EXHIBIT 10.13
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U.S. $80,000,000
Second Amended and Restated
Credit Agreement,
dated as of
December 19, 1997
(amending and restating the Amended and Restated
Credit Agreement, dated as of July 30, 1997),
among
▇▇▇▇▇▇ Holdings, Inc.,
as the Borrower,
Various Financial Institutions,
as the Lenders,
Canadian Imperial Bank of Commerce,
as Administrative Agent, Documentation Agent
and Syndication Agent
and
First Source Financial LLP,
as Co-Agent.
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Arranged by
Canadian Imperial Bank of Commerce
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TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.................................................
1.2. Use of Defined Terms..........................................
1.3. Cross-References..............................................
1.4. Accounting and Financial Determinations.......................
ARTICLE II COMMITMENTS, LOANS, BORROWING PROCEDURES AND NOTES
2.1. Commitments...................................................
2.1.1. Term Loan Commitment..................................
2.1.2. Revolving Loan Commitment.............................
2.1.3. Letter of Credit Commitment...........................
2.1.4. Lenders Not Required to Make the Loans................
2.1.5. Issuer Not Required to Issue Letters of Credit........
2.2. Reduction of Revolving Loan Commitment Amount.................
2.3. Borrowing Procedure...........................................
2.4. Continuation and Conversion Elections.........................
2.5. Funding.......................................................
2.6. Issuance Procedures...........................................
2.6.1. Other Lenders' Participation..........................
2.6.2. Disbursements.........................................
2.6.3. Reimbursement.........................................
2.6.4. Deemed Disbursements..................................
2.6.5. Nature of Reimbursement Obligations...................
2.7. Notes
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application.......................
3.1.1. Repayments and Prepayments............................
3.1.2. Application...........................................
3.2. Interest Provisions...........................................
3.2.1. Rates.................................................
3.2.2. Post-Maturity Rates...................................
3.2.3. Payment Dates.........................................
3.3. Fees..........................................................
3.3.1. Commitment Fee........................................
3.3.2. Administrative Agent's Fee............................
3.3.3. Letter of Credit Fee..................................
3.3.4. No Other Fees.........................................
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ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful....................................
4.2. Deposits Unavailable..........................................
4.3. Increased LIBO Rate Loan Costs, etc. .........................
4.4. Funding Losses................................................
4.5. Increased Capital Costs.......................................
4.6. Taxes.........................................................
4.7. Payments, Computations, etc. .................................
4.8. Sharing of Payments...........................................
4.9. Setoff........................................................
4.10. Defaulting Lenders............................................
ARTICLE V CONDITIONS TO BORROWING
5.1. Initial Borrowing.............................................
5.1.1. Resolutions, etc. ....................................
5.1.2. Delivery of Notes.....................................
5.1.3. Delivery of Certain Documents.........................
5.1.4. Refinancing or Payment of Outstanding Indebtedness,
etc. .................................................
5.1.5. Pro Forma Balance Sheet and Business Plan.............
5.1.6. Security Agreement Amendments.........................
5.1.7. Affirmation and Consent...............................
5.1.8. Pro Forma Compliance Certificate......................
5.1.9. Solvency Certificate..................................
5.1.10. Closing Date Certificate..............................
5.1.11. Opinions of Counsel...................................
5.1.12. Insurance.............................................
5.1.13. Closing Fees, Expenses, etc. .........................
5.1.14. Operating Contracts...................................
5.2. All Borrowings................................................
5.2.1. Compliance with Warranties, No Default, etc. .........
5.2.2. Credit Extension Requests.............................
5.2.3. Satisfactory Legal Form...............................
5.3. Borrowings for Related Acquisitions...........................
5.3.1. Related Acquisitions Consummated......................
5.3.2. Approvals.............................................
5.3.3. Collateral; Filings...................................
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc. ...........................................
6.2. Due Authorization, Non-Contravention, etc. ...................
6.3. Government Approval, Regulation, etc. ........................
6.4. Validity, etc. ...............................................
6.5. Financial Information.........................................
6.6. No Material Adverse Change....................................
6.7. Litigation, Labor Controversies, etc. ........................
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6.8. Compliance With Laws; Authorizations..........................
6.9. Subsidiaries..................................................
6.10. Ownership of Properties.......................................
6.11. Taxes.........................................................
6.12. Pension and Welfare Plans.....................................
6.13. Environmental Warranties......................................
6.14. Regulations G, U and X........................................
6.15. Accuracy of Information.......................................
6.16. Operating Contracts...........................................
6.17. Solvency......................................................
6.18. Senior Unsecured Note Instruments.............................
6.19. No Contractual or Other Restrictions..........................
6.20. True Copies of Documents......................................
6.21. Absence of any Undisclosed Liabilities........................
ARTICLE VII COVENANTS
7.1. Affirmative Covenants.........................................
7.1.1. Financial Information, Reports, Notices, etc. ........
7.1.2. Compliance with Laws, etc. ...........................
7.1.3. Maintenance of Operating Contracts....................
7.1.4. Conduct of Business; Separate Existence; Maintenance
of Authorizations.....................................
7.1.5. Maintenance of Properties.............................
7.1.6. Insurance.............................................
7.1.7. Books and Records.....................................
7.1.8. Environmental Covenant................................
7.1.9. Additional Collateral.................................
7.1.10. Future Subsidiaries...................................
7.1.11. Use of Proceeds.......................................
7.1.12. Interest Rate Protection..............................
7.2. Negative Covenants............................................
7.2.1. Business Activities...................................
7.2.2. Indebtedness..........................................
7.2.3. Liens.................................................
7.2.4. Financial Condition...................................
7.2.5. Investments...........................................
7.2.6. Restricted Payments, etc. ............................
7.2.7. Limitation on Management and Advisory Fees............
7.2.8. Take or Pay Contracts.................................
7.2.9. Consolidation, Merger, etc. ..........................
7.2.10. Asset Dispositions, etc. .............................
7.2.11. Modification of Certain Agreements....................
7.2.12. Transactions with Affiliates..........................
7.2.13. Negative Pledges, Restrictive Agreements, etc. .......
7.2.14. Changes to Fiscal Year
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7.2.15. Rental Obligations.................................
ARTICLE VIII EVENTS OF DEFAULT
8.1. Listing of Events of Default.................................
8.1.1. Non-Payment of Obligations.........................
8.1.2. Breach of Warranty.................................
8.1.3. Non-Performance of Certain Covenants and
Obligations........................................
8.1.4. Non-Performance of Other Covenants and Obligations.
8.1.5. Default on Other Indebtedness......................
8.1.6. Judgments..........................................
8.1.7. Pension Plans......................................
8.1.8. Control of the Borrower............................
8.1.9. Bankruptcy, Insolvency, etc. ......................
8.1.10. Impairment of Security, etc. ......................
8.1.11. Impairment of Operating Contracts, etc. ...........
8.2. Action if Bankruptcy.........................................
8.3. Action if Other Event of Default.............................
ARTICLE IX THE AGENTS AND AGENT-RELATED PERSONS
9.1. Actions and Indemnity........................................
9.2. Funding Reliance, etc. ......................................
9.3. Exculpation..................................................
9.4. Successor....................................................
9.5. Loans by CIBC................................................
9.6. Credit Decisions.............................................
9.7. Copies, etc. ................................................
ARTICLE X MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc. ...................................
10.2. Notices......................................................
10.3. Payment of Costs and Expenses ...............................
10.4. Indemnification..............................................
10.5. Survival.....................................................
10.6. Severability.................................................
10.7. Headings.....................................................
10.8. Execution in Counterparts, Effectiveness, etc. ..............
10.9. Governing Law; Entire Agreement..............................
10.10. Successors and Assigns.......................................
10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes..............................................
10.11.1. Assignments........................................
10.11.2. Participations.....................................
10.12. Other Transactions...........................................
10.13. Certain Collateral and Other Matters; Hedging Obligation
Information..................................................
10.14. Forum Selection and Consent to Jurisdiction..................
10.15. Waiver of Jury Trial.........................................
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SCHEDULE I Disclosure Schedule
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Closing Date Certificate
EXHIBIT G - Form of Officer's Solvency Certificate
EXHIBIT H - Form of Security Agreement Amendment
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 19,
1997, among ▇▇▇▇▇▇ HOLDINGS, INC., a Delaware corporation (the "Borrower"), the
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various financial institutions as are, or may from time to time become, parties
hereto (collectively, the "Lenders"), and CANADIAN IMPERIAL BANK OF COMMERCE,
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acting by or through one or more of its affiliates, branches or agencies
("CIBC"), as administrative agent (in such capacity, the "Administrative
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Agent"), as documentation agent (in such capacity, the "Documentation Agent")
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for the Lenders and as syndication agent (in such capacity, the "Syndication
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Agent").
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W I T N E S S E T H:
WHEREAS, the Borrower, through its Subsidiaries (such capitalized term, and
other terms used herein, to have the meanings provided in Section 1.1), is
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engaged in the business of providing telephone service to prisons for use by
prisoners located in such prisons, together with services ancillary thereto, as
well as providing general pay telephone services;
WHEREAS, pursuant to the Credit Agreement, dated as of December 27, 1996
(the "Original Credit Agreement"), among the Borrower, certain financial
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institutions from time to time party thereto (the "Original Lenders") and CIBC,
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as administrative agent and documentation agent thereunder, the Original Lenders
made and were committed to make extensions of credit to the Borrower on the
terms and conditions set forth therein;
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated as of
July 30, 1997 (as amended by Amendment No. 1 thereto, dated as of November 26,
1997, and as further amended, supplemented and otherwise modified prior to the
date hereof, the "Existing Credit Agreement"), among the Borrower, certain
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financial institutions from time to time party thereto (the "Existing Lenders")
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and CIBC, as administrative agent and documentation agent thereunder, the
parties thereto amended and restated the Original Credit Agreement in its
entirety;
WHEREAS, the Borrower has requested that the Existing Credit Agreement be
further amended and restated in its entirety to become effective and binding on
the Borrower pursuant to the terms of this Agreement, and the Lenders (including
the Existing Lenders) have agreed (subject to the terms of this Agreement) to
amend and restate the Existing Credit Agreement in its entirety to read as set
forth in this Agreement, and it has been agreed by the parties to the Existing
Credit Agreement that (a) the commitments which the Existing Lenders have agreed
to extend to the Borrower under the Existing Credit Agreement shall be extended
or advanced upon the amended and restated terms and conditions contained in this
Agreement, and (b) any outstanding credit extensions made and other Obligations
outstanding under the Existing Credit Agreement shall be governed by and deemed
to be outstanding under the amended and restated
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terms and conditions contained in this Agreement, with the intent that the terms
of this Agreement shall supersede the terms of the Existing Credit Agreement
(which shall hereafter have no further effect upon the parties thereto, other
than for accrued fees and expenses, and indemnification provisions, accrued and
owing under the terms of the Existing Credit Agreement on or prior to the date
hereof or arising under the terms of the Existing Credit Agreement); provided,
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that any Rate Protection Agreements with any one or more Existing Lenders (or
their respective Affiliates) shall continue unamended and in full force and
effect;
WHEREAS, in connection with so amending and restating the Existing Credit
Agreement and at the time of the effectiveness of such amendment and
restatement, the Borrower desires to obtain pursuant to this Agreement from the
Lenders
(a) a Term Loan Commitment pursuant to which Borrowings of Term Loans
may be made, in a maximum aggregate principal amount not to exceed
$55,000,000, to the Borrower in multiple Borrowings occurring on and
subsequent to the Closing Date but prior to the Term Loan Commitment
Termination Date; and
(b) a Revolving Loan Commitment pursuant to which (i) Borrowings of
Revolving Loans, in a maximum aggregate outstanding principal amount not to
exceed $25,000,000, may be made to the Borrower from time to time and (ii)
Letters of Credit, in a maximum Stated Amount not to exceed $5,000,000, may
be issued for the account of the Borrower from time to time, in each case
from and subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date; provided that in no event shall the aggregate
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principal amount of all Revolving Loans and all Letter of Credit
Outstandings exceed $25,000,000 at any time,
with the proceeds of the Credit Extensions to be used for the purposes set forth
in Section 7.1.11;
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WHEREAS, all Loans and other Obligations shall continue to be and shall be
fully guaranteed pursuant to the Subsidiary Guaranty and fully secured by, among
other things, the Borrower Security Agreement, the AmeriTel Security Agreement,
the ▇▇▇▇▇▇ Security Agreement, the ▇▇▇▇▇▇ Carolina Security Agreement, the
▇▇▇▇▇▇ STC Security Agreement, the ▇▇▇▇▇▇ Invision Security Agreement, the
Borrower Pledge Agreement, the Investor Pledge Agreement and the ▇▇▇▇▇▇ Pledge
Agreement; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to so amend and restate
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the Existing Credit Agreement to extend such Commitments and make such Loans to
the Borrower;
NOW, THEREFORE, the parties hereto hereby agree to amend and restate the
Existing Credit Agreement, and the Existing Credit Agreement is hereby amended
and restated, as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Defined Terms. The following terms (whether or not
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underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquisition" means any transaction, or any series of related transactions,
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consummated on or after the Closing Date, by which the Borrower or any of its
Subsidiaries (a) acquires any business (whether through purchase of assets,
equity interests, merger or otherwise) or all or substantially all of the assets
of any firm, corporation or division thereof or (b) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than by reason of the happening of a contingency) or a majority (by
percentage or voting power) of the outstanding equity interests of a Person
(other than a corporation or a natural person).
"Administrative Agent" is defined in the preamble and includes each other
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Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to Section 9.4.
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"Affiliate" of any Person means any other Person which, directly or
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indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis)
or other equity or membership interests having ordinary voting power for
the election of directors or managing general partners or members; or
(b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Affirmation and Consent" means the Affirmation and Consent to be executed
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and delivered by each of ▇▇▇▇▇▇, AmeriTel, ▇▇▇▇▇▇ STC, ▇▇▇▇▇▇ Invision and
▇▇▇▇▇▇ Carolina pursuant to Section 5.1.7, in form and substance satisfactory to
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the Administrative Agent, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Agent" means, as the context may require, the Administrative Agent, the
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Documentation Agent or the Syndication Agent; collectively, the "Agents".
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"Agent-Related Persons" means the Agents, any successor thereto appointed
---------------------
in accordance with Section 9.4 and their respective Affiliates (including CIBC,
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in its role as
3
Arranger of the Commitments and Loans), together with the officers, directors,
employees and agents of each of the foregoing Persons.
"Agreement" means, on any date, the Existing Credit Agreement, as amended
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and restated hereby and as from time to time further amended, supplemented,
amended and restated or otherwise modified.
"Alternate Base Rate" means, on any date and with respect to all Base Rate
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Loans, a fluctuating rate of interest per annum equal to the higher of:
(a) the rate of interest most recently announced or established by
CIBC at its Domestic Office as its base, reference or prime, as applicable,
rate for Dollar loans; and
(b) the Federal Funds Rate plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by CIBC in connection with extensions of credit. Changes in
the rate of interest on that portion of any Loans maintained as Base Rate Loans
will take effect simultaneously with each change in the Alternate Base Rate.
The Administrative Agent will give notice promptly to the Borrower and the
Lenders of changes in the Alternate Base Rate.
"AmeriTel" means AmeriTel Pay Phones, Inc., a Missouri corporation.
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"AmeriTel Security Agreement" means the Security Agreement executed and
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delivered by AmeriTel pursuant to the Original Credit Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Applicable Base Rate Margin" means, with respect to any Base Rate Loan,
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the per annum percentage set forth below opposite the Total Debt to EBITDA
Ratio, as determined initially in accordance with the Compliance Certificate
delivered pursuant to Section 5.1.8, and thereafter in accordance with the
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Compliance Certificate most recently delivered pursuant to clause (d) of Section
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7.1.1:
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Total Debt Applicable
to EBITDA Ratio Base Rate Margin
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greater than or equal to 5.0:1 2.00%
greater than or equal to 4.0:1 but 1.75%
less than 5.0:1
greater than or equal to 3.0:1 but 1.25%
less than 4.0:1
less than 3.0:1 0.75%
provided that the Applicable Base Rate Margin for the period from the Effective
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Date through (and including) the completion of the General Syndication, in any
event, shall be 2.25% per annum; provided further that there shall be no
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downward adjustment of the Applicable Base Rate
4
Margin below 2.00% until, in any event, December 31, 1998; provided further
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that if the Borrower shall fail to deliver a Compliance Certificate for a given
Fiscal Quarter within the time required by clause (d) of Section 7.1.1, or if
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any Event of Default shall have occurred and be continuing, then the Applicable
Base Rate Margin for the period from the 46th day after the first day of such
Fiscal Quarter through (but excluding) the date such Compliance Certificate is
delivered shall be 2.00% for the Fiscal Quarter during which the Compliance
Certificate was not timely delivered. Any reduction in the Applicable Base Rate
Margin shall be effective beginning on the date that is three days following the
date on which the Administrative Agent receives the Borrower's Compliance
Certificate pursuant to clause (d) of Section 7.1.1. If the Applicable Base Rate
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Margin is required to be increased as a result of an increase in the most
recently determined Total Debt to EBITDA Ratio, such higher Applicable Base Rate
Margin shall be effective as of and retroactive to the first day of the Fiscal
Quarter in which such Compliance Certificate was required to be delivered.
"Applicable LIBO Rate Margin" means, with respect to any LIBO Rate Loan,
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the per annum percentage set forth below opposite the Total Debt to EBITDA
Ratio, as determined initially in accordance with the Compliance Certificate
delivered pursuant to Section 5.1.8, and thereafter in accordance with the
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Compliance Certificate most recently delivered pursuant to clause (d) of Section
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7.1.1:
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Total Debt Applicable
to EBITDA Ratio LIBO Rate Margin
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greater than or equal to 5.0:1 3.25%
greater than or equal to 4.0:1 but 3.00%
less than 5.0:1
greater than or equal to 3.0:1 but 2.50%
less than 4.0:1
less than 3.0:1 2.00%
provided that the Applicable LIBO Rate Margin for the period from the Effective
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Date through (and including) the completion of the General Syndication, in any
event, shall be 3.50% per annum; provided further that if the Borrower shall
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fail to deliver a Compliance Certificate for a given Fiscal Quarter within the
time required by clause (d) of Section 7.1.1, or if any Event of Default shall
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have occurred and be continuing, then the Applicable LIBO Rate Margin for the
period from the 46th day after the first day of such Fiscal Quarter through (but
excluding) the date such Compliance Certificate is delivered shall be 3.25% for
the Fiscal Quarter during which the Compliance Certificate was not timely
delivered. Any reduction in the Applicable LIBO Rate Margin shall be effective
beginning on the date that is three days following the date on which the
Administrative Agent receives the Borrower's Compliance Certificate pursuant to
clause (d) of Section 7.1.1. If the Applicable LIBO Rate Margin is required to
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be increased as a result of an increase in the most recently determined Total
Debt to EBITDA Ratio, such higher Applicable LIBO Rate Margin shall be effective
as of and retroactive to the first day of the Fiscal Quarter in which such
Compliance Certificate was required to be delivered.
"Arranger" means CIBC.
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"Assignee Lender" is defined in Section 10.11.1.
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"Authorized Officer" means, relative to any Obligor, those of its officers
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whose signatures and incumbency shall have been certified to the Administrative
Agent and the Lenders pursuant to Section 5.1.1.
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"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
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determined by reference to the Alternate Base Rate.
"Borrower" is defined in the preamble.
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"Borrower Pledge Agreement" means the Pledge Agreement executed and
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delivered by the Borrower pursuant to the Original Credit Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Borrower Security Agreement" means the Security Agreement executed and
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delivered by the Borrower pursuant to the Original Credit Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Borrowing" means Loans of the same type and, in the case of LIBO Rate
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Loans, having the same Interest Period made by all Lenders on the same Business
Day and pursuant to the same Borrowing Request in accordance with Section 2.1.
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"Borrowing Request" means a loan request and certificate duly executed by
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an Authorized Officer of the Borrower, substantially in the form of Exhibit B-1
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hereto.
"Business Day" means:
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(a) any day which is neither a Saturday nor a Sunday nor a legal
holiday on which banks are authorized or required to be closed in New York,
New York; and
(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day which is covered in clause (a) immediately above
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and on which dealings in Dollars are carried on in the London interbank
market.
"Capital Expenditures" means, for any period, the sum of:
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(a) the aggregate amount of all expenditures of the Borrower and its
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
6
"Capitalized Lease Liabilities" means all monetary obligations of the
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Borrower or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as capitalized leases, and,
for purposes of this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"Cash Equivalent Investment" means, at any time:
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(a) any evidence of Indebtedness, maturing not more than one year after
such time, issued or guaranteed by the United States Government or any agency
thereof;
(b) commercial paper, maturing not more than nine months from the date of
issue, which is issued by
(i) a corporation (other than an Affiliate of any Obligor) organized
under the laws of any state of the United States or of the District of Columbia
and rated at least A-1 by Standard & Poor's Ratings Group or at least P-1 by
▇▇▇▇▇'▇ Investors Service, Inc., or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers acceptance, maturing not more
than one year after such time, which is issued by either
(i) a commercial banking institution that is a member of the Federal
Reserve System and has a combined capital and surplus and undivided profits of
not less than $500,000,000, or
(ii) any Lender; or
(d) any repurchase agreement entered into with any Lender (or other
commercial banking institution of the stature referred to in clause (c)(i))
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which
(i) is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (a) through (c), and
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(ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of such Lender
(or other commercial banking institution) thereunder.
"Cash Interest Expense" means, for any period, the sum of (a) Interest
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Expense required to be paid in cash and (b) the amount of Preferred Dividends,
in each case for such period.
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"Casualty Event" means the damage, destruction or condemnation, as the case
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may be, of property of the Borrower or any of its Subsidiaries.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
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Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
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Liability Information System List.
