AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
DATED AS OF OCTOBER 26, 2001
AMONG
FOCAL COMMUNICATIONS CORPORATION,
FOCAL FINANCIAL SERVICES, INC.
CERTAIN SUBSIDIARIES OF FOCAL COMMUNICATIONS CORPORATION,
AS GUARANTORS,
VARIOUS LENDERS,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
AS JOINT LEAD ARRANGER AND SYNDICATION AGENT,
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
AS JOINT LEAD ARRANGER,
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT,
AND
BANK OF AMERICA, N.A.,
AS DOCUMENTATION AGENT
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$325,000,000 SENIOR SECURED CREDIT FACILITIES
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TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS AND INTERPRETATION................................................... 2
1.1. Definitions............................................................... 2
1.2. Accounting Terms.......................................................... 38
1.3. Interpretation, etc....................................................... 39
SECTION 2. LOANS ........................................................................... 39
2.1. Senior Loans.............................................................. 39
2.2. Holdings Term Loans. ..................................................... 42
2.3. Pro Rata Shares; Availability of Funds.................................... 42
2.4. Use of Proceeds........................................................... 43
2.5. Evidence of Debt; Register; Lenders' Books and Records; Notes............. 44
2.6. Interest on Loans......................................................... 44
2.7. Conversion/Continuation................................................... 46
2.8. Default Interest.......................................................... 47
2.9. Fees...................................................................... 47
2.10. Scheduled Payments/Commitment Reductions................................. 48
2.11. Senior Loans - Voluntary Prepayments/Commitment Reductions............... 51
2.12. Mandatory Prepayments/Commitment Reductions.............................. 53
2.13. Application of Prepayments/Reductions.................................... 55
2.14. Charging of Accounts..................................................... 56
2.15. General Provisions Regarding Payments.................................... 56
2.16. Receipt of Payments...................................................... 57
2.17. Making or Maintaining Eurodollar Rate Loans.............................. 58
2.18. Increased Costs; Capital Adequacy........................................ 60
2.19. Taxes; Withholding, etc.................................................. 61
2.20. Obligation to Mitigate................................................... 63
2.21. Defaulting Lenders....................................................... 64
2.22. Removal or Replacement of a Lender....................................... 65
SECTION 3. CONDITIONS PRECEDENT........................................................... 66
3.1. A. Effective Date........................................................ 66
3.2. Conditions to Each Credit Extension....................................... 70
SECTION 4. REPRESENTATIONS AND WARRANTIES................................................... 71
4.1. Organization; Requisite Power and Authority; Qualification................ 71
4.2. Capital Stock and Ownership............................................... 72
(i)
4.3. Due Authorization......................................................... 72
4.4. No Conflict............................................................... 72
4.5. Governmental Consents..................................................... 72
4.6. Binding Obligation........................................................ 73
4.7. Historical Financial Statements........................................... 73
4.8. Projections............................................................... 73
4.9. No Material Adverse Change................................................ 73
4.10. No Restricted Junior Payments............................................ 73
4.11. Adverse Proceedings, etc................................................. 73
4.12. Payment of Taxes......................................................... 74
4.13. Properties............................................................... 74
4.14. Environmental Matters.................................................... 75
4.15. No Defaults.............................................................. 75
4.16. Material Contracts....................................................... 75
4.17. Governmental Regulation.................................................. 75
4.18. Margin Stock............................................................. 75
4.19. Employee Matters......................................................... 76
4.20. Employee Benefit Plans................................................... 76
4.21. Solvency................................................................. 77
4.22. Compliance with Statutes, etc. ......................................... 77
4.23. Disclosure............................................................... 77
4.24. Dark Fiber Subsidiary.................................................... 77
4.25. Existing Credit Agreement................................................ 77
4.26. Effective Date Transaction Documents..................................... 78
SECTION 5. AFFIRMATIVE COVENANTS............................................................ 78
5.1. Financial Statements and Other Reports.................................... 78
5.2. Existence................................................................. 82
5.3. Payment of Taxes and Claims............................................... 83
5.4. Maintenance of Properties................................................. 83
5.5. Insurance................................................................. 83
5.6. Books and Records; Inspections; Lenders Meetings.......................... 84
5.7. Compliance with Laws...................................................... 84
5.8. Ownership of Telecommunications Assets.................................... 84
5.9. Environmental............................................................. 85
5.10. Subsidiaries............................................................. 86
5.11. Material Real Estate Assets.............................................. 87
5.12. Interest Rate Protection................................................. 87
5.13. Intercompany Transactions................................................ 87
5.14. Further Assurances. .................................................... 87
(ii)
5.15. Certain Post-Closing Obligations......................................... 88
SECTION 6. NEGATIVE COVENANTS .............................................................. 90
6.1. Indebtedness.............................................................. 90
6.2. Liens..................................................................... 91
6.3. No Further Negative Pledges............................................... 93
6.4. Restricted Payments; Restrictions on Subsidiary Distributions............. 93
6.5. Investments............................................................... 95
6.6. Stage 1 Financial Covenants............................................... 96
6.7. Stage 2 Financial Covenants............................................... 97
6.8. Fundamental Changes; Disposition of Assets; Acquisitions.................. 98
6.9. Disposal of Subsidiary Interests.......................................... 99
6.10. Sales and Lease-Backs.................................................... 99
6.11. Sale or Discount of Receivables.......................................... 99
6.12. Transactions with Shareholders and Affiliates............................ 99
6.13. Conduct of Business...................................................... 100
6.14. Amendments or Waivers with respect to Related Agreements,
Holdings Permitted Debt and Effective Date Transaction Documents................. 100
6.15. Disposition of Licenses, etc............................................. 101
6.16. Fiscal Year.............................................................. 101
SECTION 7. GUARANTY ....................................................................... 101
7.1. Guaranty.................................................................. 101
7.2. Contribution by Guarantors................................................ 102
7.3. Payment by Guarantors..................................................... 103
7.4. Liability of Guarantors Absolute.......................................... 103
7.5. Waivers by Guarantors..................................................... 105
7.6. Guarantors' Rights of Subrogation, Contribution, etc...................... 106
7.7. Subordination of Other Obligations........................................ 107
7.8. Continuing Guaranty....................................................... 107
7.9. Authority of Guarantors or Holdings or Company............................ 107
7.10. Financial Condition of Company........................................... 107
7.11. Bankruptcy, etc.......................................................... 108
7.12. Discharge of Guaranty Upon Sale of Guarantor............................. 108
SECTION 7A. SUBORDINATION.................................................................... 109
7A. Obligations owing to Holdings Term Loan Lenders Subordinate to
Obligations owing to all other Beneficiaries..................................... 109
(iii)
SECTION 8. EVENTS OF DEFAULT................................................................ 115
8.1. Events of Default......................................................... 115
8.2. Limited Holdings Term Loan Event of Default............................... 118
SECTION 9. AGENTS........................................................................... 119
9.1. Appointment of Agents..................................................... 119
9.2. Powers and Duties......................................................... 120
9.3. General Immunity.......................................................... 120
9.4. Agents Entitled to Act as Lender.......................................... 121
9.5. Lenders' Representations, Warranties and Acknowledgment................... 121
9.6. Right to Indemnity........................................................ 121
9.7. Successor Administrative Agent............................................ 122
9.8. Collateral Documents and Guaranty......................................... 123
9.9. Application of Proceeds................................................. 123
SECTION 10. MISCELLANEOUS................................................................... 124
10.1. Notices.................................................................. 124
10.2. Expenses................................................................. 124
10.3. Indemnity................................................................ 125
10.4. Set-Off.................................................................. 126
10.5. Amendments and Waivers................................................... 126
10.6. Successors and Assigns; Participations................................... 129
10.6A Assignments of Holdings Term Loans....................................... 133
10.7. Independence of Covenants................................................ 135
10.8. Survival of Representations, Warranties and Agreements................... 136
10.9. No Waiver; Remedies Cumulative........................................... 136
10.10. Marshaling; Payments Set Aside.......................................... 136
10.11. Severability............................................................ 136
10.12. Entire Agreement........................................................ 136
10.13. Obligations Several; Independent Nature of Lenders' Rights.............. 137
10.14. Headings................................................................ 137
10.15. APPLICABLE LAW.......................................................... 137
10.16. CONSENT TO JURISDICTION................................................. 137
10.17. WAIVER OF JURY TRIAL.................................................... 138
10.18. Confidentiality......................................................... 138
10.19. Usury Savings Clause.................................................... 139
10.20. Counterparts; Effectiveness; Acknowledgment by Existing Lenders......... 139
(iv)
APPENDICES: A-1 Outstanding Tranche A Revolving Loans as of the
Effective Date
A-2 Tranche A Revolving Commitments
A-3 Tranche B Revolving Commitments
A-4 Outstanding Delayed Draw Term Loan as of the Effective
Date
A-5 Holdings Term Loan Commitments
B Notice Addresses
SCHEDULES: 1 Effective Date Transaction Documents
3.1(e) Certain Governmental Authorizations
4.1 Jurisdictions of Organization and Qualification
4.2 Capital Stock and Ownership
4.5 Governmental Authorization and Consents
4.7 Contingent Liabilities
4.13(b) Real Estate Assets
4.13(c) Effective Date Landlord Personal Property Collateral
Access Agreements
4.16 Material Contracts
4.17 Governmental Regulation
5.15(a) Certain Material Contracts being collaterally assigned
5.15(b) Certain Agreements requiring Acknowledgment Letters
6.1 Certain Indebtedness
6.2 Certain Liens
6.5 Certain Investments
6.6(a) Stage 1 Minimum Revenues
6.6(b) Stage 1 Minimum Access Lines
6.6(c) Stage 1 Minimum Consolidated EBITDA
6.6(f) Stage 1 and 2 Maximum Consolidated Capital Expenditures
6.7(a) Stage 2 Senior Leverage Ratio
6.7(b) Stage 2 Total Leverage Ratio
6.7(c) Stage 2 Interest Coverage Ratio
6.7(d) Stage 2 Fixed Change Coverage Ratio
6.12 Certain Affiliate Transactions
(v)
EXHIBITS: A-1 Funding Notice
A-2 Conversion/Continuation Notice
B-1 Delayed Draw Term Loan Note
B-2 Tranche A Revolving Note
B-3 Tranche B Revolving Note
B-4 Holdings Term Loan Note
C Compliance Certificate
D Opinions of Counsel
E-1 Assignment Agreement
E-2 Holdings Term Loan Assignment Agreement
F Certificate Re Non-Bank Status
G-1 Effective Date Certificate
G-2 Solvency Certificate
H Counterpart Agreement
I Master Pledge and Security Agreement
J Landlord Personal Property Collateral Access Agreement
K Requisite Funding Certificates
L Acknowledgment Letter
M Approved Lease Agreement
N Intercompany Loan Agreement
(vi)
AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
This AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT, dated as of
October 26, 2001, is entered into by and among
FOCAL COMMUNICATIONS CORPORATION,
a Delaware corporation ("HOLDINGS"), FOCAL FINANCIAL SERVICES, INC., a Delaware
corporation ("COMPANY"), CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors, the
Lenders party hereto from time to time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
("GSCP"), as a Joint Lead Arranger (in such capacity, a "JOINT LEAD ARRANGER"),
and as Syndication Agent (in such capacity,"SYNDICATION AGENT"), ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. ("SSB"), as a Joint Lead Arranger (in such capacity, a "JOINT LEAD
ARRANGER"), CITICORP USA, INC. ("CUSA"), as Administrative Agent and Collateral
Agent (together with its permitted successors in such capacity,"ADMINISTRATIVE
AGENT") and as Collateral Agent (together with its permitted successor in such
capacity, "COLLATERAL AGENT"), and BANK OF AMERICA, N.A., ("BANK OF AMERICA"),
as Documentation Agent (in such capacity,"DOCUMENTATION AGENT").
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the
respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, the Credit Parties, certain financial institutions (the
"EXISTING LENDERS"), the Joint Lead Arrangers, Syndication Agent, Documentation
Agent and Administrative Agent are parties to that certain
Credit and Guaranty
Agreement dated as of August 25, 2000 (as heretofore amended, supplemented or
otherwise modified prior to the date hereof, the "EXISTING CREDIT AGREEMENT"),
pursuant to which the Existing Lenders agreed to extend certain credit
facilities to Company, the proceeds of which were used to provide purchase money
financing for the hard costs associated with the construction, acquisition or
improvement of Telecommunications Assets by Company;
WHEREAS, Company secured all of its obligations under the Existing
Credit Agreement by granting to Collateral Agent, for the benefit of Secured
Parties, a First Priority Lien on (i) all Telecommunications Assets financed
with the proceeds of Loans made under the Existing Credit Agreement to Company
and (ii) to the extent permitted under the terms of the Holdings Senior Notes,
substantially all of its other assets (subject to certain permitted exceptions);
WHEREAS, Guarantors guaranteed the obligations of Company under the
Existing Credit Agreement and secured their respective guaranty obligations by
granting to Collateral Agent, for the benefit of Secured Parties, a First
Priority Lien to the extent permitted under the terms of the Holdings Senior
Notes, on substantially all of their assets (subject to certain permitted
exceptions);
WHEREAS, on the Effective Date, the aggregate Commitments available
under the Existing Credit Agreement shall be increased by $100,000,000 being the
Holdings Term Loan Commitments to be made available hereunder by the Holdings
Term Loan Lenders and borrowed in full on the Effective Date;
WHEREAS, on the Effective Date, (i) Holdings intends to consummate the
Effective Date Preferred Stock Issuance and the Exchange and (ii) Holdings
intends to borrow the Holdings Term Loans in full (each of (i) and (ii) being
referred to herein as the "EFFECTIVE DATE TRANSACTIONS");
WHEREAS, Company desires that Lenders agree to amend and restate the
Existing Credit Agreement in its entirety to provide for the Effective Date
Transactions, to evidence the resignation of Citibank, N.A. and the appointment
of Citicorp USA, Inc. as successor Administrative Agent and Collateral Agent,
and to make certain other amendments to the Existing Credit Agreement;
WHEREAS, it is the intent of the parties hereto that this Agreement not
constitute a novation of the obligations and liabilities of the parties under
the Existing Credit Agreement and that this Agreement amend and restate in its
entirety the Existing Credit Agreement and re-evidence the Obligations of
Company and each other Credit Party outstanding thereunder; and
WHEREAS, it is the intent of Credit Parties to confirm that all
Obligations of Credit Parties under the other Credit Documents, as amended
hereby, shall continue in full force and effect and that, from and after the
Effective Date, all references to the "CREDIT AGREEMENT" contained therein shall
be deemed to refer to this Agreement as amended, restated, supplemented or
otherwise modified from time to time.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree to amend and
restate the Existing Credit Agreement in its entirety as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS. The following terms used herein, including in the
preamble, recitals, exhibits and schedules hereto, shall have the following
meanings:
"ACCESS LINES" shall mean the total number of installed DS-O
business lines (or the equivalent thereof) that are being used to provide
service to a customer of Company and its Subsidiaries, including "on-net" and
"unbundled network elements".
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate
Determination Date with respect to an Interest Period for a Eurodollar Rate
Loan, the rate per annum obtained by dividing (and rounding upward to the next
whole multiple of 1/100 of 1%) (i) (a) the rate per annum (rounded to the
2
nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be
the offered rate which appears on the page of the Telerate Screen which displays
an average British Bankers Association Interest Settlement Rate (such page
currently being page number 3740 or 3750, as applicable) for deposits (for
delivery on the first day of such period) with a term equivalent to such period
in Dollars, determined as of approximately 11:00 a.m. (London, England time) on
such Interest Rate Determination Date, or (b) in the event the rate referenced
in the preceding clause (a) does not appear on such page or service or if such
page or service shall cease to be available, the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to be
the offered rate on such other page or other service which displays an average
British Bankers Association Interest Settlement Rate for deposits (for delivery
on the first day of such period) with a term equivalent to such period in
Dollars, determined as of approximately 11:00 a.m. (London, England time) on
such Interest Rate Determination Date, or (c) in the event the rates referenced
in the preceding clauses (a) and (b) are not available, the rate per annum
(rounded to the nearest 1/100 of 1%) equal to the offered quotation rate to
first class banks in the London interbank market by Citibank, N.A. for deposits
(for delivery on the first day of the relevant period) in Dollars of amounts in
same day funds comparable to the principal amount of the applicable Loan of
Administrative Agent, in its capacity as a Lender, for which the Adjusted
Eurodollar Rate is then being determined with maturities comparable to such
period as of approximately 11:00 a.m. (London, England time) on such Interest
Rate Determination Date, by (ii) an amount equal to (a) one MINUS (b) the
Applicable Reserve Requirement.
"ADMINISTRATIVE AGENT" as defined in the preamble hereto.
"ADVERSE PROCEEDING" means any action, suit, proceeding
(whether administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Holdings or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority,
domestic or foreign (including any Environmental Claims), whether pending or, to
the knowledge of Holdings or any of its Subsidiaries, threatened in writing,
against or affecting Holdings or any of its Subsidiaries or any property of
Holdings or any of its Subsidiaries.
"AFFECTED LENDER" as defined in Section 2.17(b).
"AFFECTED LOANS" as defined in Section 2.17(b).
"AFFILIATE" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having
ordinary voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities or by contract or otherwise.
Neither any Agent nor any Lender
3
shall be deemed Affiliates of any Credit Party, by virtue of the security
interests granted under the Pledge and Security Agreement.
"AGENT" means each of the Joint Lead Arrangers, Syndication
Agent, Administrative Agent, Documentation Agent and Collateral Agent.
"AGGREGATE AMOUNTS DUE" as defined in Section 10.6(j).
"AGGREGATE PAYMENTS" as defined in Section 7.2.
"AGREEMENT" means prior to the Effective Date, the Existing
Credit Agreement, and on and after the Effective Date, this Amended and Restated
Credit and Guaranty Agreement as it may be amended, restated, supplemented or
otherwise modified from time to time.
"ANNUALIZED CONSOLIDATED EBITDA" means, as of any date of
determination, Consolidated EBITDA for the most recently completed Fiscal
Quarter multiplied by four.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means a percentage per
annum, determined by reference to the Facilities Usage from time to time as set
forth below:
--------------------------------------------------------
APPLICABLE COMMITMENT
FACILITIES USAGE FEE PERCENTAGE
--------------------------------------------------------
LESS THAN 1/3 1.50%
--------------------------------------------------------
GREATER THAN OR EQUAL TO 1/3 1.00%
LESS THAN 2/3
--------------------------------------------------------
GREATER THAN OR EQUAL TO 2/3 0.75%
--------------------------------------------------------
"APPLICABLE MARGIN" means (i) with respect to Loans that are Eurodollar
Rate Loans (a) from the Closing Date until the date of delivery of the
Compliance Certificate and related financial statements confirming that Holdings
and its Subsidiaries have achieved positive Annualized Consolidated EBITDA,
3.50%, per annum; and (b) thereafter, a percentage, per annum, determined by
reference to the Total Leverage Ratio in effect from time to time as set forth
below:
--------------------------------------------------------
TOTAL LEVERAGE
RATIO APPLICABLE MARGIN
--------------------------------------------------------
GREATER THAN OR EQUAL TO 15.0:1.00 3.25%
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4
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TOTAL LEVERAGE
RATIO APPLICABLE MARGIN
--------------------------------------------------------
LESS THAN 15.0:1.00 3.00%
GREATER THAN OR EQUAL TO 12.5:1.00
--------------------------------------------------------
LESS THAN 12.5:1.00 2.75%
GREATER THAN OR EQUAL TO 10.0:1.00
--------------------------------------------------------
LESS THAN 10.0:1.00 2.50%
GREATER THAN OR EQUAL TO 7.5:1.00
--------------------------------------------------------
LESS THAN 7.5:1.00 2.25%
GREATER THAN OR EQUAL TO 5.0:1.00
--------------------------------------------------------
LESS THAN 5.0:1.00 2.00%
--------------------------------------------------------
and (ii) with respect to Loans that are Base Rate Loans, an amount equal to the
difference of (a) the Applicable Margin for Eurodollar Rate Loans as set forth
in clause (i)(a) or (i)(b) above, as applicable, minus (b) 1.00% per annum. No
change in the Applicable Margin shall be effective until (x) three Business Days
after the date on which Administrative Agent shall have received the applicable
financial statements and a Compliance Certificate pursuant to Section 5.1(c)
calculating the Total Leverage Ratio or (y) the date of the acquisition in
respect of which the Administrative Agent shall have received the financial
information and Compliance Certificate pursuant to clause (v) of the definition
of Permitted Acquisition calculating the Total Leverage Ratio. At any time
Company has not submitted to Administrative Agent the applicable information as
and when required under Section 5.1(c), the Applicable Margin shall be
determined as if the Total Leverage Ratio were in excess of 15.0:1.00. Within
one Business Day of receipt of the applicable information under Section 5.1(c),
Administrative Agent shall give each Lender telefacsimile or telephonic notice
(confirmed in writing) of the Applicable Margin in effect from such date.
"APPLICABLE RESERVE REQUIREMENT" means, at any time, for any
Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which
reserves (including, without limitation, any basic marginal, special,
supplemental, emergency or other reserves) are required to be maintained with
respect thereto against "Eurocurrency liabilities" (as such term is defined in
Regulation D) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or other applicable banking regulator.
Without limiting the effect of the foregoing, the Applicable Reserve Requirement
shall reflect any other reserves required to be maintained by such member banks
with respect to (i) any category of liabilities which includes deposits by
reference to which the applicable Adjusted Eurodollar Rate or any other interest
rate of a Loan is to be determined, or (ii) any category of extensions of credit
or other assets which include Eurodollar Rate Loans. A Eurodollar Rate Loan
shall be deemed to constitute Eurocurrency liabilities and as such shall be
deemed subject to reserve requirements without benefits of credit for proration,
exceptions or offsets that may be available from time to time to the applicable
Lender. The rate
5
of interest on Eurodollar Rate Loans shall be adjusted automatically on and as
of the effective date of any change in the Applicable Reserve Requirement.
"APPROVED LEASE AGREEMENT" means an agreement substantially in
the form of Exhibit M entered by Company and a Subsidiary of Company pursuant to
Section 5.13.
"ASSET SALE" means a sale, lease or sublease (as lessor or
sublessor), sale and leaseback, assignment, conveyance, transfer or other
disposition to, or any exchange of property with, any Person (other than Company
or a Guarantor), in one transaction or a series of transactions, of all or any
part of Holdings's or any of its Subsidiaries' businesses, assets or properties
of any kind, whether real, personal, or mixed and whether tangible or
intangible, whether now owned or hereafter acquired, including, without
limitation, the Capital Stock of any of Holdings' Subsidiaries, other than (i)
inventory (or other assets) sold or leased in the ordinary course of business,
including fiber capacity sales in the ordinary course of business, (ii)
disposals of obsolete, worn out or surplus property, (iii) sales of assets
(other than Telecommunications Assets financed with the proceeds of Loans) for
aggregate consideration of less then $1,000,000 with respect to any transaction
or series of related transactions and less than $10,000,000 in the aggregate
during the term of this Agreement, (iv) transfers and dispositions consisting of
Permitted Liens, (v) payments permitted under Section 6.4 and (vi) Investments
permitted under Section 6.5.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement
substantially in the form of EXHIBIT E-1, with such amendments or modifications
as may be approved by Administrative Agent.
"AUTHORIZED OFFICER" means, as applied to any Person, any
individual holding the position of chairman of the board (if an officer), chief
executive officer, president or one of its vice presidents (or the equivalent
thereof), and such Person's chief financial officer or treasurer.
"BANK OF AMERICA" as defined in the preamble hereto.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy," as now and hereafter in effect, or any successor
statute.
"BASE RATE" means, for any day, a rate per annum (rounded to
the nearest 1/100 of 1%) equal to the greater of (i) the Prime Rate in effect on
such day and (ii) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"BASE RATE LOAN" means a Loan bearing interest at a rate
determined by reference to the Base Rate.
6
"BENEFICIARY" means each Agent, Lender and Lender
Counterparty.
"BUSINESS DAY" means (i) any day excluding Saturday, Sunday
and any day which is a legal holiday under the laws of the State of
New York or
is a day on which banking institutions located in such state are authorized or
required by law or other governmental action to close and (ii) with respect to
all notices, determinations, fundings and payments in connection with the
Adjusted Eurodollar Rate or any Eurodollar Rate Loans, the term "BUSINESS DAY"
shall mean any day which is a Business Day described in clause (i) and which is
also a day for trading by and between banks in Dollar deposits in the London
interbank market.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of
all expenditures of any Person during such period that, in accordance with GAAP,
are or should be included in "purchase of property and equipment" or similar
items reflected in the statement of cash flows of such Person. Notwithstanding
the foregoing, the term "Capital Expenditures" shall not include capital
expenditures in respect of the reinvestment of Net Asset Sale Proceeds or Net
Insur ance/Condemnation Proceeds made in accordance with Sections 2.12(a) or
(b).
"CAPITAL LEASE" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase or
other arrangements or rights to acquire any of the foregoing.
"CASH" means money, currency or a credit balance in any demand
or Deposit Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
any investment in direct obligations of the United States of America or any
agency thereof or obligations guaranteed by the United States of America or any
agency thereof, in each case with a term of not more than one year, (ii)
investments in time deposit accounts, term deposit accounts, certificates of
deposit, money-market deposits, bankers' acceptances and obligations maturing
within one year of the date of acquisition thereof issued by a bank or trust
company which is organized under the laws of the United States of America or any
state thereof, and which bank or trust company has, or the obligation of which
bank or trust company is guaranteed by a bank or trust company which has,
capital, surplus and undivided profits aggregating in excess of $150,000,000 and
has outstanding debt which is rated "A" (or such similar equivalent rating) or
higher by at least one "nationally recognized statistical rating organization"
(as defined in Rule 436 under the Securities Act) or any money-market fund
sponsored by a registered broker dealer or mutual fund
7
distributor, (iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i) above entered
into with a bank meeting the qualifications described in clause (ii) above, (iv)
investments in commercial paper, maturing not more than 180 days after the date
of acquisition, issued by a corporation (other than an Affiliate of Holdings)
organized and in existence under the laws of the United States of America with a
rating at the time as of which any investment therein is made of "P- 1" (or
higher) according to ▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P, (v)
investments in securities with maturities of six months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth, territory or
province of the United States of America or by any political subdivision or
taxing authority thereof, and rated at least "A" by S&P or "A-2" by ▇▇▇▇▇'▇, and
(vi) other debt obligations maturing in 365 days or less issued by a corporation
(other than an Affiliate of Holdings) organized under the laws of the United
States or any state thereof and rated at least "A-" by S&P or "A3" by ▇▇▇▇▇'▇.
"CERTIFICATE RE NON-BANK STATUS" means a certificate
substantially in the form of EXHIBIT F.
"CHANGE OF CONTROL" means, at any time, (i) any Person or
"group" (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act)
other than Permitted Holders (a) shall have acquired beneficial ownership of 30%
or more on a fully diluted basis of the voting and/or economic interest in the
Capital Stock of Holdings or (b) shall have obtained the power (whether or not
exercised) to elect a majority of the members of the board of directors (or
similar governing body) of Holdings; (ii) Holdings shall cease to beneficially
own and control 100% on a fully diluted basis of the economic and voting
interest in the Capital Stock of Company; (iii) Permitted Holders shall cease to
own and control, directly and of record, more than 20% of the issued and
outstanding common stock on a fully diluted basis (after giving effect to the
conversion of the Common Stock Equivalents held by such Permitted Holders) of
Holdings; (iv) the majority of the seats (other than vacant seats) on the board
of directors (or similar governing body) of Company cease to be occupied by
Persons who either (a) were members of the board of directors of Company on the
Closing Date or (b) were nominated for election by the board of directors of
Company, a majority of whom were directors on the Closing Date or whose election
or nomination for election was previously approved by a majority of such
directors; or (v) the occurrence of a "change of control" or any similar event
however defined under the terms of any Permitted Holdings Debt having a
principal amount in excess of $5,000,000 requiring the prepayment, redemption or
offer to repurchase of any such Permitted Holdings Debt.
"CLASS" means (i) with respect to Lenders, each of the
following classes of Lenders: (a) Lenders having Tranche A Revolving Exposure,
(b) Lenders having Tranche B Revolving Exposure, (c) Lenders having Delayed Draw
Term Loan Exposure, and (d) Lenders having Holdings Term Loan Exposure and (ii)
with respect to Loans, each of the following classes of Loans: (a) Tranche A
Revolving Loans, (b) Tranche B Revolving Loans, (c) Delayed Draw Term Loans, and
(d) Holdings Term Loans.
8
"CLOSING DATE" means August 25, 2000.
"COLLATERAL" means, collectively, all of the real, personal
and mixed property (including Capital Stock) in which Liens are purported to be
granted pursuant to the Collateral Documents as security for any of the
Obligations.
"COLLATERAL ACCESS DEPOSIT" shall have the meaning assigned to
that term in Section 5.15(a).
"COLLATERAL ACCESS DEPOSIT ACCOUNT" means the account numbered
62-8872-70-7 maintained at La Salle Bank, National Association (or such
successor account approved by the Administrative Agent) pursuant to the
Collateral Access Deposit Agreement in the name of "Focal Communications CUSA
Securities Control Account" in connection with the Collateral Access Deposits.
"COLLATERAL ACCESS DEPOSIT AGREEMENT" means the agreement
relating to the Collateral Access Deposit Account dated as of October 24, 2001
and entered into by CUSA, La Salle Bank, National Association and Holdings as
amended, restated, supplemented, or otherwise modified from time to time.
"COLLATERAL AGENT" as defined in the preamble hereto.
"COLLATERAL DOCUMENTS" means each of the Pledge and Security
Agreements, the Landlord Personal Property Collateral Access Agreements, the
Collateral Access Deposit Agreement and all other instruments, documents and
agreements delivered by any Credit Party pursuant to this Agreement or any of
the other Credit Documents in order to grant to Collateral Agent, for the
benefit of Secured Parties, a Lien on any real, personal or mixed property of
that Credit Party as security for the Obligations, in each case, as amended,
restated, supplemented or otherwise modified from time to time.
"COMMITMENT" means the commitments of Lenders to make Loans as
set forth in Sections 2.1(a) and 2.2 of this Agreement. The amount of each
Lender's Commitment is set forth on Appendix A or in the applicable Assignment
Agreement and is subject to any adjustment or reduction pursuant to the terms
and conditions hereof.
"COMMON STOCK EQUIVALENT" shall mean any security or
obligation which is by its terms convertible, exchangeable or exerciseable into
shares of Common Stock or another Common Stock Equivalent, and any option,
warrant or other subscription or purchase right with respect to Common Stock.
"COMPANY" as defined in the preamble hereto.
9
"COMPLIANCE CERTIFICATE" means a Compliance Certificate
substantially in the form of EXHIBIT C.
"CONSOLIDATED EBITDA" means, for any period, an amount
determined for Holdings and its Subsidiaries on a consolidated basis equal to
(i) the sum, without duplication, of the amounts for such period of (a)
Consolidated Net Income, (b) Consolidated Interest Expense, (c) provisions for
taxes based on income and to the extent otherwise deducted in calculating
Consolidated Net Income, (i) franchise taxes and (ii) capital gains taxes, (d)
total depreciation expense, (e) total amortization expense, and (f) other
non-Cash items reducing Consolidated Net Income (excluding any such non-Cash
item to the extent that it represents an accrual or reserve for potential Cash
items in any future period or amortization of a prepaid Cash item that was paid
in a prior period), MINUS (ii) other non-Cash items increasing Consolidated Net
Income for such period (excluding any such non-Cash item to the extent it
represents the reversal of an accrual or reserve for potential Cash item in any
prior period), all of the foregoing as determined in conformity with GAAP.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of all Capital Expenditures of Holdings and its Subsidiaries during
such period determined on a consolidated basis, in accordance with GAAP.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense for such period, excluding any amount not payable
in Cash.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of
determination, the total assets of Holdings and its Subsidiaries on a
consolidated basis that may properly be classified as current assets in
conformity with GAAP, excluding Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Holdings and its Subsidiaries on a
consolidated basis that may properly be classified as current liabilities in
conformity with GAAP, excluding the current portion of long term debt.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an
amount (if positive) equal to: (i) the sum, without duplication, of the amounts
for such period of (a) Consolidated EBITDA (after adding back any amounts
deducted in determining Consolidated Net Income for such period that was paid,
incurred or accrued in violation of any of the provisions of this Agreement),
and (b) the Consolidated Working Capital Adjustment (determined without regard
to any amounts that violate any of the provisions of this Agreement), MINUS (ii)
the sum, without duplication, of the amounts for such period of (a) voluntary
and scheduled repayments of Consolidated Total Debt (excluding repayments of
Revolving Loans except to the extent the Commitments are permanently reduced in
connection with such repayment), to the extent permitted by the provisions of
this Agreement, (b) to the extent expressly permitted hereunder, voluntary
repayments of Holdings Term Loans, (c) Consolidated Capital Expenditures (net of
any proceeds of any
10
related financings with respect to such expenditures), to the extent permitted
by the provisions of this Agreement, (d) Consolidated Cash Interest Expense, to
the extent permitted by the provisions of this Agreement, and (e) provisions for
current taxes based on income of Holdings and its Subsidiaries and payable in
cash with respect to such period.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum,
without duplication, of the amounts determined for Holdings and its Subsidiaries
on a consolidated basis equal to (i) Consolidated Cash Interest Expense and (ii)
scheduled principal payments on Consolidated Total Debt.
"CONSOLIDATED GROSS PP&E" means, as at any date of
determination, the total assets of Holdings and its Subsidiaries on a
consolidated basis that may properly be classified, in conformity with GAAP, as
property, plant, equipment or similar items reflected on the consolidated
balance sheet of Holdings and its Subsidiaries.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Holdings and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness of Holdings
and its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs under Interest Rate Agreements, but excluding, however, for all
purposes other than calculating Consolidated EBITDA, (i) all interest accruing
and unpaid on any Holdings Term Loans and (ii) any amounts referred to in
Section 2.9 payable on or before the Effective Date.
"CONSOLIDATED NET INCOME" means, for any period, (i) the net
income (or loss) of Holdings and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP, MINUS, (ii) (a) the income (or loss) of any Person (other than a
Subsidiary of Holdings) in which any other Person (other than Holdings or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Holdings or any of its
Subsidiaries by such Person during such period, (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Holdings or is
merged into or consolidated with Holdings or any of its Subsidiaries or that
Person's assets are acquired by Holdings or any of its Subsidiaries, (c) the
income of any Subsidiary of Holdings to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (d) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension Plan, and
(e) (to the extent not included in clauses (a) through (d) above) any net
extraordinary gains or net extraordinary losses.
"CONSOLIDATED SENIOR SECURED DEBT" means, as at any date of
determination, Consolidated Total Debt EXCLUDING unsecured Indebtedness of
Holdings.
11
"CONSOLIDATED TOTAL DEBT" means, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness
(other than Holdings Term Loans) of Holdings and its Subsidiaries determined on
a consolidated basis in accordance with GAAP less the amount of any funds
escrowed for the purpose of paying interest on such Indebtedness.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of
determination, the excess of Consolidated Current Assets over Consolidated
Current Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any
period on a consolidated basis, the amount (which may be a negative number) by
which Consolidated Working Capital as of the end of such period exceeds (or is
less than) Consolidated Working Capital as of the beginning of such period.
"CONTRACTUAL OBLIGATION" means, as applied to any Person, any
provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
"CONTRIBUTING GUARANTORS" as defined in Section 7.2.
"CONVERSION/CONTINUATION DATE" means the effective date of a
continuation or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"CONVERSION/CONTINUATION NOTICE" means a
Conversion/Continuation Notice substantially in the form of EXHIBIT A-2.
"COUNTERPART AGREEMENT" means a Counterpart Agreement
substantially in the form of EXHIBIT H.
"CREDIT DATE" means the date of a Credit Extension.
"CREDIT DOCUMENT" means any of this Agreement, the Notes, the
Collateral Documents and all other documents, instruments or agreements executed
and delivered by a Credit Party for the benefit of Agents, or any Lender in
connection herewith, including Hedge Agreements with any Lender Counterparty, in
each case as may be amended, supplemented or otherwise modified from time to
time.
"CREDIT EXTENSION" means the making of a Loan.
"CREDIT PARTY" means each Person (other than any Agent, any
Lender or any Lender Counterparty or any other representative thereof) from time
to time party to a Credit Document.
12
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement, each of which is for the purpose of
hedging the foreign currency risk associated with Holdings' or its Subsidiaries'
operations.
"CUSA" as defined in the preamble hereto.
"DARK FIBER SUBSIDIARY" means one or more special purpose
Subsidiaries of Company designated as such by Company and approved by the
Syndication Agent whose sole purpose and business shall be the entry into of
dark fiber Capital Leases and the Related Company Agreements.
"DEFAULT" means a condition or event that, after notice or
lapse of time or both, would constitute an Event of Default.
"DEFAULT EXCESS" means, with respect to any Defaulting Lender,
the excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Revolving Loans of all Lenders (calculated as if
all Defaulting Lenders (other than such Defaulting Lender) had funded all of
their respective Defaulted Loans) over the aggregate outstanding principal
amount of all Revolving Loans of such Defaulting Lender.
"DEFAULT PERIOD" as defined in Section 2.21.
"DEFAULTING LENDER" as defined in Section 2.21.
"DEFAULTED LOAN" as defined in Section 2.21.
"DELAYED DRAW TERM LOAN EXPOSURE" means, with respect to any
Lender as of any date of determination, the outstanding principal amount of the
Delayed Draw Term Loans of such Lender.
"DELAYED DRAW TERM LOAN INSTALLMENT" as defined in Section
2.10(b).
"DELAYED DRAW TERM LOAN MATURITY DATE" means the earlier of
(i) August 25, 2007 and (ii) the date that all Delayed Draw Term Loans shall
become due and payable in full hereunder, whether by acceleration or otherwise.
"DELAYED DRAW TERM LOAN NOTE" means a promissory note in the
form of EXHIBIT B-1, as it may be amended, restated, supplemented or otherwise
modified from time to time.
"DELAYED DRAW TERM LOANS" means any Delayed Draw Term Loans
made by a Lender to Company pursuant to Section 2.1(a)(ii) of this Agreement.
13
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DISCOUNT NOTES" means the $270,000,000 12.125% Senior
Discount Notes due 2008 of Holdings as amended by the supplemental indenture
executed in respect thereof in connection with the Exchange and becoming
effective on the Effective Date.
"DOCUMENTATION AGENT" as defined in the preamble hereto.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DOMESTIC SUBSIDIARY" means with respect to any Person, any
Subsidiary of such Person organized under the laws of the United States of
America, any State thereof or the District of Columbia.
"DS-O" means the standard telecommunications industry digital
signal format having a bit rate of up to 64 kilobits per second.
"EFFECTIVE DATE" means the date on or before November 30, 2001
on which the conditions set forth in Section 3.1 have being satisfied, or waived
in accordance with Section 10.5.
"EFFECTIVE DATE CERTIFICATE" means an Effective Date
Certificate substantially in the form of EXHIBIT G-1.
"EFFECTIVE DATE PREFERRED STOCK ISSUANCE" means the issuance
and sale on the Effective Date by Holdings of 50,000 shares of newly created
Series A Redeemable Voting Convertible Preferred Stock for $50,000,000 in cash
to the Holdings Term Loan Lenders as of the Effective Date.
"EFFECTIVE DATE TRANSACTIONS" has the meaning assigned to that
term in the Recitals to this Agreement.
"EFFECTIVE DATE TRANSACTION DOCUMENTS" means each of the
documents listed on Schedule 1, in each case, as amended, restated, supplemented
or otherwise modified from time to time hereto in accordance with the terms
hereof.
"ELIGIBLE ASSIGNEE" means (i) any Lender, any Affiliate of any
Lender and any Related Fund (any two or more Related Funds being treated as a
single Eligible Assignee for all purposes hereof), and (ii) any commercial bank,
insurance company, investment or mutual fund or other entity or trust that is an
"accredited investor" (as defined in Regulation D under the Securities Act) and
which extends credit
14
or buys loans as one of its businesses; PROVIDED, no Affiliate of Holdings or
any direct competitor of Holdings or any of its Subsidiaries shall be an
Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is or was sponsored, maintained or
contributed to by, or required to be contributed by, Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice
of violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Governmental Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future
foreign or domestic, federal or state (or any subdivision of either of them),
statutes, ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of Governmental
Authorities relating to (i) environmental matters, including those relating to
any Hazardous Materials Activity; (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials; or (iii) occupational safety
and health, industrial hygiene, land use or the protection of human, plant or
animal health or welfare, in any manner applicable to Holdings or any of its
Subsidiaries or any Facility.
"EQUIPMENT SUBSIDIARY" means Focal Equipment Finance, LLC or
any other one or more special purpose Subsidiaries of Company designated as such
by Company and approved by the Syndication Agent whose sole purpose and business
shall be the purchase of Telecommunica tions Assets for sale or other transfer
to Company (pursuant to a sale and repurchase agreement or such other agreement
as appropriate, in each case, in form and substance satisfactory to the
Syndication Agent and Administrative Agent) within 180 days of such purchase.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member. Any former ERISA Affiliate of Holdings or any of
its Subsidiaries shall continue to be
15
considered an ERISA Affiliate of Holdings or any such Subsidiary within the
meaning of this definition with respect to the period such entity was an ERISA
Affiliate of Holdings or such Subsidiary and with respect to liabilities arising
after such period for which Holdings or such Subsidiary could be liable under
the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision for 30-day
notice to the PBGC has been waived by regulation); (ii) the failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section
412(d) of the Internal Revenue Code) or the failure to make by its due date a
required installment under Section 412(m) of the Internal Revenue Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (iii) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate
such plan in a distress termination described in Section 4041(c) of ERISA; (iv)
the withdrawal by Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates from any Pension Plan with two or more contributing sponsors or
the termination of any such Pension Plan resulting in liability pursuant to
Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefor, or the
receipt by Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
occurrence of an act or omission which could give rise to the imposition on
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates of
fines, penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071
of ERISA in respect of any Employee Benefit Plan, which could reasonably be
expected to have a Material Adverse Effect; (ix) the assertion of a material
claim (other than routine claims for benefits) against any Employee Benefit Plan
other than a Multiemployer Plan or the assets thereof, or against Holdings, any
of its Subsidiaries or any of their respective ERISA Affiliates in connection
with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of
notice of the failure of any Pension Plan (or any other Employee Benefit Plan
intended to be qualified under Section 401(a) of the Internal Revenue Code) to
qualify under Section 401(a) of the Internal Revenue Code, or the failure of any
trust forming part of any Pension Plan to qualify for exemption from taxation
under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a
Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
16
"EURODOLLAR RATE LOAN" means a Loan (other than any Holdings
Term Loan) bearing interest at a rate determined by reference to the Adjusted
Eurodollar Rate.
"EVENT OF DEFAULT" means each of the conditions or events set
forth in Section 8.1.
"EXCESS EQUITY PROCEEDS AMOUNT" means, as of any date of
determination, the aggregate net Cash proceeds received by Holdings from all
issuances of common or pay-in-kind preferred equity Securities issued after the
Effective Date (excluding, subject to the proviso below, the proceeds of the
Effective Date Transactions), LESS twice the amount of any Capital Expenditures
previously made with net cash proceeds from such issuances pursuant to the
proviso set forth in Section 6.6(f); PROVIDED that the excess over $150 million
of the aggregate proceeds of (x) the cash convertible preferred equity
contributions to Holdings pursuant to the Effective Date Preferred Stock
Issuance, and (y) the Holdings Term Loans made on the Effective Date shall, 90
days following the Effective Date, to the extent not utilized to repurchase
Holdings Senior Notes pursuant to Section 6.4(a)(vi) or if irrevocably
designated during such period as being unavailable for such purpose, be
construed as giving rise on a dollar for dollar basis to Excess Equity Proceeds
Amount;
"EXCHANGE" means the exchange on or prior to the Effective
Date of not less than $256 million in total in aggregate accreted principal
amount of the Discount Notes and aggregate principal amount of Senior Notes for
common stock of the Holdings on terms set out in the proxy statement dated
September 27, 2001 and pursuant to documentation which complies with Section
3(a)(9) of the Securities Act and is otherwise reasonably satisfactory to the
Syndication Agent and Administrative Agent.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXISTING CREDIT AGREEMENT" has the meaning assigned to that
term in the Recitals to this Agreement.
"EXISTING DELAYED DRAW TERM LOANS" has the meaning assigned to
that term in Section 2.1(a)(ii).
"EXISTING LENDERS" has the meaning assigned to that term in
the Recitals to this Agreement.
"EXISTING REVOLVING LOANS" has the meaning assigned to that
term in Section 2.1(a)(i)A.
"FACILITIES USAGE" means a fraction, calculated as of the last
day of each Fiscal Quarter the numerator of which is equal to the average daily
Total Utilization of Revolving Commitments and the
17
denominator of which is equal to the average daily aggregate Revolving
Commitments of all Lenders during such Fiscal Quarter (or portion thereof.)
"FACILITY" means any real property (including all buildings,
fixtures or other improvements located thereon) now, hereafter or heretofore
owned, leased, operated or used by Holdings or any of its Subsidiaries or any of
their respective predecessors or Affiliates.
"FAIR SHARE CONTRIBUTION AMOUNT" as defined in Section 7.2.
"FAIR SHARE" as defined in Section 7.2.
"FAIR SHARE SHORTFALL" as defined in Section 7.2.
"FCC" means the Federal Communications Commission or any
successor United States Governmental Authority exercising similar regulatory and
jurisdictional authority.
"FEDERAL FUNDS EFFECTIVE RATE" means for any day, the rate per
annum (expressed, as a decimal, rounded upwards, if necessary, to the next
higher 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of
New York on the Business Day next succeeding such day; PROVIDED, (i) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (ii) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be
the average rate charged to Administrative Agent, in its capacity as a Lender,
on such day on such transactions as determined by Administrative Agent.
"FINANCIAL OFFICER CERTIFICATION" means, with respect to the
financial statements for which such certification is required, the certification
of the chief financial officer or treasurer of Holdings that such financial
statements fairly present, in all material respects, the financial condition of
Holdings and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject (in the case
of unaudited financial statements) to changes resulting from audit and normal
year-end adjustments and the absence of footnotes.
"FINANCIAL PLAN" as defined in Section 5.1(i).
"FIRST PRIORITY" means, with respect to any Lien purported to
be created in any Collateral pursuant to any Collateral Document, that such Lien
is the only Lien to which such Collateral is subject, other than Permitted
Liens.
18
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Holdings and its
Subsidiaries ending on December 31 of each calendar year.
"FIXED CHARGE COVERAGE RATIO" means the ratio as of the last
day of any Fiscal Quarter of (i) Annualized Consolidated EBITDA, to (ii)
Consolidated Fixed Charges for the then- ending four-Fiscal Quarter Period.
"FLOOD HAZARD PROPERTY" means any Real Estate Asset subject to
a mortgage in favor of Administrative Agent, for the benefit of Lenders, and
located in an area designated by the Federal Emergency Management Agency as
having special flood or mudslide hazards.
"FOREIGN SUBSIDIARY" means, with respect to any Person, any
Subsidiary that is not a Domestic Subsidiary.
"FREE CASH FLOW" means Consolidated EBITDA for the
twelve-month period most recently ended prior to the date of determination LESS
the sum of (i) Consolidated Capital Expenditures made during such period, (ii)
cash taxes paid or payable with respect to such period, determined on a
consolidated basis for the entity being acquired, (iii) Consolidated Cash
Interest Expense, and (iv) scheduled principal payments on Consolidated Total
Debt.
"FUNDING DEFAULT" as defined in Section 2.21.
"FUNDING GUARANTORS" as defined in Section 7.2.
"FUNDING NOTICE" means a notice substantially in the form of
EXHIBIT A-1 and having attached thereto invoices in respect of all
Telecommunications Assets to be financed with the proceeds of Loans requested
thereby.
"GAAP" means, subject to the limitations on the application
thereof set forth in ▇▇▇▇▇▇▇ ▇.▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ generally accepted accounting
principles in effect as of the date of determination thereof.
"GOVERNMENTAL ACTS" means any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government or
Governmental Authority.
"GOVERNMENTAL AUTHORITY" means any federal, state, municipal,
national or other government, governmental department, commission, board,
bureau, court, agency or instrumentality or political subdivision thereof or any
entity or officer exercising executive, legislative, judicial, regulatory or
19
administrative functions of or pertaining to any government or any court, in
each case whether associated with a state of the United States, the United
States, or a foreign entity or government.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
Governmental Authority.
"GRANTOR" as defined in the Pledge and Security Agreement.
"GSCP" as defined in the preamble hereto.
"GUARANTEED OBLIGATIONS" means the Senior Guaranteed
Obligations and the Holdings Guaranteed Obligations.
"GUARANTOR" means (i) in respect of the Senior Guaranteed
Obligations, each of Holdings and each Domestic Subsidiary of Holdings (other
than Company), and (ii) in respect of the Holdings Guaranteed Obligations,
Company and each other Domestic Subsidiary of Holdings.
"GUARANTOR SUBSIDIARY" means (i) in respect of the Senior
Guaranteed Obligations, each Subsidiary of Holdings (other than Company) that is
a Guarantor, and (ii) in respect of the Holdings Guaranteed Obligations, Company
and each other Domestic Subsidiary of Holdings.
