EXECUTION COUNTERPART
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U.S. $130,000,000
CREDIT AGREEMENT
Dated as of April 25, 1997
Among
CENTENNIAL PUERTO RICO WIRELESS CORPORATION
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Administrative Agent
and
CIBC INC.
CREDIT LYONNAIS,
NEW YORK BRANCH
and
SOCIETE GENERALE,
NEW YORK BRANCH
as Co-Agents
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS.................................... 1
SECTION 1.01. Certain Defined Terms............................................... 1
SECTION 1.02. Computation of Time Periods......................................... 27
SECTION 1.03. Accounting Terms.................................................... 27
ARTICLE II
AMOUNTS AND TERMS OF THE CREDITS................................... 28
SECTION 2.01A. The Advances........................................................ 28
SECTION 2.01B. Letters of Credit................................................... 28
SECTION 2.02. Making the Advances................................................. 33
SECTION 2.03. Fees................................................................ 35
SECTION 2.04. Reduction of the Commitments........................................ 36
SECTION 2.05. Repayment of Advances............................................... 36
SECTION 2.06. Interest on the Advances............................................ 36
SECTION 2.07. Interest Rate Determination and
Protection....................................................... 39
SECTION 2.08. Voluntary Conversion of Advances.................................... 41
SECTION 2.09. Prepayments of Advances............................................. 41
SECTION 2.10. Increased Costs, Etc................................................ 44
SECTION 2.11. Illegality.......................................................... 45
SECTION 2.12. Payments and Computations........................................... 46
SECTION 2.13. Taxes............................................................... 47
SECTION 2.14. Sharing of Payments, Etc............................................ 50
SECTION 2.15. Additional Interest on Eurodollar Rate
Advances......................................................... 50
SECTION 2.16. Use of Proceeds..................................................... 51
ARTICLE III
CONDITIONS OF LENDING............................................... 51
SECTION 3.01. Conditions Precedent to Initial
Advances......................................................... 51
SECTION 3.02. Conditions Precedent to Each Borrowing.............................. 55
SECTION 3.03. Determinations Under Section 3.01................................... 56
ARTICLE IV
REPRESENTATIONS AND WARRANTIES...................................... 56
SECTION 4.01. Representations and Warranties of the
Borrower......................................................... 56
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ARTICLE V
COVENANTS OF THE BORROWER........................................... 65
SECTION 5.01. Affirmative Covenants............................................... 65
SECTION 5.02. Negative Covenants.................................................. 72
SECTION 5.03. Reporting Requirements.............................................. 78
ARTICLE VI
EVENTS OF DEFAULT................................................... 81
SECTION 6.01. Events of Default................................................... 81
SECTION 6.02. Collateral Account.................................................. 87
ARTICLE VII
THE ADMINISTRATIVE AGENT............................................ 88
SECTION 7.01. Authorization and Action............................................ 88
SECTION 7.02. Administrative Agents' Reliance, Etc................................ 88
SECTION 7.03. The Administrative Agent and its
Affiliates....................................................... 89
SECTION 7.04. Lender Credit Decision.............................................. 90
SECTION 7.05. Indemnification by Lenders.......................................... 90
SECTION 7.06. Successor Administrative Agent...................................... 91
SECTION 7.07. Amendments to Loan Documents........................................ 91
SECTION 7.08. Co-Agents........................................................... 92
ARTICLE VIII
MISCELLANEOUS....................................................... 92
SECTION 8.01. Amendments, Etc..................................................... 92
SECTION 8.02. Notices, Etc........................................................ 93
SECTION 8.03. No Waiver; Remedies................................................. 93
SECTION 8.04. Costs and Expenses.................................................. 93
SECTION 8.05. Right of Set-off.................................................... 94
SECTION 8.06. Binding Effect...................................................... 95
SECTION 8.07. Assignments and Participations...................................... 95
SECTION 8.08. Indemnification by the Borrower..................................... 99
SECTION 8.09. Confidentiality.....................................................100
SECTION 8.10. Governing Law.......................................................101
SECTION 8.11. Execution in Counterparts...........................................101
SECTION 8.12. WAIVER OF JURY TRIAL................................................101
SECTION 8.13. Submission to Jurisdiction; Waivers.................................101
SECTION 8.14. Acknowledgments.....................................................102
Schedule I - List of Applicable Lending Offices
Schedule 4.01(k) - List of Subsidiaries
Schedule 4.01(w) - List of Telecommunications Approvals
Schedule 4.01(z) - List of Collateral
Schedule 4.01(bb) - List of Capital Stock
Schedule 4.01(cc) - Intellectual Property Matters
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Subsidiary Guaranty
Exhibit D-2 - Form of Obligor Pledge Agreement
Exhibit D-3 - Form of Holdings Pledge Agreement
Exhibit E - Form of Borrowing Base Certificate
Exhibit F - Form of Leverage Ratio Certificate
Exhibit G - Form of Solvency Certificate
Exhibit H - Form of No Default Certificate
Exhibit I - Form of Compliance Certificate
Exhibit J - Form of Century-ML Consent and Agreement
Exhibit K - Form of Process Agent Acceptance
CREDIT AGREEMENT
Dated as of April 25, 1997
CENTENNIAL PUERTO RICO WIRELESS CORPORATION, a Delaware
corporation (the "Borrower"), the banks (the "Banks") listed on the signature
pages hereof, and CITIBANK, N.A. ("Citibank"), as administrative agent (the
"Administrative Agent") for the Banks hereunder, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Additional Contributed Equity" means the Contributed Equity made
after the date hereof.
"Additional Puerto Rico Security Documents" has the meaning
assigned to such term in Section 5.01(o) hereof.
"Advance" means an advance by a Lender to the Borrower as part of
a Borrowing and refers to a Base Rate Advance or a Eurodollar Rate
Advance, each of which shall be a "Type" of Advance.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such first Person. For the purposes of this
definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Financing Amount" means, at any time, the sum of (i)
the aggregate principal amount of the Advances outstanding at such time
plus (ii) the aggregate principal amount of any Tax-Advantaged Debt
outstanding at such time plus (iii) the aggregate amount of Letter of
Credit Liabilities at such time (excluding the aggregate undrawn amount
of Letters of Credit to the extent such amount is in support of
principal of any Tax-Advantaged Debt outstanding at such time).
"Annualized EBITDA" means, for any Fiscal Period,
EBITDA for such Fiscal Period multiplied by two; provided,
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that solely for purposes of the calculation of the Leverage Ratio as
used in Section 5.01(j) on any date falling during the period commencing
on June 1, 1998 and ending on November 30, 1998, Annualized EBITDA shall
mean the product of (a) EBITDA for the Fiscal Quarter ending on or most
recently ended prior to such date plus sales, marketing, advertising and
equipment subsidy expenses for such Fiscal Quarter multiplied by (b)
four.
