SECOND AMENDED, RESTATED AND CONSOLIDATED
REVOLVING CREDIT AGREEMENT
among
▇▇▇▇▇▇ OPERATING CO., L.L.C.
as Borrower
THE LENDERS PARTY HERETO
as Lenders
and
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
as Administrative Agent,
$30,000,000
Dated as of September 26, 2003
TABLE OF CONTENTS
Page
Section 1. DEFINITIONS AND TERMS.........................................2
1.1. Definitions...................................................2
1.2. Number and Gender of Words; Other References.................22
1.3. Accounting Principles........................................22
Section 2. BORROWING PROVISIONS.........................................23
2.1. Revolver Facility............................................23
2.2. Term Loan Facilities.........................................23
2.3. Terminations or Reductions of Commitments....................23
2.4. Borrowing Procedure..........................................24
Section 3. TERMS OF PAYMENT.............................................25
3.1. Loan Accounts, Revolver Notes, and Payments..................25
3.2. Interest and Principal Payments..............................26
3.3. Prepayments..................................................26
3.4. Interest Options.............................................29
3.5. Quotation of Rates...........................................29
3.6. Default Rate.................................................29
3.7. Interest Recapture...........................................29
3.8. Interest Calculations........................................29
3.9. Maximum Rate.................................................29
3.10. Order of Application.........................................30
3.11. Sharing of Payments, Etc.....................................30
3.12. Offset.......................................................31
3.13. Booking Borrowings...........................................31
Section 4. CHANGE IN CIRCUMSTANCES......................................31
4.1. Increased Cost and Reduced Return............................31
4.2. Illegality...................................................32
4.3. Taxes........................................................32
Section 5. FEES.........................................................34
Section 6. SECURITY; GUARANTIES.........................................34
6.1. Guaranties...................................................34
6.2. Collateral...................................................34
6.3. Existing Collateral Documents................................35
6.4. Future Liens.................................................35
6.5. Release of Collateral........................................36
6.6. Negative Pledge..............................................37
6.7. Control; Limitation of Rights................................37
Section 7. CONDITIONS PRECEDENT.........................................38
7.1. Conditions Precedent to Effectiveness........................38
7.2. Conditions Precedent to an Acquisition.......................38
7.3. (a) Conditions Precedent to Initial Borrowing................38
Section 8. REPRESENTATIONS AND WARRANTIES...............................39
8.1. Purpose of Credit Facility...................................39
8.2. Existence, Good Standing, Authority, and Authorizations......39
8.3. Subsidiaries; Capital Stock..................................39
8.4. Authorization and Contravention..............................40
8.5. Binding Effect...............................................40
8.6. Financial Statements.........................................40
8.7. Litigation, Claims, Investigations...........................41
8.8. Taxes........................................................41
8.9. Environmental Matters........................................41
8.10. Employee Benefit Plans.......................................41
8.11. Properties; Liens............................................41
8.12. Government Regulations.......................................42
8.13. Transactions with Affiliates.................................42
8.14. Debt.........................................................42
8.15. Material Agreements; Management Agreements...................42
8.16. Insurance....................................................42
8.17. Labor Matters................................................42
8.18. Solvency.....................................................43
8.19. Intellectual Property........................................43
8.20. Compliance with Laws.........................................43
8.21. Permitted Acquisitions.......................................43
8.22. Regulation U.................................................43
8.23. Tradename....................................................44
8.24. Intentionally Omitted........................................44
8.25. Full Disclosure..............................................44
8.26. No Default...................................................44
8.27. Perfection of Security Interests.............................44
Section 9. COVENANTS....................................................44
9.1. Use of Proceeds..............................................44
9.2. Books and Records............................................44
9.3. Items to be Furnished........................................44
9.4. Inspections..................................................46
9.5. Taxes........................................................47
9.6. Payment of Obligations.......................................47
9.7. Maintenance of Existence, Assets, and Business...............47
9.8. Insurance....................................................47
9.9. Preservation and Protection of Rights........................48
9.10. Employee Benefit Plans.......................................48
9.11. Environmental Laws...........................................48
9.12. Debt and Guaranties..........................................49
9.13. Liens........................................................49
9.14. Transactions with Affiliates.................................51
9.15. Compliance with Laws and Documents...........................51
9.16. Permitted Acquisitions, Subsidiary Guaranties,
and Collateral Documents...................................51
9.17. Assignment...................................................51
9.18. Fiscal Year and Accounting Methods...........................51
9.19. Government Regulations.......................................52
9.20. Loans, Advances, Investments, and Restricted Payments........52
9.21. Restrictions on Subsidiaries.................................54
9.22. Sale of Assets...............................................54
9.23. Sale-Leaseback Financings....................................54
9.24. Mergers and Dissolutions; Sale of Capital Stock..............54
9.25. New Business.................................................55
9.26. Affiliate Subordination Agreements...........................55
9.27. Amendments to Documents......................................55
9.28. Financial Covenants..........................................55
9.29. Covenants of Communications..................................56
Section 10. DEFAULT......................................................58
10.1. Payment of Obligation........................................58
10.2. Covenants....................................................58
10.3. Debtor Relief................................................59
10.4. Judgments and Attachments....................................59
10.5. Government Action............................................59
10.6. Misrepresentation............................................59
10.7. Change of Control............................................59
10.8. Authorizations...............................................60
10.9. Default Under other Debt and Agreements......................60
10.10. Validity and Enforceability of Loan Documents................60
10.11. Material Adverse Effect......................................60
10.12. Environmental Liability......................................60
10.13. Pledged Stock................................................60
10.14. Dissolution..................................................61
10.15. Payment of Certain other Agreements..........................61
10.16. Default or Acceleration under Certain other Agreements.......61
10.17. Redemption of Certain other Debt or Obligation...............61
10.18. DCCPCS LOAN..................................................61
Section 11. RIGHTS AND REMEDIES..........................................62
11.1. Remedies Upon Default........................................62
11.2. Company Waivers..............................................62
11.3. Performance By Administrative Agent..........................62
11.4. Delegation of Duties and Rights..............................63
11.5. Not in Control...............................................63
11.6. Course of Dealing............................................63
11.7. Cumulative Rights............................................63
11.8. Application of Proceeds......................................63
11.9. Certain Proceedings..........................................63
11.10. Limitation of Rights.........................................64
11.11. Expenditures By Lenders......................................64
11.12. Indemnification..............................................64
Section 12. AGREEMENT AMONG LENDERS......................................65
12.1. Administrative Agent.........................................65
12.2. Expenses.....................................................66
12.3. Proportionate Absorption of Losses...........................67
12.4. Delegation of Duties; Reliance...............................67
12.5. Limitation of Liability......................................67
12.6. Default; Collateral..........................................68
12.7. Limitation of Liability......................................70
12.8. Relationship of Lenders......................................70
12.9. Benefits of Agreement........................................70
12.10. Intentionally Omitted........................................70
12.11. Obligations Several..........................................70
12.12. Financial ▇▇▇▇▇▇.............................................70
12.13. Successor Administrative Agent...............................71
Section 13. MISCELLANEOUS................................................71
13.1. Headings.....................................................71
13.2. Nonbusiness Days.............................................71
13.3. Communications...............................................71
13.4. Form and Number of Documents.................................72
13.5. Exceptions to Covenants......................................72
13.6. Survival.....................................................72
13.7. Governing Law................................................72
13.8. Invalid Provisions...........................................72
13.9. ENTIRETY.....................................................72
13.10. JURISDICTION; VENUE; SERVICE OF PROCESS; JURY TRIAL..........73
13.11. Amendments, Consents, Conflicts, And Waivers.................73
13.12. Multiple Counterparts........................................74
13.13. Successors and Assigns; Assignments and Participations.......75
13.14. Discharge only upon Payment in Full;
Reinstatement in Certain Circumstances.....................78
13.15. Restatement of Existing Credit Agreement/No Novation.........78
SCHEDULES AND EXHIBITS
Schedule 2.1 - Lenders and Commitments
Schedule 7.1 - Conditions Precedent to Effectiveness
Schedule 7.2 - Conditions Precedent to Permitted Acquisition
Schedule 7.3(a) - Conditions Precedent to Initial Borrowing
Schedule 8.2 - FCC and PUC Licenses
Schedule 8.3 - Capital Stock and Partnership Interests;
Schedule 8.7 - Litigation, Claims, Investigations
Schedule 8.15 - Material Agreements
Schedule 9.13 - Existing Liens
Schedule 9.20 - Existing Investments
Schedule 9.30 - Existing Liens of Communications
Exhibit A-1 - Form of Revolver Note
Exhibit B-1 - Form of Borrowing Notice
Exhibit C - Form of Guaranty
Exhibit D-1 - Form of Pledge, Assignment, and Security Agreement
Exhibit D-2 - Form of Pledge, Assignment, and Security Agreement
for Communications
Exhibit E-1 - Form of Compliance Certificate
Exhibit E-2 - Form of Permitted Acquisition Compliance Certificate
Exhibit E-3 - Form of Permitted Acquisition Loan Closing Certificate
Exhibit F - Form of Assignment and Acceptance Agreement
Exhibit G-1 - Form of Opinion of Counsel of Borrower
Exhibit G-2 - Form of Opinion of New York Counsel of Borrower
Exhibit G-3 - Form of Opinion of Special Regulatory Counsel
Exhibit H - Form of Affiliate Subordination Agreement
SECOND AMENDED, RESTATED, AND CONSOLIDATED
REVOLVING CREDIT AGREEMENT
This Second Amended, Restated, and Consolidated Revolving Credit Agreement is
entered into as of September 26, 2003, among ▇▇▇▇▇▇ OPERATING CO., L.L.C., an
Oklahoma limited liability company (the "Borrower"), ▇▇▇▇▇▇ COMMERCIAL PAPER
INC. ("LCPI"), BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC. ("BSCL") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SENIOR FUNDING, INC. ("MSSF") and each other Lender party hereto from time to
time, as the Lenders and LCPI, as successor Administrative Agent (the
"Administrative Agent"), for itself and the other Lenders.
RECITALS
WHEREAS, the Borrower is a party to the Amended, Restated, and Consolidated
Revolving Credit and Term Loan Agreement dated as of January 18, 2000 (as
amended through the date hereof, the "Existing Credit Agreement"), among the
Borrower, the lenders party thereto, Bank of America, N.A., as administrative
agent (the "Resigning Administrative Agent"), for itself and the other lenders,
LCPI and Toronto Dominion (Texas), Inc., as co-syndication agents, First Union
National Bank and PNC Bank, National Association, as co-documentation agents,
and the managing agents and co-agents;
WHEREAS, on September 26, 2003 Bank of America, N.A. resigned as
Administrative Agent pursuant to Section 12.1(b) of the Existing Credit
Agreement;
WHEREAS, the Resigning Administrative Agent and the Administrative Agent
have concurrently herewith (but prior to the effectiveness of this Agreement)
entered into the Assignment and Release Agreement dated the date hereof (the
"Assignment and Release Agreement") pursuant to which (i) the resignation by
Bank of America, N.A. of its duties as Resigning Administrative Agent is
confirmed, (ii) the Resigning Administrative Agent has assigned all its
respective rights, title and interest in, to and under the Existing Credit
Agreement and the Loan Documents (as defined in the Existing Credit Agreement)
and delegated all of its respective obligations thereunder and with respect
thereto to the Administrative Agent, and (iii) LCPI as the successor
Administrative Agent has accepted such assignment and delegation;
WHEREAS, Communications has made a capital contribution and a subordinated
loan (which is subordinated to the Obligation in accordance with Section
9.29(c)(i)) to the Borrower and the Borrower in turn applying the amount of such
capital contribution and subordinated loan in repayment in full of the
Borrowings under the Term Loan A Facility, the Term Loan B Facility and the
Revolver Facility (and payment of all other accrued amounts) outstanding under
the Existing Credit Agreement and for its general corporate and working capital
purposes;
WHEREAS, on September 26, 2003 certain Revolver Lenders (as defined in the
Existing Credit Agreement), constituting the Required Lenders, assigned all
their Revolver Commitments to LCPI, and LCPI has assigned one-third of such
Revolver Commitments to each of BSCL and MSSF.
WHEREAS, the Borrower has requested that the Loan Parties amend and restate
the Existing Credit Agreement on the terms set forth in this Agreement, which
Agreement shall become effective upon satisfaction of certain conditions
precedent set forth herein; and
WHEREAS, it is the intent of the parties hereto that this Agreement not
constitute a novation of the obligations and liabilities existing under the
Existing Credit Agreement (including, without limitation, the Revolver
Commitments of the Lenders thereunder) or evidence payment of all or any of such
obligations and liabilities (other than the repayment in full of the Borrowings
under the Term Loan A Facility and the Term Loan B Facility referred to above),
that this Agreement amend and restate in its entirety the Existing Credit
Agreement.
NOW, THEREFORE, in consideration of the above premises, the parties hereto
agree as follows:
Section 1. DEFINITIONS AND TERMS.
1.1. Definitions. As used herein:
"Acquisition" means any transaction or series of related transactions for
the purpose of, or resulting in, directly or indirectly, (a) the acquisition by
any Company of all or substantially all of the assets of a Person or of any
business or division of a Person, (b) the acquisition by any Company of more
than 50% of any class of Voting Stock (or similar ownership interests) of any
Person (provided that, formation or organization of any entity shall not
constitute an "Acquisition" to the extent that the amount of the loan, advance,
investment, or capital contribution in such entity constitutes a permitted
investment under Section 9.20); or (c) a merger, consolidation, amalgamation, or
other combination by any Company with another Person if a Company is the
surviving entity; provided that, in any merger involving Borrower, Borrower must
be the surviving entity.
"Administrative Agent" means LCPI as successor "Administrative Agent" for
Lenders under the Loan Documents, and its permitted successors or assigns in
such capacity.
"Affiliate" of any Person means any other individual or entity who directly
or indirectly controls, or is controlled by, or is under common control with,
such Person, and, for purposes of this definition only, "control," "controlled
by," and "under common control with" mean possession, directly or indirectly, of
the power to direct or cause the direction of management or policies (whether
through ownership of voting securities, by contract, or otherwise).
"Affiliate Subordination Agreement" means, individually, and "Affiliate
Subordination Agreements" means, collectively, (a) the Affiliate Subordination
Agreements and reconfirmations thereof executed and delivered by Affiliates of
Loan Parties pursuant to the Existing Credit Agreement, as amended and ratified
pursuant to this Agreement; (b) any other Affiliate Subordination Agreement
(substantially in the form of Exhibit H) executed and delivered by any Person
pursuant to the requirements of the Loan Documents; and (c) any amendments,
modifications, supplements, ratifications, or restatements of any Affiliate
Subordination Agreement made in accordance with the Loan Documents.
"Agreement" means this Second Amended, Restated, and Consolidated Revolving
Credit Agreement (as the same may hereafter be amended, modified, supplemented,
or restated from time to time).
"Applicable Lending Office" means, for each Lender the "Lending Office" of
such Lender (or an affiliate of such Lender) designated on Schedule 2.1 attached
hereto or such other office that such Lender (or an affiliate of such Lender)
may from time to time specify to Administrative Agent and Borrower by written
notice in accordance with the terms hereof.
"Applicable Margin" means 6.0% per annum.
"Approved Fund" means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in loans, any other fund that invests
in loans and is managed or advised by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
"Assumed Taxes" means, with respect to any Equity Issuance, an amount equal
to such incremental annual increase in franchise Taxes as Borrower estimates in
good faith shall be payable as a result of such Equity Issuance.
"Authorizations" means (i) all material filings, recordings, and
registrations with, and all material validations or exemptions, approvals,
orders, authorizations, consents, franchises, licenses, certificates, and
permits from, any Governmental Authority (other than the FCC and applicable
PUCs), including without limitation, any of the foregoing authorizing or
permitting the acquisition, construction, or operation of any System and (ii)
all filings, recordings, and registrations with, and all validations or
exemptions, approvals, orders, authorizations, consents, franchises, licenses,
certificates, and permits from, the FCC and applicable PUCs, including without
limitation, any of the foregoing authorizing or permitting the acquisition,
construction, or operation of any System.
"Base Rate": means, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate
in effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the prime
lending rate as set forth on the British Banking Association Telerate Page 5 (or
such other comparable page as may, in the opinion of the Administrative Agent,
replace such page for the purpose of displaying such rate), as in effect from
time to time. Any change in the Base Rate due to a change in the Prime Rate
actually available or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively. The Prime Rate is a reference
rate and does not necessarily represent the lowest or best rate actually
available.
"Base Rate Borrowing" means a Borrowing bearing interest at the sum of the
Base Rate plus the Applicable Margin.
"Borrower" is defined in the preamble to this Agreement.
"Borrowing" means any amount disbursed (a) by one or more Lenders under the
Revolver Facility, whether such amount constitutes an original disbursement of
funds or the continuation of an amount outstanding or (b) by any Lender in
accordance with, and to satisfy the obligations of any Loan Party under, any
Loan Document.
"Borrowing Date" is defined in Section 2.4(a).
"Borrowing Notice" means a request for Borrowing made pursuant to Section
2.4(a), substantially in the form of Exhibit B-1.
"Budget" means the most recently delivered of the (a) annual financial
budgets for the Companies and Communications and their respective Restricted
Subsidiaries delivered by the Companies and Communications pursuant to Section
9.3(d), together with any adjustments to any Budget (whether described in clause
(a) or (b)) made from time to time based on projections delivered in connection
with Permitted Acquisitions pursuant to Section 7.2 and the requirements of a
"Permitted Acquisition" as set forth in this Section 1.1, so long as such
projections have been approved by Administrative Agent.
"Business Day" means for all purposes, any day other than Saturday, Sunday,
and any other day on which commercial banking institutions are required or
authorized by Law to be closed in New York, New York.
"Capital Expenditures" means an expenditure (determined in accordance with
GAAP) for any fixed asset owned by any Company and used in the operations of
such Company having a useful life of more than one year, or any improvements or
additions thereto, including the direct or indirect acquisition of such assets,
and including any obligations to pay rent or other amounts under a Capital
Lease; provided, however, that Capital Expenditures shall not include
acquisitions of stock or assets which are made in accordance with Section 9.20
hereof.
"Capital Lease" means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
"Cash Equivalents" means:
(a) Readily marketable, direct, full faith and credit obligations of
the United States of America, or obligations guaranteed by the full faith
and credit of the United States of America, maturing within not more than
one year from the date of acquisition;
(b) Short term certificates of deposit and time deposits, which mature
within one year from the date of issuance and which are fully insured by
the Federal Deposit Insurance Corporation;
(c) Commercial paper maturing in 365 days or less from the date of
issuance and rated either "P-1" by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's"), or "A-1" by Standard and Poor's Rating Group (a division of
▇▇▇▇▇▇-▇▇▇▇, Inc., "S&P");
(d) Debt instruments of a domestic issuer which mature in one year or
less and which are rated "A" or better by Moody's or S&P on the date of
acquisition of such investment; and
(e) Demand deposit accounts which are maintained in the ordinary
course of business.
"Cash-Pay Date" means, with respect to any issue of Preferred Stock or
Exchange Debentures, the date specified in the related Certificate of
Designation or Indentures for such series of Preferred Stock or Exchange
Debentures after which all dividends or payments must be paid in cash.
"Cellular Assets" means any Cellular Systems or Franchise Interest owned
directly or indirectly by any Person and used in connection with such Person's
Cellular Business.
"Cellular Business" means the business of owning or operating one or more
Cellular Systems and other business directly related thereto.
"Cellular Entity" means a Cellular Licensee or Cellular Permittee.
"Cellular Licensee" means any Person that is authorized to own, control,
and operate a Cellular System.
"Cellular Partnership" means, individually, and "Cellular Partnerships"
means, collectively, any entity in which Borrower or one of its Restricted
Subsidiaries owns, directly or indirectly, a partnership interest.
"Cellular Permittee" means a Person that is authorized by the FCC to
construct a Cellular System.
"Cellular System" means a domestic public cellular radio telecommunications
service system licensed under Part 22 of the rules promulgated by the FCC.
"Code" means the Internal Revenue Code of 1986, as amended, together with
the rules and regulations promulgated thereunder.
"Collateral" means all of the items and types of property described as
"Collateral" in now existing or hereafter created Collateral Documents and all
cash and non-cash proceeds thereof.
"Collateral Documents" means all security agreements, pledge agreements,
financing statements, assignments of partnership interests, Guaranties,
mortgages, and deeds of trust at any time delivered to Administrative Agent to
create or evidence Liens securing the Obligation, together with all
reaffirmations, amendments, and modifications thereof or supplements thereto.
"Commitment Percentage" means, at any date of determination, for any
Lender, the proportion (stated as a percentage) that its Committed Sum for the
Revolver Facility bears to the aggregate Committed Sums of all Lenders for the
Revolver Facility.
"Committed Sum" means for any Revolver Lender, with respect to the Revolver
Facility, at any date of determination occurring prior to the respective
Termination Date for the Revolver Facility, the amount stated beside such
Revolver Lender's name under the heading for the Revolver Facility on the
most-recently amended Schedule 2.1 to this Agreement (which amount is subject to
increase, reduction, or cancellation in accordance with the Loan Documents).
"Communications" means ▇▇▇▇▇▇ Communications Corporation, an Oklahoma
corporation, which owns all of the issued and outstanding shares of capital
stock of Borrower.
"Communications Act" means, collectively, The Federal Communications Act Of
1934, as amended from time to time, and the rules and regulations in effect at
any time thereunder.
"Communications Bond Debt" means (i) the Existing Bond Debt and (ii) the
New Bond Debt."
"Companies" means, at any date of determination thereof, Borrower and each
of its Restricted Subsidiaries; and "Company" means, on any date of
determination, Borrower or any of its Restricted Subsidiaries.
"Compliance Certificate" means a certificate signed by a Responsible
Officer, substantially in the form of Exhibit E-1.
"Current Financials" means, at the time of any determination thereof, the
more recently delivered to Lenders of either (a) (i) the audited Financial
Statements for the fiscal years ended December 31, 2001 and December 31, 2002,
calculated on a consolidated basis for Communications and its Subsidiaries; (ii)
the unaudited Financial Statements for the fiscal quarter ended June 30, 2003,
calculated on a consolidated basis for each of the Borrower and its Subsidiaries
or (b) the Financial Statements required to be delivered under Sections 9.3(a)
or 9.3(b), as the case may be, calculated on a consolidated basis for the
Companies and for Communications and its Restricted Subsidiaries.
"DCCPCS" means DCC PCS, Inc., an Oklahoma corporation and a Subsidiary of
Communications.
"DCCPCS Loan" means the unsecured, subordinated loan from Borrower to
DCCPCS in an amount not to exceed $50,000,000, on terms and conditions
satisfactory to Administrative Agent.
"Debt" means (without duplication), for any Person, the sum of the
following: (a) all liabilities, obligations, and indebtedness of such Person
which in accordance with GAAP should be classified upon such Person's balance
sheet as liabilities in respect of (i) money borrowed, including, without
limitation, the Principal Debt, (ii) obligations of such Person under Capital
Leases, (iii) obligations of such Person under non-compete agreements entered
into in connection with Permitted Acquisitions, and (iv) obligations of such
Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations, and obligations under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business); (b) all obligations of the type referred to in clauses (a)(i)
through (a)(iii) preceding of other Persons for the payment of which such Person
is responsible or liable as obligor, guarantor, or otherwise; (c) all
obligations of the type referred to in clauses (a)(i) through clauses (a)(iii)
and clauses (b) preceding of other Persons secured by any Lien on any property
or asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of the
value of such property or assets or the amount of the obligation so secured; (d)
the face amount of all letters of credit and banker's acceptances issued for the
account of such Person, and without duplication, all drafts drawn and unpaid
thereunder; and (e) net payments under Financial ▇▇▇▇▇▇.
"Debt Issuance" means any Debt of Borrower or any Company for borrowed
money issued or incurred after the Effective Date, other than Permitted Debt.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
"Default" is defined in Section 10.
"Default Rate" means a per annum rate of interest equal from day to day to
the lesser of (a) the sum of the Base Rate plus the highest Applicable Margin
for Base Rate Borrowings for the Revolver Facility plus 2% and (b) the Maximum
Rate.
"Distribution" for any Person means, with respect to any shares of any
capital stock, membership interest, or any other equity securities issued by
such Person, (a) the retirement, redemption, purchase, or other acquisition for
value of any such securities, (b) the declaration or payment of any dividend or
distribution on or with respect to any such securities, and (c) any other
payment by such Person with respect to such securities.
"▇▇▇▇▇▇ Cellular Systems" ▇▇▇▇▇▇ Cellular Systems, Inc., an Oklahoma
corporation.
"Dollars" and the symbol $ means lawful money of the United States of
America.
"Domestic Subsidiary" of any Person means a direct or indirect Subsidiary
of such Person that is organized or incorporated under the Laws of a
jurisdiction of the United States, other than a direct or indirect Subsidiary of
a Foreign Subsidiary of such Person.
"Effective Date" means the date upon which this Agreement has been executed
by Borrower, Lenders, and Administrative Agent and all conditions precedent
specified in Section 7.1 have been satisfied or waived.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender (so
long as such assignment is not made in conjunction with the sale of such
Affiliate); (c) an Approved Fund of the assigning Lender; and (d) any other
Person approved by Administrative Agent (which approval will not be unreasonably
withheld or delayed by Administrative Agent) and, unless a Default or Potential
Default has occurred and is continuing at the time any assignment is effected in
accordance with Section 13.13, Borrower, such approval not to be unreasonably
withheld or delayed by Borrower and such approval to be deemed given by Borrower
if no objection is received by the assigning Lender and Administrative Agent
from Borrower within five Business Days after notice of such proposed assignment
has been provided by the assigning Lender to Borrower; provided, however, that
neither Borrower nor any Affiliate of Borrower shall qualify as an Eligible
Assignee.
"Employee Plan" means, at any time, each Single-Employer Plan and each
Multiemployer Plan.
"Environmental Law" means any applicable Law that relates to (a) the
condition or protection of air, groundwater, surface water, soil, or other
environmental media, (b) the environment, including natural resources or any
activity which affects the environment, (c) the regulation of any pollutants,
contaminants, wastes, substances, and Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the Clean Air Act (42
U.S.C. Section 7401 et seq.), the Federal Water Pollution Control Act, as
amended by the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.), the
Emergency Planning and Community Right to Know Act of 1986 (42 U.S.C. Section
11001 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section
1801 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. Section
4321 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the
Rivers and Harbors Act (33 U.S.C. Section 401 et seq.), the Safe Drinking Water
Act (42 U.S.C. Section 201 and Section 300f et seq.), the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976 and the
Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. Section 6901 et seq.),
the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), and analogous
state and local Laws, as any of the foregoing may have been and may be amended
or supplemented from time to time, and any analogous future enacted or adopted
Law, or (d) the Release or threatened Release of Hazardous Substances.
"Environmental Liability" means any obligation, liability (including,
without limitation, any strict liability), loss, fine, penalty, charge, Lien,
damage, cost, or expense of any kind to the extent that it results (a) from any
violation of or any obligation or liability under any Environmental Law, (b)
from the presence, Release, or threatened Release of any Hazardous Substance, or
(c) from actual or threatened damages to natural resources.
"Environmental Permit" means any permit, license, or other Authorization
from any Governmental Authority that is required under any Environmental Law for
the lawful conduct of any business, process, or other activity.
"Equity Issuance" means the issuance on and after the Effective Date by
Communications or any Company of any shares of any class of stock, warrants, or
other equity interests, other than (a) present and future shares of stock,
options, or warrants issued to employees, directors, or consultants of the
Companies under Communication's or any Company's stock option plan or other
benefit or compensation plans or arrangements, (b) stock issued upon the
exercise of any such warrants or options, (c) the Preferred Stock, (d) any
shares of any class of stock, warrants, or other equity interests issued from a
Company solely to another Company, (e) the common stock of Communications issued
pursuant to the initial public offering of Communications, (f) common stock of
Communications issued solely in connection with Permitted Acquisitions
structured as a merger, so long as, no Default or Potential Default exists or
arises as a result thereof, and (g) prior to or concurrently with the initial
public offering of Communications, any issuance of voting securities of
Communications in exchange for, or as consideration for the cancellation of,
other securities of Communications, other than the Preferred Stock.
"ERISA" means the EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, as
amended, and the regulations and rulings thereunder.
"ERISA Affiliate" means any company or trade or business (whether or not
incorporated) which, for purposes of Title IV of ERISA, is, or has been within
the past six years, a member of any Loan Party's controlled group or which is,
or has been within the past six years, under common control with any Loan Party
within the meaning of Section 414(b), (c), (m), or (o) of the Code.
"Excess Cash Flow" means, on any date of determination with respect to the
fiscal year then most recently ended, Operating Cash Flow of the Companies, plus
any net decrease in Working Capital of the Companies, less the sum of, without
duplication, (a) Capital Expenditures made by the Companies during 13 such
fiscal year which were permitted to be made under the terms of the Loan
Documents, (b) required payments of principal on Permitted Debt of the Companies
made during such fiscal year (other than payments made pursuant to Section
3.3(b) and (c)), (c) the aggregate Taxes actually paid in cash by the Companies
during such fiscal year, (d) Distributions (including, without limitation,
Partnership Distributions) made by the Companies during such fiscal year to the
extent permitted by the Loan Documents, other than cash Distributions made under
Section 9.20(q); (e) Interest Expense paid by the Companies during such fiscal
year or accrued during such fiscal year in compliance with the Loan Documents,
so long as such accrued interest is actually paid by the Companies during such
fiscal year or the first two (2) calendar months of the following fiscal year in
compliance with the Loan Documents; and (f) any net increase in Working Capital.
