARTICLE 26. REAL ESTATE BROKERS
Landlord and Tenant hereby mutually: (i) represent and warrant to each
other that they have dealt only with the broker, if any, designated in Article
I (whose commission, if any, shall be paid pursuant to separate written
agreement by the party signing such agreement) as broker, agent or finder in
connection with this Lease, and (ii) agree to defend, indemnify and hold each
other harmless from and against any and all claims, demands, losses,
liabilities, damages, judgments, costs and expenses (including reasonable
attorneys' and expert witness fees, and court costs), arising or alleged to
arise from any breach of their respective foregoing representation and warranty
under this Article.
ARTICLE 27. NO WAIVER
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing and signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to such provision, and
Landlord's consent or approval respecting any action by Tenant shall not
constitute a waiver of the requirement for obtaining Landlord's consent or
approval respecting any subsequent action. Acceptance of Rent by Landlord
directly or through any agent or lock-box arrangement shall not constitute a
waiver of any breach by Tenant of any term or provision of this Lease (and
Landlord reserves the right to return or refund any untimely payments if
necessary to preserve Landlord's remedies). No acceptance of a lesser amount of
Rent shall be deemed a waiver of Landlord's right to receive the full amount
due, nor shall any endorsement or statement on any check or payment or any
letter accompanying such check or payment be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the full amount due. The acceptance of Rent or of the
performance of any other term or provision from, or providing directory
listings or services for, any Person other than Tenant shall not constitute a
waiver of Landlord's right to approve any Transfer. No delivery to, or
acceptance by, Landlord or its agents or employees of keys, nor any other act
or omission of Tenant or Landlord or their agents or employees, shall be deemed
a surrender, or acceptance of a surrender, of the Premises or a termination of
this Lease, unless stated expressly in writing by Landlord.
ARTICLE 28. TELECOMMUNICATION LINES
A. TELECOMMUNICATION LINES. Subject to Landlord's continuing right of
supervision and reasonable approval, and the other provisions hereof, during
the Term, Tenant: (i) may install telecommunication lines (including, but not
Limited to fiber, coaxial cable, and copper wiring), and/or related equipment
("Tenant's Lines and Equipment") connecting the other portions of the Premises
to Tenant's
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Telecommunications Equipment Room, and/or connecting other tenants and/or
occupants at the Property who wish to subscribe to Tenant's fiber-optic
telecommunications services (to whom Tenant may provide such services on a
non-exclusive basis), to Tenant's Telecommunications Equipment Room and/or (ii)
in connection therewith, may use and/or make connections and disconnections to
Landlord's telecommunication lines, conduit, risers, wire closets, terminal
blocks and main distribution frame ("MDF") and/or related equipment
("Landlord's Lines and Equipment") already serving or available to serve the
Premises and/or the premises of such other tenants and/or occupants who
subscribe to Tenant's fiber-optic telecommunications services, and Landlord
shall permit Tenant to have reasonable access to appropriate areas of the
Building for such purposes. The term "Lines" and the term "Equipment," when
used without further qualification, shall refer to Tenant's Lines and Equipment
and/or Landlord's Lines or Equipment, as the context reasonably implies.
Landlord disclaims any representations, warranties or understandings concerning
the capacity, design or suitability of any Lines and Equipment. If there is, or
will be, more than one tenant in the Property, at any time, Landlord may
allocate, and periodically reallocate, connections to the Landlord's Lines and
Equipment based on the proportion of rentable area each tenant leases, or the
type of business operations or requirements of such tenants, in Landlord's
reasonable discretion. Landlord also agrees to reasonably cooperate in granting
two (2) easements to Tenant for the purpose of installing underground
fiber-optic cables from Commercial Boulevard to the Premises, provided that
Tenant shall bear all costs and expenses in connection therewith, there shall
be no material interference with the operation of the Property or any adjoining
property, and such easements shall be of no force or effect unless and until
formal easement documents containing mutually acceptable terms and conditions
have been signed and delivered by both parties on forms prepared by Landlord,
and have been properly notarized and recorded.
B. INSTALLATION. Tenant may install and use the Lines and Equipment,
and make connections and disconnections thereto, provided Tenant shall: (i)
obtain Landlord's prior written approval (not to be unreasonably withheld,
conditioned or delayed) of all aspects thereof, (ii) use an experienced and
qualified contractor reasonably approved in writing in advance by Landlord
(whom Landlord may require to enter an access and indemnity agreement on
Landlord's then-standard form of agreement therefor), (iii) comply with such
reasonable inside wire standards as Landlord may adopt from time to time, and
all other provisions of this Lease, including Article 9 respecting Work, and
the Rules respecting access to the wire closets, (iv) not install Lines or
Equipment in the same sleeve, chaseway or other enclosure in close proximity
with electrical wire, and not install PVC-coated Lines under any circumstances,
(v) thoroughly test any Lines to which Tenant intends to connect any Lines to
ensure that such Lines are available and are not then connected to or used for
telephone, data transmission or any other purpose by any other party (whether
or not Landlord has previously approved such connections), and not connect to
any such unavailable or connected Lines, and (vi) not connect any Equipment to
the Lines which may create an electromagnetic field exceeding the normal
insulation ratings of ordinary twisted pair riser cable or cause radiation
higher than normal background radiation, unless the Lines therefor (including
riser Lines) are appropriately insulated to prevent
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such excessive electromagnetic fields or radiation (and such insulation shall
not be provided by the use of additional unused twisted pair Lines). All such
installations shall be subject to Landlord's written permission, not to be
unreasonably withheld, conditioned or delayed.
C. LIMITATION OF LIABILITY. Except to the extent due to Landlord's
intentional misconduct or negligence (but subject to Articles 10 and 11),
Landlord shall have no liability for damages arising, and Landlord does not
warrant that the Tenant's use of the Lines or Equipment will be free, from the
following (collectively called "Line or Equipment Problems"): (i) any
eavesdropping, wire-tapping or theft of long distance access codes by
unauthorized parties, (ii) any failure of the Lines or Equipment to satisfy
Tenant's requirements, or (iii) any capacitance, attenuation, cross-talk or
other problems with the Lines or Equipment, any misdesignation of the Lines or
Equipment in the Property MDF room or wire closets, or any shortages, failures,
variations, interruptions, disconnections, loss or damage caused by or in
connection with the installation, maintenance, replacement, use or removal of
any other Lines or Equipment at the Property by or for other tenants at the
Property, by any failure of the environmental conditions at or the power supply
for the Property to conform to any requirements of the Lines or Equipment or
any other problems associated with any Lines or Equipment. Except as provided
in Article 6.E, under no circumstances shall any Line or Equipment Problems be
deemed an actual or constructive eviction of Tenant, render Landlord liable to
Tenant for abatement of any Rent or other charges under the Lease, or relieve
Tenant from performance of Tenant's obligations under the Lease as amended
herein. Landlord in no event shall be liable for damages by reason of loss of
profits, business interruption or other consequential damage arising from any
Line or Equipment Problems.
D. LICENSE RIGHTS. Any and all license rights granted to Tenant by
this Article 28 shall run coterminously with the Term of this Lease, as it may
be extended.
ARTICLE 29. HAZARDOUS MATERIALS
A. HAZARDOUS MATERIALS GENERALLY PROHIBITED. Except as provided herein,
Tenant shall not transport, use, store, maintain, generate, manufacture,
handle, dispose, release, discharge, spill or leak any "Hazardous Material" (as
defined in Article 30), or permit Tenant's employees, agents, contractors, or
other occupants of the Premises to engage in such activities on or about the
Property. However, the foregoing provisions shall not prohibit the
transportation to and from, and use, storage, maintenance and handling within,
the Premises of substances customarily and lawfully used in the business which
Tenant is permitted to conduct in the Premises under this Lease, as an
incidental and minor part of such business, or as may be necessary for the
Generator (and fuel tank and/or batteries) as described in Exhibit E hereto,
and provided: (i) such substances shall be properly labeled, contained, used
and stored only in small quantities reasonably necessary for such permitted use
of the Premises and the ordinary course of Tenant's business therein, strictly
in accordance with applicable Laws, highest prevailing standards, and the
manufacturers' instructions therefor, and as Landlord shall reasonably require,
(ii) such substances shall not be disposed of,
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released, discharged or permitted to spill or leak in or about the Premises or
the Property (and under no circumstances shall any Hazardous Material be
disposed of within the drains or plumbing facilities in or serving the Premises
or Property or in any other public or private drain or sewer, regardless of
quantity or concentration), (iii) if any applicable Law or Landlord's trash
removal contractor requires that any such substances be disposed of separately
from ordinary trash, Tenant shall make arrangements at Tenant's expense for
such disposal in approved containers directly with a qualified and licensed
disposal company at a lawful disposal site, (iv) any remaining such substances
shall be completely,- properly and lawfully removed from the Property upon
expiration or earlier termination of this Lease, and (v) for purposes of
removal and disposal of any such substances, Tenant shall be named as the
owner, operator and generator, shall obtain a waste generator identification
number, and shall execute all permit applications, manifests, waste
characterization documents and any other required forms.
B. CLEAN UP RESPONSIBILITY. If any Hazardous Material is released,
discharged or disposed of, or permitted to spill or leak by Tenant or other
occupants of the Premises, or their agents, employees, Transferees, or
contractors, in violation of the foregoing provisions, Tenant shall immediately
and properly clean up and remove the Hazardous Materials from the Premises,
Property and any other affected property and clean or replace any affected
personal property (whether or not owned by Landlord) in compliance with
applicable Laws and then prevailing industry practices and standards, at
Tenant's expense (without limiting Landlord's other remedies therefor). Such
clean up and removal work ("Tenant Remedial Work") shall be considered Work
under Article 9 and subject to the provisions thereof, including Landlord's
prior written approval (except in emergencies), and any testing, investigation,
feasibility and impact studies, and the preparation and implementation of any
remedial action plan required by any court or regulatory authority having
jurisdiction or reasonably required by Landlord. In connection therewith,
Tenant shall provide documentation evidencing that all Tenant Remedial Work or
other action required hereunder has been properly and lawfully completed
(including a certificate addressed to Landlord from a environmental consultant
reasonably acceptable to Landlord, in such detail and form as Landlord may
reasonably require).
C. MISCELLANEOUS. Tenant shall immediately upon written request from
time to time provide Landlord with copies of all material safety data sheets,
permits, approvals, memos, reports, correspondence, complaints, demands,
claims, subpoenas, requests, remediation and cleanup plans, and all papers of
any kind filed with or by any regulatory authority and any other books, records
or items pertaining to Hazardous Materials that are subject to this Article
(collectively referred to herein as "Tenant's Hazardous Materials Records").
Tenant shall pay, prior to delinquency, any and all fees, taxes (including
excise taxes), penalties and fines arising from or based on Tenant's activities
involving Hazardous Material on or about the Premises or Property, and shall
not allow such obligations to become a lien or charge against the Property or
Landlord. If Tenant violates any provision of this Article with respect to any
Hazardous Materials, Landlord may: (i) require that Tenant immediately remove
all Hazardous Materials from the Premises and discontinue using, storing and
handling Hazardous
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Materials in the Premises, and/or (ii) pursue such other remedies as may be
available to Landlord under this Lease or applicable Law.
D. LANDLORD'S ENVIRONMENTAL REPRESENTATIONS AND REQUIREMENTS. To
Landlord's actual knowledge, as of the date of this Lease, there are no
Hazardous Materials on or affecting the Premises or common areas of the
Property serving the Premises in violation of any environmental Laws and
presenting a material health risk for occupants of the Premises. Landlord shall
hereafter promptly notify Tenant if Landlord hereafter receives actual
knowledge of any of the following matters: (i) any enforcement, cleanup or
other regulatory action taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous Material on or
affecting the Premises or common areas of the Property serving the Premises
involving a material health risk for occupants of the Premises, (ii) any
discharge or non-routine, improper or unlawful disposal or transportation of
any Hazardous Material affecting the Premises or common areas of the Property
serving the Premises involving a violation of any environmental Laws and
material health risk for occupants of the Premises, and (iii) any matters where
Landlord is required by Law or by a governmental or regulatory agency to give a
notice to Tenant respecting Hazardous Materials at the Property or which
involve a violation of any environmental Laws and material health risk for
occupants of the Premises. "Landlord's actual knowledge" herein means the
actual knowledge, without investigation, of the Regional Manager for the
management company for the Property. If any Hazardous Material is released,
discharged, disposed of, or permitted to spill or leak on or about the Property
and is not caused by Tenant or other occupants of the Premises, or their
agents, employees, Transferees, or contractors, then such release, discharge,
disposal, spill or leak shall be deemed casualty damage under Article 11 to the
extent that the Premises and Tenant's use thereof is affected thereby; in such
case, Landlord and Tenant shall have the obligations and rights respecting such
casualty damage provided under this Lease.
ARTICLE 30. DEFINITIONS
A. "Building" shall mean the structure (or the portion thereof owned by
Landlord) identified in Article 1.
B. "Building Hours" shall mean 8:00 A.M. to 6:00 P.M. Monday through
Friday, and 9:00 A.M. to 1:00 P.M. on Saturday (if comparable buildings in the
area have standard Saturday hours), except Holidays. "Holidays" means all
federal and state holidays, including New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
C. "Default Rate" shall mean one and one half percent (1.5%) per month,
or the highest rate permitted by applicable Law, whichever shall be less.
D. "Expenses" shall mean all expenses, costs and amounts (other than
Taxes) of every kind and nature relating to the ownership, management, repair,
maintenance, replacement, insurance and operation of the Property, including,
without
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limitation (except as expressly set forth herein), any amounts paid for: (i)
Utility Costs, (ii) complying with Laws (but subject to the exclusions set
forth below), (iii) insurance, not limited to that required under this Lease,
and which may include flood, earthquake, boiler, rent loss, workers'
compensation and employers' liability, builders' risk, automobile and other
coverages, including a reasonable allocation of costs under any blanket
policies, (iv) supplies, materials, tools, equipment, uniforms, and vehicles
used in the operation, repair, maintenance, security, and other services for
the Property, including rental, installment purchase and financing agreements
therefor and interest thereunder, (v) accounting, alarm monitoring, security,
janitorial, trash removal, snow and ice removal, and other services, (vi)
customary management fees (limited to 3.5% of gross revenues from the
Property), (vii) compensation and benefits for any personnel engaged in the
operation, repair, maintenance, security or other services for the Property at
or below the level of property manager, and employer's FICA contributions,
unemployment taxes or insurance, any other taxes which may be levied on such
compensation and benefits, and data or payroll processing expenses relating
thereto (if personnel handle other properties or functions, the foregoing
expenses shall be allocated appropriately between the Property and such other
properties or functions), (viii) payments under any easement, cross or
reciprocal easement, operating agreement, declaration, covenant, or other
agreement or instrument pertaining to the sharing of costs for common areas or
other matters in a development or complex of which the Property is a part, (ix)
sales, use, value-added or other taxes on supplies or services for the
Property, (x) the costs of operating and maintaining a property management
office at the Property or an adjoining property (such costs to be appropriately
allocated between the Property and any such adjoining property served by such
office), including the fair rental value thereof, (xi) operation, maintenance,
repair, installation, replacement, inspection, testing, painting, decorating
and cleaning of the Property, and any items located off-site but installed for
the general common benefit of the Property, including Property identification
and pylon signs, directional signs, traffic signals and markers, flagpoles and
canopies, sidewalks, curbs, stairways, parking structures, lots, loading and
service areas and driveways, storm and sanitary drainage systems, irrigation
systems, elevators, escalators, trash compactors, and Systems and Equipment,
landscaping, and all other aspects of the Property, including common area
fixtures, equipment and other items therein or thereon, doors, locks and
hardware, windows, gutters, downspouts, roof flashings and roofs. The foregoing
provision is for definitional purposes only and shall not be construed to
impose any obligation upon Landlord to incur such expenses, nor as a limitation
as to other Expenses that Landlord may incur with respect to the Property.