"Applicable Eurodollar Margin" has the meaning
specified in Section 2.06(a)(ii).
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"Approved Telecommunications Property" means (a) a personal
communications services system, as defined in 47 C.F.R. ss.24.5,
authorized by the FCC to operate as Broadband PCS, as defined in 47
C.F.R. ss.24.5, in the frequency blocks Block A, Block B or Block C, as
defined in 47 C.F.R. ss.24.229, or (b) a Cellular System, as defined in
47 C.F.R. ss.22.99, authorized by the FCC in the Cellular Radiotelephone
Service, as defined in 47 C.F.R. ss.22.99, to operate pursuant to 47
C.F.R. Subpart H on Channel Block A or Channel Block B in an MSA or RSA,
as defined in 47 C.F.R. ss.ss.22.909 and 22.905.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by each
Issuing Bank and the Administrative Agent, in substantially the form of
Exhibit C hereto.
"Bank" has the meaning specified in the recital of
parties to this Agreement.
"Bankruptcy Law" means title 11, U.S. Code or any similar Federal
or state law (including any such law of Puerto Rico) for the relief of
debtors.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum
shall at all times be equal to the higher of:
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(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of one percent
or, if there is no nearest 1/16 of one percent, to the next
higher 1/16 of one percent) of (i) 1/2 of one percent per annum,
plus (ii) the rate per annum obtained by dividing (A) the latest
three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of 365
or 366 days, as the case may be) being determined weekly on each
Monday (or, if any such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported
by certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such
rates received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by Citibank, by
(B) a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
nonpersonal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means an Advance which bears interest as
provided in Section 2.06(a)(i).
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"Borrowing" means a borrowing consisting of simultaneous Advances
of the same Type made by each of the Lenders pursuant to Section 2.01A.
"Borrowing Base" means, as at any date, the sum of (i)
$100,000,000 plus (ii) (A) the amount of Additional Contributed Equity
received by the Borrower on or after the date hereof minus the amount of
any dividends (excluding the Initial Distributions) and other payments
referred to in Section 5.02(g) hereof paid by the Borrower on or after
the date hereof multiplied by (B) 1.75 minus (iii) the sum of (A) any
optional or mandatory Commitment reductions plus (B) the outstanding
principal amount of any Permitted Vendor Financing.
"Borrowing Base Certificate" means a certificate of a Financial
Officer of the Borrower, substantially in the form of Exhibit E hereto
and appropriately completed.
"Borrowing Base Release Date" shall mean the date on which the
Administrative Agent receives the second of two Periodic Certificates as
at the end of two consecutive Fiscal Quarters demonstrating that the
Leverage Ratio on each date covered by such Periodic Certificates was
less than 10.0:1.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings
are carried on in the London interbank market.
"Capital Stock" of any Person means any and all share, interests,
rights to purchase, warrants, options, participations or other
equivalents of or interests in the common or preferred equity (however
designated) of such Person, including, without limitation, partnership
interests.
"Capitalized Lease Obligation" means, with respect to any Person
for any period, an obligation of such Person to pay rent or other
amounts under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP; and the amount of such
obligation shall be the capitalized amount shown on the balance sheet of
such Person as determined in accordance with GAAP.
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"CAP System" means a system that provides long-distance carriers
or end-users with an alternative to the traditional local phone company
for local transmission of private line and transport and special access
telecommunications services in Puerto Rico and the Virgin Islands.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of
the United States in each case maturing within one year from the date of
acquisition thereof, (ii) marketable direct obligations issued by any
state of the United States of America or any political subdivision of
any such state or any public instrumentality thereof maturing within one
year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from
either Standard & Poor's Ratings Services or ▇▇▇▇▇'▇ Investors Service,
(iii) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Ratings Services or at least P-1 from
▇▇▇▇▇'▇ Investors Service, (iv) certificates of deposit or bankers'
acceptances maturing within one year from the date of acquisition
thereof issued by any commercial bank organized under the laws of the
United States of America or any state thereof or the District of
Columbia or any U.S. Branch of a foreign bank having at the date of
acquisition thereof combined capital and surplus of not less than
$250,000,000, (v) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause
(i) above entered into with any bank meeting the qualifications
specified in clause (iv) above, (vi) investments in money market funds
which invest substantially all their assets in securities of the types
described in clauses (i) through (v) above, and (vii) corporate debt
obligations maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having an investment grade
rating from Standard & Poor's Ratings Services and ▇▇▇▇▇'▇ Investors
Service.
"Centennial Cellular" means Centennial Cellular Corp.,
a Delaware corporation.
"Century-ML" means Century-ML Cable Corporation, a
Delaware corporation.
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"Century-ML Consent and Agreement" means a consent and agreement
entered into by the parties to the Facilities Agreement and the
Administrative Agent, substantially in the form of Exhibit J hereto.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"Citibank" means Citibank, N.A., a national banking
association.
"Collateral" means the following items, whether now or
hereafter acquired:
(i) all Network Assets;
(ii) all Capital Stock issued by the Obligors;
(iii) all rights under interconnection agreements and
operating agreements (including, without limitation, the
Interconnection Agreements, the Facilities Agreement and the
Marketing Agreements) to which the Borrower or any of the
Subsidiaries is a party on the date hereof, as modified and
supplemented and from time to time in effect;
(iv) all rights under interconnection agreements and
operating agreements (including, without limitation, the
Interconnection Agreements, the Facilities Agreement and the
Marketing Agreements) to which the Borrower or any of the
Subsidiaries becomes a party after the date hereof, as modified
and supplemented and from time to time in effect, subject to the
ability of the Borrower or such Subsidiary, as the case may be,
to grant a security interest in such agreements after having used
its best efforts to obtain any necessary consents; and
(v) substantially all other tangible and intangible
property and rights of the Borrower and its Subsidiaries to the
extent that each of the same has an individual book value in
excess of $100,000.
"Collateral Account" has the meaning specified in
Section 6.02.
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"Commitment" has the meaning specified in
Section 2.01A.
"Commitment Percentage" shall mean, with respect to any Lender,
the ratio of (a) the amount of the Commitment of such Lender to (b) the
aggregate amount of the Commitments of all of the Lenders.
"Compliance Certificate" means a certificate of a Financial
Officer of the Borrower, substantially in the form of Exhibit I hereto
and appropriately completed.
"Consent and Agreement" means the Century-ML Consent
and Agreement or the PRTC Consent and Agreement.
"Consolidated" refers to the consolidation of accounts of the
Borrower with the accounts of its Subsidiaries, all in accordance with
GAAP, including principles of consolidation, consistent with those
applied in the preparation of the Consolidated financial statements
referred to in Section 4.01(e).