"GUARANTY" means each guaranty of each Guarantor set forth in
Section 7.
"HAZARDOUS MATERIALS" means any chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
Governmental Authority or which may or could pose a hazard to the health and
safety of the owners, occupants or any Persons in the vicinity of any Facility
or to the indoor or outdoor environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current or
proposed activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a
Currency Agreement entered into with a Lender Counterparty in order to satisfy
the requirements of this Agreement or otherwise in the ordinary course of
Holdings' or any of its Subsidiaries' businesses and not for speculative
purposes.
20
"HIGHEST LAWFUL RATE" means the maximum lawful interest rate,
if any, that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to any Lender which are presently in effect
or, to the extent allowed by law, under such applicable laws which may hereafter
be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"HISTORICAL FINANCIAL STATEMENTS" means as of the Effective
Date, (i) the audited financial statements of Holdings and its Subsidiaries, for
the Fiscal Year ended December 31, 2000, consisting of balance sheets and the
related consolidated statements of income, stockholders' equity and cash flows
for such Fiscal Year, and (ii) the unaudited financial statements of Holdings
and its Subsidiaries as at June 30, 2001, consisting of a balance sheet and the
related consolidated statements of income, stockholders' equity and cash flows
for the relevant period since December 31, 2000, ending on such date, and, in
the case of clauses (i) and (ii), certified by the chief financial officer of
Company that they fairly present, in all material respects, the financial
condition of Holdings and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods indicated,
subject to (in the case of the financial statements referred to in clause (ii))
changes resulting from audit and normal year-end adjustments.
"HOLDINGS" as defined in the preamble hereto.
"HOLDINGS GUARANTEED OBLIGATIONS" as defined in Section 7A.
"HOLDINGS OBLIGATIONS" as defined in Section 7A.
"HOLDINGS SENIOR NOTES" means each of (i) the Discount Notes
and (ii) the Senior Notes, in each case as amended by the relevant Supplemental
Indenture following consummation of the Repurchase and the Exchange, and any
refinancing or refunding thereof with the proceeds of Indebtedness meeting the
criteria set forth in clause (iii) of the definition of Permitted Holdings Debt.
"HOLDINGS TERM LOAN" means a Holdings Term Loan made by a
Lender to Holdings pursuant to Section 2.2 of this Agreement.
"HOLDINGS TERM LOAN ASSIGNMENT AGREEMENT" means an agreement
entered into pursuant to Section 10.6A hereof substantially in the form of
Exhibit E-2.
"HOLDINGS TERM LOAN COMMITMENT" means the commitment of a
Holdings Term Loan Lender to make or otherwise fund a Holdings Term Loan to
Holdings and "HOLDINGS TERM LOAN COMMITMENTS" means such commitments of all
Holdings Term Loan Lenders in the aggregate. The amount of each Lender's
Holdings Term Loan Commitment if any, is set forth on Appendix A-5 or in the
21
applicable Holdings Term Loan Assignment Agreement. The aggregate amount of the
Holdings Term Loan Commitments is $100,000,000.
"HOLDINGS TERM LOAN EXPOSURE" means, with respect to any
Lender as of any date of determination the outstanding principal amount of the
Holdings Term Loan of that Lender.
"HOLDINGS TERM LOAN LENDER" each Person having or holding
Holdings Term Loan Exposure.
"HOLDINGS TERM LOAN MATURITY DATE" means the earlier of (i)
December 31, 2007 and (ii) the date that all Holdings Term Loans shall become
due and payable in full hereunder, whether by acceleration or otherwise.
"HOLDINGS TERM LOAN NOTE" means a promissory note in the form
of EXHIBIT B-4, as it may be amended, supplemented or otherwise modified from
time to time.
"INCREASED-COST LENDERS" as defined in Section 2.22.
"INDEBTEDNESS", as applied to any Person, means, without
duplication, (i) all indebtedness for borrowed money; (ii) that portion of
obligations with respect to Capital Leases that is properly classified as a
liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing
obligations for borrowed money; (iv) any obligation owed for all or any part of
the deferred purchase price of property or services (excluding any such
obligations incurred under ERISA and ordinary course trade payables), which
purchase price is (a) due more than six months from the date of incurrence of
the obligation in respect thereof or (b) evidenced by a note or similar written
instrument; (v) all indebtedness secured by any Lien on any property or asset
owned or held by that Person regardless of whether the Indebtedness secured
thereby shall have been assumed by that Person or is nonrecourse to the credit
of that Person; provided that the amount of such Indebtedness shall equal the
lesser of the amount of Indebtedness secured and the fair market value of the
encumbered property; (vi) the face amount of any letter of credit issued for the
account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings; (vii) the direct or indirect guaranty, endorsement
(other than for collection or deposit in the ordinary course of business), co-
making, discounting with recourse or sale with recourse by such Person of the
obligation of another; (viii) any obligation of such Person the primary purpose
or intent of which is to provide assurance to an obligee that the obligation of
the obligor thereof will be paid or discharged, or any agreement relating
thereto will be complied with, or the holders thereof will be protected (in
whole or in part) against loss in respect thereof; and (ix) any liability of
such Person for the obligation of another through any agreement (contingent or
otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (b) to maintain the solvency or any balance sheet
22
item, level of income or financial condition of another if, in the case of any
agreement described under subclauses (a) or (b) of this clause (ix), the primary
purpose or intent thereof is as described in clause (viii) above; and (x)
obligations of such Person in respect of any exchange traded or over the counter
derivative transaction, including, without limitation, any Interest Rate
Agreement or Currency Agreement, whether entered into for hedging or speculative
purposes; PROVIDED, in no event shall obligations under any Interest Rate
Agreement or Currency Agreement or any intercompany guarantees of Holdings
and/or its Subsidiaries be deemed "Indebtedness" for any purpose under Sections
6.6 or 6.7; PROVIDED FURTHER that the amount of any indebtedness described in
clauses (vii), (viii) and (ix) above shall be deemed to be the stated or
determinable amount of the obligations guaranteed or otherwise supported, or if
not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the obligor thereon in good faith.
"INDEFEASIBLY PAID" and "INDEFEASIBLY PAY" mean, with respect
to the making of any payment on or in respect of the Senior Obligations, a
payment of such Senior Obligations in full in cash which is not avoided under
any provisions of the Bankruptcy Code or any provision of laws similar to the
Bankruptcy Code; PROVIDED, HOWEVER, that, notwithstanding the foregoing, the
Senior Obligations shall not be deemed to have been "Indefeasibly Paid" to the
extent that, at any time, any payment (in whole or in part) of any of the Senior
Obligations is invalidated, declared to be fraudulent or preferential, set
aside, rescinded or must otherwise be restored by any Senior Beneficiary,
including upon the occurrence of any Default set forth in Section 8 of this
Agreement or otherwise, all as though such payment had not been made.
"INDEMNIFIED LIABILITIES" means, collectively, any and all
liabilities, obligations, losses, damages (including natural resource damages),
penalties, claims (including Environmental Claims), costs (including the costs
of any investigation, study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove, remediate, clean up or
▇▇▇▇▇ any Hazardous Materials Activity), expenses and disbursements of any kind
or nature whatsoever (including the reasonable fees and disbursements of counsel
for Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a party or a potential party thereto, and any
fees or expenses incurred by Indemnitees in enforcing this indemnity), whether
direct, indirect or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations (including securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner relating
to or arising out of (i) this Agreement or the other Credit Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make Credit Extensions or the use or intended use of the proceeds thereof, or
any enforcement of any of the Credit Documents (including any sale of,
collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranty)); (ii) the statements contained in the commitment
letter delivered by any Lender to Company with respect to the transactions
contemplated by this Agreement; or (iii) any Environmental Claim or any
Hazardous Materials Activity
23
relating to or arising from, directly or indirectly, any past or present
activity, operation, land ownership, or practice of Holdings or any of its
Subsidiaries; PROVIDED that Indemnified Liabilities shall not include
liabilities incurred by a Credit Party pursuant to Section 10.2.
"INDEMNITEE" as defined in Section 10.3.
"INSOLVENCY EVENT" means the occurrence of any event specified
in Sections 8.1(f) or 8.1(g):
"INSTALLMENT DATE" as defined in Section 2.10(a).
"INTERCOMPANY LOAN AGREEMENT" means an agreement in
substantially the form of EXHIBIT N entered into by each Subsidiary of Company
and Company pursuant to Section 5.13.
"INTERCOMPANY SECURITY AGREEMENT" means an agreement
substantially in the form of EXHIBIT O entered into by each Subsidiary of
Holdings and Company pursuant to Section 5.13.
"INTEREST COVERAGE RATIO" means the ratio as of the last day
of any Fiscal Quarter of (i) Consolidated EBITDA for the four-Fiscal Quarter
Period then ended, to (ii) Consolidated Cash Interest Expense for such
four-Fiscal Quarter Period, in each case as set forth in the most recent
Compliance Certificate delivered by Company to Administrative Agent pursuant to
Section 5.1(c).
"INTEREST PAYMENT DATE" means with respect to (i) any Base
Rate Loan, each March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Closing Date and the final
maturity date of such Loan; and (ii) any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan; PROVIDED, in the case of each
Interest Period of longer than three months "Interest Payment Date" shall also
include each date that is three months, or an integral multiple thereof, after
the commencement of such Interest Period.
"INTEREST PERIOD" means, in connection with a Eurodollar Rate
Loan, an interest period of one-, two-, three- or six months, as selected by
Company in the applicable Funding Notice or Conversion/Continuation Notice, (i)
initially, commencing on the Credit Date or Conver sion/Continuation Date
thereof, as the case may be; and (ii) thereafter, commencing on the day on which
the immediately preceding Interest Period expires; PROVIDED, (a) if an Interest
Period would otherwise expire on a day that is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day unless no further
Business Day occurs in such month, in which case such Interest Period shall
expire on the immediately preceding Business Day; (b) any Interest Period that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clauses (c) through (e), of this definition,
end on the last Business Day of a calendar month; (c) no Interest Period with
respect to any portion of any Delayed Draw
24
Term Loans shall extend beyond the Delayed Draw Term Loan Maturity Date; (d) no
Interest Period with respect to any portion of the Tranche A Revolving Loans
shall extend beyond the Tranche A Revolving Commitment Termination Date; and (e)
no Interest Period with respect to any portion of the Tranche B Revolving Loans
shall extend beyond the Tranche B Revolving Commitment Termination Date.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement, each of which
is for the purpose of hedging the interest rate exposure associated with
Holdings' and its Subsidiaries' operations.
"INTEREST RATE DETERMINATION DATE" means, with respect to any
Interest Period, the date that is two Business Days prior to the first day of
such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter, and any
successor statute.
"INVESTMENT" means (i) any direct or indirect purchase or
other acquisition by Holdings or any of its Subsidiaries of, or of a beneficial
ownership interest in, any of the Securities of any other Person (other than a
Guarantor Subsidiary); (ii) any direct or indirect redemption, retirement,
purchase or other acquisition for value, by any Subsidiary of Holdings from any
Person (other than Holdings or any Guarantor Subsidiary), of any Capital Stock
of such Person; and (iii) any direct or indirect loan, advance (other than
advances to employees for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business, trade
payables in the ordinary course and other ordinary course loans and advances not
constituting Indebtedness) or capital contribution by Holdings or any of its
Subsidiaries to any other Person (other than Holdings or any Guarantor
Subsidiary), including all indebtedness and accounts receivable from that other
Person that are not current assets or did not arise from sales to that other
Person in the ordinary course of business. The amount of any Investment shall be
the original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.
"JOINT LEAD ARRANGER" as defined in the preamble hereto.
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership, limited liability
company, or other legal form; PROVIDED, in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to which such
Person is a party.
"LANDLORD PERSONAL PROPERTY COLLATERAL ACCESS AGREEMENT" means
a Landlord Collateral Access Agreement substantially in the form of EXHIBIT J
with such amendments or modifications as may be approved by Administrative Agent
and Syndication Agent in their sole discretion and subject to the terms of
Section 5.15, it being understood that in no event shall Administrative Agent
and Syndication
25
Agent be obligated to approve changes on future Landlord Personal Property
Collateral Access Agreements which have been approved on previous Landlord
Personal Property Collateral Access Agreements.
"LEASEHOLD PROPERTY" means any leasehold interest of any
Credit Party as lessee under any lease of real property.
"LENDER" means each financial institution or other Person that
is or becomes a Lender under this Agreement as of the Effective Date, together
with each such institution's or Person's successors and permitted assigns.
"LENDER COUNTERPARTY" means each Lender or any Affiliate
thereof counterparty to a Hedge Agreement.
"LIEN" means (i) any lien, claim, mortgage, pledge,
assignment, security interest, charge or encumbrance in the nature of the
foregoing, any conditional sale or other title retention agreement, and any
lease in the nature thereof (excluding any agreement entered into in connection
with an Asset Sale permitted hereunder) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing and
(ii) in the case of Securities, any purchase option, call or similar right of a
third party with respect to such Securities.
"LOAN" means a Delayed Draw Term Loan, a Revolving Loan or a
Holdings Term Loan.
"MARGIN STOCK" as defined in Regulation T, U or X of the Board
of Governors of the Federal Reserve System as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(i) the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Holdings and its Subsidiaries (including the
Company), taken as a whole; (ii) the ability of any Credit Party to fully and
timely perform the Obligations in a manner which would not give rise to an Event
of Default or Default hereunder; (iii) the legality, validity, binding effect or
enforceability against a Credit Party of a Credit Document to which it is a
party; (iv) the rights, remedies and benefits available to, or conferred upon,
any Agent and any Lender under any Credit Document; or (v) any material part of
the Collateral or the Collateral Agent's Liens, on behalf of Agents and Lenders
on any material part of the Collateral or the priority of such Liens.
"MATERIAL CONTRACT" means any contract or other arrangement to
which Holdings or any of its Subsidiaries is, at any time, a party (other than
the Credit Documents) for which breach, nonperformance, cancellation or failure
to renew could reasonably be expected to have a Material Adverse Effect,
including without limitation (other than in the case of section 4.16 itself) the
contracts listed on Schedule 4.16.
26
"MATERIAL REAL ESTATE ASSET" means (a) any fee-owned Real
Estate Assets of any Credit Party having a fair market value in excess of
$1,000,000 as of the date of the acquisition thereof, and (b) all other Real
Estate Assets that the Administrative Agent has determined in its reasonable
discretion are material to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Holdings or any Subsidiary
thereof, including Company.
"MOODY'S" means ▇▇▇▇▇'▇ Investor Services, Inc.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is
a "multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means The National Association of Insurance
Commissioners, and any successor thereto.
"NARRATIVE REPORT" means, with respect to the financial
statements for which such narrative report is required (i) a narrative report
(a) describing the operations of Holdings and its Subsidiaries in the form
prepared for presentation to senior management thereof for the applicable month,
Fiscal Quarter or Fiscal Year and for the period from the beginning of the then
current Fiscal Year to the end of such period to which such financial statements
relate and (b) setting forth a comparative report of such actual operations
against the relevant Financial Plan and, in addition (ii) the Form 10K or Form
10Q, if any, filed in connection with such financial statements.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset
Sale, an amount equal to: (i) Cash payments (including any Cash received by way
of deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received by Holdings or any of its
Subsidiaries from such Asset Sale, MINUS (ii) any bona fide direct costs
incurred in connection with such Asset Sale, including (a) income or gains taxes
payable by the seller as a result of any gain recognized in connection with such
Asset Sale, (b) payment of the outstanding principal amount of, premium or
penalty, if any, and interest on any Indebtedness (other than the Loans) that is
secured by a Lien on the stock or assets in question and that is required to be
repaid under the terms thereof as a result of such Asset Sale and (c) a
reasonable reserve for any indemnification payments (fixed or contingent)
attributable to seller's indemnities and representa tions and warranties to
purchaser in respect of such Asset Sale undertaken by Holdings or any of its
Subsidiaries in connection with such Asset Sale.
"NET INSURANCE/CONDEMNATION PROCEEDS" means an amount equal
to: (i) any Cash payments or proceeds received by Holdings or any of its
Subsidiaries (a) under any casualty insurance policy in respect of a covered
loss thereunder or (b) as a result of the taking of any assets of Holdings or
any of its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, MINUS (ii) (a) any
actual and reasonable costs incurred by Holdings or any of its Subsidiaries in
connection with
27
the adjustment or settlement of any claims of Holdings or such Subsidiary in
respect thereof, and (b) any bona fide direct costs incurred in connection with
any sale of such assets as referred to in clause (i)(b) of this definition,
including income or gains taxes payable as a result of any gain recognized in
connection therewith.
"NON-US LENDER" as defined in Section 2.19(c).
"NOTE" means a Tranche A Revolving Note, Tranche B Revolving
Note, Delayed Draw Term Loan Note or a Holdings Term Loan Note, in each case, as
amended, supplemented or otherwise modified from time to time.
"NOTICE" means a Funding Notice or a Conversion/Continuation
Notice.
"NTFC AGREEMENT" means each of the Loan and Security Agreement
dated as of December 30, 1998 between Holdings, NTFC Capital Corporation and
certain subsidiaries of Holdings and all guarantees executed by subsidiaries of
Holdings in connection therewith as amended as of April 15, 2000, November 30,
2000 and the Effective Date and as it may be further amended, restated, modified
or supplemented from time to time in accordance with the terms of Section 6.14.
"OBLIGATIONS" means all obligations of every nature of each
Credit Party from time to time owed to the Agents, the Lenders or any of them or
their respective Affiliates (including, without limitation, all former Agents,
Lenders or Lender Counterparties) under any Credit Document or Hedge Agreement
(including, without limitation, with respect to a Hedge Agreement, obligations
owed thereunder to any person who was a Lender or an Affiliate of a Lender at
the time such Hedge Agreement was entered into), whether for principal, interest
(including interest which, but for the filing of a petition in bankruptcy with
respect to such Credit Party, would have accrued on any Obligation, whether or
not a claim is allowed against such Credit Party for such interest in the
related bankruptcy proceeding), payments for early termination of Hedge
Agreements, fees, expenses, indemnification or otherwise.
"OBLIGEE GUARANTOR" as defined in Section 7.7.
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any
corporation, its certificate or articles of incorporation, as amended, and its
by-laws, as amended, (ii) with respect to any limited partnership, its
certificate of limited partnership, as amended, and its partnership agreement,
as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company,
its certificate of formation or articles of organization, as amended, and its
operating agreement, as amended. In the event any term or condition of this
Agreement or any other Credit Document requires any Organizational Document to
be certified by a secretary of state or similar governmental official, the
reference to any such "Organizational Document" shall only be to a document of a
type customarily certified by such governmental official.
28
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ACQUISITION" means any acquisition by Company or
any of its Wholly- Owned Subsidiaries, whether by purchase, merger or otherwise,
of all or substantially all of the assets of, all of the Capital Stock of, or a
business line or unit or a division of, any Person; PROVIDED,
(i) immediately prior to, and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing or
would result therefrom;
(ii) all transactions in connection therewith shall be
consummated in accordance with all applicable laws and in conformity
with all applicable Governmental Authorizations;
(iii) in the case of the acquisition of Capital Stock, all of
the Capital Stock (except for any such Securities in the nature of
directors' qualifying shares required pursuant to applicable law)
acquired or otherwise issued by such Person or any newly formed
Subsidiary of Company in connection with such acquisition shall be
owned by Company or a Guarantor Subsidiary thereof, and Holdings and
Company shall have taken, or caused to be taken, as of the date such
Person becomes a Subsidiary of Company, each of the actions set forth
in Sections 5.10, as applicable;
(iv) Holdings and its Subsidiaries shall be in compliance
immediately before and after giving pro forma effect to such
acquisition, with Section 6.6 or 6.7, as applicable;
(v) Company shall have delivered to Administrative Agent
(which Administrative Agent shall promptly furnish to the Lenders) (A)
at least 10 Business Days prior to such proposed acquisition, a
Compliance Certificate evidencing pro forma compliance with Section 6.6
or 6.7, as applicable, as required under clause (iv) above, together
with all relevant financial information with respect to such acquired
assets, including, without limitation, the aggregate consideration for
such acquisition and any other information required to demonstrate
compliance with Section 6.6 or 6.7, as applicable; and
(vi) any Person or assets or division acquired in accordance
herewith shall be in the same or substantially related business or
lines of business in which Company and/or its Subsidiaries are engaged,
or (as reflected in the Projections or, as the case may be, the
relevant Financial Plan) are planning to engage, as of the Closing Date
or such other lines of business as may be consented to by Requisite
Lenders.
29
"PERMITTED HOLDERS" means Madison Dearborn Partnership L.P.,
Frontenac VI. L.P. Battery Ventures III, L.P. and Great Hill Equity Partners
Limited Partnership and their respective Affiliates (other than Holding and its
Subsidiaries).
"PERMITTED HOLDINGS DEBT" means (i) the Holdings Senior Notes,
(ii) the Indebtedness of Holdings evidenced by the NTFC Agreement and (iii)
other Indebtedness of Holdings issued after the Effective Date provided (a) such
Indebtedness is unsecured, (b) Holdings is the only obligor with respect to such
Indebtedness, (c)(1) the aggregate principal amount of such Indebtedness does
not exceed 200% of the net cash proceeds received by Holdings from the issuance
of equity Securities after the Effective Date (excluding, for the avoidance of
doubt, any net cash proceeds arising in connection with the Effective Date
Transactions), or (2) amounts outstanding under the Facilities are repaid, and
the Commitments permanently reduced on a dollar-for-dollar basis, with the
proceeds of such Indebtedness, (d) no scheduled repayments of principal with
respect to such Indebtedness are required to be made prior to February 25, 2008,
(e) the terms and provisions of such Indebtedness shall be no more restrictive
than the Holdings Senior Notes (and, with respect to provisions relating to the
incurrence of Indebtedness, guaranties and Liens, reasonably satisfactory to
Syndication Agent in order, inter alia, to expressly permit the Guaranty under
Section 7 hereof without restriction and to permit Liens on the assets of the
Guarantors to secure such Guaranties) and shall not provide for any mandatory
prepayments or redemptions thereof when similar prepayments are not required
under the Holdings Senior Notes, and (f) the documents evidencing such
Indebtedness shall be reasonably satisfactory to Syndication Agent.
"PERMITTED LIENS" means each of the Liens permitted pursuant
to Section 6.2.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and Governmental Authorities.
"PLEDGE AND SECURITY AGREEMENT" means each of: (i) the
"COMPANY PLEDGE AND SECURITY AGREEMENT" being the pledge and security agreement
between Company and the Collateral Agent dated as of the Closing Date; (ii) the
"AMENDED AND RESTATED MASTER PLEDGE AND SECURITY AGREEMENT" being the pledge and
security agreement between each Grantor party thereto and the Collateral Agent
substantially in the form of EXHIBIT I; (iii) the "INTERCOMPANY SECURITY
AGREEMENT" being the security agreement between certain Subsidiaries of Holdings
and Company dated as of the Closing Date and substantially in the form of
EXHIBIT O to the Existing Credit Agreement; in each case as it may be amended,
restated, supplemented or otherwise modified from time to time.
"POST - COMMENCEMENT INTEREST" means all interest accrued or
accruing after the commencement of any Proceeding (and interest that would
accrue but for the commencement of any Proceeding) in accordance with and at the
contract rate (including, without limitation, any rate applicable
30
upon default) specified in the agreement or instrument creating, evidencing or
governing any Senior Obligations, whether or not, pursuant to applicable law or
otherwise, the claim for such interest is allowed as a claim in such Proceeding.
"PRIME RATE" means, as of any date of determination, the
variable the rate of interest per annum most recently publicly announced by
Citibank, N.A. or any successor thereto, as its prime lending rate in effect at
its principal office in
New York City, irrespective of whether such announced
rate is the best rate available from such financial institution, and such
institution may make loans at rates of interest above or below any such
announced prime lending rate.
"PRINCIPAL OFFICE" means, for Administrative Agent, such
Person's "Principal Office" as set forth on APPENDIX B, or such other office as
such Person may from time to time designate in writing to Company,
Administrative Agent and each Lender.
"PROCEEDING" as defined in Section 7A.1(a).
"PROJECTIONS" as defined in Section 4.8.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Tranche A Revolving Commitment or
the Tranche A Revolving Loans of any Lender, the percentage obtained by dividing
(x) the Tranche A Revolving Exposure of that Lender by (y) the aggregate Tranche
A Revolving Exposure of all Lenders, (ii) with respect to all payments,
computations and other matters relating to the Tranche B Revolving Commitment or
the Tranche B Revolving Loans of any Lender, the percentage obtained by dividing
(x) the Tranche B Revolving Exposure of that Lender by (y) the aggregate Tranche
B Revolving Exposure of all Lenders, (iii) with respect to all payments,
computations and other matters relating to the Delayed Draw Term Loans of any
Lender, the percentage obtained by dividing (x) the Delayed Draw Term Loan
Exposure of that Lender by (y) the aggregate Delayed Draw Term Loan Exposure of
all Lenders, (iv) with respect to all payments, computations and other matters
relating to the Holdings Term Loan Commitments or the Holdings Term Loans of any
Lender, the percentage obtained by dividing (x) the Holdings Term Loan Exposure
of that Lender by (y) the sum of the aggregate Holdings Term Loan Exposure of
all Lenders, (v) for all other purposes (other than Section 9.6) with respect to
each Senior Lender, the percentage obtained by dividing (x) the sum of the
Revolving Exposure of that Lender PLUS the Delayed Draw Loan Exposure of that
Lender by (y) the sum of the aggregate Revolving Exposure of all Lenders PLUS
the sum of the aggregate Delayed Draw Term Loan Exposure of all Lenders, in any
such case as the applicable percentage may be adjusted by assignments permitted
pursuant to Section 10.6 and (vi) for the purposes of Section 9.6 only with
respect to each Lender, the percentage obtained by dividing (x) the sum of the
Holdings Term Loan Exposure of that Lender PLUS the Revolving Exposure of that
Lender PLUS the Delayed Draw Loan Exposure of that Lender by (y) the sum of the
aggregate Holdings Term Loan Exposure of all Lenders PLUS the aggregate
Revolving Exposure of all Lenders PLUS the sum of the aggregate Delayed Draw
Term Loan Exposure of all Lenders,
31
in any such case as the applicable percentage may be adjusted by assignments
permitted pursuant to Sections 10.6 or 10.6A as the case may be. The Pro Rata
Share of each Lender as of the Effective Date for purposes of each of clauses
(i) (ii) and (iii) of the preceding sentence is set forth opposite the name of
that Lender in APPENDICES ▇-▇, ▇-▇ ▇▇▇ ▇-▇.
"REAL ESTATE ASSET" means, at any time of determination, any
interest (fee, leasehold or otherwise) then owned by any Credit Party in any
real property.
"REGISTER" as defined in Section 2.5(b).
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"RELATED AGREEMENTS" means (i) the Intercompany Loan
Agreement, (ii) the Intercompany Security Agreement, (iii) each Approved Lease
Agreement, (iv) the IRU Agreement dated as of April 30, 1999 between Level 3
Communications, LLC and the Company, (v) the Fiber Optic Network Leased Fiber
Agreement dated as of May 24, 1999 between Metromedia Fiber Network Services,
Inc. and the Company, (vi) the Master Services Agreement dated April 30, 1999
between ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, (▇▇▇) the Private Line Service
Agreement dated May 3, 1999 between MCI Worldcom and Holdings, (viii) the NTFC
Agreement, and (ix) any agreements in existence as of the Closing Date between
Company and any Subsidiary of Holdings for the lease or otherwise making
available of assets of Company to such Subsidiary.
"RELATED COMPANY AGREEMENTS" means items (iv), (v) and (vi) of
the definition of Related Agreements above.
"RELATED FUND" means, with respect to any Lender that is an
investment fund, any other investment fund that invests in commercial loans and
that is managed or advised by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.
"RELEASE" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of any Hazardous Material into the environment
(including the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Material), including the movement of
any Hazardous Material through the air, soil, surface water or groundwater.
"REPLACEMENT LENDER" as defined in Section 2.22.
32
"REPURCHASE" means the repurchase by Holdings, on August 9,
2001 and October 19, 2001 of $16,304,150 in aggregate accreted principal amount
of the Discount Notes and aggregate principal Senior Notes for cash in an amount
of $4,994,682.
"REQUISITE CLASS LENDERS" means, at any time of determination
(i) for the Class of Lenders having Tranche A Revolving Exposure, Lenders having
or holding at least a majority of the sum of the aggregate Tranche A Revolving
Exposure of all such Lenders, (ii) for the Class of Lenders having Tranche B
Revolving Exposure, Lenders having or holding at least a majority of the sum of
the aggregate Tranche B Revolving Exposure of all such Lenders, (iii) for the
Class of Lenders having Delayed Draw Term Loan Exposure, Lenders having or
holding at least a majority of the sum of the aggregate Delayed Draw Term Loan
Exposure of all Lenders and (iv) for the Class of Lenders having Holdings Term
Loan Exposure Lenders having or holding at least a majority of the sum of the
aggregate Holdings Term Loan Exposure of all such Lenders.
"REQUISITE FUNDING CERTIFICATES" means certificates in the
form of Exhibit K delivered by Company and Holdings pursuant to Section
2.1(b)(ii) and having attached thereto completed and updated Annexes.
"REQUISITE LENDERS" means one or more Lenders having or
holding Tranche A Revolving Exposure, Tranche B Revolving Exposure, Delayed Draw
Term Loan Exposure representing more than 50% of the sum of (i) the aggregate
Tranche A Revolving Exposure of all Lenders, (ii) the aggregate Tranche B
Revolving Exposure of all Lenders and (iii) the aggregate Delayed Draw Term Loan
Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Holdings, Company or any of their respective Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
to the holders of that class; (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock of Holdings, Company or any of their respective
Subsidiaries now or hereafter outstanding; (iii) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock of Holdings, Company or any of their
respective Subsidiaries now or hereafter outstanding; and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in- substance or legal defeasance),
sinking fund or similar payment with respect to, any Permitted Holdings Debt.
"REVENUES" means, for any Fiscal Quarter, the gross revenues
of Holdings and its Subsidiaries on a consolidated basis for such period taken
as a single accounting period determined in conformity with GAAP.
33
"REVOLVING COMMITMENT" means each of the Tranche A Revolving
Commitment and the Tranche B Revolving Commitment and "REVOLVING COMMITMENTS"
means such commitments of all Lenders in the aggregate. The aggregate amount of
the Revolving Commitments as of the Effective Date is $150,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender as of
any date of determination, the sum of (i) such Lender's Tranche A Revolving
Exposure; and (ii) such Lender's Tranche B Revolving Exposure.
"REVOLVING LOANS" means any of the Tranche A Revolving Loans
and Tranche B Revolving Loans made by Lenders to Company pursuant to Section
2.1(a)(i) of this Agreement.
"SSB" as defined in the preamble hereto.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SECURED PARTIES" as defined in the Pledge and Security
Agreement.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SENIOR BENEFICIARIES" means all Beneficiaries other than the
Holdings Term Loan Lenders.
"SENIOR GUARANTEED OBLIGATIONS" as defined in Section 7.1.
"SENIOR COMMITMENTS" means all Commitments other than Holdings
Term Loan Commitments.
"SENIOR LENDERS" means all Lenders other than Holdings Term
Loan Lenders.
34
"SENIOR LEVERAGE RATIO" means the ratio, as of the last day of
any Fiscal Quarter, of (i) Consolidated Senior Secured Debt as of such date to
(ii) Annualized Consolidated EBITDA, in each case as set forth in the most
recent Compliance Certificate delivered by Company to Administrative Agent
pursuant to Section 5.1(c).
"SENIOR LOANS" means all Loans other than Holdings Term Loans.
"SENIOR NOTES" means the Series A and Series B of the
$275,000,000 11.875% Senior Notes Due 2010 of Holdings as amended by the
supplemental indenture executed in respect thereof and becoming effective on the
Effective Date in connection with the Exchange.
"SENIOR OBLIGATIONS" as defined in Section 7A.1
"SOLVENCY CERTIFICATE" means a Solvency Certificate of the
chief financial officer of Holdings substantially in the form of EXHIBIT G-2.
"SOLVENT" means, with respect to any Person, that as of the
date of determination both (i) (a) the sum of such Person's debt (including
contingent liabilities) does not exceed all of its property, at a fair
valuation; (b) the present fair saleable value of the property of such Person is
not less than the amount that will be required to pay the probable liabilities
on such Person's then existing debts as they become absolute and matured; (c)
such Person's capital is not unreasonably small in relation to its business or
any contemplated or undertaken transaction; and (d) such Person does not intend
to incur, or believe (nor should it reasonably believe) that it will incur,
debts beyond its ability to pay such debts as they become due; and (ii) such
Person is "solvent" within the meaning given that term and similar terms under
applicable laws relating to fraudulent transfers and conveyances. For purposes
of this definition, the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability (irrespective of whether such contingent
liabilities meet the criteria for accrual under Statement of Financial
Accounting Standard No. 5).
"STAGE 1" means the period from the Effective Date to but not
including (i) the Holdings Term Loan Maturity Date for the purpose only of
Section 6.6 (f) and (ii) December 31, 2002 for all other purposes.
"STAGE 2" means the period from the first day following the
conclusion of Stage 1 and ending on December 31, 2007.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, limited liability company, association, joint venture
or other business entity of which more than 50% of the total voting power of
shares of stock or other ownership interests entitled (without regard to the
occurrence of
35
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; PROVIDED, in determining the percentage of ownership interests of any
Person controlled by another Person, no ownership interest in the nature of a
"qualifying share" of the controlled Person shall be deemed to be outstanding.
"SYNDICATION AGENT" as defined in the preamble hereto.
"TAX" means any present or future tax, levy, impost, duty,
assessment, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed; PROVIDED, "Tax on the overall net income" of a Person
shall be construed as a reference to a tax imposed by the jurisdiction in which
that Person is organized or in which that Person's applicable principal office
(and/or, in the case of a Lender, its lending office) is located or in which
that Person (and/or, in the case of a Lender, its lending office) is deemed to
be doing business on all or part of the net income, profits or gains (whether
worldwide, or only insofar as such income, profits or gains are considered to
arise in or to relate to a particular jurisdiction, or otherwise) of that Person
(and/or, in the case of a Lender, its applicable lending office) and shall not
include franchise or similar taxes.
"TELECOMMUNICATIONS ASSETS" means all assets, rights
(contractual or otherwise) and properties, real or personal, whether tangible or
intangible, used or intended for use in connection with a Telecommunications
Business.
"TELECOMMUNICATIONS BUSINESS" means the business of (i)
transmitting, or providing services relating to the transmission of, voice,
video or data through owned or leased wireline or wireless transmission
facilities, (ii) creating, developing, constructing, installing, repairing,
maintaining or marketing communications-related systems, network equipment and
facilities, software and other products including, without limitation, Internet
access, Internet portal, web hosting, application hosting, peering and
communication equipment collocation businesses or (iii) evaluating, owning,
operating, participating in or pursuing any other business that is primarily
related to those identified in the foregoing clauses (i) or (ii) above (in the
case of this clause (iii), however, in a manner consistent with Holdings' and
its Subsidiaries' manner of business on the Effective Date), and shall, in any
event, include all businesses in which Holdings or any of its Subsidiaries are
engaged on the Effective Date; PROVIDED that the determination of what
constitutes a Telecommunications Business shall be made in good faith by the
board of directors of Holdings.
"TERM LOAN" means Delayed Draw Term Loans.
"TERMINATED LENDER" as defined in Section 2.22.
36
"TOTAL CAPITALIZATION" means the sum of (a) Consolidated Total
Debt, (b) the principal amount of Holdings Term Loans made on the Effective
Date, and (c) paid-in-equity capital (including preferred stock but excluding
additional equity issued as pay-in-kind dividends on issued and outstanding
equity securities and excluding any accumulated deficits resulting from
operations; it being understood that the amount of paid-in-equity capital
arising from the Exchange shall be included in the calculation of Total
Capitalization PROVIDED HOWEVER if such amount is greater than $150,000,000 such
amount will be limited to $150,000,000).
"TOTAL LEVERAGE RATIO" means the ratio, as of the date of any
determination, of (a) Consolidated Total Debt to (b) Annualized Consolidated
EBITDA; in each case as set forth in the most recent Compliance Certificate
delivered by Company to Administrative Agent pursuant to Section 5.1(c) or, as
the case may be, clause (v) of the definition of Permitted Acquisition.
"TOTAL UTILIZATION OF REVOLVING COMMITMENTS" means, as at any
date of determination, the aggregate principal amount of all outstanding
Revolving Loans.
"TOTAL UTILIZATION OF TRANCHE A REVOLVING COMMITMENTS" means,
as at any date of determination, the aggregate principal amount of all
outstanding Tranche A Revolving Loans.
"TOTAL UTILIZATION OF TRANCHE B REVOLVING COMMITMENTS" means,
as at any date of determination, the aggregate principal amount of all
outstanding Tranche B Revolving Loans.
"TRANCHE A REVOLVING COMMITMENT" means the commitment of a
Lender to make Tranche A Revolving Loans to Company pursuant to subsection
2.1(a)(i)(B), and "TRANCHE A REVOLVING COMMITMENTS" means such commitments of
all Lenders in the aggregate. The amount of each Lender's Tranche A Revolving
Commitment, if any, is set forth in APPENDIX A-2 or in the applicable Assignment
Agreement, subject to any adjustment or reduction pursuant to the terms and
conditions hereof. The aggregate amount of the Tranche A Revolving Commitments
as of the Effective Date is $55,000,000.
"TRANCHE A REVOLVING COMMITMENT PERIOD" means the period
commencing on the Closing Date to but excluding the Tranche A Revolving
Commitment Termination Date.
"TRANCHE A REVOLVING COMMITMENT TERMINATION DATE" means the
earliest to occur of (i) the Tranche A Revolving Maturity Date, (ii) the date
the Tranche A Revolving Commitments are permanently reduced to zero pursuant to
Sections 2.11 or 2.12, and (iii) the date of the termination of the Commitments
pursuant to Section 8.1.
"TRANCHE A REVOLVING EXPOSURE" means, with respect to any
Lender as of any date of determination, (i) prior to the termination of the
Tranche A Revolving Commitments, such Lender's
37
Tranche A Revolving Commitment; and (ii) after the termination of the Tranche A
Revolving Commitments, the sum of the aggregate outstanding principal amount of
the Tranche A Revolving Loans of that Lender.
"TRANCHE A REVOLVING INSTALLMENT" as defined in Section
2.10(a)(i).
"TRANCHE A REVOLVING LOANS" means any Tranche A Revolving
Loans made by Lenders to Company pursuant to Section 2.1(a)(i)(B) of this
Agreement.
"TRANCHE A REVOLVING MATURITY DATE" means the earlier of (i)
August 25, 2007 and (ii) the date that all Tranche A Revolving Loans shall
become due and payable in full hereunder, whether by acceleration or otherwise.
"TRANCHE A REVOLVING NOTE" means a promissory note in the form
of EXHIBIT B-2, as it may be amended, restated, supplemented or otherwise
modified from time to time.
"TRANCHE B REVOLVING COMMITMENT" means the commitment of a
Lender to make Tranche B Revolving Loans to Company pursuant to subsection
2.1(a)(i)(C), and "TRANCHE B REVOLVING COMMITMENTS" means such commitments of
all Lenders in the aggregate. The amount of each Lender's Tranche B Revolving
Commitment, if any, is set forth in APPENDIX A-3 or in the applicable Assignment
Agreement, subject to any adjustment or reduction pursuant to the terms and
conditions hereof. The aggregate amount of the Tranche B Revolving Commitments
as of the Effective Date is $95,000,000.
"TRANCHE B REVOLVING COMMITMENT PERIOD" means the period
commencing on the Closing Date to but excluding the Tranche B Revolving
Commitment Termination Date.
"TRANCHE B REVOLVING COMMITMENT TERMINATION DATE" means the
earliest to occur of (i) the Tranche B Revolving Maturity Date, (ii) the date
the Tranche B Revolving Commitments are permanently reduced to zero pursuant to
Sections 2.11 or 2.12, and (iii) the date of the termination of the Commitments
pursuant to Section 8.1.
"TRANCHE B REVOLVING EXPOSURE" means, with respect to any
Lender as of any date of determination, (i) prior to the termination of the
Tranche B Revolving Commitments, such Lender's Tranche B Revolving Commitment;
and (ii) after the termination of the Tranche B Revolving Commitments, the sum
of the aggregate outstanding principal amount of the Tranche B Revolving Loans
of that Lender.
"TRANCHE B REVOLVING INSTALLMENT" as defined in Section
2.10(a)(ii).
"TRANCHE B REVOLVING LOANS" means any Tranche B Revolving
Loans made by Lenders to Company pursuant to Section 2.1(a)(i)(C) of this
Agreement.
38
"TRANCHE B REVOLVING MATURITY DATE" means the earlier of (i)
August 25, 2007 and (ii) the date that all Tranche B Revolving Loans shall
become due and payable in full hereunder, whether by acceleration or otherwise.
"TRANCHE B REVOLVING NOTE" means a promissory note in the form
of EXHIBIT B-3, as it may be amended, restated, supplemented or otherwise
modified from time to time.
"TRANSACTION COSTS" means the fees, costs and expenses payable
by Company on or before the Effective Date in connection with the transactions
contemplated by the Credit Documents.
"TYPE OF LOAN" means a Base Rate Loan or a Eurodollar Rate
Loan.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation, if any) as in effect in any applicable jurisdiction.
"UNADJUSTED EURODOLLAR RATE COMPONENT" means that component of
the interest costs to Company in respect of a Eurodollar Rate Loan that is based
upon the rate obtained pursuant to clause (i) of the definition of Adjusted
Eurodollar Rate.
"WHOLLY-OWNED SUBSIDIARIES" means, with respect to any Person,
a Subsidiary of such Person all of whose outstanding Capital Stock (other than
directors' qualifying shares, if any) shall at the time be owned by such Person
and/or more of its Wholly Owned Subsidiaries.
1.2. ACCOUNTING TERMS. Except as otherwise expressly provided herein,
all accounting terms not otherwise defined herein shall have the meanings
assigned to them in conformity with GAAP. Financial statements and other
information required to be delivered by Holdings to Lenders pursuant to Section
5.1(a) and 5.1(b) shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in Section 5.1(e), if applicable). Subject to the
foregoing, calculations in connection with the definitions, covenants and other
provisions hereof shall utilize accounting principles and policies in conformity
with those used to prepare the Historical Financial Statements; PROVIDED that,
if Holdings notifies Lenders that it wishes to amend provisions of this
Agreement relating to financial covenants to eliminate the effect of a change in
GAAP occurring after the Closing Date, Holdings and Syndication Agent shall
negotiate in good faith to propose for Requisite Lenders an appropriate
amendment to the extent necessary to give effect to the intention of the parties
as of the Closing Date; PROVIDED FURTHER that, prior to the approval of any such
amendment by Requisite Lenders compliance with such financial covenants shall be
determined on the basis of GAAP as applied by Holdings, in accordance with this
Agreement, immediately prior to such request, in determining compliance with
such financial covenants.
39
1.3. INTERPRETATION, ETC. Any of the terms defined herein may, unless
the context otherwise requires, be used in the singular or the plural, depending
on the reference. References herein to any Section, Appendix, Schedule or
Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the
case may be, hereof unless otherwise specifically provided. The use herein of
the word "include" or "including", when following any general statement, term or
matter, shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to
similar items or matters, whether or not nonlimiting language (such as "without
limitation" or "but not limited to" or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such general statement,
term or matter.
SECTION 2. LOANS
2.1. SENIOR LOANS.
(a) SENIOR LOANS.
(i) (A) EXISTING REVOLVING LOANS. Each Credit Party
and each Lender (severally in respect of the Revolving Loans
held by such Lender) acknowledges and confirms that each
Lender identified on Appendix A-1 holds Revolving Loans (as
defined in and) under the Existing Credit Agreement in the
respective principal amounts outstanding as of the Effective
Date set forth opposite its name on APPENDIX A-1 hereto (such
Revolving Loans, the "EXISTING REVOLVING LOANS"). Each Credit
Party hereby represents, warrants, agrees, covenants and (1)
reaffirms that it is not aware of any defense, set off, claim
or counterclaim against any Agent or Lender in regard to its
Obligations in respect of such Existing Revolving Loans and
(2) reaffirms its obligation to pay such Obligations in
respect of such Existing Revolving Loans in accordance with
the terms and conditions of this Agreement and the other
Credit Documents. Based on the foregoing, (A) Borrower and
each Lender agrees that any principal amounts owed (whether or
not presently due and payable), by Borrower to Existing
Lenders in respect of the Existing Revolving Loans, shall, as
of the Effective Date, be maintained as Tranche A Revolving
Loans hereunder. All interest and fees accrued to the
Effective Date with respect to the Existing Revolving Loans
shall be payable on the next applicable Interest Payment Date
for such Loans. Amounts repaid or prepaid in respect of
Existing Revolving Loans may be repaid and reborrowed pursuant
to Section 2.1(a)(i)B below to but excluding the Tranche A
Revolving Loan Commitment Termination Date.
(B) TRANCHE A REVOLVING LOANS. During the Tranche A
Revolving Commitment Period, subject to the terms and
conditions hereof, each Lender holding a Tranche A Revolving
Commitment severally agrees to make Tranche A Revolving Loans
in the aggregate amount up to but not exceeding such Lender's
Tranche A Revolving Commitment as of the Effective Date,
subject to the requirements of Section 2.4, to Company,
PROVIDED that after giving
40
effect to the making of each Tranche A Revolving Loan, (y) in
no event shall the Total Utilization of Tranche A Revolving
Commitments (including without limitation, any Tranche A
Revolving Loans referred to in Section 2.1(a) which remain
outstanding as of any date of determination) exceed the
Tranche A Revolving Commitments then in effect and (z)
Holdings and Company shall be in compliance, on a pro forma
basis as of the last day of the most recently concluded Fiscal
Quarter, with the financial covenants set forth in Section 6.6
or 6.7, as applicable. Amounts borrowed pursuant to this
Section 2.1(a)(i)(B) may be repaid and reborrowed during the
Tranche A Revolving Commitment Period. Each Lender's Tranche A
Revolving Commitment shall expire on the Tranche A Revolving
Commitment Termination Date and all Tranche A Revolving Loans
and all other amounts owed hereunder with respect to the
Tranche A Revolving Loans and the Tranche A Revolving
Commitments shall be paid in full no later than such date.
(C) TRANCHE B REVOLVING LOANS. During the
Tranche B Revolving Commitment Period, subject to the terms
and conditions hereof, each Lender holding a Tranche B
Revolving Commitment severally agrees to make Tranche B
Revolving Loans in the aggregate amount up to but not
exceeding such Lender's Tranche B Revolving Commitment as of
the Effective Date, subject to the requirements of Section
2.4, to Company, PROVIDED that after giving effect to the
making of each Tranche B Revolving Loan, (y) in no event shall
the Total Utilization of Tranche B Revolving Commitments
exceed the Tranche B Revolving Commit ments then in effect and
(z) Holdings and Company shall be in compliance, on a pro
forma basis as of the last day of the most recently concluded
Fiscal Quarter, with the financial covenants set forth in
Section 6.6 or 6.7, as applicable. Amounts borrowed pursuant
to this Section 2.1(a)(i)(C) may be repaid and reborrowed
during the Tranche B Revolving Commitment Period. Each
Lender's Tranche B Revolving Commitment shall expire on the
Tranche B Revolving Commitment Termination Date and all
Tranche B Revolving Loans and all other amounts owed hereunder
with respect to the Tranche B Revolving Loans and the Tranche
B Revolving Commit ments shall be paid in full no later than
such date.
(ii) DELAYED DRAW TERM LOANS. Each Credit Party and
each Lender (severally, in respect of the Delayed Draw Term Loans held
by such Lenders) acknowledges and confirms that each Lender identified
on Appendix A-4 holds Delayed Draw Term Loans under the Existing Credit
Agreement in the respective principal amounts outstanding as of the
Effective Date set forth opposite its name on Appendix A-4 (such
Delayed Draw Term Loans, the "EXISTING DELAYED DRAW TERM LOANS"). Each
Credit Party hereby represents, warrants, agrees, covenants and (1)
reaffirms that it is not aware of any defense, set off, claim or
counterclaim against any Agent or Lender in regard to its Obligations
in respect of such Existing Delayed Draw Term Loans and (2) reaffirms
its obligation to pay such Obligations in respect of such Existing
Delayed Draw Term Loans in accordance with the terms and conditions of
this Agreement and the other Credit Documents. Based on the foregoing,
(A) Company and each Lender agree that any principal amounts owed
(whether or not presently due and payable) by Borrower to Lenders in
41
respect of the Existing Delayed Draw Term Loans, shall, as of the
Effective Date, be maintained as Delayed Draw Term Loans hereunder. All
interest and fees accrued to the Effective Date with respect to the
Existing Delayed Draw Term Loans shall be payable on the next
applicable Interest Payment Date for such Loans. Any Delayed Draw Term
Loans repaid or prepaid may not be reborrowed. Subject to Sections 2.10
and 2.11, all amounts owed hereunder with respect to the Delayed Draw
Term Loans shall be paid in full no later than the Delayed Draw Term
Loan Maturity Date.
(b) BORROWING MECHANICS FOR SENIOR LOANS.
(i) Revolving Loans shall be made in a minimum amount
of $5,000,000 and integral multiples of $1,000,000 in excess thereof
(when aggregated for all Lenders in connection with a single Credit
Extension of Revolving Loans).