"Exchange Act" means the Securities Exchange Act of 1934, as amended."
"Exchange Debentures" means any subordinated debentures issued in exchange
for all or any portion of the Preferred Stock, all as more particularly
described in the related Offering Memorandum for such Preferred Stock.
"Existing Bond Debt" means (i) the 10.875% Senior Notes due 2010 issued by
Communications in an aggregate original principal amount of $300,000,000, (ii)
the 11.75% Senior Notes due 2007 issued by Communications (in an aggregate
principal amount not exceeding $30,000,000 as of the Effective Date) and (iii)
the 12.25% senior notes due 2008 issued by ▇▇▇▇▇▇/Sygnet Communications Company
(provided that such Debt under this clause (iii) shall, until ▇▇▇▇▇▇/Sygnet
Communications Company becomes a Subsidiary of the Borrower, be treated as
Existing Bond Debt only for the purposes of Section 9.29(e)), and each indenture
and all other documents and agreements evidencing and establishing such Debt, as
each of the same may be amended from time to time in accordance with the terms
thereof and hereof.
"Existing Collateral Documents" is defined in Section 6.3.
"Exhibit" means an exhibit to this Agreement unless otherwise specified.
"FCC" means the Federal Communications Commission and any successor
regulatory body.
"Federal Funds Effective Rate" means, for any day, 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 on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Reference Lender
from three federal funds brokers of recognized standing selected by it.
"Financial Hedge" means a swap, collar, floor, cap, or other contract which
is intended to reduce or eliminate the risk of fluctuations in interest rates
and which complies with the applicable requirements of Section 9.26(c) and is
otherwise in compliance with the requirements of the Loan Documents.
"Financial Statements" means balance sheets, statements of operations,
statements of shareholders' equity, and statements of cash flows prepared in
accordance with GAAP, which statements of operations and statements of cash
flows shall be in comparative form to the corresponding period of the preceding
fiscal year, and which balance sheets and statements of shareholders' equity
shall be in comparative form to the prior fiscal year-end figures.
"Fixed Charge Coverage Ratio" means, for the Companies, at any date of
determination with respect to the most recently ended Rolling Period, the ratio
of: (a) the Operating Cash Flow of the Companies minus the amount paid for
Capital Expenditures by the Companies to (b) the sum of (i) all
regularly-scheduled principal payments with respect to Total Debt required to be
paid, (ii) cash Interest Expense, and (iii) Distributions paid in cash by
Borrower.
"Foreign Subsidiary" of any Person means a Subsidiary of such Person that
is organized or incorporated under the Laws of a jurisdiction other than a
jurisdiction of the United States.
"Franchise Interest" means a direct or indirect ownership in any Person
that is a Cellular Entity.
"GAAP" means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which are applicable from time to time.
"Governmental Authority" means any (a) local, state, municipal, or federal
judicial, executive, or legislative instrumentality, (b) private arbitration
board or panel, or (c) central bank.
"GRTI" means Gila River Telecommunications Subsidiary, Inc., a corporation
organized pursuant to Gila River Indian Resolution Number GR-10-97.
"GRTI Note" means the Secured Non-Recourse Term Note dated September 30,
1997, by GRTI in favor of DOC, executed pursuant to that certain Non-Recourse
Term Loan Agreement dated September 30, 1997, executed by GRTI, as "Borrower",
and DOC, as the lender thereunder.
"Guarantor" means any Person, including, but not limited to, each
Restricted Subsidiary of Borrower or any other Company that is a Domestic
Subsidiary of Borrower which undertakes to be liable for all or any part of the
Obligation by execution of a Guaranty or otherwise.
"Guaranty" means (a) a Guaranty in substantially the form and upon the
terms of Exhibit C, executed and delivered by any Person pursuant to the
requirements of the Loan Documents; and (b) any amendments, modifications,
supplements, restatements, ratifications, or reaffirmations of any Guaranty made
in accordance with the Loan Documents.
"Hazardous Substance" means (a) any substance that is designated, defined,
or classified as a hazardous waste, hazardous material, pollutant, contaminant,
or toxic or hazardous substance, or that is otherwise regulated, under any
Environmental Law, including without limitation, any hazardous substance within
the meaning of Section 101(14) of CERCLA, (b) petroleum, oil, gasoline, natural
gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel, and other petroleum
hydrocarbons, (c) asbestos and asbestos-containing materials in any form, (d)
polychlorinated biphenyls, or (e) urea formaldehyde foam
"Interest Coverage Ratio" means on any date of determination the ratio of
the Operating Cash Flow of the Companies to the cash Interest Expense of the
Companies for the Rolling Period then ended.
"Interest Expense" means, for any period of calculation thereof, for any
Person, the aggregate amount of all interest (including commitment fees) on all
Debt of such Person, whether paid in cash or accrued as a liability and payable
in cash during such period (including, without limitation, imputed interest on
Capital Lease obligations; the amortization of any original issue discount on
any Debt; the interest portion of any deferred payment obligation; all
commissions, discounts, and other fees and charges owed with respect to letters
of credit or bankers' acceptance financing; net costs associated with Financial
▇▇▇▇▇▇; the interest component of any Debt that is guaranteed or secured by such
Person), and all cash premiums or penalties for the repayment, redemption, or
repurchase of Debt. With respect to the calculation of Interest Expense for the
Companies, Interest Expense shall include (without duplication) the aggregate
amount of interest on the Communications Bond Debt (whether accrued or actually
paid in cash).
"Laws" means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or interpretations of any Governmental Authority.
"LCPI" means ▇▇▇▇▇▇ Commercial Paper Inc.
"Lenders" means, on any date of determination, the financial institutions
named on "Schedule 2.1" (as the same may be amended from time to time by
Administrative Agent to reflect the assignments made in accordance with Section
13.13(b)), and subject to the terms and conditions of this Agreement, and their
respective successors and assigns (but not any Participant who is not otherwise
a party to this Agreement); provided that, solely for purposes of any Collateral
Document and Section 12 and Sections 3.11 and 3.12; "Lenders" shall also include
any Lender or Affiliate of a Lender who is party to a Financial Hedge with
Borrower and their respective successors and assigns (for purposes hereof, each
Lender shall be deemed to have entered into this Agreement for and on behalf of
any Affiliate now or hereafter party to a Financial Hedge with Borrower).
"Leverage Ratio" means, with respect to the Companies on a consolidated
basis, at any date of determination thereof, the ratio of (a) the Total Debt
outstanding on such date to (b) Operating Cash Flow of the Companies.
"Lien" means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor (other than under or relating to
subordination or other intercreditor arrangements) to have its claim satisfied
out of any property or assets, or the proceeds therefrom, prior to the general
creditors of the owner thereof.
"Litigation" means any action by or before any Governmental Authority.
"Loan Documents" means (a) this Agreement, the Revolver Notes, the
Collateral Documents, (b) all agreements, documents, or instruments in favor of
the Administrative Agents or Lenders ever delivered pursuant to this Agreement
or otherwise delivered in connection with all or any part of the Obligation, and
(c) any and all future renewals, extensions, restatements, reaffirmations, or
amendments of, or supplements to, all or any part of the foregoing.
"Loan Parties" means, on any date of determination, Borrower,
Communications and all Guarantors.
"Material Adverse Event" means any set of one or more circumstances or
events which, individually or collectively, would reasonably be expected to
result in any (a) material impairment of the ability of any Loan Party to
perform any of its payment or other material obligations under the Loan
Documents or the ability of Administrative Agent or any Lender to enforce any
such obligations or any of their respective Rights under the Loan Documents, (b)
material and adverse effect on the business, properties, condition (financial or
otherwise), or results of operations of any Loan Party or any Subsidiary
thereof, taken as a whole, or (c) Default or Potential Default.
"Maximum Amount and Maximum Rate" respectively mean, for each Lender, the
maximum non-usurious amount and the maximum non-usurious rate of interest which,
under applicable Law, such Lender is permitted to contract for, charge, take,
reserve, or receive on the Obligation.
"Multiemployer Plan" means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any Loan
Party, any Restricted Subsidiary thereof, or any ERISA Affiliate of any Loan
Party is making, has made, is accruing, or has accrued, an obligation to make
contributions or has, within any of the preceding five plan years, made or
accrued an obligation to make contributions.
"New Bond Debt" means the 8.875% Senior Notes due 2013 issued by
Communications in an aggregate original principal amount of $650,000,000, and
the documents and agreements evidencing and establishing such Debt, as the same
may be amended from time to time in accordance with the terms thereof and
hereof.
"Net Cash Proceeds" means (a) with respect to any Significant Sale or any
Permitted Asset Swap, cash (freely convertible into Dollars) (including, any
cash received by way of deferred payment pursuant to a promissory note or
otherwise, but only as and when received) received in connection with and as
consideration therefor, on or after the date of consummation of such Significant
Sale and Permitted Asset Swap, by any Company from any Significant Sale or any
Permitted Asset Swap, after (i) deduction of Taxes actually paid, (ii) payment
of all usual and customary brokerage commissions and all other reasonable fees
and expenses related to any Significant Sale or any Permitted Asset Swap
(including, without limitation, reasonable attorneys' fees and closing costs
incurred in connection with any Significant Sale or any Permitted Asset Swap),
(iii) deduction of appropriate amounts to be provided by any Company as a
reserve, in accordance with GAAP, against any liabilities retained by any
Company after any Significant Sale or any Permitted Asset Swap, which
liabilities are associated with the asset or assets being sold, including,
without limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with any Significant Sale or any Permitted Asset Swap,
and (iv) deduction for the amount of any Debt (other than the Obligation)
secured by the respective asset or assets being sold, which Debt is required to
be repaid as a result of any Significant Sale or any Permitted Asset Swap; (b)
with respect to any Debt Issuance, cash (freely convertible into Dollars)
received, on or after the date of incurrence of such Debt, by any Company from
the incurrence of such Debt after (i) payment of all reasonable attorneys' fees
and usual and customary underwriting commissions, closing costs, and other
reasonable expenses associated with such incurrence of Debt, (ii) deduction of
all deposits, escrow amounts, or other reserves required to be maintained by any
Company in connection with such Debt, and (iii) deductions for the amount of any
other Debt (other than the Obligation) which is required to be repaid
concurrently with or otherwise as a result of the incurrence of such Debt; and
(c) with respect to any Equity Issuance, cash (freely convertible into Dollars)
(including any cash received by way of deferred payment pursuant to a promissory
note, or otherwise, but only as and when received) received, on or after the
date of such Equity Issuance, by Communications or any Company from such Equity
Issuance, net of usual and customary transaction costs and expenses and Assumed
Taxes.
"Obligation" means all present and future indebtedness, liabilities, and
obligations, and all renewals and extensions thereof, or any part thereof, now
or hereafter owed to Administrative Agent, any other Agent, any Lender, or any
Affiliate of any Lender by any Loan Party arising from, by virtue of, or
pursuant to any Loan Document, together with all interest accruing thereon,
fees, costs, and expenses (including, without limitation, all attorneys' fees
and expenses incurred in the enforcement or collection thereof) payable under
the Loan Documents; provided that, all references to the "Obligation" in the
Collateral Documents and in Sections 3.10, 3.11 and 3.12, shall, in addition to
the foregoing, also include all present and future indebtedness, liabilities,
and obligations (and all renewals and extensions thereof or any part thereof)
now or hereafter owed to any Lender or any Affiliate of a Lender arising from,
by virtue of, or pursuant to any Financial Hedge entered into by Communications
or any Company.
"Operating Cash Flow" means, for any Person, as calculated at any date of
determination with respect to the most recently ended Rolling Period (unless
otherwise indicated), the sum (without duplication and without giving effect to
any extraordinary losses or gains during such period) of (a) net income or
deficit during such period, plus (b) to the extent already deducted in computing
such net income, (i) income Tax expense; (ii) Interest Expense during such
period, (iii) depreciation, amortization, and other non-cash expense items
during such period, plus (c) the amount of all payments under the GRTI Note
received by Borrower during such period, plus (d) to the extent not otherwise
included in Operating Cash Flow pursuant to the adjustments made in clause (a)
through (c) below, Partnership Distributions from any Cellular Partnership
during such period; less (e) interest and dividend income, less (f) other
non-cash components of income, in each case adjusted as required to take into
account any minority ownership interest; provided, however, in determining
Operating Cash Flow of the Companies (and any reference to "Operating Cash Flow
Of The Companies" in the Loan Documents shall expressly include/exclude the
following adjustments, as appropriate, and shall be calculated without
duplication):
(A) The Operating Cash Flow of any Cellular Partnership that is not a
Wholly-owned Subsidiary of Borrower shall be included in the Operating
Cash Flow of the Companies in an amount equal to (y) the applicable
Company's percentage ownership of such Cellular Partnership multiplied
by (z) the difference between (i) the Operating Cash Flow of such
Cellular Partnership for the applicable period and (ii) the Debt of
such Cellular Partnership (to the extent permitted by the Loan
Documents) owed to any Person other than a Loan Party;
(B) The provision for income taxes and reductions in deferred taxes shall
be adjusted in accordance with the Tax Sharing Agreement;
(C) In determining Operating Cash Flow for any Company, such amount shall
be calculated after giving effect to Acquisitions and divestitures of
such Company (to the extent permitted by the Loan Documents) during
such period as if such transactions had occurred on the first day of
such period, regardless of whether the effect is positive or negative.
"OSHA" means the Occupational Safety And Health Act of 1970, 29 U.S.C.
Section 671 et seq.
"Participant" is defined in Section 13.13(e).
"Participation Certificate" is defined in Section 9.20.
"Partnership Agreement" means, individually, and Partnership Agreements
means, collectively, on any date of determination the partnership agreements
which create the Cellular Partnerships, as each may be amended from time to time
in accordance with the terms hereof and thereof.
"Partnership Distribution" for any Person means, with respect to such
Person's partnership interest in any Cellular Partnership, a cash distribution
with respect thereto paid from the operating income of such Cellular Partnership
(expressly excluding any partnership distributions representing a return on such
Person's capital investments in such Cellular Partnership or non-recurring or
other extraordinary gains realized by such Cellular Partnership).
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
"PCS Systems" means the wireless cellular communication systems offering
"Personal Communication Services" authorized under Part 24 of the FCC Rules (47
C.F.R. ss. 24.1 et seq.).
"Permitted Acquisition" means:
(a) Acquisitions and Permitted Asset Swaps by any Company of
businesses which are engaged in the domestic cellular industry, with
respect to which each of the following requirements shall have been
satisfied:
(ii) the Purchase Price for such Acquisition or Permitted Asset
Swap must be less than or equal to $200,000,000, and when aggregated
with the Purchase Price of all other Acquisitions and Permitted Asset
Swaps consummated in any calendar year may not exceed $400,000,000 in
the aggregate;
(iii) immediately prior to the Acquisition or Permitted Asset
Swap and after giving effect thereto and all Borrowings under the
Revolver Facility to be made in connection therewith, there is at
least $25 million of availability under the Revolver Commitment;
(iv) as of the closing of any Acquisition or Permitted Asset
Swap, the Acquisition or Permitted Asset Swap has been approved and
recommended by the board of directors of the Person to be acquired or
from which such business is to be acquired;
(v) not less than 14 days prior to the closing of any Acquisition
or Permitted Asset Swap, Borrower shall have delivered to
Administrative Agent a Permitted Acquisition Compliance Certificate,
demonstrating pro forma compliance with the terms and conditions of
the Loan Documents, after giving effect to the Acquisition or
Permitted Asset Swap, including (A) pro forma income statement and
balance sheet for the Companies (after giving effect to the
Acquisition or Permitted Asset Swap), and (B) cash flow projections
for the Acquisition or Permitted Asset Swap for the period from the
date of any such Acquisition or Permitted Asset Swap through the
last-to-occur of the then-effective Termination Dates, demonstrating
compliance with the Companies' applicable financial covenants and debt
amortization schedules;
(vi) not less than 30 days prior to the closing of any
Acquisition or Permitted Asset Swap, Borrower shall have delivered to
Administrative Agent a copy of the purchase agreement (including all
schedules and exhibits thereto) relating to such Acquisition or
Permitted Asset Swap; and prior to consummation of any Acquisition or
Permitted Asset Swap, Borrower shall have satisfied the conditions
precedent set forth in Section 7.2;
(vii) each Authorization issued by the FCC or any PUC to be
acquired by any Company shall be valid, binding, enforceable, and
subsisting without any defaults thereunder or enforceable adverse
limitations thereon and shall not be subject to any proceedings or
claims opposing the issuance, development, or use thereof or
contesting the validity thereof unless such Company has entered into
an agreement with the seller of such Authorization protecting such
Company from such adverse limitations, proceedings, or claims, which
agreement shall be on terms and conditions satisfactory to
Administrative Agent;
(viii) as of the closing of any Acquisition or Permitted Asset
Swap, after giving effect to such Acquisition or Permitted Asset Swap,
the acquiring party must be Solvent and the Companies, on a
consolidated basis, must be Solvent;
(ix) as of the closing of any Acquisition or Permitted Asset
Swap, no Default or Potential Default shall exist or occur as a result
of, and after giving effect to, such Acquisition or Permitted Asset
Swap;
(x) as of the closing of any Acquisition or Permitted Asset Swap,
(A) if such Acquisition is structured as a merger, Borrower, (or if
such merger is with any Restricted Subsidiary of Borrower, then a
domestic company that is or becomes a Restricted Subsidiary) must be
the surviving entity after giving effect to such merger; and (B) if
such Acquisition or Permitted Asset Swap is structured as a
stock/equity acquisition, the acquiring Company shall own not less
than a 75% interest in the entity being acquired and such acquired
entity will be a domestic company that is or becomes a Restricted
Subsidiary; or
(b) Any other Acquisition for which the prior written consent of
Required Lenders has been obtained.
"Permitted Asset Swap" means an exchange (for reasonably equivalent value,
a portion of which may include cash) of Cellular Assets owned by a
non-affiliated Person for Cellular Assets owned by any Company; so long as (a)
no Default or Potential Default exists or arises as a result thereof; (b)
Borrower shall be in pro forma compliance with the terms and conditions of the
Loan Documents, after giving effect to the Permitted Asset Swap and shall
deliver to Administrative Agent a Compliance Certificate demonstrating
compliance with the financial covenants in Section 9.29; (c) the fair market
value of the Cellular Assets of the Companies exchanged in all Permitted Asset
Swaps shall not exceed $200,000,000 in the aggregate from the Effective Date to
any date of determination; (d) at the time of any such Permitted Asset Swap,
such Company shall have entered into one or more binding agreement or agreements
with non-affiliated Persons to acquire Cellular Assets having an aggregate fair
market value reasonably equivalent to the Cellular Assets to be exchanged by
such Company; (e) within 6 months of the execution of the binding agreements
referred to in clause (d), Borrower shall have delivered a certificate to
Administrative Agent stating that the Permitted Asset Swap has been consummated;
and (f) the acquisition of Cellular Assets pursuant to any Permitted Asset Swap
satisfies the requirements for a Permitted Acquisition.
"Permitted Acquisition Compliance Certificate" means a certificate signed
by a Responsible Officer of Borrower, substantially in the form of Exhibit E-2.
"Permitted Acquisition Loan Closing Certificate" means a certificate signed
by a Responsible Officer of Borrower, substantially in the form of Exhibit E-3.
"Permitted Debt" means, (a) with respect to the Loan Parties (other than
Communications), Debt permitted under Section 9.12 as described in such Section;
and (b) with respect to Communications, Debt permitted under Section 9.30(a) as
described in such Section.
"Permitted Liens" means, (a) with respect to the Loan Parties (other than
Communications), Liens permitted under Section 9.13 as described in such
Section; and (b) with respect to Communications, Liens permitted under Section
9.30(d) as described in such Section.
"Person" means any individual, entity, or Governmental Authority.
"Potential Default" means the occurrence of any event or existence of any
circumstance which, with the giving of notice or lapse of time or both, would
become a Default.
"Preferred Stock" means, collectively the 12.25% Senior Exchangeable
Preferred Stock, the 13% Senior Exchangeable Preferred Stock and the Series F
Convertible Preferred Stock, in each case of Communications, and the documents
and agreements evidencing and establishing all such Preferred Stock, as the same
may be amended from time to time in accordance with the terms thereof and
hereof; and (iv) all renewals, extensions, amendments, modifications, and
refinancings of such Preferred Stock described in clauses (i) through (iii)
hereof, so long as (w) the principal amount of any refinanced Preferred Stock
shall not exceed the principal amount of the Preferred Stock being refinanced
immediately prior to giving effect to any such refinancing; (x) the terms of the
refinancing are no less favorable to Lenders or any Loan Party than the terms of
the Preferred Stock being refinanced; (y) the maturity date of the refinancing
is the same as or later than the maturity date of the Preferred Stock being
refinanced; and (z) all terms and conditions of the refinancing are acceptable
to Administrative Agent (in its sole discretion).
"Pro Forma Debt Service" means, on any date of determination, calculated
for the Companies on a consolidated basis, the sum of (a) Pro Forma Interest
Expense determined as of such date of determination plus (b) principal payments
scheduled to be made on Total Debt for the twelve months following the date of
determination.
"Pro Forma Interest Expense" means, on any date of determination with
respect to the most recently ended Rolling Period (the "Subject Period"),
calculated for the Companies on a consolidated basis, the sum of the results of
the following calculation made separately with respect to each Borrowing and
each other loan or other evidence of Total Debt of any Company (each a "Subject
Loan") for the purposes hereof):
{[A + B] /2} x C
where:
A = The aggregate outstanding principal Debt under the Subject
Loan at the beginning of the Subject Period.
B = The aggregate outstanding principal Debt under the Subject
Loan, at the end of the Subject Period, taking into account
all scheduled principal payments and any required commitment
reductions within such Subject Period.
C = With respect to the Subject Loan, the applicable interest
rate thereon determined as the rate in effect on the date of
determination.
"Pro Rata" or "Pro Rata Part", for each Lender, means on any date of
determination (a) for purposes of sharing any amount or fee payable to any
Lender in respect of the Revolver Facility, the portion of the Revolver Principa
l Debt for the Revolver Facility owed to such Lender bears to the Revolver
Principal Debt under the Revolver Facility owed to all Lenders at the time in
question, and (b) for all other purposes, the proportion which the portion of
the Revolver Principal Debt owed to such Lender bears to the Revolver Principal
Debt owed to all Lenders at the time in question, or if no Revolver Principal
Debt is outstanding, then the proportion that the aggregate of such Lender's
Committed Sums then in effect under the Revolver Facility bears to the Total
Commitment then in effect.
"PUC" means any state or local regulatory agency or governmental authority
that exercises jurisdiction over the rates or services or the ownership,
construction, or operation of network facilities or telecommunications systems
or over Persons who own, construct, or operate network facilities or
telecommunications systems.
"Purchase Price" means, with respect to any Acquisition or Permitted Asset
Swap, all direct, indirect, and deferred cash and non-cash payments made to or
for the benefit of the Person being acquired (or whose assets are being
acquired), its shareholders, officers, directors, employees, or Affiliates in
connection with such Acquisition or Permitted Asset Swap, including, without
limitation, the amount of any Debt being assumed in connection with such
Acquisition or Permitted Asset Swap (and subject to the limitations on Permitted
Debt hereunder), seller financing, payments under non-competition or consulting
agreements entered into in connection with such Acquisition or Permitted Asset
Swap and similar agreements, all non-cash consideration and the value of any
stock, options, or warrants or other Rights to acquire stock issued as part of
the consideration in such transaction; provided that, for the purposes hereof,
(i) non-competition agreements and consulting agreements shall be valued at
their present value discounted over the term of such agreement at the Base Rate
in effect at the time of the Acquisition; and (ii) solely with respect to any
Permitted Asset Swap, the fair market value of the assets of the Companies
exchanged in connection with such Permitted Asset Swap shall be excluded from
the Purchase Price.
"Reference Lender": means Deutsche Bank, New York Office.
"Register" is defined in Section 13.13(c).
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as amended.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposal,
deposit, dispersal, migrating, or other movement into the air, ground, or
surface water, or soil.
"Representatives" means representatives, officers, directors, employees,
attorneys, and agents.
"Required Lenders" means (a) on any date of determination on and after the
Effective Date and prior to the Termination Date, those Lenders holding 50.1% or
more of the Revolver Commitment and (b) on any date of determination on or after
the Termination Date, those Lenders holding 50.1% or more of the Principal Debt.
"Responsible Officer" means any "Officer" appointed pursuant to the
Operating Agreement of Borrower, including, without limitation, the General
Manager, any Assistant General Manager, or the Treasurer of Borrower, or, for
all purposes under the Loan Documents, any other officer designated from time to
time by the Board of Managers of Borrower, which designated officer is
acceptable to Administrative Agent.
"Restricted Payments" means: (a) redemptions, repurchases, dividends, and
Distributions of any kind in respect of Borrower's or Communications' capital
stock (including without limitation any class of common or preferred shares);
(b) Partnership Distributions of any kind in respect of partnership interests of
any Loan Party that is a Cellular Partnership; and (c) payments of principal and
interest on, and any redemptions or repurchases of, Subordinated Debt.
"Restricted Subsidiary" means, at any time of determination, (a) with
respect to Borrower, all Subsidiaries of Borrower, other than Unrestricted
Subsidiaries of Borrower; and (b) with respect to Communications, all
Subsidiaries of Communications, other than Unrestricted Subsidiaries of
Communications.
"Revolver Commitment" means an amount (subject to reduction or cancellation
as herein provided) equal to $30,000,000.
"Revolver Commitment Usage" means, at the time of any determination
thereof, the aggregate Revolver Principal Debt.
"Revolver Facility" means the credit facility as described in and subject
to the limitations set forth in Section 2.1 hereof.
"Revolver Lenders" means, on any date of determination, any Lender that has
a Committed Sum under the Revolver Facility.
"Revolver Note" means a promissory note in substantially the form of
Exhibit A-1, and all renewals and extensions of all or any part thereof.
"Revolver Principal Debt" means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under the Revolver
Facility.
"Rights" means rights, remedies, powers, privileges, and benefits.
"Rolling Period" means, on any date of determination, the most recent four
fiscal quarters ended on March 31, June 30, September 30, or December 31 (as the
case may be).
"Schedule" means, unless specified otherwise, a schedule attached to this
Agreement, as the same may be supplemented and modified from time to time in
accordance with the terms of the Loan Documents.
"Security Agreement" means (a) a Pledge, Assignment, and Security Agreement
in substantially the form and upon the terms of Exhibits D-1 or D-2 (as
applicable), executed by any Person pursuant to the requirements of the Loan
Documents; and (b) any amendments, modifications, supplements, restatements,
ratifications, or reaffirmations of any Pledge Agreement made in accordance with
the Loan Documents.
"Significant Sale" means any sale, lease, transfer, or other disposition of
any property or assets (tangible or intangible, including, without limitation,
stock or equity interests in Subsidiaries) by any Company to any other Person
(other than any sale, lease, transfer or other disposition contemplated by
Sections 9.22 (a) through (f) or permitted by Section 9.23) with respect to
which the Net Cash Proceeds realized by any Company for such asset disposition
(or when aggregated with the Net Cash Proceeds from all such other asset
dispositions occurring in the same calendar year) equals or exceeds $10,000,000.
"Single-Employer Plan" means an employee pension benefit plan covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code and established or maintained by any Loan Party, Restricted
Subsidiary thereof, or ERISA Affiliate of any Loan Party, but not including any
Multiemployer Plan.
"Solvent" means, as to a Person, that (a) the aggregate fair market value
of such Person's assets exceeds its liabilities (whether contingent,
subordinated, unmatured, unliquidated, or otherwise), (b) such Person has
sufficient cash flow to enable it to pay its Debts as they mature, and (c) such
Person does not have unreasonably small capital to conduct such Person's
businesses.
"Subordinated Debt" means any Debt of any Company subordinated to the
Obligation on terms (including, without limitation, subordination terms)
acceptable to Administrative Agent and its counsel.
"Subsidiary" of any Person means (a) any entity of which an aggregate of
more than 50% (in number of votes) of the stock is owned of record or
beneficially, directly or indirectly, by such Person, or (b) any partnership
(limited or general) of which such Person shall at any time be the controlling
general partner determined in accordance with GAAP or own more than fifty
percent (50%) of the issued and outstanding partnership interests.
"Supplemental Capital Expenditures" means, with respect to Permitted
Acquisitions, for any period of determination, the aggregate projected Capital
Expenditures reflected on the Supplemental Capital Expenditure Budgets delivered
in connection with such Permitted Acquisitions, so long as each such
Supplemental Capital Expenditure Budget has been approved by Administrative
Agent and the related Permitted Acquisition has been consummated.
"Supplemental Capital Expenditures Budget" means, with respect to any
Permitted Acquisition, the budget detailing projected Capital Expenditures to
the latest Termination Date and delivered in connection with such Permitted
Acquisition pursuant to Section 7.2.
"Sygnet Wireless Credit Agreement": means the credit agreement dated as of
December 22, 1998 (as amended, supplemented or otherwise modified from time to
time), among Sygnet Wireless, Inc., as borrower, Bank of America, N.A.(formerly
known as Nationsbank, N.A.), as administrative agent and the various lenders and
other agents party thereto.
"System" means individually, and "Systems" means collectively, the Cellular
Systems and PCS Systems, now or hereafter owned, operated, or managed by the
Companies.
"Tax Sharing Agreement" means that certain consolidated income tax payment
agreement dated February 28, 1997, entered into between Communications and its
Subsidiaries (as amended from time to time with the consent of Administrative
Agent).
"Taxes" means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets.