"Contributed Equity" means, as of any date, the amount of common
equity theretofore contributed by an Eligible Equity Contributor to the
Borrower in cash.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of another Type
pursuant to Section 2.07, 2.08, 2.10 or 2.11.
"Copyright Collateral" shall mean all Copyrights, whether now
owned or hereafter acquired by any Obligor, including each Copyright
identified in Schedule 4.01(cc) hereto.
"Copyrights" shall mean all copyrights, copyright registrations
and applications for copyright registrations, including, without
limitation, all renewals and extensions thereof, the right to recover
for all past, present and future infringements thereof, and all other
rights of any kind whatsoever accruing thereunder or pertaining thereto.
"Credit Extension" means a Borrowing or the issuance of
a Letter of Credit.
"Credit Parties" means, collectively, the Obligors and
Holdings.
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"CSI" means Citicorp Securities, Inc., a Delaware
corporation.
"Debt" of any Person means (i) indebtedness for borrowed money or
for the deferred purchase price of property or services in respect of
which such Person is liable, contingently or otherwise, as obligor,
guarantor or otherwise, or in respect of which such Person otherwise
assures a creditor against loss (including Permitted Vendor Financing),
(ii) obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, including, but not limited to, commercial
paper, (iii) obligations, contingent or otherwise, under acceptance,
letter of credit or similar facilities, (iv) Capitalized Lease
Obligations of such Person, and (v) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (iv) above; provided that Debt shall
not include trade accounts payable unless payment thereof has been
deferred by agreement beyond the customary period in the industry.
"Debt Issuance" means any incurrence, issuance or sale of Debt by
the Borrower or any of its Subsidiaries, other than Debt permitted by
any of paragraphs (i) through (v), (vii) and (viii) of Section 5.02(b).
"Default" means an Event of Default or an event which, with the
giving of notice or lapse of time or both, would constitute an Event of
Default.
"Disposition" has the meaning assigned to such term in
Section 2.09(b)(ii).
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify to the Borrower
and the Administrative Agent.
"EBITDA" means, for any period, the sum of the
Consolidated net income or loss for such period, excluding
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gains and losses from extraordinary items, of the Borrower and its
Subsidiaries plus the sum of Interest Expense, depreciation,
amortization expense and provision for income taxes to the extent
deducted in computing such net income or loss.
"Eligible Assignee" means a Person (a) (i) that is (A) a
commercial bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of $500,000,000; (B) a
commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development
("OECD"), or a political subdivision of any such country, and having
total assets in excess of $500,000,000, provided that such bank is
acting through a branch or agency located in the United States or
another country which is also a member of OECD; or (C) a Lender or an
affiliate of any Lender immediately prior to an assignment and (ii)
whose long-term public senior debt securities are rated at least "BBB-"
by Standard & Poor's Ratings Services or at least "Baa" by ▇▇▇▇▇'▇
Investors Service, Inc.; or (b) that is approved by the Borrower (whose
approval shall not be unreasonably withheld), the Administrative Agent
and the Lenders.
"Eligible Equity Contributor" means Holdings or any Affiliate of
Holdings, other than the Borrower or any Subsidiary of the Borrower.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
non-compliance or violation, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law or any
Environmental Permit, including without limitation (a) any claim by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any
Environmental Law and (b) any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief resulting from Hazardous Materials or arising from alleged injury
or threat of injury to health, safety or the environment.
"Environmental Law" means any federal, state or local law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award relating to the environment,
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health, safety or Hazardous Materials, including, without limitation,
CERCLA, the Resource Conservation and Recovery Act, the Hazardous
Materials Transportation Act, the Clean Water Act, the Toxic Substances
Control Act, the Clean Air Act, the Safe Drinking Water Act, the Atomic
Energy Act, the Federal Insecticide, Fungicide and Rodenticide Act and
the Occupational Safety and Health Act.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equity Issuance" means (a) any issuance or sale by the Borrower
after the date hereof of (i) any of its capital stock (other than any
such capital stock issued to directors, officers or employees of the
Borrower or any of its Subsidiaries), (ii) any warrants or options
exercisable in respect of its capital stock (other than any warrants or
options issued to directors, officers or employees of the Borrower or
any of its Subsidiaries) or (iii) any other security or instrument
representing an equity interest (or the right to obtain any equity
interest) in the Borrower, or (b) the receipt by the Borrower after the
date hereof of any capital contribution (whether or not evidenced by any
equity security issued by the recipient of such contribution).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV
of ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Event" with respect to any Person means (a) the occurrence
of a reportable event, within the meaning of Section 4043 of ERISA, with
respect to any Plan of such Person or any of its ERISA Affiliates unless
the 30-day notice requirement with respect to such event has been waived
by the PBGC; (b) the provision by the administrator of any Plan of such
Person or any of its ERISA Affiliates of a notice of intent to terminate
such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e)
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of ERISA); (c) the cessation of operations at a facility of such Person
or any of its ERISA Affiliates in the circumstances described in Section
4062(e) of ERISA; (d) the withdrawal by such Person or any of its ERISA
Affiliates from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(e) the failure by such Person or any of its ERISA Affiliates to make a
payment to a Plan required under Section 302(f)(1) of ERISA; (f) the
adoption of an amendment to a Plan of such Person or any of its ERISA
Affiliates requiring the provision of security to such Plan, pursuant to
Section 307 of ERISA; or (g) the institution by the PBGC of proceedings
to terminate a Plan of such Person or any of its ERISA Affiliates,
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that could constitute
grounds for the termination of, or the appointment of a trustee to
administer, such Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Borrower and
the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum at which deposits in
U.S. dollars are offered by the principal office of Citibank in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to Citibank's Eurodollar Rate
Advance comprising part of such Borrowing and for a period equal to such
Interest Period. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from Citibank two
Business Days
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before the first day of such Interest Period, subject, however, to the
provisions of Section 2.07.
"Eurodollar Rate Advance" means an Advance which bears interest
as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for
each Eurodollar Rate Advance comprising part of the same Borrowing means
the reserve percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest
rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Excess Cash Flow" means, for any Fiscal Quarter, the
amount by which
(i) EBITDA for such Fiscal Quarter exceeds
(ii) the sum of
(A) the Consolidated amount of all Interest Expense
paid to third parties by the Borrower and its Subsidiaries
during such Fiscal Quarter on account of Debt,
(B) the Consolidated amount of all income taxes
paid by the Borrower and its Subsidiaries during such
Fiscal Quarter,
(C) the Consolidated amount of all principal
amounts required to be paid during such Fiscal Quarter
with respect to Debt of the Borrower and its Subsidiaries,
and
(D) the amount equal to the capital
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expenditures made by the Borrower and its
Subsidiaries for such Fiscal Quarter.