(ii) Whenever Company desires that Lenders make
Revolving Loans, Company shall deliver to Administrative Agent and
counsel for the Administrative Agent telephonic notice, followed by
Requisite Funding Certificates for review and approval. As soon as
practicable, and in any event, prior to the end of the third Business
Day following receipt, Administrative Agent shall either confirm its
approval of such Requisite Funding Certificates or detail the defects
therein to Company for correction and resubmission. Following approval
of the Requisite Funding Certificates, Company shall deliver to
Administrative Agent a fully executed and delivered Funding Notice no
later than 10:00 a.m. (
New York City time) at least three Business Days
in advance of the proposed Credit Date in the case of a Eurodollar Rate
Loan, and at least one Business Day in advance of the proposed Credit
Date in the case of a Loan that is a Base Rate Loan. Except as
otherwise provided herein, a Funding Notice for a Loan that is a
Eurodollar Rate Loan shall be irrevocable on and after the related
Interest Rate Determination Date, and Company shall be bound to make a
borrowing in accordance therewith.
(iii) Notice of receipt of each Funding Notice in
respect of Revolving Loans, together with the amount of each Lender's
Pro Rata Share thereof, if any, together with the applicable interest
rate and Interest Period, shall be provided by Administrative Agent to
each applicable Lender by telefacsimile with reasonable promptness, but
not later than 2:00 p.m. (
New York City time) on the same day as
Administrative Agent's receipt of such Funding Notice from Company.
(iv) Each Lender shall make the amount of its
Revolving Loan available to Administrative Agent not later than 12:00
p.m. (
New York City time) on the applicable Credit Date by wire
transfer of same day funds in Dollars, at the Administrative Agent's
Principal Office. Except as provided herein, upon satisfaction or
waiver of the conditions precedent specified herein, Administrative
Agent shall make the proceeds of such Loans available to Company on the
42
applicable Credit Date by causing an amount of same day funds in
Dollars equal to the proceeds of all such Loans received by
Administrative Agent from Lenders to be credited to the account of
Company at the Administrative Agent's Principal Office or such other
account as may be designated in writing to Administrative Agent by
Company.
2.2. HOLDINGS TERM LOANS. Subject to the terms and conditions hereof,
each Lender holding a Holdings Term Loan Commitment severally agrees to make, on
the Effective Date, a Holdings Term Loan to Holdings in an amount equal to such
Lender's Holdings Term Loan Commitment. Each Holdings Term Loan Lender shall
make the amount of its Holdings Term Loan available to Holdings not later than
4:00 p.m. (
New York City time) on the Effective Date by wire transfer of same
day funds in Dollars to the account of Holdings designated
Focal Communications
Corporation 835 - 701 - 24 - 11 at ▇▇▇▇▇▇ Brothers, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇. Holdings may only make one borrowing under the Holdings Term Loan
Commitment which shall be on the Effective Date. Subject to Section 7A all
amounts owed hereunder with respect to the Holdings Term Loans shall be paid in
full no later than the Holdings Term Loan Maturity Date. Without limiting the
provisions of Sections 2.10 and 7A hereof, any amounts borrowed under this
Section 2.2 and subsequently repaid or prepaid may not be reborrowed. Each
Lender's Holdings Term Loan Commitment shall terminate immediately and without
further action upon the full funding of such Lender's Holdings Term Loan
Commitment.
2.3. PRO RATA SHARES; AVAILABILITY OF FUNDS.
(a) PRO RATA SHARES. All Loans shall be made, and all
participations purchased, by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in such other Lender's
obligation to make a Loan requested hereunder or purchase a participation
required hereby nor shall any Commitment of any Lender be increased or decreased
as a result of a default by any other Lender in such other Lender's obligation
to make a Loan requested hereunder or purchase a participation required hereby.
(b) AVAILABILITY OF FUNDS. Unless Administrative Agent shall
have been notified by any Senior Lender prior to the applicable Credit Date that
such Senior Lender does not intend to make available to Administrative Agent the
amount of such Senior Lender's Loan requested on such Credit Date,
Administrative Agent may assume that such Senior Lender has made such amount
available to Administrative Agent on such Credit Date and Administrative Agent
may, in its sole discretion, but shall not be obligated to, make available to
Company a corresponding amount on such Credit Date. If such corresponding amount
is not in fact made available to Administrative Agent by such Senior Lender,
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Senior Lender together with interest thereon, for each day from
such Credit Date until the date such amount is paid to Administrative Agent, at
the customary rate set by Administrative Agent for the correction of errors
among banks for three Business Days and thereafter at the Base Rate. If such
Senior Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent
43
shall promptly notify Company and Company shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon, for
each day from such Credit Date until the date such amount is paid to
Administrative Agent, at the rate payable hereunder for Base Rate Loans for such
Class of Loans. Nothing in this Section 2.3(b) shall be deemed to relieve any
Senior Lender from its obligation to fulfill its Commitments hereunder or to
prejudice any rights that Company may have against any Senior Lender as a result
of any default by such Senior Lender hereunder.
2.4. USE OF PROCEEDS. The proceeds of the Senior Loans made to Company
shall be used by Company to provide purchase money financing for the hard costs
associated with the construction, acquisition or improvement of
Telecommunications Assets by Company, including the acquisition from Equipment
Subsidiary of Telecommunications Assets purchased by Equipment Subsidiary no
earlier than 180 days prior to the making of such Senior Loans, PROVIDED that in
no event shall proceeds of Senior Loans to Company be used to finance more than
80% of such hard costs with respect to any Telecommunications Asset, and
PROVIDED FURTHER that no more than (i) $15,000,000 in aggregate in the two
calendar years following the Closing Date and (ii) $30,000,000 in aggregate
during the term of this Agreement, of such proceeds shall be used to finance
Telecommunications Assets to be leased by Company to
Focal Communications
Corporation of Illinois or any other Subsidiary of Holdings party to an Approved
Lease Agreement correctly construed as a Capital Lease. Subject to compliance
with Section 5.15(b), the proceeds of Holdings Term Loans made to Holdings shall
be used by Holdings to provide financing for the general corporate purposes of
Holdings and its Subsidiaries, including Permitted Acquisitions and working
capital purposes. No portion of the proceeds of any Credit Extension shall be
used by Holdings or any of its Subsidiaries in any manner that might cause such
Credit Extension or the application of such proceeds to violate Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal Reserve
System or any other regulation thereof or to violate the Exchange Act.
2.5. EVIDENCE OF DEBT; REGISTER; LENDERS' BOOKS AND RECORDS; NOTES.
(a) LENDERS' EVIDENCE OF DEBT. Each Lender shall maintain on
its internal records an account or accounts evidencing the Indebtedness of
Company or Holdings, as applicable, to such Lender, including the amounts of the
Loans made by it and each repayment and prepayment in respect thereof. Any such
recordation shall be conclusive and binding on Company and Holdings, as
applicable, absent manifest error; PROVIDED, failure to make any such
recordation, or any error in such recordation, shall not affect any Lender's
Commitments or Company's or Holdings' Obligations in respect of any applicable
Loans; and PROVIDED FURTHER, in the event of any inconsistency between the
Register and any Senior Lender's records, the recordations in the Register shall
govern.
(b) REGISTER. Administrative Agent shall maintain at its
Principal Office a register for the recordation of the names and addresses of
Senior Lenders and the Commitments and Loans of each Senior Lender from time to
time (the "REGISTER"). The Register shall be available for inspection by Company
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
44
Administrative Agent shall record in the Register the Commitments and the Senior
Loans, and each repayment or prepayment in respect of the principal amount of
the Senior Loans, and any such recordation shall be conclusive and binding on
Company, Holdings and each Senior Lender, absent manifest error (it being
acknowledged that any Lender may request any supporting documentation);
PROVIDED, failure to make any such recordation, or any error in such
recordation, shall not affect any Senior Lender's Commitments or Company's or
Holdings' Obligations in respect of any Loan. Company hereby designates CUSA to
serve as Company's agent solely for purposes of maintaining the Register as
provided in this Section 2.5, and Company hereby agrees that, to the extent CUSA
serves in such capacity, CUSA and its officers, directors, employees, agents and
affiliates shall constitute "Indemnitees."
(c) NOTES. If so requested by any Lender by written notice to
Company (with a copy to Administrative Agent) at least two Business Days prior
to the Effective Date, or at any time after the Effective Date, Company shall
execute and deliver to such Lender (and/or, if applicable and if so specified in
such notice, to any Person who is an assignee of such Lender pursuant to Section
10.6) on the Effective Date (or, if such notice is delivered after the Effective
Date, promptly after Company's receipt of such notice) a Note or Notes to
evidence such Lender's Loans.
2.6. INTEREST ON LOANS.
(a) Except as otherwise set forth herein, each Senior Loan
shall bear interest on the unpaid principal amount thereof from the date made
through repayment (whether by acceleration or otherwise) thereof as follows:
(i) if a Base Rate Loan, at the Base Rate plus the
Applicable Margin; or
(ii) if a Eurodollar Rate Loan, at the Adjusted
Eurodollar Rate plus the Applicable Margin.
(b) The basis for determining the rate of interest with
respect to any Senior Loan, and the Interest Period with respect to any
Eurodollar Rate Loan, shall be selected by Company and notified to
Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be. If on any day a Senior Loan
is outstanding with respect to which a Funding Notice or Conversion/Continuation
Notice has not been delivered to Administrative Agent in accordance with the
terms hereof specifying the applicable basis for determining the rate of
interest, then for that day such Senior Loan shall be a Base Rate Loan.
(c) In connection with Eurodollar Rate Loans there shall be no
more than twelve (12) Interest Periods outstanding at any time. In the event
Company fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in
the applicable Funding Notice or Conversion/Continuation Notice, such Loan (if
outstanding as a Eurodollar Rate Loan) will be automatically converted into a
Base Rate Loan on the
45
last day of the then-current Interest Period for such Senior Loan (or if
outstanding as a Base Rate Loan will remain as, or (if not then outstanding)
will be made as, a Base Rate Loan). In the event Company fails to specify an
Interest Period for any Eurodollar Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, Company shall select or be deemed to have
selected an Interest Period of one month. As soon as practicable after 10:00
a.m. (
New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof and of the applicable Interest Period (in writing or by telephone
confirmed in writing) to Company and each Lender.
(d) Interest payable pursuant to Section 2.6(a) shall be
computed in the case of Base Rate Loans on the basis of a 365-day or 366-day
year, as the case may be, and in the case of Eurodollar Rate Loans, on the basis
of a 360-day year, in each case for the actual number of days elapsed in the
period during which it accrues. In computing interest on any Senior Loan, the
date of the making of such Senior Loan or the first day of an Interest Period
applicable to such Senior Loan or, with respect to a Base Rate Loan being
converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar
Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the
date of payment of such Senior Loan or the expiration date of an Interest Period
applicable to such Senior Loan or, with respect to a Base Rate Loan being
converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate
Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded;
PROVIDED, if a Senior Loan is repaid on the same day on which it is made, one
day's interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each
Senior Loan shall be payable in arrears on and to each Interest Payment Date
applicable to that Loan; any prepayment of that Senior Loan, whether voluntary
or mandatory, to the extent accrued on the amount being prepaid; and at
maturity, including final maturity; PROVIDED, HOWEVER, with respect to any
voluntary prepayment of a Base Rate Loan, accrued interest shall instead be
payable on the applicable Interest Payment Date.
(f) Each Holdings Term Loan shall bear interest on the unpaid
principal amount thereof (together with all unpaid interest accrued in all prior
calendar quarters) from the Effective Date through repayment at the rate of 8%
per annum. Interest on each Holdings Term Loan shall accrue in arrears and be
payable on each date falling three months after the Effective Date, and shall
not be paid in cash but shall remain outstanding and be compounded on each such
date. At any time following the occurrence of BOTH OF (i) the fifth anniversary
of the Effective Date AND (ii) the date on which the Senior Obligations (other
than contingent obligations) shall have been Indefeasibly Paid and the Senior
Commitments cancelled, Holdings may elect to pay such interest accruing after
the fifth anniversary of the Effective Date in cash in arrears on a current
basis. Interest payable pursuant to this Section 2.6(f) shall be computed on the
basis of a 365-day or 366-day, as applicable, year, in each case for the actual
number of days elapsed in the period during which it accrues. In the event that
the Senior Obligations (other than contingent obligations) shall have been
46
Indefeasibly Paid and the Senior Commitments cancelled, and a mandatory
prepayment of Holdings Term Loans occurs pursuant to Sections 2.12(a)(ii),
2.12(b)(ii) or 2.12(d), then interest payable pursuant to this Section 2.6(f) in
connection with such Holdings Term Loans repaid shall be calculated as if such
event giving rise to such mandatory prepayment occurred on the fifth anniversary
of the Effective Date.
2.7. CONVERSION/CONTINUATION.
(a) Subject to Section 2.17 and so long as no Default or Event
of Default shall have occurred and then be continuing, Company shall have the
option:
(i) to convert at any time all or any part of any
Senior Loan equal to $5,000,000 and integral multiples of $1,000,000
(when aggregated for all Lenders holding Loans of one Type) in excess
of that amount from one Type of Senior Loan to another Type of Senior
Loan; PROVIDED, a Eurodollar Rate Loan may only be converted into a
Base Rate Loan on the expiration of the Interest Period applicable to
such Eurodollar Rate Loan unless Company shall pay all amounts due
under Section 2.17(c) in connection with any such conversion; or
(ii) upon the expiration of any Interest Period
applicable to any Eurodollar Rate Loan, to continue all or any portion
of such Senior Loan equal to $5,000,000 and integral multiples of
$1,000,000 (when aggregated for all Lenders holding such Loan) in
excess of that amount as a Eurodollar Rate Loan.
(b) Company shall deliver a Conversion/Continuation Notice to
Administrative Agent no later than 10:00 a.m. (
New York City time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein, a
Conversion/Continuation Notice for conversion to, or continuation of, any
Eurodollar Rate Loans (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to effect a conversion or continuation in accordance
therewith. Notice of receipt of each Conversion/Continuation Notice in respect
of Senior Loans, together with the amount of each Lender's Pro Rata Share
thereof, if any, together with the applicable interest rate and Interest Period,
shall be provided by Administrative Agent to each applicable Lender by
telefacsimile with reasonable promptness, but not later than 2:00 PM (
New York
City time) on the same day as Administrative Agent's receipt of such
Conversion/Continuation Notice from Company.
2.8. DEFAULT INTEREST. Upon the occurrence and during the continuance
of an Event of Default described in Section 8.1(a), the principal amount of all
Loans and, to the extent permitted by applicable law, any interest payments on
the Loans or any fees or other amounts owed hereunder or under any of the other
Credit Documents not paid when due, in each case whether at stated maturity, by
notice of
47
prepayment, by acceleration or otherwise, shall thereafter bear interest
(including post-petition interest in any proceeding under the Bankruptcy Code or
other applicable bankruptcy laws) payable on demand at a rate that is 2% per
annum in excess of the interest rate otherwise payable hereunder with respect to
the applicable Loans (or, in the case of any such fees and other amounts, at a
rate which is 2% per annum in excess of the interest rate otherwise payable
hereunder for Base Rate Loans); PROVIDED, in the case of Eurodollar Rate Loans,
upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest payable upon
demand at a rate which is 2% per annum in excess of the interest rate otherwise
payable hereunder for Base Rate Loans. Payment or acceptance of the increased
rates of interest provided for in this Section 2.8 is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Administrative
Agent or any Lender. Notwithstanding the foregoing, no interest (other than on
the Holdings Term Loan Maturity Date in accordance with and subject to the
limitations in Section 8.2) shall be paid (but shall accrue) to any Holdings
Term Loan Lender pursuant to this Section until all Senior Obligations (other
than contingent obligations) shall have first been Indefeasibly Paid and all
Senior Commitments cancelled.
2.9. FEES.
(a) Company agrees to pay to Lenders having Tranche A
Revolving Exposure and/or Tranche B Revolving Exposure through Administrative
Agent a commitment fee equal to (1) the average daily unused Commitments of such
Lender during the preceding quarter multiplied by (2) the Applicable Commitment
Fee Percentage. The fees referred to in this Section 2.9(a) shall be paid to
Administrative Agent at its Principal Office and upon receipt, Administrative
Agent shall promptly distribute to each Lender its Pro Rata Share thereof.
(b) All fees referred to in Section 2.9(a) shall be calculated
on the basis of a 360- day year and the actual number of days elapsed and shall
be payable (i) quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year commencing on the first such date to occur after the
Closing Date, (ii) on the Tranche A Revolving Commitment Termination Date, and
(iii) on the Tranche B Revolving Commitment Termination Date.
(c) In addition to any of the foregoing fees, Company agrees
to pay to Agents such other fees in the amounts and at the times separately
agreed upon by Company and such Agents thereby.
2.10. SCHEDULED PAYMENTS/COMMITMENT REDUCTIONS.
(a) (i) SCHEDULED TRANCHE A REVOLVING INSTALLMENTS. The
Tranche A Revolving Commitments hereunder shall be permanently reduced in the
aggregate annual percentages set forth below in equal consecutive quarterly
installments (each, a "TRANCHE A REVOLVING INSTALLMENT") on February
48
28/29, May 31, August 31, November 30 (each, an "INSTALLMENT DATE") occurring in
each of the Fiscal Years set forth below, commencing November 30, 2003.
============================================================
INSTALLMENT TRANCHE A REVOLVING LOAN
DATE COMMITMENT REDUCTIONS
------------------------------------------------------------
November 30, 2003 2.5%
------------------------------------------------------------
February 29, 2004 2.5%
------------------------------------------------------------
May 31, 2004 2.5%
------------------------------------------------------------
August 31, 2004 2.5%
------------------------------------------------------------
November 30, 2004 5.0%
------------------------------------------------------------
February 28, 2005 5.0%
------------------------------------------------------------
May 31, 2005 5.0%
------------------------------------------------------------
August 31, 2005 5.0%
------------------------------------------------------------
November 30, 2005 7.5%
------------------------------------------------------------
February 28, 2006 7.5%
------------------------------------------------------------
May 31, 2006 7.5%
------------------------------------------------------------
August 31, 2006 7.5%
------------------------------------------------------------
November 30, 2006 10.0%
------------------------------------------------------------
February 28, 2007 10.0%
------------------------------------------------------------
May 31, 2007 10.0%
------------------------------------------------------------
Tranche A Revolving 10.0%
Loan Maturity Date
============================================================
Notwithstanding the foregoing, (i) Tranche A Revolving
Installments shall be reduced in connection with any voluntary or mandatory
reductions of the Tranche A Revolving Commitments in accordance with Sections
2.11, 2.12 and 2.13 and (ii) all Tranche A Revolving Loans, together with all
other amounts owed hereunder with respect thereto, shall be permanently repaid
in full no later than the Tranche A Revolving Maturity Date.
49
(ii) SCHEDULED TRANCHE B REVOLVING INSTALLMENTS. The Tranche B
Revolving Commitments hereunder shall be permanently reduced in the aggregate
annual percentages set forth below in equal consecutive quarterly installments
(each, a "TRANCHE B REVOLVING INSTALLMENT") on each Installment Date occurring
in each of the Fiscal Years set forth below, commencing November 30, 2003.
============================================================
INSTALLMENT TRANCHE B REVOLVING LOAN
DATE COMMITMENT REDUCTIONS
------------------------------------------------------------
November 30, 2003 2.5%
------------------------------------------------------------
February 29, 2004 2.5%
------------------------------------------------------------
May 31, 2004 2.5%
------------------------------------------------------------
August 31, 2004 2.5%
------------------------------------------------------------
November 30, 2004 5.0%
------------------------------------------------------------
February 28, 2005 5.0%
------------------------------------------------------------
May 31, 2005 5.0%
------------------------------------------------------------
August 31, 2005 5.0%
------------------------------------------------------------
November 30, 2005 7.5%
------------------------------------------------------------
February 28, 2006 7.5%
------------------------------------------------------------
May 31, 2006 7.5%
------------------------------------------------------------
August 31, 2006 7.5%
------------------------------------------------------------
November 30, 2006 10.0%
------------------------------------------------------------
February 28, 2007 10.0%
------------------------------------------------------------
May 31, 2007 10.0%
------------------------------------------------------------
Tranche B Revolving 10.0%
Loan Maturity Date
============================================================
Notwithstanding the foregoing, (x) Tranche B Revolving Installments shall be
reduced in connection with any voluntary or mandatory reductions of the Tranche
B Revolving Commitments in accordance with Sections 2.11, 2.12 and 2.13 and (y)
all Tranche B Revolving Loans, together with all other amounts owed hereunder
with respect thereto, shall be permanently repaid in full no later than the
Tranche B Revolving Maturity Date.
50
(b) SCHEDULED DELAYED DRAW TERM LOAN INSTALLMENTS. The
principal amount of the Delayed Draw Term Loans shall be repaid in the aggregate
annual percentages set forth below in equal consecutive quarterly installments
(each, a "DELAYED DRAW TERM LOAN INSTALLMENT") on each Installment Date
occurring in each of the Fiscal Years set forth below, commencing November 30,
2003:
============================================================
INSTALLMENT DELAYED DRAW TERM
DATE LOAN REPAYMENTS
------------------------------------------------------------
November 30, 2003 2.5%
------------------------------------------------------------
February 29, 2004 2.5%
------------------------------------------------------------
May 31, 2004 2.5%
------------------------------------------------------------
August 31, 2004 2.5%
------------------------------------------------------------
November 30, 2004 5.0%
------------------------------------------------------------
February 28, 2005 5.0%
------------------------------------------------------------
May 31, 2005 5.0%
------------------------------------------------------------
August 31, 2005 5.0%
------------------------------------------------------------
November 30, 2005 7.5%
------------------------------------------------------------
February 28, 2006 7.5%
------------------------------------------------------------
May 31, 2006 7.5%
------------------------------------------------------------
August 31, 2006 7.5%
------------------------------------------------------------
November 30, 2006 10.0%
------------------------------------------------------------
February 28, 2007 10.0%
------------------------------------------------------------
May 31, 2007 10.0%
------------------------------------------------------------
Delayed Draw Term 10.0%
Loan Maturity Date
============================================================
Notwithstanding the foregoing, (i) such Delayed Draw Term Loan
Installments shall be reduced in connection with any voluntary or mandatory
prepayments of the Delayed Draw Term Loans in accordance with Sections 2.11,
2.12 and 2.13 and (ii) all Delayed Draw Term Loans, together with all other
amounts owed hereunder with respect thereto, shall be permanently repaid in full
no later than the Delayed Draw Term Loan Maturity Date.
51
(c) NO SCHEDULED HOLDINGS TERM LOAN INSTALLMENTS. Subject to
the provisions of Section 7A and 2.6(f), Holdings Term Loans shall be repaid in
full on the Holdings Term Loan Maturity Date and no scheduled prepayment of the
Holdings Term Loans shall be required to be made prior to that date.
2.11. SENIOR LOANS - VOLUNTARY PREPAYMENTS/COMMITMENT REDUCTIONS.
(a) VOLUNTARY PREPAYMENTS.
(i) Any time and from time to time (with respect to
Senior Loans only):
(A) with respect to Base Rate Loans, Company
may prepay, without premium or penalty, any such Senior Loans
on any Business Day in whole or in part, in an aggregate
minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount (or a lesser amount if
such lesser amount constitutes the entire outstanding
principal amount of such Senior Loan); and
(B) with respect to Eurodollar Rate Loans,
Company may prepay, without premium or penalty (but subject to
Section 2.17(c)), any such Senior Loans on any Business Day in
whole or in part in an aggregate minimum amount of $5,000,000
and integral multiples of $1,000,000 in excess of that amount
(or a lesser amount if such lesser amount constitutes the
entire outstanding principal amount of such Senior Loan).
(ii) All such prepayments shall be made:
(A) upon not less than one Business Day's
prior written or telephonic notice, in the case of Base Rate
Loans; and
(B) upon not less than three Business Days'
prior written or telephonic notice, in the case of Eurodollar
Rate Loans;
in each case given to Administrative Agent, as the case may be, by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly
confirmed in writing to Administrative Agent (and Administrative Agent will
promptly transmit such telephonic or original notice by telefacsimile or
telephone confirmed in writing to each Senior Lender). Upon the giving of any
such notice, the principal amount of the Senior Loans specified in such notice
shall become due and payable on the prepayment date specified therein.
Notwithstanding the foregoing, in no event shall Holdings Term
Loans be voluntarily prepaid (A) without the consent of the Holdings Term Loan
Lenders and (B) until such time as all Senior
52
Obligations (other than contingent obligations) have been Indefeasibly Paid and
all Senior Commitments terminated.
(b) VOLUNTARY COMMITMENT REDUCTIONS.
(i) Company may, upon not less than three Business
Days' prior written or telephonic notice confirmed in writing to
Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or
telephone confirmed in writing to each applicable Senior Lender), at
any time and from time to time terminate in whole or permanently reduce
in part, without premium or penalty, the Tranche A Revolving
Commitments in an amount up to the amount by which the Tranche A
Revolving Commitments exceed the Total Utilization of Tranche A
Revolving Commitments at the time of such proposed termination or
reduction; PROVIDED that any such partial reduction of the Tranche A
Revolving Commitments shall be in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that
amount; PROVIDED FURTHER that in the event that Company fails to
specify otherwise any such termination or permanent reduction shall be
applied against the scheduled Reductions set forth in Section
2.10(a)(i) on a pro rata basis (in accordance with the outstanding
Tranche A Revolving Commitments at such time).
(ii) Company may, upon not less than three Business
Days' prior written or telephonic notice confirmed in writing to
Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or
telephone confirmed in writing to each applicable Lender), at any time
and from time to time terminate in whole or permanently reduce in part,
without premium or penalty, the Tranche B Revolving Commitments in an
amount up to the amount by which the Tranche B Revolving Commitments
exceed the Total Utilization of Tranche B Revolving Commitments at the
time of such proposed termination or reduction; PROVIDED, any such
partial reduction of the Tranche B Revolving Commitments shall be in an
aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount; PROVIDED FURTHER that in the event
that Company fails to specify otherwise, any such termination or
permanent reduction shall be applied against the scheduled Reductions
set forth in Section 2.10(a)(ii) on a pro rata basis (in accordance
with the outstanding Tranche B Revolving Commitments at such time).
(iii) Company's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such termination
or reduction and the amount of any partial reduction, and whether such
termination or reduction of the applicable Revolving Commitments shall
be effective on the date specified in Company's notice and shall reduce
the applicable Revolving Commitment of each Senior Lender
proportionately to its Pro Rata Share thereof.
53
2.12. MANDATORY PREPAYMENTS/COMMITMENT REDUCTIONS.
(a) ASSET SALES. (i) Company shall within three Business Days
of such receipt prepay Senior Loans and the Senior Commitments shall be
permanently reduced as set forth in Section 2.13 in an amount equal to 50% of
the amount of any Net Asset Sale Proceeds received by Holdings, Company or any
of their respective Subsidiaries. If, within the period of two hundred seventy
days after the receipt by Holdings, Company or any of their respective
Subsidiaries of Net Asset Sale Proceeds, Holdings or Company has not invested
such Net Asset Sale Proceeds not prepaid pursuant to the immediately preceding
sentence in long term productive assets of the general type used in the business
of Holdings and its Subsidiaries, as certified to Administrative Agent by
Holdings, then, to the extent Company has not previously done so, Company shall
prepay Senior Loans and the Senior Commitments shall be permanently reduced as
set forth in Section 2.13, in either case in an amount equal to the excess of
such remaining Net Asset Sale Proceeds not already prepaid over amounts invested
as aforesaid. Pending a determination whether any such Net Asset Sale Proceeds
will be applied to prepay Senior Loans and/or reduce Senior Commitments pursuant
to the preceding sentence, an amount equal to such Net Asset Sale Proceeds shall
be applied to prepay outstanding Revolving Loans (without a reduction in the
Revolving Commitments). In addition, notwithstanding the foregoing and in any
event, the Company shall prepay Senior Loans in the amount of any Net Asset Sale
Proceeds arising from the sale of any Telecommunications Assets financed with
the proceeds of such Senior Loans.
(ii) At any time after the Senior Obligations (other
than contingent obligations) shall have been Indefeasibly Paid and the
Senior Commitments cancelled, if, within the period of two hundred
seventy days after the receipt by Holdings, Company or any of their
respective Subsidiaries of Net Asset Sale Proceeds, Holdings or Company
has not invested such Net Asset Sale Proceeds in long term productive
assets of the general type used in the business of Holdings and its
Subsidiaries, as certified to the Holdings Term Loan Lenders by
Holdings, then, to the extent Holdings has not previously done so,
Holdings shall notify each Holdings Term Loan Lender thereof and, if
requested by Requisite Class Lenders holding Holdings Term Loan
Exposure, Holdings shall prepay the Holdings Term Loans, in any amount
equal to the Net Asset Sale Proceeds over amounts invested as
aforesaid.
(b) INSURANCE/CONDEMNATION PROCEEDS. (i) If, within the period
of two hundred seventy days after the receipt by Holdings or Company or any of
their respective Subsidiaries of Net Insurance/Condemnation Proceeds, Holdings
or Company has not invested such Net Insur ance/Condemnation Proceeds in long
term productive assets of general type used in the business of Holdings and its
Subsidiaries, as certified to Administrative Agent by Holdings, then, to the
extent Company has not previously done so, Company shall prepay Senior Loans and
the Senior Commitments shall be permanently reduced as set forth in Section
2.13, in either case in an amount equal to the excess of such Net
Insurance/Condemnation Proceeds over amounts invested as aforesaid. Pending a
determination on whether any Net Insurance/Condemnation Proceeds shall be
applied to prepay outstanding Senior Loans
54
and/or reduce Senior Commitments pursuant to the preceding sentence, an amount
equal to such Net Insurance/Condemnation Proceeds shall be applied to prepay any
outstanding Revolving Loans (without a reduction in the Revolving Commitments).
(ii) At any time after the Senior Obligations (other
than contingent obligations) shall have been Indefeasibly Paid and the
Senior Commitments cancelled if, within the period of two hundred
seventy days after the receipt by Holdings or Company or any of their
respective Subsidiaries of Net Insurance/Condemnation Proceeds,
Holdings or Company has not invested such Net Insurance/Condemnation
Proceeds in long term productive assets of general type used in the
business of Holdings and its Subsidiaries, as certified to the Holdings
Term Loan Lenders by Holdings, then, to the extent Holdings has not
previously done so, Holdings shall notify each Holdings Term Loan
Lender thereof and, if requested by Requisite Class Lenders having
Holdings Term Loan Exposure, Holdings shall prepay Holdings Term Loans
in an amount equal to the excess of such Net Insur ance/Condemnation
Proceeds over amounts invested as aforesaid.
(c) CONSOLIDATED EXCESS CASH FLOW. In the event that there
shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the
Fiscal Year ending December 31, 2004), Company shall, no later than 100 days
after the end of such Fiscal Year, prepay the Senior Loans and/or the Senior
Commitments shall be permanently reduced as set forth in Section 2.13 in an
aggregate amount equal to 50% of such Consolidated Excess Cash Flow.
(d) CHANGE OF CONTROL. In the event that a Change of Control
shall occur, Holdings shall notify each Holdings Term Loan Lender thereof and,
if requested by Requisite Class Lenders having Holdings Term Loan Exposure,
Holdings shall prepay the Holdings Obligations in full in cash upon the closing
of such Change of Control provided that all Senior Obligations (other than
contingent obligations) shall have been Indefeasibly Paid and the Senior
Commitments cancelled. Holdings shall give each Holdings Term Loan Lender 30
days prior written notice of any Change of Control in reasonable detail of such
transaction.
(e) COMMITMENT LIMITS. Company shall from time to time prepay
the Tranche A Revolving Loans to the extent necessary so that the Total
Utilization of Tranche A Revolving Commitments shall not at any time exceed the
Tranche A Revolving Commitments then in effect. Company shall also from time to
time prepay the Tranche B Revolving Loans to the extent necessary so that the
Total Utilization of Tranche B Revolving Commitments shall not at any time
exceed the Tranche B Revolving Commitments then in effect.
(f) PREPAYMENT CERTIFICATE. Concurrently with any prepayment
of the Loans and/or reduction of the Commitments pursuant to Sections 2.12(a)
through 2.12(c), Company shall deliver to Administrative Agent (which
Administrative Agent shall promptly furnish to each Lender) and (in the case of
a prepayment of Holdings Term Loans only) each Holdings Term Loan Lender a
certificate of an
55
Authorized Officer demonstrating the calculation of the amount of the applicable
net proceeds or Consolidated Excess Cash Flow, as the case may be. In the event
that Company shall subsequently determine that the actual amount received
exceeded the amount set forth in such certificate, Company shall promptly make
an additional prepayment of the Loans and/or the Commitments shall be
permanently reduced in an amount equal to such excess, and Company shall
concurrently therewith deliver to Administrative Agent (which Administrative
Agent shall promptly furnish to each Lender) and (in the case of a prepayment of
Holdings Term Loans only) each Holdings Term Loan Lender a certificate of an
Authorized Officer demonstrating the derivation of such excess.
2.13. APPLICATION OF PREPAYMENTS/REDUCTIONS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS/COMMITMENT REDUCTIONS
BY TYPE OF LOANS. Any prepayment of any Senior Loan pursuant to Section 2.11(a)
shall be applied as specified by Company in the applicable notice of prepayment;
PROVIDED, in the event Company fails to specify the Senior Loans to which any
such prepayment shall be applied, such prepayment shall be applied as follows:
FIRST, to repay outstanding Tranche A Revolving Loans
on a pro rata basis;
SECOND, to repay Tranche B Revolving Loans; and
THIRD, to prepay the Delayed Draw Term Loans on a pro
rata basis.
Any voluntary prepayments of Delayed Draw Term Loans or
voluntary reductions of the Revolving Commitment shall be further applied to
reduce, on a pro rata basis, each remaining scheduled Delayed Draw Term Loan
Installment and/or Tranche A Revolving Installment and/or Tranche B Revolving
Installment, as the case may be.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE OF LOANS. Any
amount required to be paid pursuant to Sections 2.12(a)(i), 2.12(b)(i) or
2.12(c) shall be applied, subject to the requirements of the final sentence of
Sections 2.12(a)(i) and 2.12(b)(i), on a pro rata basis to repay Delayed Draw
Loans and Revolving Loans, if any, in accordance with the respective principal
amount thereof; provided that prior to the delivery of the Compliance
Certificate in respect of the Fiscal Quarter ending March 31, 2003 the amount to
be repaid in respect of Revolving Loans shall be applied soley to repay Tranche
A Revolving Loans, and thereafter shall be applied to repay Tranche A Revolving
Loans and Tranche B Revolving Loans, if any, in accordance with the respective
principal amount thereof. Any amount applied to reduce Revolving Loans shall be
further applied (i) prior to the delivery of the Compliance Certificate in
respect of the Fiscal Quarter ending March 31, 2003 to reduce the Tranche B
Revolving Loan Commitments and (ii) at any time thereafter on a pro rata basis
to reduce the Tranche A Revolving Commitments and the Tranche B Revolving
Commitments in accordance with the respective principal amount thereof; PROVIDED
that any such reduction of Tranche A Revolving Commitments shall be
56
further applied to reduce the remaining scheduled Tranche A Revolving
Installments set forth in Section 2.10(a)(i) on a pro rata basis; PROVIDED
FURTHER that any such reduction of Tranche B Revolving Commitments shall be
further applied to reduce the remaining scheduled Tranche B Revolving
Installments set forth in Section 2.10(a)(ii) on a pro rata basis; PROVIDED
STILL FURTHER that, with respect to Delayed Draw Term Loans, the amount of such
repayment shall be further applied pro rata to reduce the remaining scheduled
Delayed Draw Term Loan Installments.
(c) APPLICATION OF PREPAYMENTS OF LOANS TO BASE RATE LOANS AND
EURODOLLAR RATE LOANS. Considering each Class of Senior Loans being prepaid
separately, any prepayment thereof shall be applied first to Base Rate Loans to
the full extent thereof before application to Eurodollar Rate Loans, in each
case in a manner which minimizes the amount of any payments required to be made
by Company pursuant to Section 2.17(c).
2.14. CHARGING OF ACCOUNTS. To the extent not violative of the
provisions of the Holdings Senior Notes, Company hereby authorizes
Administrative Agent to charge Company's accounts with Administrative Agent in
order to cause timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due by Company hereunder or under any of
the other Credit Documents with respect to Senior Loans and related fees and
expenses (subject to sufficient funds being available in its accounts for that
purpose).
2.15. GENERAL PROVISIONS REGARDING PAYMENTS.
(a) All payments by Company of principal, interest, fees and
other Senior Obligations shall be made in Dollars in same day funds, without
defense, setoff or counterclaim, free of any restriction or condition, and
delivered to Administrative Agent not later than 12:00 p.m. (New York City time)
on the date due at the Administrative Agent's Principal Office for the account
of Lenders; funds received by Administrative Agent after that time on such due
date shall be deemed to have been paid by Company, as applicable, on the next
succeeding Business Day.
(b) All payments by Holdings of principal, interest, fees and
other Holdings Obligations shall be made, to the extent permitted by and subject
to the provisions of Section 7A, in Dollars in same day funds, without defense,
set off or counterclaim, free of any restriction or condition, and delivered to
each Holdings Term Loan Lender by wire transfer at such address as such Lender
shall indicate in writing not later than 12:00 p.m. (New York City time) on the
date due; funds received by any Holdings Term Loan Lender after that time on
such due date shall be deemed to have been paid by Holdings, as applicable, on
the next succeeding Business Day.
(c) All payments in respect of the principal amount of any
Loan shall include payment of accrued interest on the principal amount being
repaid or prepaid, and all such payments (and, in any
57
event, any payments in respect of any Loan on a date when interest is due and
payable with respect to such Loan) shall be applied to the payment of interest
before application to principal.
(d) Administrative Agent shall promptly distribute by wire
transfer to each Lender at such address as such Lender shall indicate in
writing, such Lender's applicable Pro Rata Share, giving effect to any
adjustments in Pro Rata Shares on and after the Effective Date and subject to
the provisions of Section 7A, of all payments and prepayments of principal and
interest due hereunder, together with all other amounts due thereto hereunder or
under any of the other Credit Documents, including, without limitation, all fees
payable with respect thereto, to the extent received by Administrative Agent.
(e) Notwithstanding the foregoing provisions hereof, if any
Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.
(f) Subject to the provisos set forth in the definition of
"Interest Period", whenever any payment to be made hereunder shall be stated to
be due on a day that is not a Business Day, such payment shall be made on the
next succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder and of the Commitment fees
payable hereunder.
2.16. RECEIPT OF PAYMENTS. Administrative Agent and each Holdings Term
Loan Lender shall deem any payment by or on behalf of Company or Holdings, as
the case may be, hereunder that is not made in same day funds prior to 12:00
p.m. (New York City time) on or before the due date to be a non-conforming
payment. Any such payment shall not be deemed to have been received by
Administrative Agent or any Holdings Term Loan Lender until the later of (i) the
time such funds become available funds, and (ii) the applicable next Business
Day. Administrative Agent shall give prompt telephonic notice to Company and
each applicable Lender (confirmed in writing) if any payment is non-conforming.
Any non-conforming payment may constitute or become a Default or Event of
Default in accordance with the terms of Section 8.1(a). Interest shall continue
to accrue on any principal as to which a non-conforming payment is made until
such funds become available funds (but in no event less than the period from the
date of such payment to the next succeeding applicable Business Day) at the rate
determined pursuant to Section 2.8 from the date such amount was due and payable
until the date such amount is paid in full.
2.17. MAKING OR MAINTAINING EURODOLLAR RATE LOANS.
(a) INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the
event that Administrative Agent shall have determined (which determination shall
be final and conclusive and binding upon all parties hereto), on any Interest
Rate Determination Date with respect to any Eurodollar Rate Loans, that by
reason of circumstances affecting the London interbank market adequate and fair
means do not exist for ascertaining the interest rate applicable to such Loans
on the basis provided for in the definition of Adjusted
58
Eurodollar Rate, Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to Company and each Senior
Lender of such determination, whereupon no Senior Loans may be made as, or
converted to, Eurodollar Rate Loans until such time as Administrative Agent
notifies Company and Senior Lenders that the circumstances giving rise to such
notice no longer exist, and any Funding Notice or Conversion/Continuation Notice
given by Company with respect to the Senior Loans in respect of which such
determination was made shall be deemed to be rescinded by Company (without
penalty to Company).
(b) ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS.
In the event that on any date any Senior Lender shall have determined (which
determination shall be final and conclusive and binding upon all parties hereto
but shall be made only after consultation with Company and Administrative Agent)
that the making, maintaining or continuation of its Eurodollar Rate Loans has
become unlawful as a result of compliance by such Senior Lender in good faith
with any law, treaty, governmental rule, regulation, guideline or order (or
would conflict with any such treaty, governmental rule, regulation, guideline or
order not having the force of law even though the failure to comply therewith
would not be unlawful), or has become impracticable, as a result of
contingencies occurring after the date hereof which materially and adversely
affect the London interbank market or the position of such Senior Lender in that
market, then, and in any such event, such Senior Lender shall be an "AFFECTED
LENDER" and it shall on that day give notice (by telefacsimile or by telephone
confirmed in writing) to Company and Administrative Agent of such determination
(which notice Administrative Agent shall promptly transmit to each other Senior
Lender). Thereafter the obligation of the Affected Lender to make Senior Loans
as, or to convert Senior Loans to, Eurodollar Rate Loans shall be suspended
until such notice shall be withdrawn by the Affected Lender, to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Company pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Senior Loan
as (or continue such Senior Loan as or convert such Senior Loan to, as the case
may be) a Base Rate Loan, the Affected Lender's obligation to maintain its
outstanding Eurodollar Rate Loans (the "AFFECTED LOANS") shall be terminated at
the earlier to occur of the expiration of the Interest Period then in effect
with respect to the Affected Loans or when required by law, and the Affected
Loans shall automatically convert into Base Rate Loans on the date of such
termination. Notwithstanding the foregoing, to the extent a determination by an
Affected Lender as described above relates to a Eurodollar Rate Loan then being
requested by Company pursuant to a Funding Notice or a Conversion/Continuation
Notice, Company shall have the option, subject to the provisions of Section
2.17(c), to rescind such Funding Notice or Conversion/Continuation Notice as to
all Senior Lenders by giving notice (by telefacsimile or by telephone confirmed
in writing) to Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above (which
notice of rescission Administrative Agent shall promptly transmit to each other
Senior Lender). Except as provided in the immediately preceding sentence,
nothing in this Section 2.17(b) shall affect the obligation of any Senior Lender
other than an Affected Lender to make or maintain Senior Loans as, or to convert
Senior Loans to, Eurodollar Rate Loans in accordance with the terms hereof.
59
(c) COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. Company shall compensate each Senior Lender, upon written request by
such Senior Lender (which request shall set forth the basis for requesting such
amounts), for all reasonable losses, expenses and liabilities (including any
interest paid by such Senior Lender to lenders of funds borrowed by it to make
or carry its Eurodollar Rate Loans and any loss, expense or liability sustained
by such Senior Lender in connection with the liquidation or re-employment of
such funds but excluding loss of anticipated profits) which such Senior Lender
may sustain: if for any reason (other than a default by such Senior Lender or by
reason of an illegality of a type described in Section 2.17 but not generally
affecting substantially all Senior Lenders similarly situated) a borrowing of
any Eurodollar Rate Loan does not occur on a date specified therefor in a
Funding Notice or a telephonic request for borrowing, or a conversion to or
continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Conversion/Continuation Notice or a telephonic request for
conversion or continuation; if any prepayment or other principal payment or any
conversion of any of its Eurodollar Rate Loans occurs on a date prior to the
last day of an Interest Period applicable to that Senior Loan; or if any
prepayment of any of its Eurodollar Rate Loans is not made on any date specified
in a notice of prepayment given by Company.
(d) BOOKING OF EURODOLLAR RATE LOANS. Subject to Section 2.20,
any Senior Lender may make, carry or transfer Eurodollar Rate Loans at, to, or
for the account of any of its branch offices or the office of an Affiliate of
such Senior Lender.
(e) ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS.
Calculation of all amounts payable to a Senior Lender under this Section 2.17
and under Section 2.18 shall be made as though such Senior Lender had actually
funded each of its relevant Eurodollar Rate Loans through the purchase of a
Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i)
of the definition of Adjusted Eurodollar Rate in an amount equal to the amount
of such Eurodollar Rate Loan and having a maturity comparable to the relevant
Interest Period and through the transfer of such Eurodollar deposit from an
offshore office of such Senior Lender to a domestic office of such Senior Lender
in the United States of America; PROVIDED, HOWEVER, subject to Section 2.20,
each Senior Lender may fund each of its Eurodollar Rate Loans in any manner it
sees fit and the foregoing assumptions shall be utilized only for the purposes
of calculating amounts payable under this Section 2.17 and under Section 2.18.
2.18. INCREASED COSTS; CAPITAL ADEQUACY.
(a) COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of Section 2.19 (which shall be controlling with respect to the
matters covered thereby), in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
Governmental
60
Authority, in each case that becomes effective after the date hereof, or
compliance by such Lender with any guideline, request or directive issued or
made after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law): subjects
such Lender (or its applicable lending office) to any additional Tax (other than
any Tax on the overall net income of such Lender) with respect to this Agreement
or any other Credit Document or any of its obligations hereunder or thereunder
or any payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder; imposes, modifies or holds
applicable any reserve (including any marginal, emergency, supplemental, special
or other reserve), special deposit, compulsory loan, Federal Deposit Insurance
Corporation insurance or similar requirement against assets held by, or deposits
or other liabilities in or for the account of, or advances or loans by, or other
credit extended by, or any other acquisition of funds by, any office of such
Lender (other than any such reserve or other requirements with respect to
Eurodollar Rate Loans that are reflected in the definition of Adjusted
Eurodollar Rate); or imposes any other condition (other than with respect to a
Tax matter) on or affecting such Lender (or its applicable lending office) or
its obligations hereunder or the London interbank market; and the result of any
of the foregoing is to increase the cost to such Lender of agreeing to make,
making or maintaining Loans hereunder or to reduce any amount received or
receivable by such Lender (or its applicable lending office) with respect
thereto; then, in any such case, Company shall promptly pay to Administrative
Agent for delivery to such Lender or to the respective Holdings Term Loan
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Company (with in the case of a Senior
Lender a copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to such
Lender under this Section 2.18(a), which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
(b) CAPITAL ADEQUACY ADJUSTMENT. In the event that any Lender
shall have determined that the adoption, effectiveness, phase-in or
applicability after the date hereof of any law, rule or regulation (or any
provision thereof) regarding capital adequacy, or any change therein or in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its applicable lending office) with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender's Loans or Commitments, or
participations therein or other obligations hereunder or under any of the other
Credit Documents with respect to the Loans to a level below that which such
Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within five Business
Days after receipt by Company, from such Lender of the statement referred to in
the next
61
sentence, Company shall pay to such Lender such additional amount or amounts as
will compensate such Lender or such controlling corporation on an after-tax
basis for such reduction. Such Lender shall deliver to Company (with in the case
of a Senior Lender a copy to Administrative Agent) a written statement, setting
forth in reasonable detail the basis for calculating the additional amounts owed
to Lender under this Section 2.18(b), which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
2.19. TAXES; WITHHOLDING, ETC.
(a) PAYMENTS TO BE FREE AND CLEAR. All sums payable by any
Credit Party hereunder and under the other Credit Documents shall (except to the
extent required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than a Tax on the overall net income
of any Lender) imposed, levied, collected, withheld or assessed by or within the
United States of America or any political subdivision in or of the United States
of America or any other jurisdiction from or to which a payment is made by or on
behalf of any Credit Party or by any federation or organization of which the
United States of America or any such jurisdiction is a member at the time of
payment. Notwithstanding the foregoing, except in connection with the payment of
all Holdings Obligations on the Holdings Term Loan Maturity Date pursuant to and
in accordance with the limitations in Section 8.2, no payment may be made to any
Holdings Term Loan Lender pursuant to this Section 2.19 until all Senior
Obligations (other than contingent obligations) shall have been Indefeasibly
Paid in full and all Senior Commitments cancelled.
(b) WITHHOLDING OF TAXES. If Company or any other Person is
required by law to make any deduction or withholding on account of any such Tax
from any sum paid or payable by Company to Administrative Agent or any Lender
under any of the Credit Documents: Company shall notify Administrative Agent of
any such requirement or any change in any such requirement as soon as Company
becomes aware of it; Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to pay is
imposed on any Credit Party) for its own account or (if that liability is
imposed on Administrative Agent or such Lender, as the case may be) on behalf of
and in the name of Administrative Agent or such Lender; the sum payable by such
Credit Party in respect of which the relevant deduction, withholding or payment
is required shall be increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, Administrative Agent or such
Lender, as the case may be, receives on the due date a net sum equal to what it
would have received had no such deduction, withholding or payment been required
or made; and within thirty (30) days after paying any sum from which it is
required by law to make any deduction or withholding, and within thirty (30)
days after the due date of payment of any Tax which it is required by clause
(ii) above to pay, Holdings or Company shall deliver to Administrative Agent or
such Holdings Term Loan Lender evidence satisfactory to the other affected
parties of such deduction, withholding or payment and of the remittance thereof
to the relevant taxing or other authority; provided, no such additional amount
shall be required to be paid to any Lender under clause (iii) above except to
the extent that any change after the
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date hereof (in the case of each Lender listed on the signature pages hereof on
the Effective Date) or after the effective date of the Assignment Agreement or
Joinder Agreement pursuant to which such Lender became a Lender (in the case of
each other Lender) in any such requirement for a deduction, withholding or
payment as is mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date hereof or at
the date of such Assignment Agreement or Joinder Agreement, as the case may be,
in respect of payments to such Lender.