"Change in Control" means
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(a) the acquisition directly or indirectly by any Person, or two or more
Persons acting in concert, other than the Persons set forth in clause (b) below,
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of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 25% or more of
the outstanding shares of voting stock of the Borrower;
(b) the failure of (i) EUFCC and Onyx to own and control at least 10% of
the common stock of the Borrower in the aggregate on a fully diluted basis and
free and clear of all Liens, (ii) the Existing ▇▇▇▇▇▇ Shareholders to own and
control at least 10% of the common stock of the Borrower in the aggregate on a
fully diluted basis and free and clear of Liens, (iii) the Borrower to own and
control 100% of the outstanding shares of voting and non-voting stock of each of
AmeriTel, ▇▇▇▇▇▇, ▇▇▇▇▇▇ STC and ▇▇▇▇▇▇ Invision, in each case on a fully
diluted basis and free and clear of all Liens and other encumbrances (except in
favor of the Administrative Agent, on behalf of the Lenders) or (iv) the
majority of the Board of Directors of the Borrower to be comprised of the same
members as those who serve on such Board on the Effective Date; or
(c) any "Change in Control" or "Change of Control" as defined in any
Senior Unsecured Note Instrument.
"CIBC" is defined in the preamble.
---- --------
"Closing Date" means the date all closing conditions set forth in Section
------------ -------
5.1 are satisfied and the initial Borrowing is made under the amendment and
---
restatement of this Agreement, but in no event later than December 31, 1997.
"Closing Date Certificate" means a certificate of a duly Authorized Officer
------------------------
of the Borrower executed and delivered pursuant to Section 5.1.10, substantially
--------------
in the form of Exhibit F hereto.
---------
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
----
otherwise modified from time to time.
"Commitment" means, as the context may require, a Lender's Revolving Loan
----------
Commitment, Term Loan Commitment or Letter of Credit Commitment.
8
"Commitment Amount" means, as the context may require, the Revolving Loan
-----------------
Commitment Amount, the Term Loan Commitment Amount or the Letter of Credit
Commitment Amount.
"Commitment Termination Date" means, as the context may require, the
---------------------------
Revolving Loan Commitment Termination Date or the Term Loan Commitment
Termination Date.
"Commitment Termination Event" means:
----------------------------
(a) the occurrence of any Default described in clauses (a) through
-----------
(d) of Section 8.1.9 with respect to the Borrower or any Subsidiary; or
--- -------------
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of any Loans to be due and payable pursuant
to Section 8.3, or
-----------
(ii) in the absence of such declaration, the giving of notice by the
Administrative Agent, acting at the direction of the Required Lenders, to the
Borrower that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly executed by the financial
----------------------
Authorized Officer of the Borrower, substantially in the form of Exhibit E
---------
hereto, together with such changes as the Administrative Agent may from time to
time reasonably request for purposes of monitoring the Borrower's compliance
herewith.
"Contingent Liability" means any agreement, undertaking or arrangement by
--------------------
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
------------------------------
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit D hereto.
---------
"Controlled Group" means all members of a controlled group of corporations
----------------
and all members of a controlled group of trades or businesses (whether or not
incorporated) under
9
common control which, together with the Borrower, are treated as a single
employer under Section 414(b) or 414(c) of the Code or section 4001 of ERISA.
"Credit Extension" means, as the context may require,
----------------
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of any Stated
Expiry Date of any Existing Letter of Credit, by the Issuer and
participation in such Letter of Credit by the Lenders pursuant to the terms
of this Agreement.
"Credit Extension Request" means, as the context may require, any Borrowing
------------------------
Request or Issuance Request.
"Debt Service" means, for any period, (a) all maturities of short-term
------------
Funded Debt and all current maturities of long term Funded Debt (including
actual scheduled payments in respect of Capitalized Lease Liabilities) during
such period, plus (b) Cash Interest Expense during such period.
----
"Default" means any Event of Default or any condition, occurrence or event
-------
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disbursement" is defined in Section 2.6.2.
------------ -------------
"Disbursement Date" is defined in Section 2.6.2.
----------------- -------------
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
-------------------
Schedule I, as it may be amended, supplemented or otherwise modified from time
----------
to time by the Borrower with the written consent of the Administrative Agent and
the Required Lenders.
"Documentation Agent" is defined in the preamble.
------------------- --------
"Dollar" and the sign "$" mean lawful money of the United States.
------ -
"Domestic Office" means, relative to any Lender, the office of such Lender
---------------
designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by written notice from such Lender, as the case may be, to each other
Person party hereto.
"EBITDA" means, with respect to any applicable fiscal period, the Net
------
Income (excluding profits generated from the amortization of negative good will)
of the Borrower and its Subsidiaries on a consolidated basis before taxes for
such period (excluding pre-tax gains or losses of the Borrower and its
Subsidiaries on a consolidated basis on the sale of assets (other than the sale
of inventory in the ordinary course of business) and excluding other pre-tax
10
extraordinary gains or losses of the Borrower and its Subsidiaries on a
consolidated basis), plus Interest Expense, depreciation and amortization
----
deducted in determining Net Income for such period; provided, however, that with
-------- -------
respect to EBITDA calculated for a Rolling Period (unless otherwise specified),
(i) for the period ended on the Closing Date, EBITDA shall include the sum of
EBITDA for the period from January 1, 1997 through the end of the month prior to
the Closing Date, adjusted to be annualized and adjusted to include Permitted
Acquisitions and/or Related Acquisitions (the "Acquisition Adjustment") made
----------------------
during such period (such adjustments to be satisfactory to the Administrative
Agent) as if such acquisitions had been made at the beginning of such period;
(ii) for the period ended December 31, 1997, EBITDA shall include the sum of
EBITDA for the Rolling Period ended December 31, 1997, adjusted by the
Acquisition Adjustment (excluding any adjustment for any Related Acquisition);
(iii) for the period ended March 31, 1998, EBITDA shall include the sum of
EBITDA for the Fiscal Quarter ended March 31, 1998, multiplied by four, adjusted
by the Acquisition Adjustment; (iv) for the period ended June 30, 1998, EBITDA
shall include the sum of EBITDA for the two Fiscal Quarters ended June 30, 1998,
multiplied by two, adjusted by the Acquisition Adjustment; (v) for the period
ended September 30, 1998, EBITDA shall include the sum of EBITDA for the three
Fiscal Quarters ended September 30, 1998, multiplied by 1.333, adjusted by the
Acquisition Adjustment; (vi) for the period ended December 31, 1998 and for each
Rolling Period thereafter, EBITDA shall include the sum of EBITDA for such
period, adjusted by the Acquisition Adjustment; provided, further, however, that
-------- ------- -------
if any New Installations are consummated during any Rolling Period or during the
period ended on the last day of any such Fiscal Quarter, EBITDA for such Rolling
Period or period shall be deemed to include an amount for EBITDA for such New
Installations equal to the amount set forth in the business plan (which shall be
based on assumptions deemed reasonable by the Administrative Agent in its
discretion) submitted by the Borrower to the Official Body permitting such New
Installations.
"EBITDA to Cash Interest Expense Ratio" means, as at the last day of any
-------------------------------------
Fiscal Quarter, the ratio of (a) EBITDA for such Fiscal Quarter to (b) Cash
--
Interest Expense for such Fiscal Quarter.
"EBITDA to Fixed Charges Ratio" means, as at the last day of any Fiscal
-----------------------------
Quarter, the ratio of (a) EBITDA for the Rolling Period ended on the last day of
such Fiscal Quarter to (b) (i) Debt Service for the Rolling Period ended on the
--
last day of such Fiscal Quarter, plus (ii) Capital Expenditures made during the
----
Rolling Period ended on the last day of such Fiscal Quarter, plus (iii) Taxes
----
paid in cash or accrued during the Rolling Period ended on the last day of such
Fiscal Quarter, plus (iv) the amount expended for Permitted Acquisitions for the
----
Rolling Period ended on the last day of such Fiscal Quarter; provided, however,
-------- -------
that (A) for the period ended March 31, 1998, EBITDA shall include EBITDA for
the Fiscal Quarter ended March 31, 1998, multiplied by four, and the amount
computed in accordance with clause (b) above shall include the sum of the amount
----------
provided for in clause (b) above (excluding the purchase price of any
----------
acquisitions made during such period) for the Fiscal Quarter ended March 31,
1998, multiplied by four; (B) for the period ended June 30, 1998, the amount
computed in accordance with clause (b) above shall include the sum of the amount
----------
provided for in clause (b) above for the two Fiscal Quarters ended June 30,
----------
1998, multiplied by two; (C) for the period ended September 30, 1998, the amount
computed in accordance with clause (b) above shall include the sum of the amount
----------
11
provided for in clause (b) above for the three Fiscal Quarters ended September
----------
30, 1998, multiplied by 1.33; and (D) for the period ended December 31, 1998 and
for each Rolling Period thereafter, the amount computed in accordance with
clause (b) above shall include the actual amount provided for in clause (b)
---------- ----------
above.
"Effective Date" means the date this Agreement becomes effective pursuant
--------------
to Section 10.8.
------------
"Environmental Laws" means all applicable federal, state or local statutes,
------------------
laws, ordinances, codes, rules, regulations and guidelines (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"EUFCC" means ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Capital Corporation, a Texas corporation.
-----
"Event of Default" is defined in Section 8.1.
---------------- -----------
"Existing Credit Agreement" is defined in the third recital.
------------------------- ----- -------
"Existing Lenders" is defined in the third recital.
---------------- ----- -------
"Existing ▇▇▇▇▇▇ Shareholders" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
----------------------------
Jr., immediate family members of the foregoing Persons and trusts for family
members of the foregoing Persons.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
------------------
annum equal for each day during such period to:
(a) 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
(b) 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 CIBC
from three federal funds brokers of recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated as of December 12,
----------
1997, between the Borrower, CIBC and First Source Financial LLP.
"Fiscal Quarter" means any quarter of a Fiscal Year.
--------------
12
"Fiscal Year" means any period of twelve consecutive calendar months ending
-----------
on December 31; references to a Fiscal Year with a number corresponding to any
calendar year (e.g., the "1997 Fiscal Year") refer to the Fiscal Year ending on
the December 31 occurring during such calendar year.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
------------
or any successor thereto.
"Funded Debt" means, on any date of determination, the sum of the aggregate
-----------
amount of all Indebtedness of the type set forth in clauses (a), (b), (c) and
----------- --- ---
(g) (insofar as such Contingent Liability is in respect of Indebtedness of the
---
type set forth in clause (a), (b) or (c)) of the definition of Indebtedness as
---------- --- ---
of such date, and in any event includes the Loans and the Senior Unsecured
Notes.
"GAAP" is defined in Section 1.4.
---- -----------
"General Syndication" means the syndication of the Commitments to a group
-------------------
of Lenders acceptable to the Borrower and the Administrative Agent.
"Hazardous Material" means:
------------------
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement (including
consent decrees and administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous waste,
substance or material, all as amended or hereafter amended.
"Hedging Obligations" means, with respect to any Person, all liabilities of
-------------------
such Person under interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
------ ------ ------ ---------
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"ILD" means Intelicall Long Distance, Inc., a Delaware corporation.
---
13
"ILD Acquisition" means the acquisition of ILD (or of certain of its
---------------
assets) by the Borrower and/or any of its Subsidiaries.
"Impermissible Qualification" means, relative to the opinion or
---------------------------
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification:
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters relevant
to such financial statement; or
(c) which relates to the treatment or classification of any item in such
financial statement and which, as a condition to its removal, would require an
adjustment to such item the effect of which would be to cause such Obligor to be
in default of any of its obligations under Section 7.2.4.
-------------
"including" means including without limiting the generality of any
---------
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
------- -------
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
------------
(a) all obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments;
(b) all obligations, contingent or otherwise, relative to the face amount
of all letters of credit, whether or not drawn, and banker's acceptances, in
each case issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which have been
or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) all other items which, in accordance with GAAP, would be included as
liabilities on the liability side of the balance sheet of such Person as of the
date at which Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging Obligations;
(f) whether or not so included as liabilities in accordance with GAAP, all
obligations of such Person to pay the deferred purchase price of property or
services, and indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by
14
such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse; and
(g) all Contingent Liabilities of such Person in respect of any of the
foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer.
"Indemnified Liabilities" is defined in Section 10.4.
----------------------- ------------
"Indemnified Parties" is defined in Section 10.4.
------------------- ------------
"Interest Expense" means, for any period, the total interest expense
----------------
(including commitment fees payable under this Agreement), that is payable by the
Borrower and its Subsidiaries, on a consolidated basis, in respect of Funded
Debt for such period, all as computed in accordance with GAAP.
"Interest Period" means, relative to any LIBO Rate Loans, the period
---------------
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4
----------- ---
and ending on (but excluding) the day which numerically corresponds to such date
one, two, three, six or (subject to availability to all Lenders) nine or twelve
months thereafter (or, if such month has no numerically corresponding day, on
the last Business Day of such month), in either case as the Borrower may select
in its relevant notice pursuant to Section 2.3 or 2.4; provided, however, that
----------- --- -------- -------
(a) the Borrower shall not be permitted to select Interest Periods to be
in effect at any one time which have expiration dates occurring on more than
four different dates;
(b) Interest Periods commencing on the same date for Loans comprising part
of the same Borrowing shall be of the same duration;
(c) if an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next following Business Day
(unless such next following Business Day is the first Business Day of a calendar
month, in which case such Interest Period shall end on the Business Day next
preceding such numerically corresponding day), and Interest Periods shall be
selected to coincide with amortization and commitment reduction dates; and
(d) no Interest Period may end later than the date set forth in clause (a)
----------
of the definition of "Revolving Loan Commitment Termination Date", in the case
------------------------------------------
of Interest Periods for Revolving Loans, or the date set forth in clause (a) of
the definition of "Term Loan Commitment Termination Date", in the case of
Interest Periods for Term Loans.
15
"Investment" means, relative to any Person,
----------
(a) any loan or advance made by such Person to any other Person (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in any other
Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"Investor" means EUFCC, Onyx, the Existing ▇▇▇▇▇▇ Shareholders, CIBC WG
--------
Argosy Merchant Fund II and each other owner of the capital stock of the
Borrower.
"Investor Pledge Agreement" means, as the context may require, each Pledge
-------------------------
Agreement executed and delivered by an Investor pursuant to the Original Credit
Agreement or Section 7.1.10, substantially in the form of Exhibit H-3 to the
--------------
Original Credit Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Issuance Request" means a Letter of Credit request and certificate duly
----------------
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit B-2 hereto, and any additional forms that may be requested by the
-----------
Issuer.
"Issuer" means CIBC in its capacity as issuer of the Letters of Credit or
------
any replacement therefor mutually agreed upon by the Borrower and the
Administrative Agent.
"Lender Assignment Agreement" means a Lender Assignment Agreement, executed
---------------------------
and delivered pursuant to Section 10.11.1, substantially in the form of Exhibit
--------------- -------
D hereto.
-
"Lenders" is defined in the preamble.
------- --------
"Letter of Credit" is defined in Section 2.1.3.
---------------- -------------
"Letter of Credit Commitment" means, with respect to the Issuer, the
---------------------------
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3 and,
-------------
with respect to each Lender, the obligations of such Lender to participate in
such Letters of Credit pursuant to Section 2.6.1.
-------------
"Letter of Credit Commitment Amount" means, on any date, a maximum amount
----------------------------------
of $5,000,000, as such amount may be reduced from time to time pursuant to the
terms hereof (or, if less, the then existing Revolving Loan Commitment Amount).
16
"Letter of Credit Outstandings" means, on any date, an amount equal to the
-----------------------------
sum of
(a) the then aggregate amount which is undrawn and available under all
issued and outstanding Letters of Credit,
plus
----
(b) the then aggregate amount of all unpaid and outstanding Reimbursement
Obligations.
"LIBO Rate" means, relative to each day during each Interest Period for
---------
LIBO Rate Loans, the rate of interest per annum determined on the basis of the
rate for deposits in Dollars for a period equal to such Interest Period
commencing on the first day of such Interest Period and appearing on Page 3750
of the Telerate screen at or about 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period or, if such rate does not
appear on such page or otherwise on such service, such rate shall be determined
by reference to such other publicly available service for displaying Eurodollar
rates as may be agreed between the Administrative Agent and the Borrower or, in
the absence of such agreement, the "LIBO Rate" shall be the rate of interest per
annum equal to the average (rounded upwards, if necessary, to the nearest 1/16
of 1%) of the rates per annum at which Dollar deposits in immediately available
funds are offered by CIBC to prime international banks in the offshore dollar
market at or about 11:00 a.m. New York time two Business Days prior to the
beginning of such Interest Period for delivery on the first day of such Interest
Period, and in an amount approximately equal to the amount of CIBC's LIBO Rate
Loan and for a period approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
--------------
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
----------------------------
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
----------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on the date, and the applicable rates furnished to
and received by the Administrative Agent from CIBC, two Business Days before the
first day of such Interest Period.
"LIBOR Office" means, relative to any Lender, the office of such Lender
------------
designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other
17
office of a Lender as designated from time to time by notice from such Lender to
the Borrower and the Administrative Agent, whether or not outside the United
States, which shall be making or maintaining LIBO Rate Loans of such Lender
hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO
------------------------
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as defined
in Regulation D of the F.R.S. Board, having a term approximately equal or
comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
----
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means, as the context may require, either a Revolving Loan or a Term
----
Loan of any type.
"Loan Document" means this Agreement, the Notes, Letters of Credit, the Fee
-------------
Letter, each Security Agreement, each Pledge Agreement, the Subsidiary Guaranty,
the Affirmation and Consent, each supplement and amendment to any of the
foregoing and each other agreement, document or instrument delivered in
connection with this Agreement and such other agreements, whether or not
specifically mentioned herein or therein.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, revenues, properties, condition (financial or otherwise),
results of operations or prospects of the Borrower or any of its Subsidiaries,
(b) the ability of the Borrower or any of its Subsidiaries to perform its
obligations under any of the Loan Documents, (c) the validity or enforceability
of any of the Loan Documents, or (d) the rights or remedies of the
Administrative Agent or the Lenders under the Loan Documents.
"MOG" means M.O.G. Communications, Inc., an Alabama corporation.
---
"MOG Acquisition" means the acquisition of MOG (or of certain of its
---------------
assets) by the Borrower and/or any of its Subsidiaries.
"NAI" means North American InTeleCom, Inc., a Delaware corporation.
---
"NAI Acquisition" means the acquisition of NAI (or of certain of its
---------------
assets) by the Borrower and/or any of its Subsidiaries.
18
"Net Casualty Proceeds" means, with respect to any Casualty Event, the
---------------------
amount of any insurance proceeds or condemnation awards (including over-funding
of any ERISA plan) received by the Borrower or any of its Subsidiaries in
connection with such Casualty Event, but excluding any proceeds or awards
required to be paid to a creditor (other than the Lenders) which holds a first
priority Lien permitted by Section 7.2.3 on the property which is the subject of
-------------
such Casualty Event.
"Net Debt Proceeds" means, with respect to the sale or issuance by the
-----------------
Borrower or any of its Subsidiaries to any Person of any Indebtedness permitted
by the Required Lenders after the Effective Date, the excess of:
------
(a) the gross cash proceeds received by the Borrower or any of its
Subsidiaries from such sale or issuance,
over
----
(b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional fees, sales
commissions and disbursements and all other reasonable fees, expenses and
charges, in each case actually incurred in connection with such sale or issuance
which have not been paid to Affiliates of the Borrower (other than Affiliates
comprising CIBC WG Argosy Merchant Fund II, Onyx, EUFCC and their respective
Affiliates) in connection therewith.
"Net Disposition Proceeds" means, with respect to a Permitted Disposition
------------------------
of the assets of the Borrower or any of its Subsidiaries, the excess of
(a) the gross cash proceeds received by the Borrower or any of its
Subsidiaries from any Permitted Disposition,
less
----
(b) the sum of
(i) all reasonable and customary fees and expenses with respect to
legal, investment banking, brokerage and accounting and other professional fees,
sales commissions and disbursements and all other reasonable fees, expenses and
charges, in each case actually incurred in connection with such Permitted
Disposition which have not been paid to Affiliates of the Borrower (other than
Affiliates comprising CIBC WG Argosy Merchant Fund II, Onyx, EUFCC and their
respective Affiliates), and
(ii) all taxes and other governmental costs and expenses actually
paid or estimated by the Borrower (in good faith) to be payable in cash in
connection with such Permitted Disposition;
19
provided, however, that if, after the payment of all taxes with respect to such
-------- -------
Permitted Disposition, the amount of estimated taxes, if any, pursuant to clause
------
(b)(ii) above exceeded the tax amount actually paid in cash in respect of such
-------
Permitted Disposition, the aggregate amount of such excess shall be immediately
payable, pursuant to clause (d) of Section 3.1.1, as Net Disposition Proceeds.
---------- -------------
"Net Equity Proceeds" means, with respect to the sale or issuance by the
-------------------
Borrower (or, if any, any parent corporation or other entity with respect to the
Borrower) to any Person of any stock, warrants or options or the exercise of any
such warrants or options after the Effective Date, the excess of:
------
(a) the gross cash proceeds received by the Borrower or such parent
corporation or other entity from such sale, exercise or issuance,
over
----
(b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional fees, sales
commissions and disbursements and all other reasonable fees, expenses and
charges, in each case actually incurred in connection with such sale or issuance
which have not been paid to Affiliates of the Borrower (other than Affiliates
comprising CIBC WG Argosy Merchant Fund II, Onyx, EUFCC and their respective
Affiliates) in connection therewith.
"Net Income" means, for any period, the net income of the Borrower and its
----------
Subsidiaries for such period on a consolidated basis as computed in accordance
with GAAP.
"New Installations" means the acquisition by the Borrower or any of its
-----------------
Subsidiaries of new contracts to provide telephone service from applicable
Official Bodies not involving an Acquisition.