"Termination Date" means the earlier of (i) October 31, 2003 and (ii) the
closing of the credit facility contemplated by the commitment letter, dated as
of September 22, 2003, from ▇▇▇▇▇▇ Brothers Inc., LCPI, Bear ▇▇▇▇▇▇▇ & Co. Inc.,
BSCL, MSSF addressed to Communications and ▇▇▇▇▇▇ Cellular Systems.
"Total Commitment" means, on any date of determination, the sum of all
Committed Sums then in effect for all Lenders in respect of the Revolver
Facility.
"Total Debt" means (without duplication), as of any date of determination,
for the Companies determined on a consolidated basis, the sum of all obligations
for borrowed money, all payments required under non-compete agreements, capital
lease obligations, amounts required under installment sales purchases, all debt
or other financial obligations of others guaranteed by such Person, and any
amounts for which such Person is contingently liable to provide, as equity or
debt, advances to other Persons, any class or series of capital stock that by
its terms is required to be redeemed prior to its stated final redemption date
or otherwise requires cash dividend payments to be made prior to the final
redemption of such stock. With respect to the Companies, "Total Debt" shall
exclude any Subordinated Debt owed by any Company to Communications.
"Triggering Event" means the occurrence of any Default, other than a
Default resulting from the breach of any representation or warranty set forth in
Section 8; provided, however, that any Default which results from Borrower's
failure to comply with the financial covenants in Section 9.29, and which
restricts dividends or distributions from Borrower to Communications, shall only
constitute a "Triggering Event" (a) with respect to the Preferred Stock
described in clause (i) of the definition of "Preferred Stock," to the extent of
pro forma non-compliance with the financial covenants on the terms referred to,
or incorporated, in the Existing Credit Agreement, notwithstanding any future
amendments or modifications of such provisions, (b) with respect to the
Preferred Stock described in clause (ii) of the definition of "Preferred Stock,"
to the extent of pro forma non-compliance with the financial covenants on the
terms referred to, or incorporated, in the Existing Credit Agreement,
notwithstanding any future amendments or modifications of such provisions, and
(c) with respect to the Preferred Stock described in clause (iii) of the
definition of "Preferred Stock," to the extent of pro forma non-compliance with
the financial covenants on the terms referred to, or incorporated, in the
Existing Credit Agreement.
"Unrestricted Subsidiary" means, at any time of determination thereof, (a)
with respect to Borrower, (i) (until the repayment of all amounts under, and
termination of, the Sygnet Wireless Credit Agreement) ▇▇▇▇▇▇/Sygnet
Communications Corporation and its Subsidiaries, (ii) any Foreign Subsidiary of
Borrower or any other Company, (iii) any Subsidiary of Borrower that is a
Cellular Partnership that is not Wholly-owned directly or indirectly by
Borrower, (iv) any other Subsidiary of Borrower designated from time to time as
an "Unrestricted Subsidiary" by Borrower's Board of Directors, so long as such
designation is approved by Required Lenders, and (v) any Subsidiary of an
Unrestricted Subsidiary of Borrower; and (b) with respect to Communications, (i)
American Cellular Corporation and its Subsidiaries, (ii) ▇▇▇▇▇▇ ▇▇ Company and
its Subsidiaries, (iii) DCC PCS, Inc., (iv) any Subsidiary of Communications
designated from time to time as an "Unrestricted Subsidiary" by Communications'
Board of Directors, and (v) any Subsidiary of an Unrestricted Subsidiary of
Communications; provided that, the Boards of Directors of Borrower and
Communications may make such designation of an "Unrestricted Subsidiary" only if
(A) immediately before and after giving pro forma effect to such designation, no
Default or Potential Default then exists or arises as a result thereof; (B) such
designated Unrestricted Subsidiary does not own any capital stock of Borrower,
Communications, or any Restricted Subsidiary of Borrower or Communications;
provided that, determinations to be made "immediately before" such designation
shall be made (and all calculations with respect to financial covenant
compliance shall be calculated) as of the Business Day immediately preceding the
proposed date of designation of the Unrestricted Subsidiary; (C) such designated
Unrestricted Subsidiary does not hold a Lien on any assets of Borrower,
Communications, or any Restricted Subsidiary of Borrower or Communications; (D)
after giving pro forma effect to such designation, any investment of Borrower or
any Restricted Subsidiary of Borrower in such Unrestricted Subsidiary would
constitute an investment permitted under Section 9.20; (E) neither Borrower,
Communications, nor any Restricted Subsidiary of Borrower or Communications
shall have issued any guaranty or credit support or be subject to any recourse
with respect to the obligations of the designated Unrestricted Subsidiary; (F)
on and after the date any such Subsidiary is designated as an Unrestricted
Subsidiary of Borrower, any Debt owed to such designated Unrestricted Subsidiary
by Borrower or any Restricted Subsidiary of Borrower shall be included in the
calculation of "Total Debt" and shall be incurred or maintained in compliance
with Sections 9.12 and 3.3(b)(i); and (G) Required Lenders shall have consented
to such designation in writing.
"Voting Stock" means securities (as such term is defined in Section 2(1) of
the Securities Act of 1933, as amended) of any class or classes, the holders of
which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
"Wholly-Owned" when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by Borrower or
one or more of its Wholly-owned Subsidiaries.
"Working Capital" means the sum of all current assets other than cash, LESS
the sum of all current liabilities other than the current portion of long term
Debt, all as determined in accordance with GAAP.
1.2. Number and Gender of Words; Other References. Unless otherwise
specified in the Loan Documents, (a) where appropriate, the singular includes
the plural and vice versa, and words of any gender include each other gender,
(b) heading and caption references may not be construed in interpreting
provisions, (c) monetary references are to currency of the United States of
America, (d) section, paragraph, annex, schedule, exhibit, and similar
references are to the particular Loan Document in which they are used, (e)
references to "telecopy," "facsimile," "fax," or similar terms are to facsimile
or telecopy transmissions, (f) references to "including" mean including without
limiting the generality of any description preceding that word, (g) the rule of
construction that references to general items that follow references to specific
items are limited to the same type or character of those specific items is not
applicable in the Loan Documents, (h) references to any Person include that
Person's heirs, personal representatives, successors, trustees, receivers, and
permitted assigns, (i) references to any Law include every amendment or
supplement to it, rule and regulation adopted under it, and successor or
replacement for it, and (j) references to any Loan Document or other document
include every renewal and extension of it, amendment and supplement to it, and
replacement or substitution for it.
1.3. Accounting Principles. All accounting and financial terms used in the
Loan Documents and the compliance with each financial covenant therein shall be
determined in accordance with GAAP, and, all accounting principles shall be
applied on a consistent basis so that the accounting principles in a current
period are comparable in all material respects to those applied during the
preceding comparable period. If Borrower or any Lender determines that a change
in GAAP from that in effect on the date hereof has altered the treatment of
certain financial data to its detriment under this Agreement, such party may, by
written notice to the others and Administrative Agent not later than ten (10)
days after the effective date of such change in GAAP, request renegotiation of
the financial covenants affected by such change. If the Borrower and Required
Lenders have not agreed on revised covenants within thirty (30) days after
delivery of such notice, then, for purposes of this Agreement, GAAP will mean
generally accepted accounting principles on the date just prior to the date on
which the change that gave rise to the renegotiation occurred.
Section 2. BORROWING PROVISIONS.
2.1. Revolver Facility.
(a) As of the Effective Date (i) all Borrowings (as defined in the
Existing Credit Agreement) under the Revolver Facility have been prepaid in full
and (ii) the Total Commitment under the Revolver Facility has been permanently
reduced, ratably among the Revolver Lenders, to $30,000,000, with the effect
that the Revolver Commitment of each Lender on and after the Effective Date is
in an amount equal to 10% of its Revolver Commitment immediately prior to the
Effective Date. After giving effect to the foregoing, the respective Committed
Sums of the Lenders are as stated next to their respective names on Schedule
2.1.
(b) Each Revolver Lender severally, but not jointly, agrees to lend to
Borrower such Revolver Lender's Commitment Percentage of one or more Borrowings
under the Revolver Facility not to exceed such Revolver Lender's Committed Sum
under the Revolver Facility, which Borrowings may be repaid and reborrowed from
time to time in accordance with the terms and provisions of the Loan Documents;
provided that, (a) each such Borrowing must occur on a Business Day and no later
than the Business Day immediately preceding the Termination Date for the
Revolver Facility; (b) each such Borrowing shall be in an amount not less than
$3,000,000 or a greater integral multiple of $100,000; and (c) on any date of
determination, the Revolver Commitment Usage shall never exceed the Revolver
Commitment.
2.2. Term Loan Facilities. On the Effective Date, the Borrowings (as
defined in the Existing Credit Agreement) under the Term A Loan Facility and the
Term B Loan Facility (each as defined in the Existing Credit Agreement) have
been paid in full and the Term Loan A Facility and the Term Loan B Facility have
been terminated.
2.3. Terminations or Reductions of Commitments.
(a) Voluntary Commitment Reduction. Without premium or penalty, and
upon giving not less than ten Business Days prior written and irrevocable notice
to Administrative Agent, Borrower may terminate in whole or in part the unused
portion of the Revolver Commitment; provided that: (i) each partial termination
of the Revolver Commitment shall be in an amount of not less than $5,000,000 or
a greater integral multiple of $1,000,000; (ii) on any date of determination,
the amount of the Revolver Commitment may not be reduced below the Revolver
Commitment Usage; and (iii) each reduction of the Total Commitment shall be
allocated ratably among the Lenders' Revolver Commitments. At the time of any
commitment termination under this Section 2.3, Borrower shall pay to
Administrative Agent, for the account of each Revolver Lender all accrued and
unpaid fees then due and payable under this Agreement and the interest
attributable to the amount of that reduction.
(b) Mandatory Commitment Reductions and Termination. To the extent of
any payment or reduction of the Revolver Principal Debt pursuant to Section
3.10(b), then the Revolver Commitment shall be reduced by the amount of such
payment, and each Revolver Lender's Committed Sum under the Revolver Facility
shall be ratably reduced by such amount. To the extent not otherwise reduced or
terminated, the Revolver Commitment will terminate on the Termination Date.
(c) Ratable Allocation of Revolver Commitment Reductions. Each
reduction of the Revolver Commitment under this Section 2.3 shall be allocated
among the Revolver Lenders in accordance with their respective Commitment
Percentages under the Revolver Facility.
2.4. Borrowing Procedure. The following procedures apply to all Borrowings:
(a) Borrowing Request. Borrower may request a Borrowing by making or
delivering a Borrowing Notice to Administrative Agent requesting that Lenders
fund a Borrowing on a certain date (the "Borrowing Date"), which Borrowing
Notice (i) shall be irrevocable and binding on Borrower, (ii) shall specify the
Facility or Facilities, (iii) shall specify the Borrowing Date and amount (iv)
must be received by Administrative Agent no later than 10:00 a.m. New York time
on the Business Day immediately preceding the Borrowing Date; and (v) and shall
state the purpose or purposes for which such Borrowing is being requested.
Administrative Agent shall timely notify each Lender with respect to each
Borrowing Notice.
(b) Funding. Each Lender shall remit its Commitment Percentage of each
requested Borrowing to Administrative Agent's principal office in New York, New
York, in funds which are or will be available for immediate use by
Administrative Agent by 1:00 p.m. New York time on the applicable Borrowing
Date. Subject to receipt of such funds, Administrative Agent shall (unless to
its actual knowledge any of the conditions precedent therefor have not been
satisfied by Borrower or waived by the requisite Lenders under Section 13.11)
make such funds available to Borrower by causing such funds to be deposited to
Borrower's account as designated to Administrative Agent by Borrower.
(c) Funding Assumed. Absent contrary written notice from a Lender,
Administrative Agent may assume that each Lender has made its Commitment
Percentage of the requested Borrowing available to Administrative Agent on the
applicable Borrowing Date, and Administrative Agent may, in reliance upon such
assumption (but shall not be required to), make available to Borrower a
corresponding amount. If a Lender fails to make its Commitment Percentage of any
requested Borrowing available to Administrative Agent on the applicable
Borrowing Date, Administrative Agent may recover the applicable amount on
demand, (i) from that Lender together with interest, commencing on the Borrowing
Date and ending on (but excluding) the date Administrative Agent recovers the
amount from that Lender, at an annual interest rate equal to the Federal Funds
Rate, or (ii) if that Lender fails to pay its amount upon demand, then from
Borrower. No Lender is responsible for the failure of any other Lender to make
its Commitment Percentage of any Borrowing available as required by Section
2.4(b); however, failure of any Lender to make its Commitment Percentage of any
Borrowing so available does not excuse any other Lender from making its
Commitment Percentage of any Borrowing so available.
Section 3. TERMS OF PAYMENT.
3.1. Loan Accounts, Revolver Notes, and Payments.
(a) Loan Accounts; Noteless Transaction. The Principal Debt owed to
each Lender shall be evidenced by one or more loan accounts or records
maintained by such Lender in the ordinary course of business. The loan accounts
or records maintained by Administrative Agent (including, without limitation,
the Register) and each Lender shall be prima facie evidence absent manifest
error of the amount of the Borrowings made by Borrower from each Lender under
this Agreement (and Revolving Facility) and the interest and principal payments
thereon. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of Borrower under the Loan Documents to
pay any amount owing with respect to the Obligation.
(b) Revolver Notes. Upon the request of any Lender, made through
Administrative Agent, the Principal Debt owed to such Lender may be evidenced by
one or more Revolver Notes. In such event, Borrower shall promptly prepare,
execute, and deliver to such Lender such Revolver Notes payable to the order of
such Lender.
(c) Payment. All payments of principal, interest, and other amounts to
be made by Borrower under this Agreement and the other Loan Documents shall be
made to Administrative Agent at its principal office in New York, New York in
Dollars and in funds which are or will be available for immediate use by
Administrative Agent by 12:00 noon New York time on the day due, without setoff,
deduction, or counterclaim. Payments made after 12:00 noon, New York time shall
be deemed made on the Business Day next following. Administrative Agent shall
pay to each Lender any payment of principal, interest, or other amount to which
such Lender is entitled hereunder on the same day Administrative Agent shall
have received the same from Borrower; provided such payment is received by
Administrative Agent prior to 12:00 noon, New York time, and otherwise before
12:00 noon, New York time on the Business Day next following.
(d) Payment Assumed. Unless Administrative Agent has received notice
from Borrower prior to the date on which any payment is due under this Agreement
that Borrower will not make that payment in full, Administrative Agent may
assume that Borrower has made the full payment due and Administrative Agent may,
in reliance upon that assumption, cause to be distributed to the appropriate
Lender on that date the amount then due to such Lenders. If and to the extent
Borrower does not make the full payment due to Administrative Agent, each Lender
shall repay to Administrative Agent on demand the amount distributed to that
Lender by Administrative Agent together with interest for each day from the date
that Lender received payment from Administrative Agent until the date that
Lender repays Administrative Agent (unless such repayment is made on the same
day as such distribution), at an annual interest rate equal to the Federal Funds
Rate.
3.2. Interest and Principal Payments.
(a) Interest. Accrued interest on each Base Rate Borrowing shall be
due and payable on each March 31, June 30, September 30, and December 31 and on
the Termination Date.
(b) Revolver Principal Debt. The Revolver Principal Debt is due and
payable on the Termination Date for the Revolver Facility.
3.3. Prepayments.
(a) Optional Prepayments. Except as set forth herein, after giving
Administrative Agent advance written notice of the intent to prepay, Borrower
may voluntarily prepay all or any part of the Revolver Principal Debt from time
to time and at any time, in whole or in part, without premium or penalty;
provided that: (i) such notice must be received by Administrative Agent by 12:00
noon, New York time, one Business Day preceding the date of prepayment of any
Borrowing; and (ii) each such partial prepayment must be in a minimum amount of
at least $5,000,000 or a greater integral multiple of $1,000,000 thereof or such
lesser amount as may be outstanding under the Revolver Facility. Each notice of
prepayment shall specify the prepayment date and the amount(s) of such
Borrowing(s) to be prepaid and shall constitute a binding obligation of Borrower
to make a prepayment on the date stated therein, together with accrued and
unpaid interest to the date of such payment on the aggregate principal amount
prepaid. Any voluntary prepayment of the Revolver Principal Debt shall be
allocated Pro Rata to each Revolver Lender. Unless a Default or Potential
Default has occurred and is continuing (or would arise as a result thereof), any
payment or prepayment of the Revolver Principal Debt may be reborrowed by
Borrower, subject to the terms and conditions of the Loan Documents.
(b) Mandatory Prepayments from Net Cash Proceeds. Until such time as
the Revolver Principal Debt has been repaid in full and the Revolver Commitment
terminated in full, the Revolver Principal Debt shall be permanently prepaid (or
the Revolver Commitment reduced to the extent required in this Section 3.3(b))
in the amounts and upon the occurrence of any of the following events:
(i) Concurrently with any Debt Issuance (other than the New Bond
Debt) by any Company, the Revolver Principal Debt shall be permanently
prepaid (and the Revolver Commitment reduced to the extent required in
this Section 3.3(b)), in the order and manner specified herein, by an
amount equal to 100% of the Net Cash Proceeds realized by any Company
from such Debt Issuance.
(ii) If any portion of the Net Cash Proceeds realized by any
Company from any Significant Sale or Permitted Asset Swap (including
any deferred purchase price therefor and any Net Cash Proceeds of any
asset disposition which constitutes a Significant Sale as a result of
aggregation with other asset dispositions in the same calendar year)
has not been reinvested in Cellular Assets of such Company within 10
months from the receipt by any Company of such Net Cash Proceeds
(including receipt of any deferred payments for any such Significant
Sale or Permitted Asset Swap or portion thereof, if and when received)
and if no Default or Potential Default exists or arises as a result of
any such Significant Sale or Permitted Asset Swap, then on the day
following the 10th month after receipt of such Net Cash Proceeds, the
Principal Debt shall be permanently prepaid (and the Revolver
Commitment reduced to the extent required in this Section 3.3(b)), in
the order and manner specified herein, by an amount equal to 100% of
all such Net Cash Proceeds not reinvested in Cellular Assets of such
Company.
(iii) Concurrently with any Equity Issuance by any Loan Party,
the Revolver Principal Debt shall be permanently prepaid (and the
Revolver Commitment reduced to the extent required in this Section
3.3(b)) in the order and manner specified herein, by an amount equal
to 75% of the Net Cash Proceeds realized by any Loan Party from such
Equity Issuance; provided, however, that the following Net Cash
Proceeds may be excluded from such mandatory prepayment or reduction:
(A) the Net Cash Proceeds from the issuance of up to $200,000,000 of
common stock of Communications and (B) any other Net Cash Proceeds
from the issuance of the common stock of Communications issued after
the initial public offering of Communications, so long as, such Net
Cash Proceeds are distributed to Borrower and used by Borrower to make
one or more Permitted Acquisitions within 30 days of the receipt of
such Net Cash Proceeds.
(iv) At any time a Default or Potential Default exists or arises
after giving effect to any Equity Issuance, any Significant Sale, or
Permitted Asset Swap, then, concurrently with such Equity Issuance,
Significant Sale (including any asset disposition which constitutes a
Significant Sale as a result of aggregation with other asset
dispositions in the same calendar year), or Permitted Asset Swap, the
Revolver Principal Debt shall be permanently prepaid and the Revolver
Commitment reduced, in the order and manner specified in Section
3.10(b), by an amount equal to 100% of the Net Cash Proceeds realized
by such Company from any such Equity Issuance, Significant Sale, or
Permitted Asset Swap.
(v) If any Company is required to apply (or offer to apply) any
Net Cash Proceeds from any sale of assets (even if such sale is not a
Significant Sale) to repayment of any Debt (other than the Obligation)
or to any mandatory redemption of the Preferred Stock or other equity
interests, unless such Company pays or commits to pay all or a part of
such Net Cash Proceeds to payment of the Revolver Principal Debt on or
prior to a particular date, then at least fifteen (15) days prior to
the date such repayment or offer of repayment is required to be made
on such other Debt, such Company shall permanently prepay the Revolver
Principal Debt in the order and manner specified herein by an amount
equal to the amount that will excuse the Company from making such
repayment or offer of repayment under such other Debt.
(vi) Concurrently with the incurrence of the Subordinated Debt
owed to Communications funded with all or a portion of the proceeds of
the New Bond Debt, the Revolver Principal Debt shall be prepaid by an
amount equal to 100% of the Net Cash Proceeds realized by any Company
from such incurrence of Subordinated Debt. Such mandatory prepayment
of Revolver Principal Debt shall reduce the Revolver Principal Debt
(but not the Revolver Commitment unless a Default then exists or
arises) and shall be applied ratably among the Revolver Lenders in
proportion to the amount of their respective Revolver Principal Debt
(in the case of a mandatory prepayment) or Committed Sums under the
Revolver Facility (in the case of a mandatory commitment reduction).
(vii) Concurrently with the prepayment or repayment of all or any
portion of the DCCPCS Loan, the Revolver Principal Debt shall be
prepaid by an amount equal to 100% of the amount received by any
Company as a prepayment or repayment of the DCCPCS Loan. Such
mandatory prepayment of Revolver Principal Debt shall reduce the
Revolver Principal Debt (but not the Revolver Commitment unless a
Default or Potential Default then exists or arises whereupon any
prepayment or repayment shall be applied to the Revolver Principal
Debt in accordance with Section 3.10(b)) and shall be applied ratably
among the Revolver Lenders in proportion to the amount of their
respective Revolver Principal Debt.
Each commitment reduction or prepayment under this Section 3.3(b) (other than
Section 3.3(b)(vi) and 3.3(b)(vii)) shall be applied (unless a Default or
Potential Default then exists or arises as a result therefrom (whereupon the
provisions of Section 3.10(b) shall apply)) as a mandatory prepayment of the
Revolver Principal Debt, or if the prepayment arises under Section 3.3(b)(ii) or
if a Default then exists or arises, as a mandatory reduction of the Revolver
Commitment. All mandatory prepayments of the Revolver Facility shall be
allocated Pro Rata to each Revolver Lender.
(c) Mandatory Prepayments from Excess Cash Flow. No later than the
30th day following the date on which Borrower delivers the Financial Statements
required under Section 9.3(a) for fiscal year 2000 and each fiscal year
thereafter (but in any event within 120 days after the end of each fiscal year
of Borrower), the Revolver Principal Debt shall be permanently prepaid (and the
Revolver Commitment reduced to the extent required in this Section 3.3(c)) by an
amount equal to 50% of Excess Cash Flow for the fiscal year covered by such
Financial Statements, if the Leverage Ratio of the Companies as of the end of
such fiscal year is greater than 4.0:1.0. Unless a Default or Potential Default
then exists or arises as a result therefrom (whereupon the provisions of Section
3.10(b) shall apply), each reduction or prepayment under this Section 3.3(c)
from payments from Excess Cash Flow made in fiscal year 2003 and thereafter
shall be applied as a mandatory prepayment of the Revolver Principal Debt, or if
a Default then exists or arises, as a mandatory reduction of the Revolver
Commitment. All mandatory prepayments of the Revolver Facility shall be
allocated Pro Rata to each Revolver Lender. Amounts of Revolver Principal Debt
prepaid pursuant to this Section 3.3(c), shall not reduce the Revolver
Commitment unless a Default or Potential Default then exists or arises.
(d) Revolver Facilities Mandatory Payments/Reductions. On any date of
determination if the Revolver Commitment Usage exceeds the Revolver Commitment
then in effect, then Borrower shall make a mandatory prepayment of the Revolver
Principal Debt in at least the amount of such excess, together with (x) all
accrued and unpaid interest on the principal amount so prepaid and (y) any
Consequential Loss arising as a result thereof.
(e) Mandatory Prepayments of Interest/Consequential Loss. All
prepayments under Section 3.3 shall be made, together with accrued interest to
the date of such prepayment on the principal amount prepaid.
3.4. Interest Options. Except as otherwise provided in this Agreement,
Borrowings bear interest at a rate per annum equal to the lesser of (a) the Base
Rate plus the Applicable Margin for Base Rate Borrowings for the Revolver
Facility and (b) the Maximum Rate. Each change in the Base Rate or the Maximum
Rate, subject to the terms of this Agreement, will become effective, without
notice to Borrower or any other Person, upon the effective date of such change.
3.5. Quotation of Rates. It is hereby acknowledged that a Responsible
Officer or other appropriately designated officer of Borrower may call
Administrative Agent on or before the date on which a Borrowing Notice is to be
delivered by Borrower in order to receive an indication of the rates then in
effect, but such indicated rates shall neither be binding upon Administrative
Agent or Lenders nor affect the rate of interest which thereafter is actually in
effect when the Borrowing Notice is given or on the Borrowing Date.
3.6. Default Rate. After the occurrence and during the continuance of a
Default, at the option of Required Lenders and to the extent permitted by Law,
the Obligation shall bear interest at the Default Rate; provided that, the
Default Rate shall automatically apply in the case of Sections 2.3(a) and 11.3
where the Default Rate is specified.
3.7. Interest Recapture. If the designated rate applicable to any Borrowing
exceeds the Maximum Rate, the rate of interest on such Borrowing shall be
limited to the Maximum Rate, but any subsequent reductions in such designated
rate shall not reduce the rate of interest thereon below the Maximum Rate until
the total amount of interest accrued thereon equals the amount of interest which
would have accrued thereon if such designated rate had at all times been in
effect. In the event that at maturity (stated or by acceleration), or at final
payment of the Revolver Principal Debt, the total amount of interest paid or
accrued is less than the amount of interest which would have accrued if such
designated rates had at all times been in effect, then, at such time and to the
extent permitted by Law, Borrower shall pay an amount equal to the difference
between (a) the lesser of the amount of interest which would have accrued if
such designated rates had at all times been in effect and the amount of interest
which would have accrued if the Maximum Rate had at all times been in effect,
and (b) the amount of interest actually paid or accrued on the Principal Debt.
3.8. Interest Calculations. Interest will be calculated on the basis of
actual number of days (including the first day but excluding the last day)
elapsed but computed as if each calendar year consisted of 365 or 366 days, as
the case may be, in the case of a Base Rate Borrowing. All interest rate
determinations and calculations by Administrative Agent are conclusive and
binding absent manifest error.
3.9. Maximum Rate. Regardless of any provision contained in any Loan
Document, neither Administrative Agent nor any Lender shall ever be entitled to
contract for, charge, take, reserve, receive, or apply, as interest on all or
any part of the Obligation, any amount in excess of the Maximum Rate, and, if
Lenders ever do so, then such excess shall be deemed a partial prepayment of
principal and treated hereunder as such and any remaining excess shall be
refunded to Borrower. In determining if the interest paid or payable exceeds the
Maximum Rate, Borrower and Lenders shall, to the maximum extent permitted under
applicable Law, (a) treat all Borrowings as but a single extension of credit
(and Lenders and Borrower agree that such is the case and that provision herein
for multiple Borrowings is for convenience only), (b) characterize any
nonprincipal payment as an expense, fee, or premium rather than as interest, (c)
exclude voluntary prepayments and the effects thereof, and (d) amortize,
prorate, allocate, and spread the total amount of interest throughout the entire
contemplated term of the Obligation. However, if the Obligation is paid and
performed in full prior to the end of the full contemplated term thereof, and if
the interest received for the actual period of existence thereof exceeds the
Maximum Amount, Lenders shall refund such excess, and, in such event, Lenders
shall not, to the extent permitted by Law, be subject to any penalties provided
by any Laws for contracting for, charging, taking, reserving, or receiving
interest in excess of the Maximum Amount.
3.10. Order of Application.
(a) No Default. If no Default or Potential Default exists and if no
order of application is otherwise specified in Section 3.3 or otherwise in the
Loan Documents, payments and prepayments of the Obligation shall be applied
first to fees, second to accrued interest then due and payable on the Revolver
Principal Debt, and then to the remaining Obligation in the order and manner as
Borrower may direct.
(b) Default. If a Default or Potential Default exists (or if Borrower
fails to give directions as permitted under Section 3.10(a)), any payment or
prepayment (including proceeds from the exercise of any Rights) shall be applied
to the Obligation in the following order: (i) to the ratable payment of all
fees, expenses, and indemnities for which the Administrative Agent or Lenders
have not been paid or reimbursed in accordance with the Loan Documents (as used
in this Section 3.10(b)(i), a "Ratable Payment" for any Lender or the
Administrative Agent shall be, on any date of determination, that proportion
which the portion of the total fees, expenses, and indemnities owed to such
Lender or the Administrative Agent bears to the total aggregate fees and
indemnities owed to all Lenders and the Administrative Agent on such date of
determination); (ii) to the ratable payment of accrued and unpaid interest on
the Principal Debt (as used in this Section 3.10(b)(ii), "Ratable Payment"
means, for any Lender, on any date of determination, that proportion which the
accrued and unpaid interest on the Principal Debt owed to such Lender bears to
the total accrued and unpaid interest on the Principal Debt owed to all
Lenders); and (iii) to the ratable payment of the Principal Debt (as used in
this Section 3.10(b)(iii), "Ratable Payment" means for any Lender, on any date
of determination, that proportion which the Principal Debt owed to such Lender
bears to the Principal Debt owed to all Lenders); and (v) to the payment of the
remaining Obligation in the order and manner Required Lenders deem appropriate.
Subject to the provisions of Section 12 and provided that Administrative Agent
shall not in any event be bound to inquire into or to determine the validity,
scope, or priority of any interest or entitlement of any Lender and may suspend
all payments or seek appropriate relief (including, without limitation,
instructions from Required Lenders or an action in the nature of interpleader)
in the event of any doubt or dispute as to any apportionment or distribution
contemplated hereby, Administrative Agent shall promptly distribute such amounts
to each Lender in accordance with the Agreement and the related Loan Documents.