Landlord may retain independent contractors (or affiliated contractors at
market rates) to provide any services or perform any work for the Property, in
which case the costs thereof shall be deemed Expenses. Expenses shall, however,
exclude:
(1) the following items: (a) interest and amortization on Mortgages, and
other debt costs or ground lease payments, if any, except as provided herein,
(b) depreciation of buildings and other improvements (except permitted
amortization of certain capital expenditures as provided below), (c) legal fees
in connection with leasing, tenant disputes or enforcement of leases, (d) real
estate brokers' commissions or marketing costs, (e) improvements or alterations
to tenant spaces, (f) the cost of providing any
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service directly to, and paid directly by, any tenant, (g) costs of any items
to the extent Landlord receives reimbursement from insurance proceeds or from a
warranty or other such third party (such proceeds to be deducted from Expenses
in the year in which received); and
(2) capital expenditures, except those: (a) made to reduce Expenses or
increases therein, or to comply with Laws or insurance requirements (excluding
capital expenditures to cure violations of Laws or insurance requirements that
existed prior to the date of this Lease), or (b) for replacements (as opposed
to additions or new improvements) of roofs, parking areas and nonstructural
items located in the common areas of the Property required to keep such areas
in good condition; provided, any such permitted capital expenditure shall be
amortized (with interest at the prevailing loan rate available to Landlord when
the cost was incurred) over: (x) the period during which the reasonably
estimated savings in Expenses equals the expenditure, if applicable, or (y) the
useful life of the item as reasonably determined by Landlord.
E. "Hazardous Material" shall include, but not be limited to: (i) any
flammable, explosive, toxic, radioactive, biological, corrosive or otherwise
hazardous chemical, substance, liquid, gas, device, form of energy, material or
waste or component thereof, (ii) petroleum-based products, diesel fuel, paints,
solvents, lead, radioactive materials, cyanide, biohazards, infectious or
medical waste and "sharps", printing inks, acids, DDT, pesticides, ammonia
compounds, and any other items which now or subsequently are found to have an
adverse effect on the environment or the health and safety of persons or
animals or the presence of which require investigation or remediation under any
Law or governmental policy, and (iii) any item defined as a "hazardous
substance", "hazardous material", "hazardous waste", "regulated substance" or
"toxic substance" under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.,
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.,
Resource Conservation and Recovery Act of 1976,42 U.S.C. Section 6901 et seq.,
Clean Water Act, 33 U.S.C. Section 1251, et seq., Safe Drinking Water Act, 14
U.S.C. Section 300f, et seq., Toxic Substances Control Act, 15 U.S.C. Section
2601, et seq., Atomic Energy Act of 1954, 42 U.S.C. Section 2014 et seq., and
any similar federal, state or local Laws, and all regulations, guidelines,
directives and other requirements thereunder, all as may be amended or
supplemented from time to time.
F. "Landlord" shall mean only the landlord from time to time, except
that for purposes of any provisions defending, indemnifying and holding
Landlord harmless hereunder, "Landlord" shall include past, present and future
landlords and their respective partners, beneficiaries, trustees, officers,
directors, employees, shareholders, principals, agents, affiliates, successors
and assigns.
G. "Law" or "Laws" shall mean all federal, state, county and local
governmental and municipal laws, statutes, ordinances, rules, regulations,
codes, decrees, orders and other such requirements, applicable equitable
remedies and decisions by courts in cases where such decisions are considered
binding precedents in the State in which the Property is located, and decisions
of federal courts applying the
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Laws of such State, at the time in question. This Lease shall be interpreted
and governed by the Laws of the State in which the Property is located.
H. "Lender" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor (and the term "ground lease" although not capitalized is
intended throughout this Lease to include any superior or master lease).
I. "Mortgage" shall mean all mortgages, deeds of trust, ground leases
and other such encumbrances now or hereafter placed upon the Property or
Building, or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
J. "Person" shall mean an individual, trust, partnership, limited
liability company, joint venture, association, corporation and any other
entity.
K. "Premises" shall mean the area within the Building identified in
Article 1 and Exhibit A. Possession of ancillary areas necessary for utilities,
services, safety and operation of the Property, including the Systems and
Equipment, fire stairways, perimeter walls, space between the finished ceiling
of the Premises and the slab of the floor or roof of the Property thereabove,
and the use thereof together with the right to install, maintain, operate,
repair and replace the Systems and Equipment, including any of the same in,
through, under or above the Premises in locations that will not materially
interfere with Tenant's use of the Premises, are hereby excepted and reserved
by Landlord, and not demised to Tenant.
L. "Property" shall mean the Building, and any common or public areas
or facilities, easements, corridors, lobbies, sidewalks, loading areas,
driveways, landscaped areas, skywalks, parking rights, garages and lots, and
any and all other rights, structures or facilities operated or maintained in
connection with or for the benefit of the Building, and all parcels or tracts
of land on which all or any portion of the Building or any of the other
foregoing items are located, and any fixtures, machinery, apparatus, Systems
and Equipment, furniture and other personal property located thereon or therein
and used in connection with the operation thereof. Landlord reserves the right
to add land, buildings, easements or other interests to, or sell or eliminate
the same from, the Property, and grant interests and rights in the Property to
other parties.
M. "Rent" shall have the meaning specified therefor in Article 3.
N. "Systems and Equipment" shall mean any plant, machinery,
transformers, duct work, cable, wires, and other equipment, facilities, and
systems designed to supply light, heat, ventilation, air conditioning and
humidity or any other services or utilities, or comprising or serving as any
component or portion of the electrical, gas, steam, plumbing, sprinkler,
communications, alarm, security, or fire/life/safety systems or equipment, or
any elevators, escalators or other mechanical, electrical, electronic, computer
or other systems or equipment for the Property, except to the extent that any
of the same serves particular tenants exclusively (and "Systems and equipment"
without
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capitalization shall refer to such of the foregoing items serving particular
tenants exclusively). Notwithstanding the foregoing, "Tenant's Lines and
Equipment" and "Landlord's Lines and Equipment" shall have the meanings
specified therefor in Article 28, and "Tenant's Telecommunications Room
Equipment" shall have the meaning specified therefor in Article 1.1.
O. "Taxes" shall mean all amounts (unless required by Landlord to be
paid under Article 14) for federal, state, county, or local governmental,
special district, improvement district, municipal or other political
subdivision taxes, fees, levies, assessments, charges or other impositions of
every kind and nature in connection with the ownership, leasing and operation
of the Property, whether foreseen or unforeseen, general, special, ordinary or
extraordinary (including real estate and ad valorem taxes, general and special
assessments, transit taxes, water and sewer rents, license and business license
fees, use or occupancy taxes, taxes based upon the receipt of rent including
gross receipts or sales taxes applicable to the receipt of rent or service or
value added taxes, personal property taxes, taxes on fees paid by Landlord for
property management services, and taxes or charges for fire protection,
streets, sidewalks, road maintenance, refuse or other services). If the method
of taxation of real estate prevailing at the time of execution hereof shall be,
or has been, altered so as to cause the whole or any part of the Taxes now,
hereafter or heretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as a capital
stock levy or otherwise, or on or measured by the rents, income or gross
receipts received therefrom, then such new or altered taxes attributable to the
Property shall be included within the term "Taxes," except that the same shall
not include any portion of such tax attributable to other income of Landlord
not relating to the Property. Tenant shall pay increased or reduced Taxes
whether Taxes are increased or reduced as a result of increases or decreases in
the assessment or valuation of the Property (whether based on a sale, change in
ownership or refinancing of the Property or otherwise), increases or decreases
in tax rates, reduction or elimination of any rollbacks or other deductions
available under current law, scheduled reductions of any tax abatement, as a
result of the elimination, invalidity or withdrawal of any tax abatement, or
for any other cause whatsoever. Notwithstanding the foregoing, there shall be
excluded from Taxes all excess profits taxes, franchise taxes, gift taxes,
capital stock taxes, inheritance and succession taxes, estate taxes, federal
and state income taxes, and other taxes to the extent applicable to Landlord's
general or net income (as opposed to rents, receipts or income attributable to
operations at the Property).
P. "Tenant" shall be applicable to one or more Persons as the case may
be, the singular shall include the plural, and if there be more than one
Tenant, the obligations thereof shall be joint and several. When used in the
lower case, "tenant" shall mean any other tenant, subtenant or occupant of the
Property.
Q. "Tenant's Share" of Taxes and Expenses shall be the percentage set
forth in Article 1, but if the rentable area of the Premises changes due to the
addition or subtraction of space under this Lease or by amendment, Landlord
shall reasonably adjust Tenant's Share to be based on the rentable area of the
Premises divided by the
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rentable area of the Property, subject to further adjustment hereunder and
under Article 3. The Property is currently part of a development or complex of
two buildings known as Commercial Place I and II, and related parking
facilities and common areas, collectively owned by Landlord or its affiliates.
Landlord may reasonably allocate Expenses and Taxes (or components thereof)
between such buildings and the parcels on which they are located, in accordance
with sound accounting and management practices. In the alternative, Landlord
may reasonably determine Tenant's Share of Expenses and Taxes (or components
thereof) for both such buildings, and any common areas and facilities operated
or maintained in connection therewith and all parcels or tracts of land on
which all or any portion of any of the other foregoing items are located, in
accordance with sound accounting and management practices, provided: (i)
Landlord shall reasonably reduce Tenant's Share to be based on the ratio of the
rentable area of the Premises to the rentable area of both such buildings as to
which such Expenses and Taxes (or components thereof) are included, and (ii) if
Landlord elects such alternative before the year 2004, then Landlord shall also
exclude from Expenses during such period any and all capital expenditures for
the Commercial Place I building. Tenant acknowledges that the "rentable area of
the Premises" under this Lease includes the so-called "usable area," without
deduction for columns or projections, multiplied by one or more load or
conversion factors to reflect a share of certain areas, which may include
lobbies, corridors, mechanical, utility, janitorial, boiler and service rooms
and closets, restrooms, and other public, common and service areas. Except as
provided expressly to the contrary herein, the "rentable area of the Property"
shall include all rentable area of all space leased or available for lease at
the Property (excluding any parking facilities). Landlord may reasonably
re-determine the rentable area of the Property from time to time to reflect
remeasurements, re-configurations, additions or modifications to the Property,
and may reasonably adjust Tenant's Share prospectively based thereon.
R. "Utility Costs" shall include costs for electricity, power, gas,
steam, oil or other fuel, water, sewer and other such services for the
Property, including sales or other taxes thereon.
ARTICLE 31. OFFER
The submission and negotiation of this Lease shall not be deemed an offer
to enter the same by Landlord (nor an option or reservation for the Premises),
but the solicitation of such an offer by Tenant. Tenant agrees that its
execution of this Lease constitutes a firm offer to enter the same which may
not be withdrawn for a period of five (5) business days after delivery to
Landlord. During such period and in reliance on the foregoing, Landlord may, at
Landlord's option, deposit any Security Deposit and Rent, proceed with any
plans, specifications, alterations or improvements, and permit Tenant to enter
the Premises, but such acts shall not be deemed an acceptance of Tenant's offer
to enter this Lease, and such acceptance shall be evidenced only by Landlord
signing and delivering this Lease to Tenant.
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ARTICLE 32. MISCELLANEOUS
A. CAPTIONS AND INTERPRETATION. The captions of the Articles and
Paragraphs of this Lease, and any computer highlighting of changes from earlier
drafts, are for convenience of reference only and shall not be considered or
referred to in resolving questions of interpretation. Tenant acknowledges that
it has read this Lease and that it has had the opportunity to confer with
counsel in negotiating this Lease; accordingly, this Lease shall be construed
neither for nor against Landlord or Tenant, but shall be given a fair and
reasonable interpretation in accordance with the meaning of its terms. The
neuter shall include the masculine and feminine, and the singular shall include
the plural. The term "including" shall be interpreted to mean "including, but
not limited to."
B. SURVIVAL OF PROVISIONS. All obligations (including indemnity, Rent
and other payment obligations) or rights of either party arising during or
attributable to the period prior to expiration or earlier termination of this
Lease shall survive such expiration or earlier termination.
C. SEVERABILITY. If any term or provision of this Lease or portion
thereof shall be found invalid, void, illegal, or unenforceable generally, or
with respect to any particular party, by a court of competent jurisdiction, it
shall not affect, impair or invalidate any other terms or provisions or the
remaining portion thereof or enforceability with respect to any other party.
D. PERPETUITIES. If the Commencement Date is delayed in accordance with
Article 2 for more than nine (9) months, Landlord may declare this Lease
terminated by notice to Tenant, and if the Commencement Date is so delayed for
more than three years, this Lease shall thereupon be deemed terminated without
further action by either party.
E. SHORT FORM LEASE. Neither this Lease nor any memorandum of lease or
short form lease shall be recorded by Tenant, but Landlord or any Lender may
elect to record a short form of this Lease, in which case Tenant shall promptly
execute, acknowledge and deliver the same on a form prepared by Landlord or
such Lender.
F. LIGHT, AIR AND OTHER INTERESTS. This Lease does not grant any legal
rights to "light and air" outside the Premises nor any particular view visible
from the Premises, nor any easements, licenses or other interests unless
expressly contained in this Lease.
G. AUTHORITY. If Tenant is any form of corporation, partnership,
limited liability company or partnership, association or other organization,
Tenant and all Persons signing for Tenant below hereby represent that this
Lease has been fully authorized and no further approvals are required, and
Tenant is duly organized, in good standing and legally qualified to do business
in the Premises (and has any required certificates, licenses, permits and other
such items).
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<PAGE> 47
H. PARTNERSHIP TENANT. If Tenant is a partnership, all current and new
general partners shall be jointly and severally liable for all obligations of
Tenant hereunder and as this Lease may hereafter be modified, whether such
obligations accrue before or after admission of future partners or after any
partners die or leave the partnership. Tenant shall cause each new partner to
sign and deliver to Landlord written confirmation of such liability, in form
and content satisfactory to Landlord, but failure to do so shall not avoid such
liability.
I. SUCCESSORS AND ASSIGNS; TRANSFER OF PROPERTY AND SECURITY DEPOSIT.
Each of the terms and provisions of this Lease shall be binding upon and inure
to the benefit of the parties' respective heirs, executors, administrators,
guardians, custodians, successors and assigns, subject to Article 13 respecting
Transfers and Article 18 respecting rights of Lenders. Subject to Article 18,
if Landlord shall convey or transfer the Property or any portion thereof in
which the Premises are contained to another party, such party shall thereupon
be and become landlord hereunder, shall be deemed to have fully assumed all of
Landlord's obligations under this Lease accruing during such party's ownership,
including the return of any Security Deposit, and Landlord shall be free of all
such obligations accruing from and after the date of conveyance or transfer.
J. LIMITATION OF LIABILITY. Tenant agrees to look solely to Landlord's
interest in the Property for the enforcement of any judgment, award, order or
other remedy under or in connection with this Lease or any related agreement,
instrument or document or for any other matter whatsoever relating thereto or
to the Property or Premises. Under no circumstances shall any present or
future, direct or indirect, principals or investors, general or limited
partners, officers, directors, shareholders, trustees, beneficiaries,
participants, advisors, managers, employees, agents or affiliates of Landlord,
or of any of the other foregoing parties, or any of their heirs, successors or
assigns have any liability for any of the foregoing matters. Notwithstanding
the foregoing, the parties agree that: (i) this provision shall not apply to
claims to the extent covered by Landlord's liability insurance, and (ii) the
term "Landlord's interest in the Property" shall include all rents and sales
proceeds payable to Landlord from the leasing and sale of the Property, which
Tenant shall have the right to attach in connection with enforcing a judgment
against Landlord through proper judicial process as the same accrue and become
payable to Landlord (but not after distribution to Landlord's investors),
subject at all times to the rights of any Lenders for the Property. In no event
shall Landlord or Tenant be liable to the other party for any consequential
damages, unless expressly provided under this Lease.
K. CONFIDENTIALITY. Landlord and Tenant shall keep the content and all
copies of this Lease, related documents or amendments now or hereafter entered,
and all proposals, materials, information and matters relating thereto strictly
confidential, and shall not disclose, disseminate or distribute any of the
same, or permit the same to occur, except to the extent reasonably required in
connection with Landlord's and Tenant's respective business operations on a
"need to know" basis to their respective existing or prospective partners,
lenders, successors-in-interest, or other parties (such
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<PAGE> 48
as their respective employees, attorneys, insurers, and auditors), or as may be
required by Law (including SEC filings) or court proceedings.
L. AGENCY DISCLOSURE AND COMPENSATION. Pursuant to Rule 2-13.003(2),
Florida Administrative Code, Landlord on behalf of CMD Realty Investors, Inc.
("CMD") is by this document giving notice to Tenant that CMD is the agent and
representative of the Landlord. Tenant acknowledges that this written notice
was received before Tenant signed a contractual offer or lease agreement, in
compliance with Section 475.25(1)(q), Florida Statutes, and Rule 21V-10.033,
Florida Administrative Code. The Tenant acknowledges that CMD may be paid by
Landlord.
M. RADON GAS. Pursuant to Section 404.056(6), Florida Statutes,
Landlord hereby advises Tenant that radon is a naturally occurring radioactive
gas which, when accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
the county health department.