"Note" means, as the context may require, either a Revolving Note or a Term
----
Note; "Notes" shall be the collective reference to all Revolving Notes and Term
-----
Notes, as the case may be.
"Obligations" means all obligations (monetary or otherwise) of the Borrower
-----------
and each other Obligor arising under or in connection with this Agreement, the
Notes, each Letter of Credit and each other Loan Document.
"Obligor" means the Borrower, AmeriTel, ▇▇▇▇▇▇, ▇▇▇▇▇▇ Invision, ▇▇▇▇▇▇
-------
STC, ▇▇▇▇▇▇ Carolina and/or any other Person (other than the Administrative
Agent, the Documentation Agent, the Syndication Agent, any Agent-Related Person
or any Lender) obligated under any Loan Document.
20
"Official Body" means any government or political subdivision or any
-------------
agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any prison authority, or any court, tribunal or
arbitrator, in each case whether foreign or domestic.
"Onyx" means Onyx Partners, Inc., a California corporation, together with
----
its Affiliates.
"Operating Contracts" means each of the contracts for the operation of
-------------------
telephones to which the Borrower or any of its Subsidiaries is a party.
"Organic Documents" means, relative to any Obligor, its certificate of
-----------------
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of capital
stock.
"Original Credit Agreement" is defined in the second recital.
------------------------- ------ -------
"Original Lenders" is defined in the second recital.
---------------- ------ -------
"Participant" is defined in Section 10.11.2.
----------- ---------------
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
----
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in section
------------
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which the Borrower or
any corporation, trade or business that is, along with the Borrower, a member of
a Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
"Peoples Telephone" means Peoples Telephone Company, Inc., a New York
-----------------
corporation.
"Peoples Telephone Acquisition" means the acquisition of Peoples Telephone
-----------------------------
(or of certain of its assets) by the Borrower and/or any of its Subsidiaries.
"Percentage" means, relative to any Lender, the percentage set forth
----------
opposite its signature hereto or set forth in the then most recent Lender
Assignment Agreement executed by such Lender, as such percentage may be adjusted
from time to time pursuant to Lender Assignment Agreement(s) executed by such
Lender and its Assignee Lender(s) and delivered pursuant to Section 10.11.
-------------
"Permitted Acquisition" means, at any time of determination, any
---------------------
Acquisition (other than a Related Acquisition) by the Borrower or any of its
Subsidiaries with respect to which each of the following requirements are met:
21
(a) such Acquisition has been approved and recommended by the board of
directors or general partner (or similar entity) of the Person to be acquired or
which owns the assets of the Person be acquired;
(b) the Borrower shall have furnished to the Administrative Agent (which
shall promptly distribute the same to the Lenders), prior to the consummation of
such Acquisition, pro forma projections and other details (with reasonable
--- -----
assumptions) with respect to the Person or Persons to be acquired;
(c) prior to and after giving effect to such Acquisition, no Default
(including without limitation under the provisions of Section 7.2.4 and Sections
------------- --------
7.1.9 and 7.1.10) shall have occurred and be continuing, or would result
----- ------
therefrom;
(d) the Administrative Agent (on behalf of the Lenders) shall have been
provided a first-priority security interest in all acquired property;
(e) the documentation for such Acquisition shall permit the Administrative
Agent to obtain a lien on such documentation;
(f) the business of the Person to be acquired is the provision of
telecommunications services in a similar manner to the Borrower's existing
business;
(g) the total consideration payable in respect of any one Acquisition does
not exceed $10,000,000; and
(h) the total consideration payable in respect of all Acquisitions
constituting Permitted Acquisitions in any Fiscal Year does not exceed
$25,000,000; provided, however, that to the extent the amount of all Permitted
-------- -------
Acquisitions permitted to be made in any Fiscal Year pursuant to this clause (h)
----------
exceeds the aggregate amount of Permitted Acquisitions actually made during such
Fiscal Year, such excess amount may be carried forward to (but only to) the
immediately succeeding Fiscal Year (any such amount to be certified by the
Borrower to the Administrative Agent in the Compliance Certificate delivered
following the last Fiscal Quarter of such Fiscal Year), and any such amount
carried forward to the succeeding Fiscal Year shall be deemed to be used only
after the Borrower has fully used the scheduled amount of Permitted Acquisitions
permitted by this clause (h) without giving effect to any carryforward amount.
----------
"Permitted Disposition" means a sale, disposition or other conveyance of
---------------------
assets by the Borrower or any of its Subsidiaries in accordance with the terms
of clause (b) of Section 7.2.10.
---------- --------------
"Person" means any natural person, corporation, partnership, firm,
------
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
----
22
"Pledge Agreement" means, as the context may require, the Borrower Pledge
----------------
Agreement, the ▇▇▇▇▇▇ Pledge Agreement, each Investor Pledge Agreement and/or
any other Subsidiary Pledge Agreement; collectively, the "Pledge Agreements".
-----------------
"Preferred Dividends" means cash dividends on the Preferred Stock which are
-------------------
payable so long as no Default has occurred and is continuing in amounts not to
exceed $480,000 in any Fiscal Year.
"Preferred Stock" means the preferred equity issued by the Borrower on
---------------
December 27, 1996 with terms providing for no mandatory redemptions or
repurchases prior to December 21, 2001.
"Pro Forma Balance Sheet and Business Plan" means consolidated balance
-----------------------------------------
sheets, income statements and cash flow statements for the Borrower and its
Subsidiaries as of the Closing Date giving pro forma effect to all acquisitions
--- -----
made subsequent to December 27, 1996, the issuance of the Senior Unsecured
Notes, the repayment of the Senior Subordinated Notes and the ▇▇▇▇▇▇ Seller
Subordinated Note referred to in the Original Credit Agreement, the repayment of
any outstanding revolving loans made under the Existing Credit Agreement and the
initial Borrowing hereunder, all for the period 1997-2007 and to include 1996
performance for ▇▇▇▇▇▇/AmeriTel on a combined pro forma basis, with assumptions
--- -----
considered reasonable by the Administrative Agent, and all certified by the
chief financial officer of the Borrower.
"Quarterly Payment Date" means the last day of each March, June, September
----------------------
and December or, if any such day is not a Business Day, the next succeeding
Business Day.
"Reimbursement Obligation" is defined in Section 2.6.3.
------------------------ -------------
"Related Acquisitions" means, collectively, the ILD Acquisition, the MOG
--------------------
Acquisition, the NAI Acquisition and the Peoples Telephone Acquisition, provided
--------
that with respect to each such acquisition, the requirements set forth in
clauses (a) through (f) of the definition of Permitted Acquisition are met, and
----------- ---
such acquisitions shall be on terms and conditions (including without limitation
as to price) reasonable to the Required Lenders.
"Release" means a "release", as such term is defined in CERCLA.
-------
"Required Lenders" means, (a) at any time prior to the completion of the
----------------
General Syndication, Lenders holding 100% of the then aggregate outstanding
principal amount of the Notes and Commitments, and (b) at any time thereafter,
Lenders holding at least 51% of the then aggregate outstanding principal amount
of the Notes and Commitments.
"Resource Conservation and Recovery Act" means the Resource Conservation
--------------------------------------
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
-- ----
time.
"Revolving Loan" is defined in Section 2.1.1.
-------------- -------------
23
"Revolving Loan Commitment" means, relative to any Lender, such Lender's
-------------------------
obligation to make Revolving Loans pursuant to Section 2.1.1.
-------------
"Revolving Loan Commitment Amount" means, on any date, $25,000,000, as such
--------------------------------
amount may be reduced from time to time pursuant to Section 2.2.
-----------
"Revolving Loan Commitment Termination Date" means the earliest of:
------------------------------------------
(a) December 31, 2002;
(b) the date on which the Revolving Loan Commitment Amount is terminated
in full or reduced to zero pursuant to Section 2.2; and
-----------
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Revolving
---------- ---
Loan Commitments shall terminate automatically and without any further action.
"Revolving Note" means a promissory note of the Borrower payable to any
--------------
Lender, substantially in the form of Exhibit A-1 hereto (as such promissory note
-----------
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Rolling Period" means, with respect to any Fiscal Quarter, the period
--------------
comprising such Fiscal Quarter and the three immediately preceding Fiscal
Quarters.
"Security Agreement" means, as the context may require, the Borrower
------------------
Security Agreement, the AmeriTel Security Agreement, the ▇▇▇▇▇▇ Security
Agreement, the ▇▇▇▇▇▇ Carolina Security Agreement, the ▇▇▇▇▇▇ STC Security
Agreement, the ▇▇▇▇▇▇ Invision Security Agreement and/or any other Subsidiary
Security Agreement; collectively, the "Security Agreements".
-------------------
"Security Agreement Amendment" means an amendment to a Security Agreement
----------------------------
executed and delivered pursuant to Section 5.1.6, substantially in the form of
-------------
Exhibit H hereto.
---------
"Senior Secured Debt" means, at any time, all outstanding Total Debt which
-------------------
is not Subordinated Debt or Indebtedness of the Borrower evidenced by the Senior
Unsecured Notes as of such time.
"Senior Secured Debt to EBITDA Ratio" means, as of the last day of any
-----------------------------------
Fiscal Quarter, the ratio of (a) Senior Secured Debt outstanding on such date to
--
(b) EBITDA for the Rolling Period ending on such date: provided, however, that
-------- -------
for the period ended December 31, 1997, Senior Secured Debt shall not include
any Loans made to finance a Related Acquisition.
24
"Senior Unsecured Noteholders" means any and all holders of Senior
----------------------------
Unsecured Notes.
"Senior Unsecured Note Instruments" means the Senior Unsecured Notes and
---------------------------------
all agreements and instruments in connection therewith or pursuant to which the
same shall have been issued or are governed, as the same may be amended,
supplemented, amended and restated or otherwise modified in accordance with
Section 7.2.11 or refinanced in accordance with, and subject to, the provisions
--------------
of Section 7.2.6.
-------------
"Senior Unsecured Notes" means the Senior Notes issued by the Borrower in
----------------------
accordance with (and as defined in) the Existing Credit Agreement, as the same
may be refinanced in accordance with, and subject to, the provisions of
Section 7.2.6.
-------------
"Solvency Certificate" means the Solvency Certificate, dated the Closing
--------------------
Date, to be duly executed and delivered by the chief financial officer of the
Borrower, covering the Borrower and each Subsidiary of the Borrower pursuant to
Section 5.1.9, substantially in the form of Exhibit G hereto.
------------- ---------
"Stated Amount" of each Letter of Credit means the total amount available
-------------
to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
------------------
"Stated Maturity Date" means December 31, 2002.
--------------------
"Subordinated Debt" means any Indebtedness subordinated to the Obligations
-----------------
on terms and conditions satisfactory to the Administrative Agent and the
Required Lenders, as evidenced by their written approval thereof.
"Subsidiary" means, with respect to any Person, any corporation of which
----------
more than 50% of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"Subsidiary Guaranty" means the Guaranty executed and delivered by
-------------------
AmeriTel, ▇▇▇▇▇▇, ▇▇▇▇▇▇ Carolina, ▇▇▇▇▇▇ STC and ▇▇▇▇▇▇ Invision, or by any
future Subsidiary pursuant to clause (a) of Section 7.1.10, substantially in the
---------- --------------
form of Exhibit F to the Original Credit Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Subsidiary Pledge Agreement" means a Pledge Agreement executed and
---------------------------
delivered by a Subsidiary pursuant to the Original Credit Agreement, the
Existing Credit Agreement or Section 7.1.10, substantially in the form of
--------------
Exhibit H-2 to the Original Credit Agreement, as amended, supplemented, amended
and restated or otherwise modified from time to time.
25
"Subsidiary Security Agreement" means a Security Agreement executed and
-----------------------------
delivered by a Subsidiary pursuant to the Original Credit Agreement, the
Existing Credit Agreement or Section 7.1.10, substantially in the form of
--------------
Exhibit G-2 to the Original Credit Agreement, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Syndication Agent" is defined in the preamble.
----------------- --------
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Telecommunications Corporation, an Alabama
------
corporation.
"▇▇▇▇▇▇ Carolina" means ▇▇▇▇▇▇ Telecommunications of Carolina, Inc., an
---------------
Alabama corporation.
"▇▇▇▇▇▇ Carolina Security Agreement" means the Security Agreement executed
----------------------------------
and delivered by ▇▇▇▇▇▇ Carolina pursuant to the Original Credit Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"▇▇▇▇▇▇ Invision" means ▇▇▇▇▇▇ Invision, Inc., a Delaware corporation.
---------------
"▇▇▇▇▇▇ Invision Security Agreement" means the Security Agreement executed
----------------------------------
and delivered by ▇▇▇▇▇▇ Invision pursuant to the Existing Credit Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"▇▇▇▇▇▇ Pledge Agreement" means the Pledge Agreement executed and delivered
-----------------------
by ▇▇▇▇▇▇ pursuant to the Original Credit Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"▇▇▇▇▇▇ Security Agreement" means the Security Agreement executed and
-------------------------
delivered by ▇▇▇▇▇▇ pursuant to the Original Credit Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"▇▇▇▇▇▇ STC" means ▇▇▇▇▇▇ STC, Inc., a Delaware corporation.
----------
"▇▇▇▇▇▇ STC Security Agreement" means the Security Agreement executed and
-----------------------------
delivered by ▇▇▇▇▇▇ STC pursuant to the Existing Credit Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Taxes" is defined in Section 4.6.
----- -----------
"Term Loan" is defined in Section 2.1.1.
--------- -------------
"Term Loan Commitment" means, relative to any Lender, such Lender's
--------------------
obligation to make Term Loans pursuant to Section 2.1.1.
-------------
"Term Loan Commitment Amount" means, on any date, $55,000,000, as such
---------------------------
amount may be reduced from time to time pursuant to Section 2.2.
-----------
26
"Term Loan Commitment Termination Date" means the earliest of:
-------------------------------------
(a) March 31, 1998 (only to the extent of the unused amount of the Term
Loan Commitment Amount as of such date);
(b) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b), the Term Loan
----------
Commitments shall terminate automatically and without any further action.
"Term Note" means a promissory note of the Borrower payable to any Lender,
---------
substantially in the form of Exhibit A-2 hereto (as such promissory note may be
-----------
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Term Loans, and also means all other promissory notes accepted from time to time
in substitution therefor or renewal thereof.
"Total Debt" means, at any time, the sum of (a) the outstanding principal
----------
amount of all Loans, (b) the aggregate outstanding principal amount of all
Subordinated Debt and (c) the outstanding amount of all Senior Unsecured Notes
and all other items comprising Indebtedness of the Borrower and its Subsidiaries
under clauses (a), (b), (c) and (f) of the definition thereof contained herein,
----------- --- --- ---
together with all guarantees of such items, in each case as of such time.
"Total Debt to EBITDA Ratio" means, as at the last day of any Fiscal
--------------------------
Quarter, the ratio of (a) Total Debt outstanding on such date to (b) EBITDA for
--
the Rolling Period ended on such date: provided, however, that for the period
-------- -------
ended December 31, 1997, Total Debt shall not include any Loans made to finance
a Related Acquisition.
"type" means, relative to any Loan, the portion thereof, if any, being
----
maintained as a Base Rate Loan or a LIBO Rate Loan.
"United States" or "U.S." means the United States of America, its fifty
------------- ----
States and the District of Columbia.
"Welfare Plan" means a "welfare plan", as such term is defined in section
------------
3(1) of ERISA.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary all of the
-----------------------
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person, or by such Person and one or more
Wholly-Owned Subsidiaries of such Person, or (b) any partnership, association,
limited liability company, joint venture or similar business organization 100%
of the ownership interests having ordinary voting power of which shall at the
time be so owned or controlled.
SECTION 1.2 Use of Defined Terms. Unless otherwise defined or the
--------------------
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such
27
meanings when used in the Disclosure Schedule and in each Note, Borrowing
Request, Continuation/Conversion Notice, Loan Document, notice and other
communication delivered from time to time in connection with this Agreement or
any other Loan Document.
SECTION 1.3 Cross-References. Unless otherwise specified, references in
----------------
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4 Accounting and Financial Determinations. Unless otherwise
---------------------------------------
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
-------------
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those generally accepted accounting principles ("GAAP") applied
----
in the preparation of the financial statements referred to in Section 6.5.
-----------
ARTICLE II
COMMITMENTS, LOANS, BORROWING PROCEDURES
AND NOTES
SECTION 2.1 Commitments. On the terms and subject to the conditions of
-----------
this Agreement (including Article V),
---------
(a) each Lender severally agrees to make Loans pursuant to the Commitments
described in Sections 2.1.1 and Section 2.1.2, and
-------------- -------------
(b) the Issuer agrees that it will issue Letters of Credit pursuant to
Section 2.1.3 and each Lender severally agrees that it will participate in such
-------------
Letters of Credit in accordance with Section 2.6.1.
-------------
SECTION 2.1.1. Term Loan Commitment. From time to time on any Business
--------------------
Day occurring on and after the Closing Date and prior to the Term Loan
Commitment Termination Date, each Lender agrees to make Loans (relative to such
Lender, its "Term Loans") to the Borrower equal to such Lender's Percentage of
----------
the aggregate amount of the Borrowing of Term Loans requested by the Borrower to
be made on such day; provided, however, that (a) Term Loans may only be made in
-------- -------
an aggregate principal amount up to $42,000,000 on the Closing Date in order to
refinance outstandings under the Existing Credit Agreement, provide financing
for the Peoples Telephone Acquisition and pay fees and expenses directly related
to the Peoples Telephone Acquisition and in connection with this Agreement, (b)
Term Loans may only be made in an additional aggregate principal amount up to
$6,500,000 on and after December 29, 1997 in order to provide financing for the
NAI Acquisition and pay fees and expenses directly related thereto, and (c) the
remaining Term Loan Commitment Amount will be available on and
28
after the earlier of the completion of the General Syndication and January 31,
1998. The Commitment of each Lender described in this Section 2.1.1 is herein
-------------
referred to as its "Term Loan Commitment". No amounts paid or prepaid with
--------------------
respect to Term Loans may be reborrowed.
SECTION 2.1.2. Revolving Loan Commitment. From time to time on any
-------------------------
Business Day occurring on and after the Closing Date and prior to the Revolving
Loan Commitment Termination Date, each Lender agrees to make Loans (relative to
such Lender, its "Revolving Loans") to the Borrower equal to such Lender's
---------------
Percentage of the aggregate amount of the Borrowing of the Revolving Loans
requested by the Borrower to be made on such day; provided, however, that
-------- -------
Revolving Loans may only be made in an aggregate principal amount (together with
any Letter of Credit Outstandings) up to $3,000,000 until the earlier of the
completion of the General Syndication and February 14, 1998. The Commitment of
each Lender described in this Section 2.1.2 is herein referred to as its
"Revolving Loan Commitment". On the terms and subject to the conditions hereof,
-------------------------
the Borrower may from time to time borrow, prepay and reborrow the Revolving
Loans.
SECTION 2.1.3. Letter of Credit Commitment. From time to time on any
---------------------------
Business Day occurring on and after the Closing Date and prior to the Revolving
Loan Commitment Termination Date, the Issuer will
(a) issue one or more letters of credit in a form satisfactory to the
Issuer (a "Letter of Credit") for the account of the Borrower in the Stated
----------------
Amount requested by the Borrower on such day; or
(b) extend the Stated Expiry Date of an existing Letter of Credit
previously issued hereunder to a date not later than the earlier of (i)
Revolving Loan the Commitment Termination Date and (ii) one year from the date
of such extension;
provided, however, that Letters of Credit will be made available to the Borrower
-------- -------
in an aggregate Stated Amount (together with the aggregate outstanding principal
amount of Revolving Loans) up to $3,000,000 until the earlier of the completion
of the General Syndication and February 14, 1998.
SECTION 2.1.4. Lenders Not Required to Make the Loans. No Lender shall be
--------------------------------------
required to
(a) make any Term Loan if, after giving effect thereto, the aggregate
outstanding principal amount of all the Term Loans
(b) of all Lenders with Term Loan Commitments would exceed the Term Loan
Commitment Amount; or
(c) of such Lender with a Term Loan Commitment would exceed such Lender's
Percentage of the Term Loan Commitment Amount;
29
(d) make any Revolving Loan if, after giving effect thereto, the aggregate
outstanding principal amount of all Revolving Loans
(e) of all the Lenders with Revolving Loan Commitments, together with the
aggregate amount of all Letter of Credit Outstandings, would exceed the
Revolving Loan Commitment Amount; or
(f) of such Lender with a Revolving Loan Commitment, together with such
Lender's Percentage of the aggregate amount of all Letter of Credit
Outstandings, would exceed such Lender's Percentage of the Revolving Loan
Commitment Amount; or
(g) participate in any Letter of Credit if, after giving effect
thereto,
(h) all Letter of Credit Outstandings, together with the aggregate
outstanding principal amount of all Revolving Loans of all Lenders, would exceed
the Revolving Loan Commitment Amount; or
(i) such Lender's Percentage of all Letter of Credit Outstandings, together
with the aggregate outstanding principal amount of all Revolving Loans of such
Lender, would exceed such Lender's Percentage of the Revolving Loan Commitment
Amount.
SECTION 2.1.5. Issuer Not Required to Issue Letters of Credit. The
----------------------------------------------
Issuer shall not be required to issue any Letter of Credit if, after giving
effect thereto, (a) the aggregate amount of all Letter of Credit Outstandings
would exceed the Letter of Credit Commitment Amount or (b) the aggregate amount
of all Letter of Credit Outstandings, together with the aggregate outstanding
principal amount of all Revolving Loans, would exceed the Revolving Loan
Commitment Amount.