3.11. Sharing of Payments, Etc. If any Lender shall obtain any payment or
prepayment with respect to the Obligation (whether voluntary, involuntary, or
otherwise, including, without limitation, as a result of exercising its Rights
under Section 3.12) which is in excess of its share of any such payment in
accordance with the relevant Rights of the Lenders under the Loan Documents,
then such Lender shall purchase from the other Lenders such participations as
shall be necessary to cause such purchasing Lender to share the excess payment
with each other Lender in accordance with the relevant Rights under the Loan
Documents. If all or any portion of such excess payment is subsequently
recovered from such purchasing Lender, then the purchase shall be rescinded and
the purchase price restored to the extent of such recovery. Borrower agrees that
any Lender purchasing a participation from another Lender pursuant to this
Section may, to the fullest extent permitted by Law, exercise all of its Rights
of payment (including the Right of offset) with respect to such participation as
fully as if such Lender were the direct creditor of Borrower in the amount of
such participation.
3.12. Offset. If a Default exists, each Lender shall be entitled to
exercise (for the benefit of all Lenders in accordance with Section 3.11) the
Rights of offset and/or banker's Lien against each and every account and other
property, or any interest therein, which any Loan Party may now or hereafter
have with, or which is now or hereafter in the possession of, such Lender to the
extent of the full amount of the Obligation.
3.13. Booking Borrowings. To the extent permitted by Law, any Lender may
make, carry, or transfer its Borrowings at, to, or for the account of any of its
branch offices or the office of any of its Affiliates; provided that, no
Affiliate shall be entitled to receive any greater payment under Section 4 than
the transferor Lender would have been entitled to receive with respect to such
Borrowings.
Section 4. CHANGE IN CIRCUMSTANCES.
4.1. Increased Cost and Reduced Return.
(a) Changes in Law. If, after the date hereof, the adoption of any
applicable Law or any change in any applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, or
compliance by any Lender (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such Governmental
Authority:
(i) shall subject such Lender (or its Applicable Lending Office)
to any Tax or other charge or change the basis of taxation of any
amounts payable to such Lender (or its Applicable Lending Office)
under the Loan Documents in respect of any Borrowings (other than
Taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or its Applicable Lending
Office), including the commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or the London interbank market any other condition affecting
the Loan Documents or any of such extensions of credit or liabilities
or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, converting into, continuing, or
maintaining any Borrowings or to reduce any sum received or receivable by such
Lender (or its Applicable Lending Office) under the Loan Documents with respect
to any Borrowing, then Borrower shall pay to such Lender on demand such amount
or amounts as will compensate such Lender for such increased cost or reduction.
If any Lender requests compensation by Borrower under this Section 4.1(a),
Borrower may, by notice to such Lender (with a copy to Administrative Agent),
suspend the obligation of such Lender to loan or continue Borrowings with
respect to which such compensation is requested until the event or condition
giving rise to such request ceases to be in effect; provided, that such
suspension shall not affect the Right of such Lender to receive the compensation
so requested.
(b) Capital Adequacy. If, after the date hereof, any Lender shall have
determined that the adoption of any applicable Law regarding capital adequacy or
any change therein or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Changes in Applicable Lending Office. Compensation Statement. Each
Lender shall promptly notify Borrower and Administrative Agent of any event of
which it has knowledge, occurring after the date hereof, which will entitle such
Lender to compensation pursuant to this Section and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Lender,
be otherwise disadvantageous to it. Any Lender claiming compensation under this
Section shall furnish to Borrower and Administrative Agent a statement setting
forth the additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
4.2. Illegality. Notwithstanding any other provision of the Loan Documents,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Borrowings hereunder, then such Lender shall
promptly notify Borrower thereof and such Lender's obligation to make or
continue Borrowings shall be suspended until such time as such Lender may again
make, maintain, and fund Borrowings.
4.3. Taxes.
(a) General. Any and all payments by Borrower to or for the account of
any Lender or Administrative Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future Taxes, excluding, in the case of each Lender and Administrative Agent,
Taxes imposed on its income and franchise Taxes imposed on it by the
jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or Administrative Agent (as the case may be) is organized, or any
political subdivision thereof. If Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable under any Loan Document to any
Lender or Administrative Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.3) such Lender or
Administrative Agent receives an amount equal to the sum it would have received
had no such deductions been made, (ii) Borrower shall make such deductions,
(iii) Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and (iv)
Borrower shall furnish to Administrative Agent, at its address listed in
Schedule 2.1, the original or a certified copy of a receipt evidencing payment
thereof.
(b) Stamp and Documentary Taxes. In addition, Borrower agrees to pay
any and all present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any payment made
under any Loan Document or from the execution or delivery of, or otherwise with
respect to, any Loan Document (hereinafter referred to as "OTHER TAXES").
(c) Indemnification for Taxes. Borrower agrees to indemnify each
Lender and Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 4.3) paid by such Lender
or Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
(d) Withholding Tax Forms. Each Lender organized under the Laws of a
jurisdiction outside the United States, on or prior to the Effective Date in the
case of each Lender listed on the signature pages hereof and on or prior to the
date on which it becomes a Lender in the case of each other Lender, and from
time to time thereafter if requested in writing by Borrower or Administrative
Agent (but only so long as such Lender remains lawfully able to do so), shall
provide Borrower and Administrative Agent with (i) if such Lender is a "BANK"
within the meaning of Section 881(c)(3)(A) of the Code, Internal Revenue Service
Form 1001 or 4224, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender is entitled to benefits
under an income tax treaty to which the United States is a party which reduces
the rate of withholding tax on payments of interest or certifying that the
income receivable pursuant to the Loan Documents is effectively connected with
the conduct of a trade or business in the United States, or (ii) if such Lender
is not a "BANK" within the meaning of Section 881(c)(3)(A) of the Code and
intends to claim an exemption from United States withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "Portfolio Interest," a
Form W-8, or any successor form prescribed by the Internal Revenue Service, and
a certificate representing that such Lender is not a bank for purposes of
Section 881(c) of the Code, is not a 10- percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of Borrower, and is not a controlled
foreign corporation related to Borrower (within the meaning of Section 864(d)(4)
of the Code). Each Lender which so delivers a W-8, Form 1001, or 4224 further
undertakes to deliver to Borrower and Administrative Agent additional forms (or
a successor form) on or before the date such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form so
delivered by it, in each case certifying that such Lender is entitled to receive
payments from Borrower under any Loan Document without deduction or withholding
(or at a reduced rate of deduction or withholding) of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law, or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it, and such Lender advises Borrower and Administrative
Agent that it is not capable of receiving such payments without any deduction or
withholding of United States federal income tax.
(e) Failure to Provide Withholding Forms; Changes in Tax Laws. For any
period with respect to which a Lender has failed to provide Borrower and
Administrative Agent with the appropriate form pursuant to Section 4.3(d)
(unless such failure is due to a change in Law occurring subsequent to the date
on which a form originally was required to be provided), such Lender shall not
be entitled to indemnification under Section 4.3(a) or 4.3(b) with respect to
Taxes imposed by the United States; provided, however, that should a Lender,
which is otherwise exempt from or subject to a reduced rate of withholding tax,
become subject to Taxes because of its failure to deliver a form required
hereunder, Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(f) Changes in Applicable Lending Office. If Borrower is required to
pay or will be required to pay additional amounts to or for the account of any
Lender pursuant to this Section 4.3, then such Lender will agree to use
reasonable efforts to change the jurisdiction of its Applicable Lending Office
so as to eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Tax Payment Receipt. Within thirty (30) days after the date of any
payment of Taxes, Borrower shall furnish to Administrative Agent the original or
a certified copy of a receipt evidencing such payment.
(h) Survival. Without prejudice to the survival of any other agreement
of Borrower hereunder, the agreements and obligations of Borrower contained in
this Section 4.3 shall survive the termination of the Total Commitment and the
payment in full of the Obligation.
Section 5. FEES.
[INTENTIONALLY DELETED]
Section 6. SECURITY; GUARANTIES.
6.1. Guaranties. As an inducement to the Administrative Agent and Lenders
to enter into this Agreement, Borrower shall cause Communications, each Company
that is a Domestic Subsidiary of Borrower to execute and deliver to
Administrative Agent a Guaranty substantially in the form and upon the terms of
Exhibit C, providing for the guaranty of payment and performance of the
Obligation. In addition, promptly after the designation, formation, or
Acquisition of any new Company that is (or becomes) a Domestic Subsidiary of
Borrower, Borrower shall cause such new Company to execute and deliver to
Administrative Agent a Guaranty substantially in the form and upon the terms of
Exhibit C, providing for the guaranty of payment and performance of the
Obligation.
6.2. Collateral.
(a) Communications Collateral. To secure the full and complete payment
and performance of the Obligation, Borrower shall cause Communications and each
Subsidiary of Communications which owns any equity interest in Borrower (if
any), to enter into Collateral Documents pursuant to which, among other things,
each such entity grants, pledges, assigns, and creates first priority Liens in
favor of Administrative Agent (for the ratable benefit of Lenders) in 100% of
the issued and outstanding stock, equity, or other investment securities of
Borrower owned by such entity.
(b) Companies Collateral. To secure the full and complete payment and
performance of the Obligation, Borrower shall (and shall cause each Restricted
Subsidiary of Borrower to) enter into Collateral Documents (in form and
substance acceptable to Administrative Agent) pursuant to which, among other
things, each such entity shall, to the extent permitted by applicable Law,
grant, pledge, assign, and create first priority Liens (except to the extent
Permitted Liens affect such priority) in favor of Administrative Agent (for the
ratable benefit of Lenders) in and to: (i) 100% of each such entity's Rights,
titles, and interests in the issued and outstanding stock, equity, or other
investment securities of each Domestic Subsidiary of such entity (excluding any
stock, equity, or other investment securities issued by any Unrestricted
Subsidiary of any Company to the extent not covered in clauses (ii) and (iii)
below); (ii) 65% of each such entity's Rights, titles, and interests in the
issued and outstanding stock, equity, or other investment securities of each
directly-owned Foreign Subsidiary of any Company; and (iii) all other assets
(tangible, intangible, real, or personal) of such entity, including without
limitation, 100% of each such entity's Rights, titles, and interests in Cellular
Partnerships.
6.3. Existing Collateral Documents. With respect to the Collateral
Documents executed and delivered pursuant to the Existing Credit Agreement (as
amended through the date hereof, the "Existing Collateral Documents"), Borrower,
each Guarantor, and each partner of a Cellular Partnership executing any such
Existing Collateral Document (by execution of Guaranties or other Collateral
Documents required under this Agreement) (i) agree that the execution and
delivery of the Loan Documents shall in no way release, diminish, impair,
reduce, or otherwise affect the liens and security interests created by the
Existing Collateral Documents, (ii) acknowledges and confirms the continuing
existence and effectiveness of the Existing Collateral Document (except with
respect to the release of Liens contemplated by Section 6.5(a)), and (iii)
agrees that the "Obligation" and "Guaranteed Debt" secured or assured by the
Existing Collateral Documents shall include the Obligation under the Loan
Documents.
6.4. Future Liens. Other than as permitted in Section 6.6, promptly after
(a) the acquisition of any material assets (real, personal, tangible, or
intangible) by Borrower, any Company that is a Domestic Subsidiary of Borrower,
(b) the removal, termination, or expiration of any prohibitions upon the
granting of a Lien in any asset (real, personal, tangible, or intangible) of
Borrower, any Company that is a Domestic Subsidiary of Borrower, or (c) upon the
designation, formation, or Acquisition of any new Subsidiary of any Company (the
assets described in clauses (a) through (c) hereof are referred to herein as the
"Additional Assets"), Borrower shall (or shall cause the appropriate Company to)
execute and deliver to Administrative Agent all further instruments and
documents (including, without limitation, Collateral Documents and all
certificates and instruments representing shares of stock or evidencing Debt and
any realty appraisals as Administrative Agent may require with respect to any
such Additional Assets), and shall take all further action that may be necessary
or desirable, or that Administrative Agent may reasonably request, to grant,
perfect, and protect Liens in favor of Administrative Agent for the benefit of
Lenders in such Additional Assets, as security for the Obligation to the extent
Liens are required in such assets pursuant to Section 6.2; it being expressly
understood that the granting of such additional security for the Obligation is a
material inducement to the execution and delivery of this Agreement by each
Lender. Upon satisfying the terms and conditions hereof, such Additional Assets
shall be included in the "Collateral" for all purposes under the Loan Documents,
and all references to the "Collateral" in the Loan Documents shall include the
Additional Assets.
6.5. Release of Collateral.
(a) Non-Loan Parties. On the Effective Date, Administrative Agent
shall (and is hereby irrevocably authorized by the Lenders to) execute such
documents as may be necessary to evidence the release of guaranties executed,
and Liens granted, pursuant to the Existing Collateral Documents by any entities
that are no longer required to guaranty or secure the Obligation pursuant to the
Loan Documents.
(b) Upon Sale or Disposition of Collateral. Upon any sale, transfer,
or disposition of Collateral which is expressly permitted pursuant to the Loan
Documents (or is otherwise authorized by Required Lenders or Lenders, as the
case may be) and upon ten (10) Business Days' (or such lesser time period agreed
to by Administrative Agent in its sole discretion) prior written request by
Borrower (which request must be accompanied by true and correct copies of (i)
all documents of transfer or disposition, including any contract of sale, (ii) a
preliminary closing statement and instructions to the title company, if any, and
(iii) all requested release instruments), Administrative Agent shall (and is
hereby irrevocably authorized by the Lenders to) execute such documents as may
be necessary to evidence the release of Liens granted to Administrative Agent
for the benefit of Lenders pursuant hereto in such Collateral.
(c) Cellular Partnership Obligor Guaranties and Collateral. With
respect to Guaranties executed by, and Liens on the assets of, any Cellular
Partnership Obligor (as defined in the Existing Credit Agreement), such
Guaranties and Liens (as well as any Guaranties of, or Liens on partnership
interests therein pledged by, Persons other than any Company) shall be released
in the event all intercompany Debt owed by such Cellular Partnership Obligors to
the Companies has been paid in full and all commitments to lend have terminated;
provided, further however, that from the date of such repayment until the
Obligation has been paid in full and the Total Commitment has been terminated,
no Company may, directly or through a Subsidiary, advance funds to any such
Cellular Partnership. In regard to repayment of such intercompany Debt,
Administrative Agent is hereby authorized by Lenders to execute and deliver such
releases of Cellular Partnership Obligors upon ten (10) Business Days prior
written request by Borrower supported by evidence that such intercompany Debt
has been terminated and repaid in full and accompanied by appropriate release
instruments, which must be in form and substance satisfactory to Administrative
Agent.
(d) Vendor Financing. To the extent any Company incurs Debt permitted
by Section 9.12(i) that is secured by Liens permitted by Section 9.13(b)(vii),
Administrative Agent is hereby authorized by Lenders to execute and deliver such
releases or subordination of Liens on the Collateral so financed upon ten (10)
Business Days prior written request by Borrower supported by evidence that such
Debt and Liens are permitted by the terms of this Agreement and accompanied by
appropriate release or subordination instruments, which must be in form and
substance satisfactory to Administrative Agent.
(e) General Provisions. The actions of Administrative Agent under this
Section 6.5 are subject to the following: (i) no such release of Liens or
Guaranties shall be granted if any Default or Potential Default has occurred and
is continuing, including, without limitation, the failure to make certain
mandatory prepayments in accordance with Section 3.3(b) in conjunction with the
sale or transfer of such Collateral; (ii) Administrative Agent shall not be
required to execute any such document on terms which, in Administrative Agent's
opinion, would expose Administrative Agent to liability or create any obligation
or entail any consequence other than the release of such Liens without recourse
or warranty; and (iii) such release shall not in any manner discharge, affect,
or impair the Obligation or Liens upon (or obligations of any Company in respect
of) all interests retained by the Companies, including, without limitation, the
proceeds of any sale, all of which shall continue to constitute Collateral.
6.6. Negative Pledge. Notwithstanding the provisions of Sections 6.2 or 6.4
hereof, until such time as Administrative Agent or Required Lenders otherwise
require, the Companies shall not be required to (i) perfect Liens on certain
assets constituting interests in third party leases for retail stores, vehicles,
fixtures, cellular transmission towers, real estate, assets located in foreign
jurisdictions, or stock or equity interests in Subsidiaries of Foreign
Subsidiaries of the Companies (other than Liens on such assets arising under the
Existing Collateral Documents) or (ii) grant specific assignments of easements,
licenses, permits, certificates of compliance, and certificates of approval
issued by regulatory authorities, franchises, or like grants of authority or
service agreements. To the extent contemplated by the first sentence of this
Section 6.6 or to the extent Administrative Agent and Required Lenders otherwise
agree to delay the perfection or attachment of any Lien contemplated by Sections
6.2 or 6.4 hereof, for whatever reason, the Companies hereby covenant and agree
not to directly create, incur, grant, suffer, or permit to be created or
incurred any Lien on any such assets, other than Permitted Liens. Furthermore,
within thirty (30) days of the request of Administrative Agent, Borrower shall
(or shall cause each Company to) execute and deliver to Administrative Agent all
instruments and documents (including, without limitation, certificates and
instruments and documents representing shares of stock or evidencing Debt) and
shall take all further action that may be necessary or desirable, or that
Administrative Agent may reasonably request, to grant, perfect, and protect
Liens in favor of Administrative Agent for the benefit of Lenders, in such
assets, as security for the Obligation; it being expressly understood that the
provisions of this negative pledge are a material inducement to the execution
and delivery of this Agreement by each Lender. In addition, Communications
hereby covenants and agrees not to directly create, incur, grant, suffer, or
permit to be created or incurred any Lien on any of its assets or any assets of
its Restricted Subsidiaries, other than Permitted Liens.
6.7. Control; Limitation of Rights. Notwithstanding anything herein or in
any other Loan Document to the contrary, (a) the transactions contemplated
hereby (i) do not and will not constitute, create, or have the effect of
constituting or creating, directly or indirectly, actual or practical ownership
of Borrower, its Subsidiaries, or any other Loan Party by the Administrative
Agent or Lenders, or control, affirmative or negative, direct or indirect, by
the Administrative Agent or Lenders over the management or any other aspect of
the operation of Borrower, its Subsidiaries, or any other Loan Party, which
ownership or control remains exclusively and at all times in the Loan Parties,
and (ii) do not and will not constitute the transfer, assignment, or disposition
in any manner, voluntary or involuntary, directly or indirectly, of any
Authorization at any time issued by the FCC or any PUC to Borrower, its
Subsidiaries, or any other Loan Party, or the transfer of control of Borrower,
its Subsidiaries, or any other Loan Party within the meaning of Section 310(d)
of the Communications Act of 1934, as amended; and (b) Administrative Agent
shall not, without first obtaining the approval of the FCC or any applicable
PUC, take any action pursuant to any Loan Document that would constitute or
result in any assignment of any Authorization or any change of control of
Borrower, its Subsidiaries, or any other Loan Party, if such assignment or
change of control would require, under then existing Law (including the written
rules and regulations promulgated by the FCC or any such PUC), the prior
approval of the FCC or any such PUC.
Section 7. CONDITIONS PRECEDENT.
7.1. Conditions Precedent to Effectiveness. This Agreement shall not become
effective unless Administrative Agent has received all of the agreements,
documents and instruments, and each other condition has been satisfied, as
described on Schedule 7.1.
7.2. Conditions Precedent to an Acquisition. On or prior to the
consummation of any Acquisition (whether or not the Purchase Price for such
Acquisition is funded by Borrowings), Borrower shall have satisfied the
conditions and delivered, or caused to be delivered, to Administrative Agent,
all documents and certificates set forth on Schedule 7.2 by no later than the
dates specified for satisfaction of such conditions on Schedule 7.2; Promptly
upon receipt of each Permitted Acquisition Compliance Certificate and each
Permitted Acquisition Loan Closing Certificate, Administrative Agent shall
provide copies of such certificates to Lenders. All documentation delivered and
satisfaction of conditions pursuant to the requirements of Section 7.2 must be
satisfactory to Administrative Agent. To the extent any Borrowing is being
requested in connection with the consummation of the Acquisition, the conditions
set forth in Sections 7.2 and 7.3 hereof must be satisfied prior to the making
of any such Borrowing.
7.3. (a) Conditions Precedent to Initial Borrowing. No Lender shall be
obligated to advance the initial Borrowing on or after the Effective Date unless
Administrative Agent has received all of the agreements, documents and
instruments, and each other condition has been satisfied, as described on
Schedule 7.3(a).
(b) Conditions Precedent to each Borrowing. In addition to the
conditions stated in Sections 7.1, Section 7.2 (as applicable) and 7.3(a),
Lenders will not be obligated to fund any Borrowing unless on the date of such
Borrowing (and after giving effect thereto), as the case may be: (i)
Administrative Agent shall have timely received therefor a Borrowing Notice;
(ii) all of the representations and warranties of any Loan Party set forth in
the Loan Documents are true and correct in all material respects (except to the
extent that (x) the representations and warranties speak to a specific date or
(y) the facts on which such representations and warranties are based have been
changed by transactions permitted by the Loan Documents); (iii) no change in the
financial condition or business of Communications and its Restricted
Subsidiaries, any Company, or any other Guarantor which could reasonably be
expected to be a Material Adverse Event shall have occurred; (iv) no Default or
Potential Default shall have occurred and be continuing; (v) the funding of such
Borrowings is permitted by Law; (vi) in the event all or any part of the
proceeds of the Borrowing will be used to finance a Distribution to the extent
permitted by Section 9.20, Administrative Agent shall have received all such
certifications, financial information, and projections as Administrative Agent
may reasonably request; (vii) Administrative Agent shall have received, as
requested, evidence that the Debt to be incurred as a result of such Borrowing
has been incurred or entered into in compliance with the requirements of the
Communications Bond Debt, any Exchange Debenture Indenture, and the Certificates
of Designation for the Preferred Stock; (viii) the Borrower shall have satisfied
such additional conditions precedent as the Administrative Agent or the Required
Lenders may require and (ix) all matters related to such Borrowing must be
satisfactory to Required Lenders and their respective counsel in their
reasonable determination, and upon the reasonable request of Administrative
Agent, Borrower shall deliver to Administrative Agent evidence substantiating
any of the matters in the Loan Documents which are necessary to enable Borrower
to qualify for such Borrowing. Each Borrowing Notice delivered to Administrative
Agent shall constitute the representation and warranty by Borrower to
Administrative Agent that, as of the Borrowing Date the statements above are
true and correct in all respects. Each condition precedent in this Agreement is
material to the transactions contemplated in this Agreement, and time is of the
essence in respect of each thereof.
Section 8. REPRESENTATIONS AND WARRANTIES.
Each Loan Party represents and warrants to Administrative Agent and Lenders
as follows:
8.1. Purpose of Credit Facility. Borrower will use (or will invest in or
loan such proceeds to its Restricted Subsidiaries to so use) all proceeds of
Borrowings for one or more of the following: (a) for working capital of Borrower
and its Restricted Subsidiaries and (b) for general corporate purposes. No Loan
Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying any
"Margin Stock" within the meaning of Regulation U. No part of the proceeds of
any Borrowing will be used, directly or indirectly, for a purpose which violates
any Law, including, without limitation, the provisions of Regulations T, U, or X
(as enacted by the Board of Governors of the Federal Reserve System, as
amended).
8.2. Existence, Good Standing, Authority, and Authorizations. Each Loan
Party and each Subsidiary thereof is duly organized, validly existing, and in
good standing under the Laws of its jurisdiction of organization (such
jurisdictions being identified on Schedule 8.3, as supplemented and modified in
writing from time to time to reflect any changes to such Schedule as a result of
transactions permitted by the Loan Documents). Except where the failure to do so
could not reasonably be expected to constitute a Material Adverse Event, each
Loan Party and each Subsidiary thereof is duly qualified to transact business
and is in good standing in each jurisdiction where the nature and extent of its
business and properties require the same. Each Loan Party possesses all
Authorizations, franchises, permits, licenses, certificates of compliance, and
approvals and grants of authority necessary, including, without limitation, any
Authorization issued by the FCC, all of which are described on Schedule 8.2
hereto, necessary or required in the conduct of its respective business(es), and
the same are valid, binding, enforceable, and subsisting without any defaults
thereunder or enforceable adverse limitations thereon and are not subject to any
proceedings or claims opposing the issuance, development, or use thereof or
contesting the validity thereof. No authorization, consent, approval, waiver,
license, or formal exemptions from, nor any filing, declaration, or registration
with, any Governmental Authority (federal, state, or local), non-governmental
entity, or Person under the terms of contracts or otherwise, is required by
reason of or in connection with the execution and performance of the Loan
Documents by the Loan Parties and each Subsidiary thereof.
8.3. Subsidiaries; Capital Stock. The Loan Parties have no Subsidiaries
except as disclosed on Schedule 8.3 (as supplemented and modified in writing
from time to time to reflect any changes to such Schedule as a result of
transactions permitted by the Loan Documents). All of the outstanding shares of
capital stock (or similar voting interests) of each Loan Party and each
Subsidiary thereof are duly authorized, validly issued, fully paid, and
nonassessable and are owned of record and beneficially as set forth on Schedule
8.3 (as supplemented and modified in writing from time to time to reflect any
changes to such Schedule as a result of transactions permitted by the Loan
Documents), free and clear of any Liens, restrictions, claims, or Rights of
another Person, other than Permitted Liens, and none of such shares owned by any
Loan Party is subject to any restriction on transfer thereof except for
restrictions imposed by applicable securities Laws and general corporate Laws.
No Loan Party or any Subsidiary thereof has outstanding any warrant, option, or
other Right of any Person to acquire any of its capital stock or similar equity
interests. No Company has any ownership interest in any Subsidiary of any
Unrestricted Subsidiary of Borrower or Communications. The number and percentage
of shares of partnership interests in each of the Cellular Partnerships, and the
ownership thereof, are accurately set forth on Schedule 8.3 attached hereto; all
such partnership interests are validly issued under the terms of the applicable
Partnership Agreements and applicable Law; and any ownership thereof by any Loan
Party is free and clear of any Liens or security interests or other contractual
restrictions, other than the pledge thereof in favor of Administrative Agent, on
behalf of Lenders. No Cellular Partnership owes any Debt to any Company. The
amount of the outstanding balance under the GRTI Note is approximately
$1,400,000.
8.4. Authorization and Contravention. The execution and delivery by each
Loan Party of each Loan Document to which it is a party and the performance by
such Loan Party of its obligations thereunder (a) are within the corporate or
organizational power of such Loan Party; (b) will have been duly authorized by
all necessary limited liability company, corporate, or partnership action on the
part of such Loan Party when such Loan Document is executed and delivered, (c)
require no action by or in respect of, or filing with, any Governmental
Authority, which action or filing has not been taken or made on or prior to the
Effective Date (or if later, the date of execution and delivery of such Loan
Document), (d) will not violate any provision of the charter, bylaws,
organizational documents, or Partnership Agreement of such Loan Party, (e) will
not violate any provision of Law applicable to such Loan Party, other than such
violations which individually or collectively could not be a Material Adverse
Event, (f) will not violate any material written or oral agreements, contracts,
commitments, or understandings to which such Loan Party is a party, other than
such violations which could not be a Material Adverse Event, or (g) will not
result in the creation or imposition of any Lien on any asset of any Loan Party,
other than as contemplated by this Agreement. Each Loan Party has (or will have
upon consummation thereof) all necessary consents and approvals of any Person or
Governmental Authority required to be obtained in order to effect any asset
transfer, change of control, merger, or consolidations permitted by the Loan
Documents.
8.5. Binding Effect. Upon execution and delivery by all parties thereto,
each Loan Document will constitute a legal, valid, and binding obligation of
each Loan Party party thereto, enforceable against each such Loan Party in
accordance with its terms, except as enforceability may be limited by applicable
Debtor Relief Laws and general principles of equity.
8.6. Financial Statements. The Current Financials were prepared in
accordance with GAAP and present fairly, in all material respects, the
consolidated financial condition, results of operations, and cash flows of the
Loan Parties and Subsidiaries thereof covered thereby ("Reporting Entities") as
of and for the portion of the fiscal year ending on the date or dates thereof
(subject only to normal year-end audit adjustments for interim statements).
There were no material liabilities, direct or indirect, fixed or contingent, of
the Reporting Entities as of the date or dates of the Current Financials which
are required under GAAP to be reflected therein or in the notes thereto, and are
not so reflected. Except for transactions directly related to, specifically
contemplated by, or expressly permitted by, the Loan Documents, (a) there have
been no changes in the consolidated financial condition or operations of the
Reporting Entities from that shown in the Current Financials after such date
which could be a Material Adverse Event, nor has any Reporting Entity incurred
any liability (including, without limitation, any liability under any
Environmental Law), direct or indirect, fixed or contingent, after such date
which could be a Material Adverse Event, and (b) no Reporting Entity has
incurred any liability (including, without limitation, any liability under any
Environmental Law), direct or indirect, fixed or contingent, after such date
which could be a Material Adverse Event.