(c) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX. Each
Lender that is not a United States Person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes
(a "NON-US LENDER") shall deliver to Administrative Agent for transmission to
Company or to the Company in the case of the Holdings Term Loan Lenders, on or
prior to the Effective Date (in the case of each Lender listed on the signature
pages hereof on the Effective Date) or on or prior to the date of the Assignment
Agreement pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the determination of
Company or in the case of the Senior Lenders Administrative Agent (each in the
reasonable exercise of its discretion), two original copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or any successor forms), properly completed and
duly executed by such Lender, and such other documentation required under the
Internal Revenue Code and reasonably requested by Administrative Agent in case
of the Senior Lenders or Company to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to any
payments to such Lender of principal, interest, fees or other amounts payable
under any of the Credit Documents, or if such Lender is not a "bank" or other
Person described in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form W-8BEN or W-8ECI pursuant to
clause (i) above, a Certificate re Non-Bank Status together with two original
copies of Internal Revenue Service Form W-8 (or any successor form), properly
completed and duly executed by such Lender, and such other documentation
required under the Internal Revenue Code and reasonably requested by Company to
establish that such Lender is not subject to deduction or withholding of United
States federal income tax with respect to any payments to such Lender of
interest payable under any of the Credit Documents. Each Lender required to
deliver any forms, certificates or other evidence with respect to United States
federal income tax withholding matters pursuant to this Section 2.19(c) hereby
agrees, from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or
inaccurate in any material respect, that such Lender shall promptly deliver to
Administrative Agent for transmission to Company or to the Company in the case
of the Holdings Term Loan Lenders two new original copies of Internal Revenue
Service Form W-8BEN or W-8ECI , or a Certificate re Non-Bank Status and two
original copies of Internal Revenue Service Form W-8, as the case may be,
properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and reasonably requested
by Company to confirm or establish that such Lender is not subject to deduction
or withholding of United States federal income tax with respect to payments to
such Lender under the Credit Documents, or notify Administrative Agent (in the
case of a Senior Lender) and Company of its inability to deliver any such forms,
certificates or other evidence.
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Company shall not be required to pay any additional amount to any Non-US Lender
under Section 2.19(b)(iii) if such Lender shall have failed to deliver the
forms, certificates or other evidence referred to in the second sentence of this
Section 2.19(c), or to notify Administrative Agent (in the case of a Senior
Lender) and Company of its inability to deliver any such forms, certificates or
other evidence, as the case may be; PROVIDED, if such Lender shall have
satisfied the requirements of the first sentence of this Section 2.19(c) on the
Effective Date or on the date of the Assignment Agreement or Joinder Agreement
pursuant to which it became a Lender, as applicable, nothing in this last
sentence of Section 2.19(c) shall relieve Company of its obligation to pay any
additional amounts pursuant to Section 2.19(a) in the event that, as a result of
any change in any applicable law, treaty or governmental rule, regulation or
order, or any change in the interpretation, administration or application
thereof, such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the fact that
such Lender is not subject to withholding as described herein.
(d) If any Tax is refunded to Administrative Agent or an
Affected Lender, it will pay such refund to Company to the extent Administrative
Agent or an Affected Lender determines in its sole discretion that such refund
is attributable to any Tax paid by Company and to the extent Company has
previously indemnified the Administrative Agent or Affected Lender therefor
pursuant to this Section 2.19, net of expenses and without interest except any
interest (net of taxes) included in such refund. Company shall return such
refund (together with any taxes, penalties or other charges) in the event any
Agent or any Lender is required to repay such refund. Notwithstanding the
foregoing, nothing in this Section 2.19 shall be construed to (i) entitle
Company or any other Persons to (A) any information determined by any Agent or
Lender, in each case, in its sole discretion, to be confidential or proprietary
information of such Agent or Lender, (B) any tax or financial information of
such Agent or Lender, or (C) inspect or review any books and records of any
Agent or Lender, or (ii) interfere with the rights of any Agent or Lender to
conduct its fiscal or tax affairs in such matter as it deems fit. A certificate
as to the amount of such payment or liability delivered to Company by
Administrative Agent on its own behalf or on behalf of any Lender or Agent shall
be conclusive absent manifest error.
2.20. OBLIGATION TO MITIGATE. Each Lender agrees that, as promptly as
practicable after the officer of such Lender responsible for administering its
Loans becomes aware of the occurrence of an event or the existence of a
condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender to receive payments under Section 2.17, 2.18 or 2.19,
it will, to the extent not inconsistent with the internal policies of such
Lender and any applicable legal or regulatory restrictions, use reasonable
efforts (a) to make, fund or maintain its applicable Commitment or Loans,
including any Affected Loans, through another office of such Lender, or (b) take
such other measures as such Lender may deem reasonable, if as a result thereof
the circumstances which would cause such Lender to be an Affected Lender would
cease to exist or the additional amounts which would otherwise be required to be
paid to such Lender pursuant to Section 2.17, 2.18 or 2.19 would be materially
reduced and if, as determined by such Lender in its sole discretion, the making,
funding or maintaining of such Commitments or Loans through such other office or
in accordance with such other measures, as the case may be, would
64
not otherwise adversely affect such Commitments or Loans or the interests of
such Lender; PROVIDED, such Lender will not be obligated to utilize such other
office pursuant to this Section 2.20 unless Company agrees to pay all
incremental expenses incurred by such Lender as a result of utilizing such other
office as described in clause (i) above. A certificate as to the amount of any
such expenses payable by Company pursuant to this Section 2.20 (setting forth in
reasonable detail the basis for requesting such amount) submitted by such Lender
to Company (with in the case of the Senior Lenders a copy to Administrative
Agent) shall be conclusive absent manifest error.
2.21. DEFAULTING LENDERS. Anything contained herein to the contrary
notwithstanding, in the event that any Lender defaults (a "DEFAULTING LENDER")
in its obligation to fund (a "FUNDING DEFAULT") any Loan (a "DEFAULTED LOAN"),
then (a) during any such period when such default is continuing with respect to
such Defaulting Lender (the "DEFAULT PERIOD"), such Defaulting Lender shall not
be deemed to be a "Lender" for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Credit
Documents; (b) to the extent permitted by applicable law, until such time as the
Default Excess with respect to such Defaulting Lender shall have been reduced to
zero, (i) any voluntary prepayment of the Loans shall, if Company so directs at
the time of making such voluntary prepayment, be applied to the Loans of other
Lenders as if such Defaulting Lender had no Loans outstanding and the Revolving
Exposure and Delayed Draw Term Loan Exposure of such Defaulting Lender were
zero, and (ii) any mandatory prepayment of the Loans shall, if Company so
directs at the time of making such mandatory prepayment, be applied to the Loans
of other Lenders (but not to the Loans of such Defaulting Lender) as if such
Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it
being understood and agreed that Company shall be entitled to retain any portion
of any mandatory prepayment of the Loans otherwise payable by such Credit Party
that is not paid to such Defaulting Lender solely as a result of the operation
of the provisions of this clause (b); (c) such Defaulting Lender's Revolving
Commitment and outstanding Loans shall be excluded for purposes of calculating
the commitment fee payable to Lenders in respect of any day during any Default
Period with respect to such Defaulting Lender, and such Defaulting Lender shall
not be entitled to receive any commitment fee pursuant to Section 2.9 with
respect to such Defaulting Lender's Revolving Commitment in respect of any
Default Period with respect to such Defaulting Lender; (d) the Total Utilization
of Revolving Commitments as at any date of determination shall be calculated as
if such Defaulting Lender had funded all Defaulted Loans of such Defaulting
Lender. No Revolving Commitment of any Lender shall be increased or otherwise
affected, and, except as otherwise expressly provided in this Section 2.21,
performance by Company of its obligations hereunder and the other Credit
Documents shall not be excused or otherwise modified as a result of any Funding
Default or the operation of this Section 2.21. The rights and remedies against a
Defaulting Lender under this Section 2.21 are in addition to other rights and
remedies which Company may have against such Defaulting Lender with respect to
any Funding Default and which Administrative Agent or any Lender may have
against such Defaulting Lender with respect to any Funding Default.
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2.22. REMOVAL OR REPLACEMENT OF A LENDER. Anything contained herein to
the contrary notwithstanding, in the event that: (a) any Lender (an
"INCREASED-COST LENDER") shall give notice to Company that such Lender is an
Affected Lender or that such Lender is entitled to receive payments under
Section 2.17, 2.18 or 2.19, the circumstances which have caused such Lender to
be an Affected Lender or which entitle such Lender to receive such payments
shall remain in effect, and such Lender shall fail to withdraw such notice
within five Business Days after Company's request for such withdrawal; or (b)
any Lender shall become a Defaulting Lender, the Default Period for such
Defaulting Lender shall remain in effect, and such Defaulting Lender shall fail
to cure the default as a result of which it has become a Defaulting Lender
within five Business Days after Company's request that it cure such default; or
(c) in connection with any proposed amendment, modification, termination, waiver
or consent with respect to any of the provisions hereof as contemplated by
Section 10.5(b), the consent of Requisite Lenders shall have been obtained but
the consent of one or more of such other Lenders (each a "NON-CONSENTING
LENDER") whose consent is required shall not have been obtained; then, with
respect to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting
Lender (the "TERMINATED LENDER"), Company may, by giving written notice to
Administrative Agent and any Terminated Lender of its election to do so, elect
to cause such Terminated Lender (and such Terminated Lender hereby irrevocably
agrees) to assign its outstanding Loans and its Revolving Commitments, if any,
in full to one or more Eligible Assignees (each a "REPLACEMENT LENDER") in
accordance with the provisions of Section 10.6 and Terminated Lender shall pay
any fees payable thereunder in connection with such assignment; PROVIDED, (1) on
the date of such assignment, the Replacement Lender shall pay to Terminated
Lender an amount equal to the sum of (A) an amount equal to the principal of,
and all accrued interest on, all outstanding Loans of the Terminated Lender and
(B) an amount equal to all accrued, but theretofore unpaid fees owing to such
Terminated Lender pursuant to Section 2.9; (2) on the date of such assignment,
Company shall pay any amounts payable to such Terminated Lender pursuant to
Section 2.17(c), 2.18 or 2.19 or otherwise as if it were a prepayment; and (3)
in the event such Terminated Lender is a Non- Consenting Lender, Borrower may
not make such election unless it also makes such election with respect to each
other Lender which is a Non-Consenting Lender. Upon the prepayment of all
amounts owing to any Terminated Lender and the termination of such Terminated
Lender's Revolving Commitments, if any, such Terminated Lender shall no longer
constitute a "Lender" for purposes hereof; PROVIDED, any rights of such
Terminated Lender to indemnification hereunder shall survive as to such
Terminated Lender.
SECTION 3. CONDITIONS PRECEDENT
3.1. A. EFFECTIVE DATE. The obligation of Senior Lenders to make a
Credit Extension on or after the Effective Date is subject to the satisfaction,
or waiver in accordance with Section 10.5, of the following conditions on or
before the Effective Date:
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(a) CREDIT DOCUMENTS AND RELATED AGREEMENTS. Administrative
Agent and Syndication Agent shall have received sufficient copies of each Credit
Document to be executed on the Effective Date originally executed and delivered
by each applicable Credit Party for each Lender.
(b) ORGANIZATIONAL DOCUMENTS; INCUMBENCY. Administrative Agent
and Syndication Agent shall have received (i) sufficient copies of each
Organizational Document originally executed and delivered by each Credit Party,
as applicable, and, to the extent applicable, certified as of a recent date by
the appropriate governmental official, for each Lenders and its counsel, each
dated the Closing Date or a recent date prior thereto; (ii) signature and
incumbency certificates of the officers of such Person executing the Credit
Documents to which it is a party, dated as of the Closing Date; (iii)
resolutions of the Board of Directors or similar governing body of each Credit
Party approving and authorizing the execution, delivery and performance of this
Agreement and the other Credit Documents to which it is a party or by which it
or its assets may be bound as of the Closing Date, certified as of the Closing
Date by its secretary or an assistant secretary as being in full force and
effect without modification or amendment; (iv) a good standing certificate from
the applicable Governmental Authority of each Credit Party's jurisdiction of
incorporation, organization or formation and in each jurisdiction in which it is
qualified as a foreign corporation or other entity to do business, each dated a
recent date prior to the Closing Date; and (v) such other related documents as
Administrative Agent or Syndication Agent may reasonably request.
(c) ORGANIZATIONAL AND CAPITAL STRUCTURE. The organizational
structure and the capital structure of Holdings and its Subsidiaries shall be as
set forth on SCHEDULE 4.1.
(d) [not used]
(e) GOVERNMENTAL AUTHORIZATIONS AND CONSENTS. Except to the
extent described in SCHEDULE 3.1(e), each Credit Party shall have obtained all
Governmental Authorizations and all consents of other Persons, in each case that
are necessary or advisable in connection with the transactions contemplated by
the Credit Documents and each of the foregoing shall be in full force and effect
and in form and substance reasonably satisfactory to Syndication Agent and
Administra tive Agent. All applicable waiting periods shall have expired without
any action being taken or threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the transactions
contemplated by the Credit Documents and no action, request for stay, petition
for review or rehearing, reconsideration, or appeal with respect to any of the
foregoing shall be pending, and the time for any applicable agency to take
action to set aside its consent on its own motion shall have expired.
(f) PERSONAL AND MIXED PROPERTY COLLATERAL. In order to
maintain in favor of Collateral Agent, for the benefit of Secured Parties, a
valid and perfected First Priority security interest in the personal property
Collateral, Collateral Agent shall have received:
67
(i) the results of a recent search, by a Person
satisfactory to Syndication Agent and Collateral Agent, of UCC
financing statements and fixture filings and all judgment and tax lien
filings made with respect to any personal or mixed property of any
Credit Party, together with copies of all such filings disclosed by
such search, and (2) UCC termination statements duly executed by all
applicable Persons for filing in all applicable jurisdictions as may be
necessary to terminate any effective UCC financing statements or
fixture filings disclosed in such search (other than any such financing
statements or fixture filings in respect of Permitted Liens);
(ii) UCC financing statements, including fixture
filings, duly executed by each applicable Credit Party with respect to
all personal and mixed property Collateral of such Credit Party, for
filing in all jurisdictions as may be necessary or, in the opinion of
Collateral Agent, desirable to perfect the security interests created
in such Collateral pursuant to the Collateral Documents under the UCC;
and
(iii) in the case of each Leasehold Property listed
on Schedule 4.13(c), a Landlord Property Collateral Access Agreement
with respect thereto; and
(iv) evidence that each Credit Party shall have taken
or caused to be taken any other action, executed and delivered or
caused to be executed and delivered any other agreement, document and
instrument (including, without limitation, any agreements governing
deposit and/or security accounts, including, without limitation, such
agreements as are necessary to create the liens referred to in the
final sentence of Section 5.15(b) ), and made or caused to be made any
other filing and recording (other than as set forth herein) required
pursuant to each of the Pledge and Security Agreements as amended on
the Effective Date or otherwise reasonably required by Collateral
Agent.
(g) FINANCIAL STATEMENTS; PROJECTIONS. Lenders shall have
received from Holdings (i) the Historical Financial Statements, (ii) a financial
forecast dated July, 2001 for Holdings and its Subsidiaries for the period from
Fiscal Year 2000 through and including Fiscal Year 2008 (with Fiscal Years 2000,
2001, 2002 and 2003 detailed by Fiscal Quarter); and all of the foregoing
financial statements and other information will not be inconsistent, in any
material respect, with any information previously provided to Lenders.
(h) EVIDENCE OF INSURANCE. Syndication Agent and
Administrative Agent shall have received a certificate from Holding's and
Company's insurance broker or other evidence satisfactory to them that all
insurance required to be maintained pursuant to Section 5.5 is in full force and
effect and that Administrative Agent, for the benefit of Lenders has been named
as additional insured and loss payee thereunder to the extent required under
Section 5.5.
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(i) OPINIONS OF COUNSEL TO CREDIT PARTIES. Lenders and their
respective counsel shall have received originally executed copies of the
favorable written opinions of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇▇▇▇ Berlin Shereff
▇▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., as counsel for Credit Parties, and (ii)
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ as counsel for the Holdings Term Loan Lenders , each in the
forms of EXHIBIT D and as to such other matters as Administrative Agent or
Syndication Agent may reasonably request, and addressed to the Agents and the
Lenders and otherwise in form and substance reasonably satisfactory to
Administrative Agent and Syndication Agent and its counsel, dated the Effective
Date.
(j) OPINIONS OF COUNSEL TO SYNDICATION AGENT. Senior Lenders
shall have received originally executed copies of one or more favorable written
opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to Syndication
Agent, dated as of the Effective Date, in form and substance reasonably
satisfactory to Syndication Agent.
(k) FEES. Company shall have paid to Agents the fees payable
on the Effective Date referred to in Section 2.9(c).
(l) SOLVENCY CERTIFICATE. On the Closing Date, Syndication
Agent, Administrative Agent and Lenders shall have received a Solvency
Certificate from Holdings and Company.
(m) EFFECTIVE DATE CERTIFICATE. Company shall have delivered
to Syndication Agent and Administrative Agent an originally executed Effective
Date Certificate, together with all attachments thereto.
(n) MATERIAL CONTRACTS. Holdings and its Subsidiaries shall
have delivered to Syndication Agent and Administrative Agent copies of all
Material Contracts in effect on the Effective Date which were not delivered
pursuant to Section 3.1(n) of the Existing Credit Agreement.
(o) EFFECTIVE DATE TRANSACTIONS. Each of the Exchange,
Repurchase and Effective Date Preferred Stock Issuance shall have occurred on
terms and pursuant to documentation reasonably satisfactory to the Syndication
Agent and the Administrative Agent. The Exchange and the Repurchase shall
together involve holders of an aggregate amount in excess of 50% of the
aggregate principal amount of the Holdings Senior Notes. The Holdings Term Loans
shall have been borrowed in full.
(p) NTFC AGREEMENT. The NTFC Agreement shall have been amended
to effect corresponding changes to the financial covenants contained therein to
the amendments to the Existing Credit Agreement effected hereby, and to permit
the Effective Date Transactions. Any amendments to the NTFC Agreement shall be
in form and substance satisfactory to the Syndication Agent and Administrative
Agent.
(q) COLLATERAL ACCESS DEPOSIT ACCOUNT. Holdings shall have
established (i) the Collateral Access Deposit Account, all parties thereto shall
have executed and delivered the Collateral Access Deposit Agreement or (ii) such
other temporary deposit arrangements as are reasonably
69
satisfactory to the Syndication Agent and the Administrative Agent, and Holdings
shall have paid into the Collateral Access Deposit Account, or such other
temporary account referred to above, the Collateral Access Deposit in respect of
each Leasehold Property listed on Schedule 4.13(c) marked with an asterisk.
Each Lender, by delivering its signature page to this
Agreement (other than in escrow for later release upon the instruction of such
Lender) on the Effective Date or by giving instructions for the release of its
signature pages previously delivered by it in escrow (as the case may be) or
such date, shall be deemed to have acknowledged receipt of, and consented to and
approved, each Credit Document and each other document required to be approved
by any Agent, Requisite Lenders or Lenders, as applicable, on or prior to the
Effective Date.
3.1. B. HOLDINGS TERM LOANS. The obligation of each Holdings Term Loan
Lender to make any Holdings Term Loan on the Effective Date, is subject to the
satisfaction, or waiver by Requisite Class Lenders having Holdings Term Loan
Exposure of the following conditions precedent:
(a) all conditions set out in Section 3.1A above shall have
been satisfied or waived in accordance with the provision thereof;
(b) all conditions set out in Section 2 of the Preferred Stock
Purchase and Loan Commitment Agreement dated August 9,2001 between inter alios,
Holdings and the Holdings Term Loan Lenders, shall have been satisfied or waived
in accordance with the provisions thereof;
(c) as of the Effective Date, the representations and
warranties contained herein and in the other Credit Documents shall be true and
correct in all material respects on and as of the Effective Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representa tions and warranties shall have been true and correct in
all material respects on and as of such earlier date; and
(d) as of the Effective Date, no event shall have occurred and
be continuing or would result from the making of the Holdings Term Loans that
would constitute an Event of Default or a Default;
3.2. CONDITIONS TO EACH CREDIT EXTENSION.
(a) CONDITIONS PRECEDENT. The obligation of each Lender to
make any Loan (other than a Holdings Term Loan) on any Credit Date, including
the Effective Date, are subject to the satisfaction, or waiver in accordance
with Section 10.5, of the following conditions precedent (in addition to those
conditions precedent set forth in Section 3.1 hereof):
(i) Administrative Agent shall have received a
Funding Notice together with the Requisite Funding Certificates, in
each case fully executed and delivered;
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(ii) after making any Tranche A Revolving Loans
requested on such Credit Date, the Total Utilization of Tranche A
Revolving Commitments shall not exceed the Tranche A Revolving
Commitments then in effect;
(iii) after making any Tranche B Revolving Loans
requested on such Credit Date, the Total Utilization of Tranche B
Revolving Commitments shall not exceed the Tranche B Revolving
Commitments then in effect;
(iv) after giving effect to the making of each Loan,
Holdings and Company shall be in compliance, on a pro forma basis as of
the last day of the most recently ended Fiscal Quarter, with the
financial covenants set forth in Section 6.6 or 6.7, as applicable.
(v) as of such Credit Date, the representations and
warranties contained herein and in the other Credit Documents shall be
true and correct in all material respects on and as of that Credit Date
to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall
have been true and correct in all material respects on and as of such
earlier date;
(vi) as of such Credit Date, no event shall have
occurred and be continuing or would result from the consummation of the
applicable Credit Extension that would constitute an Event of Default
or a Default;
(vii) as of such Credit Date, Company shall have
provided Administrative Agent and Syndication Agent such information,
as either may reasonably request, confirming the use of proceeds of
Loan in accordance with Section 2.4;
(viii) on or before such Credit Date, Company shall
have satisfied any and all post-closing obligations required to have
been satisfied by such Credit Date pursuant to Section 5.15, including
without limitation, the payment into the Collateral Access Deposit
Account of any Collateral Access Deposit required to be made; and
(ix) with respect to any proposed borrowing of
Tranche B Revolving Loans, on or before such Credit Date, the Company
shall have demonstrated, as of March 31, 2003 in the relevant
Compliance Certificate, compliance with all covenants in Sections 6.6
or 6.7 hereof; PROVIDED that notwithstanding anything in this Agreement
to the contrary, no Lender having Tranche B Revolving Loan Exposure
shall be required to fund a Tranche B Revolving Loan on such Credit
Date unless such compliance is demonstrated with respect to Section 6.6
or 6.7 as such covenants are calculated (including, without limitation,
by reference to defined terms and any other provisions
71
of this Agreement as such definitions and provisions are in effect as
of the Effective Date) and effective as of the Effective Date.
(b) NOTICES. Any Notice shall be executed by an Authorized
Officer in a writing delivered to Administrative Agent. In lieu of delivering a
Notice, Company may give Administrative Agent telephonic notice by the required
time of any proposed borrowing or conversion/continuation, as the case may be;
PROVIDED each such notice shall be promptly confirmed in writing by delivery of
the applicable Notice to Administrative Agent on or before the applicable date
of borrowing or continuation/conversion. Neither Administrative Agent nor any
Lender shall incur any liability to Company in acting upon any telephonic notice
referred to above that Administrative Agent believes in good faith to have been
given by a duly authorized officer or other person authorized on behalf of
Company or for otherwise acting in good faith.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make
each Credit Extension to be made thereby, each Credit Party represents and
warrants to each Lender, on the Effective Date and on each Credit Date, that the
following statements are true and correct except to the extent they specifically
relate to a earlier date, in which case such statements shall have been true and
correct as of such earlier date.
4.1. ORGANIZATION; REQUISITE POWER AND AUTHORITY; QUALIFICATION. Each
of Holdings and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization as identified
in SCHEDULE 4.1, (b) has all requisite power and authority to own and operate
its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Credit Documents and the Effective Date Transaction
Documents to which it is a party and to carry out the transactions contemplated
thereby, and (c) is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except in jurisdictions where the failure to be so
qualified or in good standing has not had, and could not be reasonably expected
to have, a Material Adverse Effect. Schedule 4.1 is a true, complete and
accurate list of all Subsidiaries of Holdings as of the Effective Date.
4.2. CAPITAL STOCK AND OWNERSHIP. The Capital Stock of each of Holdings
and its Subsidiaries has been duly authorized and validly issued and is fully
paid and non-assessable. Except as set forth on SCHEDULE 4.2, as of the date
hereof, there is no existing option, warrant, call, right, commitment or other
agreement to which Holdings or any of its Subsidiaries is a party requiring, and
there is no membership interest or other Capital Stock of Holdings or any of its
Subsidiaries outstanding which upon conversion or exchange would require, the
issuance by Holdings or any of its Subsidiaries of any additional membership
interests or other Capital Stock of Holdings or any of its Subsidiaries or other
Securities
72
convertible into, exchangeable for or evidencing the right to subscribe for or
purchase, a membership interest or other Capital Stock of Holdings or any of its
Subsidiaries. SCHEDULE 4.2 correctly sets forth the ownership interest of
Holdings and each of its Subsidiaries as of the Effective Date.
4.3. DUE AUTHORIZATION. The execution, delivery and performance of the
Credit Documents and the Effective Date Transaction Documents have been duly
authorized by all necessary action on the part of each Credit Party that is a
party thereto.
4.4. NO CONFLICT. The execution, delivery and performance by Credit
Parties of the Credit Documents and the Effective Date Transaction Documents to
which they are parties and the consummation of the transactions contemplated by
the Credit Documents and the Effective Date Transaction Documents do not and
will not (a) violate any provision of any law or any governmental rule or
regulation applicable to Holdings or any of its Subsidiaries, any Governmental
Authorization, any of the Organizational Documents of Holdings or any of its
Subsidiaries, or any order, judgment or decree of any court or other agency of
government binding on Holdings or any of its Subsidiaries; (b) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation under any Material Contract of Holdings
or any of its Subsidiaries; (c) result in or require the creation or imposition
of any Lien upon any of the properties or assets of Holdings or any of its
Subsidiaries (other than any Liens created under any of the Credit Documents in
favor of Collateral Agent, on behalf of Secured Parties); or (d) require any
approval of stockholders or members or any approval or consent of any Person
under any Contractual Obligation of Holdings or any of its Subsidiaries, except
for such approvals or consents which will be obtained on or before the Closing
Date and disclosed in writing to Administrative Agent.
4.5. GOVERNMENTAL CONSENTS. The execution, delivery and performance by
Credit Parties of the Credit Documents and the Effective Date Transaction
Documents to which they are parties and the consummation of the transactions
contemplated by the Credit Documents do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any Governmental Authority except as otherwise set forth on SCHEDULE
4.5, and except for filings and recordings with respect to the Collateral to be
made, or otherwise delivered to Collateral Agent, as of the Effective Date.
4.6. BINDING OBLIGATION. Each of the Credit Documents and the Effective
Date Transaction Documents has been duly executed and delivered by each Credit
Party that is a party thereto and is the legally valid and binding obligation of
such Credit Party, enforceable against such Credit Party in accordance with its
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
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4.7. HISTORICAL FINANCIAL STATEMENTS. The Historical Financial
Statements were prepared in conformity with GAAP and fairly present, in all
material respects, the financial position, on a consolidated basis, of the
Persons described in such financial statements as at the respective dates
thereof and the results of operations and cash flows, on a consolidated basis,
of the entities described therein for each of the periods then ended, subject,
in the case of any unaudited financial statements, to changes resulting from
audit and normal year-end adjustments. As of the Closing Date, except as set
forth on SCHEDULE 4.7, neither Holdings nor any of its Subsidiaries has any
contingent liability or liability for taxes, long-term lease or unusual forward
or long-term commitment that is not reflected in the Historical Financial
Statements or the notes thereto and which in any such case is material in
relation to the business, operations, properties, assets, condition (financial
or otherwise) or prospects of Holdings and any of its Subsidiaries taken as a
whole.
4.8. PROJECTIONS. On and as of the Effective Date, the financial
forecast of Holdings and its Subsidiaries delivered pursuant to Section 3.1(g)
(the "PROJECTIONS") is based on good faith estimates and assumptions made by the
management of Holdings; PROVIDED, the Projections are not to be viewed as facts
and that actual results during the period or periods covered by the Projections
may differ from such Projections and that the differences may be material;
PROVIDED FURTHER, as of the Effective Date, management of Holdings believed that
the Projections were reasonable and attainable.
4.9. NO MATERIAL ADVERSE CHANGE. Since December 31, 2000, no event or
change has occurred that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect.
4.10. NO RESTRICTED JUNIOR PAYMENTS. Other than with respect to the
Repurchase, since December 31, 2000, neither Holdings nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made, or set
apart any sum or property for, any Restricted Junior Payment or agreed to do so
except as permitted pursuant to Section 6.4.
4.11. ADVERSE PROCEEDINGS, ETC. There are no Adverse Proceedings,
individually or in the aggregate, that could reasonably be expected to have a
Material Adverse Effect. Neither Holdings nor any of its Subsidiaries (a) is in
violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (b) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
4.12. PAYMENT OF TAXES. Except as otherwise permitted under Section
5.3, all tax returns and reports of Holdings and its Subsidiaries required to be
filed by any of them have been timely filed, and all taxes shown on such tax
returns to be due and payable and all assessments, fees and other governmental
charges upon Holdings and its Subsidiaries and upon their respective properties,
assets, income, businesses
74
and franchises which are due and payable have been paid when due and payable.
Holdings knows of no proposed tax assessment against Holdings or any of its
Subsidiaries which is not being actively contested by Holdings or such
Subsidiary in good faith and by appropriate proceedings; PROVIDED, such reserves
or other appropriate provisions, if any, as shall be required in conformity with
GAAP shall have been made or provided therefor.
4.13. PROPERTIES.
(a) TITLE. Each of Holdings and its Subsidiaries has (i) good,
sufficient and marketable legal title to (in the case of fee interests in real
property), and (ii) valid leasehold interests in (in the case of leasehold
interests in real property), all of their respective properties and assets
reflected in their respective Historical Financial Statements referred to in
Section 4.7 or, if later, in the most recent financial statements delivered
pursuant to Section 5.1, in each case except for assets disposed of since the
date of such financial statements in the ordinary course of business or as
otherwise permitted under Section 6.8. Except as permitted by this Agreement,
all such properties and assets are free and clear of Liens.
(b) REAL ESTATE. As of the Effective Date, SCHEDULE 4.13(b)
contains a true, accurate and complete list of (i) all Real Estate Assets, and
(ii) all material leases, subleases or assignments of leases (together with all
amendments, modifications, supplements, renewals or extensions of any thereof)
affecting each Real Estate Asset of any Credit Party, regardless of whether such
Credit Party is the landlord or tenant (whether directly or as an assignee or
successor in interest) under such lease, sublease or assignment. Except as
specified in SCHEDULE 4.13(b), each agreement listed in clause (ii) of the
immediately preceding sentence is in full force and effect and Holdings or the
Company does not have knowledge of any default that has occurred and is
continuing thereunder which has had and could reasonably be expected to have a
Material Adverse Effect, and each such agreement constitutes the legally valid
and binding obligation of each applicable Credit Party, enforceable against such
Credit Party in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles.
(c) LANDLORD PERSONAL PROPERTY COLLATERAL ACCESS AGREEMENTS.
As of the Effective Date, Landlord Personal Property Collateral Access
Agreements have been executed by all requisite parties thereto and are in full
force and effect with respect to each Leasehold Property listed on Schedule
4.13(c). All Collateral located at any such Leasehold Property is subject to and
is specifically covered by a Landlord Personal Property Collateral Access
Agreement (with any modifications, amendments or waivers thereof as the
Syndication Agent and Administrative Agent shall have in their sole discretion
approved, subject to the express provisions of Section 5.15) between Holdings or
its relevant Domestic Subsidiary and the current landlord of such Leasehold
Property.
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4.14. ENVIRONMENTAL MATTERS. Neither Holdings nor any of its
Subsidiaries is subject to any Environmental Claim which could reasonably be
expected to have a Material Adverse Effect, nor to their knowledge have there
been any Hazardous Material Activities which could reasonably be expected to
lead to Environmental Claims having a Material Adverse Effect.
4.15. NO DEFAULTS. Neither Holdings nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any of its Contractual Obligations, and no
condition exists which, with the giving of notice or the lapse of time or both,
could constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, could not reasonably be expected
to have a Material Adverse Effect.
4.16. MATERIAL CONTRACTS. SCHEDULE 4.16A contains a true, correct and
complete list of all the Material Contracts in effect on the Effective Date, and
SCHEDULE 4.16B contains a true, correct and complete list of all the Material
Contracts entered into after the Closing Date and in effect on the Effective
Date and, in each case, except as described thereon, all such Material Contracts
are in full force and effect and no defaults currently exist thereunder which
defaults could reasonably be expected to have a Material Adverse Effect.
4.17. GOVERNMENTAL REGULATION. Neither Holdings nor any of its
Subsidiaries (except to the extent disclosed on SCHEDULE 4.17) is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940 or under any other federal or
state statute or regulation which may limit its ability to incur Indebtedness or
which may otherwise render all or any portion of the Obligations unenforceable.
Neither Holdings nor any of its Subsidiaries is a "registered investment
company" or company "controlled" by a "registered investment company" or a
"principal underwriter" of a "registered investment company" as such terms are
defined in the Investment Company Act of 1940.
4.18. MARGIN STOCK. Neither Holdings nor any of its Subsidiaries 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. No
part of the proceeds of the Loans made to Company will be used to purchase or
carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
4.19. EMPLOYEE MATTERS. Neither Holdings nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to have a
Material Adverse Effect. There is (a) no unfair labor practice complaint pending
against Holdings or any of its Subsidiaries, or to the knowledge of Holdings and
Company, threatened against any of them before the National Labor Relations
Board and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement that is so pending against Holdings or any of
its Subsidiaries or to the knowledge of Holdings and Company,
76
threatened against any of them, (b) no strike or work stoppage in existence or
threatened involving Holdings or any of its Subsidiaries and (c) to the
knowledge of Holdings and Company, no union representation question existing
with respect to the employees of Holdings or any of its Subsidiaries and, to the
knowledge of Holdings and Company, no union organization activity that is taking
place, except (with respect to any matter specified in clause (a), (b) or (c)
above, either individually or in the aggregate) such as is not reasonably likely
to have a Material Adverse Effect.
4.20. EMPLOYEE BENEFIT PLANS. Holdings, each of its Subsidiaries and
each of their respective ERISA Affiliates are in compliance with all applicable
provisions and requirements of ERISA and the Internal Revenue Code and the
regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan except for such violations which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Each Employee Benefit Plan which is intended to qualify under Section 401(a) of
the Internal Revenue Code is so qualified. No material liability to the PBGC
(other than required premium payments), the Internal Revenue Service, any
Employee Benefit Plan or any Trust established under Title IV of ERISA has been
or is expected to be incurred by Holdings, any of its Subsidiaries or any of
their ERISA Affiliates. No ERISA Event has occurred or is reasonably expected to
occur. Except to the extent required under Section 4980B of the Internal Revenue
Code or similar state laws, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or
former employee of Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates. As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), does not exceed $1,000,000. As of the most recent
valuation date for each Multiemployer Plan for which the actuarial report is
available, the potential liability of Holdings, its Subsidiaries and their
respective ERISA Affiliates for a complete withdrawal from such Multiemployer
Plan (within the meaning of Section 4203 of ERISA), when aggregated with such
potential liability for a complete withdrawal from all Multiemployer Plans,
based on information available pursuant to Section 4221(e) of ERISA, does not
exceed $1,000,000. Holdings, each of its Subsidiaries and each of their ERISA
Affiliates have complied with the requirements of Section 515 of ERISA with
respect to each Multiemployer Plan and are not in material "default" (as defined
in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer
Plan.
4.21. SOLVENCY. Each Credit Party is and, upon the incurrence of any
Obligation by such Credit Party on any date on which this representation and
warranty is made, will be, Solvent.
4.22. COMPLIANCE WITH STATUTES, ETC. Each of Holdings and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all Governmental
Authorities, in respect of the conduct of its business and the ownership of its
property (including compliance with all applicable Environmental Laws with
respect to any Real Estate Asset or
77
governing its business and the requirements of any permits issued under such
Environmental Laws with respect to any such Real Estate Asset or the operations
of Holdings or any of its Subsidiaries), except such non-compliance that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
4.23. DISCLOSURE. No representation or warranty of any Credit Party
contained in any Credit Document or in any other documents, certificates or
written statements furnished to Lenders by or on behalf of Holdings or any of
its Subsidiaries for use in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact (known to Holdings or Company, in the case of any document not furnished by
either of them) necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by
Holdings and Company to be reasonable at the time made, it being recognized by
Lenders that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections may differ from the projected results. There are no facts known (or
which should, upon the reasonable exercise of diligence, be known) to Holdings
or Company (other than matters of a general economic nature) that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect and that have not been disclosed herein or in such other
documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
4.24. DARK FIBER SUBSIDIARY. Prior to the First Credit Extension under
the Existing Credit Agreement, Company had validly assigned all of its rights
and obligations under each Related Company Agreement to Dark Fiber Subsidiary in
accordance with the terms of the applicable Related Company Agreement. Neither
Company nor any Subsidiary other than Dark Fiber Subsidiary has since entered
into, or has incurred any obligations of any nature under, any "dark fiber"
Capital Lease.
4.25. EXISTING CREDIT AGREEMENT. Immediately prior to the Effective
Date, no event had occurred which had not been validly waived by Existing
Lenders that constituted an Event of Default or a Default (each as defined in
the Existing Credit Agreement) and all representations and warranties under the
Existing Credit Agreement were true and correct as of such time.
4.26. EFFECTIVE DATE TRANSACTION DOCUMENTS. SCHEDULE 4.21 contains a
true, correct and complete list of all operative, agreements delivered by a
Credit Party in connection with the Effective Date Transactions, and except as
described therein, on the date hereof all such Effective Date Transaction
Documents are in full force and effect and no defaults currently exist
thereunder which defaults could reasonably be expected to have a Material
Adverse Effect and no amendments have been made thereto which violate Section
6.14.
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SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that so long as any Commitment
is in effect and until payment in full in same day funds of all Obligations,
each Credit Party shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 5.
5.1. FINANCIAL STATEMENTS AND OTHER REPORTS. Holdings will deliver to
Administrative Agent and Lenders:
(a) (i) MONTHLY REPORTS. As soon as available, and in any
event within thirty (30) days after the end of each month (other than the last
month of any Fiscal Quarter) ending after the Effective Date, (x) the
consolidated balance sheet of Holdings and its Subsidiaries as at the end of
such month and the related consolidated statements of income, and cash flows of
Holdings and its Subsidiaries and (y) detailed reports in respect of Access Line
count, Access Lines sold, Access Lines installed, churn, days sales outstanding,
revenue and EBITDA and pre-corporate allocations EBITDA by market, for such
month and for the period from the beginning of the then current Fiscal Year to
the end of such month, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year
and the corresponding figures from the Financial Plan for the current Fiscal
Year (except in respect of any period to December 31, 2001), to the extent
prepared on a monthly basis, all in reasonable detail, together with a Financial
Officer Certification and a Narrative Report with respect thereto and (z) such
other additional financial information as (1) have been submitted to the Board
of Directors of Holdings in accordance with Holdings' regular reporting
practices and/or (2) may be reasonably requested by the Administrative Agent and
the Syndication Agent;
(ii) QUARTERLY FINANCIAL STATEMENTS. As soon as available, and
in any event within forty-five days after the end of each Fiscal Quarter of each
Fiscal Year, the consolidated balance sheet of Holdings and its Subsidiaries as
at the end of such Fiscal Quarter and the related consolidated statements of
income, stockholders' equity and cash flows of Holdings and its Subsidiaries for
such Fiscal Quarter and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of the
previous Fiscal Year and the corresponding figures from the Financial Plan for
the current Fiscal Year, all in reasonable detail, together with (1) a Financial
Officer Certification, (2) a copy of Holdings' Form 10-Q or 10-K, as
appropriate, as filed for such Fiscal Quarter, (3) a Narrative Report, (4) in
respect of the final month of such Fiscal Quarter only, the information detailed
in Section 5.1(a)(i)(y) and (5) revised SCHEDULES 4.1 and 4.2 (if necessary)
reflecting all changes in the organizational structure and capital structure of
Holdings and its Subsidiaries since the delivery of the last quarterly financial
information, which revised SCHEDULES 4.1 and 4.2 will be deemed to amend the
then-existing SCHEDULES 4.1 and 4.2 for all purposes under this Agreement;
79
(b) ANNUAL FINANCIAL STATEMENTS. As soon as available, and in
any event within ninety days after the end of each Fiscal Year, (i) the
consolidated balance sheet of Holdings and its Subsidiaries as at the end of
such Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows of Holdings and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year and the corresponding figures from the
Financial Plan for the Fiscal Year covered by such financial statements, in
reasonable detail, together with a Financial Officer Certification and a copy of
Holdings' Form 10-K as filed for such Fiscal Year; (ii) with respect such
consolidated financial statements a report thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or
other independent certified public accountants of recognized national standing
selected by Holdings, and reasonably satisfactory to Administrative Agent (which
report shall be unqualified as to going concern and scope of audit, and shall
state that such consolidated financial statements fairly present, in all
material respects, the consolidated financial position of Holdings and its
Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except as otherwise disclosed in such
financial statements) and that the examination by such accountants in connection
with such consolidated financial statements has been made in accordance with
generally accepted auditing standards) together with a written statement by such
independent certified public accountants stating that their audit examination
has included a review of the terms of the Credit Documents, whether, in
connection therewith, any condition or event that constitutes a Default or an
Event of Default has come to their attention and, if such a condition or event
has come to their attention, specifying the nature and period of existence
thereof, and that nothing has come to their attention that causes them to
believe that the information contained in any Compliance Certificate is not
correct or that the matters set forth in such Compliance Certificate are not
stated in accordance with the terms hereof; (iii) a Narrative Report, and (iv)
revised SCHEDULES 4.1 and 4.2 (if necessary) reflecting all changes in the
organizational structure and capital structure of Holdings and its Subsidiaries
since the delivery of the last quarterly financial information, which revised
SCHEDULES 4.1 and 4.2 will be deemed to amend the then-existing SCHEDULES 4.1
and 4.2 for all purposes under this Agreement;
(c) COMPLIANCE CERTIFICATE. Together with each delivery of
financial statements of Holdings and its Subsidiaries pursuant to Sections
5.1(a) and 5.1(b), a duly executed and completed Compliance Certificate;
(d) STATEMENTS OF RECONCILIATION AFTER CHANGE IN ACCOUNTING
PRINCIPLES. If, as a result of any change in accounting principles and policies
from those used in the preparation of the Historical Financial Statements, the
consolidated financial statements of Holdings and its Subsidiaries delivered
pursuant to Section 5.1(a) or 5.1(b) will differ in any material respect from
the consolidated financial statements that would have been delivered pursuant to
such subdivisions had no such change in accounting principles and policies been
made, then, together with the first delivery of such financial statements after
such change, one or more a statements of reconciliation for the immediately
preceding quarterly and annual prior financial statements in form and substance
reasonably satisfactory to Administrative Agent;
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(e) promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements sent or made
available generally by Holdings to its security holders acting in such capacity
or by any Subsidiary of Holdings to its security holders other than Holdings or
another Subsidiary of Holdings, (ii) all regular and periodic reports (but not
including, unless requested by Administrative Agent, routine reports regularly
filed with the Federal and state commissions with jurisdiction over
telecommunications matters) and all registration statements (other than on Form
S-8 or a similar form) and prospectuses, if any, filed by Company, Holdings or
any of their Subsidiaries with any securities exchange or with the Securities
and Exchange Commission or any governmental or private regulatory authority,
(iii) all press releases and other statements made available generally by
Holdings or any of its Subsidiaries to the public concerning material
developments in the business of Holdings or any of its Subsidiaries and (iv) all
consultant reports and other materials and information sent to or made available
to the Holdings Term Loan Lenders in their capacity as holders of Holdings Term
Loans or holders of the preferred stock of Holdings issued pursuant to the
Effective Date Preferred Stock Issuance;
(f) NOTICE OF DEFAULT. Promptly upon any executive officer of
Holdings or Company obtaining knowledge (i) of any condition or event that
constitutes a Default or an Event of Default or that notice has been given to
Company with respect thereto; (ii) that any Person has given any notice to
Holdings or any of one of its Subsidiaries or taken any other action with
respect to any event or condition set forth in Section 8.1(b); (iii) of any
condition or event of a type required to be disclosed in a current report on
Form 8-K of the Securities and Exchange Commission; or (iv) of the occurrence of
any event or change that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect, a certificate of one of its Authorized
Officers specifying the nature and period of existence of such condition, event
or change, or specifying the notice given and action taken by any such Person
and the nature of such claimed Event of Default, Default, default, event or
condition, and what action Company has taken, is taking and proposes to take
with respect thereto;
(g) NOTICE OF LITIGATION. Promptly upon any officer of
Holdings or Company obtaining knowledge of (i) the institution of, or
non-frivolous written threat of, any Adverse Proceeding not previously disclosed
in writing by Company to Lenders, or (ii) any material development in any
Adverse Proceeding that, in the case of either (i) or (ii) if adversely
determined, could be reasonably expected (taking into account reasonably likely
as opposed to merely asserted damages and/or relief sought) to have a Material
Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other information
as may be reasonably available to Holdings or Company to enable Lenders and
their counsel to evaluate such matters;
(h) ERISA. Promptly upon becoming aware of the occurrence of
or forthcoming occurrence of any ERISA Event, a written notice specifying the
nature thereof, what action Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates has taken, is taking or proposes to take with
respect thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the
81
Department of Labor or the PBGC with respect thereto; and with reasonable
promptness, copies of each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) filed by Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates with the Internal Revenue Service with respect
to each Pension Plan; all notices received by Holdings, any of its Subsidiaries
or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor
concerning an ERISA Event; and copies of such other documents or governmental
reports or filings relating to any Employee Benefit Plan as Administrative Agent
shall reasonably request;
(i) FINANCIAL PLAN. As soon as practicable and in any event no
later than forty-five (45) days after the beginning of each Fiscal Year, a
consolidated plan and financial forecast for such Fiscal Year and the next three
succeeding Fiscal Years in form satisfactory to the Syndication Agent and the
Administrative Agent (a "FINANCIAL PLAN"), including (i) a forecasted
consolidated balance sheet and forecasted consolidated statements of income and
cash flows of Holdings and its Subsidiaries for each such Fiscal Year, together
with pro forma Compliance Certificates for each such Fiscal Year and an
explanation of the assumptions on which such forecasts are based and (ii)
forecasted consolidated statements of income and cash flows of Holdings and its
Subsidiaries for each month of each such Fiscal Year, together with an
explanation of the assumptions on which such forecasts are based. Holdings will
deliver a draft of such Financial Plan (in the form submitted to the Board of
Directors and incorporating such modifications as requested by the Board of
Directors which may have been made by the time of such delivery) as soon as
practicable and in any event no later than 15 days after the beginning of each
Fiscal Year;
(j) INSURANCE REPORT. As soon as practicable following receipt
and in any event by the last day of September in each Fiscal Year, a report in
form and substance satisfactory to Administrative Agent outlining all material
insurance coverage maintained as of the date of such report by Holdings and its
Subsidiaries and all material insurance coverage planned to be maintained by
Holdings and its Subsidiaries in the immediately succeeding Fiscal Year;
(k) NOTICE OF CHANGE IN BOARD OF DIRECTORS. With reasonable
promptness, written notice of any change in the board of directors (or similar
governing body) of Holdings or Company;
(l) NOTICE REGARDING MATERIAL CONTRACTS. Promptly, and in any
event within ten (10) Business Days (i) after any Material Contract of Holdings
or any of its Subsidiaries is terminated prior to its scheduled term or amended
in a manner that could reasonably be expected to have a Material Adverse Effect,
or (ii) any new Material Contract is entered into, a written statement
describing such event, with copies of such material amendments or new contracts,
delivered to Administrative Agent (to the extent such delivery is permitted by
the terms of any such Material Contract, PROVIDED, no such prohibition on
delivery shall be effective if it were bargained for by Holdings or its
applicable Subsidiary with the intent of avoiding compliance with this Section
5.1(l)), and, in the case of clause (i), an explanation of any actions being
taken with respect thereto;
82
(m) ENVIRONMENTAL REPORTS AND AUDITS. As soon as practicable
following receipt thereof, copies of all environmental audits and reports with
respect to environmental matters at any Facility or which relate to any
environmental liabilities of Holdings or its Subsidiaries which, in any such
case, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect;
(n) PROJECTIONS AND FINANCIAL PLANS. Promptly upon any officer
of Holdings or Company obtaining knowledge thereof, written notice of any
material change in (i) the operations, activities or business of Holdings and
its Subsidiaries or (ii) any other material assumption, in each case from those
upon which the forecasts contained in the Projections delivered pursuant to
Section 3.1(g) or any Financial Plan delivered pursuant to Section 5.1(i) were
based;
(o) INTERCOMPANY TRANSACTIONS. With reasonable promptness,
such information as may reasonably be requested by Administrative Agent,
Syndication Agent or any Lender in respect of the Intercompany Loan Agreement,
Approved Lease Agreement or Intercompany Security Agreement or the transactions
contemplated thereby or the underlying documentation (including purchase
agreements and invoices) in relation thereto, and in any event on a quarterly
basis: (i) the amount of Indebtedness owing by each Subsidiary to Company
thereunder, and (ii) the description, location and relevant lessee of all
Telecommunications Assets leased thereunder (which obligation, unless otherwise
requested, shall be satisfied by the provision of all relevant lease schedules
which shall be maintained in form and substance satisfactory to the
Administrative Agent);
(p) HOLDINGS TERM LOANS. Promptly, and in any event within
three (3) Business Days of request, details of the identity and address of each
Lender having Holdings Term Loan Exposure and the amount of such exposure; or
(q) OTHER INFORMATION. With reasonable promptness, such other
information, and data with respect to Holdings or any of its Subsidiaries as
from time to time may be reasonably requested by Administrative Agent,
Syndication Agent or any Lender.