SECTION 2.2 Reduction of Revolving Loan Commitment Amount. The Borrower
---------------------------------------------
may, from time to time on any Business Day occurring after the time of the
initial Borrowing hereunder, voluntarily reduce the amount of the Revolving Loan
Commitment Amount or Letter of Credit Commitment Amount; provided, however, that
-------- -------
all such reductions shall require at least three Business Days' prior notice to
the Administrative Agent and be permanent, and any partial reduction of the
Revolving Loan Commitment Amount shall be in a minimum amount of $3,000,000 and
in an integral multiple of $500,000. On the date upon which all Term Loans are
or are required to be paid or prepaid in full, the Revolving Loan Commitment
Amount shall automatically immediately be reduced to zero.
SECTION 2.3 Borrowing Procedure. By delivering a Borrowing Request to
-------------------
the Administrative Agent on or before 11:00 a.m., New York time, on a Business
Day, the Borrower may from time to time irrevocably request, on not less than
one (in the case of Borrowings of Base Rate Loans) and not less than three (in
the case of Borrowings of LIBO Rate Loans) nor more than five (in all cases)
Business Days' notice, that a Borrowing be made in a minimum amount of
$3,000,000 for the initial drawdown on the Revolving Loan Commitment and, for
30
each drawdown thereafter, in a minimum amount of $500,000 and an integral
multiple of $100,000 (in the case of LIBO Rate Loans) or in a minimum amount of
$100,000 and an integral multiple of $100,000 (in the case of Base Rate Loans)
or in the unused amount of the applicable Commitment Amount. On the terms and
subject to the conditions of this Agreement, each Borrowing shall be comprised
of the type of Loans, and shall be made on the Business Day, specified in such
Borrowing Request (provided that the Borrowing made on the Closing Date shall be
--------
comprised solely of Base Rate Loans). On or before 12:00 noon, New York time,
on such Business Day each Lender shall deposit with the Administrative Agent
same day funds in an amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the Administrative
Agent shall specify from time to time by notice to the Lenders. To the extent
funds are received from the Lenders, the Administrative Agent shall make such
funds available to the Borrower by wire transfer to the accounts the Borrower
shall have specified in its Borrowing Request. No Lender's obligation to make
any Loan shall be affected by any other Lender's failure to make any Loan.
SECTION 2.4 Continuation and Conversion Elections. By delivering a
-------------------------------------
Continuation/Conversion Notice to the Administrative Agent on or before 11:00
a.m., New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one (in the case of continuations of or
conversions into Base Rate Loans) and not less than three (in the case of
continuations of or conversions into LIBO Rate Loans) nor more than five (in all
cases) Business Days' notice that all, or any portion in an aggregate minimum
amount of $500,000 and an integral multiple of $100,000 (in the case of LIBO
Rate Loans) or in an aggregate minimum amount of $100,000 and an integral
multiple of $100,000 (in the case of Base Rate Loans), of any Loans, in the case
of Base Rate Loans, be converted into LIBO Rate Loans or, in the case of LIBO
Rate Loans, be converted into a Base Rate Loan or continued as a LIBO Rate Loan
(in the absence of delivery of a Continuation/Conversion Notice with respect to
any LIBO Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan shall, on such
last day, automatically convert to a Base Rate Loan); provided, however, that
-------- -------
(x) each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders, and (y) the Borrower shall not have the right
to request that any portion of the outstanding principal amount of any Loans may
be continued as, or be converted into, LIBO Rate Loans when any Default has
occurred and is continuing.
SECTION 2.5 Funding. Each Lender may, if it so elects, fulfill its
-------
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
--------
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
-------
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
----------- --- --- ---
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank Eurodollar market.
31
SECTION 2.6 Issuance Procedures. By delivering to the Administrative
-------------------
Agent an Issuance Request on or before 11:00 a.m., New York time, on a Business
Day, the Borrower may from time to time irrevocably request, on not less than
five nor more than ten Business Days' notice, in the case of an initial issuance
of a Letter of Credit, and not less than five Business Days' notice prior to the
existing Stated Expiry Date (or, if a Letter of Credit has an automatic
extension provision, at least five Business Days' notice prior to the date that
such Letter of Credit will, by its terms, be extended or, if earlier, the date
on which a notice from the Issuer is required to be delivered to the beneficiary
of the Letter of Credit informing the beneficiary that the Letter of Credit will
not be extended), in the case of a request for the extension of the Stated
Expiry Date of a Letter of Credit, that the Issuer issue, or extend the Stated
Expiry Date of, as the case may be, a Letter of Credit in such form as may be
requested by the Borrower and approved by the Issuer. Each Letter of Credit
shall by its terms be stated to expire on a date (its "Stated Expiry Date") no
------------------
later than the earlier to occur of (a) the Commitment Termination Date or (b)
one year from the date of its issuance. The Issuer will make available to the
beneficiary thereof the original of each Letter of Credit which it issues
hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
----------------------------
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender shall be deemed to have irrevocably purchased, to the extent
of its Percentage to make Loans, a participation interest in such Letter of
Credit (including the Contingent Liability and any Reimbursement Obligation with
respect thereto), and such Lender shall, to the extent of its Percentage, be
responsible for reimbursing promptly (and in any event within one Business Day)
the Issuer for Reimbursement Obligations arising under the Letter of Credit
issued by the Issuer which have not been reimbursed by the Borrower (or which
have been reimbursed but disgorged) in accordance with Section 2.6.3. In
-------------
addition, such Lender shall, to the extent of its Percentage, be entitled to
receive a ratable portion of the Letter of Credit fees payable pursuant to the
first sentence of Section 3.3.4 with respect to each Letter of Credit, the
-------------
interest payable pursuant to Section 2.6.2 and, if applicable, of interest
-------------
payable pursuant to Section 3.2.2 with respect to any Reimbursement Obligation
-------------
not paid when due. To the extent that any Lender has reimbursed the Issuer for
a Disbursement as required by this Section, such Lender shall be entitled to
receive its ratable portion of any amounts subsequently received (from the
Borrower or otherwise) in respect of such Disbursement.
SECTION 2.6.2. Disbursements. The Issuer will notify the Borrower and
-------------
the Administrative Agent promptly of the presentment for payment of any Letter
of Credit issued by the Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be made (each such payment, a
-------------------
"Disbursement"). Subject to the terms and provisions of such Letter of Credit
--------------
and this Agreement, the Issuer shall make such payment to the beneficiary (or
its designee) of such Letter of Credit. Prior to 11:00 a.m., New York time, on
the first Business Day following the Disbursement Date, the Borrower will
reimburse the Administrative Agent, for the account of the Issuer, for all
amounts which the Issuer has disbursed under such Letter of Credit, together
with interest thereon at a rate per annum equal to the Alternate Base Rate
plus the Applicable Base Rate Margin plus a margin of 2.0% for the period from
---- ----
the Disbursement Date through the date of such reimbursement.
32
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
------------- -------------
Obligation") of the Borrower under Section 2.6.2 to reimburse the Issuer with
---------- -------------
respect to each Disbursement (including interest thereon), and, upon the failure
of the Borrower to reimburse (or the disgorgement of any reimbursement made by
the Borrower to) the Issuer, each Lender's obligation under Section 2.6.1 to
-------------
reimburse the Issuer, shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower or such Lender, as the case may be, may have or have had
against the Issuer or any such Lender, including any defense based upon the
failure of any Disbursement to conform to the terms of the applicable Letter of
Credit (if, in the Issuer's good faith opinion, such Disbursement is determined
to be appropriate) or any non-application or misapplication by the beneficiary
of the proceeds of such Letter of Credit; provided, however, that after paying
-------- -------
in full its Reimbursement Obligation hereunder, nothing herein shall adversely
affect the right of the Borrower or such Lender, as the case may be, to commence
any proceeding against the Issuer for any wrongful Disbursement made by the
Issuer under a Letter of Credit as a result of acts or omissions constituting
gross negligence or wilful misconduct on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
--------------------
continuation of any Default of the type described in Section 8.1.9 or, with
-------------
notice from the Administrative Agent, upon the occurrence and during the
continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit Outstandings
attributable to the then aggregate amount which is undrawn and available under
all Letters of Credit issued and outstanding hereunder shall, without demand
upon or notice to the Borrower, be deemed to have been paid or disbursed by the
Issuer under such Letters of Credit (notwithstanding that such amount may not in
fact have been so paid or disbursed); and
(b) upon notification by the Administrative Agent to the Borrower of its
obligations under this Section, the Borrower shall be immediately obligated to
reimburse the Issuer for the amount deemed to have been so paid or disbursed by
the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time when the Defaults or Events of Default giving rise to the
deemed disbursements hereunder shall have been cured or waived, the
Administrative Agent shall return to the Borrower all amounts then on deposit
with the Administrative Agent pursuant to this Section which have not been
applied to the partial satisfaction of such Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower and, to
-----------------------------------
the extent set forth in Section 2.6.1, each Lender shall assume all risks of the
-------------
acts, omissions or misuse of any Letter of Credit by the beneficiary thereof.
The Issuer (except to the extent of its own gross negligence or wilful
misconduct) shall not be responsible for:
33
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect
of any Letter of Credit or any document submitted by any party in connection
with the application for and issuance of a Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal effect
of any instrument transferring or assigning or purporting to transfer or assign
a Letter of Credit or the rights or benefits thereunder or the proceeds thereof
in whole or in part, which may prove to be invalid or ineffective for any
reason;
(c) the failure of the beneficiary of a Letter of Credit to comply fully
with conditions required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a Letter
of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender. In furtherance and
extension and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by the Issuer in good faith shall be binding
upon the Borrower and each such Lender, and shall not put the Issuer under any
resulting liability to the Borrower or any such Lender, as the case may be.
SECTION 2.7 Notes. Each Lender's Loans under a Commitment shall be
-----
evidenced by a Note payable to the order of such Lender in a maximum principal
amount equal to such Lender's Percentage of the original applicable Commitment
Amount. The Borrower hereby irrevocably authorizes each Lender to make (or
cause to be made) appropriate notations on the grid attached to such Lender's
Notes (or on any continuation of such grid), which notations, if made, shall
evidence, inter alia, the date of, the outstanding principal of, and the
----- ----
interest rate and Interest Period applicable to the Loans evidenced thereby.
Such notations shall be conclusive and binding on the Borrower absent manifest
error; provided, however, that the failure of any Lender to make any such
-------- -------
notations shall not limit or otherwise affect any Obligations of the Borrower or
any other Obligor.
34
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1 Repayments and Prepayments; Application.
---------------------------------------
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
--------------------------
full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
Loans; provided, however, that
-------- -------
(b) any such prepayment of the Term Loans shall be made pro rata
--- ----
among the remaining scheduled repayments of the Term Loans of the same type and,
if applicable, having the same Interest Period of all Lenders that have made
such Term Loans, and any such prepayment of the Revolving Loans shall be made
pro rata among the Revolving Loans of the same type and, if applicable,
--- ----
having the same Interest Period of all Lenders that have made such Revolving
Loans;
(c) no such prepayment of any LIBO Rate Loan may be made on any
day other than the last day of the Interest Period for such Loan;
(d) all such voluntary prepayments shall require at least three but no more
than five Business Days' prior written notice to the Administrative Agent; and
(e) all such voluntary partial prepayments shall be, in the case of LIBO
Rate Loans, in an aggregate minimum amount of $500,000 and an integral multiple
of $100,000 and, in the case of Base Rate Loans, in an aggregate minimum amount
of $100,000 and an integral multiple of $100,000;
(f) shall, on each date when (i) any reduction in the Revolving Loan
Commitment Amount shall become effective, including pursuant to Section 2.2,
-----------
or (ii) the sum of the aggregate outstanding principal amount of all Revolving
Loans and Letter of Credit Outstandings exceeds the Revolving Loan Commitment
Amount (as it may be reduced from time to time), make a mandatory prepayment of
all Revolving Loans in an aggregate amount equal to the excess, if any, of the
aggregate, outstanding principal amount of all Revolving Loans and Letter of
Credit Outstandings over the Revolving Loan Commitment Amount (as so reduced);
(g) shall, on each Quarterly Payment Date set forth below, make a scheduled
repayment of the aggregate outstanding principal amount, if any, of all Term
Loans in the amounts set forth under the column entitled "Dollar Repayment"
below, as such amounts may be reduced from time to time pursuant to prepayments
in accordance with the terms hereof:
35
Quarterly Dollar
Payment Date Repayment
------------ ---------
September 30, 1998 $2,750,000
December 31, 1998 2,750,000
March 31, 1999 2,406,250
June 30, 1999 2,406,250
September 30, 1999 2,406,250
December 31, 1999 2,406,250
March 31, 2000 3,093,750
June 30, 2000 3,093,750
September 30, 2000 3,093,750
December 31, 2000 3,093,750
March 31, 2001 3,437,500
June 30, 2001 3,437,500
September 30, 2001 3,437,500
December 31, 2001 3,437,500
March 31, 2002 3,437,500
June 30, 2002 3,437,500
September 30, 2002 3,437,500
December 31, 2002 3,437,500
(h) shall, immediately upon any acceleration of the Stated Maturity
Date of any Loans or Obligations pursuant to Section 8.2 or Section 8.3,
----------- -----------
repay all Loans and provide the Administrative Agent with cash collateral
in an amount equal to the Letter of Credit Outstandings, unless, pursuant
to Section 8.3, only a portion of all Loans and Obligations are so
-----------
accelerated (in which case the portion so accelerated shall be so prepaid
or cash collateralized with the Administrative Agent);
(i) shall, no later than 180 days following receipt of any Net
Disposition Proceeds, make a mandatory prepayment of the Term Loans in an
amount equal to 100% of such Net Disposition Proceeds, to be applied as set
forth in Section 3.1.2; provided, however, that, at the option of the
------------- -------- -------
Borrower and so long as no Default shall have occurred and be continuing,
the Borrower may reinvest all or any portion of such Net Disposition
Proceeds in related assets so long as (A) within 120 days following receipt
of such Net Disposition Proceeds, a definitive purchase agreement for the
purchase of such assets with such proceeds shall have been entered into (as
certified by the Borrower in writing to the Administrative Agent) and (B)
within 180 days after the receipt of such Net Disposition Proceeds, such
purchase shall have been consummated (as certified by the Borrower in
writing to the Administrative Agent); provided, further, however, that any
-------- ------- -------
Net Disposition Proceeds not so reinvested shall be immediately applied to
the prepayment of the Term Loans as set forth above;
(j) shall, concurrently with the creation of any Net Equity Proceeds,
make a mandatory prepayment of the Term Loans in an amount equal to 100% of
such Net Equity Proceeds, to be applied as set forth in Section 3.1.2,
-------------
except to the extent, if any, that such Net
------
36
Equity Proceeds (i) arise from an initial public offering of the Borrower's
common stock and, after giving effect to such offering, the Borrower's
Total Debt to EBITDA Ratio is less than or equal to 4.50 to 1.0 or (ii) are
applied substantially concurrently with such creation to the consummation
of Permitted Acquisitions (provided that, if such Net Equity Proceeds arise
from an initial public offering of the Borrower's common stock, after
giving effect to such Permitted Acquisitions, the Borrower's Total Debt to
EBITDA Ratio is less than or equal to 4.50 to 1.0, with the determination
of EBITDA resulting from any Permitted Acquisition to be applied to the
calculation of Total Debt to EBITDA on terms satisfactory to the
Administrative Agent);
(k) shall, concurrently with the creation of any Net Debt Proceeds,
make a mandatory prepayment of the Term Loans in an amount equal to 100% of
such Net Debt Proceeds, to be applied as set forth in Section 3.1.2, except
------------- ------
to the extent, if any, that such Net Debt Proceeds shall comprise
refinancing debt issued in accordance with, and subject to the provisions
of, Section 7.2.6 and such proceeds are immediately applied to the
-------------
repayment of Senior Unsecured Notes (or notes issued in substitution
therefor pursuant to ordinary course assignments not constituting a
refinancing); and
(l) shall, concurrently with the receipt of any Net Casualty Proceeds
in excess of $100,000 (individually or in the aggregate over the course of
a Fiscal Year), make a mandatory prepayment of the Term Loans in an amount
equal to 100% of such Net Casualty Proceeds, to be applied as set forth in
Section 3.1.2; provided, however, that no mandatory prepayment of Casualty
------------- -------- -------
Proceeds shall be required under this clause if (i) the Borrower informs
the Administrative Agent no later than 60 days following the occurrence of
the Casualty Event resulting in such Net Casualty Proceeds of its or its
Subsidiary's good faith intention to apply such Net Casualty Proceeds to
the rebuilding or replacement of such damaged, destroyed or condemned
assets or property and in fact uses such Net Casualty Proceeds to rebuild
or replace the damaged, destroyed or condemned assets or property within
180 days following the receipt of such Net Casualty Proceeds, with the
amount of Net Casualty Proceeds unused after such 180 day period being
applied to the Term Loans as set forth in Section 3.1.2; provided, further,
------------- -------- -------
however, that at any time when any Default shall have occurred and be
-------
continuing or Net Casualty Proceeds shall exceed $500,000 (individually or
in the aggregate over the course of a Fiscal Year), such Net Casualty
Proceeds will be deposited in an account maintained with the Administrative
Agent for, at the Administrative Agent's discretion, prepayment of the Term
Loans or disbursement at the request of the Borrower to pay for such
rebuilding or replacement; and
(m) shall, concurrently with the receipt by the Borrower or any of
its Subsidiaries of any escrow monies in excess of $500,000, individually
or in the aggregate for any Fiscal Year, under the ▇▇▇▇▇▇ Acquisition
Agreement or the AmeriTel Acquisition Agreement (each as defined in the
Original Credit Agreement) or any other acquisition agreement in respect of
a Permitted Acquisition or a Related Acquisition (other than monies in
respect of claims of third parties), make a mandatory prepayment of the
Term Loans with such monies.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No voluntary
-----------
prepayment of principal of any
37
Revolving Loans shall cause a reduction in the Revolving Loan Commitment Amount.
Prepayments of Term Loans may not be reborrowed.
SECTION 3.1.2. Application. (a) Subject to clause (b), each prepayment
-----------
or repayment of the principal of the Loans shall be applied, to the extent of
such prepayment or repayment, first, to the principal amount thereof being
-----
maintained as Base Rate Loans, and second, to the principal amount thereof
------
being maintained as LIBO Rate Loans (with such application to earliest maturing
LIBO Rate Loans first).
(b) Each voluntary prepayment of Term Loans made pursuant to Section
-------
3.1.1(a), and each mandatory prepayment of Term Loans, shall be applied, to the
--------
extent of such prepayment, pro rata among the remaining scheduled repayments of
--- ----
Term Loans set forth in Section 3.1.1(c).
----------------
SECTION 3.2 Interest Provisions. Interest on the outstanding principal
-------------------
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
-----------
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing
-----
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base Rate Loan,
equal to the sum of the Alternate Base Rate from time to time in effect plus the
Applicable Base Rate Margin; or
(b) on that portion maintained from time to time as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the Applicable LIBO Rate
Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
-------------------
of any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation of the
Borrower shall have become due and payable, the Borrower shall pay, to the
extent permitted by law, interest (after as well as before judgment) on such
amounts at a rate per annum equal to the Alternate Base Rate plus the Applicable
----
Base Rate Margin plus a margin of 2.0%.
----
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
-------------
payable, without duplication:
(a) on the Stated Maturity Date therefor;
38
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan with respect to the amount so paid or
prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each applicable
Interest Period (and, if such Interest Period shall exceed three months, at the
end of each three month period occurring during such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate Loans
on a day when interest would not otherwise have been payable pursuant to
clause (c), on the date of such conversion; and
----------
(f) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such
----------- -----------
acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3 Fees. The Borrower agrees to pay the fees set forth in this
----
Section 3.3. All such fees shall be non-refundable.
-----------
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
--------------
Administrative Agent for the account of each Lender having an outstanding
Commitment, for the period (including any portion thereof when any of its
Commitments are suspended by reason of the Borrower's inability to satisfy any
condition of Article V) commencing on the Effective Date and continuing through
---------
the final Commitment Termination Date, a commitment fee at the rate of 1/2 of
1% per annum on such Lender's Percentage of the sum of the average daily unused
portion of each Commitment Amount. Such commitment fees shall be payable by the
Borrower in arrears on each Quarterly Payment Date, commencing with the first
such day following the Effective Date, and on each Commitment Termination Date.
Letter of Credit Outstandings shall constitute usage under the Revolving Loan
Commitment Amount.
SECTION 3.3.2. Administrative Agent's Fee. The Borrower agrees to pay to
--------------------------
the Administrative Agent, for its own account, the non-refundable fees in the
amounts and on the dates set forth in the Fee Letter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
--------------------
Administrative Agent, for the pro rata account of the Issuer and each other
--- ----
Lender, an annual Letter of Credit fee in an amount equal to the then Applicable
LIBO Rate Margin multiplied by the Stated Amount of each Letter of Credit issued
by the Issuer, with such fees being payable on the date of issuance of each
Letter of Credit (for the period from the date of issuance to the earlier of the
expiration date of the applicable Letter of Credit and the immediately
succeeding Quarterly Payment Date)
39
and on each extension thereof, if applicable, and thereafter quarterly in
arrears on each Quarterly Payment Date and on the Revolving Loan Commitment
Termination Date. The Borrower further agrees to pay to the Issuer on the date
of issuance of each Letter of Credit by the Issuer (for the period from the date
of issuance to the earlier of the expiration date of the applicable Letter of
Credit and the immediately succeeding Quarterly Payment Date, and thereafter
quarterly in arrears on each Quarterly Payment Date and on the Revolving Loan
Commitment Termination Date) an issuance fee in an amount equal to the greater
of (i) $500 and (ii) 1/4 of 1% of the Stated Amount thereof (or increase in the
Stated Amount) and all costs and expenses incurred by the Issuer in connection
with such Letter of Credit.