"Face Amount" means, with respect to any Letter of Credit, the
undrawn face amount thereof or, if such Letter of Credit is a revolving
letter of credit, the maximum face amount to which such Letter of Credit
may at any time be reinstated.
"Facilities Agreement" means the Facilities Agreement dated as of
January 2, 1995 between the Borrower, Century ML Cable Venture and
Century-ML, as the same shall be modified and supplemented and in effect
from time to time.
"FCC" means the Federal Communications Commission or
any successor thereto.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Financial Officer" means, as to any Person, the chief executive
officer, the chief financial officer, the treasurer or the principal
accounting officer of that Person.
"Fiscal Period" means the period of two consecutive Fiscal
Quarters ended on the last day of May, August, November or February, as
the case may be.
"Fiscal Quarter" means the period of three calendar months ending
on the last day of May, August, November or February, as the case may
be.
"Fiscal Year" means the period from and including June 1 of any
calendar year to and including May 31 of the next succeeding calendar
year (made up of four Fiscal Quarters), and when followed by the
designation of a year
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shall mean such period ending on May 31 of such year.
"GAAP" means, as of any date, generally accepted accounting
principles in the United States as of the date hereof and not including
any interpretations or regulations that have been proposed but that have
not become effective.
"Guarantors" means each Person (other than the Administrative
Agent) that is or becomes a party to the Subsidiary Guaranty.
"Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation and radon gas, (b) any
substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants, contaminants" or "pollutants," or words of similar
import, under any Environmental Law and (c) any other substance exposure
to which is regulated under any Environmental Law.
"Holdings" means Centennial Cellular Wireless Holding
Corp., a New Jersey corporation.
"Holdings Pledge Agreement" means a Pledge Agreement,
substantially in the form of Exhibit D-3 hereto, between Holdings and
the Administrative Agent, as the same shall be modified and supplemented
and in effect from time to time.
"Initial Distributions" means cash dividends by the Borrower
during the period commencing on the date of the initial Credit Extension
and ending on August 31, 1997 in an aggregate amount not exceeding the
amount of Contributed Equity on the date of the initial Credit Extension
minus $55,000,000.
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Intellectual Property" shall mean, collectively, all Copyright
Collateral, all Patent Collateral and all Trademark Collateral, together
with (a) all inventions, processes, production methods, proprietary
information, know-how and trade secrets; (b) all licenses or user or
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other agreements granted to any Obligor with respect to any of the
foregoing, in each case whether now or hereafter owned or used
including, without limitation, the licenses or other agreements with
respect to the Copyright Collateral, the Patent Collateral or the
Trademark Collateral, listed in Schedule 4.01(cc) hereto; (c) all
information, customer lists, identification of suppliers, data, plans,
blueprints, specifications, designs, drawings, recorded knowledge,
surveys, engineering reports, test reports, manuals, materials
standards, processing standards, performance standards, catalogs,
computer and automatic machinery software and programs; (d) all field
repair data, sales data and other information relating to sales or
service of products now or hereafter manufactured; (e) all accounting
information and all media in which or on which any information or
knowledge or data or records may be recorded or stored and all computer
programs used for the compilation or printout of such information,
knowledge, records or data; and (f) all licenses, consents, permits,
variances, certifications and approvals of governmental agencies now or
hereafter held by any Obligor.
"Interconnection Agreements" means (a) the Interconnection
Agreement dated March 18, 1997 between Centennial Wireless PCS
Operations Corp. and PRTC and (b) the Interconnection Agreement dated
March 18, 1997 between Lambda Communications, Incorporado, and PRTC,
each of which has been duly approved by the PRTRB and a copy of each of
which has been furnished to the Lenders prior to the date hereof, as the
same shall be modified and supplemented and in effect from time to time.
"Interest Coverage Ratio" means, for any Fiscal Period, the ratio
of (a) Annualized EBITDA for such Fiscal Period to (b) Interest Expense
for the period of four consecutive Fiscal Quarters ending on the last
day of such Fiscal Period.
"Interest Expense" means the sum of all amounts payable by the
Borrower and its Subsidiaries on account of interest, amortization of
debt discount and expense, and commitment, letter of credit, agency and
other fees with respect to Total Debt.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the date
of such Advance or the date of the
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Conversion of any Advance into such an Advance and ending on the last
day of the period selected by the Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on the last day
of the immediately preceding Interest Period and ending on the last day
of the period selected by the Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be one, two, three or
six months, in each case as the Borrower may, upon notice received by
the Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period which
ends after any principal repayment installment date unless, after
giving effect to such selection, the aggregate unpaid principal
amount of Base Rate Advances and Advances having Interest Periods
which end on or prior to such principal repayment installment
date shall be at least equal to the principal amount of Advances
due and payable on and prior to such date;
(ii) Interest Periods commencing on the same date for
Advances comprising part of the same Borrowing shall be of the
same duration; and
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, that, if such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day.
"Investments" of any Person means all investments by such Person
in other Persons (including Affiliates) in the forms of loans (including
guarantees), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for
consideration of Debt, Capital Stock or other securities and all other
items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
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"Issuing Bank" means, at any time of determination, a Lender that
is the issuer of a Letter of Credit outstanding at such time under
Section 2.01B hereof or that is owed a Reimbursement Obligation at such
time arising from a drawing under a Letter of Credit issued by it,
together with its successors and assigns in such capacity.
"LEC System" means a system providing local telephone services
within a local exchange in Puerto Rico and the Virgin Islands.
"Lenders" means the Banks listed on the signature pages hereof
and each Eligible Assignee that shall become a party hereto pursuant to
Section 8.07.
"Letter of Credit" has the meaning specified in
Section 2.01B hereof.
"Letter of Credit Documents" shall mean, with respect to any
Letter of Credit, collectively, any application therefor and any other
agreements, instruments, guarantees or other documents (whether general
in application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned or
at risk with respect to such Letter of Credit or (b) any collateral
security for any of such obligations, each as the same may be modified
and supplemented and in effect from time to time.
"Letter of Credit Liability" shall mean, at any time and in
respect of any Letter of Credit, the sum of (a) the Face Amount of such
Letter of Credit (excluding, if such Letter of Credit is a revolving
letter of credit, any portion thereof subject to reinstatement upon the
payment of Reimbursement Obligations of the Borrower at such time due
and payable) plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable
in respect of all drawings made under such Letter of Credit. For
purposes of this Agreement, a Lender (other than the issuer of such
Letter of Credit) shall be deemed to hold a Letter of Credit Liability
in an amount equal to its participation interest in the related Letter
of Credit under Section 2.01B(b), and such issuer shall be deemed to
hold a Letter of Credit Liability in an amount equal to its retained
interest in the related Letter of Credit after giving effect to the
acquisition by the Lenders other than such issuer of their participation
Credit Agreement
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interests under said Section 2.01B(b).