5.2. EXISTENCE. Except as otherwise permitted under Section 6.8, each
Credit Party will, and will cause each of its Subsidiaries to, at all times
preserve and keep in full force and effect its existence and all rights and
franchises, licenses and permits material to its business; PROVIDED, no Credit
Party nor any of its Subsidiaries shall be required to preserve any such
existence, right or franchise, licenses and permits if such Person's board of
directors (or similar governing body) shall determine that the preservation
thereof is no longer desirable in the conduct of the business of such Person,
and that the loss thereof is not disadvantageous in any material respect to such
Person or to Lenders.
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5.3. PAYMENT OF TAXES AND CLAIMS. Each Credit Party will, and will
cause each of its Subsidiaries to, pay all Taxes imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any penalty or fine accrues thereon, and all claims (including
claims for labor, services, materials and supplies) for sums that have become
due and payable and that by law have or may become a Lien upon any of its
properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto; PROVIDED, no such Tax or claim need be paid if it
is being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted, so long as (a) adequate reserve or other appropriate
provision, as shall be required in conformity with GAAP shall have been made
therefor, and (b) in the case of a charge or claim which has or may become a
Lien against any of the Collateral, such contest proceedings conclusively
operate to stay the sale of any portion of the Collateral to satisfy such Tax or
claim. No Credit Party will, nor will it permit any of its Subsidiaries to, file
or consent to the filing of any consolidated income Tax return with any Person
(other than Holdings or any of its Subsidiaries).
5.4. MAINTENANCE OF PROPERTIES. Each Credit Party will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Holdings and its Subsidiaries and
from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof.
5.5. INSURANCE. Holdings will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and workers'
compensation insurance and casualty insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of Holdings
and its Subsidiaries as may customarily be carried or maintained under similar
circumstances by Persons of established reputation engaged in similar
businesses, in each case in such amounts (giving effect to self-insurance), with
such deductibles and limits, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons. Without limiting the
generality of the foregoing, Holdings will maintain or cause to be maintained
(a) flood insurance with respect to each Flood Hazard Property that is located
in a community that participates in the National Flood Insurance Program, in
each case in compliance with any applicable regulations of the Board of
Governors of the Federal Reserve System, and (b) replacement value casualty
insurance on an all- risks basis on the Collateral under such policies of
insurance, with such insurance companies, in such amounts, with such
deductibles, and covering such risks and otherwise on such terms and conditions
as are at all times carried or maintained under similar circumstances by Persons
of established reputation engaged in similar businesses. Each such policy of
insurance shall (i) name Administrative Agent, on behalf of Lenders, as an
additional insured thereunder as its interests may appear and (ii) in the case
of each business interruption and casualty insurance policy, contain a standard
lender's loss payable clause or endorsement, reasonably satisfactory in form and
substance to Administrative Agent.
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5.6. BOOKS AND RECORDS; INSPECTIONS; LENDERS MEETINGS. Each Credit
Party will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. Each
Credit Party will, and will cause each of its Subsidiaries to, permit any
authorized representatives designated by any Lender to visit and inspect any of
the facilities of any Credit Party and any of its respective Subsidiaries, to
inspect, copy and take extracts from its and their financial and accounting
records, and to discuss its and their affairs, finances and accounts with its
and their officers and independent public accountants, all upon reasonable
notice and at such reasonable times during normal business hours and as often as
may reasonably be requested. Holdings and Company will, upon the request of
Administrative Agent or Requisite Lenders or Requisite Class Lenders having
Holdings Term Loan Exposure, participate in a meeting of Administrative Agent
and Lenders or Holdings Term Loan Lenders, as applicable, once during each
Fiscal Year to be held at Holdings' corporate offices (or at such other location
as may be agreed to by Holdings, Company and Administrative Agent or Holdings
Term Loans), as applicable, at such time as may be agreed to by Holdings,
Company and Administrative Agent or Requisite Class Lenders having Holdings Term
Loan Exposure, as applicable. No provision of this Agreement shall be construed
as precluding the rights of the Administrative Agent and Senior Lenders to meet
and exchange communications without notifying or inviting any Holdings Term Loan
Lender.
5.7. COMPLIANCE WITH LAWS. Each Credit Party will comply, and shall
cause each of its Subsidiaries and all other Persons, if any, on or occupying
any Facilities to comply, with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority (including all
Environmental Laws), noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
5.8. OWNERSHIP OF TELECOMMUNICATIONS ASSETS. Each Credit Party shall
take such actions as may be required to ensure that, subject to dispositions
permitted under Section 6.8, all Telecommunications Assets owned by Company as
of the Effective Date, or acquired by any Credit Party after the Effective Date,
shall be owned at all times after the Effective Date by Company other than to
the extent they are: (i) owned by a Wholly-Owned Subsidiary of Company if
acquired pursuant to a Permitted Acquisition to the extent not commercially
practicable to transfer such Telecommunications Assets to Company, or (ii)
otherwise subject to a Capital Lease in the form of the Approved Lease Agreement
to which the Company is the lessor and
Focal Communications Corporation of
Illinois is the lessee, or (iii) during the period from the Closing Date to the
date falling 150 days thereafter, or the first Credit Extension, if earlier, and
without prejudice to other provisions of this clause, transferred to and owned
by Equipment Subsidiary, or (iv) Telecommunications Assets purchased by
Equipment Subsidiary and to be purchased from it by Company with the proceeds of
Loans within 180 days of the original purchase by Equipment Subsidiary PROVIDED
that if such Telecommunications Assets have not been so purchased within such
180 days, such Telecommunications Assets shall, in any event, be transferred to
Company, or (v) assets required by the terms of this Credit Agreement to be
owned by Dark Fiber Subsidiary.
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5.9. ENVIRONMENTAL.
(a) ENVIRONMENTAL DISCLOSURE. Holdings will deliver to
Administrative Agent and Lenders:
(i) as soon as practicable following receipt thereof,
copies of all notices of Environmental Claims, environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of Holdings or any of its Subsidiaries or by
independent consultants, governmental authorities or any other Persons,
with respect to significant environmental matters at any Facility or
with respect to any Environmental Claims which could reasonably be
expected to have a Material Adverse Effect;
(ii) promptly upon the occurrence thereof, written
notice describing in reasonable detail (1) any Release required to be
reported to any federal, state or local governmental or regulatory
agency under any applicable Environmental Laws which could reasonably
be expected to have a Material Adverse Effect, (2) any remedial action
taken by Holdings or any other Person in response to (A) any Hazardous
Materials Activities the existence of which has a reasonable
possibility of resulting in one or more Environmental Claims having,
individually or in the aggregate, a Material Adverse Effect, or (B) any
Environmental Claims that, individually or in the aggregate, have a
reasonable possibility of resulting in a Material Adverse Effect, and
(3) Holdings or Company's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of any Facility that
could cause such Facility or any part thereof to be subject to any
material restrictions on the ownership, occupancy, transferability or
use thereof under any Environmental Laws;
(iii) as soon as practicable following the sending or
receipt thereof by Holdings or any of its Subsidiaries, a copy of any
and all written communications with respect to (1) any Environmental
Claims that, individually or in the aggregate, have a reasonable
possibility of giving rise to a Material Adverse Effect, (2) any
Release required to be reported to any federal, state or local
governmental or regulatory agency which could reasonably be expected to
have a Material Adverse Effect, and (3) any request for information
from any governmental agency that suggests such agency is investigating
whether Holdings or any of its Subsidiaries may be potentially
responsible for any Hazardous Materials Activity which could reasonably
be expected to have a Material Adverse Effect;
(iv) prompt written notice describing in reasonable
detail (1) any proposed acquisition of stock, assets, or property by
Holdings or any of its Subsidiaries that could reasonably be expected
to (A) expose Holdings or any of its Subsidiaries to, or result in,
Environmental Claims that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or (B)
affect the ability of Holdings or any of its Subsidiaries to maintain
in full force and
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effect all material Governmental Authorizations required under any
Environmental Laws for their respective operations and (2) any proposed
action to be taken by Holdings or any of its Subsidiaries to modify
current operations in a manner that could reasonably be expected to
subject Holdings or any of its Subsidiaries to any additional
obligations or requirements under any Environmental Laws which could
reasonably be expected to have a Material Adverse Effect; and
(v) with reasonable promptness, such other documents
and information as from time to time may be reasonably requested by
Administrative Agent or any of the Holdings Term Loan Lenders in
relation to any matters disclosed pursuant to this Section 5.8(a).
(b) HAZARDOUS MATERIALS ACTIVITIES, ETC. Each Credit Party
shall promptly take, and shall cause each of its Subsidiaries promptly to take,
any and all actions necessary to contest or cure any alleged violation of
applicable Environmental Laws by such Credit Party or its Subsidiaries that
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, and make an appropriate response to any Environmental
Claim against such Credit Party or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
5.10. SUBSIDIARIES. In the event that, after the Effective Date, any
Person becomes a Subsidiary of Holdings, Holdings shall, to the extent permitted
under the terms of the Holdings Senior Notes, promptly (i) other than with
respect to Company and any Subsidiary of Company as of the Effective Date,
contribute all of the Capital Stock of such Subsidiary to Company, such that
after each such contribution, such Subsidiary is a Wholly Owned Subsidiary of
Company, (ii) deliver or cause to be delivered to Collateral Agent certificates
(accompanied by irrevocable undated stock powers, duly endorsed in blank and
otherwise satisfactory in form and substance to Collateral Agent) representing
the Capital Stock of such Subsidiary, which, to the extent permitted under the
Holdings Senior Notes, shall be pledged pursuant to the Pledge and Security
Agreement and deliver, or cause to be delivered, to Collateral Agent such other
additional agreements or instruments, each in form and substance, as may be
necessary or desirable to create in favor of Collateral Agent, for the benefit
of the Secured Parties, a valid and perfected First Priority security interest
in all of the Capital Stock of such Subsidiary (65% in the case of a Foreign
Subsidiary), (iii) cause such Subsidiary to become a Guarantor hereunder and a
Grantor under the Pledge and Security Agreement by executing and delivering to
Administrative Agent a Counterpart Agreement, and (iv) take all such actions and
execute and deliver, or cause to be executed and delivered, all such documents,
instruments, agreements, and certificates similar to those described in Sections
3.1(b) and 3.1(f). With respect to each such Subsidiary, Company shall promptly
send to Administrative Agent written notice setting forth with respect to such
Person (i) the date on which such Person became a Subsidiary of Holdings, and
(ii) all of the data required to be set forth in SCHEDULE 4.1 with respect to
all Subsidiaries of Holdings, and such written notice shall be deemed to
supplement SCHEDULE 4.1 for all purposes hereof.
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5.11. MATERIAL REAL ESTATE ASSETS. In the event that Holdings and/or
any other Credit Party acquires a Material Real Estate Asset or owns a Material
Real Estate Asset on the Effective Date or a Real Estate Asset owned on the
Effective Date becomes a Material Real Estate Asset and such interest has not
otherwise been made subject to the Lien of the Collateral Documents in favor of
Collateral Agent, for the benefit of Lenders, then Holdings or such other Credit
Party to the extent applicable, contemporaneously with acquiring such Material
Real Estate Asset, shall to the extent not prohibited by the Holdings Senior
Notes, and if requested by the Collateral Agent, take all such actions and
execute and deliver, or cause to be executed and delivered, all such mortgages,
documents, instruments, agreements, opinions and certificates reasonably
required by the Administrative together with those described in Section 3.1(f)
with respect to each such Real Estate Assets that Administrative Agent shall
reasonably request to create in favor of Collateral Agent, for the benefit of
Lenders, a valid and, subject to any filing and/or recording referred to herein,
perfected First Priority security interest in such Real Estate Assets. In
addition to the foregoing, Holdings and Company shall, at the request of
Requisite Lenders or Requisite Class Lenders having Holdings Term Loan Exposure,
deliver, from time to time, to Collateral Agent such appraisals as are required
by law or regulation of Real Estate Assets with respect to which Administrative
Agent has been granted a Lien.
5.12. INTEREST RATE PROTECTION. At all times following the Closing
Date, Holdings and/or Company shall, if necessary to satisfy the requirements
set forth in this Section 5.12, enter into, and thereafter maintain, or caused
to be maintained, in effect one or more Interest Rate Agreements for a term and
otherwise in form and substance reasonably satisfactory to Syndication Agent and
Administrative Agent, which Interest Rate Agreements (when taken together with
other fixed rate debt) shall at all times effectively limit the interest costs
to Holdings and Company with respect to an aggregate notional principal amount
of not less than 50% of the aggregate principal amount of the Consolidated Total
Debt.
5.13. INTERCOMPANY TRANSACTIONS. Each Credit Party shall take all
actions necessary to ensure that, at all times, (i) all intercompany loans made
by Company to any Subsidiary of Holdings are evidenced by and made in accordance
with the Intercompany Loan Agreement, (ii) any assets (other than assets subject
to a lease in existence as at the Closing Date between Company and a Subsidiary
of Holdings) of Company leased to or otherwise made available for use by a
Subsidiary of Holdings are made subject to an Approved Lease Agreement and (iii)
each Subsidiary of Company executes, delivers, and performs its obligations
under the Intercompany Security Agreement.
5.14. FURTHER ASSURANCES. Subject to the terms of Section 5.15 and
Section 7A, at any time or from time to time upon the request of Syndication
Agent, Administrative Agent or Collateral Agent or (after the Senior Obligations
(other than contingent indemnities) shall have been Indefeasibly Paid and all
Senior Commitments cancelled) Requisite Class Lenders having Holdings Term Loan
Exposure, each Credit Party will, at its expense, promptly execute, acknowledge
and deliver such further documents and do such other acts and things as
Syndication Agent, Administrative Agent or Collateral Agent or (after the Senior
Obligations (other than contingent indemnities) shall have been Indefeasibly
Paid and all Senior
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Commitments cancelled) Requisite Class Lenders having Holdings Term Loan
Exposure may reasonably request in order to effect fully the purposes of the
Credit Documents. In furtherance and not in limitation of the foregoing, each
Credit Party shall take such actions as Syndication Agent, Administrative Agent
or Collateral Agent or (after the Senior Obligations (other than contingent
indemnities) shall have been Indefeasibly Paid and all Senior Commitments
cancelled) Requisite Class Lenders having Holdings Term Loan Exposure may
reasonably request from time to time (including, without limitation, the
execution and delivery of guaranties, security agreements, pledge agreements,
mortgages, deeds of trust, landlord's consents and estoppels, control
agreements, stock powers, financing statements and other documents, the filing
or recording of any of the foregoing, title insurance with respect to any of the
foregoing that relates to any Real Estate Asset, and the delivery of stock
certificates and other collateral with respect to which perfection is obtained
by possession) to ensure that the Obligations are guaranteed by the Guarantors
to the extent contemplated by Sections 7 and are secured to the extent
contemplated by the Collateral Documents and not prohibited by the terms of the
Holdings Senior Notes by the assets of Holdings, and its Subsidiaries and all of
the outstanding Capital Stock of Company and its Subsidiaries (subject to
limitations contained in the Credit Documents with respect to Foreign
Subsidiaries).
5.15. CERTAIN POST-CLOSING OBLIGATIONS.
(a) Company shall use reasonable efforts to obtain, and in any
event prior to any Credit Date shall have obtained, a Landlord Personal Property
Collateral Access Agreement in respect of each Leasehold Property in which
Collateral financed with the proceeds of Loans made on such Credit Date is or is
to be located (other than those in respect of which such has already been
delivered prior to the Effective Date pursuant to the Existing Credit
Agreement). Each Credit Party shall at all times take all actions necessary to
ensure that all Collateral at any Leasehold Property is subject to and
specifically covered by a Landlord Personal Property Collateral Access Agreement
(with any modifications, amendments or waivers thereof as the Syndication Agent
and Administrative Agent shall, in their sole discretion, approve subject to the
remaining provisions of this Section) between Holdings or its relevant Domestic
Subsidiary and the then current landlord of such Leasehold Property. Following
the Effective Date, the Administrative Agent shall give its approval for any
Landlord Personal Property Collateral Access Agreement in respect of any
Leasehold Property occupied by Holdings or any of its Domestic Subsidiaries as
of the Effective Date and delivered to the Administrative Agent for execution
which is in the standard form exhibited to this Agreement, PROVIDED that a
Landlord Personal Property Collateral Access Agreement shall also be acceptable
to the Administrative Agent in the event that (i) it deviates from such standard
form only to provide for any of (1) delivery of all requisite notices to the
Collateral Agent and/or to CT Corporation (with an agreement of CT Corporation
to forward same to Collateral Agent by overnight mail immediately upon receipt)
including satisfactory notice prior to any termination of any relevant lease,
(2) at least 30 days access by the Collateral Agent to remove the Collateral (an
initial 15 day period renewable for a further 15 days, with the requirement to
pay base rent and additional charges (on a non-holdover basis) payable under the
applicable lease on a pro rated basis in respect of the second such period being
acceptable) and (3) such other amendments or modifications as may be approved by
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the Administrative Agent and the Syndication Agent in their sole discretion; and
(ii) Holdings shall have deposited into the Collateral Access Deposit Account an
amount equal to 200% of the aggregate of the monthly base rent and other regular
monthly charges payable under the applicable lease (the "COLLATERAL ACCESS
DEPOSIT") in respect of each such Landlord Personal Property Collateral Access
Agreement which contains deviations from the standard form exhibited to this
Agreement which are permitted under clause (i) above. The proceeds of the
Collateral Access Deposit Account shall be held in accordance with the terms of
the Collateral Access Deposit Agreement but shall be used only (i) to indemnify
the Administrative Agent in respect of costs and expenses incurred by it in
enforcing or protecting its security interests in Collateral, or (ii) to the
extent permitted by the Holdings Senior Notes, following the occurrence and
during the continuance of an Event of Default, in discharging the Obligations.
The unused balance, if any, in the Collateral Access Deposit Account shall be
refunded to the Holdings upon final repayment of all Obligations. On the
Effective Date and on each anniversary of the Effective Date, Holdings or
Company shall make an additional payment into the Collateral Access Deposit
Account equal to the greater of (i) zero and (ii) the difference between (x)
200% of the aggregate total of the one month base rents and other regular
monthly charges then payable in relation to all Leasehold Properties in respect
of which Collateral Access Deposits have been made, and (y) the aggregate
balance of the Collateral Access Deposit Account. It is hereby agreed that
references in this Section 5.15(a) to "monthly base rent and other regular
monthly charges payable" shall, in calculating the amount of any Collateral
Access Deposit or any additional payment with respect thereto, be construed as
being the greater of (i) such sums as are provided for in the relevant lease to
be paid by the lessee, or (ii) such corresponding sums as are provided for in
the relevant lease or the relevant Landlord Personal Property Collateral Access
Agreement to be paid by the Collateral Agent (re-calculated if necessary on a
monthly basis). Within 15 Business Days of the Effective Date, the Company shall
deliver (i) a notice to each landlord (and, CT Corporation, if such entity is
named as the recipient of notices in the relevant Landlord Personal Property
Collateral Access Agreement or the applicable lease) with which a Landlord
Personal Property Collateral Access Agreement is in place, notifying such
landlord (and, if applicable, CT Corporation) of the change of Collateral Agent
on the Effective Date and advising of the new notice address of such successor
Collateral Agent and (ii) a duly executed Landlord Personal Property Collateral
Access Agreement with respect to the Company's Leasehold Property at Concord,
CA.
(b) At all times following the Effective Date, Holdings shall
immediately make capital contributions to Company in amount by which the
aggregate amount of Cash and Cash Equivalents at any time held by Holdings
(including for the avoidance of doubt, the proceeds of the Effective Date
Transactions) exceeds $100,000,000. Holdings shall ensure at all times that all
Cash and Cash Equivalents held by it are subject to a valid and perfected First
Priority security interest in favor of the Collateral Agent for the benefit of
the Senior Lenders and, subject to the provisions of Section 7A, the Holdings
Term Loan Lenders. Company and each other Credit Party shall at all times ensure
that all Cash and Cash Equivalents held by it are, to the extent permitted by
the Holdings Senior Notes, subject to a valid and perfected First Priority
security interest in favor of the Collateral Agent for the benefit of the Senior
Lenders and, subject to the provisions of Section 7A, the Holdings Term Loan
Lenders; provided that, notwithstanding the
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foregoing, Cash and Cash Equivalent of up to $1,000,000 held in any one account
and up to $3,000,000 in aggregate for all Credit Parties shall not be required
to be subject to such security interests.
(c) On or prior to the Effective Date, Holdings shall have
made a Collateral Access Deposit with respect to the Leasehold Property at ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇. Within 30 Business Days of the Effective Date, Company
shall obtain and deliver to the Administrative Agent a Landlord Personal
Property Collateral Access Agreement with respect to such Leasehold Property.
Subject to the timely compliance with this Section 5.15(c), Senior Lenders
hereby waive any Default or Event of Default which shall have occurred and be
continuing with respect to the Company's failure to comply with the requirements
of this Agreement or the Existing Credit Agreement in connection with such
Leasehold Property.
SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment
is in effect and until payment in full in same day funds of all Obligations and
cancellation or expiration of all Letters of Credit, such Credit Party shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.
6.1. INDEBTEDNESS. No Credit Party shall, nor shall it permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or guaranty,
or otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
(a) the Obligations, including any Indebtedness under any
Hedge Agreement with any Lender Counterparty;
(b) Indebtedness of any Guarantor Subsidiary to Company or to
any other Guarantor Subsidiary, or of Company to any Guarantor Subsidiary;
PROVIDED, (i) all such Indebtedness shall be made pursuant to an Intercompany
Loan Agreement, (ii) all such Indebtedness shall be subordinated in right of
payment to the payment in full of the Obligations pursuant to the terms of the
applicable promissory notes or an intercompany subordination agreement that in
any such case, is reasonably satisfactory to Administrative Agent, (iii) all
such Indebtedness shall satisfy the requirements of Section 5.13 and (iv) any
payment by any such Guarantor Subsidiary under any guaranty of the Obligations
shall result in a pro tanto reduction of the amount of any Indebtedness owed by
such Subsidiary to Company or to any of its Subsidiaries for whose benefit such
payment is made;
(c) Indebtedness incurred by Holdings with respect to
Permitted Holdings Debt;
(d) Indebtedness incurred by Holdings or any of its
Subsidiaries in the ordinary course of business and arising from agreements
providing for indemnification, adjustment of purchase price or
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similar obligations, or from guaranties or letters of credit, surety bonds or
performance bonds securing the performance of Holdings or any such Subsidiary
pursuant to such agreements, in connection with Permitted Acquisitions or
permitted dispositions of any business, assets or Subsidiary of Holdings or any
of its Subsidiaries;
(e) Indebtedness in respect of netting services, overdraft
protections and otherwise in connection with Deposit Accounts;
(f) guaranties in the ordinary course of business of the
obligations of suppliers, customers, franchisees and licensees of Holdings and
its Subsidiaries not in any event to exceed $5,000,000 at any time outstanding;
(g) Indebtedness described in SCHEDULE 6.1, but not any
extensions, renewals or replacements of such Indebtedness;
(h) Indebtedness with respect to "dark fiber" Capital Leases
in an aggregate amount not to exceed at any one time outstanding the sum of (i)
the amount outstanding under such Capital Leases as of August 7, 2001, (ii) the
amount outstanding under such Capital Leases which Dark Fiber Subsidiary was
contractually committed to enter into as of August 7, 2001 and (iii) $5,000,000;
PROVIDED FURTHER that the primary obligor in respect of all such Indebtedness is
the Dark Fiber Subsidiary, it being agreed however that Holdings (but not
Company or any other Subsidiary thereof) may, to the extent permitted under the
Holdings Senior Notes, guarantee such Indebtedness;
(i) Indebtedness in the form of letters of credit for the
account of Holdings in an aggregate face amount not to exceed $5,000,000 at any
time outstanding; and
(j) other Indebtedness of Holdings and its Subsidiaries in an
aggregate amount not to exceed at any time $20,000,000, PROVIDED that only up to
$15,000,000 of which may be secured by Liens on the assets of Holdings in
accordance with Section 6.2(m) and the balance shall be unsecured.
6.2. LIENS. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Holdings or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC of any State or under any similar recording or notice
statute, except:
(a) Liens in favor of Collateral Agent for the benefit of
Secured Parties granted pursuant to any Credit Document;
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(b) Liens for Taxes, the payment of which is not, at the time,
required thereby;
(c) statutory Liens of landlords, banks (and rights of
set-off), of carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law (other than any such Lien imposed
pursuant to Section 401 (a)(29) or 412(n) of the Internal Revenue Code or by
ERISA), in each case incurred in the ordinary course of business (i) for amounts
not yet overdue or (ii) for amounts that are overdue and that (in the case of
any such amounts overdue for a period in excess of five days) are being
contested in good faith by appropriate proceedings, so long as such reserves or
other appropriate provisions, if any, as shall be required by GAAP shall have
been made for any such contested amounts;
(d) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, deposits made in the ordinary course of business
with utility companies, and Liens incurred or deposits made in the ordinary
course of business to secure the performance of tenders, statutory or regulatory
obligations, surety and appeal bonds, bids, leases, government contracts, trade
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money or other
Indebtedness), so long as no foreclosure, sale or similar proceedings have been
commenced with respect to any portion of the Collateral (which individually or
in the aggregate, has a fair market value in excess of $1,000,000) on account
thereof;
(e) easements, rights-of-way, restrictions, encroachments, and
other minor defects or irregularities in title, in each case which do not and
will not interfere in any material respect with the ordinary conduct of the
business of Holdings or any of its Subsidiaries;
(f) any interest or title of a lessor or sublessor under any
lease permitted hereunder;
(g) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by
Holdings or any of its Subsidiaries in connection with any letter of intent or
purchase agreement entered into by it;
(h) licenses of patents, trademarks and other intellectual
property rights granted by Holdings or any of its Subsidiaries in the ordinary
course of business and not interfering in any respect with the ordinary conduct
of the business of Company or such Subsidiary;
(i) Liens described in SCHEDULE 6.2;
(j) Liens consisting of judgment or judicial attachment liens
with respect to judgments that do not constitute an Event of Default;
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(k) Liens securing intercompany obligations incurred in
accordance with the provisions of Section 5.13;
(l) Liens on escrowed Cash representing a portion of the
proceeds of permitted sales of assets by a Credit Party established to satisfy
contingent post-closing obligations owed by such Credit Party (including
earn-outs, indemnities and working capital adjustments);
(m) Liens securing Indebtedness permitted pursuant to Section
6.1(j); PROVIDED, (i) any such Lien shall not encumber the Capital Stock of
Holdings' Subsidiaries and (ii) such Liens shall not secure obligations in an
aggregate principal amount in excess of $15,000,000 at any time outstanding.
Such Liens may be prior to the Liens granted to the Collateral Agent pursuant to
the Collateral Documents and, if requested by Company, the Collateral Agent
agrees (and is hereby irrevocably authorised by each Lender) to enter into good
faith negotiations with the Person in whose favor such Liens are granted to
document and effect such subordination; and
(n) Liens on Cash deposits made by Holdings in an account with
LaSalle Bank National Association and designated "Focal Cash Collateralization
Account" or such other account with such other institution as may from time to
time be maintained by Company, in each case, specifically created and maintained
solely for such purpose securing reimbursement obligations with respect to
letters of credit permitted pursuant to Section 6.1(i); PROVIDED that the
aggregate Cash balance on deposit in such account shall at any time not exceed
the aggregate face value of letters of credit outstanding at such time.
6.3. NO FURTHER NEGATIVE PLEDGES. Except with respect to (a) the
Permitted Holdings Debt (b) specific property encumbered to secure payment of
particular Indebtedness permitted hereby or to be sold pursuant to an executed
agreement with respect to a permitted Asset Sale, and (c) restrictions by reason
of customary provisions restricting assignments, subletting or other transfers
contained in leases, licenses and similar agreements entered into in the
ordinary course of business (PROVIDED that such restrictions are limited to the
property or assets secured by such Liens and proceeds and products thereof or
the property or assets subject to such leases, licenses or similar agreements
and proceeds and products thereof, as the case may be), no Credit Party nor any
of its Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired.
6.4. RESTRICTED PAYMENTS; RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS. (a)
No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly
or indirectly, declare, order, pay, make or set apart any sum for any Restricted
Junior Payment except the following shall be permitted:
(i) Holdings may make regularly scheduled or required
payments (but not voluntary prepayments) required to be made to holders
of Permitted Holdings Debt;
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(ii) so long as no Default or Event of Default shall
have occurred and be continuing, or would result therefrom, Company
shall be permitted to declare and pay by way of dividend to Holdings
amounts sufficient to discharge overhead expenses arising in the
ordinary course of business and owing by Holdings to (y) Company and
(z) other Persons but in the case of (z), only to the extent that such
sums are indeed used by Holdings for such purpose and Cash Equivalents
on hand at Holdings are less than $30,000,000;
(iii) so long as no Default or Event of Default shall
have occurred and be continuing, or would result therefrom, Company
shall be permitted to declare and pay by way of dividend to Holdings at
times and in amounts sufficient to enable Holdings to make payments
permitted under clause (i) above, so long as Holdings applies the
amount of any such Restricted Junior Payment for such purpose;
(iv) so long as no Default or Event of Default shall
have occurred and be continuing, or would result therefrom, Equipment
Subsidiary shall be permitted to declare and pay by way of dividend to
Company the net proceeds of sales of Telecommunications Assets to
Company financed with the proceeds of Loans and Company shall be
permitted to declare and pay by way of dividend to Holdings such
amounts so received;
(v) any Subsidiary of Company shall be permitted to
declare and pay dividends to Company or to its immediate holding
company which is itself both a Wholly-Owned Subsidiary of Company and
a Guarantor Subsidiary;
(vi) Holdings may repurchase Holdings Senior Notes:
(A) so long as no Default or Event of
Default shall have occurred and be continuing, or would result
therefrom, within 90 days of the Effective Date, with an
amount of cash equal to $10 million less the amount of cash
paid in respect of the Repurchase, PROVIDED that (x) the total
aggregate cash consideration paid in respect of all such
Holdings Senior Notes purchased pursuant to this provision (A)
shall not exceed 50% of the sum of (1) the total aggregate
accreted value of all Discount Notes and the total face value
of all Senior Notes purchased under this provision and (2) the
excess over $260 million of the sum of the total accreted
value of all Discount Notes and the total face value of all
Senior Notes converted pursuant to the Exchange, and (y) at
least 50% of the notes purchased pursuant to this provision
are Senior Notes;
(B) so long as no Default or Event of
Default shall have occurred and be continuing, or would result
therefrom, within 90 days of the date of receipt by Holdings
of the proceeds of any issuance of common or pay-in-kind
preferred equity Securities after the Effective Date, with
cash in an aggregate amount (from the Effective Date until the
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Senior Obligations shall have been Indefeasibly Paid and all
Senior Commitments cancelled) equal to the lesser of (i)
$25,000,000 and (ii) the amount of such proceeds; and
(C) at any time PROVIDED that the only
consideration is the issuance of common or preferred equity
securities of Holdings which cannot be redeemed for cash
and/or are not eligible to receive any cash payments, in each
case until repayment in full of all Obligations (other than
contingent obligations) owing to the Senior Lenders;
(vii) so long as no Default or Event of Default shall
have occurred and be continuing, or would result therefrom, Holdings
shall be permitted to consummate the Repurchase and the Exchange upon
the terms of the relevant Effective Date Transaction Documents; and
(viii) Holdings shall be permitted to redeem, convert
or exchange the Holdings Term Loans for Common Stock of Holdings at any
time in accordance with the express provisions of the relevant
Effective Date Transaction Documents.
(b) Except as provided herein or in the Permitted Holdings
Debt, no Credit Party shall, nor shall it permit any of its Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary of
Holdings to (i) pay dividends or make any other distributions on any of such
Subsidiary's Capital Stock owned by Holdings or any other Subsidiary of
Holdings, (ii) repay or prepay any Indebtedness owed by such Subsidiary to
Holdings or any other Subsidiary of Holdings, (iii) make loans or advances to
Holdings or any other Subsidiary of Holdings, or (iv) transfer any of its
property or assets to Holdings or any other Subsidiary of Holdings.
6.5. INVESTMENTS. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(a) Cash Equivalents;
(b) equity Investments owned as of the Closing Date in any
Subsidiary and Investments made after the Closing Date in Company or any
Guarantor Subsidiary;
(c) Investments in (i) accounts receivable arising and trade
credit granted in the ordinary course of business and in any Securities received
in satisfaction or partial satisfaction thereof from financially troubled
account debtors (ii) deposits, prepayments and other credits to suppliers made
in the ordinary course of business consistent with the past practices of
Holdings and its Subsidiaries and (iii) Joint Venture Investments in other
Persons so long as the only consideration or other value paid or required to be
paid in connection with such Investments is Capital Stock of Holdings;
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(d) intercompany loans to the extent permitted under Section
6.1(b);
(e) Consolidated Capital Expenditures permitted by Section
6.6(f);
(f) loans and advances to employees of Holdings and its
Subsidiaries made in the ordinary course of business in an aggregate principal
amount not to exceed $5,000,000 in the aggregate;
(g) Investments made in connection with Permitted Acquisitions
permitted pursuant to Section 6.8;
(h) Investments described in SCHEDULE 6.5;
(i) Investments approved in advance in writing by Requisite
Lenders; and
(j) other Investments in an aggregate total amount not to
exceed at any time, when aggregated with the aggregate cash consideration of
Permitted Acquisitions since the Effective Date, $1,000,000.
6.6. STAGE 1 FINANCIAL COVENANTS. During Stage 1:
(a) MINIMUM REVENUES. Holdings shall not permit Revenues for
any Fiscal Quarter during Stage 1 to be less than the correlative amount
indicated as set forth on SCHEDULE 6.6(a), PROVIDED that for the purposes of
determining compliance with this covenant following consummation of a Permitted
Acquisition (i) such amounts set forth in SCHEDULE 6.6(A) shall be increased by
100% of the greater of (y) revenues (calculated in each case for the purpose of
this clause on the same basis as Revenues) of the entity or assets being
acquired for the Fiscal Quarter most recently ended prior to the consummation of
such Permitted Acquisition and (z) revenues of the entity or assets being
acquired for the Fiscal Quarter prior to the Fiscal Quarter being measured and
(ii) Revenues of Holdings shall be calculated and increased or reduced with
respect to such period on a pro forma basis in the same manner.
(b) MINIMUM ACCESS LINES. As of the last day of each Fiscal
Quarter during Stage 1, Holdings and its Subsidiaries shall not permit the
number of Access Lines to be less than the correlative amount indicated as set
forth on SCHEDULE 6.6(b), PROVIDED that for the purposes of determining
compliance with this covenant following consummation of a Permitted Acquisition
(i) such amounts set forth in SCHEDULE 6.6(b) shall be increased by 100% of the
greater of the number of access lines (calculated in each case for the purpose
of this clause on the same basis as Access Lines) of the entity or assets being
acquired for (y) the Fiscal Quarter most recently ended prior to the
consummation of such Permitted Acquisition and (z) the Fiscal Quarter prior to
the Fiscal Quarter being measured and (ii) the number of Access Lines of
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Holdings shall be calculated and increased or reduced with respect to such
period on a pro forma basis in the same manner.
(c) CONSOLIDATED EBITDA. Holdings shall not permit
Consolidated EBITDA for any Fiscal Quarter during Stage 1 to be less than the
correlative amount indicated as set forth on SCHEDULE 6.6(c), PROVIDED that for
the purposes of determining compliance with this covenant following consummation
of a Permitted Acquisition (i) such amounts set forth in SCHEDULE 6.6(c) shall
(x) be increased, if positive, by 100% of Consolidated EBITDA of the entity or
assets being acquired for the Fiscal Quarter most recently ended prior to the
consummation of such Permitted Acquisition or if greater, the Fiscal Quarter
prior to the Fiscal Quarter being measured, or (y) be reduced, if negative, by
the greater of 100% of negative Consolidated EBITDA for the entity or assets
being acquired as shown on the historical financial statements of such entity
for the Fiscal Quarter most recently ended prior to the consummation of such
Permitted Acquisition and 100% of Consolidated EBITDA for the entity or assets
being acquired for the Fiscal Quarter prior to the Fiscal Quarter being measured
and (ii) Consolidated EBITDA of Holdings shall be calculated and increased or
reduced with respect to such period on a pro forma basis in the same manner. In
calculating Consolidated EBITDA in respect of the Fiscal Quarters ending
September 30, 2001 and December 31, 2001 only, an adjustment shall be made to
add back (as they are incurred) all cash restructuring charges in excess of
$1,000,000 in the aggregate up to a maximum of $8,000,000 in the aggregate.
Holdings shall not permit the aggregate non-cash restructuring charges not
impacting Consolidated EBITDA in the Fiscal Quarters ending September 30, 2001
and December 31, 2001 to exceed $25,000,000 in aggregate.
(d) CONSOLIDATED SENIOR SECURED DEBT TO TOTAL CAPITALIZATION.
Holdings shall not permit the ratio of Consolidated Senior Secured Debt to Total
Capitalization at any time during Stage 1 to exceed 0.25:1.00.
(e) CONSOLIDATED SENIOR SECURED DEBT TO CONSOLIDATED GROSS
PP&E. Holdings shall not permit the ratio of Consolidated Senior Secured Debt to
Consolidated Gross PP&E at any time during Stage 1 to exceed 0.50:1.00.
(f) MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES. Holdings shall
not and shall not permit its Subsidiaries to make or incur Consolidated Capital
Expenditures, in any Fiscal Year indicated on SCHEDULE 6.6(f), in an aggregate
amount for Company and its Subsidiaries in excess of the corresponding amount
set forth on SCHEDULE 6.6(f); PROVIDED, that 100% of any unutilized amount for
the Fiscal Year ending December 31, 2001 and 75% of any unutilized amount (in
each case, determined without regard to any operation of this provision) for any
Fiscal Year, commencing with the Fiscal Year ending December 31, 2002, may be
utilized in the next succeeding Fiscal Year; and PROVIDED FURTHER that, in
addition, Holdings and its Subsidiaries may make or incur Consolidated Capital
Expenditures (in excess of the amounts otherwise permitted under this Section
6.6(f)) in an amount not in excess of 50% of the Excess Equity Proceeds Amount.
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6.7. STAGE 2 FINANCIAL COVENANTS. During Stage 2:
(a) SENIOR LEVERAGE RATIO. Holdings shall not permit the
Senior Leverage Ratio as of the last day of any Fiscal Quarter during Stage 2 to
exceed the correlative ratio indicated as set forth on SCHEDULE 6.7(a).
(b) TOTAL LEVERAGE RATIO. Holdings shall not permit the Total
Leverage Ratio as of the last day of any Fiscal Quarter during Stage 2 to exceed
the correlative ratio indicated as set forth on SCHEDULE 6.7(b).
(c) INTEREST COVERAGE RATIO. Holdings shall not permit the
Interest Coverage Ratio as of the last day of any Fiscal Quarter commencing
March 31, 2004 and thereafter during Stage 2 to be less than the correlative
ratio indicated as set forth on SCHEDULE 6.7(c).
(d) FIXED CHARGE COVERAGE RATIO. Holdings shall not permit the
Fixed Charge Coverage Ratio as of the last day of any Fiscal Quarter commencing
December 31,2004 and thereafter during Stage 2, to be less than the correlative
ratio indicated as set forth on SCHEDULE 6.7(d).
6.8. FUNDAMENTAL CHANGES; DISPOSITION OF ASSETS; ACQUISITIONS. No
Credit Party shall, nor shall it permit, any of its Subsidiaries to, enter into
any transaction of merger or consolidation, or liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease or
sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any part of its business, assets
or property of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible, whether now owned or hereafter acquired, or acquire by
purchase or otherwise (other than purchases or other acquisitions of inventory,
materials and equipment in the ordinary course of business) the business,
property or fixed assets of, or stock or other evidence of beneficial ownership
of, any Person or any division or line of business or other business unit of any
Person, except:
(a) any Subsidiary of Company may be merged with or into
Company or any Guarantor Subsidiary, or be liquidated, wound up or dissolved, or
all or any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Guarantor Subsidiary; PROVIDED, in the case of
such a merger, Company or such Guarantor Subsidiary, as applicable shall be the
continuing or surviving Person;
(b) sales or other dispositions of assets which do not
constitute Asset Sales;
(c) Permitted Acquisitions, the aggregate cash consideration
for which (when aggregated with Investments permitted pursuant to Section
6.5(j)) constitutes no greater than $1,000,000, (PROVIDED that no acquisitions
shall be in respect of any assets, business lines, divisions or entities which
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have generated negative Free Cash Flow for the trailing twelve month period
immediately preceding such acquisition) plus, the portion, if any, of Excess
Equity Proceeds Amounts allocated to Permitted Acquisitions;
(d) Investments made in accordance with Section 6.5; and
(e) subject to the requirements of Section 2.12(a), Asset
Sales the proceeds of which when aggregated with the proceeds of all other Asset
Sales made since the Closing Date, do not exceed $30,000,000.
6.9. DISPOSAL OF SUBSIDIARY INTERESTS. Except for any sale of all of
the Capital Stock of any of its Subsidiaries made in compliance with the
provisions of Section 6.8, no Credit Party shall (a) directly or indirectly
sell, assign, pledge or otherwise encumber or dispose of any Capital Stock of
any of its Subsidiaries, except to qualify directors if required by applicable
law; or (b) permit any of its Subsidiaries directly or indirectly to sell,
assign, pledge or otherwise encumber (excluding encumbrances consisting of
negative pledge restrictions permitted under Section 6.3) or dispose of any
Capital Stock of any of its Subsidiaries, except to another Credit Party
(subject to the restrictions on such disposition otherwise imposed hereunder),
or to qualify directors if required by applicable law.
6.10. SALES AND LEASE-BACKS. No Credit Party shall, nor shall it permit
any of its Subsidiaries to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with respect to any lease of any
property (whether real, personal or mixed), whether now owned or hereafter
acquired, which such Credit Party (a) has sold or transferred or is to sell or
to transfer to any other Person (other than Company or any of its Subsidiaries),
or (b) intends to use for substantially the same purpose as any other property
which has been or is to be sold or transferred by such Credit Party to any
Person (other than Company or any of its Subsidiaries) in connection with such
lease.
6.11. SALE OR DISCOUNT OF RECEIVABLES. No Credit Party shall, nor shall
it permit any of its Subsidiaries to, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face value thereof,
any of its notes or accounts receivable (it being understood that the
restrictions contained in this Section 6.11 shall not apply to any write-off of
bad debt in the ordinary course of business consistent with prior practice)
except in connection with an asset sale permitted under Section 6.8.
6.12. TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. No Credit Party
shall, nor shall it permit any of its Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder of 10% or more of any class of Capital Stock of Holdings or any of its
Subsidiaries or with any Affiliate of Holdings or of any such holder, on terms
that are less favorable to Holdings or that Subsidiary, as the case may be, than
those that might be obtained at the time from a Person who is not such a holder
or Affiliate; PROVIDED, the foregoing restriction shall not apply to (a) any
transaction between Company and any Guarantor
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Subsidiary or between any of the Guarantor Subsidiaries; (b) reasonable and
customary fees paid to members of the board of directors (or similar governing
body) of Holdings and its Subsidiaries; (c) compensation arrangements entered
into in the ordinary course for officers and other employees of Holdings and its
Subsidiaries entered into in the ordinary course of business; and (d)
transactions described in SCHEDULE 6.12.
6.13. CONDUCT OF BUSINESS. From and after the Effective Date, (i) no
Credit Party shall, nor shall it permit any of its Subsidiaries to, engage in
any business other than (a) the businesses engaged in by such Credit Party on
the Closing Date and similar or related businesses including, without
limitation, data communications, including without limitation Internet access,
Internet portal, web hosting, application hosting, and communication equipment
collocation businesses; and (b) such other lines of business as may be consented
to by Requisite Lenders; (ii) Company shall not engage in any business
activities or own any assets or properties other than the Capital Stock of its
Subsidiaries and otherwise as incident to its existence as a holding company
except in respect of (a) the Related Company Agreements until such time as their
assignment to Dark Fiber Subsidiary is effective in accordance with Section
5.15(h), (b) the Intercompany Loan Agreement, Approved Lease Agreements and
Intercompany Security Agreement and item (viii) of the definition of Related
Agreements, (c) the employment contracts of the Company's employees, (d) the
purchase and owning of Telecommunications Assets to be used in the businesses
referred to in clause (i) of this Section 6.13 and (e) the provision of shared
overhead, goods and services to Credit Parties; (iii) Holdings shall not engage
in any business activities or own any assets or properties other than the
Capital Stock of its Subsidiaries and otherwise as incident to its existence as
a holding company except in respect of (a) Permitted Holdings Debt, (b) Related
Agreements existing as of the Closing Date to which Holdings is party, (c)
guaranties by Holdings expressly permitted by the terms hereof, (d) Permitted
Liens, (e) the provision of shared overhead, goods and services to Credit
Parties; (f) the Effective Date Transaction Documents (as amended from time to
time in accordance with the provisions hereof); (g) the Credit Documents and (h)
certain employment contracts in respect of executive officers of Holdings
existing as of the Closing Date; and (iv) Equipment Subsidiary shall not engage
in any business other than the purchase of Telecommunications Assets and the
sale or other transfer of all such Telecommunications Assets within 180 days of
such purchase to Company (pursuant to a sale and repurchase agreement or such
other agreement as appropriate, in each case, in form and substance satisfactory
to the Syndication Agent and Administrative Agent).
6.14. AMENDMENTS OR WAIVERS WITH RESPECT TO RELATED AGREEMENTS,
HOLDINGS PERMITTED DEBT AND EFFECTIVE DATE TRANSACTION DOCUMENTS. (a) Neither
Holdings nor any of its Subsidiaries will agree to any material amendment to, or
waive any of its material rights under, any Related Agreement after the Closing
Date without in each case obtaining the prior written consent of Requisite
Lenders to such amendment or waiver.
(b) Holdings shall not amend or otherwise change (except on
the Effective Date pursuant to the relevant Effective Date Transaction
Documents) the terms of any Permitted Holdings Debt,
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or make any payment consistent with an amendment thereof or change thereto, if
the effect of such amendment or change is to increase the interest rate on such
Permitted Holdings Debt, change (to earlier dates) any dates upon which payments
of principal or interest are due thereon, change any event of default or
condition to an event of default with respect thereto (other than to eliminate
any such event of default or increase any grace period related thereto), change
the redemption, prepayment or defeasance provisions thereof, change the
subordination provisions of such Permitted Holdings Debt, or if the effect of
such amendment or change, together with all other amendments or changes made, is
to increase materially the obligations of the obligor thereunder or to confer
any additional rights on the holders of such Permitted Holdings Debt (or a
trustee or other representative on their behalf) which would be adverse to any
Credit Party or Lenders.
(c) Holdings shall not amend or otherwise change the terms of
any of the Effective Date Transaction Documents (other than the Credit
Documents), or take any action consistent with an amendment thereof or change
thereto, if the effect of such amendment or change, together with all other
amendments or changes made since the Effective Date, is materially adverse to
any Senior Lender.
6.15. DISPOSITION OF LICENSES, ETC. From and after the Closing Date,
Holdings and its Subsidiaries shall not sell, assign, transfer or otherwise
dispose or attempt to dispose of in any way any Governmental Authorization or
any other licenses, permits or approvals, the assignments, transfer or disposal
of which could reasonably be expected to result in a Material Adverse Effect
(recognizing a sale of a License or other Governmental Authorization otherwise
permitted under Section 6.8 would, to the extent it is material, impair that
Collateral without, for purposes of this Section 6.15, resulting in a Material
Adverse Effect), without the prior written consent of the Requisite Lenders.
6.16. FISCAL YEAR. No Credit Party shall, nor shall it permit any of
its Subsidiaries to change its Fiscal Year-end from December 31.
SECTION 7. GUARANTY
7.1. GUARANTY. (a) Subject to the provisions of Section 7.2, Guarantors
jointly and severally hereby irrevocably and unconditionally guaranty to
Administrative Agent for the ratable benefit of the Senior Beneficiaries the due
and punctual payment in full of all Senior Obligations of Company when the same
shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. Section 362(a)) (the "SENIOR GUARANTEED
OBLIGATIONS").