SECTION 3.3.4. No Other Fees. Except as set forth in this Agreement, the
-------------
other Loan Documents and in the Fee Letter, as of the Closing Date there are no
other fees owing to the Administrative Agent or the Lenders.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1 LIBO Rate Lending Unlawful. If any Lender shall determine
--------------------------
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Loan as, or to convert any Loan into, a
LIBO Rate Loan, the obligations of all Lenders to make, continue, maintain or
convert any such Loans shall, upon such determination, forthwith be suspended
until such Lender shall notify the Administrative Agent that the circumstances
causing such suspension no longer exist, and all LIBO Rate Loans shall
automatically convert into Base Rate Loans at the end of the then current
Interest Periods with respect thereto or sooner, if required by such law or
assertion.
SECTION 4.2 Deposits Unavailable. If the Administrative Agent shall have
--------------------
determined that
(a) Dollar deposits in the relevant amount and for the relevant Interest
Period are not available to CIBC in its relevant market; or
(b) by reason of circumstances affecting CIBC's relevant market, adequate
means do not exist for ascertaining the interest rate applicable hereunder to
LIBO Rate Loans,
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
----------- -----------
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
40
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees to
-----------------------------------
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the Borrower
directly to such Lender within five days of its receipt of such notice, and such
notice shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss
--------------
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan)
as a result of
(a) any conversion or repayment or prepayment of the principal amount of
any LIBO Rate Loans on a date other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to Section 3.1 or otherwise;
-----------
(b) any Loans not being made as LIBO Rate Loans in accordance with the
Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO Rate Loans
in accordance with the Continuation/ Conversion Notice therefor,
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
-----------------------
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments, issuance or participations in Letters of Credit
or the Loans made by such Lender is reduced to a level below that which such
Lender or such controlling Person could have achieved but for the occurrence of
any such circumstance, then, in any such case upon notice from time to time by
such Lender to the Borrower, the Borrower shall immediately pay directly to such
Lender additional amounts
41
sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return. A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower. In determining such amount, such Lender may use any reasonable
method of averaging and attribution that it shall deem applicable.
SECTION 4.6. Taxes. All payments by the Borrower and its Subsidiaries of
-----
principal of, and interest on, the Loans and all other amounts payable hereunder
and under the Loan Documents (including fees) shall be made free and clear of
and without deduction for any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority, but excluding franchise
taxes and taxes imposed on or measured by any Lender's net income or receipts
(such non-excluded items being called "Taxes"). In the event that any
-----
withholding or deduction from any payment to be made by the Borrower or any of
its Subsidiaries hereunder or under any Loan Document is required in respect of
any Taxes pursuant to any applicable law, rule or regulation, then the Borrower
or such Subsidiary will
(a) pay directly to the relevant authority the full amount required to be
so withheld or deducted;
(b) promptly forward to the Administrative Agent an official receipt or
other documentation satisfactory to the Administrative Agent evidencing such
payment to such authority; and
(c) pay to the Administrative Agent for the account of the Lenders on
demand such additional amount or amounts as is necessary (including after giving
effect to withholdings or deductions applicable to sums paid pursuant to this
Section 4.6) to ensure that the net amount actually received by each Lender will
-----------
equal the full amount such Lender would have received had no such withholding or
deduction been required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If the Borrower or any of its Subsidiaries fails to pay any Taxes when due
to the appropriate taxing authority or fails to remit to the Administrative
Agent, for the account of the respective Lenders, the required receipts or other
required documentary evidence, the Borrower shall indemnify the Lenders on
demand for any incremental Taxes, interest or penalties that may become payable
by any Lender as a result of any such failure. For purposes of this Section
-------
4.6, a distribution hereunder by the Administrative Agent or any Lender to or
---
for the account of any Lender shall be deemed a payment by the Borrower.
42
Upon the request of the Borrower or the Administrative Agent, each Lender
that is organized under the laws of a jurisdiction other than the United States
shall, prior to the due date of any payments under the Notes, execute and
deliver to the Borrower and the Administrative Agent, on or about the first
scheduled payment date in each Fiscal Year, one or more (as the Borrower or the
Administrative Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 or such other forms or documents (or successor
forms or documents), appropriately completed, as may be applicable to establish
the extent, if any, to which a payment to such Lender is exempt from withholding
or deduction of Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
---------------------------
provided, all payments by the Borrower pursuant to this Agreement, the Notes,
each Letter of Credit or any other Loan Document shall be made by the Borrower
to the Administrative Agent for the pro rata account of the Lenders entitled to
--- ----
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 11:00 a.m., New York time, on the date due, in same day or
immediately available funds, to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower. Funds received after that
time shall be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly remit in
same day funds to each Lender its share, if any, of such payments received by
the Administrative Agent for the account of such Lender. All interest and fees
shall be computed on the basis of the actual number of days (including the first
day but excluding the last day) occurring during the period for which such
interest or fee is payable over a year comprised of 365 or, if appropriate, 366
days (or, in the case of interest on a LIBO Rate Loan or a Base Rate Loan
calculated at the Federal Funds Rate, 360 days). Whenever any payment to be made
shall otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
----------
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any payment
-------------------
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan (other than pursuant to the terms of Sections
--------
4.3, 4.4, 4.5 and 4.6) or Letter of Credit in excess of its pro rata share of
--- --- --- --- --- ----
payments then or therewith obtained by all Lenders entitled thereto, such Lender
shall purchase from the other Lenders such participations in Loans made by them
and/or Letters of Credit as shall be necessary to cause such purchasing Lender
to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
-------- -------
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of (a) the amount of such selling
Lender's required repayment to the purchasing Lender to (b) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant
43
to this Section may, to the fullest extent permitted by law, exercise all its
rights of payment (including pursuant to Section 4.9) with respect to such
-----------
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this Section to
share in the benefits of any recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
------
Default described in clauses (a) through (d) of Section 8.1.9 or, with the
----------- --- -------------
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations) the Borrower hereby grants to each Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of the
Borrower then or thereafter maintained with such Lender; provided, however, that
-------- -------
any such appropriation and application shall be subject to the provisions of
Section 4.8. Each Lender agrees promptly to notify the Borrower and the
-----------
Administrative Agent after any such setoff and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
-------- -------
validity of such setoff and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Lender may have.
SECTION 4.10. Defaulting Lenders. Notwithstanding anything in this
------------------
Agreement to the contrary, as to any Lender which (a) has refused (which refusal
has not been retracted) to make available its portion of any Borrowing or to
fund its portion of any unreimbursed payment under Section 2.6.1 or (b) has
-------------
given notice to the Administrative Agent and/or the Borrower that it does not
intend to comply with its obligations under Section 2.1 or under Section 2.6.1,
----------- -------------
in the case of clause (a) or clause (b) above, as a result of the appointment of
---------- ----------
a receiver or conservator with respect to such Lender at the direction or
request of any regulatory agency or authority:
(a) such Lender shall not be deemed a Required Lender hereunder and such
Lender's (A) Term Notes, (B) Revolving Loan Commitments, (C) Loans and (D)
Letter of Credit Outstandings shall be excluded from the calculations set forth
in the definition of Required Lenders above;
(b) such Lender shall not be entitled to receive any portion of (A)
Letter of Credit fees, (B) interest payable with respect to any Disbursements or
(C) amounts received in respect of Disbursements; and
(c) such Lender shall not be entitled to receive any commitment fee
payable in respect of the Revolving Loan Commitment Amount.
In addition to the foregoing, and notwithstanding Section 2.1.5, if any Lender
-------------
shall fall within the description set forth in clause (a) or (b) above, the
---------- ---
Issuer shall not be required to issue any Letter of Credit, unless arrangements
reasonably satisfactory to the Issuer have been entered into to
44
eliminate the Issuer's risk with respect to the participation in Letters of
Credit by such Lender, including cash collateralizing such Lender's Letter of
Credit Commitment.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1. Initial Borrowing. The obligations of the Lenders to fund
-----------------
the initial Borrowing shall be subject to the prior or concurrent fulfillment of
each of the conditions precedent set forth in this Section 5.1 to the
-----------
satisfaction of the Administrative Agent.
SECTION 5.1.1. Resolutions, etc. The Documentation Agent shall have
----------------
received from the Borrower a certificate, dated the Closing Date, in form and
substance satisfactory to the Documentation Agent, of its Secretary or Assistant
Secretary as to
(a) resolutions of its Board of Directors then in full force and effect
authorizing the execution, delivery and performance of this Agreement, the Notes
and each other Loan Document to be executed by it; and
(b) the incumbency and signatures of those of its officers authorized to
act with respect to this Agreement, the Notes and each other Loan Document
executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or Assistant Secretary of the
Borrower canceling or amending such prior certificate.
SECTION 5.1.2. Delivery of Notes. The Documentation Agent shall have
-----------------
received, for the account of each Lender, its Notes duly executed and delivered
by the Borrower.
SECTION 5.1.3. Delivery of Certain Documents. The Documentation Agent
-----------------------------
shall have received certified copies of the Organic Documents of the Borrower,
together with all amendments thereto, and a certificate of good standing for the
Borrower, certified as of a recent date by the appropriate governmental officer
in its jurisdiction of incorporation.
SECTION 5.1.4. Refinancing or Payment of Outstanding Indebtedness, etc. All
-------------------------------------------------------
Indebtedness owing by the Borrower and all other Indebtedness identified in Item
----
7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule, together with
--------
all interest, all prepayment premiums and other amounts due and payable with
respect thereto, shall have been paid in full (including, to the extent
necessary, from proceeds of the initial Borrowing); and the Documentation Agent
shall have received executed copies of proper Uniform Commercial Code Form UCC-3
termination statements necessary to release all Liens and other rights of any
Person (a) in any collateral described in any security agreement previously
granted by any Person, and (b) securing any of the Indebtedness identified in
Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule, together
-------------
with such termination documents and pay-off letters in form and
45
substance satisfactory to the Administrative Agent from such other lenders and
such other Uniform Commercial Code Form UCC-3 termination statements or similar
documents as the Documentation Agent may reasonably request from the Borrower.
Without limiting the foregoing, the Administrative Agent shall have received
satisfactory evidence of the payment in full of the revolving loans outstanding
under the Existing Credit Agreement as well as all accrued interest thereon for
ratable distribution to the Existing Lenders.
SECTION 5.1.5. Pro Forma Balance Sheet and Business Plan. The Lenders
-----------------------------------------
shall have received and be satisfied in all respects with the Pro Forma Balance
Sheet and Business Plan.
SECTION 5.1.6. Security Agreement Amendments. The Documentation Agent
-----------------------------
shall have received executed counterparts of each Security Agreement Amendment,
duly executed by ▇▇▇▇▇▇, AmeriTel, ▇▇▇▇▇▇ STC and ▇▇▇▇▇▇ Invision, as
applicable, together with
(a) duly executed appropriate Uniform Commercial Code financing
statements (Form UCC-1), naming the grantor thereunder as the debtor and the
Administrative Agent as the secured party or other similar instruments or
documents, such documents to be suitable for filing under the Uniform Commercial
Code of all jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security interest of the
Administrative Agent pursuant to the applicable Security Agreement Amendment;
(b) executed copies of proper Uniform Commercial Code Form UCC-3
termination statements, if any, necessary to release all Liens and other rights
of any Person
(i) in any collateral described in such Security Agreement
Amendment previously granted by any Person, and
(ii) if applicable, securing any of the Indebtedness identified in
Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule, together
-------------
with such other Uniform Commercial Code Form UCC-3 termination statements as the
Documentation Agent may reasonably request from such grantor; and
(c) certified copies of Uniform Commercial Code Requests for Information
or Copies (Form UCC-11), or a similar search report certified by a party
acceptable to the Administrative Agent, dated a date reasonably near to the date
of the initial Borrowing, listing all effective financing statements which name
such grantor (under its present name and any previous names) as the debtor and
which are filed in the jurisdictions in which filings were made pursuant to
clause (a) above, together with copies of such financing statements (none of
----------
which (other than those described in clause (a), if such Form UCC-11 or search
----------
report, as the case may be, is current enough to list such financing statements
described in clause (a)) shall cover any collateral described in such Security
----------
Agreement Amendment).
46
SECTION 5.1.7. Affirmation and Consent. The Documentation Agent shall have
-----------------------
received executed counterparts of the Affirmation and Consent duly executed by
each of ▇▇▇▇▇▇, AmeriTel, ▇▇▇▇▇▇ STC, ▇▇▇▇▇▇ Invision and ▇▇▇▇▇▇ Carolina.
SECTION 5.1.8. Pro Forma Compliance Certificate. The Documentation Agent
--------------------------------
shall have received, with counterparts for each Lender, an initial Compliance
Certificate, dated the Closing Date and computed on a pro forma basis as of the
--- -----
Closing Date as if the initial Borrowing had been made, duly executed (and with
all schedules thereto duly completed) and delivered by a financial or accounting
Authorized Officer of the Borrower.
SECTION 5.1.9. Solvency Certificate. The Documentation Agent shall have
--------------------
received duly executed and delivered counterparts of the Solvency Certificate,
dated the Closing Date.
SECTION 5.1.10. Closing Date Certificate. The Documentation Agent shall
------------------------
have received the Closing Date Certificate, dated the Closing Date and duly
executed by an Authorized Officer of the Borrower, in which the Borrower shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct representations and warranties made as of such date under this
Agreement, and, at the time such certificate is delivered, such statements shall
in fact be true and correct. All documents and agreements required to be
appended to the Closing Date Certificate (including any and all consents
necessary to be obtained in connection with the transactions contemplated
hereby) shall be in form and substance satisfactory to the Administrative Agent.
SECTION 5.1.11. Opinions of Counsel. The Documentation Agent shall have
-------------------
received legal opinions, dated the Closing Date and addressed to the
Administrative Agent and all Lenders, from
(a) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Obligors, satisfactory in form
and substance to the Administrative Agent
(b) ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, New York counsel to the Obligors,
satisfactory in form and substance to the Administrative Agent; and
(c) Brydon, ▇▇▇▇▇▇▇▇▇▇ & England, regulatory counsel to the Obligors,
satisfactory in form and substance to the Administrative Agent.
SECTION 5.1.12. Insurance. The Documentation Agent shall have received
---------
copies of the policies of insurance maintained and in effect on the Effective
Date as required pursuant to Section 7.1.6 and each Security Agreement,
-------------
certified by an Authorized Officer of the Borrower, together with an insurance
broker's certificate confirming that the Borrower and each Subsidiary maintains
customary coverages as well as coverages which satisfy the requirements of the
Loan Documents.
SECTION 5.1.13. Closing Fees, Expenses, etc. The Administrative Agent and
---------------------------
the Lenders shall have received all fees due and payable on or before the
Closing Date and all costs
47
and expenses (including, without limitation, legal fees and expenses) due and
payable pursuant to Sections 3.3 and 10.3, if then invoiced.
------------ ----
SECTION 5.1.14. Operating Contracts. The Documentation Agent shall have
-------------------
received a satisfactory sampling of Operating Contracts executed subsequent to
June 30, 1997, and such Contracts shall be in form and substance satisfactory to
the Administrative Agent.
SECTION 5.2 All Borrowings. The obligation of each Lender to fund any
--------------
Loan on the occasion of any Borrowing (including the initial Borrowing) shall be
subject to the satisfaction of each of the conditions precedent set forth in
this Section 5.2.
-----------
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
-------------------------------------------
and after giving effect to any Borrowing (but, if any Default of the nature
referred to in Section 8.1.5 shall have occurred with respect to any other
-------------
Indebtedness, without giving effect to the application, directly or indirectly,
of the proceeds thereof) the following statements shall be true and correct:
(a) the representations and warranties set forth in Article VI
----------
(excluding, however, those contained in Section 6.7) and in each other Loan
-----------
Document shall be true and correct in all material respects with the same effect
as if then made (unless stated to relate solely to an earlier date, in which
case such representations and warranties shall be true and correct as of such
earlier date);
(b) except as disclosed by the Borrower to the Administrative Agent and
the Lenders pursuant to Section 6.7,
-----------
(c) no labor controversy, litigation, arbitration or governmental
investigation or proceeding shall be pending or, to the knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries which might
materially adversely affect the Borrower's consolidated business, operations,
assets, revenues, properties, financial condition or prospects or which purports
to affect the legality, validity or enforceability of this Agreement, the Notes
or any other Loan Document; and
(d) no development shall have occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding disclosed
pursuant to Section 6.7 which might materially adversely affect the consolidated
-----------
businesses, operations, assets, revenues, properties, financial condition or
prospects of the Borrower and its Subsidiaries; and
(e) no Default shall have then occurred and be continuing, and neither
the Borrower, any other Obligor, nor any of its Subsidiaries are in violation in
any material respect of any law or governmental regulation or court order or
decree.
SECTION 5.2.2. Credit Extension Requests. The Administrative Agent shall
-------------------------
have received a Borrowing Request if Loans are being requested, or an Issuance
Request if a Letter of Credit is being issued or extended. Each of the delivery
of a Credit Extension Request and the acceptance by the Borrower of the proceeds
of such Credit Extensions shall constitute a
48
representation and warranty by the Borrower that on the date of such Credit
Extensions (both immediately before and after giving effect to such Credit
Extensions and the application of the proceeds thereof) the statements made in
Section 5.2.1 are true and correct.
-------------
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
-----------------------
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be satisfactory in form and substance
to the Administrative Agent and its counsel; the Administrative Agent and its
counsel shall have received all information, approvals, opinions, documents or
instruments as the Administrative Agent or its counsel may reasonably request.
SECTION 5.3. Borrowings for Related Acquisitions. The obligation of each
-----------------------------------
Lender to fund any Loan on the occasion of any Borrowing intended to fund a
Related Acquisition shall be subject to the satisfaction of each of the
additional conditions precedent set forth in this Section 5.3.
-----------
SECTION 5.3.1. Related Acquisitions Consummated. Concurrently with the
--------------------------------
funding of any such Borrowing, all conditions of the applicable Related
Acquisition shall have been satisfied in full, and the Related Acquisition shall
have been consummated in accordance with applicable law. The Documentation Agent
shall have received true, complete and accurate copies (certified as such as of
the date of Borrowing) of and be satisfied with all documents delivered in
connection with the applicable Related Acquisition (including that the
acquisition agreement for such Related Acquisition shall permit the
Administrative Agent to obtain a security interest therein). The Administrative
Agent shall be satisfied that the applicable Related Acquisition meets all of
the requirements set forth in the definition of Related Acquisitions.
SECTION 5.3.2. Approvals. All requisite approvals and consents of all
---------
Official Bodies with respect to the consummation of the applicable Related
Acquisition shall have been duly obtained (or will be filed for and obtained on
terms and within a time period satisfactory to the Administrative Agent), and
the Borrower shall have delivered certified true copies thereof to the
Documentation Agent.
SECTION 5.3.3. Collateral; Filings. The Documentation Agent shall have
-------------------
received (a) executed counterparts of all Security Agreements, Pledge
Agreements, the Subsidiary Guaranty and any amendments or supplements to any of
the foregoing, as applicable, pursuant to the terms of this Agreement or as the
Administrative Agent may otherwise require, and (b) all Uniform Commercial Code
financing statements required in connection with the foregoing or that the
Administrative Agent may otherwise require.
49
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and each Agent to enter into this Agreement
and to make Loans hereunder, the Borrower represents and warrants to each Lender
and each Agent as set forth in this Article VI.
----------
SECTION 6.1. Organization, etc. The Borrower and each of its Subsidiaries
-----------------
is a corporation validly organized and existing and in good standing under the
laws of the State of its incorporation, is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction where the nature
of its business requires such qualification, and has full power and authority
and holds all requisite governmental licenses, permits and other approvals to
enter into and perform its Obligations under this Agreement, the Notes and each
other Loan Document to which it is a party and, subject to the provisions of
Section 6.3, to own and hold under lease its property and to conduct its
-----------
business substantially as currently conducted by it.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
-----------------------------------------
delivery and performance by the Borrower and each other Obligor of this
Agreement, the Notes and each other Loan Document executed or to be executed by
it and the Borrower's and each other Obligor's granting of the Liens provided
for in the Loan Documents are within the Borrower's and each other Obligor's
corporate powers, have been duly authorized by all necessary corporate action,
and do not
(a) contravene the Borrower's or any other Obligor's Organic Documents;
(b) contravene or result in a default under any contractual restriction,
law or governmental regulation or court decree or order binding on or affecting
the Borrower or any of its Subsidiaries; or
(c) result in, or require the creation or imposition of, any Lien on any
of the Borrower's or any of its Subsidiaries' properties other than pursuant to
the Loan Documents.
SECTION 6.3. Government Approval, Regulation, etc. Except as disclosed in
------------------------------------
Item 6.3 ("Approvals") of the Disclosure Schedule, no authorization or approval
--------
or other action by, and no notice to or filing with, any Official Body or other
Person (including shareholders) is required for the due execution, delivery or
performance by the Borrower or any other Obligor of this Agreement, the Notes or
any other Loan Document to which it is a party, or for the Borrower's or any
other Obligor's granting of the Liens provided for in the Loan Documents, all of
which have been duly obtained or made and are in full force and effect. Neither
the Borrower nor any of its Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
50
SECTION 6.4. Validity, etc. This Agreement has been duly executed and
-------------
delivered and constitutes, and the Notes and each other Loan Document executed
by the Borrower and/or each other Obligor will, on the due execution and
delivery thereof, constitute, the legal, valid and binding obligations of the
Borrower and/or the other Obligor party or parties thereto, as the case may be,
enforceable in accordance with their respective terms.