"Leverage Ratio" means, as of any date, the ratio of
(a) Total Debt as of such date to
(b) Annualized EBITDA for the most recent Fiscal Period
which ends on or before such date.
"License Subsidiaries" means Centennial Wireless
PCS License Corp., a Delaware corporation, and Lambda
Communications, Incorporado, a Puerto Rico corporation.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor, any lien or security interest created in connection
with a sale/leaseback transaction and any easement, right of way or
other encumbrance on title to real property.
"Loan Documents" means this Agreement, the Notes, the
Letter of Credit Documents, the Consent and Agreements and
the Support Documents.
"Majority Lenders" means at any time Lenders holding at least 51%
of the then aggregate unpaid principal amount of the Notes and Letter of
Credit Liabilities held by the Lenders, or, if no such principal amount
is then outstanding, Lenders having at least 51% of the Commitments.
"Margin Stock" has the meaning specified in
Regulation U.
"Marketing Agreement" means a material operating or material
marketing agreement between any Obligor and any other party (including,
without limitation, any such agreement with Century-ML).
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance or properties of the Borrower and its Subsidiaries taken as
a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the business, condition (financial or otherwise), operations,
performance or properties of the
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Borrower and its Subsidiaries taken as a whole, (b) the rights and
remedies of the Administrative Agent or any Lender under any Loan
Document or (c) the ability of any Credit Party to perform its
obligations under any Loan Document to which it is or is to be a party.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a) (3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions, such plan being maintained pursuant to
one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a) (15) of ERISA, which (i) is maintained for employees
of the Borrower or an ERISA Affiliate and at least one Person other than
the Borrower and its ERISA Affiliates or (ii) was so maintained and in
respect of which the Borrower or an ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or
were to be terminated.
"Net Cash Proceeds" means:
(a) with respect to any Debt Issuance or Equity Issuance,
the aggregate amount of cash received from time to time by or on
behalf of such Person in connection with such transaction after
deducting therefrom only reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees,
finder's fees, rating agency fees and other similar fees and
commissions; and
(b) with respect to any Disposition, the aggregate amount
of cash received from time to time by or on behalf of the
respective seller in connection with such Disposition after
deducting therefrom only
(x) reasonable and customary brokerage commissions,
legal fees, finder's fees, rating agency fees and other
similar fees and commissions,
(y) the amount of taxes payable in connection with or
as a result of such Disposition and
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(z) the amount of any Debt secured by a Lien on the
assets that are the subject of such Disposition and that, by
the terms of such Disposition, is required to be repaid upon
such Disposition,
in each case to the extent, but only to the extent, that the
amounts so deducted are, no later than the Relevant Time (as
defined in the following sentence), actually paid to a Person
that is not an Affiliate of the Person making such payment (other
than payments made to a director of any Person in his capacity as
a member or partner of a law firm or partnership rendering legal
services to such Person; provided that the terms of such
compensation are fair and reasonable and no less favorable to
such Person than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate) and are properly
attributable to such transaction or to the asset that is the
subject thereof. For purpose of the preceding sentence, "Relevant
Time" means (i) in the case of the foregoing clauses (a) and
(b)(x) the date falling 30 days after the receipt of cash from
the relevant Debt Issuance, Equity Issuance or Disposition, (ii)
in the case of the foregoing clause (b)(y), the date that the
respective taxes are legally due and (iii) in the case of the
foregoing clause (b)(z), the date of receipt of cash for the
relevant Disposition.
"Network Assets" means all base stations, switching stations,
towers, antennas, and other cell-site equipment, all rights under the
Facilities Agreement, all leasehold rights and all Telecommunications
Approvals, and all other Property, in each case that are integral to the
operation of the Telecommunications Networks.
"Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in
Section 2.02(a).
"Obligor Pledge Agreement" means a Pledge Agreement,
substantially in the form of Exhibit D-2 hereto, between the
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Borrower, Lambda Communications, Incorporado, and the Administrative
Agent, as the same shall be modified and supplemented and in effect from
time to time.
"Obligors" means, collectively, the Borrower and the
Guarantors.
"Patent Collateral" shall mean all Patents, whether now owned or
hereafter acquired by any Obligor, including each Patent identified in
Schedule 4.01(cc) hereto.
"Patents" shall mean all patents and patent applications,
including, without limitation, the inventions and improvements described
and claimed therein together with the reissues, divisions,
continuations, renewals, extensions and continuations-in-part thereof,
all income, royalties, damages and payments now or hereafter due and/or
payable under and with respect thereto, including, without limitation,
damages and payments for past or future infringements thereof, the right
to ▇▇▇ for past, present and future infringements thereof, and all
rights corresponding thereto throughout the world.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PCS System" means a wireless telecommunications system licensed
by the FCC under 47 C.F.R. Part 24 for operation in the "B" frequency
block (1.865/1.880 GHz and 1.945/1.960 GHz) to provide any or all of a
family of digital, wireless mobile or portable and fixed radio
communications services to individuals and businesses in Puerto Rico and
the Virgin Islands.
"Periodic Certificate" has the meaning specified in
Section 2.06(c).
"Permitted Investments" means (a) any Investment in the Borrower
or in a Person that, on the date hereof, is a Subsidiary; and (b) any
Investment in Cash Equivalents.
"Permitted Vendor Financing" means Debt incurred for the deferred
purchase price of property or services related to the installation,
operation and replacement of telecommunications equipment; provided that
(a) at the time of incurrence thereof (and after giving effect thereto)
(x) no Default shall have occurred and be continuing and (y) on a pro
forma basis, the Borrower would be in
Credit Agreement
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compliance with Section 5.01(j) if such Debt was outstanding on the last
day of the Fiscal Period ending on or most recently ended prior to the
date of such incurrence and Section 5.01(i) and 5.01(k) if such Debt was
outstanding throughout the period of four Fiscal Quarters ending on such
date; (b) none of the principal of such Debt shall be required to be
repaid prior to February 28, 2006; (c) the interest rate borne by such
indebtedness does not exceed 12% per annum, (e) any Liens granted to
secure repayment of such Debt shall cover only the equipment being
financed and (f) the other material terms of such Debt and of any
agreement entered into and or any instrument issued in connection
therewith are no less favorable in any material respect to the Borrower
or the Lenders than the terms and conditions of this Agreement.