(b) Subject to the provisions of Section 7.2 and 7A and to the
extent permitted by the Holdings Senior Notes, Guarantors jointly and severally
hereby irrevocably and unconditionally guaranty to Administrative Agent for the
ratable benefit of the Holdings Term Loan Lenders the due and punctual
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payment in full of all Holdings Obligations when the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. Section 362(a)) (the "HOLDINGS GUARANTEED OBLIGATIONS").
7.2. CONTRIBUTION BY GUARANTORS. (a) Each Guarantor desires to allocate
among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a fair and
equitable manner, their obligations arising under this Guaranty. Accordingly, in
the event any payment or distribution is made on any date by a Guarantor (a
"FUNDING GUARANTOR") under this Guaranty that exceeds its Fair Share as of such
date, such Funding Guarantor shall be entitled to a contribution from each of
the other Contributing Guarantors in the amount of such other Contributing
Guarantor's Fair Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor's Aggregate Payments to
equal its Fair Share as of such date. "FAIR SHARE" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (a)
the ratio of (i) the Fair Share Contribution Amount with respect to such
Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors multiplied by (b) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. "FAIR
SHARE SHORTFALL" means, with respect to a Contributing Guarantor as of any date
of determination, the excess, if any, of the Fair Share of such Contributing
Guarantor over the Aggregate Payments of such Contributing Guarantor. "FAIR
SHARE CONTRIBUTION AMOUNT" means, with respect to a Contributing Guarantor as of
any date of determination, the maximum aggregate amount of the obligations of
such Contributing Guarantor under this Guaranty that would not render its
obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code
or any comparable applicable provisions of state law; PROVIDED, solely for
purposes of calculating the "FAIR SHARE CONTRIBUTION AMOUNT" with respect to any
Contributing Guarantor for purposes of this Section 7.2, any assets or
liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Contributing Guarantor. "AGGREGATE PAYMENTS" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (1)
the aggregate amount of all payments and distributions made on or before such
date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this Section 7.2), minus (2) the aggregate
amount of all payments received on or before such date by such Contributing
Guarantor from the other Contributing Guarantors as contributions under this
Section 7.2. The amounts payable as contributions hereunder shall be determined
as of the date on which the related payment or distribution is made by the
applicable Funding Guarantor. The allocation among Contributing Guarantors of
their obligations as set forth in this Section 7.2 shall not be construed in any
way to limit the liability of any Contributing Guarantor hereunder. Each
Guarantor is a third party beneficiary to the contribution agreement set forth
in this Section 7.2.
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(c) Anything contained in this Guaranty to the contrary
notwithstanding, if any Fraudulent Transfer Law (as hereinafter defined) is
determined by a court of competent jurisdiction to be applicable to the
obligations of Guarantor under this Guaranty, such obligations of Guarantor
hereunder shall be limited to a maximum aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any applicable provisions of comparable state law or foreign law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect
to all other liabilities of Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of Guarantor (x) in respect of intercompany indebtedness to
Company or Holdings or other Affiliates of Company or Holdings to the extent
that such indebtedness would be discharged in an amount equal to the amount paid
by Guarantor hereunder and (y) under any guaranty of unsecured subordinated
notes which guaranty contains a limitation as to maximum amount similar to that
set forth in this subsection 7.2(b)), and after giving effect as assets to the
value (as determined under the applicable provisions of the Fraudulent Transfer
Laws) of any rights to subrogation, reimbursement, indemnification or
contribution of Guarantor pursuant to applicable law or pursuant to the terms of
any agreement as contemplated by subsection 7.2(a).
7.3. PAYMENT BY GUARANTORS. Subject to Section 7.2, Guarantors hereby
jointly and severally agree, in furtherance of the foregoing and not in
limitation of any other right which any Beneficiary may have at law or in equity
against any Guarantor by virtue hereof, that upon the failure of Company or
Holdings, as applicable, to pay any of the Guaranteed Obligations when and as
the same shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. Section 362(a)), Guarantors will upon demand pay,
or cause to be paid, in Cash, to Administrative Agent for the ratable benefit of
Beneficiaries, an amount equal to the sum of the unpaid principal amount of all
Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on
such Guaranteed Obligations (including interest which, but for Company's
becoming the subject of a case under the Bankruptcy Code, would have accrued on
such Guaranteed Obligations, whether or not a claim is allowed against Holdings
or Company for such interest in the related bankruptcy case) and all other
Obligations of Guarantors or Company or Holdings, as applicable, then owed to
Beneficiaries as aforesaid.
7.4. LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guaranteed Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of
collectibility; this Guaranty is a primary obligation of each Guarantor and not
merely a contract of surety;
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(b) Administrative Agent may enforce this Guaranty upon the
occurrence of an Event of Default notwithstanding the existence of any dispute
between any Credit Party and any Beneficiary with respect to the existence of
such Event of Default;
(c) the obligations of each Guarantor hereunder are
independent of the obligations of Company and Holdings and the obligations of
any other guarantor (including any other Guarantor) of the obligations of
Company and Holdings, and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not any action is brought against
Company, Holdings or any of such other guarantors and whether or not Company or
Holdings is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or abridge any
Guarantor's liability for any portion of the Guaranteed Obligations which has
not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any
Guarantor's covenant to pay a portion of the Guaranteed Obligations, such
judgment shall not be deemed to release such Guarantor from its covenant to pay
the portion of the Guaranteed Obligations that is not the subject of such suit,
and such judgment shall not, except to the extent satisfied by such Guarantor,
limit, affect, modify or abridge any other Guarantor's liability hereunder in
respect of the Guaranteed Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate,
without notice or demand and without affecting the validity or enforceability
hereof or giving rise to any reduction, limitation, impairment, discharge or
termination of any Guarantor's liability hereunder, from time to time may (i)
renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (ii)
settle, compromise, release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the Guaranteed Obligations or
any agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other guaranties of
the Guaranteed Obligations and take and hold security for the payment hereof or
the Guaranteed Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or
without consideration, any security for payment of the Guaranteed Obligations,
any other guaranties of the Guaranteed Obligations, or any other obligation of
any Person (including any other Guarantor) with respect to the Guaranteed
Obligations; (v) enforce and apply any security now or hereafter held by or for
the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations
and direct the order or manner of sale thereof, or exercise any other right or
remedy that such Beneficiary may have against any such security, in each case as
such Beneficiary in its discretion may determine consistent herewith or the
applicable Hedge Agreement and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable,
and even though such action operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of any Guarantor against
Company or Holdings or any security for the Guaranteed Obligations; and (vi)
exercise any other rights available to it under the Credit Documents or the
Hedge Agreements; and
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(f) this Guaranty and the obligations of Guarantors hereunder
shall be valid and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason (other than
payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or enjoining, by
order of court, by operation of law or otherwise, of the exercise or enforcement
of, any claim or demand or any right, power or remedy (whether arising under the
Credit Documents or the Hedge Agreements, at law, in equity or otherwise) with
respect to the Guaranteed Obligations or any agreement relating thereto, or with
respect to any other guaranty of or security for the payment of the Guaranteed
Obligations; (ii) any rescission, waiver, amendment or modification of, or any
consent to departure from, any of the terms or provisions (including provisions
relating to events of default) hereof, any of the other Credit Documents, any of
the Hedge Agreements or any agreement or instrument executed pursuant thereto,
or of any other guaranty or security for the Guaranteed Obligations, in each
case whether or not in accordance with the terms hereof or such Credit Document,
such Hedge Agreement or any agreement relating to such other guaranty or
security; (iii) the Guaranteed Obligations, or any agreement relating thereto,
at any time being found to be illegal, invalid or unenforceable in any respect;
(iv) the application of payments received from any source (other than payments
received pursuant to the other Credit Documents or any of the Hedge Agreements
or from the proceeds of any security for the Guaranteed Obligations, except to
the extent such security also serves as collateral for indebtedness other than
the Guaranteed Obligations) to the payment of indebtedness other than the
Guaranteed Obligations, even though any Beneficiary might have elected to apply
such payment to any part or all of the Guaranteed Obligations; (v) any
Beneficiary's consent to the change, reorganization or termination of the
corporate structure or existence of Holdings, Company or any of their respective
Subsidiaries and to any corresponding restructuring of the Guaranteed
Obligations; (vi) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guaranteed Obligations;
(vii) any defenses, set-offs or counterclaims which Holdings or Company may
allege or assert against any Beneficiary in respect of the Guaranteed
Obligations, including failure of consideration, breach of warranty, payment,
statute of frauds, statute of limitations, accord and satisfaction and usury;
and (viii) any other act or thing or omission, or delay to do any other act or
thing, which may or might in any manner or to any extent vary the risk of any
Guarantor as an obligor in respect of the Guaranteed Obligations.
7.5. WAIVERS BY GUARANTORS. Each Guarantor hereby waives, for the
benefit of Beneficiaries: (a) any right to require any Beneficiary, as a
condition of payment or performance by such Guarantor, to (i) proceed against
Holdings or Company, any guarantor (including any Guarantor) of the Guaranteed
Obligations or any other Person, (ii) proceed against or exhaust any security
held from Holdings or Company, any such other guarantor or any other Person,
(iii) proceed against or have resort to any balance of any Deposit Account or
credit on the books of any Beneficiary in favor of Holdings or Company or any
other Person, or (iv) pursue any other remedy in the power of any Beneficiary
whatsoever; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Holdings or
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Company or any Guarantor including any defense based on or arising out of the
lack of validity or the unenforceability of the Guaranteed Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of Holdings or Company or any Guarantor from any cause other than
payment in full of the Guaranteed Obligations; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (d) any defense based upon any Beneficiary's errors or omissions in
the administration of the Guaranteed Obligations, except behavior which amounts
to bad faith; (e)(i)any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms hereof and any legal or
equitable discharge of such Guarantor's obligations hereunder, (ii) the benefit
of any statute of limitations affecting such Guarantor's liability hereunder or
the enforcement hereof, (iii) any rights to set-offs, recoupments and
counterclaims, and (iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any security interest or lien or
any property subject thereto; (f) notices, demands, presentments, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance hereof, notices of default hereunder, the Hedge Agreements
or any agreement or instrument related thereto, notices of any renewal,
extension or modification of the Guaranteed Obligations or any agreement related
thereto, notices of any extension of credit to Holdings or Company and notices
of any of the matters referred to in Section 7.4 and (g) any right to consent to
any thereof; and any defenses or benefits that may be derived from or afforded
by law which limit the liability of or exonerate guarantors or sureties, or
which may conflict with the terms hereof.
7.6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Until the
Guaranteed Obligations shall have been indefeasibly paid in full and all
Commitments shall have terminated, each Guarantor hereby waives any claim, right
or remedy, direct or indirect, that such Guarantor now has or may hereafter have
against Holdings or Company or any Guarantor or any of its assets in connection
with this Guaranty or the performance by such Guarantor of its obligations
hereunder, in each case whether such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise and including without
limitation (a) any right of subrogation, reimbursement or indemnification that
such Guarantor now has or may hereafter have against Holdings or Company with
respect to the Guaranteed Obligations, (b) any right to enforce, or to
participate in, any claim, right or remedy that any Beneficiary now has or may
hereafter have against Holdings or Company, and (c) any benefit of, and any
right to participate in, any collateral or security now or hereafter held by any
Beneficiary. In addition, until the Guaranteed Obligations shall have been
indefeasibly paid in full and the Commitments shall have terminated each
Guarantor shall withhold exercise of any right of contribution such Guarantor
may have against any other guarantor (including any other Guarantor) of the
Guaranteed Obligations, including, without limitation, any such right of
contribution as contemplated by Section 7.2. Each Guarantor further agrees that,
to the extent the waiver or agreement to withhold the exercise of its rights of
subrogation, reimbursement, indemnification and contribution as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation, reimbursement or indemnification such
Guarantor may have against Holdings or Company or against any collateral or
security, and any rights of contribution such Guarantor may have against any
such other guarantor, shall be junior and subordinate to any rights any
Beneficiary may have against
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Holdings or Company, to all right, title and interest any Beneficiary may have
in any such collateral or security, and to any right any Beneficiary may have
against such other guarantor. If any amount shall be paid to any Guarantor on
account of any such subrogation, reimbursement, indemnification or contribution
rights at any time when all Guaranteed Obligations shall not have been finally
and indefeasibly paid in full, such amount shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over
to Administrative Agent for the benefit of Beneficiaries to be credited and
applied against the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms hereof.
7.7. SUBORDINATION OF OTHER OBLIGATIONS. Any Indebtedness of Holdings
or Company or any Guarantor now or hereafter held by any Guarantor (the "OBLIGEE
GUARANTOR") is hereby subordinated in right of payment to the Guaranteed
Obligations, and any such indebtedness collected or received by the Obligee
Guarantor after an Event of Default has occurred and is continuing shall be held
in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith
be paid over to Administrative Agent for the benefit of Beneficiaries (or, after
all Senior Obligations (other than contingent obligations) shall have been
Indefeasibly Paid and all Senior Commitments cancelled, shall be paid in
accordance with the directors of Requisite Class Lenders having Holdings Term
Loan Exposure) to be credited and applied against the Guaranteed Obligations but
without affecting, impairing or limiting in any manner the liability of the
Obligee Guarantor under any other provision hereof.
7.8. CONTINUING GUARANTY. This Guaranty is a continuing guaranty and
shall remain in effect until all of the Guaranteed Obligations shall have been
finally and indefeasibly paid in full and the Commitments shall have terminated.
Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to
future transactions giving rise to any Guaranteed Obligations.
7.9. AUTHORITY OF GUARANTORS OR HOLDINGS OR COMPANY. It is not
necessary for any Beneficiary to inquire into the capacity or powers of any
Guarantor or Holdings or Company or the officers, directors or any agents acting
or purporting to act on behalf of any of them.
7.10. FINANCIAL CONDITION OF COMPANY. Any Credit Extension may be made
to Holdings or Company or continued from time to time, and any Hedge Agreements
may be entered into from time to time, in each case without notice to or
authorization from any Guarantor regardless of the financial or other condition
of Holdings or Company at the time of any such grant or continuation or at the
time such Hedge Agreement is entered into, as the case may be. No Beneficiary
shall have any obligation to disclose or discuss with any Guarantor its
assessment, or any Guarantor's assessment, of the financial condition of
Holdings or Company. Each Guarantor has adequate means to obtain information
from Holdings and/or Company on a continuing basis concerning the financial
condition of Holdings or Company and its ability to perform its obligations
under the Credit Documents and the Hedge Agreements, and each Guarantor assumes
the responsibility for being and keeping informed of the financial condition of
Holdings or Company and of all circumstances bearing upon the risk of nonpayment
of the Guaranteed Obligations. Each Guarantor hereby waives and relinquishes any
duty on the part of any Beneficiary to disclose any
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matter, fact or thing relating to the business, operations or conditions of
Holdings or Company now known or hereafter known by any Beneficiary.
7.11. BANKRUPTCY, ETC. (a) So long as any Guaranteed Obligations remain
outstanding, no Guarantor shall, without the prior written consent of
Administrative Agent acting pursuant to the instructions of Requisite Lenders
(or after all Senior Obligations (other than contingent obligations) shall have
been Indefeasibly Paid and all Senior Commitments terminated, the prior written
consent of the directors of Requisite Class Lenders having Holdings Terms Loan
Exposure), commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency case or proceeding of or against Holdings or
Company or any Guarantor. The obligations of Guarantors hereunder shall not be
reduced, limited, impaired, discharged, deferred, suspended or terminated by any
case or proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of Holdings
or Company or any Guarantor or by any defense which Holdings, Company or any
other Guarantor may have by reason of the order, decree or decision of any court
or administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest
on any portion of the Guaranteed Obligations which accrues after the
commencement of any case or proceeding referred to in clause (a) above (or, if
interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such
interest as would have accrued on such portion of the Guaranteed Obligations if
such case or proceeding had not been commenced) shall be included in the
Guaranteed Obligations because it is the intention of Guarantors and
Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order
which may relieve Holdings or Company of any portion of such Guaranteed
Obligations. Guarantors will permit any trustee in bankruptcy, receiver, debtor
in possession, assignee for the benefit of creditors or similar person to pay
Administrative Agent (or, after all Senior Obligations (other than contingent
obligations) shall have been Indefeasibly Paid and all Senior Commitments
terminated, any Holdings Term Loan Lender), or allow the claim of Administrative
Agent (or, after all Senior Obligations (other than contingent obligations)
shall have been Indefeasibly Paid and all Senior Commitments terminated, any
Holdings Term Loan Lender) in respect of, any such interest accruing after the
date on which such case or proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed
Obligations are paid by Holdings or Company, the obligations of Guarantors
hereunder shall continue and remain in full force and effect or be reinstated,
as the case may be, in the event that all or any part of such payment(s) are
rescinded or recovered directly or indirectly from any Beneficiary as a
preference, fraudulent transfer or otherwise, and any such payments which are so
rescinded or recovered shall constitute Guaranteed Obligations for all purposes
hereunder.
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7.12. DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. If all of the
Capital Stock of any Guarantor or any of its successors in interest hereunder
shall be sold or otherwise disposed of (including by merger or consolidation) in
accordance with the terms and conditions hereof, the Guaranty of such Guarantor
or such successor in interest, as the case may be, hereunder shall automatically
be discharged and released without any further action by any Beneficiary or any
other Person effective as of the time of such Asset Sale; PROVIDED, as a
condition precedent to such discharge and release, Administrative Agent shall
have received evidence satisfactory to it that arrangements satisfactory to it
have been made for delivery to Administrative Agent of the applicable Net Asset
Sale Proceeds of such disposition pursuant to Section 2.12(a).
SECTION 7A. SUBORDINATION
7A. OBLIGATIONS OWING TO HOLDINGS TERM LOAN LENDERS SUBORDINATE TO
OBLIGATIONS OWING TO ALL OTHER BENEFICIARIES. Each Credit Party and each
Holdings Term Loan Lender, by such Lender's acceptance hereof, covenant and
agree that, to the extent and in the manner hereinafter set forth in this
Section 7A, the Obligations (including, without limitation, the Holdings
Guaranteed Obligations) owing to Holdings Term Loan Lenders hereunder
(collectively, the "HOLDINGS OBLIGATIONS") are hereby expressly made subordinate
and subject in right of payment to the prior payment in full in cash of all
Obligations (including, without limitation, the Senior Guaranteed Obligations)
owing to all Senior Beneficiaries hereunder (the "SENIOR OBLIGATIONS") to the
extent and in the manner hereinafter set forth. This Section 7A constitutes a
continuing offer to all Persons who become holders of, or continue to hold,
Senior Obligations, each of whom is an obligee hereunder and is entitled to
enforce such holder's rights hereunder through the Administrative Agent, subject
to the provisions hereof, without any act or notice of acceptance hereof or
reliance hereon.
(a) PAYMENT OVER OF PROCEEDS UPON BANKRUPTCY, ETC.
(i) In the event of (A) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to the
Company or any Credit Party or its assets, (B) any liquidation,
dissolution or other winding up of the Company or any Credit Party,
whether voluntary or involuntary involving insolvency or bankruptcy or
(C) any assignment for the benefit of creditors or any other marshaling
of assets or liabilities of the Company or any Credit Party (each such
event, if any, herein sometimes referred to as a "PROCEEDING"), then
and in any such event the holders of all Senior Obligations (other than
contingent indemnities) shall first be paid in full (including, without
limitation, all Post-Commencement Interest) or provision for such
payment shall be made and agreed to in writing by the holders of Senior
Obligations before any Holdings Term Loan Lender is entitled to receive
any direct or indirect payment or distribution of any cash, property or
securities on account of or with respect to Holdings Obligations and to
that end the holders of Senior Obligations shall
110
be entitled to receive (pro rata on the basis of the respective amounts
of such Senior Obligations held by them) directly, for application to
the payment thereof (to the extent necessary to pay all such Senior
Obligations in full in cash, whether or not due, including
specifically, without limitation, all Post-Commencement Interest after
giving effect to any substantially concurrent payment or distribution
to the holders of such Senior Obligations and any provision for such
payment made and agreed to in writing by the holders of Senior
Obligations), any and all payments or distributions of any kind or
character, whether in cash, property or securities, which may be
payable or deliverable in respect of the Holdings Obligations in any
such Proceeding (including any payment or distribution which may be
payable or deliverable by reason of the payment of any other
Indebtedness of the Company or any other Credit Party being
subordinated to the payment of Holdings Obligations). To the extent any
payment of Senior Obligations (whether by or on behalf of the Company
or any other Credit Party as proceeds of security of enforcement of any
right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to a trustee, receiver
or other similar party under any bankruptcy, insolvency, receivership
or similar law, then if such payment is recovered by, or paid over to,
such trustee, receiver or other similar party, the Senior Obligations
or part thereof originally intended to be satisfied shall be deemed to
be reinstated and outstanding as if such payment had not occurred.
(ii) Notwithstanding the foregoing provisions of paragraph (i)
of this Section 7A, in the event of any Proceeding any Holdings Term
Loan Lender shall have received any payment from or distribution of
assets of the Company or any other Credit Party or the estate created
by the commencement of any such Proceeding of any kind or character in
respect of the Holdings Obligations, whether in cash, property or
securities (including any payment or distribution which may be payable
or deliverable by reason of the payment of any other indebtedness of
the Company or any other Credit Party being subordinated in the payment
of the Holdings Obligations) before all Senior Obligations, whether or
not due and including specifically, without limitation, all
Post-Commencement Interest thereon, is paid in full or provision
therefor is made and agreed to in writing by the holders of Senior
Obligations, then in such event, such payment or distribution shall be
received and held in trust for the benefit of and shall be paid over to
the holders of Senior Obligations (pro rata, on the basis of the
respective amounts of such Senior Obligations held by them) remaining
unpaid, to the extent necessary to pay all such Senior Obligations in
full in cash including, without limitation, all Post-Commencement
Interest thereon, after giving effect to any substantially concurrent
payment or distribution to or for the holders of such Senior
Obligations, if made in cash for application to (and if made other than
in cash to be held as collateral security for) the payment in full of
the Senior Obligations.
(iii) Nothing in Sections 7A(a)(i) or (ii) shall be construed
as prohibiting at any time the action expressly permitted by Section
6.4(viii) above.
(b) REPAYMENT OF SENIOR OBLIGATIONS
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(i) Notwithstanding any other provision of this Agreement to
the contrary, until all Senior Obligations (other than contingent
indemnities) are Indefeasibly Paid and all Senior Commitments hereunder
are cancelled, (A) the Company or any other Credit Party may not and
shall not make any payment (including without limitation pursuant to
Sections 2.6(f), 2.8, 2.10, 2.11, 2.12, 2.18, 2.19 and 10.3 hereof) in
cash, property or securities on account of or with respect to the
Holdings Obligations (except payments in a maximum aggregate amount of
up to $20,000 after the Effective Date pursuant to Section 10.2(h)
hereof in respect of consents, amendments, waivers or other
modifications to the Credit Documents) and any payment expressly
permitted on the Holdings Term Loan Maturity Date pursuant to Section
8.2) and (B) each Holdings Term Loan Lender shall not be entitled, nor
shall any Lender have the right to, declare to be due and payable,
demand prepayment of, or take any action or exercise or assert any
right or remedy by suit or otherwise, against any Credit Party to
collect, any principal outstanding hereunder or any interest accrued
thereon or any other amount owing hereunder pursuant to the Sections
referred to in (A) immediately above, other than Section 10.2(h), and
any purported such declaration, demand or other action shall have no
force or effect provided that the Holdings Term Loan Lenders may make
demand and receive payment on the Holdings Term Loan Maturity Date in
accordance with and subject to the limitations in Section 8.2 and may
exercise or assert any right or remedy in respect thereof.
(ii) In the event that, notwithstanding the foregoing
provisions of this Section 7A(b), any payment or distribution shall be
made by or on behalf of the Company or any other Credit Party from any
of its assets and received by any Holdings Term Loan Lender at a time
when such payment was prohibited by the provisions of Section 7A (b)
(i), then such payment or distribution shall be held in trust for the
benefit of, and shall be immediately paid over to, the Administrative
Agent for the benefit of the holders of Senior Obligations (pro rata,
on the basis of the respective amount of such Senior Obligations held
by them) remaining unpaid, if made in cash for application to (and if
made other than in cash to be held as collateral security for) the
payment in full of all Senior Obligations (other than contingent
indemnities) in accordance with its terms (after giving effect to any
prior or substantially concurrent payment to the holders of such Senior
Obligations).
(iii) The provisions of this Section 7A(b) shall not modify or
limit in any way the application of Section 7A(a). Nothing in this
Section 7A(b) to be construed as prohibiting at any time the action
expressly permitted by Section 6.4(viii) above.
(c) SUBROGATION TO RIGHTS OF LENDERS OF SENIOR OBLIGATIONS. After
all amounts payable under or in respect of Senior Obligations (other than
contingent indemnities) are Indefeasibly Paid whether or not due and all Senior
Commitments cancelled, each Holdings Term Loan Lender shall be entitled to
exercise its rights to be subrogated to the extent of the payments or
distributions made to the holders of,
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or otherwise applied to payment of, such Senior Obligations pursuant to the
provisions of this Section 7A, and to the rights of the holders of such Senior
Obligations to receive payments and distributions of cash, property and
securities applicable to the Senior Obligations until the Holdings Obligations
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Obligations of any cash, property or
securities to which each Holdings Term Loan Lender would be entitled except for
the provisions of this Section 7A, and no payments over pursuant to the
provisions of this Section 7A to the holders of Senior Obligations by the
Holdings Term Loan Lenders shall, as among each of Holdings, the Company and any
other Credit Party and its creditors (other than holders of Senior Obligations
and the Holdings Term Loan Lenders), be deemed to be a payment or distribution
by Holdings, the Company or any Credit Party to or on account of the Senior
Obligations, it being understood that the provisions of this are solely for the
purpose of defining the relative rights of the holders of Senior Obligations on
the one hand and the Holdings Term Loan Lenders on the other hand.
(d) NO WAIVER OF SUBORDINATION PROVISIONS. No right of any holder
of any Senior Obligations to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or any Credit Party or by any act or failure to act by
such holder of any agent of such holder, or by any noncompliance by the Company
or any Credit Party with such terms, provisions and covenants of this Agreement,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of the Senior Obligations may, subject to Section 10.5, at any time
and from time to time, without the consent of or notice to the Holdings Term
Loan Lenders, incurring any liabilities to the Holdings Term Loan Lenders, and
without impairing or releasing the subordination and other benefits provided in
this Section 7A or the obligations hereunder of the Holdings Term Loan Lenders
to the holders of the Senior Obligations, even if any right of reimbursement or
subrogation or other right or remedy of any Holdings Term Loan Lender is
affected, impaired or extinguished thereby, do any one or more of the following:
(i) change the manner, place or terms of payment or change or
extend the time of payment of, or renew, exchange, amend, increase or
alter, the terms of any Senior Obligations, any security therefor or
guaranty thereof or any liability of the Company or any other Credit
Party to any holder of Senior Obligations, or any liability incurred
directly or indirectly in respect thereof, or otherwise amend, renew,
exchange, extend, modify, increase or supplement in any manner Senior
Obligations or any instrument evidencing or guaranteeing or securing
the same or any agreement under which Senior Obligations is outstanding
(ii) sell, exchange, release, surrender, realize upon, enforce
or otherwise deal with in any manner and in any order any property
pledged, mortgaged or otherwise securing Senior Obligations or any
liability of the Company or any other Credit Party to such holder, or
any liability incurred directly or indirectly in respect thereof;
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(iii) settle or compromise any Senior Obligations or any
security therefor or any liability incurred directly or indirectly in
respect thereof and apply any sums by whomsoever paid and however
realized to the Senior Obligations in any manner or order;
(iv) fail to take or to record or otherwise perfect, for any
reason or for no reason, any lien or security interest securing Senior
Obligations by whomsoever granted, exercise or delay in or refrain from
exercising any right or remedy against the Company or any Credit Party
or any security or any other Person elect any remedy and otherwise deal
freely with the Company or any Credit Party or any Security or any
liability of the Company or any Credit Party to any holder of Senior
Obligations or any liability incurred directly or indirectly in respect
thereof; and
(v) exercise any other right or remedy or take any other
action which any holder of Senior Obligations is entitled to take
pursuant to the terms of any Credit Document or any applicable law.
(e) ADDITIONAL DOCUMENTATION. The Administrative Agent is hereby
authorized, and shall have the right (without any duty) to take such action as
may be necessary or appropriate to effectuate the subordination provided for in
this Section 7A including, without limitation, the right to ensure the timely
filing of a claim or proof of debt for the unpaid balance of the Holdings
Obligations in the form required in any Proceeding.
(f) AGREEMENTS OF EACH HOLDINGS TERM LOAN LENDER. Each Holdings
Term Loan Lender for itself and its successors and assigns solely in its
capacity as a holder of Holdings Term Loans, agrees that it will not, except as
permitted under this Agreement, without the prior written consent of a majority
of the holders of the Senior Obligations, (i) subordinate the Holdings
Obligations to any other Indebtedness of the Company or any Credit Party or (ii)
until all Senior Obligations (other than contingent liabilities) shall have been
Indefeasibly Paid and all Senior Commitments cancelled (except as expressly
provided in Section 8.2 and subject to the limitations therein after the
Holdings Term Loan Maturity Date), initiate any Proceeding involving the
Company, Holdings or any other Credit Party pursuant to which its is sought to
adjudicate the Company, Holdings or any other Credit Party bankrupt or insolvent
(PROVIDED that nothing herein shall prevent any Holdings Term Loan Lender from
filing a claim or statement of interest with respect to the Obligations owing to
it in any Proceeding). The parties hereto agree, that to the extent any Holdings
Term Loan Lender acts in any other capacity with respect to any Credit Party
(including without limitation, as an investor, stock or other security holder,
or member of the Board of Directors) it will act separately and independently in
such capacity, and such Person's involvement as a Holdings Term Loan Lender
hereunder is not, and shall not be deemed to be, a direction to such Person to
pursue any particular course of action in such other capacity.
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(g) Without limiting the generality of the other provisions of
this Section 7A, upon the occurrence of any Insolvency Event, each Holdings Term
Loan Lender:
(i) irrevocably authorizes and empowers and/or appoints the
Administrative Agent in a Proceeding as its principal in fact to:
(A) demand, ▇▇▇ for, collect and receive every
payment or distribution on account of the Holdings Obligations
payable or deliverable in connection with such event or
proceeding and give acquittance therefor;
(B) vote the full amount of the Holdings Obligations
in the Administrative Agent's sole discretion at any
creditors' meetings or otherwise in connection with any
election of trustees, resolution, arrangement, plan of
reorganization, compromise, settlement or extension; except in
respect of an arrangement, compromise, settlement, extension
or a plan of reorganization that would result in less than
repayment in full of all Obligations and a distribution of any
property, directly or indirectly, and/or any value being
given, directly or indirectly, to any other class of
pre-petition claims of Holdings or the Company (excluding
claims of general unsecured creditors whose distributions are
in proportion to their entitlement to assets not subject to
Liens), in which case each Holdings Term Loan Lender agrees to
vote the full amount of the Holdings Obligations owed to it in
accordance with the directions of Requisite Class Lenders
having Holdings Term Loan Exposure; and
(C) take all such other actions, in the name of the
Senior Beneficiaries, in the name of the Holdings Term Loan
Lenders or otherwise, as the Administrative Agent may deem
necessary or advisable (1) for the enforcement of the
subordination provisions of this Agreement and/or (II) to
enable the Administrative Agent to enforce any and all
Holdings Obligations;
(ii) shall vote the full amount of Holdings Obligations as may
be directed by the Administrative Agent, in its sole discretion, at any
creditors' meetings or otherwise in connection with any election of
trustees, resolution, arrangement, plan of reorganization, compromise,
settlement or extension; except in respect of an arrangement,
compromise, settlement, extension or a plan of reorganization that
would result in less than repayment in full of all Obligations and a
distribution of any property, directly or indirectly, and/or any value
being given, directly or indirectly, to any other class of pre-petition
claims of Holdings or the Company (excluding claims of general
unsecured creditors whose distributions are in proportion to their
entitlement to assets not subject to Liens, in which case each Holdings
Term Loan Lender agrees to vote the full amount of the Holdings
Obligations owed to it in accordance with the directions of Requisite
Class Lenders having Holdings Term Loan Exposure);
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(iii) subject to the limitations of other provisions of this
Agreement, shall execute and deliver such powers of attorney,
assignments or proofs of claim or other instruments and agreements as
any Senior Beneficiary may request to enable such Senior Beneficiary to
enforce any and all claims in respect of the Holdings Obligations and
to collect and receive any and all payments and distributions which may
be payable or deliverable at any time upon or in respect of the
Holdings Obligations.
(iv) To the maximum extent permitted by law, each Holdings
Term Loan Lender waives any claim it might have against the Senior
Beneficiaries with respect to, or arising out of or in connection with,
any action or failure to act or any error of judgment, negligence,
mistake or oversight whatsoever on the part of any Senior Beneficiaries
or its directors, officers, employees, attorneys or agents with respect
to any exercise of rights or remedies under the Credit Documents, other
than any claims resulting from (x) a breach of the express obligations
owed by the Senior Lenders to the Holding Term Loan Lenders pursuant to
Sections 10.5(c)(vi), 7A(g)(i)(B) or 7A(g)(ii) or (y) the gross
negligence or willful misconduct of any Senior Beneficiaries. No Senior
Beneficiary nor any of its directors, officers, employees, attorneys or
agents shall be (a) liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so, or (b) under
any obligation to sell or otherwise dispose of any Collateral upon the
request of any Credit Party or any Holdings Term Loan Lender or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. Without limiting any Holdings Term Loan
Lender's rights pursuant to Sections 7A(g)(i)(B) or 7A(g)(ii), in the
event any Senior Beneficiary elects to exercise its remedies to
liquidate the collateral given to secure the Senior Obligations, each
Holdings Term Loan Lender hereby waives any right it may have to
contest the validity of, or the value obtained as a result of, such
Senior Beneficiary's exercise of its remedies including a foreclosure
(whether a strict foreclosure or otherwise), a sale pursuant to the UCC
or the acceptance by such Senior Beneficiary of a deed (or similar
instrument or document evidencing title) in lieu of foreclosure.
(h) The provisions of this Section 7A shall continue in full
force and effect notwithstanding the occurrence of any Insolvency Event.
(i) No Holdings Term Loan Lender or any Affiliate thereof shall,
prior to and upon the occurrence and during the continuance of any Insolvency
Event commenced by or against any Credit Party, extend credit or make other
financial accommodations to any Credit Party, either directly or indirectly,
that is entitled to priority or loan status superior or equal to that granted to
the Senior Beneficiaries pursuant to the Credit Documents.
(j) OBLIGATIONS OF EACH CREDIT PARTY UNCONDITIONAL. Nothing
contained in this Section 7A is intended to or shall impair, as between any
Credit Party and the Holdings Term Loan Lenders, the
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obligation of each Credit Party, which is absolute and unconditional, to pay the
Holdings Obligations as and when the same shall become due and payable in
accordance with the terms hereof (including without limitation Section 7A), or
is intended to or shall affect the relative rights of the Holdings Term Loan
Lenders and the creditors of any Credit Party other than the Senior
Beneficiaries.
SECTION 8. EVENTS OF DEFAULT
8.1. EVENTS OF DEFAULT. If any one or more of the following conditions
or events shall occur:
(a) FAILURE TO MAKE PAYMENTS WHEN DUE. Failure by Holdings or
Company to pay (i) when due any installment of principal of any Loan, whether at
stated maturity, by acceleration, by notice of voluntary prepayment, by
mandatory prepayment or otherwise, or (ii) any interest on any Loan or any fee
or any other amount due hereunder or under any of the other Credit Documents
within three (3) days after the date due; or
(b) DEFAULT IN OTHER AGREEMENTS. (i) Failure of any Credit Party
to pay when due any principal of or interest on or any other amount payable in
respect of one or more items of Indebtedness (other than Indebtedness referred
to in Section 8.1(a)) in an individual or aggregate principal amount of
$5,000,000 or more or beyond the grace period, if any, provided therefor; or
(ii) breach or default by any Credit Party with respect to any other term of (A)
one or more items of Indebtedness in the individual or aggregate principal
amounts referred to in clause (i) above or (B) any loan agreement, mortgage,
indenture or other agreement relating to such item(s) of Indebtedness, in each
case beyond the grace period, if any, provided therefor, if the effect of such
breach or default is to cause, or to permit the holder or holders of that
Indebtedness (or a trustee on behalf of such holder or holders), to cause, that
Indebtedness to become or be declared due and payable (or redeemable) prior to
its stated maturity or the stated maturity of any underlying obligation, as the
case may be; or
(c) BREACH OF CERTAIN COVENANTS. Failure of any Credit Party to
perform or comply with any term or condition contained in Section 2.4, Section
5.1(f), Section 5.2, Section 5.5 or Section 6; or
(d) BREACH OF REPRESENTATIONS, ETC. Any representation, warranty,
certification or other statement made or deemed made by any Credit Party in any
Credit Document or in any statement or certificate at any time given by any
Credit Party or any of its Subsidiaries in writing pursuant hereto or thereto or
in connection herewith or therewith shall be false in any material respect as of
the date made or deemed made; or
(e) OTHER DEFAULTS UNDER CREDIT DOCUMENTS. Any Credit Party shall
default in the performance of or compliance with any term contained herein or
any of the other Credit Documents, other than any such term referred to in any
other Section of this Section 8.1, and such default shall not have been
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remedied or waived within thirty (30) days after the earlier of (i) an officer
of such Credit Party becoming aware of such default or (ii) receipt by Company
of notice from Administrative Agent or any Lender of such default; or
(f) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.. (i) A
court of competent jurisdiction shall enter a decree or order for relief in
respect of Holdings or any of its Subsidiaries in an involuntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, which decree or order is not stayed; or any
other similar relief shall be granted under any applicable federal or state law;
or (ii) an involuntary case shall be commenced against Holdings or any of its
Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect; or a decree or order of a
court having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar
powers over Holdings or any of its Subsidiaries, or over all or a substantial
part of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of
Holdings or any of its Subsidiaries for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall have
been issued against any substantial part of the property of Holdings or any of
its Subsidiaries, and any such event described in this clause (ii) shall
continue for sixty (60) days without having been dismissed, bonded or
discharged; or
(g) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. (i)
Holdings or any of its Subsidiaries shall have an order for relief entered with
respect to it or shall commence a voluntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Holdings or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or (ii) Holdings or any of its
Subsidiaries shall be unable, or shall fail generally, or shall admit in writing
or make any duly authorized public statement with respect to its inability, to
pay its debts as such debts become due; or the board of directors (or similar
governing body) of Holdings or any of its Subsidiaries (or any committee
thereof) shall adopt any resolution or otherwise authorize any action to approve
any of the actions referred to herein or in Section 8.1(f); or
(h) JUDGMENTS AND ATTACHMENTS. Any money judgment, writ or
warrant of attachment or similar process involving in the aggregate at any time
an amount in excess of $5,000,000 (to the extent not adequately covered by
insurance as to which a solvent and unaffiliated insurance company has
acknowledged coverage) shall be entered or filed against Holdings or any of its
Subsidiaries or any of their respective assets and shall remain undischarged,
unvacated, unbonded or unstayed for a period of sixty (60) days (or in any event
later than five days prior to the date of any proposed sale thereunder); or
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(i) DISSOLUTION. Any order, judgment or decree shall be entered
against any Credit Party decreeing the dissolution or split up of Holdings or
that Subsidiary and such order shall remain undischarged or unstayed for a
period in excess of sixty (60) days; or
(j) EMPLOYEE BENEFIT PLANS. There shall occur one or more ERISA
Events which individually or in the aggregate results in or might reasonably be
expected to result in liability of Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates in excess of $1,000,000 during the term
hereof; or there shall exist an amount of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for
all Pension Plans (excluding for purposes of such computation any Pension Plans
with respect to which assets exceed benefit liabilities), which exceeds
$1,000,000; or
(k) CHANGE OF CONTROL. A Change of Control shall occur; or
(l) GUARANTIES, COLLATERAL DOCUMENTS AND OTHER CREDIT DOCUMENTS.
At any time after the execution and delivery thereof, (i) the Guaranty for any
reason, other than the satisfaction in full of all Obligations guaranteed
thereby, shall cease to be in full force and effect (other than in accordance
with its terms) or shall be declared to be null and void or any Guarantor shall
repudiate its obligations thereunder, (ii) this Agreement or any Collateral
Document ceases to be in full force and effect (other than by reason of a
release of Collateral in accordance with the terms hereof or thereof or the
satisfaction in full of the Obligations in accordance with the terms hereof) or
shall be declared null and void, or Collateral Agent shall not have or shall
cease to have (subject to the provisions of Section 5.15) a valid and perfected
Lien in any Collateral purported to be covered by the Collateral Documents with
the priority required by the relevant Collateral Document which collateral,
individually or in the aggregate, has a fair market value in excess of
$1,000,000, in each case for any reason other than the negligent or willful
failure of Collateral Agent or any Lender to take any action within its control
and required of it by the Credit Documents, or (iii) any Credit Party shall
contest the validity or enforceability of any Credit Document in writing or deny
in writing that it has any further liability, including with respect to future
advances by Lenders, under any Credit Document to which it is a party;
THEN, (1) upon the occurrence of any Event of Default described in Section
8.1(f) or 8.1(g), automatically, and (2) upon the occurrence of any other Event
of Default, at the request of (or with the consent of) Requisite Lenders, upon
notice to Company by Administrative Agent, (A) the Commitments, if any, of each
Lender having such Commitments shall immediately terminate; (B) each of the
following shall immediately become due and payable, in each case without
presentment, demand, protest or other requirements of any kind, all of which are
hereby expressly waived by each Credit Party: (I) the unpaid principal amount of
and accrued interest on all Senior Loans, and (II) all other Obligations; (C)
the unpaid principal amount of and accrued interest on the Holdings Term Loans
and all other Holdings Obligations, providing in any event, (B) above shall
first have occurred, shall (I) if so requested or consented to by Requisite
Lenders, or if not (II) if so requested by Requisite Class Lenders having
Holdings Term Loan Exposure, immediately become due and payable, in each case
without presentment, demand, protest or
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other requirements of any kind, all of which are hereby expressly waived by each
Credit Party; and (D) the Administrative Agent may cause the Collateral Agent to
enforce any and all Liens and security interests created pursuant to Collateral
Documents.
8.2. LIMITED HOLDINGS TERM LOAN EVENT OF DEFAULT. Upon the occurrence
and during the continuance of an Event of Default described in Section 8.1(a)
arising solely due to the failure by Holdings or any other Credit Party to pay
the outstanding principal and interest or other amount then due and owing on the
Holdings Term Loans on the Holdings Term Loan Maturity Date (which such Event of
Default, it is hereby agreed, may not be waived or otherwise modified by holders
of Senior Obligations) and, at the request of Requisite Class Lenders having
Holdings Term Loan Exposure notified in writing to the Administrative Agent,
Holdings and the Company, the Holdings Obligations shall immediately become due
and payable. Provided no Event of Default has occurred and is continuing (other
than any Event of Default arising solely as a consequence of the failure to make
payment of the Holdings Obligations), Requisite Class Lenders having Holdings
Term Loan Exposure may demand repayment of and take actions to collect all
Holdings Obligations then due and payable on or after the Holdings Term Loan
Maturity Date and each Credit Party may make payment in respect of such
Obligations. If an Event of Default shall have occurred and be continuing on the
Holdings Term Loan Maturity Date (other than any Event of Default arising solely
as a consequence of the failure to make payment of the Holdings Obligations),
this Section 8.2 shall be inapplicable and the provisions of Section 7A shall
continue to apply.
SECTION 9. AGENTS
9.1. APPOINTMENT OF AGENTS. Each of GSCP and SSB is hereby appointed a
Joint Lead Arranger hereunder. GSCP is hereby appointed as Syndication Agent
hereunder. Each Senior Lender hereby authorizes each Joint Lead Arranger and
Syndication Agent to act as its agents in accordance with the terms hereof and
the other Credit Documents. Bank of America is hereby appointed Documentation
Agent hereunder, and each Senior Lender hereby authorizes each Documentation
Agent to act as its agent in accordance with the terms hereof and the other
Credit Documents. Citibank, N.A. hereby resigns as Administrative Agent and
Collateral Agent under the Existing Credit Agreement and each Credit Party and
each Lender hereby consents to and approves such resignation and the appointment
of CUSA as successor Administrative Agent (for purposes of this Section 9, the
terms "Administrative Agent" and "Agent" shall also include CUSA in its capacity
as Collateral Agent pursuant to the Collateral Documents) hereunder and under
the other Credit Documents. Each Lender hereby authorizes Administrative Agent
to act as its agent in accordance with the terms hereof and the other Credit
Documents. All parties hereto agree that in accordance with the provisions of
Section 9.7 of the Existing Credit Agreement, CUSA shall hereupon succeed to and
become vested with (and Citibank, N.A. hereby assigns to the extent necessary)
all the rights, powers, privileges and duties of Citibank, N.A. as
Administrative Agent under each Collateral Document, Landlord Personal Property
Collateral Access Agreement or otherwise and Citibank, N.A. agrees to (i)
transfer to CUSA as successor Administrative Agent all sums, Securities and
other items of
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Collateral held under the Collateral Documents, together with all records and
other documents necessary or appropriate in connection with the performance of
the duties of CUSA as successor Administrative Agent under the Credit Documents,
and (ii) execute and deliver to CUSA as successor Administrative Agent such
amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to CUSA as successor
Administrative Agent of the security interests created under the Collateral
Documents, whereupon Citibank, N.A. as the retiring Administrative Agent shall
be discharged from its duties and obligations (in its capacity as Administrative
Agent only) under the Existing Credit Agreement or any other Credit Document or
hereunder. Each Agent hereby agrees to act upon the express conditions contained
herein and the other Credit Documents, as applicable. The provisions of this
Section 9 are solely for the benefit of Agents and Lenders and no Credit Party
shall have any rights as a third party beneficiary of any of the provisions
thereof other than the right to receive notices pursuant to the first two
sentences of Section 9.7. In performing its functions and duties hereunder, each
Agent shall act solely as an agent of Lenders and does not assume and shall not
be deemed to have assumed any obligation towards or relationship of agency or
trust with or for Holdings or any of its Subsidiaries. Each of Syndication Agent
and Documentation Agent, without consent of or notice to any party hereto, may
assign any and all of its rights or obligations hereunder to any of its
Affiliates. As of the Effective Date, all the respective obligations of (i) GSCP
and SSB in its capacity as Joint Lead Arranger and (ii) Bank of America, in its
capacity as Documentation Agent, shall terminate.
9.2. POWERS AND DUTIES. Subject to the final sentence of Section 9.1
hereof, each Lender irrevocably authorizes each Agent to take such action on
such Lender's behalf and to exercise such powers, rights and remedies hereunder
and under the other Credit Documents as are specifically delegated or granted to
such Agent by the terms hereof and thereof, together with such powers, rights
and remedies as are reasonably incidental thereto. Each Agent shall have only
those duties and responsibilities that are expressly specified herein and the
other Credit Documents. Each Agent may exercise such powers, rights and remedies
and perform such duties by or through its agents or employees. No Agent shall
have, by reason hereof or any of the other Credit Documents, a fiduciary
relationship in respect of any Lender; and nothing herein or any of the other
Credit Documents, expressed or implied, is intended to or shall be so construed
as to impose upon any Agent any obligations in respect hereof or any of the
other Credit Documents except as expressly set forth herein or therein.
9.3. GENERAL IMMUNITY.
(a) NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency hereof or any other
Credit Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by any of Agent to Lenders or by or on behalf of any
Credit Party to any Agent or any Lender in connection with the Credit Documents
and the transactions contemplated thereby or for the financial condition or
business affairs of any Credit
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Party or any other Person liable for the payment of any Obligations, nor shall
any Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Credit Documents or as to the use of the proceeds of the
Loans or as to the existence or possible existence of any Event of Default or
Default.
(b) EXCULPATORY PROVISIONS. No Agent nor any of its officers,
partners, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by any Agent under or in connection with any of the
Credit Documents except to the extent caused by such Agent's gross negligence or
willful misconduct. Each Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection
herewith or any of the other Credit Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
such Agent shall have received instructions in respect thereof from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under Section 10.5) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be), such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper Person or Persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Holdings and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against any Agent as a result of such Agent
acting or (where so instructed) refraining from acting hereunder or any of the
other Credit Documents in accordance with the instructions of Requisite Lenders
(or such other Lenders as may be required to give such instructions under
Section 10.5).
9.4. AGENTS ENTITLED TO ACT AS LENDER. The agency hereby created shall
in no way impair or affect any of the rights and powers of, or impose any duties
or obligations upon, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans, each Agent in its individual
capacity, shall have the same rights and powers hereunder as any other Lender
and may exercise the same as if it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" shall, unless the context
clearly otherwise indicates, include each Agent in its individual capacity. Any
Agent in its individual capacity, and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of banking, trust, financial
advisory or other business with Holdings or any of its Affiliates as if it were
not performing the duties specified herein, and may accept fees and other
consideration from Holdings or any of its Affiliates for services in connection
herewith and otherwise without having to account for the same to Lenders.