SECTION 6.5. Financial Information. The audited balance sheets of ▇▇▇▇▇▇
---------------------
and AmeriTel as at November 30, 1996, and the quarterly unaudited balance sheets
of ▇▇▇▇▇▇ and AmeriTel as at March 31, 1996, June 30, 1996 and September 30,
1996, and the respective related statements of earnings and cash flow of ▇▇▇▇▇▇
and AmeriTel as at such dates, as well as the audited consolidated balance
sheet, income statement and cash flow statement for the Borrower and its
Subsidiaries as of December 31, 1996 and the unaudited quarterly consolidated
and consolidating balance sheets and income statements and consolidated
statements of cash flow for the Borrower and its Subsidiaries as at March 31,
1997, June 30, 1997 and September 30, 1997, copies of which have been furnished
to the Administrative Agent and each Lender, have been prepared in accordance
with GAAP consistently applied, and present fairly the consolidated financial
condition of the corporations covered thereby as at the dates thereof and the
results of their operations for the periods then ended. The Pro Forma Balance
Sheet and Business Plan has been prepared based upon reasonable assumptions and
presents fairly the consolidated financial condition of the Borrower on a pro
---
forma basis after giving effect to this Agreement and the Loan Documents.
-----
SECTION 6.6. No Material Adverse Change. (a) For the period ending on
--------------------------
the Closing Date, since the date of the financial statements described in
Section 6.5, there has been no material adverse change in the financial
-----------
condition, operations, assets, business, revenues, properties or prospects of
the Borrower and its Subsidiaries.
(b) For the period from and after the Closing Date, since the Closing
Date, there has been no material adverse change in the financial condition,
operations, assets, business, revenues, properties or prospects of the Borrower
or any of its Subsidiaries.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
------------------------------------
or, to the knowledge of the Borrower, threatened litigation, action, proceeding,
or labor controversy affecting the Borrower or any of its Subsidiaries, or any
of their respective properties, businesses, assets or revenues, which purports
to affect the legality, validity or enforceability of this Agreement, the Notes
or any other Loan Document or which, except as disclosed in Item 6.7
--------
("Litigation") of the Disclosure Schedule, may have a Material Adverse Effect.
Neither the Borrower nor any of its Subsidiaries is a party to any contract or
agreement, or subject to any charge, corporate restriction, judgment,
injunction, decree, rule, regulation or order of any court or other Official
Body, that could have a Material Adverse Effect. None of the Borrower nor any
Subsidiary is a party to, and there is not pending or threatened, any labor
dispute, strikes, lock-out, grievance, work stoppage or walkouts relating to any
labor contract to which the Borrower or any Subsidiary is a party, in each case,
which could have a Material Adverse Effect.
51
SECTION 6.8. Compliance With Laws; Authorizations. Except as disclosed in
------------------------------------
Item 6.3 of the Disclosure Schedule, the Borrower and its Subsidiaries have
--------
complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government, or
any instrumentality or agency thereof, having jurisdiction over the conduct of
its businesses or the ownership of its properties, including, without
limitation, those relating to public health and safety and protection of the
environment. Neither the Borrower nor any of its Subsidiaries has received any
notice to the effect that its operations are not in material compliance with any
of the requirements of applicable federal, state and local environmental, health
and safety statutes and regulations or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could have a Material Adverse Effect. The
Borrower and its Subsidiaries have obtained all authorizations necessary and
appropriate to own and operate their businesses and all such authorizations are
in full force and effect, except where the failure to so obtain such
authorizations or to so keep such Authorizations in full force and effect would
not have a Material Adverse Effect.
SECTION 6.9. Subsidiaries. The Borrower has no Subsidiaries, except
------------
AmeriTel, ▇▇▇▇▇▇, ▇▇▇▇▇▇ Carolina, ▇▇▇▇▇▇ STC, ▇▇▇▇▇▇ Invision and any
Subsidiaries which are permitted to have been created or acquired after the
Closing Date by the Required Lenders under express written consents in
accordance with Section 7.1.10.
--------------
SECTION 6.10. Ownership of Properties. The Borrower and each of its
-----------------------
Subsidiaries has good and marketable title to all of its properties and assets,
real and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens, charges or claims (including infringement claims with respect to
patents, trademarks, copyrights and the like) except as permitted pursuant to
Section 7.2.3. All of the outstanding shares of capital stock of the Borrower
-------------
and each of its Subsidiaries have been duly authorized and validly issued, have
been fully paid and are non-assessable. The Borrower and its Subsidiaries own
or are licensed or otherwise have the right to use all of the trademarks,
copyrights, patents, licenses and intellectual property and other rights that
are necessary for the operation of their businesses, without conflict with the
rights of other Persons and free and clear of burdensome restrictions.
SECTION 6.11. Taxes. The Borrower and each of its Subsidiaries has filed
-----
all tax returns and reports required by law to have been filed by it and has
paid all taxes and governmental charges thereby shown to be owing, except any
such taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books. The Borrower and each of its
Subsidiaries is current with respect to payment of all federal and state
withholding taxes, social security taxes and other payroll taxes, except where
such taxes are being contested in good faith by appropriate proceedings with
adequate reserves therefor.
SECTION 6.12. Pension and Welfare Plans. During the twelve-consecutive-
-------------------------
month period prior to the date of
52
any Borrowing hereunder, no steps have been taken to terminate any Pension Plan,
and no contribution failure has occurred with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA. No condition
exists or event or transaction has occurred with respect to any Pension Plan
which might result in the incurrence by the Borrower or any member of the
Controlled Group of any material liability, fine or penalty. Except as disclosed
in Item 6.12 ("Employee Benefit Plans") of the Disclosure Schedule, neither the
---------
Borrower nor any member of the Controlled Group has any contingent liability
with respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Title I of ERISA.
SECTION 6.13. Environmental Warranties. Except as set forth in Item 6.13
------------------------ ---------
("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying groundwater) owned
or leased by the Borrower or any of its Subsidiaries have been, and continue to
be, owned or leased by the Borrower and its Subsidiaries in material compliance
with all Environmental Laws;
(b) there have been no past, and there are no pending or threatened
(i) claims, complaints, notices or requests for information
received by the Borrower or any of its Subsidiaries with respect to any alleged
violation of any Environmental Law, or
(ii) complaints, notices or inquiries to the Borrower or any of its
Subsidiaries regarding potential liability under any Environmental Law;
(c) there have been no Releases of Hazardous Materials at, on or under
any property now or previously owned or leased by the Borrower or any of its
Subsidiaries that, singly or in the aggregate, have, or may reasonably be
expected to have, a material adverse effect on the financial condition,
operations, assets, business, properties or prospects of the Borrower and its
Subsidiaries;
(d) the Borrower and its Subsidiaries have been issued and are in material
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or desirable for
their businesses;
(e) no property now or previously owned or leased by the Borrower or any
of its Subsidiaries is listed or proposed for listing (with respect to owned
property only) on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list of sites requiring investigation or clean-
up;
(f) there are no underground storage tanks, active or abandoned, including
petroleum storage tanks, on or under any property now or previously owned or
leased by the Borrower or any of its Subsidiaries that, singly or in the
aggregate, have, or may reasonably be expected to
53
have, a material adverse effect on the financial condition, operations, assets,
business, properties or prospects of the Borrower and its Subsidiaries;
(g) neither Borrower nor any Subsidiary of the Borrower has directly
transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state list
or which is the subject of federal, state or local enforcement actions or other
investigations which may lead to material claims against the Borrower or such
Subsidiary thereof for any remedial work, damage to natural resources or
personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos present at
any property now or previously owned or leased by the Borrower or any Subsidiary
of the Borrower that, singly or in the aggregate, have, or may reasonably be
expected to have, a material adverse effect on the financial condition,
operations, assets, business, properties or prospects of the Borrower and its
Subsidiaries; and
(i) no conditions exist at, on or under any property now or previously
owned or leased by the Borrower which, with the passage of time, or the giving
of notice or both, would give rise to liability under any Environmental Law.
SECTION 6.14. Regulations G, U and X. The Borrower is not engaged in the
----------------------
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loans will be used to purchase or carry any margin
stock or for a purpose which violates, or would be inconsistent with, F.R.S.
Board Regulation G, U or X. Terms for which meanings are provided in F.R.S.
Board Regulation G, U or X or any regulations substituted therefor, as from time
to time in effect, are used in this Section with such meanings.
SECTION 6.15. Accuracy of Information. All factual information heretofore
-----------------------
or contemporaneously furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender will be, true and accurate in every material
respect on the date as of which such information is dated or certified and as of
the date of execution and delivery of this Agreement by the Administrative Agent
and such Lender, and such information is not, or shall not be, as the case may
be, incomplete by omitting to state any material fact necessary to make such
information not misleading. All projections have been prepared in good faith on
the basis of reasonable assumptions and represent the Borrower's best estimate
of its future performance.
SECTION 6.16. Operating Contracts. Except as set forth in Item 6.16
------------------- ---------
("Operating Contracts") of the Disclosure Schedule, ▇▇▇▇▇▇, AmeriTel, ▇▇▇▇▇▇
Carolina, ▇▇▇▇▇▇ Invision, and ▇▇▇▇▇▇ STC are in compliance in all material
respects with each of their Operating Contracts and all related agreements.
54
SECTION 6.17. Solvency. Both before and immediately after giving effect
--------
to any Borrowing requested hereunder:
(a) the fair value of the assets of Borrower and its Subsidiaries on a
consolidated basis will exceed the total amount of liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities) of Borrower
and its Subsidiaries on a consolidated basis, on a going-concern basis;
(b) the present fair salable value (as defined below) of the assets of
Borrower and its Subsidiaries on a consolidated basis will exceed the probable
total liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of Borrower and its Subsidiaries on a consolidated
basis as they become absolute and matured;
(c) the Borrower and its Subsidiaries on a consolidated basis will be
able to pay their debts, including contingent liabilities, as they mature and
become due;
(d) the Borrower and its Subsidiaries on a consolidated basis are not,
and will not be, engaged in a business for which their consolidated capital is,
or would be, unreasonably small for their consolidated business; and
(e) the Borrower and its Subsidiaries on a consolidated basis have not
incurred (by way of assumption or otherwise) any obligations or liabilities
(contingent or otherwise) under this Agreement or any other Loan Document, nor
have they made any conveyance pursuant to or in connection therewith, with
actual intent to hinder, delay or defraud either present or future creditors of
the Borrower or any of its Subsidiaries.
For purposes of this Section, the "fair salable value" of the Borrower's and its
Subsidiaries' assets means the amount which may be realized within a reasonable
time, either through collection or sale of such assets at the regular market
value, based upon the amount which could be obtained for such assets within such
period by a capable and diligent seller from an interested buyer who is willing
(but is under no compulsion) to purchase under ordinary selling conditions.
SECTION 6.18. Senior Unsecured Note Instruments. All of the
---------------------------------
representations and warranties contained in the Senior Unsecured Note
Instruments are true and correct as of the Closing Date in all material
respects.
SECTION 6.19. No Contractual or Other Restrictions. None of AmeriTel,
------------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇ STC, ▇▇▇▇▇▇ Invision or any other Subsidiary is a party to any
agreement or arrangement or subject to any law, rule, regulation or decision
that limits its ability to pay dividends to, or otherwise make Investments in or
other payments to, the Borrower or that limits its ability to grant Liens solely
in favor of the Administrative Agent.
SECTION 6.20. True Copies of Documents. The Borrower has provided to the
------------------------
Administrative Agent true and complete copies of each executed acquisition
agreement with
55
respect to any Related Acquisition and all documents related to any of the
foregoing, in each case as in effect on the Closing Date.
SECTION 6.21. Absence of any Undisclosed Liabilities. There are no
--------------------------------------
material liabilities of the Borrower or any of its Subsidiaries of any kind
whatsoever, whether accrued, contingent, absolute, determined, determinable or
otherwise, and there is no existing condition, situation or set of circumstances
which could reasonably be expected to result in such a liability, other than
those liabilities provided for or disclosed in the most recently delivered
financial statements.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the
---------------------
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrower will
perform the obligations set forth in this Section 7.1.
-----------
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The Borrower
--------------------------------------------
will furnish, or will cause to be furnished, to the Administrative Agent (for
distribution to each Lender) copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 45 days after the end of
each Fiscal Quarter of each Fiscal Year of the Borrower, consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as of the end
of such Fiscal Quarter (including comparisons to the then current budget and to
the comparable period for the prior year) and consolidated and consolidating
statements of earnings and a consolidated statement of cash flow of the Borrower
and its Subsidiaries for such Fiscal Quarter and for the period commencing at
the end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter (including comparisons to the then current budget and to the comparable
period for the prior year), certified by the chief financial Authorized Officer
of the Borrower;
(b) as soon as available and in any event within 90 days after the end of
each Fiscal Year of the Borrower, a copy of the annual audit report for such
Fiscal Year for the Borrower and its Subsidiaries, including therein
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and consolidated and
consolidating statements of earnings and a consolidated statement of cash flow
of the Borrower and its Subsidiaries for such Fiscal Year, in each case
certified (without any Impermissible Qualification) in a manner acceptable to
the Administrative Agent and the Required Lenders by Deloitte & Touche, L.L.P.
or other independent certified public accountants reasonably acceptable to the
Administrative Agent and the Required Lenders, together with a certificate from
such accountants containing a computation of, and showing compliance with, each
of the financial ratios and restrictions contained in Section 7.2.4 and to the
-------------
effect that, in making the examination necessary for the signing of such annual
report by such accountants, they have not
56
become aware of any Default or Event of Default that has occurred and is
continuing, or, if they have become aware of such Default or Event of Default,
the steps, if any, being taken to cure it;
(c) as soon as available and in any event within 45 days after the end of
each calendar month of each Fiscal Year of the Borrower, consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as of the end
of such calendar month (including comparisons to the then current budget and to
the comparable period for the prior year) and consolidated and consolidating
statements of earnings and a consolidated statement of cash flow of the Borrower
and its Subsidiaries for such calendar month and for the period commencing at
the end of the previous Fiscal Year and ending with the end of such calendar
month (including comparisons to the then current budget and to the comparable
period for the prior year), certified by the chief financial Authorized Officer
of the Borrower; provided, however, that for the October 1997 calender month,
-------- -------
such statements may be furnished to the Administrative Agent on or prior to
December 31, 1997;
(d) as soon as available and in any event within 45 days after the end of
each Fiscal Quarter, (i) a Compliance Certificate, executed by the chief
financial Authorized Officer of the Borrower, showing (in reasonable detail and
with appropriate calculations and computations in all respects satisfactory to
the Administrative Agent) compliance with the financial covenants set forth in
Sections 7.2.4 and (ii) a written statement setting forth management's
--------------
discussion and analysis of the financial condition and results of operations of
the Borrower and its Subsidiaries for such Fiscal Quarter, which statement shall
also be delivered in connection with the monthly financial statements required
pursuant to clause (c) of this Section 7.1.1;
------ -------------
(e) as soon as possible and in any event within three days after the
Borrower has knowledge of any Default, a statement of the chief financial
Authorized Officer of the Borrower setting forth details of such Default and the
action which the Borrower has taken and proposes to take with respect thereto;
(f) as soon as possible and in any event within three days after the
Borrower has knowledge of (i) the occurrence of any adverse development with
respect to any litigation, action, proceeding, or labor controversy described in
Section 6.7 or (ii) the commencement of any labor controversy, litigation,
-----------
action, proceeding of the type described in Section 6.7, notice thereof and
-----------
copies of all documentation relating thereto;
(g) promptly after the sending or filing thereof, copies of all reports
which the Borrower sends to any of its securityholders, and all reports and
registration statements which the Borrower or any of its Subsidiaries files with
the Securities and Exchange Commission or any national securities exchange;
(h) immediately upon becoming aware of the institution of any steps by
the Borrower or any other Person to terminate any Pension Plan, or the failure
to make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA, or the taking
of any action with respect to a Pension Plan which could result in the
requirement that the Borrower furnish a bond or other security to the PBGC or
such Pension
57
Plan, or the occurrence of any event with respect to any Pension Plan which
could result in the incurrence by the Borrower or any of its Subsidiaries of any
material liability, fine or penalty, or any material increase in the contingent
liability of the Borrower or any of its Subsidiaries with respect to any post-
retirement Welfare Plan benefit, notice thereof and copies of all documentation
relating thereto;
(i) notice to the Administrative Agent promptly following the issuance or
adoption after the date of this Agreement of any federal, state or local
statute, regulation or ordinance or judicial or administrative order limiting or
controlling the operations of the Borrower or any of its Subsidiaries which
might have a Material Adverse Effect, together with a copy of such statute,
regulation, ordinance or judicial or administrative order;
(j) promptly, and in any event within 60 days after the end of each
Fiscal Year, quarterly cash flow, income statement and capital expenditure
budgets for the current Fiscal Year (including a description of the assumptions
used in the preparation thereof) and a revised business plan through the Stated
Maturity Date for the Term Loans in scope and form consistent with the business
plan furnished to the Administrative Agent prior to the Closing Date, all in
reasonable detail satisfactory to the Administrative Agent and certified by an
Authorized Officer of the Borrower, and, within 30 days after the end of each
Fiscal Quarter, an explanation of any material deviation from the most recently
submitted budgets;
(k) promptly upon the occurrence thereof, notice of (i) any lapse or
other termination of any authorization issued to the Borrower or any Subsidiary
by any Official Body, (ii) any refusal by any Official Body to renew or extend
any such authorization (unless the Borrower or its Subsidiary is still in the
process of negotiating the terms of an extension of such authorization, and has
a good faith expectation that such authorization will be renewed or extended),
or (iii) any dispute between the Borrower or a Subsidiary and any Official Body
which may have a Material Adverse Effect;
(l) promptly after the receipt thereof, copies of all notices and demands
received pursuant to any Senior Unsecured Note Instruments; and
(m) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any Lender
through the Administrative Agent may from time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. The Borrower will, and will
-------------------------
cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include
(without limitation):
(a) the maintenance and preservation of its corporate existence and
qualification as a foreign corporation; and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property except
to the extent being diligently
58
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
SECTION 7.1.3. Maintenance of Operating Contracts. The Borrower will, and
----------------------------------
will cause each of its Subsidiaries to, use its reasonable best efforts to
maintain, preserve, protect, keep, renew or extend each Operating Contract. The
Borrower will not, and will not permit any of its Subsidiaries to, without the
prior written consent of the Required Lenders, directly or indirectly, make or
cause to be made any material changes, modifications or alterations in the terms
or conditions of any of its Operating Contracts, or any other material contracts
or leases, if the result of such changes, modifications or alterations would
have a material adverse effect on the ability of the Borrower or any of its
Subsidiaries to perform its obligations under the Loan Documents.
SECTION 7.1.4. Conduct of Business; Separate Existence; Maintenance of
-------------------------------------------------------
Authorizations. The Borrower will, and will cause each of its Subsidiaries to
--------------
(a) carry on and conduct its business in the same manner and in substantially
the same fields of enterprise as it is presently conducted; (b) do all things
necessary to remain duly organized, validly existing and in good standing in its
jurisdiction of organization and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted; and (c) do all
things reasonably necessary to renew, extend and continue in effect all
authorizations which may at any time and from time to time be necessary to
operate and own the business and assets of the Borrower and its Subsidiaries in
compliance with all applicable laws and regulations, except where the failure to
so comply would not have a Material Adverse Effect.
SECTION 7.1.5. Maintenance of Properties. The Borrower will, and will
-------------------------
cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties in good repair, working order and condition, and make necessary and
proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times unless the Borrower
reasonably determines in good faith that the continued maintenance of any of its
properties is no longer economical.
SECTION 7.1.6. Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies insurance with respect to its properties and business against such
casualties and contingencies and of such types and in such amounts as is
customary in the case of similar businesses and will, upon request of the
Administrative Agent, furnish to each Lender at reasonable intervals a
certificate of an Authorized Officer of the Borrower setting forth the nature
and extent of all insurance maintained by the Borrower and its Subsidiaries in
accordance with this Section.
SECTION 7.1.7. Books and Records. The Borrower will, and will cause each
-----------------
of its Subsidiaries to, keep books and records which accurately reflect all of
its business affairs and transactions and permit the Administrative Agent and
each Lender or any of their respective representatives, at reasonable times and
intervals, to visit all of its offices, to discuss its financial matters with
its officers and independent public accountant (and the Borrower hereby
authorizes such independent public accountant to discuss the Borrower's
financial matters with each Lender
59
or its representatives whether or not any representative of the Borrower is
present) and to examine (and, at the expense of the Borrower, photocopy extracts
from) any of its books or other corporate records. The Borrower shall pay any
fees of such independent public accountant incurred in connection with the
Administrative Agent's or any Lender's exercise of its rights pursuant to this
Section.
SECTION 7.1.8. Environmental Covenant. The Borrower will, and will cause
----------------------
each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits, approvals,
certificates, licenses and other authorizations relating to environmental
matters in effect and remain in material compliance therewith, and handle all
Hazardous Materials in material compliance with all applicable Environmental
Laws;
(b) immediately notify the Administrative Agent and provide copies upon
receipt of all written claims, complaints, notices or inquiries relating to the
condition of its facilities and properties or compliance with Environmental
Laws; and
(c) provide such information and certifications which the Administrative
Agent may reasonably request from time to time to evidence compliance with this
Section 7.1.8.
-------------
SECTION 7.1.9. Additional Collateral. The Borrower shall, and shall cause
---------------------
each of its Subsidiaries to, cause the Administrative Agent and the Lenders to
have at all times a first priority perfected security interest (unless otherwise
agreed to by the Required Lenders) in all of the assets of the Borrower and its
Subsidiaries, all of the issued and outstanding shares of capital stock of the
Borrower's Subsidiaries and any personal or material real property acquired by
the Borrower or any of its Subsidiaries (including all assets acquired in a
Permitted Acquisition) after the Effective Date. Without limiting the generality
of the foregoing, the Borrower shall, and shall cause each of its Subsidiaries
to, deliver to the Administrative Agent all assets or deliver or cause to be
delivered to the Administrative Agent all shares of capital stock of the
Borrower's Subsidiaries, for which possession by the Administrative Agent is
required for perfection of such security interest, and shall, and shall cause
each of its Subsidiaries to, execute, deliver and/or file (as applicable), or
cause to be executed, delivered and/or filed (as applicable), each Pledge
Agreement, Security Agreement, Uniform Commercial Code (Form UCC-1) financing
statements, Uniform Commercial Code (Form UCC-3) termination statements, and
other documentation necessary to grant and perfect such security interest, in
each case in form and substance satisfactory to the Administrative Agent. In
furtherance of the foregoing, the Borrower shall promptly cause all Preferred
Stock that is converted into common capital stock of the Borrower to be pledged
to the Administrative Agent pursuant to an Investor Pledge Agreement.