"Person" means an individual, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or
agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Pro-Forma Debt Service Coverage Ratio" means, as of any date of
determination, the ratio of (i) Annualized EBITDA of the Borrower and
its Subsidiaries for the Fiscal Period ending on or most recently ended
prior to such date to (ii) the sum of (A) projected Interest Expense for
the period of four Fiscal Quarters commencing on or most recently
commenced prior to such date (or, if such date is the last day of a
Fiscal Quarter, commencing on the next day) (calculated using the
weighted average of interest rates at the time of calculation and at the
principal outstanding at the time of calculation after giving effect to
any scheduled payments of principal during such four Fiscal Quarters)
plus (B) the aggregate principal amounts of all Debt required to be paid
during such period of four Fiscal Quarters by the Borrower and its
Subsidiaries.
"Property" means any right or interest in or to property of any
kind whatsoever, whether real, personal (including, without limitation,
cash) or mixed and whether tangible or intangible.
"PRPSC" means the Puerto Rico Public Service
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Commission.
"PRTC" means the Puerto Rico Telephone Company, a Delaware
corporation, which owns and operates a telephone system in and about
Puerto Rico, all the outstanding shares of the common stock of which are
owned by the Puerto Rico Telephone Authority, a body corporate and
politic constituting a public corporation and governmental
instrumentality of Puerto Rico.
"PRTC Consent and Agreement" means a consent and agreement
entered into by the parties to the Interconnection Agreements and the
Administrative Agent, satisfactory to the Administrative Agent in form
and substance in the reasonable exercise of discretion.
"PRTRB" means the Telecommunications Regulatory Board
of Puerto Rico created by Act ▇▇. ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇ approved September 12, 1996, or any successor
thereto.
"Puerto Rico" means the Commonwealth of Puerto Rico.
"Puerto Rico Security Documents" means each power of attorney,
mortgage, assignment, security agreement and other document executed or
to be executed and delivered by any Credit Party to grant and perfect
the security interests required by Section 5.01(n) and enforce the
rights of the Administrative Agent thereunder for the benefit of the
Lenders, in each case in form and substance satisfactory to the
Administrative Agent in the reasonable exercise of its discretion and as
such documents may be amended or otherwise modified from time to time.
"Register" has the meaning specified in
Section 8.07(c).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Reimbursement Obligations" means, at any time, the obligations
of the Borrower then outstanding, or that may thereafter arise in
respect of all Letters of Credit then outstanding, to reimburse amounts
paid by the Issuing Banks in respect of any drawings under Letters of
Credit.
Credit Agreement
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"Required Reduction" has the meaning specified in
Section 2.09(c).
"Security Documents" means the Additional Puerto Rico Security
Documents, the Puerto Rico Security Documents, the Obligor Pledge
Agreement and the Holdings Pledge Agreement, in each case as the same
shall be modified and supplemented and in effect from time to time.
"Senior Notes Indenture" means the Indenture dated as of November
15, 1993 between Centennial Cellular, as issuer, and Bank of Montreal
Trust Company, as trustee, as amended pursuant to a First Supplemental
Indenture dated as of November 15, 1993 and by a Second Supplemental
Indenture dated as of May 11, 1995 and as said Indenture shall, subject
to Section 5.02(i), be further modified and supplemented and in effect
from time to time.
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a) (15) of ERISA, which (i) is maintained for employees
of the Borrower or an ERISA Affiliate and no Person other than the
Borrower and its ERISA Affiliates or (ii) was so maintained and in
respect of which the Borrower or an ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been or were to
be terminated.
"Solvent" means, with respect to any Person on a particular date,
that on such date (a) the fair value of the property of such Person is
not less than the total amount of its liabilities (including, without
limitation, liabilities on all claims, whether or not reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured)
of such Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its existing debts as they become
absolute and matured, (c) such Person is able to realize upon its assets
and pay its debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business, (d)
such Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts
and liabilities mature and (e) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction,
for which such Person's
Credit Agreement
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property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in each respective industry in
which such Person is engaged; it being understood that in applying the
foregoing criteria in respect of any Person:
(i) the value of the property and assets of such Person
includes the value of its interest in its Subsidiaries and any
rights to contribution (whether by equity or loan) from any of
its Affiliates, and
(ii) its ability to pay its debts and liabilities may be
measured by reference to, among other things, amounts received or
to be received in respect of any such property or assets.
"Subordinated Debt" means Debt (i) for which the Borrower is
directly and primarily liable, (ii) in respect of which none of its
Subsidiaries is contingently or otherwise obligated, (iii) none of the
principal of which shall be required to be repaid prior to February 28,
2006, (iv) that bears interest at a rate per annum not in excess of 12%
and (v) that is subordinated to the obligations of the Borrower to pay
principal of and interest on the Loans, Reimbursement Obligations and
Notes hereunder on terms, and pursuant to documentation containing other
terms (including interest, covenants and events of default), in form and
substance satisfactory to the Majority Lenders.
"Subscriber" means a Person purchasing wireless, long distance
access or wireline services from the Borrower or a Subsidiary using the
Telecommunications Networks of the Borrower and its Subsidiaries and
whose account is not more than 90 days past due, provided, however, that
if any Person purchases wireless services that include more than one
telephone number, the number of Subscribers will be determined by the
number of active telephone numbers for such Person.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof
ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation,
partnership or other entity (irrespective of whether or not at the time
securities or other ownership interests of any
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other class or classes of such corporation, partnership or other entity
shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled
by such Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person. Unless the context
otherwise requires, each reference herein to a Subsidiary shall mean a
Subsidiary of the Borrower.
"Subsidiary Guaranty" means a Subsidiary Guaranty, substantially
in the form of Exhibit D-1 hereto, between the Subsidiaries of the
Borrower from time to time party thereto and the Administrative Agent,
as the same shall be modified and supplemented and in effect from time
to time.
"Support Documents" means, collectively, the Subsidiary Guaranty,
the Security Documents and all Uniform Commercial Code financing
statements and other registration instruments required by this
Agreement, the Subsidiary Guaranty or the Security Documents to be filed
with respect to the security interests created pursuant to the Security
Documents.
"Tax-Advantaged Debt" means Debt of the Borrower (i) owing to the
Puerto Rico Industrial, Tourist, Educational, Medical and Environmental
Control Facilities Financing Authority (AFICA) in connection with (and
not exceeding the aggregate principal amount of) Debt issued by said
Authority the proceeds of which are used for the direct benefit of the
Borrower and its Subsidiaries; or (ii) evidenced by securities issued by
the Borrower pursuant to a commercial paper program of other debt
instruments that qualify as an Eligible Investment under section 2(j) of
the Puerto Rico Industrial Incentives Acts, Regulation 5105 issued by
the Commissioner of Financial Institutions of the Commonwealth of Puerto
Rico, as amended from time to time, and any successor regulation with
respect to the subject matter thereof issued by any governmental
authority having jurisdiction in the matter; provided that in each of
the cases referred to in the foregoing clauses (i) and (ii) such Debt of
the Borrower or (in the case of the foregoing clause (ii)) of said
Authority is supported by one or more Letters of Credit issued
hereunder.