8.7. Litigation, Claims, Investigations. No Loan Party or any Subsidiary
thereof is subject to, or aware of the threat of, any Litigation which is
reasonably likely to be determined adversely to any Loan Party or any Subsidiary
thereof, and, if so adversely determined, could (individually or collectively
with other Litigation) be a Material Adverse Event. Schedule 8.7 sets forth all
Litigation as of the Effective Date which, if adversely determined, could
(individually or collectively with other Litigation) be a Material Adverse
Event. There are no outstanding orders or judgments for the payment of money in
excess of $10,000,000 (individually or collectively) or any warrant of
attachment, sequestration, or similar proceeding against the assets of any Loan
Party or any Subsidiary thereof having a value (individually or collectively) of
$10,000,000 or more which is not either (a) stayed on appeal or (b) being
diligently contested in good faith by appropriate proceedings and adequate
reserves have been set aside on the books of such Loan Party or any Subsidiary
thereof in accordance with GAAP. There are no formal complaints, suits, claims,
investigations, or proceedings initiated at or by any Governmental Authority
pending or threatened by or against any Loan Party or any Subsidiary thereof
which could reasonably be expected to be a Material Adverse Event, nor any
judgments, decrees, or orders of any Governmental Authority outstanding against
any Loan Party or any Subsidiary thereof that could reasonably be expected to be
a Material Adverse Event.
8.8. Taxes. All Tax returns of each Loan Party and each Subsidiary thereof
required to be filed have been filed (or extensions have been granted) prior to
delinquency, except for any such returns for which the failure to so file could
not be a Material Adverse Event, and all Taxes imposed upon each Loan Party and
each of its Subsidiaries which are due and payable have been paid prior to
delinquency, other than Taxes for which the criteria for Permitted Liens (as
specified in Section 9.13(b)(v)) have been satisfied or for which nonpayment
thereof could not constitute a Material Adverse Event.
8.9. Environmental Matters. No Loan Party or any Subsidiary thereof (a)
knows of any environmental condition or circumstance, such as the presence or
Release of any Hazardous Substance, on any property presently or previously
owned by any Loan Party or any Subsidiary thereof that could be a Material
Adverse Event, (b) knows of any violation by any Loan Party or any Subsidiary
thereof of any Environmental Law, except for such violations that could not be a
Material Adverse Event, or (c) knows that any Loan Party or any of its
Subsidiaries is under any obligation to remedy any violation of any
Environmental Law, except for such obligations that could not be a Material
Adverse Event; provided, however, that each Loan Party and each Subsidiary
thereof (x) to the best of its knowledge, has in full force and effect all
Environmental Permits, licenses, and approvals required to conduct its
operations and is operating in substantial compliance thereunder, and (y) has
taken prudent steps to determine that its properties and operations are not in
violation of any Environmental Law.
8.10. Employee Benefit Plans. No Loan Party, any Restricted Subsidiary
thereof, or any ERISA Affiliate of any Loan Party has maintained or will
maintain any Employee Plans. No Loan Party, any Restricted Subsidiary thereof,
or any ERISA Affiliate of any Loan Party has engaged in any "Prohibited
Transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
which would be a Material Adverse Event.
8.11. Properties; Liens. Each Loan Party has good and marketable title to
all its property reflected on the Current Financials, except (a) for (i)
property that is obsolete, (ii) property that has been disposed of in the
ordinary course of business, or (iii) property with title defects or failures in
title which would not be a Material Adverse Event, or (b) as otherwise permitted
by the Loan Documents. Except for Permitted Liens, there is no Lien on any
property of any Loan Party, and the execution, delivery, performance, or
observance of the Loan Documents will not require or result in the creation of
any Lien on such property.
8.12. Government Regulations. No Loan Party or Subsidiary thereof is
subject to regulation under the Investment Company Act of 1940, as amended, the
Public Utility Holding Company Act of 1935, as amended, or any other Law (other
than Regulations T, U, and X of the Board of Governors of the Federal Reserve
System and the requirements of any PUC or public service commission) which
regulates the incurrence of Debt.
8.13. Transactions with Affiliates. Except as permitted in Section 9.14, no
Loan Party or any Subsidiary thereof is a party to a material transaction with
any of its Affiliates (excluding transactions between or among Companies), other
than transactions in the ordinary course of business and upon fair and
reasonable terms not materially less favorable than such Loan Party could obtain
or could become entitled to in an arm's-length transaction with a Person that
was not its Affiliate.
8.14. Debt. No Loan Party or any Foreign Subsidiary thereof is an obligor
on any Debt other than Permitted Debt.
8.15. Material Agreements; Management Agreements. Schedule 8.15 hereto sets
forth a list of all contracts material to the respective business of the Loan
Parties (including with respect to the Systems), and there exists no material
default under any of such contracts. There are no failures of any material
written or oral agreements, contracts, commitments, or understandings to which
any Loan Party is a party to be in full force and effect which could be a
Material Adverse Event, and no default or potential default exists on the part
of any Loan Party thereunder which could be a Material Adverse Event. No Loan
Party is a party to any management or consulting agreement for the provision of
services to it, except as described in Schedule 8.15 hereto.
8.16. Insurance. Each Loan Party and each Subsidiary thereof maintains,
with financially sound, responsible, and reputable insurance companies or
associations, insurance concerning its properties and businesses against such
casualties and contingencies and of such types and in such amounts (and with
co-insurance and deductibles) as is customary in the case of same or similar
businesses.
8.17. Labor Matters. There are no actual or threatened strikes, labor
disputes, slow downs, walkouts, or other concerted interruptions of operations
by the employees of any Loan Party or any Subsidiary thereof that could be a
Material Adverse Event. Hours worked by and payment made to employees of the
Loan Parties and Subsidiaries thereof have not been in violation of the Fair
Labor Standards Act or any other applicable Law dealing with such matters, other
than any such violations, individually or collectively, which could not
constitute a Material Adverse Event. All payments due from any Loan Party or any
Subsidiary thereof on account of employee health and welfare insurance have been
paid or accrued as a liability on its books, other than any such nonpayments
which could not, individually or collectively, constitute a Material Adverse
Event.
8.18. Solvency. At the time of each Borrowing hereunder and on the date of
each Permitted Acquisition, each Loan Party is (and after giving effect to the
transactions contemplated by the Loan Documents, any Permitted Acquisition, and
any incurrence of additional Debt, will be) Solvent.
8.19. Intellectual Property. Each Loan Party and each Subsidiary thereof
owns or has sufficient and legally enforceable Rights to use all material
licenses, patents, patent applications, copyrights, service marks, trademarks,
trademark applications, and trade names necessary to continue to conduct its
businesses as heretofore conducted by it, now conducted by it, and now proposed
to be conducted by it. Each Loan Party and each Subsidiary thereof is conducting
its business without infringement or claim of infringement of any license,
patent, copyright, service ▇▇▇▇, trademark, trade name, trade secret, or other
intellectual property right of others, other than any such infringements or
claims which, if successfully asserted against or determined adversely to any
Loan Party and any Subsidiary thereof, could not, individually or collectively,
reasonably be expected to constitute a Material Adverse Event.
8.20. Compliance with Laws. No Loan Party or any Subsidiary thereof is in
violation of any Laws (including, without limitation, the Communications Act,
Environmental Laws, and those Laws administered by the FCC and any PUC), other
than such violations which could not, individually or collectively, be a
Material Adverse Event. No Loan Party or any Subsidiary thereof has received
notice alleging any noncompliance with any Laws, except for such noncompliance
which no longer exists, or which could not constitute a Material Adverse Event.
8.21. Permitted Acquisitions.
(a) Validity. With respect to any Permitted Acquisitions, each Company
has the power and authority under the Laws of its state of incorporation or
organization and under its articles of incorporation and bylaws, organizational
documents, or Partnership Agreement, as applicable, to enter into and perform
the related Acquisition agreement to which it is a party and all other
agreements, documents, and actions required thereunder; and all actions
(corporate or otherwise) necessary or appropriate by the Companies for the
execution and performance of said Acquisition agreements, and all other
documents, agreements, and actions required thereunder, have been taken, and,
upon their execution, such Acquisition agreements will constitute the valid and
binding obligation of the Companies party thereto, enforceable in accordance
with their respective terms.
(b) No Violations. With respect to any Permitted Acquisition, the
making and performance of the related Acquisition agreements, and all other
agreements, documents, and actions required thereunder, will not violate any
provision of any Law, including, without limitation, all state corporate Laws
and judicial precedents of the states of incorporation or formation of the
Companies, and will not violate any provisions of the articles of incorporation,
bylaws, or Partnership Agreements of the Companies, or constitute a default
under any agreement by which the Companies or their respective property may be
bound.
8.22. Regulation U. "Margin Stock" (as defined in Regulation U) constitutes
less than 25% of those assets of any Loan Party, which are subject to any
limitation on sale, pledge, or other restrictions hereunder.
8.23. Tradename. No Loan Party has used or transacted business under any
other corporate or trade name in the five-year period preceding the Effective
Date.
8.24. Intentionally Omitted
8.25. Full Disclosure. There is no material fact or condition relating to
the Loan Documents or the financial condition, business, or property of any Loan
Party or any Subsidiary thereof which could be a Material Adverse Event and
which has not been related, in writing, to Administrative Agent. All information
heretofore furnished by any Loan Party to any Lender or Administrative Agent in
connection with the Loan Documents was, and all such information hereafter
furnished by any Loan Party to any Lender or Administrative Agent will be, true
and accurate in all material respects or based on reasonable estimates on the
date as of which such information is stated or certified.
8.26. No Default. No Default or Potential Default exists or will arise as a
result of the execution, delivery, or performance of the Loan Documents, of any
Borrowing hereunder, or after giving effect to the transactions contemplated
hereby.
8.27. Perfection of Security Interests. Upon filing of the financing
statements against each Loan Party in the jurisdictions listed on each ANNEX A
of each Security Agreement and the delivery to Administrative Agent, for the
benefit of Lenders, of all the issued and outstanding shares of stock or other
evidence of equity investments owned by any Loan Party and required to be
pledged to secure the Obligation pursuant to Sections 6.1 and 6.4, the security
interests in the Collateral created by the Collateral Documents will be
perfected in favor of Administrative Agent, for the benefit of Lenders. No
further action, including any filing or recording of any document, is necessary
in order to establish, perfect, and maintain Lenders' first priority security
interests in the assets and the stock created by the Collateral Documents,
except for the periodic filing of continuation statements with respect to
financing statements filed under the UCC.
Section 9. COVENANTS.
Each Loan Party covenants and agrees (and agrees to cause its ERISA
Affiliates with respect to Section 9.10) to perform, observe, and comply with
each of the following covenants applicable to such Person, from the Effective
Date and so long thereafter as Lenders are committed to fund Borrowings and
Administrative Agent is committed to issue LCs under this Agreement and
thereafter until the payment in full of the Principal Debt (and termination of
outstanding LCs, if any) and payment in full of all other interest, fees, and
other amounts of the Obligation then due and owing, unless Borrower receives a
prior written consent to the contrary by Administrative Agent as authorized by
Required Lenders:
9.1. Use of Proceeds. Borrower shall use (and shall cause each other
Company to use) the proceeds of Borrowings only for the purposes represented
herein.
9.2. Books and Records. The Loan Parties shall maintain books, records, and
accounts necessary to prepare financial statements in accordance with GAAP.
9.3. Items to be Furnished. Communications and Borrower shall cause the
following to be furnished to Administrative Agent for delivery to Lenders:
(a) Promptly after preparation, and no later than 120 days after the
last day of each fiscal year of Communications and Borrower, Financial
Statements showing the consolidated financial condition and results of
operations calculated separately for each of (x) Communications and its
Restricted Subsidiaries and (y) the Companies, as of, and for the year ended on,
such day, each accompanied by:
(i) the unqualified opinion of a firm of nationally-recognized
independent certified public accountants, based on an audit using
generally accepted auditing standards, that such Financial Statements
were prepared in accordance with GAAP and present fairly the
consolidated financial condition and results of operations of
Communications and its Restricted Subsidiaries and the Companies, as
the case may be;
(ii) a certificate from such accounting firm to Administrative
Agent indicating that during its audit it obtained no knowledge of any
Default or Potential Default or, if it obtained such knowledge, the
nature and period of existence thereof; and
(iii) with respect to the Financial Statements of the Companies,
a Compliance Certificate in substantially the form of Exhibit E-1.
(b) Promptly after preparation, and no later than 60 days after the
last day of each fiscal quarter of Communications and Borrower, Financial
Statements showing the consolidated financial condition and results of
operations calculated for Communications and its Restricted Subsidiaries and the
Companies for such fiscal quarter and for the period from the beginning of the
then-current fiscal year to, such last day, accompanied by a Compliance
Certificate with respect to the Financial Statements of the Companies in
substantially the form of Exhibit E-1.
(c) Within 60 days after the end of each fiscal quarter of Borrower a
management report, showing for each System results of operations and subscriber
counts, discussing the financial results and comparing actual performance
results to the Budget for such period, and outlining principal factors affecting
performances of each market (all items to be delivered under this clause (c) to
be in form and substance satisfactory to Administrative Agent).
(d) On or prior to March 31 of each fiscal year of the Companies, the
financial Budget for such fiscal year, accompanied by a certificate executed by
a Responsible Officer, certifying that such Budget was prepared by Borrower
based on assumptions which, in light of the historical performance of the
Companies and their prospects for the future, are realistic and achievable.
(e) Promptly upon receipt thereof, copies of all auditor's annual
management letters delivered to Communications or Borrower.
(f) Notice, promptly after any Loan Party knows or has reason to know
of (i) the existence and status of any Litigation which could be a Material
Adverse Event, or of any order or judgment for the payment of money which
(individually or collectively) is in excess of $5,000,000, or any warrant of
attachment, sequestration, or similar proceeding against the assets of any Loan
Party or any Subsidiary thereof having a value (individually or collectively) of
$5,000,000, (ii) any material change in any material fact or circumstance
represented or warranted in any Loan Document, (iii) a Default or Potential
Default specifying the nature thereof and what action any Loan Party or any
Subsidiary thereof has taken, is taking, or proposes to take with respect
thereto, (iv) the receipt by any Loan Party or any Subsidiary thereof of any
notice from any Governmental Authority of the expiration without renewal,
termination, material modification or suspension of, or institution of any
proceedings to terminate, materially modify, or suspend, any Authorization
granted by the FCC or any applicable PUC, or any other Authorization which any
Loan Party or any Subsidiary thereof is required to hold in order to operate its
business in compliance with all applicable Laws, other than such expirations,
terminations, suspensions, or modifications which individually or in the
aggregate would not constitute a Material Adverse Event, (v) any federal, state,
or local Law limiting or controlling the operations of any Loan Party or any
Subsidiary thereof which has been issued or adopted hereafter and which could be
a Material Adverse Event, (vi) the receipt by any Loan Party or any Subsidiary
thereof of notice of any violation or alleged violation of any Environmental Law
or Environmental Permit or any Environmental Liability or potential
Environmental Liability, which violation or liability or alleged violation or
liability could, individually or collectively with other such violations or
allegations, constitute a Material Adverse Event, or (vii) (A) any expressed
statement in writing on the part of the PBGC of any "Prohibited Transaction," or
(B) the creation of, maintenance of, or acquisition of any Employee Plan by any
Loan Party, any Subsidiary thereof, or any ERISA Affiliate of any Loan Party.
(g) Promptly after any of the information or disclosures provided on
any of the Schedules delivered pursuant to this Agreement or any Annexes to any
of the Collateral Documents becomes outdated or incorrect in any material
respect, such revised or updated Schedule(s) or Annexes as may be necessary or
appropriate to update or correct such information or disclosures; provided that,
no deletions may be made to any Annexes describing Collateral in any of the
Collateral Documents unless approved by Required Lenders.
(h) Promptly after preparation, true, correct, and complete copies of
all material reports or filings filed by or on behalf of any Loan Party with any
Governmental Authority (including the FCC and the Securities and Exchange
Commission).
(i) Promptly after the filing thereof, a true, correct, and complete
copy of each Form 10-K, Form 10-Q, and Form 8-K filed by or on behalf of any
Loan Party or any Restricted Subsidiary thereof with the Securities and Exchange
Commission.
(j) Promptly upon request therefor by Administrative Agent or Required
Lenders, such information (not otherwise required to be furnished under the Loan
Documents) respecting the business affairs, assets, and liabilities of the Loan
Parties or Subsidiary thereof, and such opinions, certifications, and documents,
in addition to those mentioned in this Agreement, as reasonably requested.
(k) With respect to the post-closing requirements set forth on
Schedule 7.1A, deliver, or cause to be delivered, to Administrative Agent, all
agreements, documents, instruments, or other items listed on Schedule 7.1A on or
prior to the date specified for delivery thereof on Schedule 7.1A.
9.4. Inspections. Upon reasonable notice, the Loan Parties shall allow
Administrative Agent or any Lender (or their respective Representatives) to
inspect any of their properties, to review reports, files, and other records and
to make and take away copies thereof, to conduct tests or investigations, and to
discuss any of their respective affairs, conditions, and finances with other
creditors, directors, officers, employees, other representatives, and
independent accountants of the Loan Parties, from time to time, during
reasonable business hours.
9.5. Taxes. Each Loan Party (a) shall (and shall cause each of its
Subsidiaries to) promptly pay when due any and all Taxes other than Taxes the
applicability, amount, or validity of which is being contested in good faith by
lawful proceedings diligently conducted, and against which reserve or other
provision required by GAAP has been made, and in respect of which levy and
execution of any lien securing same have been and continue to be stayed, (b)
shall not, directly or indirectly, use any portion of the proceeds of any
Borrowing to pay the wages of employees unless a timely payment to or deposit
with the appropriate Governmental Authorities of all amounts of Tax required to
be deducted and withheld with respect to such wages is also made, and (c) shall
notify Lenders immediately if the Internal Revenue Service or any other taxing
authority commences or notifies any Loan Party or Subsidiary thereof of its
intention to commence an audit or investigation with respect to any taxes of any
kind due or alleged to be due from any Loan Party or any Subsidiary thereof.
9.6. Payment of Obligations. Borrower shall pay the Obligation in
accordance with the terms and provisions of the Loan Documents. Each Loan Party
(a) shall promptly pay (or renew and extend) all of its material obligations as
the same become due (unless such obligations (other than the Obligation) are
being contested in good faith by appropriate proceedings), and (b) shall not (i)
make any voluntary prepayment of principal of, or interest on, any other Debt
(other than the Obligation), whether subordinate to the Obligation or not or
(ii) use proceeds from the Revolver Facility to make any voluntary prepayment of
principal of, or interest on, or sinking fund payment in respect of any Debt of
Loan Party or Subsidiary thereof, except as permitted in Sections 9.20. No Loan
Party shall make any payment on any Subordinated Debt when it violates the
subordination provisions thereof or results in a Default or Potential Default
hereunder.
9.7. Maintenance of Existence, Assets, and Business. Except as otherwise
permitted by Section 9.24, each Loan Party shall (and shall cause each of its
Subsidiaries to) at all times: (a) maintain its existence and good standing in
the jurisdiction of its organization and its authority to transact business in
all other jurisdictions where the failure to so maintain its authority to
transact business could be a Material Adverse Event; (b) maintain all licenses,
permits, and franchises necessary for its business where the failure to so
maintain could be a Material Adverse Event; (c) keep all of its assets which are
useful in and necessary to its business in good working order and condition
(ordinary wear and tear excepted) and make all necessary repairs thereto and
replacements thereof; and (d) do all things necessary to obtain, renew, extend,
and continue in effect all Authorizations issued by the FCC or any applicable
PUC which may at any time and from time to time be necessary for the Loan
Parties and Subsidiaries thereof to operate their businesses in compliance with
applicable Law, where the failure to so renew, extend, or continue in effect
could be a Material Adverse Event.
9.8. Insurance. The Loan Parties shall, at their sole cost and expense,
keep and maintain all property and assets owned by such Loan Party insured for
its actual cash value against loss or damage by fire, theft, explosion, flood,
and all other hazards and risks ordinarily insured against by other owners or
users of such properties in similar businesses of comparable size and notify
Administrative Agent promptly of any occurrence causing a material loss or
decline in value of such property or assets and the estimated (or actual, if
available) amount of such loss or decline. All such policies of insurance shall
be in a form, with such co-insurance and deductibles, and with insurers
recognized as adequate by prudent business Persons in the same businesses as the
Loan Parties and acceptable to Administrative Agent, and all such policies shall
be in such amount as may be satisfactory to Administrative Agent. On the
Effective Date and thereafter as each policy is renewed and extended, the Loan
Parties shall deliver to Administrative Agent a certificate of insurance for
each policy of insurance and evidence of payment of all premiums therefor. Such
policies of insurance and the certificates evidencing the same shall contain an
endorsement, in form and substance acceptable to Administrative Agent, showing
loss payable to Administrative Agent (for the ratable benefit of Lenders) as its
interests may appear under a standard mortgagee clause. Such endorsement, or an
independent instrument furnished to Administrative Agent, shall provide that the
insurance companies will give Administrative Agent at least 30 days prior
written notice before any such policy or policies of insurance shall be altered
or canceled and that no act or default of any Loan Party or any other Person
shall affect the Right of Administrative Agent to recover under such policy or
policies of insurance in case of loss or damage. Upon the payment by the insurer
of the proceeds of any such policy of insurance and if no Default has occurred
and is continuing, the Loan Party so insured may retain such insurance if such
proceeds are used to repair or replace the property the damage or destruction of
which gave rise to the payment of such insurance proceeds or to acquire Cellular
Assets of equal or greater value; provided, however, that any insurance proceeds
not used for repair or replacement or the acquisition of Cellular Assets in
accordance herewith, unless paid as reimbursement of expenses incurred and
business losses suffered in connection with the loss or damage to the
Collateral, shall be paid to or retained by Administrative Agent for application
as a mandatory prepayment on the Obligation. Notwithstanding the foregoing, no
acquisition of Cellular Assets or mandatory prepayment shall be required unless
the amount of insurance proceeds received in any calendar year under all
policies of insurance of the Loan Parties exceeds $150,000. Any mandatory
prepayment hereunder shall be applied as a mandatory reduction of the Revolver
Commitment.
9.9. Preservation and Protection of Rights. Each Loan Party shall (and
shall cause each Subsidiary thereof to) perform such acts and duly authorize,
execute, acknowledge, deliver, file, and record any additional agreements,
documents, instruments, and certificates as Administrative Agent or Required
Lenders may reasonably deem necessary or appropriate in order to preserve and
protect the Rights of Administrative Agent and Lenders under any Loan Document.
9.10. Employee Benefit Plans. No Loan Party, Restricted Subsidiary thereof,
or ERISA Affiliate of any Loan Party shall, directly or indirectly, engage in
any "Prohibited Transaction" (as defined in Section 406 of ERISA or Section 4975
of the Code), or (without notice to Administrative Agent and execution of
appropriate amendments to the Loan Documents) maintain, create, or participate
in any Employee Plan.
9.11. Environmental Laws. Each Loan Party shall (and shall cause each
Subsidiary thereof to) (a) conduct its business so as to comply with all
applicable Environmental Laws and shall promptly take corrective action to
remedy any non-compliance with any Environmental Law, (b) promptly investigate
and remediate any known Release or threatened Release of any Hazardous Substance
on any property owned by any Loan Party or at any facility operated by any Loan
Party to the extent and degree necessary to comply with Law and to assure that
any Release or threatened Release does not result in a substantial endangerment
to human health or the environment, and (c) appropriately monitor compliance
with applicable Environmental Laws and minimize financial and other risks to
each Loan Party arising under applicable Environmental Laws or as a result of
environmentally-related injuries to Persons or property.
9.12. Debt and Guaranties. No Loan Party (other than Communications) shall
nor shall they permit any of their Foreign Subsidiaries to, directly or
indirectly, create, incur, or suffer to exist any direct, indirect, fixed, or
contingent liability for any Debt, other than:
(a) The Obligation and Guaranties thereof;
(b) Debt incurred by the Companies under any Financial Hedge permitted
by, and purchased and maintained in compliance with, the requirements of the
Loan Documents;
(c) Debt between Companies;
(d) Debt of any Company owed to Communications, so long as such Debt
is unsecured, unguaranteed, and subordinate in right of payment to the
Obligation pursuant to an Affiliate Subordination Agreement, and so long as such
Subordinated Debt and Affiliate Subordination Agreement are upon terms
satisfactory to Administrative Agent; provided, however, that, (i) the
subordination provisions shall permit repayments of such Debt at such times, in
such amounts, for the express purposes, and subject to the conditions, as
specified in Section 9.20(m) and (ii) the aggregate amount of such Subordinated
Debt incurred by all the Companies pursuant to this paragraph (d) on and after
the Effective Date shall not exceed $275,000,000; and
(e) Trade Debt for goods furnished or services rendered in the
ordinary course of business and payable in accordance with customary trade terms
that are not more than 90 days past due;
(f) Debt of the Companies arising under Capital Leases not to exceed
$30,000,000 in the aggregate on any date of determination, other than Capital
Leases entered into pursuant to Section 9.12(i);
(g) Endorsements of checks or drafts in the ordinary course of
business;
(h) Debt incurred or assumed by any Company for the purpose of
financing all or any part of the cost of any asset (including Capital Leases and
renewals, extensions, amendments, and modifications of such Debt), so long as
(i) the aggregate amount of such Debt (together with any and all amendments,
modifications, or refinancings thereof) does not exceed $50,000,000, and (ii) no
Default or Potential Default then exists or arises as a result of such Debt
incurrence;
(i) Unsecured Debt of any Company not otherwise permitted by this
Section 9.12, so long as on any date of determination such Debt does not exceed,
in the aggregate, $10,000,000; and
(j) Debt of any Foreign Subsidiary of Borrower not to exceed
$2,500,000 in the aggregate on any date of determination.
9.13. Liens. No Loan Party (other than Communications) will, directly or
indirectly, (a) enter into or permit to exist any arrangement or agreement which
directly or indirectly prohibits any Loan Party (other than Communications) from
creating or incurring any Lien on any of its assets, other than the Loan
Documents, or (b) create, incur, or suffer or permit to be created or incurred
or to exist any Lien upon any of its assets, EXCEPT:
(i) Liens securing the Obligation, and so long as the Obligation
is ratably secured therewith, Liens securing Debt incurred by any
Company under any Financial Hedge with any Lender or an Affiliate of
any Lender to the extent permitted under Section 9.12(b);
(ii) Pledges or deposits made to secure payment of worker's
compensation, or to participate in any fund in connection with
worker's compensation, unemployment insurance, pensions, or other
social security programs, but expressly excluding any Liens in favor
of the PBGC or otherwise under ERISA;
(iii) Good-faith pledges or deposits made to secure performance
of bids, tenders, insurance or other contracts (other than for the
repayment of borrowed money), or leases, or to secure statutory
obligations, surety or appeal bonds, or indemnity, performance, or
other similar bonds as all such Liens arise in the ordinary course of
business;
(iv) Encumbrances consisting of zoning restrictions, easements,
or other restrictions on the use of real property, none of which
impair in any material respect the use of such property by the Person
in question in the operation of its business, and none of which is
violated by existing or proposed structures or land use;
(v) Liens of landlords or of mortgagees of landlords, arising
solely by operation of law, on fixtures and movable property located
on premises leased in the ordinary course of business;
(vi) The following, so long as the validity or amount thereof is
being contested in good faith and by appropriate and lawful
proceedings diligently conducted, reserve or other appropriate
provisions (if any) required by GAAP shall have been made, levy and
execution thereon have been stayed and continue to be stayed, and they
do not in the aggregate materially detract from the value of the
property of the Person in question, or materially impair the use
thereof in the operation of its business: (i) claims and Liens for
Taxes (other than Liens relating to Environmental Laws or ERISA); (ii)
claims and Liens upon, and defects of title to, real or personal
property, including any attachment of personal or real property or
other legal process prior to adjudication of a dispute of the merits;
and (iii) claims and Liens of mechanics, materialmen, warehousemen,
carriers, landlords, or other like Liens;
(vii) Liens securing Permitted Debt incurred pursuant to Section
9.12(g) and (i), so long as (x) any such Lien does not extend to any
asset other than the asset purchased or financed by such Debt, and (y)
any such Lien attached to such asset concurrently with or within 180
days of the related asset acquisition; and
(viii) Liens existing on the Effective Date, so long as the Debt
secured by all such Liens does not exceed $4,000,000 in aggregate.
9.14. Transactions with Affiliates. No Loan Party shall (a) enter into any
material transaction with any of its Affiliates (excluding transactions among or
between Loan Parties), other than (i) transactions in the ordinary course of
business and upon fair and reasonable terms not materially less favorable than
such Loan Party could obtain or could become entitled to in an arm's-length
transaction with a Person that was not its Affiliate, (ii) transactions between
the Loan Parties and any Affiliate (excluding any Loan Party) on terms of the
kind customarily employed to allocate charges among members of a consolidated
group of entities, in each such case, that are fair and reasonable to the Loan
Parties, provided that, with respect to such transactions permitted in this
clause (ii), the aggregate consideration for such transactions does not exceed
$2,000,000 at any date of determination or (iii) the office lease between ▇▇▇▇▇▇
Parkway, LLC and Communications and all amendments thereto on terms reasonably
acceptable to Administrative Agent, or (b) pay any salaries or other
compensation, consulting fees, or management fees or other like payments, or any
rental payments to any of its Affiliates.
9.15. Compliance with Laws and Documents. No Loan Party or Subsidiary
thereof shall violate the provisions of any Laws (including, without limitation,
Environmental Laws, Environmental Permits, ERISA, and OSHA) applicable to it,
including, without limitation, all rules and regulations promulgated by the FCC
or any applicable PUC, or any material written or oral agreement, contract,
commitment, or understanding to which it is a party, if such violation alone, or
when aggregated with all other such violations, could be a Material Adverse
Event; no Loan Party shall violate the provisions of its charter, bylaws, or
partnership agreement, or modify, repeal, replace, or amend any provision of its
charter, bylaws, or partnership agreement, if such action could adversely affect
the Rights of Lenders.