N. YEAR 2000 READINESS DISCLOSURE. Landlord represents that: (i)
Landlord has implemented a program designed to avoid "Year 2000" computer
problems which would adversely affect Tenant's rights under this Lease, and
(ii) such program involves contacting vendors of systems and equipment located
at the Property based on guidance provided by the national Building Owners and
Managers Association (BOMA), including the publication entitled "Meeting the
Year 2000 Challenge: A Guide for Property Professionals." Landlord agrees: (a)
to use commercially reasonable efforts to continue such program to completion,
and to use commercially reasonable efforts to avoid any "Year 2000" computer
problems with Property systems and equipment which would adversely affect
Tenant's rights under this Lease, and (b) not to include in Expenses the costs
that Landlord incurs in connection with the foregoing or otherwise arising from
Y2K problems. This Paragraph 32.N is not intended to, and shall not, limit any
obligations of Landlord hereunder, and shall not limit any remedies Tenant may
otherwise have hereunder.
O. LANDLORD SUBORDINATION OF LIEN. Landlord agrees to execute and
deliver a subordination of Landlord's lien rights respecting Tenant's
Telecommunications Room Equipment in favor of Tenant's lenders on the form
attached as Exhibit J hereto (subject to the terms thereof) within thirty (30)
days after receiving Tenant's request and three (3) originals of such form as
set forth in Exhibit J executed by Tenant and such lender.
ARTICLE 33. ENTIRE AGREEMENT
This Lease, together with the Exhibits and other documents listed in
Article 1 (WHICH ARE HEREBY COLLECTIVELY INCORPORATED HEREIN AND MADE A PART
HEREOF AS THOUGH FULLY SET FORTH), contains all the terms and provisions
between Landlord and Tenant relating to the matters set forth herein and no
prior or contemporaneous agreement or understanding pertaining to the same
shall be
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<PAGE> 49
of any force or effect, except for any such contemporaneous agreement
specifically referring to and modifying this Lease and signed by both parties.
Without limitation as to the generality of the foregoing, Tenant hereby
acknowledges and agrees that Landlord's leasing agents and field personnel are
only authorized to show the Premises and negotiate terms and conditions for
leases subject to Landlord's final approval, and are not authorized to make any
agreements, representations, understandings or obligations binding upon
Landlord respecting the condition of the Premises or Property, suitability of
the same for Tenant's business, the current or future amount of Taxes or
Expenses or any component thereof, the amount of rent or other terms applicable
under other leases at the Property, whether Landlord is furnishing the same
utilities or services to other tenants at all, on the same level or on the same
basis, or any other matter, and no such agreements, representations,
understandings or obligations not expressly contained herein or in such
contemporaneous agreement shall be of any force or effect. TENANT HAS RELIED ON
TENANT'S INSPECTIONS AND DUE DILIGENCE IN ENTERING THIS LEASE, AND NOT ON ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE HABITABILITY,
CONDITION OR SUITABILITY OF THE PREMISES OR PROPERTY FOR ANY PARTICULAR PURPOSE
OR ANY OTHER MATTER NOT EXPRESSLY CONTAINED HEREIN. This Lease, including the
Exhibits referred to above, may not be modified, except in writing signed by
both parties.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first set forth above.
WITNESSES:
(Two for each signatory)
<TABLE>
<S> <C>
LANDLORD: CMD PROPERTIES, INC. [SEAL]
-------- an Illinois corporation
By:
- --------------------------- ---------------------------------
Name Allen Aldridge
Its Vice President
TENANT E.SPIRE COMMUNICATIONS, INC. [SEAL]
------ a Delaware corporation
By:
- --------------------------- ---------------------------------
Name Riley M. Murphy
Its ExecutiveVice President / Secretary
</TABLE>
<PAGE> 1
EXHIBIT 10.3
AGREEMENT OF LEASE
BETWEEN
COLGATEDRIVE ASSOCIATES, L.P.
AS LANDLORD
AND
e.spire COMMUNICATIONS, INC.
AS TENANT
<PAGE> 2
OFFICE LEASE
LEASE made this ____ day of September, 1999 by and between COLGATEDRIVE
ASSOCIATES, L.P., a Pennsylvania limited partnership (hereinafter called
"LANDLORD"), and e.spire COMMUNICATIONS, INC., a Delaware corporation
(hereinafter called "TENANT").
FUNDAMENTAL LEASE PROVISIONS
1. "TERM": Seven (7) years commencing on the Commencement Date and
ending on the date (the "Expiration Date") which is (I) the day immediately
preceding the seventh (7th) anniversary of the Commencement Date, if the
Commencement Date is the first day of a calendar month, or (ii) the last day of
the calendar month in which the seventh (7th) anniversary of the Commencement
Date occurs, if the Commencement Date is any day other than the first day of a
calendar month.
2. (a) "DEMISED PREMISES": approximately 90,000 rentable square feet
("TENANT'S RSF") in the building known as The Renaissance at Columbia Gateway,
7125 Columbia Gateway Drive (the "BUILDING") consisting of approximately 613,000
rentable square feet in the aggregate, located in the City of Columbia, Howard
County, Maryland, 21046, which Demised Premises are shown cross-hatched on the
plan attached hereto as EXHIBIT "A". The Building and the land on which the
Building is located are hereinafter referred to as the "PROPERTY". The square
footage of the Demised Premises shall, for all purposes under this Lease, be
deemed to be the square footage set forth above. Notwithstanding the foregoing,
on or prior to sixty (60) days after the Commencement Date, the Landlord shall
cause its architect to certify to Tenant the rentable square footage of the
Demised Premises, which calculation shall be based upon the BOMA standard (ANSI
265.1-1980) of measurement (which shall take into account the Building's final
loss factor). Within thirty (30) days after receipt of Landlord's architect's
measurement, Tenant shall have the right to cause its architect to confirm
Landlord's architect's measurement, using the same measurement standard as
Landlord's architect. If the two architects' measurements differ by more than
four percent (4%), and Landlord and Tenant cannot promptly resolve any
differences regarding such square footage, then the Landlord's architect and the
Tenant's architect shall agree upon a third, neutral architect or space planner
with at least ten (10) years of interior design and measurement experience to
resolve any conflicts, and the measurement determined by such neutral architect
shall be binding upon the parties. Following determination of the rentable
square footage of the Demised Premises, all provisions hereunder based on
Tenant's RSF shall be adjusted accordingly.
(b) "OFFICE BUILDING": shall mean that portion of the Building
that Landlord has designated for lease by office tenants, as the same may be
adjusted from time to time. Landlord currently anticipates that the Office
Building shall consist of approximately 317,395 rentable square feet following
100% occupancy of the Building.
(c) "WAREHOUSE/RETAIL BUILDING": shall mean that portion of the
Building which Landlord has designated for lease by warehouse, retail and other
non-office tenants, as the same may be adjusted from time to time.
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<PAGE> 3
3. "OFFICE BUILDING RSF": the rentable square footage of the Office
Building (as hereinafter defined), which is currently estimated to be 317,395
rentable square feet. The rentable square footage of the Office Building will be
revised to reflect the final rentable square footage of the Office Building upon
100 % occupancy of the Building.
4. "TENANT'S FRACTION": 28.356%, which is Tenant's RSF divided by the
Office Building RSF, as the same may be adjusted from time to time.
5. "BASE YEAR": Calendar Year 2000 and, with respect to Taxes, Tax
Year 1999-2000.
6. "COMMENCEMENT DATE": the earlier of (i) the date the Tenant first
opens for business in the Demised Premises and (ii) March 1, 2000; provided,
however, that in the event that the Landlord fails to Substantially Complete the
Preliminary Base Building Work by November 1,1999, then the date set forth in
clause (ii) above shall be extended by one day for each day that Substantial
Completion of the Preliminary Base Work is delayed beyond November 1,1999.
7. "ESTIMATED COMMENCEMENT DATE": March 1, 2000.
8. "NOTICE ADDRESSES":
Landlord: c/o Preferred Real Estate Investments, Inc.
555 North Lane, Suite 6101
Conshohocken, PA 19428
Tenant: 133 National Business Parkway, Suite 200
Annapolis Junction, Maryland 20701
Attn: Real Estate Department
cc: General Counsel
9. "PERMITTED USE": General office use.
10. "ANNUAL BASE RENT":
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------
YEAR/PERIOD Annual rent Monthly Installment Rent/Sq. Ft.
- ----------------------------------------------------------------------------
<S> <C> <C> <C>
Lease Year l $1,621,800.00 $135,150.00 $18.02
- ----------------------------------------------------------------------------
Lease Year 2 $1,660,500.00 $138,375.00 $18.45
- ----------------------------------------------------------------------------
Lease Year 3 $1,700,100.00 $141,675.00 $18.89
- ----------------------------------------------------------------------------
Lease Year 4 $1,740,600.00 $145,050.00 $19.34
- ----------------------------------------------------------------------------
Lease Year 5 $1,782,000.00 $148,500.00 $19.80
- ----------------------------------------------------------------------------
Lease Year 6 $1,825,200.00 $152,100.00 $20.28
- ----------------------------------------------------------------------------
Lease Year 7 $1,869,300.00 $155,775.00 $20.77
- ----------------------------------------------------------------------------
</TABLE>
11. "SECURITY DEPOSIT": $267,000.00.
12. "PROPERTY MANAGER": Rent Payment Address:
3
<PAGE> 4
Equivest Management Company
P0 Box 13700
Philadelphia, PA 19191-1062
13. BROKERS:
"LANDLORD'S BROKER" - Preferred Real Estate Advisors, Inc.
"TENANT'S BROKER" - CB Richard Ellis, Inc.
14. "SERVICE BUSINESS HOURS":
Monday - Friday: 8:00 a.m. -6:00 p.m.
Saturday: 9:00 a.m. - 1:00 p.m.
List of Exhibits
Exhibit "A" - Demised Premises
Exhibit "B" - Base Building Work
Exhibit "B-1" - Preliminary Base Building Work
Exhibit "B-2" - Tenant's Plans
Exhibit "C" - Form of Letter of Credit
Exhibit "C-1" - Rules and Regulations
Exhibit "D" - Janitorial Specifications
Exhibit "E" - First Offer Space
Exhibit "F" - Expansion Space
Exhibit "G" - Storage Space
Exhibit "H" - Reserved Parking
Exhibit "I" - Exterior Signage
4
<PAGE> 5
WITNESSETH, THAT:
1. DEMISED PREMISES. Landlord, for the Term and subject to the
provisions and conditions hereof, leases to Tenant and Tenant accepts from
Landlord, the Demised Premises. Tenant shall not use or occupy, or permit or
suffer to be used or occupied, the Demised Premises or any part thereof, other
than for the Permitted Use.
2. TERM. The first lease year of the Term shall commence on the
Commencement Date and shall end on (i) the day immediately preceding the first
anniversary of the Commencement Date, if the Commencement Date is the first day
of the month, or (ii) the last day of the month in which the first anniversary
of the Commencement Date occurs, if the Commencement Date is any day other than
the first day of a calendar month. Each lease year after the first lease year
shall be a consecutive twelve (12) month period commencing on the first day of
the calendar month immediately following the preceding lease year.
3. TENANT IMPROVEMENTS.
(a) Landlord shall, at its sole expense, construct the base
building work identified on Exhibit "B" attached hereto and made a part hereof
(the "BASE BUILDING WORK"). Landlord shall secure all necessary permits and
comply with all applicable laws in connection therewith (but excluding any
permits and approvals required for the performance of the Tenant Improvements as
hereinafter defined). Landlord shall substantially complete the "Preliminary
Base Building Work" identified on Exhibit "B-1" on or prior to November 1,1999.
"SUBSTANTIAL COMPLETION" is defined as that point in time when Landlord's
architect certifies that construction of the Preliminary Base Building Work is
complete except for (i) any improvements or work to be performed by Tenant; (ii)
minor or insubstantial details of construction, mechanical adjustments, or
finishing touches, which items shall not adversely affect Tenant's conduct of
its ordinary business activities in the Premises; (iii) items not then completed
because of Tenant Delays and (iv) items to be performed by Landlord
contemporaneously with Tenant's construction of the Tenant Improvements (as
hereinafter defined), namely, all Base Building Work other than the Preliminary
Base Building Work. "TENANT DELAY" is defined as delay directly impacting
Landlord's ability to timely achieve Substantial Completion which is caused by
Tenant, provided, however, in no event shall Tenant Delay be claimed as a basis
for relief from the provisions specified above unless and until Landlord has
first given Tenant notice that it intends to claim delay as a result of Tenant's
acts or failure to timely act. Except for the Base Building Work, Landlord shall
have no obligation to perform any improvements to the Demised Premises to
prepare the space for Tenant's occupancy, and Tenant acknowledges that, except
for the Base Building Work to be completed by Landlord, Tenant has inspected the
Demised Premises and accepts the same in its "AS IS" condition, without any
representation or warranty by Landlord. Tenant shall be entitled to the benefit
of any contractor warranties, to the extent assignable, with respect to the Base
Building Work.
(b) Except for the Base Building Work, Tenant shall perform, at
its sole cost and expense, all work which Tenant deems necessary or desirable to
prepare the space for Tenant's initial occupancy, which tenant improvements
shall be subject to the prior written approval of Landlord, which approval shall
not be unreasonably withheld, conditioned, or
5
<PAGE> 6
delayed. All contractors utilized by Tenant for the performance of the Tenant
Improvements shall be subject to the prior written approval of Landlord, and all
work shall be performed in accordance with the Tenant's Plans (as hereinafter
defined) in a good and workmanlike manner and in accordance with all applicable
laws. Prior to the commencement of any work within the Demised Premises, Tenant
shall submit to Landlord, for Landlord's prior approval, which approval shall
not be unreasonably withheld, conditioned, or delayed, proposed plans and
specifications (the "PROPOSED TENANT'S PLANS") for Tenant's proposed
improvements to the Demised Premises, which plans shall be prepared by a
registered architect licensed to do business within the State in which the
Property is located. The Proposed Tenant's Plans shall include all information
and specifications necessary for Landlord to fully review the work described
therein and shall conform to all applicable laws and requirements of public
authorities and insurance underwriters' requirements. If Landlord reasonably
disapproves the Proposed Tenant's Plans, Landlord shall state specifically the
reasons for such disapproval, and Tenant shall cause its architects to promptly
make any changes in the Proposed Tenant's Plans reasonably required by Landlord.
The Proposed Tenant's Plans, as finally approved by Landlord hereunder, are
hereinafter referred as the "TENANT'S PLANS" and shall be deemed part of this
Lease. The work described in the Tenant's Plans is referred to herein as the
"TENANT IMPROVEMENTS."
(c) All subsequent changes in the Tenant's Plans shall be subject
to the approval of Landlord which approval shall not be unreasonably withheld,
conditioned, or delayed. If Landlord approves any change in the Tenant's Plans,
Tenant shall construct, at Tenant's sole cost and expense, the Tenant
Improvements in accordance with such change.
(d) Provided that Tenant is not in default of any of its
obligations hereunder beyond all applicable notice and cure periods, Landlord
shall provide Tenant with a construction allowance (the "TENANT IMPROVEMENT
ALLOWANCE") of Twenty-One Dollars ($21.00) per rentable square foot of the
Demised Premises, which shall be applied solely against Tenant's costs for the
Tenant Improvements and other expenses reasonably associated with Tenant's
occupancy of the Demised Premises (collectively, "TENANT'S COSTS"), including,
without limitation, Tenant's out-of-pocket contract or purchase price(s) for
materials, components, labor and services for the Tenant Improvements, and
related costs for space planning, design, architectural and engineering services
and moving expenses. In the event that Tenant's Costs exceed the amount of the
Tenant Improvement Allowance, Tenant shall be solely responsible for such excess
costs.
(e) Following commencement of Tenant's construction of the Tenant
Improvements, Tenant shall submit to Landlord on or before the tenth (10th) day
of each calendar month a requisition containing an itemized breakdown of
Tenant's Costs incurred by Tenant during the preceding calendar month, which
invoice shall be in such form and be supported by such complete information,
certificates and documents as Landlord or Landlord's mortgagee may require. The
amount to which Tenant shall be entitled upon any such monthly requisition shall
be the amount approved by Landlord's mortgagee. All approved payments shall be
made within twenty (20) days of Landlord's receipt of Tenant's invoice therefor.
To the extent that the Tenant Improvement Allowance is not fully paid during the
course of Tenant's construction of the Tenant Improvements, the remaining
balance shall be paid by Landlord to Tenant on the Commencement Date.