SECTION 7.1.10. Future Subsidiaries. Promptly after creation or
-------------------
acquisition (directly or indirectly) by the Borrower of any Subsidiary (to the
extent permitted by the Required Lenders),
60
(a) the Borrower shall cause such Subsidiary to execute and deliver to
the Administrative Agent, with counterparts for each Lender, the Subsidiary
Guaranty and a Subsidiary Security Agreement providing a security interest in
all of its assets to the fullest extent permitted by applicable law (it being
understood and agreed that no such Subsidiary, if incorporated under the laws of
any jurisdiction outside of the United States, shall be required to execute the
Subsidiary Guaranty if doing so would, in the opinion of the Administrative
Agent, involve material legal impediments, material foreign exchange control
ramifications or material tax costs); and
(b) the Borrower shall deliver, or cause to be delivered, to the
Administrative Agent under the Borrower Pledge Agreement or a pledge agreement
satisfactory in form and substance to the Administrative Agent, certificates (if
any) representing all of the outstanding shares of capital stock of such
Subsidiary, along with undated stock powers for such certificates, executed in
blank, or, if any securities subject thereto are uncertificated securities,
confirmation and evidence satisfactory to the Administrative Agent that
appropriate book entries have been made in the relevant books or records of a
financial intermediary or the issuer of such securities, as the case may be,
under applicable law resulting in the perfection of the security interest
granted in favor of the Administrative Agent pursuant to the terms of the
Borrower Pledge Agreement or a pledge agreement satisfactory in form and
substance satisfactory to the Administrative Agent, together, in each case, with
such opinions, in form and substance and from counsel satisfactory to the
Administrative Agent, as the Administrative Agent may require. In addition, any
Subsidiary that meets the above criteria but cannot execute a guaranty or
security agreement, because of applicable law, or whose guaranty or security
agreement is limited by applicable law, shall promptly, upon any change of such
law which results in such execution being no longer prohibited or such guaranty
or security agreement being no longer so limited, enter into a guaranty or
security agreement or shall promptly amend its previously executed guaranty and
security agreement in a manner satisfactory to the Administrative Agent.
SECTION 7.1.11. Use of Proceeds. The Borrower shall apply the proceeds of
---------------
Term Loans made from and after the Closing Date to (i) refinance outstandings
under the Existing Credit Agreement, (ii) fund the Related Acquisitions and
(iii) pay fees and expenses directly related to the Related Acquisitions and in
connection with this Agreement. The Borrower shall apply the proceeds of
Revolving Loans made from and after the Closing Date (i) to refinance
outstanding letters of credit under the Existing Credit Agreement and (ii) for
working capital, capital expenditures, general corporate purposes and Permitted
Acquisitions. Without limiting the foregoing, no proceeds of any Loan will be
used to acquire any equity security of a class which is registered pursuant to
Section 12 of the Securities Exchange Act of 1934 or any "margin stock", as
defined in F.R.S. Board Regulation U.
SECTION 7.1.12. Interest Rate Protection. By no later than June 30, 1998,
------------------------
the Borrower shall forthwith subject at least 50% of the outstanding principal
amount of the Term Loans to Hedging Obligations until the Stated Maturity Date
of the Term Loans with counterparties and on terms and conditions satisfactory
to the Administrative Agent.
61
SECTION 7.2. Negative Covenants. The Borrower agrees with the
------------------
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrower will
perform the obligations set forth in this Section 7.2.
-----------
SECTION 7.2.1. Business Activities. The Borrower will not, and will not
-------------------
permit any of its Subsidiaries to, engage in any business activity, except those
described in the first recital and such activities as may be incidental or
-------------
related thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not permit
------------
any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Loans and other Obligations;
(b) until the date of the initial Borrowing, Indebtedness identified in
Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule;
-------------
(c) Indebtedness existing as of the Effective Date which is identified in
Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure Schedule;
(d) unsecured Indebtedness in an aggregate principal amount not to exceed
$115,000,000 (minus any and all payments made thereon) pursuant to the Senior
Unsecured Notes;
(e) Indebtedness in an aggregate principal amount not to exceed
$2,500,000 at any time outstanding which is incurred by the Borrower or any of
its Subsidiaries to a vendor of any assets to finance its acquisition of such
assets and/or for Capitalized Lease Liabilities;
(f) unsecured Indebtedness incurred in the ordinary course of business
(including open accounts extended by suppliers on normal trade terms in
connection with purchases of goods and services, but excluding any Indebtedness
of the type described in clauses (a), (b), (c) and (f) of the definition of
----------- --- --- ---
Indebtedness); and
(g) other Indebtedness of the Borrower and its Subsidiaries in an
aggregate amount not to exceed $5,000,000 at any one time outstanding, so long
as the covenants contained therein are no more restrictive than the covenants
contained in this Agreement;
provided, however, that no Indebtedness otherwise permitted by clause (f), (g)
-------- ------- ---------- ---
or (h) shall be permitted if, after giving effect to the incurrence thereof, any
---
Default shall have occurred and be continuing.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
-----
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its properties, revenues or assets, whether now owned or hereafter acquired,
except:
62
(a) Liens securing payment of the Obligations, granted pursuant to any
Loan Document;
(b) until the date of the initial Borrowing, Liens securing payment of
the Indebtedness of the type permitted and described in clause (b) of
----------
Section 7.2.2;
-------------
(c) Liens granted prior to the Effective Date to secure payment of the
Indebtedness of the type permitted and described in clause (c) of Section 7.2.2,
---------- -------------
which Liens are described in Item 7.2.2(c) of the Disclosure Schedule;
-------------
(d) Liens granted to secure payment of the Indebtedness of the type
permitted and described in clause (e) of Section 7.2.2 and covering only those
---------- -------------
assets acquired with the proceeds of such Indebtedness;
(e) Liens for taxes, assessments or other governmental charges or levies
not at the time delinquent or thereafter payable without penalty or being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books;
(f) Liens of carriers, warehousemen, mechanics, materialmen and landlords
incurred in the ordinary course of business for sums not overdue or being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books;
(g) Liens incurred in the ordinary course of business in connection with
workmen's compensation, unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders, statutory
obligations, leases and contracts (other than for borrowed money) entered into
in the ordinary course of business or to secure obligations on surety or appeal
bonds;
(h) judgment Liens in existence less than 15 days after the entry thereof
or with respect to which execution has been stayed or the payment of which is
covered in full (subject to a customary deductible) by insurance maintained with
responsible insurance companies; and
(i) other Liens, securing Indebtedness (but not any Subordinated Debt) in
an aggregate amount not exceeding $5,000,000.
SECTION 7.2.4. Financial Condition. The Borrower will not permit:
-------------------
(a) the Total Debt to EBITDA Ratio at any time during any period set
forth below to be greater than the ratio set forth opposite such period:
63
Total Debt
Period to EBITDA Ratio
------ ---------------
Closing Date to (and 6.0:1
including) 12/30/98
12/31/98 to (and 5.5:1
including) 12/30/99
12/31/99 to (and 5.0:1
including) 12/30/00
12/31/00 to (and 4.5:1
including) 12/30/01
12/31/01 and thereafter 4.0:1;
(b) the Senior Secured Debt to EBITDA Ratio at any time during any period
set forth below to be greater than the ratio set forth opposite such period:
Senior Secured Debt
Period to EBITDA Ratio
------ -------------------
Closing Date to (and 3.5:1
including) 12/30/99
12/31/99 and thereafter 3.0:1;
(c) the EBITDA to Cash Interest Expense Ratio as at the last day of any
Fiscal Quarter ending on a date set forth below to be less than the ratio set
forth opposite such date:
EBITDA to Cash
Period Interest Expense Ratio
------ ----------------------
Closing Date to (and 1.5:1
including) 12/31/98
01/01/99 and thereafter 1.75:1;
(d) the EBITDA to Fixed Charges Ratio as at the last day of any Fiscal
Quarter beginning on March 31, 1998 for the Rolling Period ending on such date
to be less than 1.10:1.
SECTION 7.2.5. Investments. The Borrower will not, and will not permit
-----------
any of its Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Effective Date identified in Item
7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
--------
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness pursuant
to Section 7.2.2;
-------------
64
(d) without duplication, Investments permitted as Capital
Expenditures;
(e) without duplication, Investments made to consummate Permitted
Acquisitions; and
(f) other Investments in an aggregate amount at any one time not to
exceed $500,000;
provided, however, that
-------- -------
(g) any Investment which when made complies with the requirements of
the definition of the term "Cash Equivalent Investment" may continue to be
--------------------------
held notwithstanding that such Investment if made thereafter would not
comply with such requirements; and
(h) no Investment otherwise permitted by clause (e) or (f) shall be
---------- ---
permitted to be made if, immediately before or after giving effect thereto,
any Default shall have occurred and be continuing.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
------------------------
Effective Date:
(a) the Borrower will not declare, pay or make any dividends or other
distributions (in cash, property or obligations) on its capital stock or
other equity interests (now or hereafter outstanding) of the Borrower
(other than dividends payable in its own capital stock) or apply, or permit
any of its Subsidiaries to apply, any of its funds, property or assets to
the payment, purchase, redemption, sinking fund or other retirement or
acquisition of, or agree or permit any of its Subsidiaries to pay for,
purchase, redeem, retire or acquire, any capital stock or other equity
interests (including warrants and options) of the Borrower or any of its
Subsidiaries or any Subordinated Debt, any Senior Unsecured Notes or tax
sharing payments, except that, so long as no Default has occurred and is
------
continuing, (i) the Borrower may pay the Preferred Dividends on the
Preferred Stock commencing in the 1997 Fiscal Year in a maximum aggregate
amount not to exceed $480,000 in any Fiscal Year and (ii) the Borrower may
pay interest on the Senior Unsecured Notes in accordance with the terms
thereof as in effect on the Closing Date;
(b) the Borrower will not permit any Subsidiary to declare or pay any
dividends or make any other distributions on its capital stock or other
equity interests (other than, in the case of a corporation, dividends
payable in its own capital stock) or redeem, repurchase or otherwise
acquire or retire any of its capital stock or other equity interests at any
time outstanding, or pay any Indebtedness, except any Subsidiary may
declare and pay distributions or dividends to the Borrower or to a Wholly-
Owned Subsidiary of the Borrower; and
(c) the Borrower will not, and will not permit any Subsidiary to,
make any deposit for any of the foregoing purposes.
SECTION 7.2.7. Limitation on Management and Advisory Fees. The Borrower
------------------------------------------
will not, and will not permit any of its Subsidiaries to, enter into any
arrangement for the payment of, or pay, management, advisory or similar fees
(whether with EUFCC, Onyx or otherwise) in excess
65
of $500,000 in any Fiscal Year other than, in connection with any acquisition, a
fee to EUFCC equal to 2.0% of that portion of the acquisition price of any
acquisition that does not exceed $15,000,000 and 1.5% of that portion of the
acquisition price of any acquisition that does exceed $15,000,000 ("Acquisition
-----------
Fees"), so long as the aggregate of all such Acquisition Fees in any event does
----
not exceed $40,000 in the aggregate in any Fiscal Year; provided, however, that
-------- -------
the fees permitted pursuant to this Section may only be paid so long as no
Default has occurred and is continuing.
SECTION 7.2.8. Take or Pay Contracts. The Borrower will not, and will
---------------------
not permit any of its Subsidiaries to, enter into or be a party to any
arrangement for the purchase of materials, supplies, other property or services
if such arrangement by its express terms requires that payment be made by the
Borrower or such Subsidiary regardless of whether such materials, supplies,
other property or services are delivered or furnished to it.
SECTION 7.2.9. Consolidation, Merger, etc. The Borrower will not, and
--------------------------
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other Person, or purchase or otherwise acquire
all or any part of the assets of any Person (or of any division thereof) except
(a) any such Subsidiary may liquidate or dissolve voluntarily into, and
may merge with and into, the Borrower or any Wholly-Owned Subsidiary, and the
assets or stock of any theretofore existing Subsidiary may be purchased or
otherwise acquired by the Borrower or any other Wholly-Owned Subsidiary (with
the Borrower or such Wholly-Owned Subsidiary to be the surviving corporation in
any such transaction); and
(b) Permitted Acquisitions; so long as (i) no Default has occurred and is
continuing or would result therefrom, (ii) such other Person is organized or
incorporated under the laws of a state of the United States and (iii) the
Borrower or the survivor of the merger or consolidation has executed such
agreements and instruments as requested by the Administrative Agent to evidence
the continued compliance with the obligations of the Borrower and its
Subsidiaries under this Agreement and the Loan Documents to which it is a party.
SECTION 7.2.10. Asset Dispositions, etc. The Borrower will not, and will
-----------------------
not permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey all or any part of its assets (including accounts receivable
and capital stock of Subsidiaries), or issue stock of or grant options, warrants
or other equity rights in the Borrower or its Subsidiaries to any Person, unless
(a) such sale, transfer, lease, contribution or conveyance (i) is in the
ordinary course of its business and is, in the reasonable and good faith opinion
of the Borrower, of obsolete or worn out property or property no longer used in
its business, (ii) is to the Borrower or (iii) is permitted by Section 7.2.9; or
-------------
(b) such sale, transfer, lease, contribution or conveyance is for fair
market value to any Person other than an Affiliate, and the following conditions
are met:
66
(i) the aggregate fair market value, as well as the aggregate book
value, of all such asset sales do not exceed $100,000 in any Fiscal Year or
$250,000 from and after the Closing Date;
(ii) immediately prior to and immediately after giving effect to such
disposition, no Default or Event of Default shall have occurred or would result
therefrom;
(iii) the Borrower has applied any Net Disposition Proceeds pursuant to
Section 3.1.1(d); and
----------------
(iv) all the consideration for such sale, transfer, lease,
contribution or conveyance is cash.
SECTION 7.2.11. Modification of Certain Agreements. The Borrower will
----------------------------------
not, without the prior written consent of the Required Lenders and the
Administrative Agent, consent to or enter into any amendment, supplement or
other modification of any of the terms or provisions contained in, or applicable
to, (a) any Operating Contract, if the effect of such amendment, supplement or
modification might individually or in the aggregate have a material adverse
effect on the ability of the Borrower or any of its Subsidiaries to perform its
obligations under the Loan Documents, (b) the Senior Unsecured Note Instruments,
(c) the documents relating to the Preferred Stock, (d) documents relating to any
warrant or option granted by the Borrower if the effect of such amendment,
supplement or other modification is to impose or increase any monetary
obligation on the Borrower, or (e) any acquisition agreement relating to any
Permitted Acquisition or Related Acquisition.
SECTION 7.2.12. Transactions with Affiliates. The Borrower will not, and
----------------------------
will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist, any arrangement or contract with any of its other Affiliates
unless such arrangement or contract is fair and equitable to the Borrower or
such Subsidiary comparable to the terms that would be achieved in an arm's
length transaction with a Person that is not an Affiliate and is an arrangement
or contract of the kind which would be entered into by a prudent Person in the
position of the Borrower or such Subsidiary with a Person which is not one of
its Affiliates.
SECTION 7.2.13. Negative Pledges, Restrictive Agreements, etc. The
---------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement (excluding this Agreement, any other Loan Document and the Senior
Unsecured Note Instruments, as in effect on the date hereof) prohibiting
(a) the creation or assumption of any Lien upon its properties, revenues
or assets, whether now owned or hereafter acquired, or the ability of the
Borrower or any other Obligor to amend or otherwise modify this Agreement or any
other Loan Document; or
(b) the ability of any Subsidiary to make any payments, directly or
indirectly, to the Borrower by way of dividends, advances, repayments of loans
or advances, reimbursements of management and other intercompany charges,
expenses and accruals or other returns on
67
investments, or any other agreement or arrangement which restricts the ability
of any such Subsidiary to make any payment, directly or indirectly, to the
Borrower.
SECTION 7.2.14. Changes to Fiscal Year. The Borrower will not, and will
----------------------
not permit any of its Subsidiaries to, change its Fiscal Year.
SECTION 7.2.15. Rental Obligations. The Borrower will not, and will not
------------------
permit any of its Subsidiaries to, enter into at any time any arrangement which
does not create a Capitalized Lease Liability and which involves the leasing by
the Borrower or any of its Subsidiaries from any lessor of any real or personal
property (or any interest therein), except arrangements which, together with all
other such arrangements which shall then be in effect, will not require the
payment of an aggregate amount of rentals by the Borrower and its Subsidiaries
in excess of (excluding escalations resulting from a rise in the consumer price
or similar index) $1,500,000 for any Fiscal Year; provided that such amount may
--------
be increased to $2,000,000 upon 60 days prior written notice from the Borrower
to the Administrative Agent that aggregate rental payments will exceed
$1,500,000 for such Fiscal Year.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
----------------------------
or occurrences described in this Section 8.1 shall constitute an "Event of
----------- --------
Default".
-------
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default in
--------------------------
the payment or prepayment when due of any principal of any Loan or any
Reimbursement Obligation, or the Borrower shall default (and such default shall
continue for a period of three days) in the payment when due of any interest on
any Loan, or the Borrower shall default (and such default shall continue
unremedied for a period of five days) in the payment when due of any commitment
fee or of any other Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of the
------------------
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of the Borrower or any other Obligor to the Administrative Agent
or any Lender for the purposes of or in connection with this Agreement or any
such other Loan Document (including any certificates delivered pursuant to
Article V) is or shall be incorrect when made in any material and adverse
---------
respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. The
----------------------------------------------------
Borrower shall default in the due performance and observance of any of its
obligations under Section 7.1.1(e), Section 7.1.9, Section 7.1.10, Section
---------------- ------------- -------------- -------
7.1.11 or Section 7.2.
------ -----------
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
--------------------------------------------------
Obligor shall default in the due performance and observance of any other
agreement contained herein or
68
in any other Loan Document executed by it, and such default shall continue
unremedied for a period of 30 days after such Obligor has knowledge thereof or
notice thereof shall have been given to the Borrower by the Administrative Agent
or any Lender.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in
-----------------------------
the payment when due, whether by acceleration or otherwise, of any other
Indebtedness (including any Subordinated Debt but other than Indebtedness
described in Section 8.1.1) of the Borrower or any of its Subsidiaries or any
-------------
other Obligor having a principal amount, individually or in the aggregate, in
excess of $2,500,000, or a default shall occur in the performance or observance
of any obligation or condition with respect to such other Indebtedness if the
effect of such default is to accelerate the maturity of any such Indebtedness or
such default shall continue unremedied for any applicable period of time
sufficient to permit the holder or holders of such Indebtedness, or any trustee
or agent for such holders, to cause such Indebtedness to become due and payable
prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of money
---------
in excess of $2,500,000 shall be rendered against the Borrower or any of its
Subsidiaries or any other Obligor and either
(a) enforcement proceedings shall have been commenced by any creditor upon
such judgment or order; or
(b) there shall be any period of ten consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
-------------
with respect to any Pension Plan
(a) the institution of any steps by the Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a result
of such termination, the Borrower or any such member could be required to make a
contribution to such Pension Plan, or could reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $500,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Control of the Borrower. Any Change in Control shall
-----------------------
occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any of its
---------------------------
Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing its
inability or unwillingness to pay, debts as they become due;
69
(b) apply for, consent to, or acquiesce in, the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of its
Subsidiaries or any other Obligor or any property of any thereof, or make a
general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence, permit or
suffer to exist the appointment of a trustee, receiver, sequestrator or other
custodian for the Borrower or any of its Subsidiaries or any other Obligor or
for a substantial part of the property of any thereof, and such trustee,
receiver, sequestrator or other custodian shall not be discharged within 60
days, provided that the Borrower, each Subsidiary and each other Obligor hereby
expressly authorizes the Administrative Agent and each Lender to appear in any
court conducting any relevant proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of or commence any
bankruptcy, reorganization, debt arrangement or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of the Borrower or any of its Subsidiaries or any other
Obligor, and, if any such case or proceeding is not commenced by the Borrower or
such Subsidiary or such other Obligor, such case or proceeding shall be
consented to or acquiesced in by the Borrower or such Subsidiary or such other
Obligor or shall result in the entry of an order for relief or shall remain for
60 days undismissed, provided that the Borrower, each Subsidiary and each other
Obligor hereby expressly authorizes the Administrative Agent and each Lender to
appear in any court conducting any such case or proceeding during such 60-day
period to preserve, protect and defend their rights under the Loan Documents; or
(e) take any corporate action authorizing, or in furtherance of, any of
the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document, or any
---------------------------
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; the Borrower,
any other Obligor or any other party shall, directly or indirectly, contest in
any manner such effectiveness, validity, binding nature or enforceability; or
any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by such Loan Document.