9.16. Permitted Acquisitions, Subsidiary Guaranties, and Collateral
Documents. In connection with each Permitted Acquisition, Borrower shall
deliver, or cause to be delivered to, Administrative Agent each of the items
described on Schedule 7.2, on or before the date specified on such Schedule for
each such item. Borrower shall cause each Domestic Subsidiary that becomes a
Restricted Subsidiary of any Company after the Effective Date (whether as a
result of acquisition, merger, creation, or otherwise), (a) to execute a
Guaranty on the date such entity becomes a Restricted Subsidiary of a Company
and promptly deliver (but in no event later than 10 days following consummation
of such creation, acquisition, or merger) such Guaranty to Administrative Agent
and (b) to execute and deliver to Administrative Agent all required Collateral
Documents (in form and substance acceptable to Administrative Agent) creating
Liens in favor of Administrative Agent on all the assets of such Restricted
Subsidiary of any Company.
9.17. Assignment. No Loan Party shall assign or transfer any of its Rights,
duties, or obligations under any of the Loan Documents.
9.18. Fiscal Year and Accounting Methods. No Loan Party will change its
fiscal year for book accounting purposes or its method of accounting, other than
(a) immaterial changes in methods or as required by GAAP, or (b) in connection
with a Permitted Acquisition, such changes to the newly-acquired entity so as to
conform its fiscal year and its method of accounting to those of the Companies.
9.19. Government Regulations. No Loan Party will conduct its business in
such a way that it will become subject to regulation under the Investment
Company Act of 1940, as amended, the Public Utility Holding Company Act of 1935,
as amended, or any other Law (other than Regulations T, U, and X of the Board of
Governors of the Federal Reserve System and the requirements of any PUC or
public service commission) which regulates the incurrence of Debt.
9.20. Loans, Advances, Investments, and Restricted Payments. No Loan Party
(other than Communications) shall, directly or indirectly, declare, make, or pay
any Distributions or any other Restricted Payment or make any loan, advance,
extension of credit, or capital contribution to, make any investment in, or
purchase or commit to purchase any stock or other securities or evidences of
Debt of, or interests in, or any assets constituting an ongoing business of, any
other Person, other than:
(a) Investments in Cash Equivalents;
(b) Loans, advances, extensions of credit, capital contributions, and
other investments in or between Companies;
(c) Permitted Acquisitions (other than Acquisitions of, by, or
resulting in, Foreign Subsidiaries); provided, however, that to the extent that
any Permitted Acquisition results in the formation or Acquisition of one or more
Foreign Subsidiaries, Borrower shall provide to Administrative Agent such
information as Administrative Agent shall reasonably request to evidence the
portion of the Purchase Price of such Acquisition attributable to such Foreign
Subsidiaries (the "Foreign Investment"), which Foreign Investment must be
permitted by Section 9.20(g);
(d) Trade accounts receivable which are for goods furnished or
services rendered in the ordinary course of business and are payable in
accordance with customary trade terms;
(e) Investments by any Company in Foreign Subsidiaries thereof not to
exceed $10,000,000 in the aggregate from and after the Effective Date;
(f) Investments by Borrower in participation certificates of CoBank,
ACB ("Participation Certificate"), as required of co-op borrowers generally
pursuant to CoBank, ACB's Bylaws and Capital Plan; provided, however, that no
additional investments in CoBank, ACB are required as a result of the
transactions contemplated by this Agreement;
(g) Loans, advances, extensions of credit to, or capital contributions
and other investments of the Loan Parties existing on the Effective Date,
provided that as of the Effective Date there are no outstanding loans, advances
or extensions of credit made to any Cellular Partnership;
(h) Financial ▇▇▇▇▇▇ purchased by Communications or any Company to the
extent permitted by, and purchased and maintained in compliance with, the Loan
Documents;
(i) Distributions declared, made, or paid by Borrower wholly in the
form of its membership interests;
(j) Distributions or any Restricted Payment by any Loan Party to
Borrower or any other Company;
(k) If no Triggering Event has occurred or is created thereby (as
determined on a pro forma basis), Restricted Payments, loans, advances, or
investments made by Borrower to Communications in amounts sufficient (when
aggregated with the amounts of all other Restricted Payments, loans, advances,
or dividends for such purposes from all other Subsidiaries of Communications)
(i) to pay regularly-scheduled interest payments on the Communications Bond Debt
in accordance with the Communications Bond Debt or (ii) to pay
regularly-scheduled required cash distributions or required cash interest
payments on each series of Preferred Stock and the related Exchange Debentures,
if any, on and as of the respective Cash-Pay Date for such series of Preferred
Stock or Exchange Debentures. If any Triggering Event has occurred and is
continuing, Borrower may only declare and pay such Restricted Payments to
Communications, or make such loans, advances, or investments to Communications,
subject to the following terms, conditions, and limitations: (i) the amount of
any such Restricted Payments, loans, advances, and investments (when aggregated
with the amounts of all other loans, advances, investments, and Restricted
Payments for such purposes from all other Subsidiaries of Communications) shall
not exceed (A) amounts then required to make any required cash payment of
interest or dividends on the Communications Bond Debt or the Preferred Stock or
interest on the Exchange Debentures, if issued, which required cash payments are
past due, by reason of such Triggering Event, and (B) the next regularly
scheduled required cash payment of the required interest or dividend on the
Communications Bond Debt; (ii) such Triggering Event (from the date of notice of
the existence of the earliest such Triggering Event if more than one exists) has
continued for 180 days and has not been cured or waived; (iii) such Triggering
Event is not a Default set forth in Section 10.1, 10.3, or 10.9 hereof; and (iv)
Lenders have not demanded payment in full of all obligations due and owing by
Borrower under the Agreement and the Loan Documents; provided further, that so
long as any Debt is owed from Borrower to Communications, any Restricted Payment
permitted under this Section 9.20(m) shall be made as a repayment of such Debt;
(l) Restricted Payments by any Company which is a Cellular Partnership
made in accordance with its respective Partnership Agreements in an amount
sufficient to pay the cash tax liabilities of their respective partners for
federal and state income taxes directly attributable to the profit of each such
Cellular Partnership attributable to the applicable partner;
(m) On and after January 1, 2003, Restricted Payments, Distributions,
loans, advances, or investments made by Borrower to Communications, so long as
(i) no Default or Potential Default exists or arises as a result thereof and
(ii) the ratio (calculated for the Rolling Period most recently ended) of: (A)
the Operating Cash Flow of the Companies minus the amount paid for Capital
Expenditures by the Companies to (B) the sum of (w) all regularly- scheduled
principal payments with respect to Total Debt required to be paid, (x) cash
Interest Expense, (y) cash Taxes of the Companies to the extent allocable to the
Companies pursuant to the Tax Sharing Agreement, and (z) Distributions
(including, without limitation, any Distributions made pursuant to Section
9.20(m)) paid in cash by Borrower is equal to or greater than 1.20 to 1, which
shall be evidenced by Borrower's delivery of a certificate demonstrating pro
forma compliance with such ratio, giving pro forma effect to the Restricted
Payments, loans, advances, or investments made pursuant to this Section 9.20(q);
(n) Distributions by Borrower to Communications made in accordance
with the Tax Sharing Agreement in an amount sufficient to pay the cash tax
liability of Communications attributable solely to its ownership of Borrower;
and
(o) Distributions by Borrower to Communications on the Effective Date
in an amount sufficient for Communications to pay the holders of the Existing
Bond Debt for all amounts required to consummate the consent solicitation and
tender offer therefor in an aggregate amount not to exceed $1,000,000.
Notwithstanding the foregoing, Restricted Payments and Distributions are
permitted hereunder only to the extent that any such Restricted Payment or
Distribution is made in accordance with applicable Law and constitutes a valid,
non-voidable transaction.
9.21. Restrictions on Subsidiaries. No Guarantor (other than
Communications) nor any Subsidiary of Borrower shall enter into or permit to
exist any material arrangement or agreement (other than the Loan Documents)
which directly or indirectly prohibits any such Person from (a) declaring,
making, or paying, directly or indirectly, any Distribution or Restricted
Payment to Borrower or any other Loan Party, (b) paying any Debt owed to any
Loan Party, (c) making loans, advances, or investments to any Loan Party, or (d)
transferring any of its property or assets to any Loan Party.
9.22. Sale of Assets. No Loan Party (other than Communications) shall sell,
assign, transfer, or otherwise dispose of any of its assets, other than (a)
sales of inventory in the ordinary course of business; (b) the sale, discount,
or transfer of delinquent accounts receivable in the ordinary course of business
for purposes of collection; (c) occasional sales of immaterial assets for
consideration not less than the fair market value thereof; (d) dispositions of
obsolete assets; (e) sale, leases, or other disposition among Companies or from
a Guarantor to a Company; (f) the sale and leaseback of the Companies' cellular
transmission towers in form and upon terms satisfactory to Administrative Agent;
(g) disposition of assets pursuant to Permitted Asset Swaps; and (h) if no
Default or Potential Default then exists or arises as a result thereof, sales of
other assets in the ordinary course of business; provided that, (i) the fair
market value of all assets sold pursuant to clause (h) (x) in any calendar year
does not exceed $20,000,000 in the aggregate, and (y) on a cumulative basis on
and after the Effective Date does not exceed, in the aggregate, more than
$50,000,000, and (ii) concurrently with such disposition, Borrower shall make
the mandatory prepayments (if any) required by Section 3.3(b)(ii).
9.23. Sale-Leaseback Financings. Other than a sale-leaseback transaction
regarding the Companies' cellular transmission towers on terms and in form
satisfactory to Administrative Agent, no Loan Party will enter into any
sale-leaseback arrangement with any Person pursuant to which such Loan Party
shall lease any asset (whether now owned or hereafter acquired) if such asset
has been or is to be sold or transferred by any Loan Party to any other Person.
9.24. Mergers and Dissolutions; Sale of Capital Stock. No Loan Party nor
any Foreign Subsidiary of Borrower or Restricted Subsidiary of Communications
will, directly or indirectly, merge or consolidate with any other Person, other
than (a) as a result of a Permitted Acquisition, or (b) mergers among
Wholly-owned Restricted Subsidiaries of Borrower; provided that, in any merger
involving Borrower (including a Permitted Acquisition effected as a merger),
Borrower must be the surviving entity, and, in any merger involving any other
Company (including a Permitted Acquisition effected as a merger), a Company must
be the surviving entity. No Unrestricted Subsidiary of Borrower will, directly
or indirectly, merge or consolidate with Borrower or any Restricted Subsidiary
of Borrower. No Loan Party shall liquidate, wind up, or dissolve (or suffer any
liquidation or dissolution), other than liquidations, wind ups, or dissolutions
incident to mergers permitted under this Section 9.24. No Loan Party may sell,
assign, lease, transfer, or otherwise dispose of the capital stock (or other
ownership interests) of any Subsidiary of such entity, except for sales, leases,
transfers, or other such distributions to another Company and pursuant to
Permitted Asset Swaps.
9.25. New Business. No Loan Party (other than Communications) will,
directly or indirectly, permit or suffer to exist any material change in the
type of businesses in which it is engaged from the businesses of the Loan
Parties (other than Communications) as conducted on the Effective Date.
Communications will not engage in any business or activity other than holding
100% of the capital stock of its Subsidiaries, including Borrower.
9.26. Affiliate Subordination Agreements. The Loan Parties shall,
simultaneously with the incurrence of any and all future Debt of any Loan Party
owed to any one or more Affiliates, cause the appropriate Affiliate or
Affiliates to execute and deliver to Administrative Agent an Affiliate
Subordination Agreement, subordinating the payment of such Debt to the payment
of the Obligation.
9.27. Amendments to Documents. On and after the Effective Date, no Loan
Party shall (a) amend or permit any amendments to any Loan Party's Articles of
Incorporation, Bylaws, or other organizational documents, or any Partnership
Agreement of any Company that is a Cellular Partnership without the consent of
Administrative Agent (which consent will not be unreasonably withheld or
delayed); or (b) amend any existing credit arrangement or enter into any new
credit arrangement (to the extent permitted by the Loan Documents), if such
amended or new credit arrangements contain any provisions which are materially
more restrictive (as reasonably determined by Administrative Agent) than the
provisions of the Loan Documents.
9.28. Financial Covenants. As calculated on a consolidated basis for the
Companies:
(a) Leverage Ratio. Borrower shall never permit the Leverage Ratio to
be greater than the ratio shown in the table below which corresponds to the
applicable period of determination:
=================================== ===================================
PERIOD LEVERAGE RATIO
----------------------------------- -----------------------------------
On and after Effective Date 2.50 to 1
=================================== ===================================
(b) Pro Forma Debt Service Coverage. Borrower shall never permit the
ratio of the Operating Cash Flow of the Companies to the Pro Forma Debt Service
to be less than or equal to the ratio shown in the table below which corresponds
to the applicable period of determination:
=================================== ===================================
PERIOD PRO FORMA DEBT SERVICE RATIO
=================================== ===================================
On and after Effective Date 1.50 to 1
=================================== ===================================
(c) Interest Coverage Ratio. Borrower shall never permit the Interest
Coverage Ratio, to be less than the ratio shown in the table below which
corresponds to the applicable period of determination:
=================================== ===================================
PERIOD INTEREST COVERAGE RATIO
=================================== ===================================
On and after Effective Date 2.25 to 1
=================================== ===================================
(d) Fixed Charge Coverage Ratio. On and after the Effective Date,
Borrower shall never permit the Fixed Charge Coverage Ratio, to be less than the
ratio shown in the table below which corresponds to the applicable period of
determination:
=================================== ===================================
PERIOD FIXED CHARGE COVERAGE RATIO
=================================== ===================================
On and after Effective Date 1.0 to 1
=================================== ===================================
9.29. Covenants of Communications. So long as the Total Commitment has not
been terminated or the Obligation has not been paid in full, Communications
further covenants and agrees (and agrees to cause each Subsidiary of
Communications other than the Loan Parties governed by Sections 9.1 through
9.28, when applicable) to perform, observe, and comply with each of the
following additional covenants:
(a) Debt. Communications shall not borrow any monies or create any
Debt, except (i) the Existing Bond Debt; (ii) Debt arising under the New Bond
Debt; (iii) Debt arising under Financial ▇▇▇▇▇▇ permitted by, and in compliance
with, Section 9.26(c); and (iv) Debt of Communications owed to Borrower
permitted by, and in compliance with, Sections 9.20(m) and (p).
(b) Guaranties. Communications shall not guarantee or assume or agree
to become liable in any way, either directly or indirectly, for any Debt of
others, including, without limitation, its Unrestricted Subsidiaries, except (i)
endorsements of checks or drafts in the ordinary course of business, and (ii)
Communications' guarantee of the Obligation.
(c) Loans. Communications shall not make any loans or advances to
others, other than (i) loans to any Company, provided such loans are unsecured
loans, which are expressly subordinated to the Obligation pursuant to an
Affiliate Subordination Agreement, and are subject to terms and conditions
acceptable to Borrower and Administrative Agent; (ii) loans and advances to its
Restricted Subsidiaries, other than the Companies or Guarantors, and (iii) loans
and advances to its Affiliates (other than the Companies and Restricted
Subsidiaries of Communications) in compliance with Section 9.14.
(d) Liens. Neither Communications nor any Restricted Subsidiary of
Communications (other than the Companies and Guarantors) shall create, permit,
or suffer the creation of any Liens on any of its property, real or personal,
EXCEPT:
(i) Liens securing the Obligation, and so long as the Obligation
is ratably secured therewith, Liens securing Debt incurred by
Communications under any Financial Hedge with any Lender or an
Affiliate of any Lender;
(ii) Pledges or deposits made to secure payment of worker's
compensation, or to participate in any fund in connection with
worker's compensation, unemployment insurance, pensions, or other
social security programs, but expressly excluding any Liens in favor
of the PBGC or otherwise under ERISA;
(iii) Good-faith pledges or deposits made to secure performance
of bids, tenders, insurance or other contracts (other than for the
repayment of borrowed money), or leases, or to secure statutory
obligations, surety or appeal bonds, or indemnity, performance, or
other similar bonds as all such Liens arise in the ordinary course of
business;
(iv) Encumbrances consisting of zoning restrictions, easements,
or other restrictions on the use of real property, none of which
impair in any material respect the use of such property by the Person
in question in the operation of its business, and none of which is
violated by existing or proposed structures or land use;
(v) Liens of landlords or of mortgagees of landlords, arising
solely by operation of law, on fixtures and movable property located
on premises leased in the ordinary course of business;
(vi) The following, so long as the validity or amount thereof is
being contested in good faith and by appropriate and lawful
proceedings diligently conducted, reserve or other appropriate
provisions (if any) required by GAAP shall have been made, levy and
execution thereon have been stayed and continue to be stayed, and they
do not in the aggregate materially detract from the value of the
property of the Person in question, or materially impair the use
thereof in the operation of its business: (i) claims and Liens for
Taxes (other than Liens relating to Environmental Laws or ERISA); (ii)
claims and Liens upon, and defects of title to, real or personal
property, including any attachment of personal or real property or
other legal process prior to adjudication of a dispute of the merits;
and (iii) claims and Liens of mechanics, materialmen, warehousemen,
carriers, landlords, or other like Liens; and
(vii) Liens existing on the Effective Date.
(e) Communications Bond Debt, Preferred Stock, and Exchange
Debentures. Communications shall not (i) amend or modify any provision of, or
waive any condition under, any document or instrument evidencing or relating to
the Communications Bond Debt, the Preferred Stock, or the Exchange Debentures,
including, without limitation, the Indenture for either issuance of
Communications Bond Debt, the Certificate of Designation for any Preferred
Stock, and the related documents or indentures evidencing or creating any
Exchange Debentures; (ii) make any optional redemptions, prepayments, or other
payments on either issuance of Communications Bond Debt, any Preferred Stock, or
any Exchange Debentures, other than (w) with respect to the tender offer,
consent solicitation and redemption with respect to the Existing Bond Debt
(other than the 10.875% Senior Notes due 2010 issued by Communications), (x)
regularly scheduled interest payment on each issuance of Communications Bond
Debt, (y) regularly-scheduled required cash dividends on each series of
Preferred Stock on and after the respective Cash-Pay Date for such series of
Preferred Stock, or (z) regularly scheduled dividends on the Preferred Stock,
paid solely in the form of additional shares of Preferred Stock having an
aggregate liquidation preference equal to the amount of such dividends; provided
that, in lieu of issuing any partial shares of Preferred Stock to pay any
non-cash dividend permitted by this clause (z), Communications may pay cash
dividends in an amount not to equal or exceed $1,000 for any quarterly dividend
period; (iii) use Restricted Payments, loans, advances, or investments received
from Borrower (other than Restricted Payments, loans, advances, or investments
made pursuant to Sections 9.20(p), (q), (s), (t), or (u)) for any purpose, other
than (x) to make regularly scheduled interest payments on the Communications
Bond Debt, or (y) after January 15, 2003, to pay regularly scheduled dividends
on the Preferred Stock.
(f) Designation of Unrestricted Subsidiaries. So long as no Default or
Potential Default exists or arises as a result thereof, Communications may from
time to time change the designation of any Subsidiary of Communications from a
Restricted Subsidiary of Communications to an Unrestricted Subsidiary of
Communications, or vice versa; provided that, (a) Communications shall provide
Administrative Agent written notification of such designation not less than 10
Business Days prior to the effective date of such designation, together with a
pro forma Compliance Certificate demonstrating compliance with the financial
covenants after giving effect to such designation, (b) such designated
Unrestricted Subsidiary shall satisfy all the requirements of an Unrestricted
Subsidiary, as set forth in the definition of such term in Section 1.1, and (c)
Communications shall deliver to Administrative Agent a written certification
executed by Borrower and Communications, certifying that no Default or Potential
Default exists prior to or after giving effect to such designation.
(g) Management Expenses. To the extent Communications charges any of
its Subsidiaries for management expenses, such management expenses must be fair
and reasonable and must be allocated among its Subsidiaries on a
consistently-applied basis.
Section 10. DEFAULT.
The term "Default" means the occurrence of any one or more of the following
events:
10.1. Payment of Obligation. The failure or refusal of any Loan Party or
Subsidiary thereof to pay (a) all or any part of the Principal Debt when the
same becomes due (whether by its terms, by acceleration, or as otherwise
provided in the Loan Documents); or (b) interest, fees, or any other part of the
Obligation (including, without limitation, any deposit of cash collateral
required pursuant to Section 2.4) within three days after the same becomes due
and payable in accordance with the Loan Documents.
10.2. Covenants. The failure or refusal of Borrower (and, if applicable,
any other Loan Party) to punctually and properly perform, observe, and comply
with:
(a) Any covenant, agreement, or condition contained in Sections 9.1,
9.3(a) through (d), 9.4, 9.10, 9.12, 9.13, 9.14, 9.16, 9.17, 9.20 through 9.24,
9.26, 9.28, and 9.29;
(b) Any covenant, agreement, or conditions contained in Sections
9.3(e) through (k) and 9.6 (other than the covenants to pay the Obligation as
set forth therein, which shall be governed by Section 10.1), and such failure
continues for five days; and
(c) Any other covenant, agreement, or condition contained in any Loan
Document (other than the covenants to pay the Obligation or provide cash
collateral set forth in Section 10.1 and the covenants in Section 10.2(a) and
(b)), and such failure or refusal continues for 20 days after (i) Administrative
Agent gives notice thereof, or (ii) Borrower otherwise becomes aware of such
failure or refusal.
10.3. Debtor Relief. Any Loan Party or any Subsidiary (other than DCCPCS)
thereof (a) shall not be Solvent, (b) fails to pay its Debts generally as they
become due, (c) voluntarily seeks, consents to, or acquiesces in the benefit of
any Debtor Relief Law, other than as a creditor or claimant, or (d) becomes a
party to or is made the subject of any proceeding provided for by any Debtor
Relief Law, other than as a creditor or claimant, that could suspend or
otherwise adversely affect the Rights of Administrative Agent or any Lender
granted in the Loan Documents (unless, in the event such proceeding is
involuntary, the petition instituting same is dismissed within 30 days after its
filing).
10.4. Judgments and Attachments. Any Loan Party or any Restricted
Subsidiary thereof fails, within 60 days after entry, to pay, bond, or otherwise
discharge any judgment or order for the payment of money in excess of
$10,000,000 (individually or collectively) or any warrant of attachment,
sequestration, or similar proceeding against any of their respective assets
having a value (individually or collectively) of $10,000,000 which is not stayed
on appeal.
10.5. Government Action. (a) A final non-appealable order is issued by any
Governmental Authority, including, but not limited to, the FCC or the United
States Justice Department, seeking to cause any Loan Party or any Subsidiary
(other than DCCPCS) thereof to divest a significant portion of its assets
pursuant to any antitrust, restraint of trade, unfair competition, industry
regulation, or similar Laws, or (b) any Governmental Authority shall condemn,
seize, or otherwise appropriate, or take custody or control of all or any
substantial portion of the assets of any Loan Party or any Subsidiary (other
than DCCPCS) thereof.
10.6. Misrepresentation. Any representation or warranty made by any Loan
Party contained herein or in any Loan Document shall at any time prove to have
been incorrect in any material respect when made.
10.7. Change of Control. (a) Except as otherwise permitted pursuant to this
Agreement, Borrower ceases to own the percentage of the issued and outstanding
equity interests issued by its Subsidiaries as determined on the Effective Date
or, if thereafter acquired, on the date of the related Acquisition or Permitted
Asset Swap; (b) Communications ceases to own 100% of the voting control
(directly or indirectly) of Borrower; (c) Communications is engaged in any
business or activity other than holding 100% of the stock of Borrower and the
other Subsidiaries of Communications; (d) on any date of determination, ▇▇▇▇▇▇
▇▇ Limited Partnership, an Oklahoma limited partnership, ceases to own at least
35% of the total voting power of the then outstanding voting stock of
Communications or (e) any "person" or "group," within the meaning of Section
13(d) or 14(d)(2) of the Exchange Act, becomes the ultimate "beneficial owner,"
as defined in Rule 13d-3 under the Exchange Act, of more than 35% of the total
voting power of the Voting Stock of Communications on a fully diluted basis and
such ownership represents a greater percentage of the total voting power of the
Voting Stock of Communication, on a fully diluted basis, than is held by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ and his Affiliates on such date.
10.8. Authorizations. (a) Any Authorization necessary for the ownership or
operations of any Loan Party or Subsidiary thereof shall expire, and on or prior
to such expiration, the same shall not have been renewed or replaced by another
Authorization authorizing substantially the same operations by such Loan Party;
(b) any Authorization necessary for the ownership or operations of any Loan
Party or Subsidiary thereof shall be canceled, revoked, terminated, rescinded,
annulled, suspended, or modified in a materially adverse respect, or shall no
longer be in full force and effect, or the grant or the effectiveness thereof
shall have been stayed, vacated, reversed, or set aside, (c) any Loan Party or
Subsidiary thereof is required by any Governmental Authority to halt
construction or operations under any Authorization and such action shall
continue uncorrected for thirty (30) days after the applicable entity has
received notice thereof; or (d) if any Governmental Authority shall make any
other final non-appealable determination the effect of which would be to affect
materially and adversely the operations of any Loan Party or Subsidiary thereof
as now conducted.
10.9. Default Under other Debt and Agreements. (a) Any Loan Party fails to
pay when due (after lapse of any applicable grace periods) any Debt of such Loan
Party (other than the Obligation) in excess (individually or collectively) of
$1,000,000; (b) the acceleration of any Debt of any Loan Party or the occurrence
of any event or condition (which with notice or lapse of time) would enable the
holder of such Debt or any Person acting on behalf of such holder to accelerate
the maturing thereof, which Debt exceeds (individually or collectively)
$1,000,000; or (c) any default exists under any material written or oral
agreement, contract, commitment, or understanding to which a Loan Party is a
party.
10.10. Validity and Enforceability of Loan Documents. Any Loan Document
shall, at any time after its execution and delivery and for any reason, cease to
be in full force and effect in any material respect or be declared to be null
and void (other than in accordance with the terms hereof or thereof) or the
validity or enforceability thereof be contested by any Loan Party party thereto
or any Loan Party shall deny in writing that it has any or any further liability
or obligations under any Loan Document to which it is a party.
10.11. Material Adverse Effect. If any event or condition shall exist which
would reasonably be expected to be a Material Adverse Event.
10.12. Environmental Liability. If any event or condition shall occur or
exist with respect to any activity or substance regulated under the
Environmental Law and as a result of such event or condition, any Loan Party or
any of their respective Subsidiaries shall have incurred or in the opinion of
the Required Lenders will be reasonably likely to incur a liability in excess of
$3,000,000 during any consecutive twelve (12) month period or $10,000,000 in the
aggregate from and after the Effective Date to any date of determination.
10.13. Pledged Stock. If (a) Administrative Agent ceases to hold as
Collateral (for the benefit of Lenders) a perfected first priority Lien on (i)
all of the issued and outstanding shares of common stock issued by Borrower and
each other Person whose stock is required to be pledged to secure the Obligation
pursuant to the Loan Documents, and such failure is not cured within five
Business Days; or (b) any Collateral Document after delivery thereof pursuant to
Section 6 shall for any reason (other than pursuant to the terms thereof) cease
to create a valid and perfected first priority lien on and security interest in
the Collateral purported to be covered thereby, except as permitted under the
Loan Documents.
10.14. Dissolution. Any Loan Party or Restricted Subsidiary thereof shall
dissolve, liquidate, or otherwise terminate its existence except as specifically
permitted by Section 9.24.
10.15. Payment of Certain other Agreements. The payment directly or
indirectly (including, without limitation, any payment in respect of any sinking
fund, defeasance, redemption, or payment of any dividend or distribution) by any
Loan Party or any Subsidiary thereof of any amount of the Communications Bond
Debt, any Subordinated Debt, any Exchange Debenture, or the Preferred Stock in a
manner or at a time during which such payment is not permitted under the terms
of the Loan Documents, the Exchange Debenture Indenture, the Certificate of
Designation for any Preferred Stock, or under any instrument or document
evidencing or creating the Communications Bond Debt or Subordinated Debt,
including, without limitation, any subordination provisions set forth therein.
10.16. Default or Acceleration under Certain other Agreements. (i) The
occurrence of any "Default" or "Event of Default" or other breach which remains
uncured on any date of determination under or with respect to the Communications
Bond Debt, the Exchange Debentures, any Preferred Stock, or any agreement
creating or evidencing any Subordinated Debt; (ii) the trustee with respect to,
or any holder of, the Communications Bond Debt, the Exchange Debentures, any
Preferred Stock, or any Subordinated Debt shall effectively declare all or any
portion of that Debt or obligation thereunder due and payable prior to the
stated maturity thereof; or (iii) the Subordinated Debt, the Communications Bond
Debt, or Indebtedness or obligations under the Exchange Debentures or any
Preferred Stock becomes due before its stated maturity by acceleration of the
maturity thereof.
10.17. Redemption of Certain other Debt or Obligation. If an event shall
occur, including, without limitation, a "Change in Control" as defined in any
documents evidencing or creating the Communications Bond Debt, the Exchange
Debentures, any Preferred Stock, or any agreement evidencing or creating the
Subordinated Debt, and (i) the trustee or the holders of any such Debt or
obligation shall initiate notice to request or require (or any Loan Party shall
automatically be so required) to redeem or repurchase such Debt or obligation,
or (ii) any Loan Party shall initiate notice to holders of the Subordinated Debt
or the holders of any Communications Bond Debt, Preferred Stock, or Exchange
Debentures, in connection with a redemption of any Debt or obligation arising
under such agreements or instruments.