6
<PAGE> 7
4. DELAY IN POSSESSION. Intentionally Omitted.
5. RENT.
(a) During the Term of this Lease, Tenant shall pay to Landlord
the Annual Base Rent in the amount set forth in Section 10 of the Fundamental
Lease Provisions. Such Base Rent shall be payable in equal monthly installments
in advance on the first day of each calendar month.
(b) The term "rent" as used in this Lease shall mean the Annual
Base Rent, Operating Expenses (including, without limitation, Taxes) and all
other additional rent or other sums payable by Tenant to Landlord under this
Lease, all of which shall be deemed "rent" for purposes of Landlord's rights and
remedies with respect thereto.
(c) The first installment of rent shall be payable on the
Commencement Date. If the Term begins on a day other than the first day of a
month, rent from such day until the first day of the following month shall be
prorated on a per diem basis for each day of such partial month.
(d) All rent and other sums due to Landlord hereunder shall be
payable to Landlord do Landlord's Property Manager at the address specified in
Section 12 of the Fundamental Lease Provisions, or to such other party or at
such other address as Landlord may designate, from time to time, by written
notice to Tenant, without demand and without deduction, set-off or counterclaim
(except to the extent demand or notice shall be expressly provided for herein).
(e) If Landlord, at any time or times, shall accept said rent or
any other sum due to it hereunder after the same shall become due and payable,
such acceptance shall not excuse delay upon subsequent occasions, or constitute
or be construed as, a waiver of any of Landlord's rights hereunder.
6. SECURITY DEPOSIT / LETTER OF CREDIT. As additional security for
the full and prompt performance by Tenant of the terms and covenants of this
Lease, Tenant shall deliver to Landlord simultaneously with the execution of
this Lease, and shall maintain throughout the Term, an unconditional and
irrevocable letter of credit (the "Letter of Credit") in the amount of the
Security Deposit (as defined in Section 11 of the Fundamental Lease Provisions).
The Letter of Credit shall be in the form of Exhibit "C" attached hereto and
shall be issued by First National Bank of Maryland or such other national bank
approved in writing by Landlord, in its sole discretion. If at any time during
the Term Tenant defaults in the performance of any of its obligations hereunder,
Landlord shall have the right to draw upon the Letter of Credit to satisfy such
obligations including, without limitation, any damages to which Landlord is
entitled pursuant to Section 15 hereof. If any portion of the Letter of Credit
is used, applied or retained by Landlord, Tenant shall, upon demand, reinstate
the Letter of Credit in the full amount of the Security Deposit, and Tenant's
failure to do so shall constitute a default under this Lease for which Tenant
shall not be entitled to notice or an opportunity to cure. No later than thirty
(30) days prior to the expiration of any Letter of Credit then deposited
hereunder, Tenant shall replace or renew the existing Letter of Credit meeting
all of the requirements set
8
<PAGE> 8
forth herein extending the maturity date thereof for one (1) year. In the event
that Tenant fails to timely provide such substitute Letter of Credit or
amendment to the existing Letter of Credit, Landlord shall be entitled to draw
the entire amount of the Letter of Credit. If Tenant fully and faithfully
performs every term and covenant of this Lease during the Term, the Letter of
Credit shall be returned to Tenant after the expiration of the Term. Landlord
may assign and deliver the Letter of Credit to any purchaser or successor of
Landlord's interest in the Building, in which event Landlord shall be discharged
from any further liability with respect to the Letter of Credit. The Letter of
Credit shall not be construed as liquidated damages, and if Landlord's claims
hereunder exceed the amount of the Letter of Credit, Tenant shall remain liable
for the balance of such claims.
7. PAYMENT OF OPERATING EXPENSES.
(a) As used herein, the following terms shall be defined as
hereinafter set forth:
(i) "TAXES" shall mean all real estate taxes and assessments,
general and special, ordinary or extraordinary, foreseen or unforeseen, imposed
upon the Property or with respect to the ownership thereof by all applicable
governmental authorities. If due to a future change in the method of taxation,
any franchise, income, profit or other tax, however designated, shall be levied
or imposed in substitution in whole or in part for (or in lieu of) any tax which
would otherwise be included within the term "Taxes" as defined herein, then the
same shall be included in the term "Taxes."
(ii) "OPERATING EXPENSES" shall mean, except as hereinafter
limited Landlord's actual out-of-pocket expenses in respect of the operation,
maintenance and management of the Property that Landlord allocates, in
Landlord's reasonable discretion, to the Office Building, and shall include,
without limitation: (1) wages and salaries (and taxes imposed upon employers)
with respect to those employed by Landlord for rendering service in the normal
operation, cleaning, maintenance, repair and replacement of the Property; (2)
costs for the operation, maintenance, repair and replacement of the Property,
including payments to contractors; (3) the cost of steam, electricity
(excluding, however, electricity to individual tenant spaces), water and sewer
and other utilities (except for electricity, which is separately paid for by
Tenant as herein provided) chargeable to the operation and maintenance of the
Property; (4) cost of insurance for the Property including fire and extended
coverage, elevator, boiler, sprinkler leakage, water damage, public liability
and property damage, environmental liability, plate glass, and rent protection,
but excluding any charge for increased premiums due to acts or omissions of
other occupants of the Building or because of extra risk which are reimbursed to
Landlord by such other occupants; (5) supplies; (6) legal and accounting
expenses relating solely to the operation of the Property; (7) Taxes; (8)
management expense (not to exceed 3% of the net rental income from the
Property); and (9) all other costs and expenses incurred by or on behalf of
Landlord in connection with the repair, replacement, operation, maintenance,
securing, insuring and policing the Property. The term "Operating Expenses"
shall not include: (1) the cost of any repair or replacement item which, by
standard accounting practice, should be capitalized,; (2) any charge for
depreciation, interest on encumbrances or ground rents paid or incurred by
Landlord; (3) any charge for Landlord's income tax, excess profit taxes,
franchise taxes or similar taxes on Landlord's business; (4) commissions and
marketing expenses; (5) costs actually
8
<PAGE> 9
reimbursed by insurance proceeds; (6) costs incurred exclusively for the benefit
of the tenants of the Warehouse Building and not associated with the tenants of
the Office Building; (7) the costs of any service provided to other tenant(s) of
the Building to the extent Landlord is entitled to be reimbursed directly (i.e.,
not as on Operating Expense pass-through) therefor, and the cost of any service
provided to other tenant(s) of the Building but not to Tenant; (8) executive
salaries of Landlord; (9) salaries or service personnel to the extent that such
service personnel perform services not solely in connection with the management,
operation, repair or maintenance of the Building or the Property; (10)
Landlord's general overhead expenses not related to the Building; (11) legal
fees, accountants' fees and other expenses incurred in connection with disputes
with tenants or other occupants of the Building or associated with the
enforcement of any leases or defense of Landlord's title to or interest in the
Building or any part thereof.
(b) In determining Operating Expenses for any year, if less than
one hundred percent (100%) of the Building rentable area shall have been
occupied by tenants at any time during such year, Operating Expenses shall be
deemed for such year to be an amount equal to the like expenses which Landlord
reasonably determines would normally be incurred had such occupancy been one
hundred percent (100%) throughout such year. In addition, in the event that
Landlord shall obtain a reduction of any item(s) of Operating Expenses included
in Base Year Operating Expenses, then the Base Year Operating Expenses shall
thereafter be deemed to have been reduced by the amount of the reduction so
obtained by Landlord.
(c) For and with respect to each calendar year of the Term there
shall accrue, as additional rent, an amount ("TENANT'S SHARE") equal to the
product obtained by multiplying (A) Tenant's Fraction by (B) the increase, if
any, between (i) Operating Expenses for such calendar year, minus (ii) Operating
Expenses for the Base Year (appropriately prorated for any partial calendar year
included within the beginning and end of the Term). Notwithstanding the
foregoing, for purposes of determining Tenant's Share of Operating Expenses
hereunder, for each calendar year of the Term after the Base Year, increases in
"Controllable Operating Expenses" shall not exceed six percent (6%) per calendar
year, on a cumulative basis. As used herein, the term "CONTROLLABLE OPERATING
EXPENSES" shall include all Operating Expenses with the exception of Taxes,
insurance costs, utility costs, snow removal costs, and extraordinary
expenditures.
(d) Landlord shall furnish to Tenant as soon as reasonably
possible (but in no event more than 180 days) after the beginning of each
calendar year of the Term:
(i) A statement (the "EXPENSE STATEMENT") setting forth (1)
Operating Expenses for the previous calendar year, and (2) Tenant's Share of
Operating Expenses for the previous calendar year; and
(ii) A statement of Landlord's good faith estimate of
Operating Expenses, and the amount of Tenant's Share thereof (the "ESTIMATED
SHARE"), for the current calendar year.
(e) Within thirty (30) days after Tenant receives the Expense
Statement, Tenant shall pay to Landlord the difference, if positive, between the
Tenant's Share of Operating Expenses for such previous year and the actual
payments made by Tenant during
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such calendar year, or if the actual payments exceed Tenant's Share of Operating
Expenses for such previous year, Tenant shall receive a credit against the next
payment(s) of Operating Expenses falling due or, if the Lease shall have
expired, a refund of such overpayment.
(f) Upon the written request of Tenant delivered to Landlord
within one hundred eighty days after delivery of the Expense Statement, Landlord
shall give Tenant the opportunity during normal business hours to review
Landlord's books and records relating to Operating Expenses, provided Tenant
thereafter diligently and promptly completes such inspection, and such
inspection privilege shall not delay Tenant's obligation to pay on account all
sums due pursuant to such Expense Statement. Unless Tenant, within thirty-six
(36) months after any Expense Statement is furnished, shall give notice to
Landlord that Tenant disputes said statement, specifying in detail the basis for
such dispute, each Expense Statement furnished to Tenant by Landlord under this
Section shall be conclusively binding upon Tenant as to the Operating Expenses
due from Tenant for the period represented thereby. In the event that Tenant
timely disputes such Expense Statement and the dispute is not amicably resolved
within 30 days after Tenant's notice of dispute, then either party may refer the
dispute to an independent certified public accounting firm mutually acceptable
to Landlord and Tenant, and the determination of such accounting firm shall be
final, binding and conclusive on Landlord and Tenant. Tenant agrees to pay for
the cost of such audit by said accounting firm unless it is determined that
Landlord's original determination of the actual Operating Expenses was in error
by more than five percent (5%), in which event Landlord shall pay the cost of
such audit. Pending resolution of any dispute, Tenant shall pay the additional
rent in accordance with the Expense Statement furnished by Landlord. Any amounts
determined to have been collected in error by Landlord shall be refunded to
Tenant together with interest at the rate of 10% per annum.
(g) Within thirty (30) days after delivery of the statement of
Tenant's Estimated Share, Tenant shall pay to Landlord, on account of its share
of Operating Expenses, one-twelfth (1/12) of the Estimated Share multiplied by
the number of full or partial calendar months elapsed during the current
calendar year up to and including the month payment is made (less any amounts
previously paid by Tenant on account of Operating Expenses for such period).
(h) On the first day of each succeeding month up to the time
Tenant shall receive a new statement of Tenant's Estimated Share, Tenant shall
pay to Landlord, on account of its share of Operating Expenses, one-twelfth of
the then current Estimated Share. Any payment due from Tenant to Landlord on
account of Operating Expenses not yet determined as of the expiration of the
Term shall be made within twenty (20) days after submission to Tenant of the
next Expense Statement, which obligation shall survive the expiration or earlier
termination of this Lease.
(i) The costs of janitorial services to the Demised Premises shall
be included within Operating Expenses as set forth herein. Notwithstanding the
foregoing, Tenant shall have the right to discontinue janitorial service by
providing Landlord with at least thirty (30) days advance written notice
thereof. As of the date that such janitorial service is effectively discontinued
(i) Landlord shall have no further obligation to provide janitorial service, as
the case may be, to the Demised Premises; (ii) Annual Base Rent shall thereafter
be reduced by $0.80 per rentable square foot of the Demised Premises; (iii)
Operating Expenses shall thereafter
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be deemed to exclude the costs of janitorial services for individual tenant
spaces, but shall continue to include such costs for common areas of the
Building; and (iv) Base Year Operating Expenses shall thereafter be deemed to be
reduced by $0.80 per rentable square foot of the Building.
(j) In allocating Operating Expenses between the Office Building
and Warehouse Building, Landlord shall allocate such Operating Expenses in its
reasonable discretion. By way of example and not by limitation, Operating
Expenses may be allocated by Landlord using the following criteria, which
criteria shall be determined by Landlord in its reasonable discretion, so as to
obtain an equitable allocation under the circumstances, depending upon the
nature of the Operating Expense: (i) the proportion by which the net rental
income from the Office Building bears to the net rental income for the entire
Building (e.g., Taxes), (ii) the proportion by which the total number of
employees for tenants of the Office Building bears to the total number of
employees for the entire Building; (iii) the proportion by which the total
number of parking spaces allocated to tenants of the Office Building bears to
the total number of parking spaces for the entire Building (e.g., parking and
snow removal costs); (iv) the proportion by which the total square footage of
the Office Building bears to the total square footage of the entire Building; or
(v) the proportionate usage/consumption by the tenants of the Office Building
with respect to the particular item of Operating Expenses. Notwithstanding the
foregoing, Operating Expenses incurred solely for the benefit of the tenants of
the Office Building shall be allocated 100% to the Office Building.
8. UTILITIES SEPARATELY CHARGED TO DEMISED PREMISES. Tenant shall be
responsible for all utilities (including gas and electric) which are consumed
within the Demised Premises. With respect to electricity, Tenant shall pay for
the consumption of electricity within the Demised Premises based on its metered
usage, which payment shall be made directly to the electricity provider. With
respect to other utilities, if a separate meter is installed, Tenant shall pay
for the consumption of such utilities based on its metered usage, which payment
shall be made directly to the utility provider if the Demised Premises are
directly metered or to the Landlord if the Demised Premises are submetered. If
no meter is installed Tenant shall pay a pro-rata share of any utility charges
covering the Demised Premises and other areas of the Building, which pro-rata
share shall be based on the percentage which the Tenant's RSF bears to the
square footage of the areas of the Building serviced by such utility. In the
event that the Demised Premises are not directly metered, the rate for Tenant's
usage shall be the general service rate charged by the applicable utility
provider for the Building. Landlord shall have the right, to be exercised by
written notice to Tenant, to direct Tenant to contract directly with the utility
provider supplying electricity to the Building, in which event Tenant shall pay
all charges therefor directly to the utility provider. Landlord shall at all
times have the exclusive right to select the provider or providers of utility
service to the Demised Premises and the Property, and Landlord shall have the
right of access to the Demised Premises from time to time to install or remove
utility facilities.
9. SERVICES. Landlord agrees that it shall:
(a) Provide water for life safety, drinking, lavatory and toilet
purposes drawn through fixtures installed by Landlord
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(b) Provide heat, ventilation and air-conditioning to the Demised
Premises (utilizing utilities directly paid for by Tenant);
(c) Provide janitorial services in accordance with Landlord's
building standard janitorial specifications attached hereto as Exhibit "D". Any
and all additional or specialized janitorial service desired by Tenant shall be
contracted for by Tenant directly and the cost and payment thereof shall be the
sole responsibility of Tenant; and
(d) Provide Tenant with standard signage on the directory in the
Building lobby.
(e) Provide Tenant with access to the Building 24 hours per day, 7
days per week, 365 days per year (except in the event of an emergency or fire or
other casualty).
The cost of the foregoing services shall be included in Operating
Expenses (except with respect to electricity charges for the services referenced
in subparagraph (b) above, which shall be paid directly by Tenant pursuant to
Section 8 hereof). It is understood that Landlord does not warrant that any of
the services referred to in this Section will be free from interruption from
causes beyond the reasonable control of Landlord. No interruption of service
shall ever be deemed an eviction or disturbance of Tenant's use and possession
of the Demised Premises or any part thereof or render Landlord liable to Tenant
for damages, permit Tenant to abate rent or otherwise relieve Tenant from
performance of Tenant's obligations under this Lease. Notwithstanding the
foregoing, in the event that any interruption of services is caused by
Landlord's negligence and such interruption renders the Demised Premises
untenantable for a period of five (5) or more consecutive business days after
written notice thereof by Tenant to Landlord, then, to the extent that the
Demised Premises are rendered untenantable, Tenant shall be entitled to a
proportionate abatement of rent until such time as the Demised Premises are
thereafter rendered tenantable. In addition, in the event that any interruption
of services renders the entire Demised Premises untenantable for a period of 180
or more consecutive days, then Tenant shall have the right to terminate this
Lease at any time prior to the Demised Premises having been restored to a
tenantable condition by providing at least thirty (30) days' advance written
notice thereof to Landlord.