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9.5. LENDERS' REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENT.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Holdings and
its Subsidiaries in connection with Credit Extensions hereunder and that it has
made and shall continue to make its own appraisal of the creditworthiness of
Holdings and its Subsidiaries. No Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or any
such appraisal on behalf of Lenders or to provide any Lender with any credit or
other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter, and no Agent
shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.
9.6. RIGHT TO INDEMNITY. Each Lender, in proportion to its Pro Rata
Share, severally agrees to indemnify each Agent (in the case of any Holdings
Term Loan Lender only, in respect solely of any actions taken by the Collateral
Agent in connection with the preservation, protection, collection of, or
enforcement against the Collateral), to the extent that such Agent is required
hereunder to be, and shall not have been, reimbursed by any Credit Party, for
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against such Agent in exercising its powers,
rights and remedies or performing its duties hereunder or under the other Credit
Documents or otherwise in its capacity as such Agent in any way relating to or
arising out hereof or the other Credit Documents; PROVIDED, no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Agent's gross negligence or willful misconduct. If any indemnity
furnished to any Agent for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished; PROVIDED, in no event shall this sentence
require any Lender to indemnify any Agent against any liability, obligation,
loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in
excess of such Lender's Pro Rata Share thereof; and PROVIDED FURTHER, this
sentence shall not be deemed to require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement described in the proviso in the immediately
preceding sentence.
9.7. SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may resign at
any time (and, after all Senior Obligations (other than contingent obligations)
shall have been Indefeasibly Paid and all Senior Commitments cancelled, shall
resign) by giving thirty (30) days' prior written notice thereof to Lenders and
Company, and Administrative Agent may be removed at any time with or without
cause by an instrument or concurrent instruments in writing delivered to Company
and Administrative Agent and signed by Requisite Lenders. Upon any such notice
of resignation or any such removal, Requisite Lenders (or, after all Senior
Obligations (other than contingent obligations) shall have been Indefeasibly
Paid and all Senior Commitments cancelled, Requisite Class Lenders having
Holdings Term Loan Exposure) shall have the
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right, upon five Business Days' notice to Company, to appoint a successor
Administrative Agent. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Administrative
Agent and the retiring or removed Administrative Agent shall promptly (i)
transfer to such successor Administrative Agent all sums, Securities and other
items of Collateral held under the Collateral Documents, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Administrative Agent under the Credit
Documents, and (ii) execute and deliver to such successor Administrative Agent
such amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to such successor
Administrative Agent of the security interests created under the Collateral
Documents, whereupon such retiring or removed Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring or
removed Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent hereunder. It is expressly agreed by the parties hereto
that the provisions of Section 9 of the Existing Credit Agreement shall inure to
the benefit of Citibank, N.A. as to any actions taken by it while it was
Administrative Agent and Collateral Agent. For purposes of this Section 9.7, any
reference to "Administrative Agent" also shall be deemed to be and include a
reference to "Collateral Agent."
9.8. COLLATERAL DOCUMENTS AND GUARANTY.
(a) AGENT UNDER COLLATERAL DOCUMENTS AND GUARANTIES. Each Lender
hereby authorizes Collateral Agent, on behalf of and for the benefit of Secured
Parties, to be the agent for and representative of Lenders and all other Secured
Parties with respect to the Collateral and the Collateral Documents and to enter
into the Collateral Documents. Each Lender hereby authorizes Administrative
Agent, on behalf of and for the benefit of Lenders, to be the agent for and
representative of Lenders with respect to the Guaranty. Subject to Section 10.5,
without further written consent or authorization from Lenders, each of
Administrative Agent and Collateral Agent, as applicable, may execute any
documents or instruments necessary to (i) release any Lien encumbering any item
of Collateral that is the subject of a sale or other disposition of assets
permitted hereby or to the release of which Requisite Lenders (or such other
Lenders as may be required to give such consent under Section 10.5) have
otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to
Section 7.12 or with respect to the release of which Requisite Lenders (or such
other Lenders as may be required to give such consent under Section 10.5) have
otherwise consented.
(b) RIGHT TO REALIZE ON COLLATERAL AND ENFORCE GUARANTY. Anything
contained in any of the Credit Documents to the contrary notwithstanding, each
Credit Party, Administrative Agent, Collateral Agent and each Lender hereby
agree that (i) no Lender shall have any right individually to realize upon any
of the Collateral or to enforce the Guaranty, it being understood and agreed
that all powers, rights and remedies hereunder may be exercised solely by
Administrative Agent or Collateral Agent, as
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applicable, on behalf of Lenders in accordance with the terms hereof, and (ii)
in the event of a foreclosure by Collateral Agent on any of the Collateral
pursuant to a public or private sale, Collateral Agent or any Lender may be the
purchaser of any or all of such Collateral at any such sale and each of
Administrative Agent and Collateral Agent, as agent for and representative of
Lenders (but not any Lender or Lenders in its or their respective individual
capacities unless Requisite Lenders shall otherwise agree in writing) shall be
entitled, for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Collateral sold at any such public
sale, to use and apply any of the Obligations as a credit on account of the
purchase price for any collateral payable by Collateral Agent at such sale.
9.9. APPLICATION OF PROCEEDS.
Except as expressly provided elsewhere in this Agreement, all proceeds
received by the Collateral Agent in respect of any sale, any collection from, or
other realization upon all or any part of the Collateral shall be applied in
full or in part by the Collateral Agent against, the Obligations in the
following order of priority: FIRST, to the payment of all costs and expenses of
such sale, collection or other realization, including reasonable compensation to
the Collateral Agent and its agents and counsel, and all other expenses,
liabilities and advances made or incurred by the Collateral Agent in connection
therewith, and all amounts for which the Collateral Agent is entitled to
indemnification hereunder (in its capacity as the Collateral Agent and not as a
Lender) and all advances made by the Collateral Agent hereunder for the account
of any Credit Party, and to the payment of all costs and expenses paid or
incurred by the Collateral Agent in connection with the exercise of any right or
remedy hereunder or under any Collateral Document, all in accordance with the
terms hereof or thereof; SECOND, to the extent of any excess, to the payment of
all other Senior Obligations for the ratable benefit of the Senior
Beneficiaries; and THIRD, to the extent of any excess of such proceeds, to the
payment of all Holdings Obligations for the ratable benefit of the Holdings Term
Loan Lenders; and FOURTH, to the extent of any excess of such proceeds, to the
payment to or upon the order of the relevant Credit Parties or to whosoever may
be lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.
SECTION 10. MISCELLANEOUS
10.1. NOTICES. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given to a
Credit Party or any Agent, shall be sent to such Person's address as set forth
on APPENDIX B or in the other relevant Credit Document, and in the case of any
Lender, the address as indicated on APPENDIX B or otherwise indicated to
Administrative Agent in writing with a copy to Madison Dearborn Capital Partners
L.P. Each notice hereunder shall be in writing and may be personally served,
telexed or sent by telefacsimile or United States mail or courier service and
shall be deemed to have been given when delivered in person or by courier
service and signed for against receipt thereof, upon receipt of telefacsimile or
telex, or three Business Days after depositing it in the United States mail with
postage prepaid and properly addressed; PROVIDED, no notice to any Agent shall
be effective until received by such Agent.
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10.2. EXPENSES. Whether or not the transactions contemplated hereby
shall be consummated, Company agrees to pay promptly (a) all the actual and
reasonable costs and expenses of the Syndication Agent associated with the
preparation of the Credit Documents and any consents, amendments, waivers or
other modifications thereto; (b) all the costs of furnishing all opinions by
counsel for any Credit Party (including any opinions requested by Lenders as to
any legal matters arising hereunder) and of each Credit Party's performance of
and compliance with all agreements and conditions on its part to be performed or
complied with hereunder and the other Credit Documents, including with respect
to confirming compliance with environmental, insurance and solvency
requirements; (c) the reasonable fees, expenses and disbursements of counsel to
Syndication Agent (in each case including allocated costs of internal counsel)
in connection with the negotiation, preparation, execution and administration of
the Credit Documents and any consents, amendments, waivers or other
modifications thereto and any other documents or matters requested by any Credit
Party; (d) all the actual costs and reasonable expenses of creating and
perfecting Liens in favor of Collateral Agent, for the benefit of Secured
Parties pursuant hereto, including filing and recording fees, expenses and
taxes, stamp or documentary taxes, search fees, title insurance premiums and
reasonable fees, expenses and disbursements of counsel to Collateral Agent and
of counsel providing any opinions that any Agent or Requisite Lenders may
request in respect of the Collateral or the Liens created pursuant the
Collateral Documents; (e) all the actual costs and reasonable fees, expenses and
disbursements of any auditors, accountants, consultants or appraisers; (f) all
the actual costs and reasonable expenses (including the reasonable fees,
expenses and disbursements of any appraisers, consultants, advisors and agents
employed or retained by Collateral Agent and its counsel) in connection with the
custody or preservation of any of the Collateral; (g) all other actual and
reasonable costs and expenses incurred by Syndication Agent and Administrative
Agent in connection with the negotiation, preparation and execution of the
Credit Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby; (h) the reasonable fees,
expenses and disbursements of legal counsel appointed from time to time by
Requisite Class Lenders having Holdings Term Loan Exposure in connection with
the negotiation and execution of the Credit Documents and of any consents,
amendments, waivers or other modifications hereto, (provided that Section 7A
shall, prior to the Senior Obligations (other than indemnity obligations) having
been Indefeasibly Paid, and all Senior Commitments cancelled, prohibit the
payment in cash of such expenses in a maximum aggregate amount in excess of
$20,000 after the Effective Date in connection with consents, amendments,
waivers or other modifications) and (i) after the occurrence of a Default or an
Event of Default, all costs and expenses, including reasonable attorneys' fees
(including allocated costs of internal counsel) and costs of settlement,
incurred by any Agent and Lenders in enforcing any Obligations of or in
collecting any payments due from any Credit Party hereunder or under the other
Credit Documents by reason of such Default or Event of Default (including in
connection with the sale of, collection from, or other realization upon any of
the Collateral or the enforcement of the Guaranty) or in connection with any
refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a "work-out" or pursuant to any insolvency or bankruptcy cases or
proceedings.
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10.3. INDEMNITY. In addition to the payment of expenses pursuant to
Section 10.2, whether or not the transactions contemplated hereby shall be
consummated, each Credit Party agrees to defend (subject to Indemnitees'
selection of counsel), indemnify, pay and hold harmless, each Agent and Lender
and the officers, partners, directors, trustees, employees, agents and
Affiliates of each Agent and each Lender (each, an "INDEMNITEE"), from and
against any and all Indemnified Liabilities; PROVIDED, no Credit Party shall
have any obligation to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise from the gross
negligence or willful misconduct of that Indemnitee. To the extent that the
undertakings to defend, indemnify, pay and hold harmless set forth in this
Section 10.3 may be unenforceable in whole or in part because they are violative
of any law or public policy, the applicable Credit Party shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law to
the payment and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them. Except for then outstanding Obligations, no party
hereto shall have any liability (whether in contract, tort or otherwise) to any
other party hereto or any of its security holders or creditors for or in
connection with the transactions contemplated hereby, except for direct damages
(as opposed to special, indirect, consequential or punitive damages (including
without limitation, any loss of profits, business or anticipated savings))
determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from such aforementioned first party's gross
negligence or willful misconduct.
10.4. SET-OFF. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence and during the continuance of any Event of Default each Lender
(provided in the case of any Holdings Term Loan Lender, expressly subject to the
provisions of Section 7A) is hereby authorized by each Credit Party at any time
or from time to time subject to the consent of Administrative Agent (such
consent not to be unreasonably withheld or delayed), without notice to any
Credit Party or to any other Person (other than Administrative Agent), any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, including Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time held or owing by such Lender or
any Affiliate of the Administrative Agent to or for the credit or the account of
any Credit Party against and on account of the obligations and liabilities of
such Credit Party to such Lender hereunder or any of the other Credit Documents,
including all claims of any nature or description arising out of or connected
hereto, or with any other Credit Document, irrespective of whether or not (a)
such Lender shall have made any demand hereunder or (b) the principal of or the
interest on the Loans or any other amounts due hereunder shall have become due
and payable pursuant to Section 2 and although such obligations and liabilities,
or any of them, may be contingent or unmatured. Each Credit Party hereby further
grants to Administrative Agent and each Lender a security interest in all
Deposit Accounts maintained with Administrative Agent or such Lender as security
for the Obligations.
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10.5. AMENDMENTS AND WAIVERS.
(a) REQUISITE LENDERS' CONSENT. Subject to Sections 10.5(b) and
10.5(c) and 10.5(e), no amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit
Party therefrom, shall in any event be effective without the written concurrence
of the Requisite Lenders.
(b) AFFECTED LENDERS' CONSENT. Without the written consent of
each Lender (other than a Defaulting Lender) that would be affected thereby, no
amendment, modification, termination, or consent shall be effective if the
effect thereof would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) waive, reduce or postpone any scheduled repayment (but
not prepayment) or the Tranche A Revolving Commitment Termination Date
or the Tranche B Revolving Commitment Termination Date;
(iii) reduce the rate of interest on any Loan (other than any
waiver of any increase in the interest rate applicable to any Senior
Loan pursuant to Section 2.8) or any fee or other amount payable
hereunder or under any of the other Credit Documents;
(iv) extend the time for payment of any such interest or fees;
(v) amend, modify, terminate or waive any provision of this
Section 10.5(b) or Section 10.5(c) or Section 10.6(a);
(vi) amend the definition of "REQUISITE LENDERS" or "PRO RATA
SHARE"; PROVIDED, with the consent of Requisite Lenders, additional
extensions of credit pursuant hereto may be included in the definition
of "REQUISITE LENDERS" or "PRO RATA SHARE" on substantially the same
basis as the Revolving Commitments, Revolving Loans and Delayed Draw
Term Loans are included on the Effective Date;
(vii) release or otherwise subordinate all or substantially
all of the Collateral or all or substantially all of the Guarantors
from the Guaranty except as expressly provided in the Credit Documents;
(viii) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under any Credit Document.
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(c) OTHER CONSENTS. No amendment, modification, termination or
waiver of any provision of the Credit Documents, or consent to any departure by
any Credit Party therefrom, shall:
(i) increase any Commitment of any Lender over the amount
thereof then in effect without the consent of such Lender; PROVIDED, no
amendment, modification or waiver of any condition precedent, covenant,
Default or Event of Default shall constitute an increase in any
Commitment of any Lender;
(ii) amend the definition of "REQUISITE CLASS LENDERS" without
the consent of Requisite Class Lenders of each Class affected by such
amendment PROVIDED, with the consent of the Requisite Lenders,
additional extensions of credit pursuant hereto may be included in the
determination of such "REQUISITE CLASS LENDERS" on substantially the
same basis as the Revolving Commitments, Revolving Loans and Delayed
Draw Term Loans are included in the Effective Date;
(iii) alter the required application of any repayments or
prepayments as between Classes pursuant to Section 2.13 without the
consent of Requisite Class Lenders of each Class which is being
allocated a lesser repayment or prepayment as a result thereof;
PROVIDED, Requisite Lenders may waive, in whole or in part, any
prepayment so long as the application, as between Classes, of any
portion of such prepayment which is still required to be made is not
altered;
(iv) amend, modify, terminate or waive any provision of
Section 9 or Section 10 as the same applies to any Agent, or any other
provision hereof as the same applies to the rights or obligations of
any Agent, in each case without the consent of such Agent;
(v) amend, modify, terminate or waive any provision of Section
3.2(a)(ix) without the consent of each Lender having Tranche B
Revolving Exposure;
(vi) release any Collateral or any Guaranty in respect of the
Holdings Obligations but not the Senior Obligations, without the
consent of Requisite Class Lenders having Holdings Term Loan Exposure;
PROVIDED that nothing in this provision shall prohibit any such release
with respect to both the Senior Obligations and Holdings Obligations or
prevent any action by any Senior Beneficiary which is expressly
contemplated by Section 7A.
(vii) amend or modify any provision of Section 7A without the
consent of Requisite Class Lenders having Holdings Term Loan Exposure;
(viii) waive, terminate, amend or modify or otherwise
supplement or add: (a) any provision to contradict or conflict with the
definition of "Requisite Lenders", "Effective Date
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Transaction Documents", "Holdings Term Loan", "Holdings Term Loan
Maturity Date", "Holdings Obligations", "Holdings Term Loan Lender",
"Holdings Term Loan Exposure", the definition of "Lender" or reference
thereto to eliminate or exclude the Holdings Term Loan Lenders, (b) any
section to increase the liability of any Holdings Term Loan Lender, (c)
the last paragraph of 2.11(a),(d), any of Sections 2.6(f), 2.12(a)(ii),
2.12(b)(ii), 2.12(d), 3.1B, 6.4(a)(viii), 6.14(c), 7.1(b), 8.2, 10.5(e)
or 10.6A or, (e) any section relating to any obligation for the payment
of money, expense reimbursement or indemnification hereunder to any
Holdings Term Loan Lender, without in each case, the consent of
Requisite Class Lenders having Holdings Term Loan Exposure; and
(ix) amend, alter or otherwise modify the priority with
respect to payment and lien status of the Senior Obligations to the
Holdings Obligations without the consent of each Senior Lender.
(d) EXECUTION OF AMENDMENTS, ETC. Administrative Agent may, but
shall have no obligation to, with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of such Lender. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this Section 10.5
shall be binding upon each Lender at the time outstanding, each future Lender
and, if signed by a Credit Party, on such Credit Party.
(e) AMENDMENT OF CERTAIN TERMS SPECIFIC TO THE HOLDINGS TERM LOAN
LENDERS. Subject to the prior notification and subsequent confirmation of any
proposed change, in each case in writing as soon as practicable, to the
Administrative Agent, Requisite Class Lenders having Holdings Term Loan Exposure
without the consent of the Requisite Lenders may from time to time, without
prejudice to Section 7A or any other provision of this Agreement, agree with
Holdings to (i) amend the rate of interest applicable to the Holdings Term
Loans, (ii) amend the level of premium and fees payable by Holdings to the
Holdings Term Loan Lenders, (iii) amend the reporting requirements of Holdings
to the Holdings Term Loan Lenders; (iv) impose additional limitations in the
assignment provisions in respect of Holdings Term Loans in Section 10.6A, or (v)
delay the Holdings Term Loan Maturity Date, provided that (x) the Board of
Directors of Holdings shall confirm in writing to the Administrative Agent for
the benefit of the Senior Lenders that such amendments are commercially
reasonable, on an arm's length basis and in the circumstances in the best
interests of the Holdings and its subsidiaries taken as a whole and (y) nothing
in this Section 10.5(e) shall permit any other modification of the terms of this
Agreement. After all Senior Obligations (other than contingent indemnities)
shall have been Indefeasibly Paid in full and all Senior Commitments cancelled,
no amendment, modification, termination, or waiver of any provision of the
Credit Documents shall be effective without the written concurrence of Requisite
Class Lenders having Holdings Term Loan Exposure.
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10.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS. The following provisions
of this Section 10.6 (other than clause (a)) shall apply only to Senior Loans
and Senior Commitments.
(a) GENERALLY. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders. No
Credit Party's rights or obligations hereunder nor any interest therein may be
assigned or delegated by any Credit Party without the prior written consent of
all Lenders.
(b) REGISTER. Company, Administrative Agent and Senior Lenders
shall deem and treat the Persons listed as Senior Lenders in the Register as the
holders and owners of the corresponding Commitments and Loans listed therein for
all purposes hereof, and no assignment or transfer of any such Commitment or
Senior Loan shall be effective, in each case, unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been delivered
to and accepted by Administrative Agent and recorded in the Register as provided
in Section 10.6(e). Prior to such recordation, all amounts owed with respect to
the applicable Commitment or Senior Loan shall be owed to the Lender listed in
the Register as the owner thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and binding
on any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans.
(c) RIGHT TO ASSIGN. Each Senior Lender shall have the right at
any time to sell, assign or transfer all or a portion of its rights and
obligations under this Agreement, including, without limitation, all or a
portion of its Commitment or Loans owing to it, Note or Notes held by it, or
other Senior Obligation (PROVIDED, HOWEVER, that each such assignment shall be
of a uniform, and not varying, percentage of all rights and obligations under
and in respect of any Loan and its related Commitments):
(i) to any Person meeting the criteria of clause (i) of the
definition of the term of "Eligible Assignee" upon the giving of notice
to Company and Administrative Agent; and
(ii) to any Person meeting the criteria of clause (ii) of the
definition of the term of "Eligible Assignee" and, in the case of
assignments of Loans or Commitments to any such Person (except in the
case of assignments made by or to GSCP), consented to by each of
Company and Administrative Agent (such consent not to be unreasonably
withheld or delayed, or in respect of any proposed assignment of
Tranche B Revolving Commitments prior to March 31, 2003, required, or
in the case of Company, required at any time an Event of Default shall
have occurred and then be continuing; PROVIDED, FURTHER each such
assignment pursuant to this Section 10.6(c)(ii) shall be in an
aggregate amount of not less than (A) $1,000,000 (or such lesser amount
as may be agreed to by Company and Administrative Agent or as shall
constitute the aggregate amount of the Tranche A Revolving Commitments,
Tranche A Revolving Loans, Tranche B Revolving
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Commitments and/or Tranche B Revolving Loans of the assigning Lender)
with respect to the assignment of the Tranche A Revolving Commitments,
Tranche A Revolving Loans, Tranche B Revolving Commitments and/or
Tranche B Revolving Loans and (B) $1,000,000 (or such lesser amount as
may be agreed to by Company and Administrative Agent or as shall
constitute the aggregate amount of Delayed Draw Term Loans of the
assigning Lender with respect to the assignments thereof) with respect
to the assignment of Delayed Draw Term Loans; PROVIDED FURTHER that
after giving effect to such assignment, the assigning Lender shall have
Commitments and Loans aggregating at least $1,000,000 (unless such
assigning Lender is assigning all of its Commitments and Loans), in
each case unless otherwise agreed to by Company and the Administrative
Agent).
(d) MECHANICS OF ASSIGNMENT PURSUANT TO SECTION 10.6(c). The
assigning Lender and the assignee thereof shall execute and deliver to
Administrative Agent an Assignment Agreement, together with (i) a processing and
recordation fee of $500 in the case of assignments pursuant to Section
10.6(c)(i) or made by or to GSCP, and $2,000 in the case of all other
assignments (except that only one fee shall be payable in the case of
contemporaneous assignments to Related Funds), and (ii) such forms, certificates
or other evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may be
required to deliver to Administrative Agent and Company pursuant to Section
2.19(c).
(e) NOTICE OF ASSIGNMENT PURSUANT TO SECTION 10.6(c). Upon its
receipt of a duly executed and completed Assignment Agreement, together with the
processing and recordation fee referred to in Section 10.6(d) (and any forms,
certificates or other evidence required by this Agreement in connection
therewith), Administrative Agent shall record the information contained in such
Assignment Agreement in the Register, shall give prompt notice thereof to
Company and shall maintain a copy of such Assignment Agreement.
(f) REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. Each Lender, upon
execution and delivery hereof or upon executing and delivering an Assignment
Agreement, as the case may be, represents and warrants as of the Closing Date or
as of the applicable Effective Date (as defined in the applicable Assignment
Agreement) that (i) it is an Eligible Assignee; it (ii) has experience and
expertise in the making of or investing in commitments or loans such as the
applicable Commitments or Loans, as the case may be; and (iii) it will make or
invest in, as the case may be, its Commitments or Loans for its own account in
the ordinary course of its business and without a view to distribution of such
Commitments or Loans within the meaning of the Securities Act or the Exchange
Act or other federal securities laws (it being understood that, subject to the
provisions of this Section 10.6, the disposition of such Commitments or Loans or
any interests therein shall at all times remain within its exclusive control).
(g) EFFECT OF ASSIGNMENT. Subject to the terms and conditions of
this Section 10.6, as of the "Effective Date" specified in the applicable
Assignment Agreement: (i) the assignee thereunder shall have the rights and
obligations of a "Lender" hereunder to the extent such rights and obligations
hereunder
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have been assigned to it pursuant to such Assignment Agreement and shall
thereafter be a party hereto and a "Lender" for all purposes hereof; (ii) the
assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned thereby pursuant to such Assignment Agreement,
relinquish its rights (other than any rights which survive the termination
hereof under Section 10.8) and be released from its obligations hereunder (and,
in the case of an Assignment Agreement covering all or the remaining portion of
an assigning Lender's rights and obligations hereunder, such Lender shall cease
to be a party hereto); PROVIDED, anything contained in any of the Credit
Documents to the contrary notwithstanding, such assigning Lender shall continue
to be entitled to the benefit of all indemnities hereunder as specified herein
with respect to matters arising out of the prior involvement of such assigning
Lender as a Lender hereunder; (iii) the Revolving Commitments shall be modified
to reflect the Revolving Commitment of such assignee and any remaining Revolving
Commitment of such assigning Lender, if any; and (iv) if any such assignment
occurs after the issuance of any Note hereunder, the assigning Lender shall,
upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its applicable Notes to Administrative Agent for
cancellation, and thereupon Company shall issue and deliver new Notes, if so
requested by the assignee and/or assigning Lender, to such assignee and/or to
such assigning Lender, with appropriate insertions, to reflect the new
Commitments and/or outstanding Loans of the assignee and/or the assigning
Lender.
(h) PARTICIPATIONS. Each Lender shall have the right at any time
to sell one or more participations to any Person (other than Holdings any of its
Subsidiaries or any of its Affiliates or any direct competitor of Holdings or
any of its Subsidiaries) in all or any part of its Revolving Commitments, Loans
or in any other Senior Obligation. The holder of any such participation, other
than an Affiliate of the Lender granting such participation, shall not be
entitled to require such Lender to take or omit to take any action hereunder
except with respect to any amendment modification or waiver that would (i)
extend the final scheduled maturity of any Loan or Note in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or fees thereon (except in connection with a waiver of applicability
of any post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant's participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default or of a mandatory reduction in the Commitment shall not
constitute a change in the terms of such participation, and that an increase in
any Commitment or Loan shall be permitted without the consent of any participant
if the participant's participation is not increased as a result thereof) or
affect any obligation to fund pursuant to Section 3.2(a)(ix) hereof, (ii)
consent to the assignment or transfer by any Credit Party of any of its rights
and obligations under this Agreement, (iii) release all or substantially all of
the Collateral under the Collateral Documents or all or substantially all of the
Documents under the Guaranty (except as expressly provided in the Credit
Documents) supporting the Loans hereunder in which such participant is
participating or (iv) amend, modify or waive (a) the provisions of Section
3.2(a)(ix) or (b) the provisions of Section 10.5(c)(v). All amounts payable by
any Credit Party hereunder, including amounts payable to such Lender pursuant to
Section 2.17(c), 2.18 or 2.19, shall be determined as if such Lender had not
sold such participation. Each Credit Party and each Lender hereby acknowledge
and agree that, solely for purposes of Sections 10.4 and 10.6(j), (1) any
participation will
133
give rise to a direct obligation of each Credit Party to the participant and (2)
the participant shall be considered to be a "Lender."
(i) CERTAIN OTHER ASSIGNMENTS. In addition to any other
assignment permitted pursuant to this Section 10.6, (i) any Lender may assign
and pledge all or any portion of its Loans, the other Obligations owed to such
Lender, and its Notes, if any, to secure obligations of such Lender, including,
without limitation, any pledge or assignment to secure obligations to any
Federal Reserve Bank and this Section 10.6 shall not apply to any such pledge or
assignment of a security interest; PROVIDED, (x) no Lender, as between Company
and such Lender, shall be relieved of any of its obligations hereunder as a
result of any such assignment and pledge, and (y) in no event shall the
applicable Federal Reserve Bank or trustee be considered to be a "Lender" or be
entitled to require the assigning Lender to take or omit to take any action
hereunder and (z) any transfer of the rights and obligations of a "Lender"
hereunder to any Person upon the foreclosure of any pledge or security interest
referred to in this clause (i) may only be made pursuant to the provisions of
Sections 10.6(c) through (e) governing assignments of interests in the Loans.
(j) RATABLE SHARING. Lenders hereby agree among themselves that,
except as otherwise provided in the Collateral Documents with respect to amounts
realized from the exercise of rights with respect to Liens on the Collateral, if
any of them shall after the occurrence and during the continuance of a Default
or Event of Default, whether by voluntary payment (other than a voluntary
prepayment of Loans made and applied in accordance with the terms hereof),
through the exercise of any right of set-off or banker's lien, by counterclaim
or cross action or by the enforcement of any right under the Credit Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, fees and other amounts then due and
owing to such Lender hereunder or under the other Credit Documents
(collectively, the "AGGREGATE AMOUNTS DUE" to such Lender) which is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts
Due to such other Lender, then the Lender receiving such proportionately greater
payment shall (k) notify Administrative Agent and each other Lender of the
receipt of such payment and (l) apply a portion of such payment to purchase
participations (which it shall be deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller of its portion of
such payment) in the Aggregate Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion
to the Aggregate Amounts Due to them; PROVIDED, if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Company or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. To the extent not prohibited by
the Holdings Senior Notes, Company expressly consents to the foregoing
arrangement and agrees that any holder of a participation so purchased may
exercise any and all rights of banker's lien, set off or counterclaim with
respect to any and all monies owing
134
by Company to that holder with respect thereto as fully as if that holder were
owed the amount of the participation held by that holder.
(k) All references to "Loans" and "Lenders" in this Section 10.6
(other than 10.6(a)) shall be deemed to expressly exclude Holdings Term Loans
and Holdings Term Loan Lenders respectively.
10.6A ASSIGNMENTS OF HOLDINGS TERM LOANS.
(a) Each Holdings Term Loan Lender shall have the right at any
time after the Effective Date to sell, assign or transfer all or a portion of
its rights and obligations under this Agreement and the other Credit Documents,
including all or a portion of Loans owing to it or Note or Notes held by it to
any Eligible Assignee. The assigning Holdings Term Loan Lender and the assignee
thereof shall execute and deliver a Holdings Term Loan Assignment Agreement,
together with such forms, certificates or other evidence, if any, with respect
to United States federal income tax withholding matters as the assignee under
such Holdings Term Loan Assignment Agreement may be required to deliver to
Company pursuant to Section 2.19(c). Upon its receipt of a duly executed and
completed Holdings Term Loan Assignment Agreement, together, with any forms,
certificates or other evidence required by this Agreement in connection
therewith, such parties shall give prompt notice thereof to Company and shall
maintain a copy of such Assignment Agreement.
(b) REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. Each Holdings
Term Loan Lender, upon execution and delivery hereof or upon executing and
delivering a Holdings Term Loan Assignment Agreement, as the case may be,
represents and warrants as of the Effective Date or as of the applicable
Effective Date (as defined in the applicable Effective Assignment Agreement)
that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the
making of or investing in commitments or loans such as the Holdings Term Loans;
and (iii) it will make or invest in Holdings Terms Loans for its own account in
the ordinary course of its business and without a view to distribution of such
Loans within the meaning of the Securities Act or the Exchange Act or other
federal securities laws (it being understood that, subject to the provisions of
this Section 10.6A, the disposition of such Holdings Term Loans or any interests
therein shall at all times remain within its exclusive control).
(c) EFFECT OF ASSIGNMENT. Subject to the terms and conditions of
this Section 10.6A, as of the "Effective Date" specified in the applicable
Holdings Term Loan Assignment Agreement: (i) the assignee thereunder shall have
the rights and obligations of a "Holdings Term Loan Lender" hereunder to the
extent such rights and obligations hereunder have been assigned to it pursuant
to such Holdings Term Loan Assignment Agreement and shall thereafter be a party
hereto and a "Holdings Term Loan Lender" for all purposes hereof; (ii) the
assigning Holdings Term Loan Lender thereunder shall, to the extent that rights
and obligations hereunder have been assigned thereby pursuant to such Holdings
Term Loan Assignment Agreement, relinquish its rights (other than any rights
which survive the termination hereof under Section 10.8) and be released from
its obligations hereunder (and, in the case of a Holdings Term Loan
135
Assignment Agreement covering all or the remaining portion of an assigning
Holdings Term Loan Lender's rights and obligations hereunder, such Holdings Term
Loan Lender shall cease to be a party hereto); PROVIDED, anything contained in
any of the Credit Documents to the contrary notwithstanding, such assigning
Holdings Term Loan Lender shall continue to be entitled to the benefit of all
indemnities hereunder as specified herein with respect to matters arising out of
the prior involvement of such assigning Holdings Term Loan Lender as a Holdings
Term Loan Lender hereunder; and (iii) if any such assignment occurs after the
issuance of any Note hereunder, the assigning Holdings Term Loan Lender shall,
upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its applicable Notes to Holdings for cancellation, and
thereupon Holdings shall issue and deliver new Notes, if so requested by the
assignee and/or assigning Holdings Term Loan Lender, to such assignee and/or to
such assigning Holdings Term Loan Lender, with appropriate insertions, to
reflect the new Holdings outstanding Loans of the assignee and/or the assigning
Lender.
(d) PARTICIPATIONS. Each Holdings Term Loan Lender shall have the
right at any time to sell one or more participations to any Person (other than
Holdings any of its Subsidiaries or any of its Affiliates or any direct
competitor of Holdings or any of its Subsidiaries) in all or any part of its
Holdings Term Loan Loans. The holder of any such participation, other than an
Affiliate of the Holdings Term Loan Lender granting such participation, shall
not be entitled to require such Holdings Term Loan Lender to take or omit to
take any action hereunder except with respect to any amendment modification or
waiver that would (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Commitment shall not constitute a change in the terms of such participation, and
that an increase in any Commitment or Loan shall be permitted without the
consent of any participant if the participant's participation is not increased
as a result thereof), (ii) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under this Agreement or (iii) release
all or substantially all of the Collateral under the Collateral Documents or all
or substantially all of the Documents under the Guaranty (except as expressly
provided in the Credit Documents) supporting the Loans hereunder in which such
participant is participating. All amounts payable by any Credit Party hereunder,
including amounts payable to such Holdings Term Loan Lender pursuant to Section
2.17(c), 2.18 or 2.19, shall be determined as if such Holdings Term Loan Lender
had not sold such participation. Each Credit Party and each Holdings Term Loan
Lender hereby acknowledge and agree that, solely for purposes of Sections 10.4
and 10.6A(e), (1) any participation will give rise to a direct obligation of
each Credit Party to the participant and (2) the participant shall be considered
to be a "Lender."
(e) RATABLE SHARING. Holdings Term Loan Lenders hereby agree
among themselves that, except as otherwise provided in the Collateral Documents
with respect to amounts realized from the exercise of rights with respect to
Liens on the Collateral, if any of them shall after the occurrence and during
136
the continuance of a Default or Event of Default, whether by voluntary payment
(other than a voluntary prepayment of Loans made and applied in accordance with
the terms hereof), through the exercise of any right of set-off or banker's
lien, by counterclaim or cross action or by the enforcement of any right under
the Credit Documents or otherwise, or as adequate protection of a deposit
treated as cash collateral under the Bankruptcy Code, receive payment or
reduction of a proportion of the aggregate amount of principal, interest, fees
and other amounts then due and owing to such Holdings Term Loan Lender hereunder
or under the other Credit Documents (collectively, the "AGGREGATE HOLDINGS
AMOUNTS DUE" to such Holdings Term Loan Lender) which is greater than the
proportion received by any other Holdings Term Loan Lender in respect of the
Aggregate Holdings Amounts Due to such other Holdings Term Loan Lender, then the
Holdings Term Loan Lender receiving such proportionately greater payment shall
(k) notify each other Holdings Term Loan Lender of the receipt of such payment
and (l) apply a portion of such payment to purchase participations (which it
shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment)
in the Aggregate Holdings Amounts Due to the other Holdings Term Loan Lenders so
that all such recoveries of Aggregate Holdings Amounts Due shall be shared by
all Holdings Term Loan Lenders in proportion to the Aggregate Holdings Amounts
Due to them; PROVIDED, if all or part of such proportionately greater payment
received by such purchasing Holdings Term Loan Lender is thereafter recovered
from such Holdings Term Loan Lender upon the bankruptcy or reorganization of
Holdings or otherwise, those purchases shall be rescinded and the purchase
prices paid for such participations shall be returned to such purchasing
Holdings Term Loan Lender ratably to the extent of such recovery, but without
interest. To the extent not prohibited by the Holdings Senior Notes, Holdings
expressly consents to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker's lien, set
off or counterclaim with respect to any and all monies owing by Holdings to that
holder with respect thereto as fully as if that holder were owed the amount of
the participation held by that holder.
10.7. INDEPENDENCE OF COVENANTS. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
10.8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made herein shall survive the
execution and delivery hereof and the making of any Credit Extension.
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.17(c), 2.18, 2.19, 10.2,
10.3 and 10.4 and the agreements of Lenders set forth in Sections 2.19(d), 2.21,
9.6 and 10.6(j) shall survive the payment of the Loans and the termination
hereof.
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10.9. NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part
of any Agent or any Lender in the exercise of any power, right or privilege
hereunder or under any other Credit Document shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other power, right or
privilege. The rights, powers and remedies given to each Agent and each Lender
hereby are cumulative and shall be in addition to and independent of all rights,
powers and remedies existing by virtue of any statute or rule of law or in any
of the other Credit Documents or any of the Hedge Agreements. Any forbearance or
failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be
a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.
10.10. MARSHALING; PAYMENTS SET ASIDE. Neither any Agent nor any Lender
shall be under any obligation to marshal any assets in favor of any Credit Party
or any other Person or against or in payment of any or all of the Obligations.
To the extent that any Credit Party makes a payment or payments to
Administrative Agent or Lenders (or to Administrative Agent, on behalf of
Lenders), or Collateral Agent or Lenders enforce any security interests or
exercise their rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, any
other state or federal law, common law or any equitable cause, then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.
10.11. SEVERABILITY. In case any provision in or obligation hereunder
or any Note or any of the other Credit Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
10.12. ENTIRE AGREEMENT. This Agreement (together with the Exhibits
hereto, the schedules hereto and the other agreements, documents and instruments
delivered in connection herewith) and the Credit Documents constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof and supersede all other prior agreements and understandings, both
written and verbal, among the parties or any of them with respect to the subject
matter hereof. Without limiting the generality of the foregoing, each party
hereto agrees that no agreement (other than the Effective Date Transaction
Documents and any amendments hereto expressly permitted by and made in
accordance with the provisions of Section 10.5(e)) shall be entered into between
(or for the benefit of) any Credit Party and any Holdings Term Loan Lender with
respect to the Holdings Term Loans without Requisite Lender consent.
138
10.13. OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS. The
obligations of Lenders hereunder are several and no Lender shall be responsible
for the obligations or Commitment of any other Lender hereunder. Nothing
contained herein or in any other Credit Document, and no action taken by Lenders
pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder or under any of the other Credit Documents
to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising hereunder or thereunder
and it shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
10.14. HEADINGS. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
10.15. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401
AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF.
10.16. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT
DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (AND ANY
APPELLATE COURTS THEREFROM); (b) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (c)
AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY
BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE
APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1;
(d) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN
ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (e) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY
CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
139
10.17. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/ BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH
WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY
HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.17 AND EXECUTED BY EACH
OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER
CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.18. CONFIDENTIALITY. Each Lender shall hold all information provided
to it by Company which has either been (i) identified and marked as confidential
by Company or (ii) (except where such information is clearly public)
specifically requested by such Lender rather than merely provided pursuant to
the requirements hereof, in accordance with such Lender's customary procedures
for handling confidential information of this nature and in accordance with
prudent lending or investing practices, it being understood and agreed by
Company that in any event a Lender may make disclosures to Affiliates of such
Lender (and to other persons authorized by a Lender or Agent to organize,
present or disseminate such information in connection with disclosures otherwise
made in accordance with this Section 10.18), disclosures reasonably required by
any bona fide or potential assignee, transferee or participant in connection
with the contemplated assignment, transfer or participation by such Lender of
any Loans or any participations therein or by any direct or indirect contractual
counterparties (or the professional advisors thereto) in Hedge Agreements
(PROVIDED, such counterparties and advisors are advised of and agree to be bound
by the provisions of this Section 10.18) or disclosures in connection with the
enforcement of any of the rights
140
or remedies hereunder or under any of the Credit Documents or disclosures
required or requested by any governmental agency or representative thereof or by
the NAIC or pursuant to legal process; PROVIDED, unless specifically prohibited
by applicable law or court order, each Lender shall make reasonable efforts to
notify Company of any request by any governmental agency or representative
thereof (other than any such request in connection with any examination of the
financial condition or other routine examination of such Lender by such
governmental agency) for disclosure of any such non-public information prior to
disclosure of such information; and PROVIDED, FURTHER that in no event shall any
Lender be obligated or required to return any materials furnished by Holdings or
any of its Subsidiaries.
10.19. USURY SAVINGS CLAUSE. Notwithstanding any other provision
herein, the aggregate interest rate charged with respect to any of the
Obligations, including all charges or fees in connection therewith deemed in the
nature of interest under applicable law shall not exceed the Highest Lawful
Rate. If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the
outstanding amount of the Loans made hereunder shall bear interest at the
Highest Lawful Rate until the total amount of interest due hereunder equals the
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect. In
addition, if when the Loans made hereunder are repaid in full the total interest
due hereunder (taking into account the increase provided for above) is less than
the total amount of interest which would have been due hereunder if the stated
rates of interest set forth in this Agreement had at all times been in effect,
then to the extent permitted by law, Holdings or Company shall pay to
Administrative Agent or (subject to Section 7A) the Holdings Term Loan Lenders
an amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention of
Lenders, Holdings and Company to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest Lawful Rate, then any such
excess shall be cancelled automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of the Loans made hereunder
or be refunded to Holdings or Company.
10.20. COUNTERPARTS; EFFECTIVENESS; ACKNOWLEDGMENT BY EXISTING LENDERS.
This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
This Agreement shall become effective upon (i) the execution of a
counterpart hereof by Requisite Lenders (under and as defined in the Existing
Credit Agreement), each Holdings Term Loan Lender, and each of the Credit
Parties party hereto, (ii) receipt by Company and Administrative Agent of
written or telephonic notification of such execution and authorization of
delivery thereof and (iii) the satisfaction or waiver in accordance with Section
10.5 of the conditions listed in Section 3.1.
141
The Senior Lenders executing this Amended and Restated Credit Agreement
refer to the Limited Waiver dated as of August 21, 2001 the effectiveness of
which terminates pursuant to its terms on the Effective Date. Conditional upon
the making of Collateral Access Deposits into the Collateral Access Deposit
Account and the execution and delivery of Landlord Collateral Access Agreements
in respect of each Leasehold Property annotated with an asterisk on Schedule
4.13(c), the Lenders hereby consent to the continued effectiveness of the
Waivers (as defined in such Limited Waiver) until the Revolving Loan Maturity
Date; PROVIDED that, on and after the Effective Date, any future failure to
comply with the provisions of this Agreement, without giving effect to such
Waivers referred to above, shall constitute an Event Default.
Each of the Existing Lenders executing this Amended and Restated Credit
Agreement hereby acknowledge that as of the Effective Date, they are not aware
of any event or change having occurred which, either in any case or in the
aggregate has a Material Adverse Effect. It is understood that circumstances
arising before the Effective Date, together with additional events and
circumstances arising on or after the Effective Date may form the basis for a
declaration that a Material Adverse Effect has occurred on or after the
Effective Date.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
FOCAL COMMUNICATIONS CORPORATION
FOCAL FINANCIAL SERVICES, INC.
FOCAL COMMUNICATIONS CORPORATION OF
CALIFORNIA
FOCAL COMMUNICATIONS CORPORATION OF COLORADO
FOCAL COMMUNICATIONS CORPORATION OF
CONNECTICUT
FOCAL COMMUNICATIONS CORPORATION OF FLORIDA
FOCAL COMMUNICATIONS CORPORATION OF GEORGIA
FOCAL COMMUNICATIONS CORPORATION OF ILLINOIS
FOCAL COMMUNICATIONS CORPORATION OF
MASSACHUSETTS
FOCAL COMMUNICATIONS CORPORATION OF MICHIGAN
FOCAL COMMUNICATIONS CORPORATION OF THE
MID-ATLANTIC
FOCAL COMMUNICATIONS CORPORATION OF
MINNESOTA
S-1
FOCAL COMMUNICATIONS CORPORATION OF MISSOURI
FIBER LEASING LLC
FOCAL COMMUNICATIONS CORPORATION OF NEW
JERSEY
FOCAL COMMUNICATIONS CORPORATION OF NEW YORK
FOCAL COMMUNICATIONS CORPORATION OF OHIO
FOCAL COMMUNICATIONS CORPORATION OF
PENNSYLVANIA
FOCAL COMMUNICATIONS CORPORATION OF TEXAS
FOCAL COMMUNICATIONS CORPORATION OF VIRGINIA
FOCAL COMMUNICATIONS CORPORATION OF
WASHINGTON
FOCAL COMMUNICATIONS CORPORATION OF
WISCONSIN
FOCAL INTERNATIONAL CORPORATION
FOCAL TELECOMMUNICATIONS CORPORATION
FOCAL EQUIPMENT FINANCE , LLC
S-2
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
S-3
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as a Joint Lead Arranger, Syndication Agent
and a Lender
By: /s/ Illegible Signature
------------------------------
Authorized Signatory
S-4
CITICORP USA, INC.
as successor Administrative Agent
and Collateral Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-5
CITIBANK, N.A.,
as retiring Administrative Agent and
Collateral Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-6
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as a Joint Lead Arranger
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-Fact
S-7
BANK OF AMERICA, N.A.,
as Documentation Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
S-8
CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-9
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: Illegible Signature
------------------------
Name:
Title:
▇-▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇,
as a Lender
By: Illegible Signature
------------------------
Name:
Title:
S-11
CIT LENDING SERVICES CORPORATION,
as a Lender
By: /s/ M ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
S-12
WACHOVIA BANK, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Title: Vice President
S-13
IBM CREDIT CORPORATION,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager of Credit
S-14
MADISON DEARBORN CAPITAL PARTNERS IV, L.P.
By: Madison Dearborn Partners IV, L.P.
Its: General Partner
By: Madison Dearborn Partners, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------
Its:
S-15
FRONTENAC VIII LIMITED PARTNERSHIP
By: Frontenac VIII Partners, L.P.
Its: General Partner
By: Frontenac Company VIII , L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Its:
S-16
FRONTENAC MASTERS VIII LIMITED PARTNERSHIP
By: Frontenac VIII Partners, L.P.
Its: General Partner
By: Frontenac Company VIII , L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Its:
S-17
BATTERY VENTURES III, L.P.
By: Battery Partners III, L.P.