10.18. DCCPCS LOAN. If the outstanding principal amount of DCCPCS Loan
shall at any time exceed $50,000,000.
Section 11. RIGHTS AND REMEDIES.
11.1. Remedies Upon Default.
(a) Debtor Relief. If a Default exists under Section 10.3(c) or
10.3(d), the commitment to extend credit hereunder shall automatically terminate
and the entire unpaid balance of the Obligation shall automatically become due
and payable without any action or notice of any kind whatsoever.
(b) Other Defaults. If any Default exists, Administrative Agent may
(and, subject to the terms of Section 12, shall upon the request of Required
Lenders) or Required Lenders may, do any one or more of the following: (i) if
the maturity of the Obligation has not already been accelerated under Section
11.1(a), declare the entire unpaid balance of the Obligation, or any part
thereof, immediately due and payable, whereupon it shall be due and payable;
(ii) terminate the commitments of Lenders to extend credit hereunder; (iii)
reduce any claim to judgment; (iv) to the extent permitted by Law, exercise (or
request each Lender to, and each Lender shall be entitled to, exercise) the
Rights of offset or banker's Lien against the interest of each Loan Party in and
to every account and other property of any Loan Party which are in the
possession of Administrative Agent or any Lender to the extent of the full
amount of the Obligation (to the extent permitted by Law, each Loan Party being
deemed directly obligated to each Lender in the full amount of the Obligation
for such purposes); and (v) exercise any and all other legal or equitable Rights
afforded by the Loan Documents, the Laws of the State of New York, or any other
applicable jurisdiction as Administrative Agent or Required Lenders (as the case
may be) shall deem appropriate, or otherwise, including, but not limited to, the
Right to bring suit or other proceedings before any Governmental Authority
either for specific performance of any covenant or condition contained in any of
the Loan Documents or in aid of the exercise of any Right granted to
Administrative Agent or any Lender in any of the Loan Documents.
11.2. Company Waivers. To the extent permitted by Law, the Loan Parties
hereby waive presentment and demand for payment, protest, notice of intention to
accelerate, notice of acceleration, and notice of protest and nonpayment, and
agree that their respective liability with respect to the Obligation (or any
part thereof) shall not be affected by any renewal or extension in the time of
payment of the Obligation (or any part thereof), by any indulgence, or by any
release or change in any security for the payment of the Obligation (or any part
thereof).
11.3. Performance By Administrative Agent. If any covenant, duty, or
agreement of any Loan Party is not performed in accordance with the terms of the
Loan Documents, after the occurrence and during the continuance of a Default,
Administrative Agent may, at its option (but subject to the approval of Required
Lenders), perform or attempt to perform such covenant, duty, or agreement on
behalf of such Loan Party. In such event, any amount expended by Administrative
Agent in such performance or attempted performance shall be payable by the Loan
Parties, jointly and severally, to Administrative Agent on demand, shall become
part of the Obligation, and shall bear interest at the Default Rate from the
date of such expenditure by Administrative Agent until paid. Notwithstanding the
foregoing, it is expressly understood that Administrative Agent does not assume,
and shall never have, except by its express written consent, any liability or
responsibility for the performance of any covenant, duty, or agreement of any
Loan Party.
11.4. Delegation of Duties and Rights. Lenders may perform any of their
duties or exercise any of their Rights under the Loan Documents by or through
their respective Representatives.
11.5. Not in Control. Nothing in any Loan Document shall, or shall be
deemed to (a) give the Administrative Agent or any Lender the Right to exercise
control over the assets (including real property), affairs, or management of any
Loan Party or any Subsidiary thereof, (b) preclude or interfere with compliance
by any Loan Party or any Subsidiary thereof with any Law, or (c) require any act
or omission by any Loan Party or any Subsidiary thereof that may be harmful to
Persons or property. Any "Material Adverse Event" or other materiality qualifier
in any representation, warranty, covenant, or other provision of any Loan
Document is included for credit documentation purposes only and shall not, and
shall not be deemed to, mean that the Administrative Agent or any Lender
acquiesces in any non-compliance by any Loan Party or any Subsidiary thereof
with any Law or document, or that the Administrative Agent or any Lender does
not expect the Loan Parties and their respective Subsidiaries to promptly,
diligently, and continuously carry out all appropriate removal, remediation, and
termination activities required or appropriate in accordance with all
Environmental Laws. The Administrative Agent and the Lenders have no fiduciary
relationship with or fiduciary duty to any Loan Party or any Subsidiary thereof
arising out of or in connection with the Loan Documents, and the relationship
between the Administrative Agent and the Lenders, on the one hand, and Loan
Parties and their Subsidiaries, on the other hand, in connection with the Loan
Documents is solely that of debtor and creditor. The power of the Administrative
Agent and Lenders under the Loan Documents is limited to the Rights provided in
the Loan Documents, which Rights exist solely to assure payment and performance
of the Obligation and may be exercised in a manner calculated by the
Administrative Agent and Lenders in their respective good faith business
judgment.
11.6. Course of Dealing. The acceptance by Administrative Agent or Lenders
at any time and from time to time of partial payment on the Obligation shall not
be deemed to be a waiver of any Default then existing. No waiver by
Administrative Agent, Required Lenders, or Lenders of any Default shall be
deemed to be a waiver of any other then-existing or subsequent Default. No delay
or omission by Administrative Agent, Required Lenders, or Lenders in exercising
any Right under the Loan Documents shall impair such Right or be construed as a
waiver thereof or any acquiescence therein, nor shall any single or partial
exercise of any such Right preclude other or further exercise thereof, or the
exercise of any other Right under the Loan Documents or otherwise.
11.7. Cumulative Rights. All Rights available to Administrative Agent and
Lenders under the Loan Documents are cumulative of and in addition to all other
Rights granted to Administrative Agent and Lenders at law or in equity, whether
or not the Obligation is due and payable and whether or not Administrative Agent
or Lenders have instituted any suit for collection, foreclosure, or other action
in connection with the Loan Documents.
11.8. Application of Proceeds. Any and all proceeds ever received by
Administrative Agent or Lenders from the exercise of any Rights pertaining to
the Obligation shall be applied to the Obligation in the order and manner set
forth in Section 3.12.
11.9. Certain Proceedings. Each Loan Party will promptly execute and
deliver, or cause the execution and delivery of, all applications, certificates,
instruments, registration statements, and all other documents and papers
Administrative Agent or Lenders may reasonably request in connection with the
obtaining of any consent, approval, registration, qualification, permit,
license, or Authorization of any Governmental Authority or other Person
necessary or appropriate for the effective exercise of any Rights under the Loan
Documents. Because the Loan Parties agree that Administrative Agent's and
Lenders' remedies at Law for failure of the Loan Parties to comply with the
provisions of this Section would be inadequate and that such failure would not
be adequately compensable in damages, the Loan Parties agree that the covenants
of this Section may be specifically enforced.
11.10. Limitation of Rights. Notwithstanding any other provision of any
Loan Document, any action taken or proposed to be taken by Administrative Agent
or any Lender under any Loan Document which would affect the operational,
voting, or other control of any Loan Party, shall be pursuant to Section 310(d)
of the Communications Act Of 1934 (as amended), any applicable state Law, and
the applicable rules and regulations thereunder and, if and to the extent
required thereby, subject to the prior consent of the FCC or any applicable PUC.
11.11. Expenditures By Lenders. Borrower shall promptly pay within fifteen
(15) Business Days after request therefor (a) all reasonable costs, fees, and
expenses paid or incurred by Administrative Agent, incident to any Loan Document
(including, but not limited to, the reasonable fees and expenses of counsel to
Administrative Agent and the allocated cost of internal counsel in connection
with the negotiation, preparation, delivery, execution, coordination and
administration of the Loan Documents and any related amendment, waiver, or
consent) and (b) all reasonable costs and expenses of Lenders and Administrative
Agent incurred by Administrative Agent or any Lender in connection with the
enforcement of the obligations of any Loan Party arising under the Loan
Documents (including, without limitation, costs and expenses incurred in
connection with any workout or bankruptcy) or the exercise of any Rights arising
under the Loan Documents (including, but not limited to, reasonable attorneys'
fees including allocated cost of internal counsel, court costs and other costs
of collection), all of which shall be a part of the Obligation and shall bear
interest at the Default Rate from the date due until the date repaid.
11.12. Indemnification. BORROWER AND EACH OTHER LOAN PARTY (BY EXECUTION OF
A GUARANTY) AGREES TO INDEMNIFY AND HOLD HARMLESS THE ADMINISTRATIVE AGENT, AND
EACH LENDER AND EACH OF THEIR RESPECTIVE AFFILIATES AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AND ADVISORS (EACH, AN
"INDEMNIFIED PARTY") FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES,
LIABILITIES (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LIABILITIES),
COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES)
THAT MAY BE INCURRED BY OR ASSERTED OR AWARDED AGAINST ANY INDEMNIFIED PARTY, IN
EACH CASE ARISING OUT OF OR IN CONNECTION WITH OR BY REASON OF (INCLUDING,
WITHOUT LIMITATION, IN CONNECTION WITH ANY INVESTIGATION, LITIGATION, OR
PROCEEDING OR PREPARATION OF DEFENSE IN CONNECTION THEREWITH) THE LOAN
DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR PROPOSED
USE OF THE PROCEEDS OF THE BORROWINGS (INCLUDING ANY OF THE FOREGOING ARISING
FROM THE NEGLIGENCE OF THE INDEMNIFIED PARTY), EXCEPT TO THE EXTENT SUCH CLAIM,
DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE IS FOUND IN A FINAL, NON- APPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH
INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE CASE OF AN
INVESTIGATION, LITIGATION OR OTHER PROCEEDING TO WHICH THE INDEMNITY IN THIS
SECTION 11.12 APPLIES, SUCH INDEMNITY SHALL BE EFFECTIVE WHETHER OR NOT SUCH
INVESTIGATION, LITIGATION OR PROCEEDING IS BROUGHT BY THE BORROWER, ITS
DIRECTORS, SHAREHOLDERS OR CREDITORS OR AN INDEMNIFIED PARTY OR ANY OTHER PERSON
OR ANY INDEMNIFIED PARTY IS OTHERWISE A PARTY THERETO AND WHETHER OR NOT THE
TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED. BORROWER AND EACH OTHER LOAN
PARTY (BY EXECUTION OF A GUARANTY) AGREE NOT TO ASSERT ANY CLAIM AGAINST ANY
INDEMNIFIED PARTY ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THE
LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR
PROPOSED USE OF THE PROCEEDS OF THE BORROWINGS. WITHOUT PREJUDICE TO THE
SURVIVAL OF ANY OTHER AGREEMENT OF THE BORROWER OR GUARANTORS HEREUNDER, THE
AGREEMENTS AND OBLIGATIONS OF THE LOAN PARTIES CONTAINED IN THIS SECTION 11.12
SHALL SURVIVE THE PAYMENT IN FULL OF THE BORROWINGS AND ALL OTHER AMOUNTS
PAYABLE UNDER THE LOAN DOCUMENTS.
Section 12. AGREEMENT AMONG LENDERS.
12.1. Administrative Agent.
(a) Appointment of Administrative Agent. Each Lender hereby appoints
LCPI (and LCPI hereby accepts such appointment) as its nominee and agent, in its
name and on its behalf: (i) to act as nominee for and on behalf of such Lender
in and under all Loan Documents; (ii) to arrange the means whereby the funds of
Lenders are to be made available to Borrower under the Loan Documents; (iii) to
take such action as may be requested by any Lender under the Loan Documents
(when such Lender is entitled to make such request under the Loan Documents and
after such requesting Lender has obtained the concurrence of such other Lenders
as may be required under the Loan Documents); (iv) to receive all documents and
items to be furnished to Lenders under the Loan Documents; (v) to timely
distribute, and Administrative Agent agrees to so distribute, to each Lender all
material information, requests, documents, and items received from Borrower
under the Loan Documents; (vi) to promptly distribute to each Lender its ratable
part of each payment or prepayment (whether voluntary, as proceeds of collateral
upon or after foreclosure, as proceeds of insurance thereon, or otherwise) in
accordance with the terms of the Loan Documents; (vii) to deliver to the
appropriate Persons requests, demands, approvals, and consents received from
Lenders; and (viii) to execute, on behalf of Lenders, such releases or other
documents or instruments as are permitted by the Loan Documents or as directed
by Lenders from time to time; provided, however, Administrative Agent shall not
be required to take any action which exposes Administrative Agent to personal
liability or which is contrary to the Loan Documents or applicable Law.
(b) Resignation of Administrative Agent. Successor Administrative
Agents. Administrative Agent may resign at any time as Administrative Agent
under the Loan Documents by giving written notice thereof to Lenders and may be
removed as Administrative Agent under the Loan Documents at any time with cause
by Required Lenders. Should the initial or any successor Administrative Agent
ever cease to be a party hereto or should the initial or any successor
Administrative Agent ever resign or be removed as Administrative Agent, then
Required Lenders shall elect the successor Administrative Agent from among the
Lenders (other than the resigning Administrative Agent). If no successor
Administrative Agent shall have been so appointed by Required Lenders, within 30
days after the retiring Administrative Agent's giving of notice of resignation
or Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank having a combined capital
and surplus of at least $1,000,000,000. Upon the acceptance of any appointment
as Administrative Agent under the Loan Documents by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the Rights of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations of Administrative Agent under the Loan Documents. After any retiring
Administrative Agent's resignation or removal as Administrative Agent under the
Loan Documents, the provisions of this Section 12 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under the Loan Documents.
(c) Administrative Agent as a Lender. Non-fiduciary. Administrative
Agent, in its capacity as a Lender, shall have the same Rights under the Loan
Documents as any other Lender and may exercise the same as though it were not
acting as Administrative Agent; the term "Lender" shall, unless the context
otherwise indicates, include Administrative Agent; and any resignation, or
removal of Administrative Agent hereunder shall not impair or otherwise affect
any Rights which it has or may have in its capacity as an individual Lender.
Each Lender and Borrower agree that Administrative Agent is not a fiduciary for
Lenders or for Borrower but simply is acting in the capacity described herein to
alleviate administrative burdens for both Borrower and Lenders, that
Administrative Agent has no duties or responsibilities to Lenders or Borrower
except those expressly set forth herein, and that Administrative Agent in its
capacity as a Lender has all Rights of any other Lender.
(d) Other Activities of Administrative Agent. Administrative Agent and
its Affiliates may now or hereafter be engaged in one or more loan, letter of
credit, leasing, or other financing transactions with Borrower, act as trustee
or depositary for Borrower, or otherwise be engaged in other transactions with
Borrower (collectively, the "Other Activities") not the subject of the Loan
Documents. Without limiting the Rights of Lenders specifically set forth in the
Loan Documents, Administrative Agent and its Affiliates shall not be responsible
to account to Lenders for such other activities, and no Lender shall have any
interest in any other activities, any present or future guaranties by or for the
account of Borrower which are not contemplated or included in the Loan
Documents, any present or future offset exercised by Administrative Agent and
its Affiliates in respect of such other activities, any present or future
property taken as security for any such other activities, or any property now or
hereafter in the possession or control of Administrative Agent or its Affiliates
which may be or become security for the obligations of Borrower arising under
the Loan Documents by reason of the general description of indebtedness secured
or of property contained in any other agreements, documents or instruments
related to any such other activities; provided that, if any payments in respect
of such guaranties or such property or the proceeds thereof shall be applied to
reduction of the Obligation arising under the Loan Documents, then each Lender
shall be entitled to share in such application ratably.
12.2. Expenses. Upon demand by Administrative Agent, each Lender shall pay
its ratable portion of any reasonable expenses (including, without limitation,
court costs, reasonable attorneys' fees, and other costs of collection) incurred
by Administrative Agent in connection with any of the Loan Documents if and to
the extent Administrative Agent does not receive reimbursement therefor from
other sources within 60 days after incurred; provided that, each Lender shall be
entitled to receive its ratable portion of any reimbursement for such expenses,
or part thereof, which Administrative Agent subsequently receives from such
other sources.
12.3. Proportionate Absorption of Losses. Except as otherwise provided in
the Loan Documents, nothing in the Loan Documents shall be deemed to give any
Lender any advantage over any other Lender insofar as the Obligation arising
under the Loan Documents is concerned, or to relieve any Lender from absorbing
its ratable portion of any losses sustained with respect to the Obligation
(except to the extent such losses result from unilateral actions or inactions of
any Lender that are not made in accordance with the terms and provisions of the
Loan Documents).
12.4. Delegation of Duties; Reliance. Administrative Agent may perform any
of its duties or exercise any of its Rights under the Loan Documents by or
through its Representatives. Administrative Agent and its Representatives shall
(a) be entitled to rely upon (and shall be protected in relying upon) any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telecopy, telegram, telex or teletype message, statement, order, or other
documents or conversation believed by it or them to be genuine and correct and
to have been signed or made by the proper Person and, with respect to legal
matters, upon opinion of counsel selected by Administrative Agent, (b) be
entitled to deem and treat each Lender as the owner and holder of the Obligation
owed to such Lender for all purposes until, subject to Section 13.13, written
notice of the assignment or transfer thereof shall have been given to and
received by Administrative Agent (and any request, authorization, consent, or
approval of any Lender shall be conclusive and binding on each subsequent
holder, assignee, or transferee of the Obligation owed to such Lender or portion
thereof until such notice is given and received), (c) not be deemed to have
notice of the occurrence of a Default or Potential Default unless a responsible
officer of Administrative Agent, who handles matters associated with the Loan
Documents and transactions thereunder, has received written notice from a Lender
or Borrower and stating that such notice is a "Notice of Default," and (d) be
entitled to consult with legal counsel (including counsel for Borrower),
independent accountants, and other experts selected by Administrative Agent and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts.
12.5. Limitation of Liability.
(a) General. The Administrative Agent nor any of its respective
Representatives shall be liable for any action taken or omitted to be taken by
it or them under the Loan Documents in good faith and reasonably believed by it
or them to be within the discretion or power conferred upon it or them by the
Loan Documents or be responsible for the consequences of any error of judgment,
except for fraud, gross negligence, or willful misconduct; and the
Administrative Agent or any of their respective Representatives has a fiduciary
relationship with any Lender by virtue of the Loan Documents (provided that,
nothing herein shall negate the obligation of Administrative Agent to account
for funds received by it for the account of any Lender).
(b) Non-discretionary Actions. Indemnification. Unless indemnified to
its satisfaction against loss, cost, liability, and expense, the Administrative
Agent shall not be compelled to do any act under the Loan Documents or to take
any action toward the execution or enforcement of the powers thereby created or
to prosecute or defend any suit in respect of the Loan Documents. If
Administrative Agent requests instructions from Lenders or Required Lenders, as
the case may be, with respect to any act or action (including, but not limited
to, any failure to act) in connection with any Loan Document, Administrative
Agent shall be entitled (but shall not be required) to refrain (without
incurring any liability to any Person by so refraining) from such act or action
unless and until it has received such instructions. Except where action of
Required Lenders or all Lenders is required in the Loan Documents,
Administrative Agent may act hereunder in its own discretion without requesting
instructions. In no event, however, shall Administrative Agent or any of its
respective Representatives be required to take any action which it or they
determine could incur for it or them criminal or onerous civil liability.
Without limiting the generality of the foregoing, no Lender shall have any right
of action against Administrative Agent as a result of Administrative Agent's
acting or refraining from acting hereunder in accordance with the instructions
of Required Lenders (or all Lenders if required in the Loan Documents).
(c) Independent Credit Decision. Administrative Agent shall not be
responsible in any manner to any Lender or any Participant for, and each Lender
represents and warrants that it has not relied upon Administrative Agent in
respect of, (i) the creditworthiness of any Loan Party and the risks involved to
such Lender, (ii) the effectiveness, enforceability, genuineness, validity, or
the due execution of any Loan Document, (iii) any representation, warranty,
document, certificate, report, or statement made therein or furnished thereunder
or in connection therewith, (iv) the existence, priority, or perfection of any
Lien hereafter granted or purported to be granted under any Loan Document, or
(v) observation of or compliance with any of the terms, covenants, or conditions
of any Loan Document on the part of any Loan Party. Each Lender agrees to
indemnify Administrative Agent and its respective Representatives and hold them
harmless from and against (but limited to such Lender's Pro Rata Part of) any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses, and reasonable disbursements of
any kind or nature whatsoever which may be imposed on, asserted against, or
incurred by them in any way relating to or arising out of the Loan Documents or
any action taken or omitted by them under the Loan Documents (including any of
the foregoing arising from the negligence of administrative agent or its
representatives), to the extent Administrative Agent and its respective
Representatives are not reimbursed for such amounts by any Loan Party (provided
that, Administrative Agent, and its respective Representatives shall not have
the Right to be indemnified hereunder for its or their own fraud, gross
negligence, or willful misconduct).
12.6. Default; Collateral.
(a) Upon the occurrence and continuance of a Default, Lenders agree to
promptly confer in order that Required Lenders or Lenders, as the case may be,
may agree upon a course of action for the enforcement of the Rights of Lenders;
and Administrative Agent shall be entitled to refrain from taking any action
(without incurring any liability to any Person for so refraining) unless and
until Administrative Agent shall have received instructions from Required
Lenders. All Rights of action under the Loan Documents and all Rights to the
Collateral, if any, hereunder may be enforced by Administrative Agent and any
suit or proceeding instituted by Administrative Agent in furtherance of such
enforcement shall be brought in its name as Administrative Agent without the
necessity of joining as plaintiffs or defendants any other Lender, and the
recovery of any judgment shall be for the benefit of Lenders subject to the
expenses of Administrative Agent. In actions with respect to any property of
Borrower, Administrative Agent is acting for the ratable benefit of each Lender.
Any and all agreements to subordinate (whether made heretofore or hereafter)
other indebtedness or obligations of Borrower to the Obligation shall be
construed as being for the ratable benefit of each Lender.
(b) Each Lender authorizes and directs Administrative Agent to enter
into the Collateral Documents for the benefit of the Lenders. Except to the
extent unanimity is required hereunder, each Lender agrees that any action taken
by the Required Lenders in accordance with the provisions of the Loan Documents,
and the exercise by the Required Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably incidental thereto,
shall be authorized and binding upon all of the Lenders.
(c) Administrative Agent is hereby authorized on behalf of all of the
Lenders, without the necessity of any notice to or further consent from any
Lender, from time to time to take any action with respect to any Collateral or
Collateral Documents which may be necessary to perfect and maintain perfected
the Liens upon the Collateral granted pursuant to the Collateral Documents.
(d) Administrative Agent shall have no obligation whatsoever to any
Lender or to any other Person to assure that the Collateral exists or is owned
by any Loan Party or is cared for, protected, or insured or has been encumbered
or that the Liens granted to Administrative Agent herein or pursuant hereto have
been properly or sufficiently or lawfully created, perfected, protected, or
enforced, or are entitled to any particular priority, or to exercise at all or
in any particular manner or under any duty of care, disclosure, or fidelity, or
to continue exercising, any of the Rights granted or available to Administrative
Agent in this Section 12.6 or in any of the Collateral Documents; it being
understood and agreed that in respect of the Collateral, or any act, omission,
or event related thereto, Administrative Agent may act in any manner it may deem
appropriate, in its sole discretion, given Administrative Agent's own interest
in the Collateral as one of the Lenders and that Administrative Agent shall have
no duty or liability whatsoever to any Lender, other than to act without gross
negligence or willful misconduct.
(e) Lenders hereby irrevocably authorize Administrative Agent, at its
option and in its discretion, to release any Lien granted to or held by
Administrative Agent upon any Collateral: (i) upon termination of the Total
Commitment and payment and satisfaction of the Obligation; (ii) constituting
property in which no Loan Party owned an interest at the time the Lien was
granted or at any time thereafter; (iii) constituting property leased to a Loan
Party under a lease which has expired or been terminated in a transaction
permitted under the Loan Document or is about to expire and which has not been,
and is not intended by such Loan Party to be, renewed; (iv) consisting of an
instrument evidencing Debt pledged to Administrative Agent (for the benefit of
Lenders), if the Debt evidenced thereby has been paid in full; (v) upon the
sale, transfer, or disposition of Collateral which is expressly permitted
pursuant to the Loan Documents, including, without limitation, under Section
9.22; (vi) as contemplated in Section 6.5, or (vii) if approved, authorized, or
ratified in writing by all necessary Lenders. Upon request by Administrative
Agent at any time, Lenders will confirm in writing Administrative Agent's
authority to release particular types or items of Collateral pursuant to this
Section 12.6.
(f) In furtherance of the authorizations set forth in this Section
12.6, each Lender hereby irrevocably appoints Administrative Agent its
attorney-in-fact, with full power of substitution, for and on behalf of and in
the name of each such Lender, (i) to enter into Collateral Documents (including,
without limitation, any appointments of substitute trustees under any Collateral
Document), (ii) to take action with respect to the Collateral and Collateral
Documents to perfect, maintain, and preserve Lender's Liens, and (iii) to
execute instruments of release or to take other action necessary to release
Liens upon any Collateral to the extent authorized in paragraph (e) hereof. This
power of attorney shall be liberally, not restrictively, construed so as to give
the greatest latitude to Administrative Agent's power, as attorney, relative to
the Collateral matters described in this Section 12.6. The powers and
authorities herein conferred on Administrative Agent may be exercised by
Administrative Agent through any Person who, at the time of the execution of a
particular instrument, is an officer of Administrative Agent. The power of
attorney conferred by 93 this Section 12.6(f) is granted for valuable
consideration and is coupled with an interest and is irrevocable so long as the
Obligation, or any part thereof, shall remain unpaid or Lenders are obligated to
make any Borrowings under the Loan Documents.
12.7. Limitation of Liability. To the extent permitted by Law, (a)
Administrative Agent (acting in their respective agent capacities) shall not
incur any liability to any other Lender or Participant except for acts or
omissions resulting from its own fraud, gross negligence or willful misconduct,
and (b) Administrative Agent, Lender, or Participant shall not incur any
liability to any other Person for any act or omission of any other Lender or
Participant.
12.8. Relationship of Lenders. Nothing herein shall be construed as
creating a partnership or joint venture among the Administrative Agent and
Lenders.
12.9. Benefits of Agreement. None of the provisions of this Section 12
shall inure to the benefit of any Loan Party or any other Person other than
Lenders; consequently, no Loan Party or any other Person shall be entitled to
rely upon, or to raise as a defense, in any manner whatsoever, the failure of
the Administrative Agent or any Lender to comply with such provisions.
12.10. Intentionally Omitted.
12.11. Obligations Several. The obligations of Lenders hereunder are
several, and each Lender hereunder shall not be responsible for the obligations
of the other Lenders hereunder, nor will the failure of one Lender to perform
any of its obligations hereunder relieve the other Lenders from the performance
of their respective obligations hereunder.
12.12. Financial ▇▇▇▇▇▇. To the extent any Lender or any Affiliate of a
Lender issues a Financial Hedge in accordance with the requirements of the Loan
Documents and accepts the benefits of the Liens in the Collateral arising
pursuant to the Collateral Documents, such Lender (for itself and on behalf of
any such Affiliates) agrees (i) to appoint LCPI, as its nominee and agent, to
act for and on behalf of such Lender or Affiliate thereof in connection with the
Collateral Documents and (ii) to be bound by the terms of this Section 12;
whereupon all references to "Lender" in this Section 12 and in the Collateral
Documents shall include, on any date of determination, any Lender or Affiliate
of a Lender that is party to a then-effective Financial Hedge which complies
with the requirements of the Loan Document. Additionally, if the Obligation owed
to any Lender or Affiliate of a Lender consists solely of Debt arising under a
Financial Hedge (such Lender or Affiliate being referred to in this Section
12.12 as an "Issuing Lender"), then such Issuing Lender (by accepting the
benefits of any Collateral Documents) acknowledges and agrees that pursuant to
the Loan Documents and without notice to or consent of such Issuing Lender: (i)
Liens in the Collateral may be released in whole or in part; (ii) all Guaranties
may be released; (iii) any Collateral Document may be amended, modified,
supplemented, or restated; and (iv) all or any part of the Collateral may be
permitted to secure other Debt.
12.13. Successor Administrative Agent. LCPI has been appointed as the
Administrative Agent under the Loan Documents, as successor "Administrative
Agent" under the Existing Credit Agreement, and Administrative Agent hereby
assumes all duties of the "Secured Party" under the Collateral Documents. Any
reference to "Administrative Agent" or "Secured Party" under the Loan Documents
shall be deemed to be a reference to the Administrative Agent hereunder.
Section 13. MISCELLANEOUS.
13.1. Headings. The headings, captions, and arrangements used in any of the
Loan Documents are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify, or modify the terms of the Loan Documents, nor
affect the meaning thereof.
13.2. Nonbusiness Days. In any case where any payment or action is due
under any Loan Document on a day which is not a Business Day, such payment or
action may be delayed until the next-succeeding Business Day, but interest and
fees shall continue to accrue in respect of any payment to which it is
applicable until such payment is in fact made.
13.3. Communications. Unless specifically otherwise provided, whenever any
Loan Document requires or permits any consent, approval, notice, request, or
demand from one party to another, such communication must be in writing (which
may be by telex or telecopy) to be effective and shall be deemed to have been
given (a) if by telex, when transmitted to the telex number, if any, for such
party, and the appropriate answer back is received, (b) if by telecopy, when
transmitted to the telecopy number for such party (and all such communications
sent by telecopy shall be confirmed promptly thereafter by personal delivery or
mailing in accordance with the provisions of this section; provided, that any
requirement in this parenthetical shall not affect the date on which such
telecopy shall be deemed to have been delivered), (c) if by mail, on the third
Business Day after it is enclosed in an envelope, properly addressed to such
party, properly stamped, sealed, and deposited in the appropriate official
postal service, or (d) if by any other means, when actually delivered to such
party. Until changed by notice pursuant hereto, the address (and telex and
telecopy numbers, if any) for the Borrower and other Loan Parties and the
Administrative Agent are set forth below:
The Borrower and other Loan Parties: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Chief Financial Officer
Telecopy: ▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇▇
The Administrative Agent: ▇▇▇▇▇▇ Commercial Paper Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇▇
A copy of each such communication to Borrower or any other Loan Party shall
also be sent to McAfee & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Fax: 405/▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇.