10. CARE OF DEMISED PREMISES. Tenant agrees, on behalf of itself, its
employees and agents that it shall:
(a) Comply at all times with any and all federal, state and local
statutes regulations, ordinances, and other requirements of any of the
constituted public authorities relating to its use and occupancy of the Demised
Premises.
(b) Give Landlord escorted access to the Demised Premises at all
reasonable times and upon reasonable notice (except in the event of emergency),
without charge or diminution of rent, to enable Landlord (i) to examine the same
and to make such repairs, additions and alterations as Landlord may be permitted
to make hereunder or as Landlord may deem reasonably advisable for the
preservation of the integrity, safety and good order of the Building or any part
thereof; and (ii) to show the Demised Premises to prospective mortgagees
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and purchasers and, during the six (6) months prior to expiration of the Term,
to prospective tenants;
(c) Maintain, repair and replace the interior, non-structural
portions of the Demised Premises in good order and repair as and when needed
(unless such damage is not caused by Tenant, its agents or employees), and
replace all glass broken by Tenant, its agents, employees or invitees with glass
of the same quality as that broken, except for glass broken by fire and extended
coverage-type risks, and commit no waste in the Demised Premises;
(d) Upon the expiration or earlier termination of this Lease,
remove Tenant's goods and effects (excepting, however, the Tenant Improvements)
and those of any other person claiming under Tenant, and quit and deliver up the
Demised Premises to Landlord peaceably and quietly in as good order and
condition as existed at the inception of the Term, reasonable wear and tear,
damage caused by Landlord, its agents and employees and damage from fire and
casualty excepted. Goods and effects not removed by Tenant at the termination of
this Lease, however terminated, shall be considered abandoned and Landlord may
dispose of and/or store the same as it deems expedient, the cost thereof to be
charged to Tenant;
(e) Not place signs on the Demised Premises except for (i) signs
located entirely within the Demised Premises and which are not visible from the
exterior of the Demised Premises, and (ii) signs on doors provided that the
lettering and text are approved by Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed;
(f) Not overload, damage or deface the Demised Premises or do any
act which might make void or voidable any insurance on the Demised Premises or
the Building or which may render an increased or extra premium payable for
insurance as a direct result of Tenant's operations (and without prejudice to
any right or remedy of Landlord regarding this subparagraph, Landlord shall have
the right to collect from Tenant, upon demand, any such increase or extra
premium). Tenant shall maintain at its own sole cost adequate insurance coverage
for the full replacement value of all of its equipment, furniture, supplies and
fixtures and provide Landlord with certificates evidencing such coverage;
(g) Not make any alteration of or addition to the Demised Premises
without the prior written approval of Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed, except for interior,
nonstructural alterations of a decorative nature that do not exceed more than
$50,000 in the aggregate;
(h) Not install any equipment of any kind whatsoever which might
necessitate any changes, replacements or additions to any of the heating,
ventilating, air-conditioning, electric, sanitary, elevator or other systems
serving the Demised Premises or any other portion of the Building, or to any of
the services required of Landlord under this Lease, without the prior written
approval of Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed, and in the event such consent is granted, such
replacements, changes or additions shall be paid for by Tenant at Tenant's sole
cost and expense. At the expiration or earlier termination of this Lease, if
such improvements were not a part of the Tenant Improvements Tenant shall pay
Landlord's cost of restoring such systems to their condition prior to such
replacements, changes or additions. Notwithstanding the foregoing,
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Landlord acknowledges that Tenant desires to install a generator and associated
fuel storage equipment (collectively, the "Additional Equipment") to benefit the
Demised Premises, and Landlord agrees to not unreasonably withhold its consent
to the installation of the Additional Equipment, subject to the following
conditions: (i) Tenant shall submit to Landlord detailed plans for the
installation of such Additional Equipment for Landlord's prior approval, which
approval shall not unreasonably withheld, conditioned, or delayed, (ii) Tenant
shall install such Additional Equipment at its sole cost and expense, using
contractors which have been approved by Landlord, which approval shall not
unreasonably withheld, conditioned, or delayed, for the installation of such
Additional Equipment; (iii) Tenant shall obtain, at Tenant's sole cost and
expense, all requisite permits and approvals for the installation of the
Additional Equipment, (iv) such Additional Equipment shall not adversely affect
the mechanical, electrical, structural and life-safety systems in the Building,
(v) Tenant shall pay all utility costs (including, without limitation, all
consumption and installation costs) attributable to such Additional Equipment,
(vi) Tenant shall operate and maintain the Additional Equipment in accordance
with all applicable laws, including, without limitation Environmental Statutes,
and (vii) Tenant shall remove the Additional Equipment on or before the
expiration or earlier termination of this Lease, which obligation shall survive
the expiration or termination of this Lease;
(i) Not install or authorize the installation of any coin operated
vending machine, except for the dispensing of cigarettes, coffee, and similar
items to the employees of Tenant for consumption upon the Demised Premises; and
(j) Observe the rules and regulations annexed hereto as EXHIBIT
"C-1," as Landlord may from time to time amend the same, for the general safety,
comfort and convenience of Landlord, occupants and tenants of the Building. In
the event of any conflict between the rules and regulations and the terms of
this Lease, the terms of this Lease shall prevail.
11. MECHANIC'S LIEN. Tenant shall, within ten (10) business days after
notice from Landlord, cause to be discharged of record by payment, deposit, bond
or otherwise, any mechanic's lien for materials or labor claimed to have been
furnished to the Demised Premises on Tenant's behalf (except for work contracted
for by Landlord) and shall indemnify and hold harmless Landlord from any loss
incurred in connection therewith. Provided that Tenant shall have caused such
mechanic's lien to be discharged as aforesaid, Tenant shall have the right to
contest the validity of such lien. Notwithstanding the foregoing, if Tenant
shall fail to cause such lien or claim to be discharged and removed from record
within such ten (10) day period, then, Landlord may, but shall not be obligated
to, contest the lien or claim or discharge it by payment, deposit, bond or
otherwise; and Landlord shall be entitled, if Landlord so decides, to compel the
prosecution of an action for the foreclosure of such lien by the lienor and to
pay the amount of the judgment in favor of the lienor with interest and costs.
Any amounts so paid by Landlord and all costs and expenses, including attorneys'
fees, incurred by Landlord in connection therewith together with interest at the
default rate payable hereunder from the respective dates of Landlord's making of
the payment or incurring of the cost or expense, shall constitute additional
rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord
promptly on demand.
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12. REPAIRS AND MAINTENANCE. Landlord shall keep and maintain the
public areas of the Building clean and in good working order. Landlord shall
further make, or cause to be made, all necessary repairs to the structure and
exterior of the Building, as well as to the mechanical, HVAC, electrical and
plumbing systems servicing Building, provided that Landlord shall have no
obligation to make any repairs until Landlord shall have actual knowledge of
and/or received notice of the need for such repair. The cost of the foregoing
maintenance and repairs shall be included in Operating Expenses to the extent
permitted by Section 4 hereof (unless the need for such maintenance or repair is
caused by the negligence of Landlord, its agents or employees). Notwithstanding
the foregoing, all repairs made necessary by Tenant's specific use, occupancy or
alteration of the Building, or by the negligent acts of Tenant, its agents,
employees or invitees, shall be made at the sole cost and expense of Tenant.
13. SUBLETTING AND ASSIGNING.
(a) Tenant shall not assign this Lease or sublet all or any
portion of the Demised Premises, whether voluntarily or by operation of law,
without first obtaining Landlord's prior written consent thereto, which consent
shall not be unreasonably withheld, conditioned or delayed. Tenant acknowledges
that it shall be reasonable for Landlord to withhold its consent if, by way of
example and not limitation, Tenant is in default of any of its obligations
hereunder, such subtenant's or assignee's business is not consonant with that of
the other tenants of the Building, or if the proposed sublease or assignment is
to a tenant of the Building. In addition, Tenant shall not mortgage, pledge or
hypothecate this Lease. Any assignment, sublease, mortgage, pledge or
hypothecation in violation of this Section shall be void at the option of
Landlord and shall constitute a default hereunder without the opportunity for
notice or cure by Tenant.
(b) A transfer or sale by Tenant of a majority of the voting
shares, partnership interests or other controlling interests in Tenant shall be
deemed an assignment of this Lease by Tenant requiring Landlord's prior written
consent pursuant to subparagraph (a) above. Notwithstanding the foregoing, so
long as Tenant is not in default under this Lease, upon thirty (30) days prior
written notice to Landlord, Tenant shall have the right, without Landlord's
consent, to sublet all or a portion of the Demised Premises or to assign the
Lease to any company which is an Affiliate of Tenant. As used herein,
"Affiliate" shall mean any entity controlling, controlled by or under common
control with Tenant.. The term "control" shall mean direct ownership of more
than fifty percent (50%)of the voting interests in such entity.
(c) Notwithstanding the foregoing, no subletting or assignment
with or without Landlord's consent shall in any way relieve or release Tenant
from liability for the performance of all terms, covenants and conditions of
this Lease. Furthermore, no assignment requiring the Landlord's consent
hereunder will be valid unless the Tenant shall have obtained the Landlord's
consent thereto pursuant to subparagraph (a) above and the assignee shall have
executed and delivered to Landlord an assumption of liability agreement in form
reasonably satisfactory to Landlord, including an assumption by the assignee of
all of the obligations of Tenant and the assignee's ratification of and
agreement to be bound by all the provisions of this Lease; and no subletting
requiring Landlord's consent hereunder will be valid unless Tenant shall have
obtained the Landlord's consent thereto pursuant to subparagraph (a) above and
Tenant and the subtenant have executed and delivered to Landlord a sublease
agreement
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pursuant to which such subtenant agrees to be bound by the terms of this Lease.
Tenant agrees to provide Landlord with prior written notice of any assignment or
subletting which does not require Landlord's consent hereunder, together with
copies of the assignment or sublease agreement(s), as the case may be.
(d) Tenant shall pay to Landlord, as additional rent hereunder,
50% of all subrents or other sums or economic consideration received by Tenant
(after deducting Tenant's reasonable costs of reletting including, without
limitation, free rent, tenant improvements, brokerage commissions, etc.),
whether denominated as rentals or otherwise, in excess of the monthly sums which
Tenant is required to pay under this Lease.
(e) Tenant shall have the right, without requiring Landlord's
consent hereunder, to collocate up to 5% of the rentable square footage of the
Demised Premises in the aggregate with a user(s) providing/sharing services in
conjunction with Tenant's operations in the Demised Premises.
14. FIRE OR CASUALTY. In the event that the whole or a substantial
part of the Building or the Demised Premises is damaged or destroyed by fire or
other casualty, then, within forty-five (45) days after the date that Landlord
receives notice of such fire or other casualty, Landlord shall provide written
notice to Tenant as to whether Landlord intends to repair or rebuild and the
estimated time period for the completion thereof. In the event that Landlord's
notice provides that the repairs to the Demised Premises shall require more than
one hundred eighty (180)) days to complete, then Tenant shall have the right to
terminate this Lease by providing written notice thereof to Landlord within
thirty days (30) after receipt of Landlord's notice. In the event that Landlord
elects to repair or rebuild (and Tenant does not have the right to, or has
elected not to, terminate this Lease in accordance with the foregoing sentence),
Landlord shall thereupon cause the damage (excepting, however, Tenant's
furniture, fixtures, equipment and improvements, which shall be Tenant's
responsibility to restore) to be repaired with reasonable speed, subject to
delays, which may arise by reason of adjustment of loss under insurance policies
and for delays beyond the reasonable control of Landlord. In the event the
damage shall be so extensive that Landlord shall decide not to repair or
rebuild, this Lease shall, at the option of Landlord, be terminated effective as
of the date of casualty. To the extent and for the time that the Demised
Premises are rendered untenantable on account of fire or other casualty, the
rent shall proportionately abate. All prepaid rents paid by Tenant that are
applicable to periods after the effective date of termination shall be refunded
to Tenant.
15. EMINENT DOMAIN. If the whole or a substantial part of the Building
is taken or condemned for a public or quasi-public use under any statute or by
right of eminent domain by any competent authority or sold in lieu of such
taking or condemnation, such that in the opinion of Landlord the Building is not
materially operable as before without substantial alteration or reconstruction,
this Lease shall automatically terminate on the date that the right to
possession shall vest in the condemning authority (the "Taking Date"), with rent
being adjusted to said Taking Date, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease. Tenant shall have no
claim against Landlord and no claim or right to any portion of any amount that
may be awarded as damages or paid as a result of any taking, condemnation or
purchase in lieu thereof; all rights of Tenant thereto are hereby assigned by
Tenant to Landlord. Notwithstanding the foregoing, Tenant shall have the right
to pursue a
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separate claim against the condemning authority so long as such
claim does not diminish Landlord's recovery. If any part of the Demised Premises
is so taken or condemned so as to materially interfere with Tenant's business,
this Lease shall automatically terminate as to the portion of the Demised
Premises so taken or condemned, as of the Taking Date, and this Lease shall
continue in full force as to the remainder of the Demised Premises, with rent
abating only to the extent of the Demised Premises so taken or condemned;
provided, however, that if the remaining portion of the Demised Premises is no
longer suitable for the Permitted Use, then Tenant shall have the right to
terminate this Lease by providing written notice thereof to Landlord within
thirty (30) days after the Taking Date. In the event that this Lease is so
terminated, any rents paid in advance by Tenant for periods after the effective
date of termination shall be refunded to Tenant.
16. INSOLVENCY. (a) The appointment of a receiver or trustee to take
possession of all or a portion of the assets of Tenant, or (b) an assignment by
Tenant for the benefit of creditors, or (c) the institution by or against Tenant
of any proceedings for bankruptcy or reorganization under any state or federal
law (unless in the case of involuntary proceedings, the same shall be dismissed
within forty-five (45) days after institution), or (d) any execution issued
against Tenant which is not stayed or discharged within fifteen (15) days after
issuance of any execution sale of the assets of Tenant, shall constitute a
breach of this Lease by Tenant. Landlord in the event of such a breach, shall
have, without need of further notice, the rights enumerated in Section 17
herein.
17. DEFAULT.
(a) If Tenant shall fail to pay rent or any other sum payable to
Landlord hereunder when due and such failure continues for more than ten (10)
days after written notice thereof from Landlord to Tenant (provided, however,
that Landlord shall not be required to provide notice to Tenant more than two
times during any twelve month period), or if Tenant shall fail to perform or
observe any of the other covenants, terms or conditions contained in this Lease
and such failure continues for more than thirty (30) days after written notice
thereof from Landlord (or such longer period as is reasonably required to
correct any such default, provided Tenant promptly commences and diligently
continues to effectuate a cure, but in any event within sixty (60) days after
written notice thereof by Landlord), or if any of the events specified in
Section 16 occur, then and in any of said cases (notwithstanding any former
breach of covenant or waiver thereof in a former instance), Landlord, in
addition to all other rights and remedies available to it by law or equity or by
any other provisions hereof, may at any time thereafter, pursue any one or more
of the following remedies:
(i) Landlord may, without further notice, terminate this
Lease, whereupon Tenant shall immediately vacate and surrender the Demised
Premises and deliver possession thereof to Landlord.
(ii) Landlord may, without further notice and without
terminating this Lease, terminate Tenant's right to possession of the Demised
Premises and enter upon and repossess the Demised Premises, by force, summary
proceedings, ejectment or otherwise, and may dispossess Tenant and remove Tenant
and all other persons and property
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from the Demised Premises and may have, hold and enjoy the Demised Premises and
the rents and profits therefrom.
(b) In the event that Landlord terminates this Lease, Landlord
shall be entitled to recover from Tenant all damages and expenses which Landlord
may suffer or incur by reason of Tenant's default hereunder (including
reasonable attorneys' fees), including, without limitation, damages for such
breach in an amount equal to the aggregate rent payable by Tenant throughout the
entire balance of the Term (determined from and after the date of Landlord's
election under this subsection) less the fair rental value of the Demised
Premises for the remainder of the term of this Lease (taken without regard to
the early termination), discounted to present value using an interest factor of
10% per annum, and such damages shall be payable by Tenant upon demand. Nothing
contained in this Lease shall limit or prejudice the right of Landlord to prove
and obtain as damages incident to a termination of this Lease, in any bankruptcy
reorganization or other court proceedings, the maximum amount allowed by any
statute or rule of law in effect with such damages are to be proved.
(c) In the event that Landlord terminates Tenant's right to
possession without terminating this Lease, Landlord may, in its own name, as
agent for Tenant, relet the Demised Premises or any part thereof for such term
or terms (which may be greater or less than the period which would otherwise
have constituted the balance of the Term) and on such terms (which may include
concessions of free rent) as Landlord in its sole discretion may determine.