SECTION 8.1.11. Impairment of Operating Contracts, etc. Any Operating
--------------------------------------
Contract or Operating Contracts, in the aggregate, the cancellation or
termination of which might have a material adverse effect on the ability of the
Borrower or any of its Subsidiaries to perform its obligations under any of the
Loan Documents, expires without renewal (unless the Borrower or such Subsidiary
is, following such expiration date, still in the process of negotiating the
terms of an extension of such Operating Contract, and has a good faith
expectation that such Operating Contract will be extended or renewed) or is
suspended (and as a result of such expiration or suspension, the operation of
the applicable equipment is terminated or otherwise disrupted) or revoked, and
is not replaced, or the Borrower or a Subsidiary shall become subject to any
70
injunction or other order with respect to such Operating Contract which might
have a material adverse effect on the ability of the Borrower or any of its
Subsidiaries to perform its obligations under any of the Loan Documents.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
--------------------
clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not
----------- --- -------------
theretofore terminated) shall automatically terminate immediately and the
outstanding principal amount of all outstanding Loans and all other Obligations
shall automatically be and become immediately due and payable, without notice or
demand and the Borrower shall automatically and immediately be obligated to
deposit with the Administrative Agent cash collateral in an amount equal to all
Letter of Credit Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
--------------------------------
(other than any Event of Default described in clauses (a) through (d) of Section
----------- --- -------
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
-----
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be due and
payable and/or the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the Borrower shall automatically and immediately
be obligated to deposit with the Administrative Agent cash collateral in an
amount equal to all Letter of Credit Outstandings.
ARTICLE IX
THE AGENTS AND AGENT-RELATED PERSONS
SECTION 9.1. Actions and Indemnity. Each Lender hereby appoints CIBC as
---------------------
its Administrative Agent, Documentation Agent and Syndication Agent under and
for purposes of this Agreement, the Notes and each other Loan Document. Each
Lender authorizes the Administrative Agent, the Documentation Agent and the
Syndication Agent to act on behalf of such Lender under this Agreement, the
Notes, each other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the
Administrative Agent, the Documentation Agent or the Syndication Agent, to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Administrative Agent, the Documentation Agent or the
Syndication Agent by the terms hereof and thereof, together with such powers as
may be reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere in this Agreement or any other Loan Document, no
Agent or Agent-Related Person shall have any duties or responsibilities except
those expressly set forth herein, nor shall any Agent or Agent-Related Person
have or be deemed to have any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
shall otherwise exist against any Agent or Agent-Related Person. Each
71
Lender hereby indemnifies (which indemnity shall survive any termination of this
Agreement) the Agents and the Agent-Related Persons, pro rata according to such
--- ----
Lender's Percentage (or, after termination of this Agreement, according to the
Percentages in effect immediately prior thereto), from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any kind
or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, any Agent or Agent-Related Persons, in any way relating to or
arising out of this Agreement, the Notes and any other Loan Document, including
reasonable attorneys' fees and expenses, and as to which such Agent or Agent-
Related Person is not reimbursed by the Borrower; provided, however, that no
-------- -------
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are determined by
a court of competent jurisdiction in a final proceeding to have resulted solely
from such Agent's or Agent-Related Person's gross negligence or wilful
misconduct. No Agent or Agent-Related Person shall be required to take any
action hereunder, under the Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement, the Notes or any
other Loan Document, unless it is indemnified hereunder to its satisfaction. If
any indemnity in favor of an Agent or Agent-Related Person shall be or become,
in such Person's determination, inadequate, such Person may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
---------------------
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York time, on the day prior to a Borrowing that such Lender will
not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date the
Administrative Agent made such amount available to the Borrower to the date such
amount is repaid to the Administrative Agent, at the interest rate applicable at
the time to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Neither the Administrative Agent, the
-----------
Documentation Agent, the Syndication Agent, nor any Agent-Related Person shall
be liable to any Lender for any action taken or omitted to be taken by it under
this Agreement or any other Loan Document, or in connection herewith or
therewith, except for its own wilful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by the Borrower of
its obligations hereunder or under any other Loan Document. Any such inquiry
which may be made by any Agent or Agent-Related Person shall not obligate it to
make any further inquiry or to take any action. Each Agent and Agent-Related
Person shall be entitled to rely upon advice of counsel concerning legal matters
and upon any notice, consent, certificate, statement or writing
72
which such Agent or Agent-Related Person believes to be genuine and to have been
presented by a proper Person.
SECTION 9.4. Successor. The Administrative Agent may resign as such at
---------
any time upon at least 30 days' prior notice to the Borrower and all Lenders.
If the Administrative Agent at any time shall resign, the Required Lenders may
appoint another Lender as a successor Administrative Agent which shall thereupon
become the Administrative Agent hereunder, subject (so long as no Default or
Event of Default shall have occurred and be continuing) to the consent of the
Borrower (not to be unreasonably withheld or delayed). If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of:
(a) this Article IX shall inure to its benefit as to any actions taken
----------
or omitted to be taken by it while it was the Administrative Agent under this
Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to its benefit.
------------ ------------
SECTION 9.5. Loans by CIBC. CIBC shall have the same rights and powers
-------------
with respect to (x) the Loans made by it or any of its Affiliates, (y) the Notes
held by it or any of its Affiliates, and (z) its participating in the Letters of
Credit as any other Lender and may exercise the same as if it and/or any of its
Affiliates were not the Administrative Agent, the Documentation Agent, the
Syndication Agent an Arranger, a subordinated lender or an equity investor, as
the case may be. CIBC and its Affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the Borrower or any
Subsidiary or Affiliate of the Borrower as if CIBC were not the Administrative
Agent, the Documentation Agent, the Syndication Agent, an Arranger, a
subordinated lender or an equity investor.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
----------------
independently of the Agents, each Agent-Related Person and each other Lender,
and based on such Lender's review of the financial information of the Borrower,
this Agreement, the other Loan Documents (the terms and provisions of which
being satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitments. Each Lender also acknowledges that it will,
independently
73
of the Agents, each Agent-Related Person and each other Lender, and based on
such other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
-----------
notice to each Lender of each notice or request required to be given and
actually given to the Administrative Agent by the Borrower pursuant to the terms
of this Agreement (unless concurrently delivered to the Lenders by the
Borrower). The Administrative Agent will distribute to each Lender each
document or instrument received for its account, and copies of all other
communications received by the Administrative Agent, in each case from the
Borrower for distribution to the Lenders by the Administrative Agent in
accordance with the terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this Agreement
------------------------
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrower and the Required Lenders (or the Administrative Agent on behalf
of the Required Lenders); provided, however, that no such amendment,
-------- -------
modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective unless
consented to by each Lender;
(b) modify this Section 10.1, change the definition of "Required
------------
Lenders", increase any Commitment Amount or the Percentage of any Lender, reduce
any fees described in Article III, release any guarantor (if any) party to a
-----------
Loan Document or all or substantially all collateral security, except as
otherwise specifically provided in any Loan Document, or extend any Commitment
Termination Date shall be made without the consent of each Lender directly
affected thereby;
(c) extend the due date for, or reduce the amount of, any scheduled
repayment or prepayment of principal of or interest on any Loan or Reimbursement
Obligation (or reduce the principal amount of or rate of interest on any Loan or
Reimbursement Obligation) shall be made without the consent of the holder of the
Note evidencing such Loan;
(d) increase the Stated Amount of any Letter of Credit unless
consented to by any Issuer; or
(e) affect adversely the interests, rights or obligations of (i) the
Administrative Agent qua the Administrative Agent, unless consented to by the
---
Administrative Agent, (ii) the Documentation Agent qua the Documentation Agent,
---
unless consented to by the ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇, (▇▇▇) the Syndication Agent qua the Syndication Agent, unless consented
---
to by the Syndication Agent or (iv) the Issuer qua the Issuer, unless consented
---
to by the Issuer.
No failure or delay on the part of the Administrative Agent, the Documentation
Agent, the Syndication Agent any Lender or the holder of any Note in exercising
any power or right under this Agreement or any other Loan Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power
or right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Borrower in any case shall
entitle it to any notice or demand in similar or other circumstances. No waiver
or approval by the Administrative Agent, the Documentation Agent, the
Syndication Agent any Lender or the holder of any Note under this Agreement or
any other Loan Document shall, except as may be otherwise stated in such waiver
or approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder. All rights and remedies hereunder are cumulative, and
not exclusive of rights and remedies provided under law or otherwise.
SECTION 10.2. Notices. All notices and other communications provided to
-------
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth below its signature hereto or set
forth in the Lender Assignment Agreement or at such other address or facsimile
number as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given, in the
case of notices to the Administrative Agent or any Lender, when received and, in
the case of notices to the Borrower or any other Obligor, the earlier of when
received and three days after being sent; any notice, if transmitted by
facsimile, shall be deemed given when transmitted and electronically confirmed.
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay
-----------------------------
on demand all expenses of the Administrative Agent, the Documentation Agent and
the Syndication Agent (including due diligence expenses, syndication expenses
and the fees and other charges of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel to the
Administrative Agent, the Documentation Agent and the Syndication Agent, and of
local counsel, if any, who may be retained by counsel to the Administrative
Agent, the Documentation Agent or the Syndication Agent) in connection with
(a) the negotiation, preparation, execution, delivery and
administration of this Agreement and of each other Loan Document, including
schedules and exhibits, and any amendments, waivers, consents, supplements or
other modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions contemplated
hereby or thereby are consummated, and
(b) the custody, preservation, use or operation of any collateral
security provided under any Loan Document, the filing, recording, refiling or
rerecording of each Pledge Agreement, each Security Agreement, each instrument
relating to real property or leases and/or any Uniform Commercial Code financing
statements and any other security instruments relating thereto and all
amendments, supplements and modifications to any thereof and any and all other
75
documents or instruments of further assurance required to be filed or recorded
or refiled or rerecorded by the terms hereof or of such Pledge Agreement, such
Security Agreement, instruments relating to real property or leases or other
security instrument, and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document and/or the
consideration of legal issues relevant to this Agreement or any other Loan
Document, and
(d) the syndication of the Loans to the Lenders.
The Borrower further agrees to pay, and to save the Administrative Agent, the
Documentation Agent, the Syndication Agent, the Issuer, and the Lenders harmless
from all liability for, any stamp or other taxes (other than franchise taxes and
taxes imposed on or measured by any Lender's net income) which may be payable in
connection with the execution or delivery of this Agreement, the Credit
Extensions made hereunder, the issuance of the Letters of Credit or the issuance
of the Notes or any other Loan Documents. The Borrower also agrees to reimburse
the Administrative Agent, the Issuer and each Lender upon demand for all
reasonable out-of-pocket expenses (including attorneys' fees and legal expenses)
incurred by the Administrative Agent, the Issuer or such Lender in connection
with (x) the negotiation of any restructuring or "work-out", whether or not
consummated, of any Obligations and (y) the enforcement of any Obligations
and/or any collateral security or guarantee therefor.
SECTION 10.4. Indemnification. In consideration of the execution and
---------------
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies, exonerates and holds the Administrative Agent,
each Agent-Related Person, the Documentation Agent, the Syndication Agent, the
Issuer and each Lender and each of their respective affiliates, officers,
directors, employees and agents (collectively, the "Indemnified Parties") free
-------------------
and harmless from and against any and all actions, causes of action, suits,
losses, costs, liabilities and damages, and expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified Liabilities"),
-----------------------
incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan or the use of any Letter
of Credit;
(b) the entering into and performance of this Agreement and any other
Loan Document by any of the Indemnified Parties (including any action brought by
or on behalf of the Borrower as the result of any determination by the Required
Lenders pursuant to Article V not to fund any Borrowing);
---------
(c) any investigation, litigation or proceeding related to any
proposed acquisition by the Borrower or any of its Subsidiaries of all or any
portion of the stock or assets of any Person, whether or not the Administrative
Agent or such Lender is party thereto;
76
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by the Borrower or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of, the Borrower or
such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. The Borrower and its successors and assigns
hereby waive, release and agree not to make any claim or bring any cost recovery
action against the Administrative Agent, any Agent-Related Person or any Lender
under CERCLA or any state equivalent, or any similar law now existing or
hereafter enacted. It is expressly understood and agreed that to the extent
that any of such Persons is strictly liable under any Environmental Laws, the
Borrower's obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of the Borrower with respect to the
violation or condition which results in liability of such Person. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
-------- --------
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
--- --- --- --- ---- ----
Section 9.1, shall in each case survive any termination of this Agreement, the
-----------
payment in full of all the Obligations and the termination of all the
Commitments. The representations and warranties made by each Obligor in this
Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any other
------------
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
--------
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
---------------------------------------------
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be executed by the Borrower and the Administrative Agent and be
deemed to be an original and all of which shall
77
constitute together but one and the same agreement. This Agreement shall become
effective when counterparts hereof executed on behalf of the Borrower and each
Lender (or notice thereof satisfactory to the Administrative Agent) shall have
been received by the Administrative Agent and notice thereof shall have been
given by the Administrative Agent to the Borrower and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
-------------------------------
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR
SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. This
Agreement, the Notes and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
----------------------
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
-------- -------
(a) the Borrower may not assign or transfer its rights or obligations
hereunder without the prior written consent of the Administrative Agent and all
Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are subject
to Section 10.11.
-------------
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
-------------------------------------------------------
Loans and Notes. Each Lender may assign, or sell participations in, its Loans,
---------------
Letter of Credit participations and Commitments to one or more other Persons in
accordance with this Section 10.11.
-------------
SECTION 10.11.1. Assignments. The Administrative Agent and each Lender,
-----------
(a) with the written consents of (i) so long as no Default has occurred and
is continuing, the Borrower (which consent shall not be unreasonably delayed or
withheld and which shall be deemed to have been given in the absence of a
written notice delivered by the Borrower to the Administrative Agent, on or
before the fifth Business Day after receipt by the Borrower of such Lender's
request for consent, stating, in reasonable detail, the reasons why the Borrower
proposes to withhold such consent) and (ii) the Administrative Agent, may at any
time assign and delegate to one or more commercial banks or other financial
institutions or other Persons, and
(b) with notice to the Borrower and the Administrative Agent, but without
the consent of the Borrower or the Administrative Agent, may assign and delegate
to any of its Affiliates or to any other Lender
78
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans,
---------------
Letter of Credit Outstandings and Commitments (which assignment and delegation
shall be of a constant, and not a varying, pro rata percentage of all the
--- ----
assigning Lender's Loans, Letter of Credit Outstandings and Commitments) in a
minimum aggregate amount equal to the lesser of $5,000,000 or all of such
Lender's remaining Loans and Commitments, and increments of $1,000,000;
provided, however, that any such Assignee Lender will comply, if applicable,
-------- -------
with the provisions contained in the last sentence of Section 4.6 and further
----------- -------
provided, however, that, the Borrower, each other Obligor and the Administrative
-------- -------
Agent shall be entitled to continue to deal solely and directly with such Lender
in connection with the interests so assigned and delegated to an Assignee Lender
until
(c) written notice of such assignment and delegation, together with payment
instructions, addresses and related information with respect to such Assignee
Lender, shall have been given to the Borrower and the Administrative Agent by
such Lender and such Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to the Borrower
and the Administrative Agent a Lender Assignment Agreement, accepted by the
Administrative Agent; and
(e) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder (other than under
Section 9.1 for the period it was a party hereto) and under the other Loan
-----------
Documents. Within five Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, the
Borrower shall execute and deliver to the Administrative Agent (for delivery to
the relevant Assignee Lender) new Notes evidencing such Assignee Lender's
assigned Loans and Commitments and, if the assignor Lender has retained Loans
and Commitments hereunder, replacement Notes in the principal amount of the
Loans and Commitments retained by the assignor Lender hereunder (such Notes to
be in exchange for, but not in payment of, those Notes then held by such
assignor Lender). Each such Note shall be dated the date of the predecessor
Notes. The assignor Lender shall ▇▇▇▇ the predecessor Notes "exchanged" and
deliver them to the Borrower. Accrued interest on that part of the predecessor
Notes evidenced by the new Notes, and accrued fees, shall be paid as provided in
the Lender Assignment Agreement. Accrued interest on that part of the
predecessor Notes evidenced by the replacement Notes shall be paid to the
assignor Lender. Accrued interest and accrued fees shall be paid at the same
time or times provided in the predecessor Notes and in this Agreement. Such
assignor Lender or such Assignee Lender must
79
also pay a processing fee to the Administrative Agent upon delivery of any
Lender Assignment Agreement in the amount of $3,000. Any attempted assignment
and delegation not made in accordance with this Section 10.11.1 shall be null
---------------
and void.
SECTION 10.11.2. Participations. Any Lender may at any time sell to one or
--------------
more commercial banks or other Persons (each of such commercial banks and other
Persons being herein called a "Participant") participating interests in any of
-----------
the Loans, Letter of Credit Outstandings Commitments or other interests of such
Lender hereunder; provided, however, that
-------- -------
(a) no participation contemplated in this Section 10.11 shall relieve such
-------------
Lender from its Commitments or its other obligations hereunder or under any
other Loan Document;
(b) such Lender shall remain solely responsible for the performance of its
Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and each of the other Loan
Documents; and
(d) no Participant, unless such Participant is an Affiliate of such Lender,
or is itself a Lender, shall be entitled to require such Lender to take or
refrain from taking any action hereunder or under any other Loan Document,
except that such Lender may agree with any Participant that such Lender will
not, without such Participant's consent, take any actions of the type described
in clause (b) or (c) of Section 10.1.
---------- --- ------------
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
------------ --- --- --- --- --- ---- ----
Lender.
SECTION 10.12. Other Transactions. Nothing contained herein shall
------------------
preclude the Administrative Agent, any Agent-Related Person or any Lender from
engaging in any transaction, in addition to those contemplated by this Agreement
or any other Loan Document, with the Borrower or any of its Affiliates in which
the Borrower or such Affiliate is not restricted hereby from engaging with any
other Person.
SECTION 10.13. Certain Collateral and Other Matters; Hedging Obligation
--------------------------------------------------------
Information. () The Administrative Agent is authorized on behalf of all the
-----------
Lenders, without the necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to any collateral
security or the Loan Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the collateral security
granted pursuant to the Loan Documents.
(a) The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release any security interest or Lien granted
to or held by the Administrative Agent upon any collateral (i) upon termination
of the Commitments and payment in full in cash of all principal of and interest
on the Loans, all fees payable pursuant to Sections 3.3 and 10.3
------------ ----
80
and all other fees, costs and expenses that are payable under this Agreement or
under any other Loan Document and have been invoiced (in which case the Lenders
hereby authorize the Administrative Agent to execute, and the Administrative
Agent agrees to execute, reasonable releases in connection with this Agreement);
(ii) constituting property sold or to be sold or disposed of as part of or in
connection with any disposition permitted hereunder; (iii) constituting property
in which the Borrower or any Subsidiary of the Borrower owned no interest at the
time the security interest and/or Lien was granted or at any time thereafter;
(iv) constituting property leased to the Borrower or any Subsidiary of the
Borrower under a lease which has expired or been terminated in a transaction
permitted under this Agreement or is about to expire and which has not been, and
is not intended by the Borrower or such Subsidiary to be, renewed or extended;
(v) consisting of an instrument evidencing Indebtedness or other debt
instrument, if the Indebtedness evidenced thereby has been paid in full; or (vi)
if approved, authorized or ratified in writing by the Required Lenders or, if
required by Section 10.1, each Lender. Upon request by the Administrative Agent
------------
at any time, the Lenders will confirm in writing the Administrative Agent's
authority to release particular types or items of collateral pursuant to this
Section 10.15.
-------------
(b) Each Lender which enters into arrangements with the Borrower in
respect of Hedging Obligations hereby agrees to supply the Administrative Agent
in writing on or about each Quarterly Payment Date with the amount of any
termination obligations of the Borrower thereunder and any net payments owing by
the Borrower thereunder.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY
-------------------------------------------
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN NEW YORK CITY OF THE STATE OF
NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
-------- -------
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN NEW YORK CITY OF
THE STATE OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. THE BORROWER HEREBY IRREVOCABLY APPOINTS CT
CORPORATION SYSTEMS (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT
-------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, AS ITS ADMINISTRATIVE
AGENT TO RECEIVE, ON THE BORROWER'S BEHALF AND ON BEHALF OF THE BORROWER'S
PROPERTY, SERVICE OF COPIES OF THE
81
SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY
OF SUCH PROCESS TO THE BORROWER IN CARE OF THE PROCESS AGENT AT THE PROCESS
AGENT'S ABOVE ADDRESS, AND THE BORROWER HEREBY IRREVOCABLY AUTHORIZES AND
DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN
ALTERNATIVE METHOD OF SERVICE, THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE
--------------------
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR
THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
82
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
▇▇▇▇▇▇ HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
--------------------------------------
Address: ▇▇▇ ▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇'▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CANADIAN IMPERIAL BANK OF
COMMERCE, as Administrative Agent,
Documentation Agent and Syndication Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Authorized Signatory
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
83
PERCENTAGE LENDERS
---------- -------
68.75% CIBC INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Executive Director, CIBC
▇▇▇▇▇▇▇▇▇▇▇ Corp., as Agent
Domestic Office: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
LIBOR Office: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
31.25% FIRST SOURCE FINANCIAL LLP
By: First Source Financial, Inc.,
its Agent/Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Title:
Domestic Office: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
LIBOR Office: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
-------
100.00%
84
SCHEDULE I
DISCLOSURE SCHEDULE
-------------------
ITEM 6.3. Approvals.
---------
Alabama Missouri
Arizona New Mexico
Florida New York
Georgia Nevada
Indiana Oregon
Kentucky Pennsylvania
Louisiana South Carolina
Minnesota Washington
Mississippi
ITEM 6.7. Litigation.
----------
None.
ITEM 6.12. Employee Benefit Plans.
----------------------
None.
ITEM 6.13. Environmental Matters.
---------------------
None.
ITEM 6.16. Operating Contracts.
-------------------
None.
ITEM 7.2.2(b). Indebtedness to be Paid.
-----------------------
None.
ITEM 7.2.2(c). Ongoing Indebtedness.
--------------------
None.
ITEM 7.2.5(a). Ongoing Investments.
-------------------
The Company will own 100% of the stock of AmeriTel, 100% of the stock of
▇▇▇▇▇▇ STC, 100% of the stock of ▇▇▇▇▇▇ Invision and 100% of the Stock of ▇▇▇▇▇▇
(which, in turn, will continue to own 100% of the stock of ▇▇▇▇▇▇ of Carolina).