13.4. Form and Number of Documents. Each agreement, document, instrument,
or other writing to be furnished under any provision of the Loan Documents must
be in form and substance and in such number of counterparts as may be reasonably
satisfactory to Administrative Agent and its counsel.
13.5. Exceptions to Covenants. No Loan Party shall take any action or fail
to take any action which is permitted as an exception to any of the covenants
contained in any Loan Document if such action or omission would result in the
breach of any other covenant contained in any of the Loan Documents.
13.6. Survival. All covenants, agreements, undertakings, representations,
and warranties made in any of the Loan Documents shall survive all closings
under the Loan Documents and, except as otherwise indicated, shall not be
affected by any investigation made by any party. All Rights of, and provisions
relating to, reimbursement and indemnification of Administrative Agent or any
Lender (and any other provision of the Loan Documents that expressly provides
for such survival) shall survive termination of this Agreement and payment in
full of the Obligation.
13.7. Governing Law. THE LOAN DOCUMENTS HAVE BEEN ENTERED INTO PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND THE SUBSTANTIVE LAWS
OF THE STATE OF NEW YORK (EXCEPT TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION
GOVERN THE CREATION, PERFECTION, VALIDITY, OR ENFORCEMENT OF LIENS UNDER THE
COLLATERAL DOCUMENTS), AND THE APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF
AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION
OF THE LOAN DOCUMENTS.
13.8. Invalid Provisions. If any provision in any Loan Document is held to
be illegal, invalid, or unenforceable, such provision shall be fully severable;
the appropriate Loan Document shall be construed and enforced as if such
provision had never comprised a part thereof; and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by such
provision or by its severance therefrom. Administrative Agent, Lenders, and each
Loan Party party to such Loan Document agree to negotiate, in good faith, the
terms of a replacement provision as similar to the severed provision as may be
possible and be legal, valid, and enforceable.
13.9. ENTIRETY. THE RIGHTS AND OBLIGATIONS OF EACH LOAN PARTY, LENDERS, AND
ADMINISTRATIVE AGENT SHALL BE DETERMINED SOLELY FROM WRITTEN AGREEMENTS,
DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS BETWEEN SUCH PARTIES
ARE SUPERSEDED BY AND MERGED INTO SUCH WRITINGS. THIS AGREEMENT (AS AMENDED IN
WRITING FROM TIME TO TIME) AND THE OTHER WRITTEN LOAN DOCUMENTS EXECUTED BY ANY
LOAN PARTY, ANY LENDER, AND/OR ADMINISTRATIVE AGENT, (together with ALL
COMMITMENT LETTERS AND FEE LETTERS AS THEY RELATE TO THE PAYMENT OF FEES AFTER
THE EFFECTIVE DATE) REPRESENT THE FINAL AGREEMENT BETWEEN THE LOAN PARTIES,
LENDERS, AND ADMINISTRATIVE AGENT, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY SUCH PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN SUCH PARTIES.
13.10. JURISDICTION; VENUE; SERVICE OF PROCESS; JURY TRIAL. EACH PARTY
HERETO (INCLUDING EACH GUARANTOR BY EXECUTION OF A GUARANTY), IN EACH CASE FOR
ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY (A) IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE STATE (PURSUANT TO SECTION 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW) AND FEDERAL COURTS LOCATED IN THE BOROUGH OF
MANHATTAN IN THE STATE OF NEW YORK, AND AGREES AND CONSENTS THAT SERVICE OF
PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN
CONNECTION WITH THE LOAN DOCUMENTS AND THE OBLIGATION BY SERVICE OF PROCESS AS
PROVIDED BY NEW YORK LAW, (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE LOAN
DOCUMENTS AND THE OBLIGATION BROUGHT IN ANY SUCH COURT, (C) IRREVOCABLY WAIVES
ANY CLAIMS THAT ANY LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, (D) AGREES TO DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE OF
PROCESS IN NEW YORK IN CONNECTION WITH ANY SUCH LITIGATION AND TO DELIVER TO
ADMINISTRATIVE AGENT EVIDENCE THEREOF, IF REQUESTED, (E) IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
LITIGATION BY THE MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, POSTAGE PREPAID, AT ITS ADDRESS SET FORTH HEREIN, (F) IRREVOCABLY
AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE OBLIGATION SHALL BE BROUGHT IN ONE OF
THE AFOREMENTIONED COURTS, AND (G) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF ANY LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY. The scope of each of the foregoing waivers is intended to
be all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including, without
limitation, contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims. The Loan Parties and each other party to the
Loan Documents acknowledge that this waiver is a material inducement to the
agreement of each party hereto to enter into a business relationship, that each
has already relied on this waiver in entering into the Loan Documents, and each
will continue to rely on each of such waivers in related future dealings. The
Loan Parties and each other party to the Loan Documents warrant and represent
that they have reviewed these waivers with their legal counsel, and that they
knowingly and voluntarily agree to each such waiver following consultation with
legal counsel. THE WAIVERS IN THIS SECTION 13.10 ARE IRREVOCABLE, MEANING THAT
THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS, AND REPLACEMENTS TO OR OF THIS
OR ANY OTHER LOAN DOCUMENT. In the event of Litigation, this Agreement may be
filed as a written consent to a trial by the court.
13.11. Amendments, Consents, Conflicts, And Waivers.
(a) Except as otherwise specifically provided, (i) this Agreement may
only be amended, modified, or waived by an instrument in writing executed
jointly by Borrower and Required Lenders, and, in the case of any matter
affecting Administrative Agent (EXCEPT removal of Administrative Agent as
provided in Section 12) by Administrative Agent, and may only be supplemented by
documents delivered or to be delivered in accordance with the express terms
hereof, and (ii) the other Loan Documents may only be the subject of an
amendment, modification, or waiver if Borrower and Required Lenders, and, in the
case of any matter affecting Administrative Agent (EXCEPT as set forth above),
Administrative Agent, have approved same.
(b) Any amendment to the Loan Documents which purports to (i) change
the allocation of payments among the Revolver Facility or (ii) decrease the
amount of any mandatory payment or commitment reduction required by Section
3.3(b)(iii) (from Equity Issuance) or Section 3.3(c) (from Excess Cash Flow)
must be by an instrument in writing executed by Borrower and by the Revolver
Lenders holding at least 50.1% of the Revolver Commitment or, if there is no
remaining Revolver Commitment, 50.1% of the Revolver Principal Debt.
(c) Except as provided in Section 13.11(b), any amendment to or
consent or waiver under any Loan Document which purports to accomplish any of
the following must be by an instrument in writing executed by Borrower and
executed (or approved, as the case may be) by each Lender affected thereby, and,
in the case of any matter affecting Administrative Agent, by Administrative
Agent: (i) postpones or delays any date fixed by the Loan Documents for any
payment or mandatory prepayment of all or any part of the Obligation payable to
such Lender or Administrative Agent; (ii) reduces the interest rate or decreases
the amount of any payment of principal, interest, fees, or other sums payable to
Administrative Agent or any such Lender hereunder (except such reductions as are
contemplated by this Agreement); (iii) changes the definition of "Required
Lenders" or this Section 13.11(c) or any other provisions of the Loan Documents
that require the unanimous consent of the Lenders; (iv) changes the order of
application of any payment or prepayment set forth in Sections 3.3 and 3.12 in
any manner that materially affects such Lender 97 or Administrative Agent; (v)
except as otherwise permitted by any Loan Document (including, without
limitation, Section 6.5), waives compliance with, amends, or releases all or
substantially all of the Guaranties; (vi) except as contemplated in Section 6.5,
releases all or substantially all of the Collateral for the Obligation or
permits the creation, incurrence, assumption, or existence of any Lien on all or
substantially all of the Collateral to secure any obligations, other than Liens
securing the Obligation and Permitted Liens; or (vi) changes this clause (c) or
any other matter specifically requiring the consent of all Lenders hereunder.
Without the consent of such Lender, no Lender's "Committed Sum" or "Commitment
Percentage" may be increased.
(d) Any conflict or ambiguity between the terms and provisions of this
Agreement and terms and provisions in any other Loan Document shall be
controlled by the terms and provisions herein.
(e) No course of dealing nor any failure or delay by Administrative
Agent, any Lender, or any of their respective Representatives with respect to
exercising any Right of Administrative Agent or any Lender hereunder shall
operate as a waiver thereof. A waiver must be in writing and signed by
Administrative Agent and Required Lenders (or by all Lenders, if required
hereunder) to be effective, and such waiver will be effective only in the
specific instance and for the specific purpose for which it is given.
13.12. Multiple Counterparts. The Loan Documents may be executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one agreement; but, in
making proof of any Loan Document, it shall not be necessary to produce or
account for more than one such counterpart. It is not necessary that each Lender
execute the same counterpart so long as identical counterparts are executed by
Borrower, each Lender, and Administrative Agent. This Agreement shall become
effective when counterparts hereof shall have been executed and delivered to
Administrative Agent by each Lender, Administrative Agent, and Borrower, or,
when Administrative Agent shall have received telecopied, telexed, or other
evidence satisfactory to it that such party has executed and is delivering to
Administrative Agent a counterpart hereof.
13.13. Successors and Assigns; Assignments and Participations.
(a) This Agreement shall be binding upon, and inure to the benefit of
the parties hereto and their respective successors and assigns, except that (i)
Borrower may not, directly or indirectly, assign or transfer, or attempt to
assign or transfer, any of its Rights, duties, or obligations under any Loan
Documents without the express written consent of all Lenders, and (ii) except as
permitted under this Section, no Lender may transfer, pledge, assign, sell any
participation in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees all or a
portion of its Rights and obligations under the Loan Documents (including,
without limitation, all or a portion of its Borrowings and its Revolver Notes --
to the extent any Principal Debt owed to such assigning Lender is evidenced by a
Revolver Note or Revolver Notes); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender, an
Affiliate of Lender or an Approved Fund of any Lender, or in the case
of an assignment of all of a Lender's Rights and obligations under the
Loan Documents, any such partial assignment under the Revolver
Facility shall not be less than $2,500,000 (unless Administrative
Agent and, unless a Default or Potential Default has occurred and is
continuing, Borrower consent thereto (in their sole discretion) in
writing which may be evidenced by their acceptance and execution of
the related Assignment and Acceptance Agreement); provided that, no
partial assignment for the Revolver Facility (including any assignment
among Lenders) may result in any Lender holding less than $1,000,000
in the Revolver Facility;
(iii) each such assignment by a Lender shall be of a
proportionate part of all of the assigning Lender's Rights and
obligations under this Agreement and the Revolver Notes (to the extent
any Principal Debt owed to such assigning Lender is evidenced by a
Revolver Note or Revolver Notes), except that this clause (iii) shall
not be construed to prohibit the assignment of a proportionate part of
all of the assigning Lender's Rights and obligations in respect of the
Revolver Facility;
(iv) the parties to such assignment shall execute and deliver to
Administrative Agent for its acceptance an Assignment and Acceptance
Agreement substantially in the form of Exhibit F hereto, together with
any Revolver Notes (to the extent any Principal Debt owed to such
assigning Lender is evidenced by a Revolver Note or Revolver Notes)
subject to such assignment and a processing fee of $3,500, including,
without limitation, any assignment between Lenders; and
(v) so long as any Lender is the Administrative Agent under this
Agreement, such Lender (or an Affiliate of such Lender) shall retain
an economic interest in the Loan Documents, will not assign all of its
Rights, duties, or obligations under the Loan Documents, except to an
Affiliate of such Lender, and will not enter into any Assignment and
Acceptance Agreement that would have the effect of such Lender
assigning all of its Rights, duties, or obligations under the Loan
Documents to any Person other than an Affiliate of such Lender unless
such Administrative Agent has relinquished such title in accordance
with Section 12.1.
Upon execution, delivery, and acceptance of such Assignment and Acceptance
Agreement, the assignee thereunder shall be a party hereto and, to the extent of
such assignment, have the obligations, Rights, and benefits of a Lender under
the Loan Documents and the assigning Lender shall, to the extent of such
assignment, relinquish its Rights and be released from its obligations under the
Loan Documents. Upon the consummation of any assignment pursuant to this
Section, but only upon the request of the assignor or assignee made through
Administrative Agent, Borrower shall issue appropriate Revolver Notes to the
assignor and the assignee, reflecting such Assignment and Acceptance. If the
assignee is not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to Borrower and Administrative Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with Section 4.6.
(c) Administrative Agent (acting solely for this administrative
purpose as an agent for Borrower) shall maintain at its address referred to in
Section 13.3 a copy of each Assignment and Acceptance Agreement delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment Percentage, and principal amount of the
Borrowings owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and Borrower, Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of the Loan Documents. The Register shall be available for inspection
by Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice. Upon the consummation of any assignment in accordance
with this Section 13.13, Schedule 2.1 shall automatically be deemed amended (to
the extent required) by Administrative Agent to reflect the name, address, and,
where appropriate, the respective Committed Sums under the Revolver Facility of
the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement
executed by the parties thereto, together with any Revolver Notes (to the extent
any Principal Debt owed to such assigning Lender is evidenced by a Revolver Note
or Revolver Notes) subject to such assignment and payment of the processing fee,
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit F hereto, (i) accept such Assignment
and Acceptance Agreement, (ii) record the information contained therein in the
Register, and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with
applicable Law, any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable Law, at any time sell to one or more
Persons (other than Borrower or any Affiliate of Borrower) (each a
"Participant") participating interests in its portion of the Obligation. In the
event of any such sale to a Participant, (i) such Lender shall remain a "Lender"
under the Loan Documents and the Participant shall not constitute a "Lender"
hereunder, (ii) such Lender's obligations under the Loan Documents shall remain
unchanged, (iii) such Lender shall remain solely responsible for the performance
thereof, (iv) such Lender shall remain the holder of its share of the Principal
Debt for all purposes under the Loan Documents, (v) Borrower and Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's Rights and obligations under the Loan Documents, and (vi)
such Lender shall be solely responsible for any withholding Taxes or any filing
or reporting requirements relating to such participation and shall hold Borrower
and Administrative Agent and their respective successors, permitted assigns,
officers, directors, employees, agents, and representatives harmless against the
same. Participants shall have no Rights under the Loan Documents, other than
certain voting Rights as provided below. Subject to the following, each Lender
shall be entitled to obtain (on behalf of its Participants) the benefits of
Section 4 with respect to all participations in its part of the Obligation
outstanding from time to time, so long as Borrower shall not be obligated to pay
any amount in excess of the amount that would be due to such Lender under
Section 4 calculated as though no participations have been made. No Lender shall
sell any participating interest under which the Participant shall have any
Rights to approve any amendment, modification, or waiver of any Loan Document,
except to the extent such amendment, modification, or waiver extends the due
date for payment of any amount in respect of principal (other than mandatory
prepayments), interest, or fees due under the Loan Documents, reduces the
interest rate or the amount of principal or fees applicable to the Obligation
(except such reductions as are contemplated by the Loan Documents), or releases
all or any substantial portion of the Guaranties or all or any substantial
portion of the Collateral for the Obligation under the Loan Documents (except
such releases of Guaranties or Collateral as are contemplated in Section 6.5);
provided that, in those cases where a Participant is entitled to the benefits of
Section 4 or a Lender grants Rights to its Participants to approve amendments to
or waivers of the Loan Documents respecting the matters previously described in
this sentence, such Lender must include a voting mechanism in the relevant
participation agreement or agreements, as the case may be, whereby a majority of
such Lender's portion of the Obligation (whether held by such Lender or
Participant) shall control the vote for all of such Lender's portion of the
Obligation. Except in the case of the sale of a participating interest to
another Lender, the relevant participation agreement shall not permit the
Participant to transfer, pledge, assign, sell participations in, or otherwise
encumber its portion of the Obligation, unless the consent of the transferring
Lender (which consent will not be unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this Agreement,
any Lender may, without notice to, or the consent of Borrower or Administrative
Agent, at any time assign and pledge all or any portion of its Borrowings and
its Revolver Notes (to the extent any Principal Debt owed to such assigning
Lender is evidenced by a Revolver Note or Revolver Notes) to any Federal Reserve
Bank as collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank or any Lender which is a fund may pledge all
or any portion of its Borrowings and its Revolver Notes (to the extent any
Principal Debt owed to such assigning Lender is evidenced by a Revolver Note or
Revolver Notes) to any trustee or to any other representative of holders of
obligations owed or securities issued by such fund as security for such
obligations or securities; provided that any transfer to any Person upon the
enforcement of such pledge or security interest may only be made subject to this
Section 13.13. No such assignment or pledge shall release the assigning Lender
from its obligations hereunder.
(g) Any Lender may furnish any information concerning the Loan Parties
and Subsidiaries thereof in the possession of such Lender from time to time to
Eligible Assignees and Participants (including prospective Eligible Assignees
and Participants) and to counterparties under a Financial Hedge issued by a
Lender or an Affiliate of a Lender to the extent permitted by the Loan
Documents.
13.14. Discharge only upon Payment in Full; Reinstatement in Certain
Circumstances. The obligations of each Loan Party under the Loan Documents shall
remain in full force and effect until termination of the Total Commitment,
payment in full of the Principal Debt and of all interest, fees, and other
amounts of the Obligation then due and owing, and expiration of all LCs, except
that Sections 4, 11, and 13, and any other provisions under the Loan Documents
expressly intended to survive by the terms hereof or by the terms of the
applicable Loan Documents, shall survive such termination. If at any time any
payment of the principal of or interest on any Revolver Note or any other amount
payable by any Loan Party under any Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy, or
reorganization of such Loan Party or otherwise, the obligations of each Loan
Party under the Loan Documents with respect to such payment shall be reinstated
as though such payment had been due but not made at such time.
13.15. Restatement of Existing Credit Agreement/No Novation. The parties
hereto agree that, on the Effective Date, after all conditions precedent set
forth in Section 7.1 have been satisfied or waived: (a) the Obligation (as
defined herein) represents, among other things, the amendment, extension,
consolidation, and modification of the "Obligation" (as defined in each of the
Existing Credit Agreement); (b) this Agreement is intended to, and does hereby,
restate, consolidate, renew, extend, amend, modify, supersede, and replace the
Existing Credit Agreement in its entirety; (c) the Revolver Notes, if any,
executed pursuant to this Agreement amend, renew, extend, modify, replace,
substitute for, and supersede in their entirety (but do not extinguish, the Debt
arising under) the promissory Revolver Notes issued pursuant to the Existing
Credit Agreement, if any, which existing promissory notes shall be returned to
Administrative Agent promptly after the Effective Date, marked "canceled and
replaced," and, thereafter, delivered by Administrative Agent to Borrower; (d)
the Guaranties executed pursuant to this Agreement are intended to, and do
hereby, restate, renew, extend, amend, modify, supersede, and replace any
guaranties executed and delivered pursuant to the Existing Credit Agreement; (e)
the Security Agreements executed pursuant to this Agreement are intended to, and
do hereby, restate, renew, extend, amend, modify, supersede, and replace and
pledge or security agreements executed and delivered pursuant to the Existing
Credit Agreement; and (f) the entering into and performance of their respective
obligations under the Loan Documents and the transactions evidenced hereby do
not constitute a novation nor shall they be deemed to have terminated,
extinguished, or discharged the indebtedness under the Existing Credit Agreement
or the collateral security therefor, all of which indebtedness and collateral
security shall continue under and be governed by this Agreement and the other
Loan Documents.
[SIGNATURE PAGES FOLLOW]
Signature Page to that certain Second Amended, Restated, and Consolidated
Revolving Credit Agreement dated as of the date first stated above, among ▇▇▇▇▇▇
Operating Co., L.L.C., as Borrower, LCPI as Administrative Agent, and certain
Lenders named therein.
EXECUTED to be effective as of the Effective Date.
▇▇▇▇▇▇ OPERATING CO., L.L.C.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Manager
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
AS ADMINISTRATIVE AGENT AND AS LENDER
By: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.,
AS LENDER
By: [ILLEGIBLE SIGNATURE]
Name: [Illegible Signature]
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
AS LENDER
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
SCHEDULE 2.1
LENDERS AND COMMITMENTS
COMMITTED SUM UNDER
LENDER THE REVOLVER FACILITY
▇▇▇▇▇▇ Commercial Paper Inc. $10,000,000
Bear ▇▇▇▇▇▇▇ Corporate Lending Inc. $10,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. $10,000,000
SCHEDULE 7.1
CONDITIONS PRECEDENT TO EFFECTIVENESS
This Agreement and the related Loan Documents shall not become effective
unless Administrative Agent has received all of the following (unless otherwise
indicated, all documents shall be dated as of September 26, 2003, and all terms
used with their initial letters capitalized are used herein with their meanings
as defined in the Agreement), each in form and substance satisfactory to the
Administrative Agent:
1. This Agreement. This Agreement (together with all Schedules and Exhibits
thereto) executed by Borrower, each Lender and the Administrative Agent.
2. Assignment of Revolver Commitments. The Revolver Commitments of the
Revolver Lenders constituting Required Lenders under the Existing Credit
Agreement shall have been assigned to LCPI in accordance with the Global
Assignment and Acceptance Agreement dated as of September 26, 2003 among LCPI
and each such Revolver Lender and LCPI shall have assigned one-third of such
assigned Revolver Commitments to BSCL and MSSF pursuant to an Assignment and
Acceptance Agreement.
3. Agency and Collateral Assignment and Release. The Assignment and Release
Agreement dated as of September 26, 2003 executed by LCPI, Bank of America N.A.,
the Borrower and each Guarantor together with satisfaction of all conditions
specified therein.
4. Communications New Bond Debt. Communications shall received gross
proceeds of $650,000,000 from the issuance of the New Bond Debt and made a
capital contribution and subordinated loan (which is subordinated to the
Obligation in accordance with Section 9.29(c)(i)) (as may be evidenced by a
certificate of an officer of the Borrower) to the Borrower in an amount
sufficient, when aggregated with available cash of the Borrower, to pay all
Loans and other amounts outstanding under the Existing Credit Agreement.
5. Payment of Amounts under the Existing Credit Agreement. Payment of all
Loans, accrued interest, fees and expenses and all other amounts payable to the
Lenders and the Retiring Administrative Agent under the Existing Credit
Agreement pursuant to a pay-off letter from the Retiring Administrative Agent
addressed to the Borrower.
6. Sources and Uses. A detailed statement of the sources and uses of all
funds to be received and applied by Communications and each of its applicable
Subsidiaries in connection with the proposed refinancing and repurchase of
certain outstanding Debt and preferred stock.
7. Other Documents. Such other agreements, documents, instruments,
opinions, certificates, and evidences as Administrative Agent may reasonably
request.
SCHEDULE 7.3(a)
CONDITIONS PRECEDENT TO INITIAL BORROWING
No Lender shall be obligated to advance the initial Borrowing on or after
the Effective Date unless Administrative Agent has received all of the following
(all terms used with their initial letters capitalized are used herein with
their meanings as defined in the Agreement), each in form and substance
satisfactory to the Administrative Agent:
1. Revolver Notes. With respect to any Lender requesting Revolver Notes
pursuant to Section 3.1(b), each of the Revolver Notes, payable to the order of
each applicable Lender, as contemplated in Section 3.1(b).
2. Guaranty and Security Confirmations. Confirmations (the "Confirmations")
executed by each of the Borrower, Communications, each Guarantor that each
Guaranty, Security Document and other Loan Document to which it is a party shall
continue in full force and effect with respect to the Obligations and the Credit
Agreement notwithstanding the amendment and restatement thereof.
3. (a) Organizational Documents. Copies of the Articles of Incorporation,
Certificate of Incorporation, or Articles of Organization and all amendments
thereto of Borrower, each Guarantor, and each Restricted Subsidiary of Borrower
(other than any Restricted Subsidiary or Guarantor that is a partnership), each
accompanied by a certificate that such copy is correct and complete, one dated a
Current Date (as used herein, the term "Current Date" means any date not more
than 30 days prior to the date of initial Borrowing on or after the Effective
Date), issued by the appropriate Governmental Authority of the jurisdiction of
organizations of each such entity, and one dated the Effective Date, executed by
the President, Vice President, General Manager, or Assistant General Manager (as
applicable) and the Secretary or Assistant Secretary of each such entity.
(b) Bylaws/Operating Agreements. A copy of the Operating Agreement or
Bylaws, and all amendments thereto, of Borrower, each Guarantor, and each
Restricted Subsidiary of Borrower (other than any Restricted Subsidiary or
Guarantor that is a partnership), accompanied by a certificate that such copy is
correct and complete, dated the Effective Date, and executed by the President,
Vice President, General Manager, or Assistant General Manager (as applicable)
and the Secretary or Assistant Secretary of each such entity.
(c) Good Standing and Authority. Certificates of the appropriate
Governmental Authorities of such jurisdictions as Administrative Agent may
designate, each dated a Current Date, to the effect that Borrower is in good
standing with respect to the payment of franchise and similar Taxes (to the
extent such information is available) and is duly qualified to transact business
in such jurisdiction.
(d) Incumbency. Certificates of incumbency dated as of the Effective
Date with respect to all managers, officers, or partners of each Company and
Guarantor who will be authorized to execute or attest to any of the Loan
Documents on behalf of such Company or Guarantor.
(e) Resolutions. Copies of resolutions duly adopted by the Board of
Managers or Board of Directors of each Company and Guarantor, approving this
Agreement and the other Loan Documents and authorizing the transactions
contemplated in such Loan Documents, accompanied by a certificate of the
Secretary or an Assistant Secretary of each such Company and Guarantor, dated as
of the Effective Date, certifying that such copy is a true and correct copy of
resolutions duly adopted at a meeting, or by the unanimous written consent, of
(if permitted by applicable Law and, if required by such Law, by its Bylaws or
Operating Agreement), the Board of Managers or Board of Directors of each such
Company and Guarantor, and that such resolutions constitute all the resolutions
adopted with respect to such transactions, have not been amended, modified, or
revoked in any respect, and are in full force and effect as of the Effective
Date.
4. (a) Opinion of Counsel to the Companies. An updated opinion of counsel
to the Companies and Guarantors, addressed to Administrative Agent and Lenders,
substantially in the form of Exhibit G-1.
(b) Opinion of New York Counsel to the Companies. An updated opinion
of New York counsel to the Companies and Guarantors, addressed to Administrative
Agent and Lenders, substantially in the form of Exhibit G-2.
(c) Opinion of Special Regulatory Counsel to the Companies. An updated
opinion of special regulatory counsel to the Companies, addressed to
Administrative Agent and Lenders, substantially in the form of Exhibit G-3.
(d) Local Counsel Opinion. Such other updated opinions of local and
foreign counsel, addressed to Administrative Agent and Lenders, as
Administrative Agent may request, in the form reasonably requested by
Administrative Agent.
5. Agency and Collateral Assignment and Release; Perfection of Liens. Bank
of America, N.A. and each Loan Party shall have satisfied all its respective
obligations required to be performed by LCPI under the Assignment and Release
Agreement dated as of September 26, 2003 executed by LCPI, Bank of America,
N.A., the Borrower and each Guarantor, together with satisfaction of all
conditions specified therein, including (without limitation) (i) delivery to the
Administrative Agent of executed UCC Assignments of all Financing Statements and
assignments of all intellectual property filings previously executed and
delivered by Borrower and each Guarantor as debtor, in favor of LCPI as
Administrative Agent, as secured party on behalf of Lenders, (ii) delivery to
Administrative Agent of all Possessory Collateral referred to therein, including
Pledged Shares and Collateral Notes (as such terms are defined in the Pledge,
Assignment, and Security Agreement), together with executed blank stock powers
for each Pledged Share certificate delivered and executed allonge endorsements
for each Collateral Note delivered, all in form acceptable to Administrative
Agent. LCPI as successor Administrative Agent shall (on behalf of the Lenders)
have the benefit of all Collateral Documents and Guarantees and shall be
satisfied that it has a first priority perfected Lien on all the Collateral.
6. Consents, Filings, Etc. Evidence satisfactory to Administrative Agent
and its counsel that the Companies and Guarantors have received all approvals,
authorizations, consents, and waivers of any Governmental Authority or other
Person necessary or appropriate for the execution, delivery, and performance by
Borrower and any Guarantor of this Agreement and all other Loan Documents.
7. Insurance. Evidence that the Collateral is insured (including flood
insurance) in such amounts, against such risks, with such deductibles, and with
such insurers as may be satisfactory to Administrative Agent with loss payable
to Administrative Agent, on behalf of Lenders, as their interests may appear,
together with certificates evidencing such insurance (containing a standard
mortgagee clause) with appropriate endorsements to satisfy Section 9.8 of the
Agreement.
8. Updated Schedules. Updated versions of the Schedules 8.2, 8.3, 8.15,
9.13, 9.20 and 9.30 to the Credit Agreement, reflecting matters as of the date
of initial Borrowing made on or after the Effective Date, the accuracy of which
shall be represented and warranted by the Borrower and which updated Schedules
shall be in form and substance satisfactory to the Required Lenders.
9. Other Documents. Such other agreements, documents, instruments,
opinions, certificates, and evidences as Administrative Agent may reasonably
request.