Landlord may, in connection with any such reletting, cause the Demised Premises
to be decorated, altered, divided, consolidated with other space or otherwise
changed or prepared for reletting. In the event that Landlord terminates
Tenant's right to possession hereunder, Landlord agrees to use reasonable
efforts to relet the Demised Premises; provided, however, in no event shall
Landlord be required to (i) lease the Demised Premises over other available
space in the Building, (ii) accept a below-market rental rate for the Demised
Premises, (iii) accept any tenant whose creditworthiness is unsatisfactory to
Landlord, in its sole discretion, or (iv) accept any tenant whose business is
not compatible with the other tenants of the Building, as determined by Landlord
in its sole discretion. Upon any such reletting, all rent received from such
reletting shall be applied first to the payment of any sums other than rent due
from Tenant to Landlord hereunder; second, to the payment of any cost or
expenses of reletting (including, without limitation, brokerage commissions,
reasonable attorneys' fees, etc.), third to the payment of rent due and payable
hereunder; and the balance, if any, to be held by Landlord and applied against
the payment of future rent hereunder. Tenant shall pay to Landlord, on demand,
any deficiency that may result on account of such reletting. No reletting shall
be deemed a surrender and acceptance of the Demised Premises.
(d) Any and all remedies set forth in this Lease (i) shall be
cumulative, (ii) shall be in addition to any and all remedies which Landlord may
have at law or in equity, and (iii) may be pursued successively or concurrently,
as Landlord may elect. The exercise of any remedy by Landlord shall not be
deemed an election of remedies, nor shall the same preclude Landlord from
thereafter exercising any other remedies. Tenant hereby waives any and all
rights of redemption, reentry or repossession granted at law or in equity and
any notices to quit required by applicable law.
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(e) If rent or any other sum due from Tenant to Landlord shall be
overdue for more than five (5) days after notice from Landlord, it shall
thereafter bear interest at the rate of fifteen percent (15%) per annum (or, if
lower, the highest legal rate) until paid.
18. LANDLORD'S RIGHT TO CURE. Landlord may (but shall not be
obligated) on five (5) days notice to Tenant (except that no notice need be
given in case of emergency) cure on behalf of Tenant any default hereunder by
Tenant, and the cost of such cure (including any attorney's fees incurred) shall
be deemed additional rent payable upon demand.
19. INSURANCE. Tenant shall at all times during the Term, including
any renewal or extension thereof, maintain in full force and effect with respect
to the Demised Premises and Tenant's use thereof, (i) comprehensive public
liability insurance, covering injury to person and property in amounts at least
equal to Two Million Dollars ($2,000,000) per occurrence and annual aggregate
limit for bodily injury of One Million Dollars ($1,000,000) per occurrence and
annual aggregate limit for property damage, with increases in such limits as
Landlord may from time to time reasonably request, and (ii) all-risk or fire and
extended coverage insurance upon Tenant's personal property and leasehold
improvements in the Demised Premises for the full replacement value of such
personal property and leasehold improvements. All liability insurance policies
shall name Landlord and at Landlord's request any mortgagee of all or any
portion of the Property as additional insureds. Tenant shall lodge with Landlord
duplicate originals or certificates of such insurance at or prior to the
Commencement Date and shall lodge with Landlord renewals thereof at least
fifteen (15) days prior to expiration. All such policies or certificates shall
provide that such insurance coverage may not be cancelled or materially amended
unless Landlord and any mortgagee designated by Landlord as aforesaid are given
at least thirty (30) days prior written notice of the same. Landlord shall carry
(i) comprehensive public liability insurance, covering injury to person and
property in amounts at least equal to Two Million Dollars ($2,000,000) per
occurrence and annual aggregate limit for bodily injury of One Million Dollars
($1,000,000) per occurrence, and (iii) all risk or fire and extended coverage
insurance upon the Building for the full replacement value thereof. Landlord's
insurance obligation may be satisfied by a blanket policy of insurance (covering
other properties in addition to the Property) with so-called "umbrella"
coverage.
20. WAIVER OF SUBROGATION. Each party hereto hereby waives any and
every claim which arises or which may arise in its favor against the other party
hereto during the Term, including any extension or renewal thereof, for any and
all loss of, or damage to, any of its property located within or upon or
constituting a part of the Building, to the extent that such loss or damage is
covered under an insurance policy or policies and to the extent such policy or
policies contain provisions permitting such waivers of claims. Each party agrees
to request its insurers to issue policies containing such provisions and if any
extra premium is payable therefor, the party which would benefit from the
provision shall have the option to pay such additional premium in order to
obtain such benefit.
21. LIABILITY. Tenant agrees that Landlord, the Property Manager and
their respective officers, employees and agents shall not be liable to Tenant,
and Tenant hereby releases said parties, for any personal injury or damage to or
loss of personal property in the Demised Premises from any cause whatsoever
unless such damage, loss or injury is the result of
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<PAGE> 20
the negligence or willful misconduct of Landlord, its Property Manager, or their
officers, employees, agents or contractors. Landlord, the Property Manager and
their respective officers, employees and agents shall not be liable to Tenant
for any such property damage or property loss whether or not the result of their
negligence or willful misconduct to the extent Tenant would be covered by
insurance that Tenant is required to carry hereunder. Tenant shall and does
hereby indemnify and hold Landlord harmless of and from all loss or liability
incurred by Landlord (including, without limitation, reasonable attorney's fees)
in connection with any failure of Tenant to fully perform its obligations under
this Lease and in connection with any personal injury or damage of any type or
nature occurring in, or resulting out of Tenant's use of, the Demised Premises,
unless due to the negligence of Landlord, its Property Manager, or their
officers, employees or agents. Subject to the limitations on liability set forth
herein, Landlord agrees to indemnify and hold Tenant harmless from and against
all loss or liability incurred by Tenant (including reasonable attorneys' fees)
in connection with any personal injury or damage of any type or nature resulting
out of the negligence of Landlord, its officers, agents, employees and
contractors.
22. ENVIRONMENTAL MATTERS.
(a) Tenant shall conduct, and cause to be conducted, all
operations and activity at the Property (including, without limitation, the
installation, operation and removal of the Additional Equipment) in compliance
with, and shall in all other respects applicable to the Demised Premises and the
Additional Equipment comply with, all applicable present and future federal,
state, municipal and other governmental statutes, ordinances, regulations,
orders, directives and other requirements, and all present and future
requirements of common law concerning the environment (hereinafter collectively
called "Environmental Statutes") including, without limitation, (i) those
relating to the generation, use, handling, treatment, storage, transportation,
release, emission, disposal, remediation or presence of any material, substance,
liquid, effluent or product, including, without limitation, hazardous
substances, hazardous waste or hazardous materials, (ii) those concerning
conditions at, below or above the surface of the ground and (iii) those
concerning conditions in, at or outside the Building.
(b) Tenant shall not cause or suffer or permit to occur in, on or
under the Property any generation, use, manufacturing, refining, transportation,
emission, release, treatment, storage, disposal, presence or handling of
hazardous substances, hazardous wastes or hazardous materials (as such terms are
now or hereafter defined under any Environmental Statute) or any other material,
substance, liquid, effluent or product now or hereafter regulated by any
Environmental Statute (all of the foregoing herein collectively called
"Hazardous Substances"), except that construction materials (other than asbestos
or polychlorinated biphenyls), office equipment, fuel and similar products (if
contained in vehicles or the Additional Equipment) and cleaning solutions, and
other maintenance materials that are or contain Hazardous Substances may be
used, generated, handled or stored on the Demised Premises, provided such is
incident to and reasonably necessary for the operation and maintenance of the
Demised Premises as an office and is in compliance with all Environmental
Statutes and all other applicable governmental requirements. Should Tenant, its
agents, employees or invitees cause any release of Hazardous Substances at the
Demised Premises or relating to the Additional Equipment, Tenant shall
immediately contain, remove and dispose of, such Hazardous Substances and any
material that was contaminated by the release and to remedy and mitigate all
20
<PAGE> 21
threats to human health or the environment relating to such release. When
conducting any such measures the Tenant shall comply with all Environmental
Statutes.
(c) Tenant hereby agrees to indemnify and to hold harmless
Landlord of, from and against any and all expense, loss or liability suffered by
Landlord by reason of Tenant's breach of any of the provisions of this Section,
including, but not limited to, (i) any and all expenses that Landlord may incur
in complying with any Environmental Statutes, (ii) any and all costs that
Landlord may incur in studying, assessing, containing, removing, remedying,
mitigating, or otherwise responding to, the release of any Hazardous Substance
or waste at or from the Property, (iii) any and all costs for which Landlord may
be liable to any governmental agency for studying, assessing, containing,
removing, remedying, mitigating, or otherwise responding to, the release of a
Hazardous Substance or waste at or from the Property, (iv) any and all fines or
penalties assessed, or threatened to be assessed, upon Landlord by reason of a
failure of Tenant to comply with any obligations, covenants or conditions set
forth in this Article, and (v) any and all reasonable legal fees and costs
incurred by Landlord in connection with any of the foregoing.
(d) Subject to the limitations on liability set forth herein,
Landlord hereby agrees to indemnify and to hold harmless Tenant of, from and
against any and all expense, loss or liability suffered by Tenant by reason of
the use, disposal, emission, release, disposal, presence or handling of
Hazardous Substances at the Property by Landlord, including, without limitation,
(i) any and all expenses that Tenant may incur in complying with any
Environmental Statutes, (ii) any and all costs that Tenant may incur in
studying, assessing, containing, removing, remedying, mitigating, or otherwise
responding to, the release of any Hazardous Substance or waste at or from the
Demised Premises, (iii) any and all costs for which Tenant may be liable to any
governmental agency for studying, assessing, containing, removing, remedying,
mitigating, or otherwise responding to, the release of a Hazardous Substance or
waste at or from the Demised Premises, and (iv) any and all fines or penalties
assessed upon Tenant by reason of a failure Landlord's use, disposal, emission,
release, disposal, presence or handling of Hazardous Substances at the Property.
(e) Each party's covenants, obligations and liabilities under this
Section shall survive the expiration or earlier termination of this Lease.
23. SUBORDINATION. This Lease is and shall be subject and subordinate
to all the terms and conditions of all underlying mortgages and to all ground or
underlying leases of the entire Building which may now or hereafter encumber the
Building and/or the Property, and to all renewals, modifications,
consolidations, replacements and extensions thereof, provided, however, that
with respect to future mortgages, this Lease shall be subject and subordinate so
long as the holder of any such mortgage shall have provided to Tenant a
nondisturbance agreement which shall provide, inter alia, that (a) Tenant's
rights under this Lease shall not be extinguished by any foreclosure or other
enforcement proceedings so long as Tenant is not in default under this Lease (b)
subject to the foregoing, the Tenant's rights under this Lease are subordinate
to the rights of the holder of such mortgagee, and (c) Tenant shall attorn to
the holder of such mortgage. Except as provided above, this clause shall be
self-operative and no further instrument of subordination shall be necessary.
Notwithstanding the automatic subordination of this Lease, Tenant shall execute,
within five (5) days after request,
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<PAGE> 22
any certificate that Landlord may reasonably require acknowledging such
subordination, subject, however, to the preceding sentence. If Landlord has
attached to this Lease, or subsequently delivers to Tenant, a form of
subordination agreement required by a mortgagee of the Property, Tenant shall
execute and return the same to Landlord within five (5) days after receipt
thereof by Tenant. Notwithstanding the foregoing, the party holding the
instrument to which this Lease is subordinate shall have the right to recognize
and preserve this Lease in the event of any foreclosure sale or possessory
action, and in such case this Lease shall continue in full force and effect at
the option of the party holding the superior lien, and Tenant shall attorn to
such party and shall execute, acknowledge and deliver any instrument that has
for its purpose and effect the confirmation of such attornment.
24. ESTOPPEL STATEMENT. Tenant shall from time to time, within five
(5) days after delivery by Landlord, execute, acknowledge and return to Landlord
a statement certifying that this Lease is unmodified and in full force and
effect (or that the same is in full force and effect as modified, listing any
instruments or modifications), the dates to which rent and other charges have
been paid, and whether or not, to the best of Tenant's knowledge, Landlord is in
default or whether Tenant has any claims or demands against Landlord (and, if
so, the default, claim and/or demand shall be specified), and such other
information reasonably requested by Landlord.
25. RENEWAL OPTION. Provided that Tenant is not in default in the
performance of any of its obligations beyond all applicable notice and cure
periods hereunder, Tenant shall have the option to extend the Term for two (2)
separate, consecutive extension periods (each, an "EXTENSION PERIOD"), upon the
following terms and conditions:
(a) The first Extension Period (the "FIRST EXTENSION PERIOD")
shall be for a three(3) or five (5) year period commencing on the day
immediately following the expiration date of the initial Term of this Lease and
expiring at midnight on the day immediately preceding the third or fifth
anniversary thereof, as the case may be. The second Extension Period (the
"SECOND EXTENSION PERIOD") shall be for a five (5) year period commencing on the
day immediately following the expiration date of the First Extension Period and
expiring at midnight on the day immediately preceding the fifth (5th)
anniversary thereof. If Tenant fails to exercise any Extension Period, all
subsequent Extension Periods shall be null and void and of no further force and
effect.
(b) Tenant must exercise each Extension Period, if at all, upon at
least 300 days' written notice to Landlord prior to the expiration date of the
then current Term of this Lease, time being of the essence. With respect to the
First Extension period, Tenant's exercise notice shall provide whether Tenant
has elected a three or five year extension.
(c) Each Extension Period shall be on the same terms and
conditions contained in this Lease, except that (i) the Annual Base Rent shall
be the "Fair Market Rental Rate" for the Demised Premises, but in no event less
than the sum of (A) $19.00 per rentable square foot of the Demised Premises, and
(B) janitorial and utility costs for the Demised Premises (to the extent that
Landlord is to provide such services), (ii) Tenant shall not be entitled to any
improvement allowances set forth herein with respect to the Extension Periods;
and (iii) Tenant shall not have any further options of renewal after the Second
Extension Period.
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<PAGE> 23
(d) Except for the specific Extension Periods set forth above,
there shall be no further privilege of renewal.
(e) As used herein, the term "Fair Market Rental Rate" shall mean
the average of the annual rental rates then being charged for comparable space
in the Building or, if no comparable space exists in the Building, for "Class A"
office space in the Columbia, Maryland market (exclusive of Town Center) for
leases commencing on or about the commencement of the Extended Term, taking into
consideration the age, use, location and floor level of the applicable building,
leasehold improvements or allowances provided, rental concessions, the term of
the lease under consideration, the extent of services provided thereunder, the
creditworthiness of Tenant, rent escalations and other adjustments to the base
rental and any other relevant term or condition in making such evaluation.
Landlord shall determine the Fair Market Rental Rate using its good faith
judgment and shall provide written notice of such rate within fifteen (15) days
after Tenant's exercise notice pursuant to this Section. Tenant shall thereupon
have the following options: (i) to accept such proposed "Fair Market Rental
Rate", (ii) to decline to exercise its renewal option, or (iii) to notify
Landlord in writing that Tenant objects to the proposed rental rate. Tenant must
provide Landlord with written notification of its election within fifteen (15)
days after Tenant's receipt of Landlord's notice, otherwise Tenant shall be
deemed to have elected clause (ii) above, in which event Tenant shall be deemed
to have rescinded its exercise notice and this Lease shall expire on the
Expiration Date as if Tenant had not elected to exercise its renewal option
hereunder. If Tenant objects to Landlord's proposed "Fair Market Rental Rate" in
accordance with clause (iii) above, Landlord and Tenant shall attempt to
negotiate a mutually acceptable rental rate within fifteen (15) days following
notification by Tenant, and if such negotiations have not been concluded within
such fifteen (15) day period, either party may require determination of the Fair
Market Rental Rate for the Extension Period by giving written notice to the
other no later than ten (10) days after the expiration of such fifteen (15) day
period, which notice shall designate a real estate broker selected by the
initiating party experienced in office leasing in the Columbia, Maryland market.
Within ten (10) days after receipt of such notice, the other party to this Lease
shall select a real estate broker meeting the aforesaid requirements and give
written notice of such selection to the initiating party. If the two (2) real
estate brokers fail to agree upon the Fair Market Rental Rate within ten (10)
days after selection of the second broker, the two (2) brokers shall select a
third (3rd) real estate broker meeting the foregoing requirements to determine
the Fair Market Rental Rate within ten (10) days after the appointment of the
third (3rd) broker. The Fair Market Rental Rate applicable to the Extended Term
shall equal the arithmetic average of such three (3) determinations; provided,
however, that if one (1) broker's determination deviates more than five percent
(5%) from the median of the three (3) determinations, the Fair Market Rental
Rate shall be an amount equal to the average of the other two (2)
determinations. The determination of Fair Market Rental Rate shall be final,
binding and conclusive on Landlord and Tenant.