"Telecommunications Approval" means any mobile telephone,
specialized mobile radio, messaging, personal communications service,
microwave or other license, permit, authorization, certificate,
franchise, consent, approval or
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waiver granted or issued by the FCC, the PRPSC or the PRTB, including,
without limitation, any of the foregoing authorizing or permitting the
acquisition, construction or operation of a cellular telephone system,
mobile telephone system, personal communications service system,
microwave network, messaging system or a local exchange network or
competitive access or transport network.
"Telecommunications Networks" means, collectively, the PCS
Systems, the CAP Systems and the LEC Systems of the Borrower and its
Subsidiaries.
"Termination Date" means the fourth anniversary of the date
hereof, or the earlier date of termination in whole of the Commitments
pursuant to Section 2.04 or 6.01.
"Total Debt" means, as of any date, the Consolidated Debt of the
Borrower and its Subsidiaries, including, without limitation,
Capitalized Lease Obligations, guaranties, obligations with respect to
letters of credit and trade accounts payable for which payment has been
deferred by agreement beyond the customary period in the industry.
"Trademark Collateral" shall mean all Trademarks, whether now
owned or hereafter acquired by any Obligor, including each Trademark
identified in Schedule 4.01(cc) hereto. Notwithstanding the foregoing,
the Trademark Collateral does not and shall not include any Trademark
that would be rendered invalid, abandoned, void or unenforceable by
reason of its being included as part of the Trademark Collateral.
"Trademarks" shall mean all trade names, trademarks and service
marks, logos, trademark and service ▇▇▇▇ registrations, and applications
for trademark and service ▇▇▇▇ registrations, including, without
limitation, all renewals of trademark and service ▇▇▇▇ registrations,
all rights corresponding thereto throughout the world, the right to
recover for all past, present and future infringements thereof, all
other rights of any kind whatsoever accruing thereunder or pertaining
thereto, together, in each case, with the product lines and goodwill of
the business connected with the use of, and symbolized by, each such
trade name, trademark and service ▇▇▇▇.
"Type" has the meaning specified in the definition of
Credit Agreement
- 28 -
"Advance" in this Section 1.01.
"Virgin Islands" means the United States Virgin
Islands.
"Voting Power" means, with respect to any Voting Stock issued by
any Person, the number of votes that the holders of such Voting Stock
are ordinarily, in the absence of contingencies, entitled to cast for
the election of a majority of the directors (or Persons performing
similar functions) of such Person, even though the right so to vote has
been suspended by the happening of such a contingency.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or Persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency.
"Wholly Owned Subsidiary" means, with respect to any Person, any
corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) are directly or indirectly
owned or controlled by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly
Owned Subsidiaries of such Person.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e), as modified from
time to time by changes in accounting principles which are required by generally
accepted accounting principles in effect from time to time.
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ARTICLE II
AMOUNTS AND TERMS OF THE CREDITS
SECTION 2.01A. The Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the Borrower
from time to time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the signature
pages hereof or, if such Lender has entered into any Assignment and Acceptance,
set forth for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(c), as such amount may be reduced pursuant to Section
2.04 (such Lender's "Commitment"), provided that in no event shall (a) the
Aggregate Financing Amount exceed the aggregate amount of the Commitments as in
effect from time to time or (b) the Aggregate Financing Amount exceed the
aggregate amount of the Borrowing Base as in effect from time to time prior to
the Borrowing Base Release Date. Each Borrowing shall be in an aggregate amount
not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and shall consist of Advances of the same Type made on the same day by the
Lenders ratably according to their respective Commitments. Within the limits of
each Lender's Commitment, the Borrower may borrow, prepay pursuant to Section
2.09(a) and reborrow under this Section 2.01A.
SECTION 2.01B. Letters of Credit. Subject to the terms and
conditions of this Agreement, the Commitments may be utilized, upon the request
of the Borrower, in addition to the Advances provided for by Section 2.01A
hereof, by the issuance by a Lender or Lenders designated by the Borrower of
letters of credit (collectively, "Letters of Credit") for account of the
Borrower or any of its Subsidiaries (as specified by the Borrower), provided
that in no event shall (i) the Aggregate Financing Amount exceed the aggregate
amount of the Commitments as in effect from time to time, (ii) the Aggregate
Financing Amount exceed the Borrowing Base as in effect from time to time prior
to the Borrowing Base Release Date, (iii) the outstanding aggregate amount of
all Letter of Credit Liabilities exceed $125,000,000, (iv) the expiration date
of any Letter of Credit extend beyond the Termination Date or (v) any Lender be
required to issue any Letter of Credit without its consent (which it may grant
or withhold in its sole discretion). The following additional provisions shall
apply to Letters of Credit:
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(a) The Borrower shall give the Administrative Agent at least ten
Business Days' irrevocable prior notice (effective upon receipt)
specifying the Business Day (which shall be no later than 30 days
preceding the Termination Date) each Letter of Credit is to be issued,
the account party or parties therefor and the Lender that will issue
such Letter of Credit and describing in reasonable detail the proposed
terms of such Letter of Credit (including the beneficiary thereof) and
the nature of the transactions or obligations proposed to be supported
thereby (including whether such Letter of Credit is to be a commercial
letter of credit or a standby letter of credit). Upon receipt of any
such notice, the Administrative Agent shall advise the prospective
Issuing Bank of the contents thereof.
(b) On each day during the period commencing with the issuance of
any Letter of Credit and until such Letter of Credit shall have expired
or been terminated, the Commitment of each Lender shall be deemed to be
utilized for all purposes of this Agreement in an amount equal to such
Lender's Commitment Percentage of the Face Amount of such Letter of
Credit. Upon the issuance of any Letter of Credit hereunder, each Lender
(other than the issuer thereof) shall automatically acquire a
participation in the respective Issuing Bank's liability under such
Letter of Credit in an amount equal to such Lender's Commitment
Percentage of such liability, and each Lender (other than the issuer
thereof) thereby shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and shall be
unconditionally obligated to such Issuing Bank to pay and discharge when
due, its Commitment Percentage of such Issuing Bank's liability under
such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of
any demand for payment under such Letter of Credit, the respective
Issuing Bank shall promptly notify the Borrower (through the
Administrative Agent) of the amount to be paid by such Issuing Bank as a
result of such demand and the date on which payment is to be made by
such Issuing Bank to such beneficiary in respect of such demand.
Notwithstanding the identity of the account party of any Letter of
Credit, the Borrower hereby unconditionally agrees to pay and reimburse
the Administrative Agent for account of such Issuing Bank for the amount
of each demand for payment under such Letter of Credit that is in
substantial compliance with the provisions of such Letter of Credit at
or prior to the date on which payment is to be made by such
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Issuing Bank to the beneficiary thereunder, without presentment, demand,
protest or other formalities of any kind and irrespective of any claim,
set-off, defense or other right which the Borrower or any of its
Subsidiaries or Affiliates may have at any time against such Issuing
Bank or any other Person, under all circumstances.