Its: General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Its: General Partner
S-18
BATTERY VENTURES VI, L.P.
as a Lender
By: Battery Partners VI, LLC
Its: General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Its: Member Manager
S-19
BATTERY INVESTMENT PARTNERS VI, LLC
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Its: Member Manager
▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS III
as a Lender
By: /s/ WSK
----------------------------
Its: Managing Partner
S-21
SPECIAL CO-INVEST PARTNERS
as a Lender
By: /s/ WSK
----------------------------
Its: General Partner
S-22
GREAT HILL EQUITY PARTNERS LIMITED
PARTNERSHIP
By: Great Hill Partners GP, LLC
Its: General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
A Manger
S-23
GREAT HILL INVESTORS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
A Manger
S-24
GREAT HILL EQUITY PARTNERS II LIMITED
PARTNERSHIP
By: Great Hill Partners ▇▇ ▇▇, LLC
Its: General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
A Manger
S-25
GREAT HILL AFFILIATE PARTNERS II LIMITED
PARTNERSHIP
By: Great Hill Partners ▇▇ ▇▇, LLC
Its: General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
A Manger
▇-▇▇
▇▇▇▇▇▇▇▇ ▇-▇
TO
CREDIT AND GUARANTY AGREEMENT
OUTSTANDING EXISTING REVOLVING LOANS AS OF EFFECTIVE DATE
==================================================== ============================================ ==================
PRO
LENDER EXISTING REVOLVING LOAN RATA SHARE
==================================================== ============================================ ==================
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. $0 20.33%
---------------------------------------------------- -------------------------------------------- ------------------
Citicorp USA, Inc. $0 17.33%
---------------------------------------------------- -------------------------------------------- ------------------
Bank of America, N.A. $0 17.33%
---------------------------------------------------- -------------------------------------------- ------------------
Credit Suisse First Boston $0 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
LaSalle Bank National Association $0 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
Royal Bank of Canada $0 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
Wachovia Bank, N.A. $0 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
CIT Lending Services Corporation $0 6.66%
---------------------------------------------------- -------------------------------------------- ------------------
IBM Credit Corporation $0 5.00%
---------------------------------------------------- -------------------------------------------- ------------------
TOTAL $0 100%
==================================================== ============================================ ==================
APPENDIX ▇-▇
▇▇▇▇▇▇▇▇ ▇-▇
TO
CREDIT AND GUARANTY AGREEMENT
TRANCHE A REVOLVING COMMITMENTS
==================================================== ============================================ ==================
PRO
LENDER REVOLVING COMMITMENT RATA SHARE
==================================================== ============================================ ==================
▇▇▇▇▇▇▇ Sachs Credit Partners L.P. $11,183,335.00 20.33%
---------------------------------------------------- -------------------------------------------- ------------------
Citicorp USA, Inc. $9,533,333.00 17.33%
---------------------------------------------------- -------------------------------------------- ------------------
Bank of America, N.A. $9,533,333.00 17.33%
---------------------------------------------------- -------------------------------------------- ------------------
Credit Suisse First Boston $4,583,333.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
LaSalle Bank National Association $4,583,333.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
Royal Bank of Canada $4,583,333.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
Wachovia Bank, N.A. $4,583,333.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
CIT Lending Services Corporation $3,666,667.00 6.66%
---------------------------------------------------- -------------------------------------------- ------------------
IBM Credit Corporation $2,750,000.00 5.00%
---------------------------------------------------- -------------------------------------------- ------------------
TOTAL $ 55,000,000.00 100%
==================================================== ============================================ ==================
APPENDIX ▇-▇
▇▇▇▇▇▇▇▇ ▇-▇
TO
CREDIT AND GUARANTY AGREEMENT
TRANCHE B REVOLVING COMMITMENTS
==================================================== ============================================ ==================
PRO
LENDER REVOLVING COMMITMENT RATA SHARE
==================================================== ============================================ ==================
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. $19,316,665.00 20.33%
---------------------------------------------------- -------------------------------------------- ------------------
Citicorp USA, Inc. $16,466,667.00 17.33%
---------------------------------------------------- -------------------------------------------- ------------------
Bank of America, N.A. $16,466,667.00 17.33%
---------------------------------------------------- -------------------------------------------- ------------------
Credit Suisse First Boston $7,916,667.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
LaSalle Bank National Association $7,916,667.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
Royal Bank of Canada $7,916,667.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
Wachovia Bank, N.A. $7,916,667.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
CIT Lending Services Corporation $6,333,333.00 6.66%
---------------------------------------------------- -------------------------------------------- ------------------
IBM Credit Corporation $4,750,000.00 5.00%
---------------------------------------------------- -------------------------------------------- ------------------
TOTAL $95,000,000.00 100%
==================================================== ============================================ ==================
APPENDIX ▇-▇
▇▇▇▇▇▇▇▇ ▇-▇
TO
CREDIT AND GUARANTY AGREEMENT
OUTSTANDING DELAYED DRAW TERM LOANS AS OF EFFECTIVE DATE
==================================================== ============================================ ==================
DELAYED DRAW PRO
LENDER TERM LOAN COMMITMENT RATA SHARE
==================================================== ============================================ ==================
▇▇▇▇▇▇▇ Sachs Credit Partners L.P. $15,250,000.00 20.33%
---------------------------------------------------- -------------------------------------------- ------------------
Citicorp USA, Inc. $13,000,000.00 17.33%
---------------------------------------------------- -------------------------------------------- ------------------
Bank of America, N.A. $13,000,000.00 17.33%
---------------------------------------------------- -------------------------------------------- ------------------
Credit Suisse First Boston $6,250,000.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
LaSalle Bank National Association $6,250,000.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
Royal Bank of Canada $6,250,000.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
Wachovia Bank, N.A. $6,250,000.00 8.33%
---------------------------------------------------- -------------------------------------------- ------------------
CIT Lending Services Corporation $5,000.000.00 6.66%
---------------------------------------------------- -------------------------------------------- ------------------
IBM Credit Corporation $3,750,000.00 5.00%
---------------------------------------------------- -------------------------------------------- ------------------
TOTAL $75,000,000.00 100%
==================================================== ============================================ ==================
APPENDIX ▇-▇
▇▇▇▇▇▇▇▇ ▇-▇
TO
CREDIT AND GUARANTY AGREEMENT
HOLDINGS TERM LOAN COMMITMENTS
======================================================= ========================================= ==================
SUBORDINATED TERM PRO
LENDER LOAN COMMITMENTS RATA SHARE
======================================================= ========================================= ==================
Madison Dearborn Capital Partners IV, L.P. $52,753,656.00 52.75%
---------------------------------------------------- -------------------------------------------- ------------------
Frontenac VIII Limited Partnership $14,957,265.00 14.96%
---------------------------------------------------- -------------------------------------------- ------------------
Frontenac Masters VIII Limited Partnership $667,735.00 0.67%
---------------------------------------------------- -------------------------------------------- ------------------
Battery Ventures III, L.P. $3,333,333.00 3.33%
---------------------------------------------------- -------------------------------------------- ------------------
Battery Ventures VI, L.P. $11,800,000.00 11.80%
---------------------------------------------------- -------------------------------------------- ------------------
Battery Investment Partners VI, LLC $491,667.00 0.49%
---------------------------------------------------- -------------------------------------------- ------------------
Great Hill Equity Partners Limited $6,064,787.00 6.06%
Partnership
---------------------------------------------------- -------------------------------------------- ------------------
Great Hill Investors, LLC $279,657.00 0.28%
---------------------------------------------------- -------------------------------------------- ------------------
Great Hill Equity Partners II Limited $8,932,535.00 8.93%
Partnership
---------------------------------------------------- -------------------------------------------- ------------------
Great Hill Affiliate Partners II Limited $348,021.00 0.35%
Partnership
---------------------------------------------------- -------------------------------------------- ------------------
▇▇▇▇▇▇▇▇ Street Partners III $265,625.00 0.27%
---------------------------------------------------- -------------------------------------------- ------------------
Special Co-Invest Partners $105,719.00 0.11%
---------------------------------------------------- -------------------------------------------- ------------------
TOTAL $100,000,000.00 100%
======================================================= ========================================= ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇ ▇
TO CREDIT AND GUARANTY AGREEMENT
NOTICE ADDRESSES
FOCAL COMMUNICATIONS CORPORATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - Vice President/Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
FOCAL FINANCIAL SERVICES, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - Vice President/Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
EACH GUARANTOR
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - Vice President/Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
in each case, with a copy to:
Focal Communications Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - Vice President/Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX B-1
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.,
as a Joint Lead Arranger, Syndication Agent and a Lender
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX B-2
CITICORP USA, INC.
as Administrative Agent,
Collateral Agent and a Lender
Administrative Agent's Principal Office:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Global Loans Portfolio Management (▇▇▇▇▇ ▇. ▇▇▇▇▇▇)
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Lender's Principal Office:
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Global Loans Portfolio Management (▇▇▇▇▇ ▇. ▇▇▇▇▇▇)
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
APPENDIX B-3
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as a Joint Lead Arranger
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A.,
as Documentation Agent and a Lender
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT SUISSE FIRST BOSTON
as a Lender
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
LASALLE BANK NATIONAL ASSOCIATION
as a Lender
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX ▇-▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
as a Lender
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
WACHOVIA BANK, N.A.
as a Lender
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
CIT LENDING SERVICES CORPORATION
as a Lender
c/o The CIT Group, Inc. - Structured Finance Group
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice-President - Credit
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: Legal Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IBM CREDIT CORPORATION
as a Lender
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX B-5
MADISON DEARBORN CAPITAL PARTNERS IV, L.P.
as a Lender
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
FRONTENAC VIII LIMITED PARTNERSHIP
as a Lender
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
FRONTENAC MASTERS VIII LIMITED PARTNERSHIP
as a Lender
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BATTERY VENTURES III, L.P.
as a Lender
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
APPENDIX B-6
SCHEDULE 1
EFFECTIVE DATE TRANSACTION DOCUMENTS
- Amended and Restated Credit and Guaranty Agreement dated October 26, 2001
(the "Agreement");
- The Delayed Draw Term Loan Note, as defined in the Agreement;
- Tranche A Revolving Note, as defined in the Agreement;
- Tranche B Revolving Note, as defined in the Agreement;
- The Subordinate Term Loan Note, as defined in the Agreement;
- The Subordinated Term Loan Assignment Agreement, as defined in the
Agreement;
- The Master Pledge and Security Agreement, as defined in the Agreement;
- The Landlord Personal Property Collateral Access Agreements, as defined in
the Agreement.
- The Collateral Access Deposit Agreement, as defined in the Agreement.
- Preferred Stock Purchase and Loan Commitment Agreement dated August 9,
2001, by and among Focal Communications Corporation ("Focal"), Madison
Dearborn Capital Partners IV, L.P. ("MDP"), Frontenac VIII Limited
Partnership and affiliated funds ("Frontenac") and Battery Ventures III,
L.P. ("Battery III") (the "Purchase Agreement");
- Joinder and Amendment No. 1 to the Purchase Agreement dated September 21,
2001, by and among Focal, MDP, Frontenac, Battery III, Battery Ventures VI,
L.P., Battery Ventures VI, LLC and Great Hill Entities (as defined herein)
("GHE");
- Amendment No. 2 to the Purchase Agreement, dated as of October 11, 2001, by
and among Focal, MDP, Frontenac, Battery III, Battery Ventures VI, L.P. and
Battery Ventures VI, LLC.
- Registration Rights Agreement dated October 2, 2001, by and among Focal,
MDP, Frontenac, Battery III, Battery Ventures VI, L.P., Battery Ventures
VI, LLC, ▇▇▇▇▇▇▇▇ Street Partners III, Special Co-Invest Partners I, GHE
and Exchanging Bondholders party thereto.
- Exchange Agreement dated August 10, 2001 by and among the Company and
▇▇▇▇▇▇ Investment Management, LLC, ▇▇▇▇▇▇ Fiduciary Trust Company and The
▇▇▇▇▇▇ Advisory Company, LLC (the "▇▇▇▇▇▇ Agreement").
- Exchange Agreement dated August 6, 2001 by and between the Company and
Aegon USA Investment Management Inc..
- Exchange Agreement dated August 6, 2001 by and between the Company and Banc
of America Securities.
- Exchange Agreement dated August 6, 2001 by and between the Company and
Credit Suisse Asset Management, LLC.
- Exchange Agreement dated August 6, 2001 by and among the Company, New York
Life Insurance and Annuity Corporation and New York Life Insurance Company.
- Exchange Agreement dated August 6, 2001 by and among the Company, INVESCO
Bond Funds, Inc., Kansas Life Insurance Co., and INVESCO Japan High Yield
Bond Open Mother Fund.
- Exchange Agreement dated August 6, 2001 by and among the Company, ARES
Management, L.P. and ARES Management II, L.P.
- Exchange Agreement dated August 9, 2001 by and between the Company and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney.
- Exchange Agreement dated August 8, 2001 by and between the Company and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management.
- Exchange Agreement dated August 2001 by and among the Company, Fidelity
Summer Street Trust, Fidelity Securities Fund, Variable Insurance Products
Fund, and Fidelity Advisor Series I.
- Exchange Agreement dated August 8, 2001 by and among the Company and
▇▇▇▇▇▇▇▇▇▇▇ Multi-Sector Income Trust, ▇▇▇▇▇▇▇▇▇▇▇ High Income Fund/VA,
▇▇▇▇▇▇▇▇▇▇▇ High Yield Fund, ▇▇▇▇▇▇▇▇▇▇▇ Strategic Income Fund, ▇▇▇▇▇▇▇▇▇▇▇
Multiple Strategies Fund, ▇▇▇▇▇▇▇▇▇▇▇ Strategic Bond Fund/VA, ▇▇▇▇▇▇▇▇▇▇▇
Champion Income Fund, and ▇▇▇▇▇▇▇▇▇▇▇ Funds, Inc.
- Exchange Agreement dated August 9, 2001 by and between the Company and TD
Securities (USA), Inc.
- Exchange Agreement dated August 8, 2001 by and between the Company and
JPMorgan High Yield Recovery.
- Voting Agreement dated August 9, 2001, by and among Focal, Frontenac VI
Limited Partnership, Madison Dearborn Capital Partners, L.P. and Battery
III.
- Joinder Agreement, dated as of October 23, 2001, by and among Focal, MDP,
Frontenac, Battery III, ▇▇▇▇▇▇▇▇ Street Partners III and Special Co-Invest
Partners I.
- Conversion Agreement, dated as of October 24, 2001, by and among Focal,
MDP, Frontenac, Battery III, Battery Ventures VI, L.P., Battery Ventures
VI, LLC, GHE, ▇▇▇▇▇▇▇▇ Street Partners and Special Co-Invest Partners I.
SCHEDULE 3.1(E)
CERTAIN GOVERNMENTAL AUTHORIZATIONS
None
SCHEDULE 4.1
JURISDICTIONS OF ORGANIZATION AND QUALIFICATION
------------------------------------------------------------------------------------------------------------------------------
TYPE JURISDICTION JURISDICTION AUTHORIZED
NAME OF OF OF CAPITAL
ORGANIZATION ORGANIZATION QUALIFICATION STOCK
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation Corporation Delaware DE, IL, MA
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of California Corporation Delaware DE, CA 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Colorado Corporation Delaware DE, CO 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Connecticut Corporation Delaware DE, CT 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Florida Corporation Delaware DE, FL 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Georgia Corporation Delaware DE, GA 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Illinois Corporation Delaware DE, IL, IN **
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Corporation Delaware DE, MA 500 shares
Massachusetts
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Michigan Corporation Delaware DE, MI 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of the Mid- Corporation Delaware DE, DC, MD 500 shares
Atlantic
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Minnesota Corporation Delaware DE, MN 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Missouri Corporation Delaware DE, MO 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of New Jersey Corporation Delaware DE, NJ 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of New York Corporation Delaware DE, CT, NY, 500 shares
NJ
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Ohio Corporation Delaware DE, OH 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Corporation Delaware DE, PA 500 shares
Pennsylvania
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Texas Corporation Delaware DE, TX 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Virginia Corporation Virginia VA 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Washington Corporation Delaware DE, WA 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Communications Corporation of Wisconsin Corporation Delaware DE, WI 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Financial Services, Inc. Corporation Delaware * 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal International Corp. Corporation Delaware DE 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Telecommunications Corporation Corporation Delaware DE, IL 500 shares
------------------------------------------------------------------------------------------------------------------------------
Focal Equipment Finance, LLC Single Delaware CA, CO, DC, 500 shares
Member LLC GA, IL, IN,
ME, MA, MI,
MN, NJ, NY,
PA, TX, VA,
WA
------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
CAPITAL STOCK
NAME IN ISSUE FEIN
---------------------------------------------------------------------------------------
Focal Communications Corporation ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of California 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of Colorado 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of Connecticut 500 shares [TO COME]
---------------------------------------------------------------------------------------
Focal Communications Corporation of Florida 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of Georgia 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of Illinois *** ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of 500 shares ▇▇-▇▇▇▇▇▇▇
Massachusetts
---------------------------------------------------------------------------------------
Focal Communications Corporation of Michigan 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of the Mid- 500 shares ▇▇-▇▇▇▇▇▇▇
Atlantic
---------------------------------------------------------------------------------------
Focal Communications Corporation of Minnesota 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of Missouri 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of New Jersey 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of New York 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of Ohio 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of 500 shares ▇▇-▇▇▇▇▇▇▇
Pennsylvania
---------------------------------------------------------------------------------------
Focal Communications Corporation of Texas 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of Virginia 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of Washington 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Communications Corporation of Wisconsin 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Financial Services, Inc. 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal International Corp. 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Telecommunications Corporation 500 shares ▇▇-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
Focal Equipment Finance, LLC single ▇▇-▇▇▇▇▇▇▇
membership
interest
---------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
TYPE JURISDICTION JURISDICTION AUTHORIZED
NAME OF OF OF CAPITAL
ORGANIZATION ORGANIZATION QUALIFICATION STOCK
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Focal Fiber Leasing, LLC Single Delaware DE 500 shares
Member LLC
------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
CAPITAL STOCK
NAME IN ISSUE FEIN
---------------------------------------------------------------------------------------
Focal Fiber Leasing, LLC single ▇▇-▇▇▇▇▇▇▇
membership
interest
--------------------------------------------------------------------------------
ALL CAPITAL STOCK REFERRED TO ABOVE IS COMMON STOCK OF PAR VALUE $0.01
* CA, CO, DC, FL, GA, IL, IN, MD, MA, MI, MN, NJ, NY, OH, TX, PA, VA, WA
** Class A: 85,567 shares *** Class A: 80,307.793 shares
Class B: 35,000 shares Class B: 20,000 shares
Class C: 15,000 shares Class C: 14,711.54 shares
SCHEDULE 4.2
CAPITAL STOCK AND OWNERSHIP
As of October 19, 2001, there were 10,325,730 non-qualified stock options
outstanding in favor of employees, directors and consultants of Holdings.
Holdings is publicly traded on the Nasdaq National Market.
As at the date hereof, all of the above entities are Wholly-Owned Subsidiaries
of Focal Financial Services, Inc., other than Focal Financial Services, Inc.
which is a Wholly-Owned Subsidiary of Focal Communications Corporation.
SCHEDULE 4.5
GOVERNMENTAL CONSENTS
None.
SCHEDULE 4.7
CONTINGENT LIABILITIES
None
SCHEDULE 4.13(b)
REAL ESTATE ASSETS
All of the following real property other than ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ is leased property.
Credit Party Address/City/State/Lease County
------------ ------------------------ ------
Focal Financial Services, Inc. California, Concord Contra Costa
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Lease with Cranbrook Realty Investment
Fund, L.P. dba ▇▇▇▇▇▇ Square Associates,
LLC, dated September 1, 2000
Focal Communications California, Los Angeles Los Angeles
Corporation of California ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Sublease with ▇▇▇▇▇ Fargo Bank and Focal
Communications of California dated May 19,
1998, together with Amendments; First
Amendment to Lease Agreement dated July
17, 1998, and First Amendment to Sublease
dated June 20, 2000
Focal Communications California, Los Angeles Los Angeles
Corporation of California ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Office Lease with BGI Holdings II, LLC,
and Focal Communications Corporation of
California dated July 10, 2000
Focal Communications California, San Francisco San Francisco
Corporation ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Lease with Zoro, LLC dated January 26,
1998, together with Amendments; First
Amendment to Lease dated March 3, 1998;
Second Amendment to Lease dated June 16,
1998; Third Amendment to Lease dated
February 16, 1999; Fourth Amendment to
Lease dated December 1, 1999
Credit Party Address/City/State/Lease County
------------ ------------------------ ------
Focal Communications California, San ▇▇▇▇ Santa ▇▇▇▇▇
Corporation ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lease with ▇▇▇▇▇▇▇ Properties, L.P. dated
January 31, 2000
Focal Communications California, Santa ▇▇▇ Orange
Corporation of California ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Office Lease with LNR Redhill, LLC dated
June 5, 2000
Focal Financial Services, Inc. Florida, Miami Dade
701 Brickell
Lease with Metropolitan Life Insurance
Company dated December 29, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Corporation ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Lease Agreement with The Equitable Life
Assurance Society of the United States
dated February 5, 1999, together with an
Amendment; First Amendment to Lease
agreement dated May 11, 1999
Focal Communications Illinois, Mount Prospect ▇▇▇▇
Corporation of Illinois ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
[No Lease - Fee Owned]
Credit Party Address/City/State/Lease County
------------ ------------------------ ------
Focal Communications Illinois, Chicago ▇▇▇▇
Corporation ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Lease with Teachers Insurance and Annuity
Association of America dated December 31,
1996, together with Amendments; First
Amendment to lease dated May 14, 1997;
Second Amendment to Lease dated November
15, 1997; Third Amendment to Agreement of
Lease dated March 2, 1998; Fourth
Amendment to Lease dated April 4, 1998;
Storage Space Agreement dated May 11,
1998; Fifth Amendment to Lease dated
October 14, 1998; Sixth Amendment to Lease
dated February 18, 1999; Seventh Amendment
to Lease dated June 6, 1999; Eighth
Amendment to Lease dated November 3, 1999;
Ninth Amendment to Lease dated February 4,
2000; Tenth Amendment to Lease dated
February 4, 2000; Eleventh Amendment to
Lease dated March 13, 2000; Twelfth
Amendment to Lease dated September 8,
2000; Thirteenth Amendment to Lease dated
February 16, 2001; and Fourteenth
Amendment to Lease dated February 16, 2001
Focal Communications Illinois, Elk Grove ▇▇▇▇
Corporation of Illinois ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Industrial Building Lease with MONY Life
Insurance Company dated June 30, 2000
Focal Financial Services Maryland, Baltimore Baltimore City
Corporation ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Lease with Lexington ▇▇▇▇▇▇▇ Limited
Partnership dated March 31, 2001
Focal Financial Services, Inc. Massachusetts, Boston Sussex
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Lease of Premises with 260 Franklin Inc.
dated November 22, 2000
Credit Party Address/City/State/Lease County
------------ ------------------------ ------
Focal Communications Massachusetts, Cambridge Middlesex
Corporation One Main Street
Agreement of Lease with Riverfront Office
Park Associates II Limited Partnership dated
January 6, 1999, together with Amendment;
Amendment No. 1 to Agreement of Lease
dated October 31, 1999
Focal Communications Michigan, Southfield Oakland
Corporation of Michigan ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
Lease Agreement with Ten ▇▇▇▇ Limited
Partnership dated August 31, 1998
Focal Communications Minnesota, Minneapolis Hennepin
Corporation of Minnesota ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Office Lease with ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Limited Partnership dated December 7, 1999
Focal Communications New Jersey, Edison Middlesex
Corporation of New Jersey ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Office Lease Agreement with Metroview
Office LLC dated March 24, 2000
Focal Communications New Jersey, Jersey City ▇▇▇▇▇▇
Corporation of New Jersey One Evertrust Plaza (16th and 17th Floor
Switch Space)
Lease between evergreen America
Corporation dated February 19, 1999
together with an Amendment; First Lease
Amendment dated March 1, 2000
Focal Financial Services, Inc. New Jersey, Jersey City ▇▇▇▇▇▇
One Evertrust Plaza (7th Floor
Administrative Office)
Sublease with BPD International Bank as
Sublandlord dated March 16, 2001
Credit Party Address/City/State/Lease County
------------ ------------------------ ------
Focal Communications New York, New York New York
Corporation 32 Old Slip
Lease with Paramount Group, Inc., as Agent
for Old Slip Associates, L.P. dated May 20,
1997
Focal Communications New York, New York New York
Corporation of New York 325 Hudson
Agreement of Lease with ▇▇▇▇▇▇ Telecom
Center, LLC dated April 14, 2000; First
Amendment dated September 20, 2001 and
Second Amendment dated October 4, 2001
Focal Communications Corp. New York, New York New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Lease Agreement with One Penn Plaza LLC
dated September 25, 1998, together with
Amendments; Amendment of Lease dated
October 8, 1998; Second Amendment of Lease
dated July 9, 1999; and Third Amendment of
Lease dated February 11, 2000
Focal Communications Ohio, Cleveland Cuyahoga
Corporation of Ohio ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Lease with Halle Office Building Limited
Partnership dated December 30, 1999
Focal Communications Pennsylvania, Norristown ▇▇▇▇▇▇▇
Corporation of Pennsylvania ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇
Agreement of Lease with Semex, Inc., dated
February 25, 2000
Focal Communications Pennsylvania, Philadelphia Philadelphia
Corporation of Pennsylvania ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Sublease Agreement with Mellon Bank, N.A.
dated September 22, 2000
Credit Party Address/City/State/Lease County
------------ ------------------------ ------
Focal Communications Texas, Dallas Dallas
Corporation of Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Lease Agreement with Infomart-Dallas, L.P.
dated December 15, 1998, together with
Amendments; First Amendment to Lease dated
March 22, 1999; Second Amendment to Lease
dated March 22, 1999; Third Amendment to
lease dated June 16, 2000; Fourth
Amendment to Lease dated October 10, 2000;
and Fifth Amendment to Lease dated
February 5, 2001
Focal Communications Texas, Houston ▇▇▇▇▇▇
Corporation of Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Office Lease Agreement with Chevron
U.S.A. Inc. dated May 17, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Corporation of Texas One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Office Lease with Trizec ▇▇▇▇▇ Center
Limited Partnership dated February 10, 2000
Focal Communications Virginia, Falls Church Fairfax
Corporation of the Mid-Atlantic ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Sublease with the Oakland Corporation dated
October 15, 1999
Focal Financial Services, Inc. Washington, Bellevue King
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Lease Agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Realty
dba Eastgate Corporation Center, LLC dated
January 2001
Focal Communications Washington, D.C. N/A
Corporation ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
Office Lease Agreement with ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Associates dated May 4, 1998,
together with Amendment; First Amendment
to Lease Agreement dated July 23, 1998
Credit Party Address/City/State/Lease County
------------ ------------------------ ------
Focal Communications Washington, Seattle King
Corporation of Washington ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Sublease with Fadco LLC dated November
6, 1998
SCHEDULE 4.13(c)
FULLY EXECUTED LANDLORD PERSONAL PROPERTY
COLLATERAL ACCESS AGREEMENTS AS OF EFFECTIVE DATE
1. Santa Ana, CA*
2. Washington, D.C.*
3. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. Chicago, IL*
5. Elk Grove, IL*
6. Southfield, MI
7. Jersey City, NJ (16th and 17th Floor Switch Space only)
8. Cleveland, OH
9. Norristown, PA
10. Dallas, TX
11. Houston, TX (One ▇▇▇▇▇ ▇▇▇▇▇▇)
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇. Miami, FL*
14. Seattle, WA*
15. New York, NY (▇▇▇▇▇▇ Street)
* denotes a Leasehold Property in respect of which a Collateral Access
Deposit has been paid into the Collateral Access Deposit Account.
Collateral Access Deposits have also been paid into the Collateral Access
Deposit Account with respect to Concord, CA and Boston, MA.
SCHEDULE 4.16
MATERIAL CONTRACTS
----------------------------------------------------------------------------------------------------------------
Number Agreement
----------------------------------------------------------------------------------------------------------------
1. $270,000,000 12.125% Senior Discount Notes due 2008, Purchase Agreement dated
February 12, 1998
----------------------------------------------------------------------------------------------------------------
2. $275,000,000 11-7/8% Senior Notes Due 2010
Purchase Agreement dated January 7, 2000
----------------------------------------------------------------------------------------------------------------
3. NTFC Capital Corporation, Loan and Security Agreement dated December 30, 1998,
together with Amendment No. 1 dated April 15, 1999, Second Amendment to Loan and
Security Agreement Dated November 30, 2000, and Intercreditor Agreement dated
November 30, 2000
----------------------------------------------------------------------------------------------------------------
4. $300,000,000 Credit and Guaranty Agreement dated August 25, 2000
----------------------------------------------------------------------------------------------------------------
5. Master Service Agreement dated September 21, 2000 with Akamai Technologies, Inc.,
Amendment No. 1 to the related Coloration Agreement dated December 21, 2000
----------------------------------------------------------------------------------------------------------------
6. Master Service Agreement dated August 31, 2000 with Allegiance Telecom, Inc.
----------------------------------------------------------------------------------------------------------------
7. AT&T
Network Connection Platform
Master Carrier Agreement dated November 11, 1999
Amended and Restated Master Carrier Agreement dated March 7, 2000
Amended and Restated Master Carrier Agreement dated January 10, 2001
Amended and Restated Master Carrier Agreement dated January 17, 2001
----------------------------------------------------------------------------------------------------------------
8. Master Service Agreement dated March 31, 2001 with Broadwing Communications
Services, Inc.
----------------------------------------------------------------------------------------------------------------
9. First Amendment to Agreement with CIMDO Communications dated February 28, 2001
----------------------------------------------------------------------------------------------------------------
10. Agreement with ClearCall, Inc. (STSI) dated March 7, 2001
----------------------------------------------------------------------------------------------------------------
11. Agreement with CNM Network, Inc. Dated October 3, 2000
----------------------------------------------------------------------------------------------------------------
12. Convergent Networks, Inc.
Purchase and License Agreement
Amendment
----------------------------------------------------------------------------------------------------------------
13. Master Service Agreement dated January 10, 2001 with EVoice, Inc.
----------------------------------------------------------------------------------------------------------------
14. Master Purchase Agreement dated June 12, 2000 with Foundry Networks
----------------------------------------------------------------------------------------------------------------
15. Genuity Solutions, Inc.
Integrated Network Solution Purchase Agreement dated December 1, 2000
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number Agreement
----------------------------------------------------------------------------------------------------------------
16. ▇▇▇▇▇▇▇.▇▇▇
Master Service Agreement dated September 21, 2000
----------------------------------------------------------------------------------------------------------------
17. ▇▇▇▇▇▇ Corporation Communications Products Division, Network Management Business
Unit
Software User Agreement dated November 13, 1998
----------------------------------------------------------------------------------------------------------------
18. Informio
Master Service Agreement dated September 14, 2000
----------------------------------------------------------------------------------------------------------------
19. Juniper Networks, Inc.
Purchase Agreement dated May 23, 2000
----------------------------------------------------------------------------------------------------------------
20. Level 3 Communications LLC
Master Services Agreement dated April 30, 1999
----------------------------------------------------------------------------------------------------------------
21. ▇▇▇▇▇ ▇ Communications LLC
IRU Agreement dated April 30, 1999
----------------------------------------------------------------------------------------------------------------
22. Madison River Communications, LLC
Master Service Agreement dated April 25, 2001
----------------------------------------------------------------------------------------------------------------
23. Mantiss Information Corporation
License Agreement dated October 21, 1999
----------------------------------------------------------------------------------------------------------------
24. MCI WorldCom
Private Line Service Agreement dated May 3, 1999
----------------------------------------------------------------------------------------------------------------
25. ▇▇▇▇▇▇ USA
Master Service Agreement dated December 2, 2000
----------------------------------------------------------------------------------------------------------------
26. Metromedia Fiber Network Services, Inc.
Fiber Optic Network Leased Fiber Agreement dated May 24, 1999
----------------------------------------------------------------------------------------------------------------
27. Nortel Networks Inc.
Master Purchase Agreement dated January 1, 2000
----------------------------------------------------------------------------------------------------------------
28. Northern Telecom Inc.
Master Services Agreement dated July 28, 1998
Amendment No. 1 dated January 31, 2000
----------------------------------------------------------------------------------------------------------------
29. PeopleSoft
Software License Agreement dated April 14, 2000
----------------------------------------------------------------------------------------------------------------
30. Siebel Systems, Inc.
Software License and Services Agreement and Exhibit A-1 Recorder dated April 5, 2000
----------------------------------------------------------------------------------------------------------------
31. StarNet, Inc.
Master Service Agreement dated June 29, 2001
----------------------------------------------------------------------------------------------------------------
32. UUNET Technologies, Inc.
Internet Service Agreement dated May 24, 2000
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Number Agreement
----------------------------------------------------------------------------------------------------------------
33. Vitria Technology, Inc.
Software License and Services Agreement dated February 28, 2000
----------------------------------------------------------------------------------------------------------------
34. Wyeth Ayerst, Inc.
Master Service Agreement dated December 1, 2000
----------------------------------------------------------------------------------------------------------------
35. XCOM Technologies, Inc.
Purchase Agreement dated January 6, 1999
----------------------------------------------------------------------------------------------------------------
Also see Real Estate Assets
SCHEDULE 4.17
GOVERNMENTAL REGULATIONS
See Schedule 4.5. In addition, each of the Subsidiaries of Holdings (other
than the Company, Dark Fiber Subsidiary and Equipment Subsidiary) is subject to
regulation by the relevant public utility commission (or similar regulatory
body) in each of the states in which such Subsidiary conducts telecommunications
business.
SCHEDULE 6.1
CERTAIN INDEBTEDNESS
1. $270,000,000 12.125% Senior Discount Notes due 2008
2. $275,000,000 11.875% Senior Notes due 2010
3. Loan and Security Agreement dated December 30, 1998 between Holdings and
NTFC Capital Corporation
4 Metromedia Fiber Network Services, Inc. Fiber Optic Network Leased Fiber
Agreement with Focal Financial Services, Inc. dated May 24, 1999
SCHEDULE 6.2
CERTAIN LIENS
1. With respect to the real property owned by Holdings in Arlington Heights,
Illinois, Requirements for Storm Water Detention dated November 25, 1986 and
recorded December 18, 1988 as Document 86607474, whereby United Airlines agrees
to provide for proper storm water detention in accordance with the rules and
regulations of the Metropolitan Sanitary District of Greater Chicago.
2. See Table following this page.
SCHEDULE 6.2
CONTINUED
STATE/COUNTY DESCRIPTION
TAB DEBTOR JURISDICTION SECURED PARTY/ASSIGNEE FILING DATE FILE NO. COMPANY
=== ================== ===================== ========================= =========== ========== ===================================
1. Focal Secretary of State, NTFC Capital Corporation 01/11/99 9901460619 Lien on equipment financed or
Communications California refinanced with proceeds from loan
Corporation agreement, general intangibles
associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
Focal Secretary of State, NTFC Capital Corporation 01/11/99 ▇▇▇▇▇▇ ▇▇▇▇ on equipment financed or
Communications Michigan refinanced with proceeds from loan
Corporation agreement, general intangibles
associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
Focal Washington D.C., NTFC Capital Corporation 01/11/99 990000595 Lien on equipment financed
Communications Recorder of Deeds refinanced with proceeds from loan
Corporation agreement, general intangibles
associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
Focal Secretary of State, Crown Credit Company 12/08/00 4301420 Lien on Specific lift truck
Communications Illinois
Corporation
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
Focal Secretary of State, Secured Party: 05/16/97 3689665 Lease for specific office furniture
Communications Illinois Emerald Financial Group and equipment. This financing
Corporation Inc. statement evidences a lease and was
filed for information purposes only.
Assignee:
Grand National Bank - NBK
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
STATE/COUNTY DESCRIPTION
TAB DEBTOR JURISDICTION SECURED PARTY/ASSIGNEE FILING DATE FILE NO. COMPANY
=== ================== ===================== ========================= =========== ========== ===================================
Focal Secretary of State, IBM 07/23/98 3883872 Lien on specific computer equipment.
Communications Illinois
Corporation
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
Focal Secretary of State, NTFC Capital Corporation 01/11/99 3970758 Lien on equipment financed or
Communications Illinois refinanced with proceeds from loan
Corporation agreement, general intangibles
associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
Focal Secretary of the NTFC Capital Corporation 01/11/99 29790347 Lien on equipment financed or
Communications Commonwealth, refinanced with proceeds from loan
Corporation Pennsylvania agreement, general intangibles
associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
Focal Department of NTFC Capital Corporation 01/11/▇▇ ▇▇-▇▇▇-▇▇▇▇ Lien on equipment financed or
Communications Licensing, refinanced with proceeds from loan
Corporation Washington agreement, general intangibles
associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
2. Focal Secretary of State, NTFC Capital Corporation 01/11/99 9901460735 Lien on equipment financed or
Communications California refinanced with proceeds from loan
Corporation of agreement, general intangibles
California associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
3. Focal Secretary of State, NTFC Capital Corporation 01/11/99 9901460750 Lien on equipment financed or
Communications California refinanced with proceeds from loan
Corporation of agreement, general intangibles
California associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
4. Focal Secretary of State, NFTC Capital Corporation 01/11/99 ▇▇▇▇▇▇ ▇▇▇▇ on equipment financed or
Communications Michigan refinanced with proceeds from loan
Corporation of agreement, general intangibles
Michigan associated with financed equipment,
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
STATE/COUNTY DESCRIPTION
TAB DEBTOR JURISDICTION SECURED PARTY/ASSIGNEE FILING DATE FILE NO. COMPANY
=== ================== ===================== ========================= =========== ========== =====================================
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
5. Focal Washington D.C., NFTC Capital Corporation 01/11/99 9900000596 Lien on equipment financed or
Communications Recorder of Deeds refinanced with proceeds from loan
Corporation of the agreement, general intangibles
Mid-Atlantic associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
6. Focal Secretary of the NTFC Capital Corporation 01/11/99 29790344 Lien on equipment financed or
Communications Commonwealth, refinanced with proceeds from loan
Corporation of Pennsylvania agreement, general intangibles
Pennsylvania associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
7. Focal Texas, NTFC Capital Corporation 05/13/▇▇ ▇▇-▇▇▇▇▇▇▇▇ Lien on equipment financed or
Communications of Secretary of State refinanced with proceeds from loan
Texas agreement, general intangibles
associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
8. Focal Department of NTFC Capital Corporation 01/11/▇▇ ▇▇-▇▇▇-▇▇▇▇ Lien on equipment financed or
Communications Licensing, refinanced with proceeds from loan
Corporation of Washington agreement, general intangibles
Washington associated with financed equipment,
and proceeds from the foregoing.
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
--- ------------------ --------------------- ------------------------- ----------- ---------- -------------------------------------
SCHEDULE 6.5
CERTAIN INVESTMENTS
Fifty percent ownership of 650 ▇▇▇▇▇▇▇▇ Facility Company, LLC, a
California limited liability company.
SCHEDULE 6.6(a)
STAGE 1 MINIMUM REVENUES
================================== ========================================
MINIMUM QUARTERLY
FISCAL QUARTER ENDING REVENUES (IN MILLIONS)
================================== ========================================
September 30, 2000 $45.0
---------------------------------- ----------------------------------------
December 31, 2000 $56.5
---------------------------------- ----------------------------------------
March 31, 2001 $63.5
---------------------------------- ----------------------------------------
June 30, 2001 $75.0
---------------------------------- ----------------------------------------
September 30, 2001 $75.0
---------------------------------- ----------------------------------------
December 31, 2001 $77.5
---------------------------------- ----------------------------------------
March 31, 2002 $80.0
---------------------------------- ----------------------------------------
June 30, 2002 $82.5
---------------------------------- ----------------------------------------
September 30, 2002 $85.0
---------------------------------- ----------------------------------------
December 31, 2002 $90.0
================================== ========================================
SCHEDULE 6.6(b)
STAGE 1 MINIMUM ACCESS LINES
================================== ========================================
MINIMUM QUARTERLY
FISCAL QUARTER ENDING ACCESS LINES
================================== ========================================
September 30, 2000 255,000
---------------------------------- ----------------------------------------
December 31, 2000 355,000
---------------------------------- ----------------------------------------
March 31, 2001 420,000
---------------------------------- ----------------------------------------
June 30, 2001 490,000
---------------------------------- ----------------------------------------
September 30, 2001 520,000
---------------------------------- ----------------------------------------
December 31, 2001 570,000
---------------------------------- ----------------------------------------
March 31, 2002 620,000
---------------------------------- ----------------------------------------
June 30, 2002 670,000
---------------------------------- ----------------------------------------
September 30, 2002 720,000
---------------------------------- ----------------------------------------
December 31, 2002 770,000
================================== ========================================
SCHEDULE 6.6(C)
STAGE 1 MINIMUM CONSOLIDATED EBITDA
================================== ========================================
MAXIMUM QUARTERLY
EBITDA LOSS /
MINIMUM QUARTERLY EBITDA
FISCAL QUARTER ENDING (IN MILLIONS)
================================== ========================================
September 30, 2000 ($13.0)
---------------------------------- ----------------------------------------
December 31, 2000 ($7.0)
---------------------------------- ----------------------------------------
March 31, 2001 ($10.0)
---------------------------------- ----------------------------------------
June 30, 2001 ($8.0)
---------------------------------- ----------------------------------------
September 30, 2001 ($8.0)
---------------------------------- ----------------------------------------
December 31, 2001 ($7.0)
---------------------------------- ----------------------------------------
March 31, 2002 ($5.0)
---------------------------------- ----------------------------------------
June 30, 2002 ($3.0)
---------------------------------- ----------------------------------------
September 30, 2002 ($1.0)
---------------------------------- ----------------------------------------
December 31, 2002 $4.0
================================== ========================================
SCHEDULE 6.6(f)
STAGE 1 AND 2 MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES
============================== ======================================
MAXIMUM CAPITAL
FISCAL YEAR ENDING EXPENDITURES (IN MILLIONS)
============================== ======================================
December 31, 2000 $375.0
------------------------------ --------------------------------------
December 31, 2001 $150.0
------------------------------ --------------------------------------
December 31, 2002 $120.0
------------------------------ --------------------------------------
December 31, 2003 $140.0
------------------------------ --------------------------------------
December 31, 2004 $140.0
------------------------------ --------------------------------------
December 31, 2005 $150.0
and the end of each
Fiscal Year thereafter
============================== ======================================
SCHEDULE 6.7(a)
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ RATIO
========================================= ====================================
FISCAL QUARTER ENDING SENIOR LEVERAGE RATIO
========================================= ====================================
March 31, 2003 4.00:1
----------------------------------------- ------------------------------------
June 30, 2003 3.60:1
----------------------------------------- ------------------------------------
September 30, 2003 3.30:1
----------------------------------------- ------------------------------------
December 31, 2003 3.00:1
----------------------------------------- ------------------------------------
March 31, 2004 2.70:1
----------------------------------------- ------------------------------------
June 30, 2004 2.70:1
----------------------------------------- ------------------------------------
September 30, 2004 2.70:1
----------------------------------------- ------------------------------------
December 31, 2004 2.70:1
----------------------------------------- ------------------------------------
March 31, 2005 and the end of 2.50:1
each quarter thereafter
========================================= ====================================
SCHEDULE 6.7(b)
STAGE 2 TOTAL LEVERAGE RATIO
========================================= ====================================
FISCAL QUARTER ENDING TOTAL LEVERAGE RATIO
========================================= ====================================
March 31, 2003 10.00:1
----------------------------------------- ------------------------------------
June 30, 2003 8.00:1
----------------------------------------- ------------------------------------
September 30, 2003 7.00:1
----------------------------------------- ------------------------------------
December 31, 2003 6.00:1
----------------------------------------- ------------------------------------
March 31, 2004 5.50:1
----------------------------------------- ------------------------------------
June 30, 2004 5.50:1
----------------------------------------- ------------------------------------
September 30, 2004 5.50:1
----------------------------------------- ------------------------------------
December 31, 2004 5.50:1
----------------------------------------- ------------------------------------
March 31, 2005 and the end of 5.00:1
each quarter thereafter
========================================= ====================================
SCHEDULE 6.7(c)
STAGE 2 INTEREST COVERAGE RATIO
MINIMUM INTEREST
FISCAL QUARTER ENDING COVERAGE RATIO
========================================= ====================================
March 31, 2004 1.0 :1
----------------------------------------- ------------------------------------
June 30, 2004 1.0 :1
----------------------------------------- ------------------------------------
September 30, 2004 1.5 :1
----------------------------------------- ------------------------------------
December 31, 2004 1.5:1
----------------------------------------- ------------------------------------
March 31, 2005 1.75:1
----------------------------------------- ------------------------------------
June 30, 2005 and the end of 2.00 :1
each quarter thereafter
========================================= ====================================
SCHEDULE 6.7(d)
STAGE 2 FIXED CHANGE COVERAGE RATIO
MINIMUM FIXED CHARGE
FISCAL QUARTER ENDING COVERAGE RATIO
========================================= ====================================
December 31, 2004 1.00 :1
----------------------------------------- ------------------------------------
March 31, 2005 1.00 :1
----------------------------------------- ------------------------------------
June 30, 2005 1.00 :1
----------------------------------------- ------------------------------------
September 30, 2005 and the end 1.00 :1
of each quarter thereafter
========================================= ====================================
SCHEDULE 6.12
CERTAIN AFFILIATE TRANSACTIONS
1. Stock Purchase Agreement dated November 27, 1996, by and among Holdings,
MDCP, Frontenac, BV, Addy, Barnicle, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, with Appendices
2. Amendment No. 1 dated January 23, 1998 to Stock Purchase Agreement
3. Amendment No. 2 dated August 21, 1998, to Stock Purchase Agreement
4. Stock Pledge Agreements by and between Holdings and each of Addy, Barnicle,
▇▇▇▇▇▇ and ▇▇▇▇▇▇
5. Stockholders Agreement by and among Holdings, MDCP, Frontenac, BV, Addy,
Barnicle, ▇▇▇▇▇▇ and ▇▇▇▇▇▇
6. Amendment No. 1 dated July 7, 1998, to Stockholders Agreement and Consent
7. Amendment No. 2 dated August 21, 1998, to Stockholders Agreement and
Consent
8. Amendment No. 3 dated February 16, 1999, to Stockholders Agreement, Waiver
and Consent
9. Executive Stock Agreement and Employment Agreement by and between ▇▇▇▇▇▇▇▇
and Focal
10. Amendment No. 1 dated August 21, 1998, to Executive Stock Agreement and
Employment Agreement and Consent (▇. ▇▇▇▇▇▇▇▇)
11. Executive Stock Agreement and Employment Agreement by and between ▇▇▇▇▇▇
and Focal
12. Amendment No. 1 dated August 21, 1998, to Executive Stock Agreement and
Employment Agreement and Consent (▇. ▇▇▇▇▇▇)
13. Executive Stock Agreement and Employment Agreement by and between ▇▇▇▇▇▇
and Focal
14. Amendment No. 1 dated August 21, 1998, to Executive Stock Agreement and
Employment Agreement and Consent (▇. ▇▇▇▇▇▇)
15. The Amended and Restated Credit and Guaranty Agreement dated October 26,
2001 (the "Agreement")
16. The Holdings Term Loan Note, as defined in the Agreement;
17. The Holdings Term Loan Assignment Agreement, as defined in the Agreement;
18. The Pledge and Security Agreement, as defined in the Agreement;
19. The Amended and Restated Master Pledge and Security Agreement, as defined
in this Agreement;
20. Intercompany Loan Agreement, as defined in this Agreement;
21. Intercompany Security Agreement, as defined in this Agreement;
22. Preferred Stock Purchase and Loan Commitment Agreement dated August 9,
2001, by and among Focal Communications Corporation ("Focal"), Madison
Dearborn Capital Partners IV, L.P. ("MDP"), Frontenac VIII Limited
Partnership and affiliated funds ("Frontenac") and Battery Ventures III,
L.P. ("Battery III") (the "Purchase Agreement");
23. Joinder and Amendment No. 1 to the Purchase Agreement dated September 21,
2001, by and among Focal, MDP, Frontenac, Battery III, Battery Ventures VI,
L.P., Battery Ventures VI, LLC and Great Hill Entities (as defined herein)
("GHE");
24. Amendment No. 2 to the Purchase Agreement, dated as of October 11, 2001, by
and among Focal, MDP, Frontenac, Battery III, Battery Ventures VI, L.P. and
Battery Ventures VI, LLC; Joinder and Amendment No. 1 to the Purchase
Agreement dated October 19, 2001, by and among Wind, MDP, Frontenac,
Battery III and Great Hill Entities ("GHE");
25. Amendment No. 2 to the Purchase Agreement, dated as of October 11, 2001, by
and among Focal, MDP, Frontenac, Battery III, Battery Ventures VI, L.P. and
Battery Ventures VI, LLC;
26. Registration Rights Agreement dated October 2, 2001, by and among Focal,
MDP, Frontenac, Battery III, Battery Ventures VI, L.P., Battery Ventures
VI, LLC, ▇▇▇▇▇▇▇▇ Street Partners III, Special Co-Invest Partners I, GHE
and Exchanging Bondholders party thereto;
27. Exchange Agreement dated August 10, 2001 by and among the Company and
▇▇▇▇▇▇ Investment Management, LLC, ▇▇▇▇▇▇ Fiduciary Trust Company and The
▇▇▇▇▇▇ Advisory Company, LLC (the "▇▇▇▇▇▇ Agreement");
28. Exchange Agreement dated August 6, 2001 by and between the Company and
Aegon USA Investment Management Inc.;
29. Exchange Agreement dated August 6, 2001 by and between the Company and Banc
of America Securities;
30. Exchange Agreement dated August 6, 2001 by and between the Company and
Credit Suisse Asset Management, LLC;
31. Exchange Agreement dated August 6, 2001 by and among the Company, New York
Life Insurance and Annuity Corporation and New York Life Insurance Company;
32. Exchange Agreement dated August 6, 2001 by and among the Company, INVESCO
Bond Funds, Inc., Kansas Life Insurance Co., and INVESCO Japan High Yield
Bond Open Mother Fund;
33. Exchange Agreement dated August 6, 2001 by and among the Company, ARES
Management, L.P. and ARES Management II, L.P.;
34. Exchange Agreement dated August 9, 2001 by and between the Company and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney;
35. Exchange Agreement dated August 8, 2001 by and between the Company and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Management;
36. Exchange Agreement dated August 2001 by and among the Company, Fidelity
Summer Street Trust, Fidelity Securities Fund, Variable Insurance Products
Fund, and Fidelity Advisor Series I;
37. Exchange Agreement dated August 8, 2001 by and among the Company and
▇▇▇▇▇▇▇▇▇▇▇ Multi-Sector Income Trust, ▇▇▇▇▇▇▇▇▇▇▇ High Income Fund/VA,
▇▇▇▇▇▇▇▇▇▇▇ High Yield Fund, ▇▇▇▇▇▇▇▇▇▇▇ Strategic Income Fund, ▇▇▇▇▇▇▇▇▇▇▇
Multiple Strategies Fund, ▇▇▇▇▇▇▇▇▇▇▇ Strategic Bond Fund/VA, ▇▇▇▇▇▇▇▇▇▇▇
Champion Income Fund, and ▇▇▇▇▇▇▇▇▇▇▇ Funds, Inc.;
38. Exchange Agreement dated August 9, 2001 by and between the Company and TD
Securities (USA), Inc.;
39. Exchange Agreement dated August 8, 2001 by and between the Company and
JPMorgan High Yield Recovery;
40. Voting Agreement dated August 9, 2001, by and among Focal, Frontenac VI
Limited Partnership, Madison Dearborn Capital Partners, L.P. and Battery
III.
41. Joinder Agreement, dated as of October 23, 2001, by and among Focal, MDP,
Frontenac, Battery III, ▇▇▇▇▇▇▇▇ Street Partners III and Special Co-Invest
Partners I.
42. Conversion Agreement, dated as of October 24, 2001, by and among Focal,
MDP, Frontenac, Battery III, Battery Ventures VI, L.P., Battery Ventures
VI, LLC, GHE, ▇▇▇▇▇▇▇▇ Street Partners and Special Co-Invest Partners I