26. RIGHT OF FIRST OFFER. Provided that Tenant is not in default under
the terms of the Lease beyond all applicable notice and cure periods hereunder,
Tenant shall have a one-time right of first offer to lease space identified on
Exhibit "E" attached hereto and located on the second and first floors of the
Building, consisting of approximately 25,000 rentable square feet and 58,000
rentable square feet in the aggregate, respectively, upon the following terms
and conditions.
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(a) In the event that Landlord anticipates that all or any portion
of the First Offer Space may become available during the Term, Landlord shall
give Tenant written notice of the availability of such First Offer Space setting
forth the terms and conditions (including, without limitation, the rental rate
and the commencement and duration of the proposed term, etc.) upon which
Landlord would be willing to lease such First Offer Space ("Landlord's
Availability Notice"). Within ten (10) days after Tenant's acceptance receipt of
Landlord's Availability Notice, Tenant must give Landlord written notice
pursuant to which Tenant shall elect either (i) to lease such First Offer Space
on the terms and conditions set forth in Landlord's Availability Notice, or (ii)
to decline to lease such First Offer Space. If Tenant fails to elect clause (i)
within such ten (10)-day period, then Tenant shall be deemed to have declined to
lease the First Offer Space. In the event that Tenant declines (or is deemed to
have declined) to lease the First Offer Space, then Landlord shall be free to
Lease such First Offer Space to any other party(-ies) without any further
obligation to Tenant hereunder, provided, however that Tenant shall retain its
first offer rights hereunder with respect to any part of the First Offer Space
(i) not covered by Landlord's Availability Notice and (ii) not covered by any
previous Landlord's Availability Notice.
(b) If Tenant chooses to lease the First Offer Space in accordance
with subparagraph (a) above, then Landlord and Tenant shall execute an amendment
to the Lease to provide for the inclusion of the First Offer Space under the
terms and conditions set forth in Landlord's Availability Notice. Except as
provided in Landlord's Availability Notice, all other terms and conditions of
the Lease shall apply to the First Offer Space except that (i) Tenant's Fraction
with respect to Operating Costs shall be increased to take into account the
additional square footage of the First Offer Space and all other figures in the
Lease affected by the addition of such square footage shall be adjusted
accordingly, (ii) Landlord shall not be required to perform any improvements to
the First Offer Space unless specifically provided for in Landlord's
Availability Notice, and (iii) Tenant shall not be entitled to any allowances,
credits, options or other concessions with respect to the First Offer Space
unless specifically provided for in Landlord's Availability Notice.
(c) The effective date of the addition of the First Offer Space to
the Demised Premises shall be the later of (i) the thirty-first (31st) day after
Tenant's acceptance of Landlord's Availability Notice, or (ii) the date that
Landlord delivers possession of the First Offer Space to Tenant in accordance
with the terms of Landlord's Availability Notice.
(d) Except as otherwise provided in Landlord's Availability
Notice, Tenant agrees to accept the First Offer Space in its "AS IS" condition,
in the then current physical state and condition thereof, without any
representation or warranty by Landlord.
(e) If Tenant fails to exercise its right of first offer strictly
in accordance with the provisions of this Section, then Landlord shall have the
right to lease such First Offer Space to any other party(ies) with no further
obligation to offer such space to Tenant pursuant to the terms of this Section.
(f) Notwithstanding anything herein to the contrary, Tenant's
Right of First Offer hereunder is subject to all expansion, extension, renewal,
first offer, first refusal and other rights to lease, as applicable, which
Landlord (or any predecessor to Landlord's interest in
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<PAGE> 25
the Property) has granted to other tenants of the Building prior to the date of
this Lease. Thus, Landlord's Availability Notice will be delivered to Tenant
only after Landlord has appropriately notified and received negative responses
from all other tenants with rights in the First Offer Space superior to
Tenant's. Landlord acknowledges that, as of the date hereof, the following
tenants have rights to the First Offer Space which are superior to the rights of
Tenant:
Scientific Applications International Corporation
27. EXPANSION RIGHTS. Provided that Tenant is not in default in the
performance of any of its obligations hereunder beyond all applicable notice and
cure periods hereunder, Landlord hereby grants Tenant the right (the "EXPANSION
OPTION") to lease an additional 25,000 square feet of space on the second floor
of the Building as shown on Exhibit "F" attached hereto and made a part hereof
(the "EXPANSION SPACE"), subject to the following terms and conditions:
(a) In the event that Tenant desires to exercise the Expansion
Option, Tenant shall provide Landlord with written notice (the "EXPANSION
EXERCISE NOTICE") on or before June 1, 2000 (the "EXERCISE DEADLINE") of
Tenant's election to exercise the Expansion Option, time being of the essence.
(b) All other terms and conditions of the Lease shall apply to the
Expansion Space except that (i) the Annual Rent with respect to Expansion Space
for the balance of the initial Term shall be as determined by subparagraph (c)
below; (ii) the Annual Base Rent with respect to Expansion Space for any
Extension Period, if applicable, shall be the same Base Rental rate (on a
dollars per square foot basis) payable with respect to the balance of the
Demised Premises pursuant to Section 25 hereof; (iii) Tenant's Fraction with
respect to Operating Expenses shall be increased to take into account the
additional square footage of the Expansion Space and all other figures in the
Lease affected by the addition of such square footage shall be adjusted
accordingly; and (iv) Tenant shall not be entitled to any allowances, credits,
options or other concessions with respect to the First Offer Space.
(c) Landlord and Tenant acknowledge that the Annual Base Rent
payable with respect to the Expansion Space shall be determined based upon the
scope of the improvements to be performed by Landlord, if any, with respect to
the Expansion Space (the "EXPANSION SPACE IMPROVEMENTS"), as hereinafter
provided:
(i) Within sixty (60) days after Landlord's receipt of
Tenant's Expansion Exercise Notice, Landlord shall provide written notice to
Tenant describing the scope of the Expansion Space Improvements to be performed
by Landlord, if any. If Landlord's notice provides that Landlord will construct
the "EXPANSION SPACE SHELL" (as hereinafter defined), then the Annual Base Rent
payable by Tenant with respect to the Expansion Space shall be the
then-escalated Base Rental rate in effect with respect to the balance of the
Demised Premises as set forth in Section 10 of the Fundamental Lease Provisions
(with corresponding adjustments for subsequent lease years) reduced by $5.22 per
rentable square foot (the "EXPANSION BASE RENT"). Accordingly, in the event that
the Landlord constructs the Expansion Space Shell, the Expansion Base Rent shall
be payable as follows (proportionately prorated for any partial lease year in
which the Expansion Space Commencement Date occurs):
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<TABLE>
<CAPTION>
- ------------------------------------------------------------------------
YEAR/PERIOD Annual rent Monthly Installment Rent/Sq. Ft.
- ------------------------------------------------------------------------
<S> <C> <C> <C>
Lease Year 1 $320,000.00 $26,666.67 $12.80
- ------------------------------------------------------------------------
Lease Year 2 $330,750.00 $27,562.50 $13.23
- ------------------------------------------------------------------------
Lease Year 3 $341,500.00 $28,458.33 $13.66
- ------------------------------------------------------------------------
Lease Year 4 $352,750.00 $29,395.83 $14.11
- ------------------------------------------------------------------------
Lease Year 5 $364,250.00 $30,354.16 $14.57
- ------------------------------------------------------------------------
Lease Year 6 $376,000.00 $31,333.33 $15.04
- ------------------------------------------------------------------------
Lease Year 7 $388,000.00 $32,333.33 $15.52
- ------------------------------------------------------------------------
</TABLE>
(ii) As used herein, the "Expansion Space Shell" shall include
only the construction of the Expansion Space floor, the installation of windows,
and no other improvements. Tenant acknowledges that the Expansion Space Shell
shall exclude, by way of example and not limitation, any heating, ventilating
and air conditioning systems, utility systems and any demising walls.
(iii) In the event that Landlord agrees to perform any
additional work requested by Tenant in excess of the Expansion Space Shell, then
the Expansion Base Rent shall be increased by the cost of such additional
improvements, amortized on a straight-line basis over the balance of the initial
Term of the Lease with an interest factor of 12% per annum.
(iv) In the event that Landlord elects not to construct all or
part of the Expansion Space Shell, then the Expansion Base Rent shall be
reduced: (i) by $1.65 per rentable square foot of the Expansion Space if
Landlord elects not to construct the Expansion Space floor, and/or (ii) by $0.65
per rentable square foot of the Expansion Space if Landlord elects not to
install windows with respect to the Expansion Space.
(v) Notwithstanding anything contained herein to the contrary,
Landlord shall have no obligation to construct the Expansion Space Shell or to
perform any other Expansion Space Improvements. In the event that Landlord
declines to perform any Expansion Space Improvements, then the Expansion Base
Rent shall be adjusted pursuant to the terms of this Section and Tenant shall be
obligated to perform all improvements necessary to prepare the Expansion Space
for Tenant's occupancy.
(d) Except for any Expansion Space Improvements to be performed by
Landlord pursuant to subparagraph (c) above, if any, Tenant shall perform, at
its sole cost and expense, all improvements necessary to convert the Expansion
Space to office use (including, without limitation, decking the Expansion Space
and installing windows if Landlord elects not to perform such work pursuant to
subparagraph (c) above) and all other work which Tenant deems necessary or
desirable for Tenant's initial occupancy thereof, which improvements shall be
subject to the prior written approval of Landlord, which approval shall not be
unreasonably withheld, conditioned, or delayed. All contractors utilized for the
performance of such improvements shall be subject to the prior written approval
of Landlord, and all work shall be performed in accordance with the Expansion
Plans (as hereinafter defined) in a good and workmanlike manner and in
accordance with all applicable laws. Prior to the commencement of any work
within the Expansion Space, Tenant shall submit to Landlord, for Landlord's
prior approval, proposed plans and specifications (the "PROPOSED EXPANSION
PLANS") for Tenant's proposed improvements to the Expansion Space, which plans
shall be prepared by a registered
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<PAGE> 27
architect licensed to do business within the State of Maryland. The Proposed
Expansion Plans shall include all information and specifications necessary for
Landlord to fully review the work described therein and shall conform to all
applicable laws and requirements of public authorities and insurance
underwriters' requirements. If Landlord reasonably disapproves the Proposed
Expansion Plans, Landlord shall state specifically the reasons for such
disapproval, and Tenant shall cause its architects to promptly make any changes
in the Proposed Expansion Plans reasonably required by Landlord. The Proposed
Expansion Plans, as finally approved by Landlord, are referred to herein as the
"EXPANSION PLANS." All work described in the Expansion Plans is referred to
herein as the "EXPANSION SPACE IMPROVEMENTS."
(e) In the event that Tenant exercises the Expansion Option in
accordance with this Section, the term of the Expansion Space shall commence on
the later of (i) the Substantial Completion (as hereinafter defined) of any
Expansion Space Improvements to be performed by Landlord, if any, or (ii) April
1, 2001 (the "EXPANSION SPACE COMMENCEMENT DATE") and shall expire coterminous
with the Expiration Date of this Lease (subject to Tenant's options to renew as
provided herein). Notwithstanding the foregoing, if the Expansion Space
Commencement Date has not occurred because of the holding over or retention of
possession of any tenant or occupant, or for any other reason, Landlord shall
not be subject to any liability to Tenant. Under such circumstances, the rent
reserved and covenanted to be paid herein with respect to the Expansion Space
shall not commence until Landlord delivers possession of the Expansion Space to
Tenant, and no such failure to deliver possession shall in any other respect
affect the validity of this Lease. As used herein, the term "Substantial
Completion" shall mean that the Expansion Space Improvements to be performed by
Landlord, if any, have been completed except for: (i) any improvements or work
to be performed by Tenant; (ii) minor or insubstantial details of construction,
mechanical adjustments, or finishing touches like plastering or painting, which
items shall not adversely affect Tenant's ability to commence construction of
any improvements to be performed by Tenant; (iii) items not then completed
because of failure by Tenant to promptly make changes in the Proposed Expansion
Plans reasonably required by Landlord in connection with the approval thereof;
(iv) changes in the Proposed Expansion Plans requested by Tenant; and (v) the
performance of any work or activity in the Demised Premises by Tenant or any of
its employees, agents or contractors.
(f) In the event that Tenant exercises the Expansion Option in
accordance with this Section, Landlord and Tenant shall, within seventy-five
(75) days thereafter, execute an amendment to this Lease memorializing Tenant's
lease of the Expansion Space under the terms set forth herein. Tenant shall
commence payment of rent with respect to the Expansion Space as of the Expansion
Space Commencement Date.
(g) Except for any Expansion Space Improvements to be performed by
Landlord, if any, in accordance with this Section, Tenant agrees to accept the
Expansion Space in its "AS IS" condition, in the physical state and condition
thereof at the time of lease execution (excepting, however, structural defects
with respect to the Building of the presence of the Hazardous Substances in the
Expansion Space), without any representation or warranty by Landlord.
(h) If Tenant fails to exercise its Expansion Option strictly in
accordance with the provisions of this Section, then Landlord shall have the
right to lease such
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<PAGE> 28
Expansion Space to any other party(-ies) with no further obligation to lease
such space to Tenant pursuant to the terms of this Section.
(i) Notwithstanding anything herein to the contrary, Tenant's
Expansion Option hereunder is subject to all expansion, extension, renewal,
first offer, first refusal and other rights to lease, as applicable, which
Landlord (or any predecessor to Landlord's interest in the Property) has granted
to other tenants of the Building prior to the date of this Lease.
28. STORAGE SPACE. In addition to the Demised Premises, Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord approximately
5,000 rentable square feet of storage space (the "Storage Space") located in the
basement of the Building as set forth on Exhibit "G" attached hereto and made a
part hereof. The term of letting with respect to the Storage Space shall
commence on the Commencement date and expire on the Termination date. The gross
rental payable with respect to the Storage Space shall be Five Thousand Dollars
($5,000.00) per annum, plus electricity costs. Tenant accepts the Storage Space
in its "AS IS" condition, in the current physical state and condition thereof,
without any representation or warranty by Landlord. Landlord shall be
responsible for repairing exterior walls and drainage pipes to prevent water
from entering the Storage Space. Notwithstanding the foregoing, if at any time
during the Term hereof Tenant leases additional office space in the Building
such that the total office square footage leased by Tenant in the Building
exceeds 95,000 rentable square feet in the aggregate, then Tenant shall have the
right to terminate the term of letting with respect to the Storage Space by
providing written notice thereof to Landlord upon sixty (60) days' advance
written notice.
29. SIGNAGE. Tenant shall have the right to install, at its sole cost
and expense, one exterior sign on the top floor of the Building, provided,
however, that Tenant shall have first obtained (i) Landlord's prior written
approval as to the design and location of such signage, which approval shall not
be unreasonably withheld, and (ii) at Tenant's sole cost and expense, all
requisite permits and governmental or other approvals (including, without
limitation, Howard Research and Development Corporation) prior to the
installation of such signage. Landlord hereby approves Tenant's signage as shown
on Exhibit "I" attached hereto and made a part hereof, subject to Tenant
obtaining all requisite approvals pursuant to clause (ii) above.
30. ROOF RIGHTS.
(a) Tenant shall have the right to utilize a portion of the
Building rooftop for the purpose of installing, at tenant's sole cost and
expense, an antenna and satellite and associated equipment (collectively, the
"COMMUNICATIONS EQUIPMENT") necessary for the conduct of Tenant's operations at
the Demised Premises. The location of the rooftop portion to be utilized by
Tenant (the "Equipment Space") shall be subject to Landlord's prior written
approval, which shall not be unreasonably withheld, conditioned or delayed, and
shall not exceed 500 square feet in the aggregate.
(b) Prior to the installation of any Communications Equipment,
Tenant shall, deliver to Landlord, for Landlord's approval, which approval shall
not be unreasonably withheld, conditioned or delayed, detailed plans specifying
the location and design of the
28
<PAGE> 29
Communications Work as well as any work proposed in connection with the
installation thereof. In the event that Landlord approves such plans, Tenant
shall install, at its sole cost and expense, such Communications Equipment in
accordance with the plans. Prior to the installation of the Communications
Equipment, Tenant shall obtain, at its sole cost and expense, all requisite
permits and approvals necessary for the installation and operation of the
Communications Equipment. All work shall be performed in a safe, good and
workmanlike manner.
(c) Tenant agrees to (i) keep the Equipment Space and the
Communications Equipment in good order and repair and to promptly repair all
damage to the Building caused by Tenant, its agents, contractors and employees;
and (ii) not disrupt, interfere or otherwise adversely affect or interfere with
other providers of services to the Building; and (iii) promptly eliminate any
interruption with the communications facilities and/or equipment of
communications service providers located at and/or servicing the Building
existing as of the date that Tenant installs the Communications Equipment.
Landlord agrees to either include similar language in any other leases/licenses
for communications providers at the Building or to use reasonable efforts,
without unreasonable expense, to cause such other tenants/licensees to avoid
unreasonable interference with Tenant's Communications Equipment or, in the
alternative, to assign its enforcement rights under such leases/licenses to
Tenant.
31. PARKING RIGHTS. At all times during the Term of this Lease,
Landlord agrees to provide Tenant with the use of up to seven (7) parking spaces
per 1,000 rentable square feet of the Demised Premises, rent-free, of which (A)
one (1) parking space per 1,000 rentable square feet of the Demised Premises
shall be reserved, and (B) six (6) parking spaces per 1,000 rentable square feet
of the Demised Premises shall be non-reserved. The location of the reserved
parking spaces shall be as set forth on Exhibit "H" attached hereto and made a
part hereof.
32. COMMUNICATIONS SERVICE.
Tenant shall have the non-exclusive right to be a provider of
fiber optic telephone service to the Building. Landlord agrees that, so long as
this Lease remains in full force and effect and e.spire Communications, Inc. is
providing fiber optic telephone service to the Building, Landlord shall either
(A) include language in future tenant proposals that e.spire Communications,
Inc. is a provider of communications service to the Building, or (B) advise all
existing tenants at the Building that e.spire Communications, Inc. is a provider
of communications service to the Building. Notwithstanding the foregoing,
nothing herein shall be deemed to preclude Landlord from, by way of example and
without limitation, contracting with or authorizing other communications and/or
telephone service providers to provide services to the Building that are the
same or similar to those provided by Tenant, nor shall the foregoing preclude
Landlord from informing prospective and/or existing tenants of the Building as
to the availability of such service from other providers.
33. HOLDING-OVER. Should Tenant continue to occupy the Demised
Premises after the expiration of the Term, including any renewal or renewals
thereof, or after a forfeiture incurred, such tenancy shall (without limitation
of any of Landlord's rights or remedies therefor) be one at sufferance at a
minimum monthly rental equal to one hundred twenty-five percent (125%) of the
rent payable for the last month of the Term for each of the first three (3)
29
<PAGE> 30
months (or portions thereof) of such holdover period, and for each month
thereafter at a minimum monthly rent equal to one hundred fifty percent (150%)
of the rent payable during the last month of the Term.
34. SECURITY INTEREST. Intentionally Omitted.
35. FINANCIAL STATEMENTS. Upon the request of any mortgagee,
prospective mortgagee or prospective purchaser of the Property, but in no event
more than twice annually, Tenant shall provide to Landlord complete copies of
Tenant's latest annual financial statements and such other public or readily
available information as may be reasonably requested by such mortgagee and/or
purchaser.
36. RENT TAX. If, during the Term, including any renewal or extension
thereof, any tax is imposed upon the privilege of renting or occupying the
Demised Premises or upon the amount of rentals collected therefor, Tenant will
pay each month, as additional rent, a sum equal to such tax or charge that is
imposed for such month, but nothing herein shall be taken to require Tenant to
pay any income, estate, inheritance or franchise tax imposed upon Landlord.
37. QUIET ENJOYMENT. So long as Tenant is not in default of its
obligations under this lease beyond all applicable notice and cure periods
hereunder, Tenant shall quietly have and enjoy the Demised Premises during the
term of this Lease without hindrance or molestation by anyone claiming by or
through Landlord, subject, however, to the exceptions, reservations and
conditions of this Lease.
38. NOTICES. All notices required to be given by Landlord to Tenant
shall be sufficiently given., by overnight express delivery service or by
courier service delivery against written receipt or signed proof of delivery, or
mailing the same by registered or certified mail, return receipt requested, to
Tenant's Address. Notices given by Tenant to Landlord must be given by
registered or certified mail, return receipt requested, overnight express
delivery service or by courier service delivery against written receipt or
signed proof of delivery, to Landlord at Landlord's Address, with a copy to the
Property Manager, and to such other person and address as Landlord may from time
to time designate in writing.
39. MISCELLANEOUS.
(a) Landlord and Tenant each represents and warrants to the other
that it has dealt with no broker, agent or other intermediary in connection with
this Lease other than Landlord's Broker and Tenant's Broker, described in
Section 13 of the Fundamental Lease Provisions, and that insofar as it knows, no
other broker, agent or other intermediary negotiated this Lease or introduced
Tenant to Landlord or brought the Building to Tenant's attention for the lease
of space therein. Each of Landlord and Tenant agrees to indemnify, defend and
hold the other and its partners, employees, agents, their officers and partners,
harmless from and against any claims made by any broker, agent or other
intermediary claiming through the indemnifying party other than Landlord's
Broker or Tenant's Broker, with respect to a claim for broker's commission or
fee or similar compensation brought by any person in connection with this Lease,
provided that the other party has not in fact retained such broker, agent or
other intermediary. Landlord agrees to pay all commissions payable to Landlord's
Broker pursuant to a separate
30
<PAGE> 31
agreement between Landlord and Landlord's Broker. Landlord's Broker shall pay
Tenant's Broker A co-brokerage commission pursuant to a separate agreement
between Landlord's Broker and Tenant's Broker.
(b) The word "Tenant" as used in this Lease shall be construed to
mean tenants in all cases where there is more than one tenant, and the necessary
grammatical changes required to make the provisions hereof apply to
corporations, partnerships or individuals, men or women, shall in all cases be
assumed as though in each case fully expressed. This Lease shall not inure to
the benefit of any assignee, heir, legal representative, transferee or successor
of Tenant except in accordance with the provisions of Section 3 of this Lease.
Subject to the foregoing limitation, each provision hereof shall extend to and
shall, as the case may require, bind and inure to the benefit of Tenant and its
heirs, legal representatives successors and assigns.
(c) The term "Landlord" as used in this Lease means the fee owner
of the Building or, if different, the party holding and exercising the right, as
against all others (except space tenants of the Building) to possession of the
entire Building. In the event of the voluntary transfer of such ownership or
right to a successor-in-interest of Landlord, Landlord shall be freed and
relieved of all further liability and obligation hereunder which shall
thereafter accrue (and, as to any unapplied portion of Tenant's security
deposit, Landlord shall be relieved of all liability therefor upon transfer of
such portion to its successor in interest) and Tenant shall look solely to such
successor in interest for the performance of the covenants and obligations of
the Landlord hereunder (either in terms of ownership or possessory rights). The
successor in interest shall not (i) be liable for any previous act or omission
of a prior landlord; (ii) be subject to any rental offsets or defenses against a
prior landlord; (iii) be bound by any payment by Tenant of Annual Base Rent in
advance in excess of one (1) month's rent; or (iv) be liable for any security
not actually received by it. Subject to the foregoing, the provisions hereof
shall be binding upon and inure to the benefit of the successors and assigns of
Landlord.
(d) Notwithstanding anything to the contrary contained in this
Lease, it is expressly understood and agreed by Tenant that none of Landlord's
covenants, undertakings or agreements are made or intended as personal
covenants, undertakings or agreements by Landlord or its partners, shareholders
or trustees, or any of their respective partners, shareholders or trustees, and
any liability for damage or breach or nonperformance by Landlord, or for
Landlord's negligence, shall be collectible only out of Landlord's interest in
the Building and no personal liability is assumed by, nor at any time may be
asserted against, Landlord or its partners, shareholders or trustees or any of
its or their partners, shareholders, trustees, officers, agents, employees,
legal representatives, successors or assigns, if any; all such liability, if
any, being expressly waived and released by Tenant. Notwithstanding anything to
the contrary contained in this Lease, in no event shall Landlord be liable to
Tenant for any consequential damages, lost profits, loss of business or other
similar damages, regardless of whether the same arises out of the negligence of
Landlord, its agents or employees.
(e) Landlord and Landlord's agents have made no representation,
agreements, conditions, warranties, understandings, or promises, either oral or
written, other than as herein set forth, with respect to this Lease, the
Building, the Property, the Demised Premises, or otherwise.
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<PAGE> 32
(f) Time is of the essence of this Lease and all of its
provisions.
(g) If Landlord is delayed or prevented from performing any of its
obligations under this Lease by reason of causes beyond Landlord's control, the
period of such delay or prevention shall be deemed added to the time herein
provided for the performance of any such obligation by Landlord. If Tenant is
delayed or prevented from performing any of its non-monetary obligations under
this Lease (i.e., other than payment of rent) by reason of causes beyond
Tenant's control, the period of such delay or prevention shall be deemed added
to the time herein provided for the performance of any such non-monetary
obligation by Tenant.
40. PRIOR AGREEMENT, AMENDMENTS. This Lease, the exhibits, and any
riders attached hereto and forming a part hereof set forth all of the promises,
agreements, conditions, warranties, representations and understandings between
Landlord and Tenant relative to the Premises and this leasehold. No alteration,
amendment, modification, waiver, understanding or addition to this Lease shall
be binding unless reduced to writing and signed by the party against whom
enforcement is sought. Tenant agrees to execute any amendment to this Lease
required by a mortgagee of the Building, which amendment does not materially
adversely affect Tenant's rights or obligation hereunder.
41. CAPTIONS. The captions of the paragraphs in this Lease are
inserted and included solely for convenience and shall not be considered or
given any effect in construing the provisions hereof.
42. SEVERABILITY If any provision contained in this Lease shall, to
any extent, be invalid or unenforceable, the remainder of this Lease (and the
application of such provision to the persons or circumstances, if any, other
than those as to which it is invalid or unenforceable) shall not be affected
thereby, and each and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
43. GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State in which the Property is located.
44. DELIVERY FOR EXAMINATION. DELIVERY OF THE LEASE TO TENANT SHALL
NOT BIND LANDLORD IN ANY MANNER, AND NO LEASE OR OBLIGATIONS OF LANDLORD SHALL
ARISE UNTIL THIS INSTRUMENT IS SIGNED BY BOTH LANDLORD AND TENANT.
45. YEAR 2000. Landlord represents that, TO Landlord's knowledge, all
equipment, software product, appliances and systems necessary for the proper
operation of the elevators, HVAC systems, utility systems, security systems
(other than those installed by Tenant) and power supply systems located within
the Building and the Demised Premises (other than items installed by Tenant) are
Year 2000 Compliant. Notwithstanding the foregoing, Landlord makes no
representation or warranty as to the performance or functionality of any
equipment, products, appliances and systems located outside of the Building
(including, without limitation, those owned or controlled by any utility
provider servicing the Building). "Year 2000 Compliant" shall mean that neither
the performance nor the functionality of such systems and facilities will be
affected by the date "January 1, 2000" or specific dates prior or subsequent
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<PAGE> 33
thereto. In the event that such equipment, products, systems and facilities are
not Year 2000 Compliant and the performance or functionality of such equipment,
products, Systems and facilities are adversely affected as a result thereof,
then Landlord shall promptly take reasonable actions to restore such systems and
facilities to the performance and functionality levels which existed immediately
prior thereto.
46. SKYLIGHT. Landlord agrees to install a skylight in the Demised
Premises pursuant to plans prepared by Blackney Hayes Architects which have been
approved by Landlord and Tenant. Landlord agrees to contribute the initial
Forty-Thousand Dollars ($40,000) towards the actual "hard" costs incurred in
connection with the construction of the skylight. All hard costs in excess of
$40,000 shall be divided equally between Landlord and Tenant. Notwithstanding
the foregoing, in no event shall Landlord's total contribution exceed Sixty
Thousand Dollars ($60,000) in the aggregate.
[SIGNATURES ON NEXT PAGE]
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<PAGE> 34
IN WITNESS WHEREOF, the parties hereto have executed this Lease or
caused this Lease to be executed by their duly authorized representatives the
day and year first above written.
LANDLORD:
COLGATEDRIVE ASSOCIATES, L.P.,
a Pennsylvania limited partnership
By: COLGATEDRIVE, INC.,
ATTEST: its general partner
By:
- -------------------------- --------------------------------
Name: Michael O'Neill
Title: President
TENANT:
ATTEST e.spire COMMUNICATIONS, INC.
By:
- -------------------------- -----------------------------------------
Name: Riley M. Murphy
Title: Executive Vice President/ Secretary
34
<PAGE> 1
EXHIBIT 11
e.spire COMMUNICATIONS, INC.
STATEMENT RE COMPUTATION OF PER SHARE EARNINGS (LOSS)
($ IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Three months ended September 30, Nine months ended September 30,
1999 1998 1999 1998
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net Loss $ (70,019) $ (38,776) $ (186,584) $ (103,316)
Less: Preferred Stock Accretion 10,305 9,022 30,002 26,122
------------ ------------ ------------ ------------
Net Loss to Common Stockholders (80,324) (47,798) (216,586) (129,438)
Add: Convertible Preferred Dividends Saved 10,305 9,022 30,002 26,122
------------ ------------ ------------ ------------
Net Loss to Common Stockholders, Dilutive Basis $ (70,019) $ (38,776) $ (186,584) $ (103,316)
============ ============ ============ ============
AVERAGE SHARES OUTSTANDING
Weighted Average Number of
Common Shares Outstanding 50,267,001 47,732,934 49,550,227 43,574,670
Net additional shares assuming stock options and warrants
exercised and proceeds used to purchase treasury stock 4,904,199 10,909,882 4,904,199 10,909,882
------------ ------------ ------------ ------------
Weighted average number of common and
common equivalent shares outstanding 55,171,200 58,642,816 54,454,426 54,484,552
============ ============ ============ ============
PER SHARE AMOUNTS
Basic earnings per share $ (1.60) $ (1.00) $ (4.37) $ (2.97)
============ ============ ============ ============
Diluted earnings per share $ (1.27) $ (0.66) $ (3.43) $ (1.90)
============ ============ ============ ============
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM e.spire
COMMUNICATIONS, INC. FORM 10-Q FOR THE NINE MONTHS ENDED 9/30/99 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> SEP-30-1999
<CASH> 92,886
<SECURITIES> 0
<RECEIVABLES> 139,830
<ALLOWANCES> (21,297)
<INVENTORY> 5,699
<CURRENT-ASSETS> 217,118
<PP&E> 811,597
<DEPRECIATION> (139,329)
<TOTAL-ASSETS> 947,115
<CURRENT-LIABILITIES> 215,931
<BONDS> 734,103
0
270,969
<COMMON> 505
<OTHER-SE> (311,288)
<TOTAL-LIABILITY-AND-EQUITY> 947,115
<SALES> 0
<TOTAL-REVENUES> 188,885
<CGS> 118,250
<TOTAL-COSTS> 196,163
<OTHER-EXPENSES> (9,309)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 70,365
<INCOME-PRETAX> (186,584)
<INCOME-TAX> 0
<INCOME-CONTINUING> (186,584)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (186,584)
<EPS-BASIC> (4.37)
<EPS-DILUTED> (4.37)
</TABLE>
<PAGE> 1
EXHIBIT 99.1
e.spire COMMUNICATIONS, INC.
SUPPLEMENTAL FINANCIAL INFORMATION
YEAR TO DATE - SEPTEMBER 30, 1999
($'S IN THOUSANDS)
<TABLE>
<CAPTION>
Networks Placed Networks Placed Networks Placed Networks Placed Networks Placed
in Service in Service in Service in Service in Service
Prior to 12/31/95 During 1996 During 1997 During 1998 During 1999
----------------- --------------- ---------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Property, Plant & Equipment $ 170,896 $ 132,856 $ 177,587 $ 62,137 $ 117,757
Revenues $ 44,082 $ 30,065 $ 32,252 $ 4,257 $ 798
EBITDA $ 9,100 $ 1,074 $ (5,073) $ (11,185) $ (5,252)
EBIT $ (1,023) $ (6,432) $ (15,400) $ (14,397) $ (8,827)
Network Statistics (cumulative)
Access Lines Installed 40,842 24,181 57,260 9,682 -
Fiber Miles 46,351 40,145 46,355 24,112 17,100
Route Miles 766 478 408 152 335
Buildings Connected 1,702 930 1,302 210 1
Voice Grade Equivalents 771,511 411,750 520,925 70,210 -
</TABLE>