(d) Forthwith upon its receipt of a notice referred to in
paragraph (c) of this Section 2.01B, the Borrower shall advise the
Administrative Agent whether or not the Borrower intends to borrow
hereunder to finance its obligation to reimburse the respective Issuing
Bank for the amount of the related demand for payment and, if it does,
submit a notice of such borrowing as provided in Section 2.02(a) hereof.
(e) Each Lender (other than the issuer of such Letter of Credit)
shall pay to the Administrative Agent for account of the issuer of a
Letter of Credit at its address referred to in Section 8.02 in U.S.
dollars and in same day funds, the amount of such Lender's Commitment
Percentage of any payment under such Letter of Credit upon notice by
such issuer (through the Administrative Agent) to such Lender requesting
such payment and specifying such amount. Each such Lender's obligation
to make such payment to the Administrative Agent for account of any
Issuing Bank under this paragraph (e), and each Issuing Bank's right to
receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation,
the failure of any other Lender to make its payment under this paragraph
(e), the financial condition of the Borrower (or any other account
party), the existence of any Default or the termination of the
Commitments. Each such payment to an Issuing Bank shall be made without
any offset, abatement, withholding or reduction whatsoever. If any
Lender shall default in its obligation to make any such payment to the
Administrative Agent for account of an Issuing Bank, for so long as such
default shall continue the Administrative Agent may at the request of
such Issuing Bank withhold from any payments received by the
Administrative Agent under this Agreement or any Note for account of
such Lender the amount so in default and, to the extent so withheld, pay
the same to such Issuing Bank in satisfaction of such defaulted
obligation.
(f) Upon the making of each payment by a Lender to an Issuing
Bank pursuant to paragraph (e) above in respect of any Letter of Credit,
such Lender shall, automatically and
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without any further action on the part of the Administrative Agent, such
Issuing Bank or such Lender, acquire (i) a participation in an amount
equal to such payment in the Reimbursement Obligation owing to such
Issuing Bank by the Borrower hereunder and under the Letter of Credit
Documents relating to such Letter of Credit and (ii) a participation in
a percentage equal to such Lender's Commitment Percentage in any
interest or other amounts payable by the Borrower hereunder and under
such Letter of Credit Documents in respect of such Reimbursement
Obligation (other than the commissions, charges, costs and expenses
payable to such Issuing Bank pursuant to paragraph (g) of this Section
2.01B). Upon receipt by an Issuing Bank from or for account of the
Borrower of any payment in respect of any Reimbursement Obligation or
any such interest or other amount (including by way of setoff or
application of proceeds of any collateral security) such Issuing Bank
shall promptly pay to the Administrative Agent for account of each
Lender entitled thereto, such Lender's Commitment Percentage of such
payment, each such payment by such Issuing Bank to be made in the same
money and funds in which received by such Issuing Bank. In the event any
payment received by any Issuing Bank and so paid to the Lenders
hereunder is rescinded or must otherwise be returned by such Issuing
Bank, each Lender shall, upon the request of such Issuing Bank (through
the Administrative Agent), repay to such Issuing Bank (through the
Administrative Agent) the amount of such payment paid to such Lender,
with interest at the rate specified in paragraph (j) of this Section
2.01B.
(g) The Borrower shall pay to the Administrative Agent for
account of each Lender (ratably in accordance with their respective
Commitment Percentages) a letter of credit fee in respect of each Letter
of Credit in an amount equal to the Applicable Eurodollar Margin in
effect from time to time multiplied by the daily average Face Amount of
such Letter of Credit for the period from and including the date of
issuance of such Letter of Credit (i) in the case of a Letter of Credit
that expires in accordance with its terms, to and including such
expiration date and (ii) in the case of a Letter of Credit that is drawn
in full or is otherwise terminated other than on the stated expiration
date of such Letter of Credit, to but excluding the date such Letter of
Credit is drawn in full or is terminated (such fee to be non-refundable,
to be paid in arrears on the last day of each May, August, November and
February and on the Termination Date and to be calculated for any day
after
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giving effect to any payments made under such Letter of Credit on such
day). In addition, the Borrower shall pay to each Issuing Bank (x) a
fronting fee in respect of each Letter of Credit in such amount as shall
be separately agreed upon between the Borrower and such Issuing Bank and
(y) all commissions, charges, costs and expenses in the amounts
customarily charged by such Issuing Bank from time to time in like
circumstances with respect to the issuance of each Letter of Credit and
drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, each
Issuing Bank shall deliver (through the Administrative Agent) to each
Lender and the Borrower a notice describing the aggregate amount of all
Letters of Credit outstanding at the end of such month. Upon the request
of any Lender from time to time, each Issuing Bank shall deliver any
other information reasonably requested by such Lender with respect to
each Letter of Credit issued by such Issuing Bank then outstanding.
(i) The issuance by each Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Article III
hereof, be subject to the conditions precedent that (i) such Letter of
Credit shall be in such form, contain such terms and support such
transactions as shall be satisfactory to such Issuing Bank consistent
with its then current practices and procedures with respect to letters
of credit of the same type and (ii) the Borrower shall have executed and
delivered such applications, agreements and other instruments relating
to such Letter of Credit as such Issuing Bank shall have reasonably
requested consistent with its then current practices and procedures with
respect to letters of credit of the same type, provided that in the
event of any conflict between any such application, agreement or other
instrument and the provisions of this Agreement or any Security
Document, the provisions of this Agreement and the Security Documents
shall control.
(j) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (e) or (f) of this Section
2.01B on the due date therefor, such Lender shall pay interest to the
respective Issuing Bank (through the Administrative Agent) on such
amount from and including such due date to but excluding the date such
payment is made at a rate per annum equal to the Federal
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Funds Rate, provided that if such Lender shall fail to make such payment
to such Issuing Bank within three Business Days of such due date, then,
retroactively to the due date, such Lender shall be obligated to pay
interest on such amount at the rate provided for in Section 2.06(b).
(k) The issuance by any Issuing Bank of any modification or
supplement to any Letter of Credit hereunder shall be subject to the
same conditions applicable under this Section 2.01B to the issuance of
new Letters of Credit, and no such modification or supplement shall be
issued hereunder unless either (i) the respective Letter of Credit
affected thereby would have complied with such conditions had it
originally been issued hereunder in such modified or supplemented form
or (ii) each Lender shall have consented thereto.
The Borrower hereby indemnifies and holds harmless each Lender and the
Administrative Agent from and against any and all claims and damages, losses,
liabilities, costs or expenses that such Lender or the Administrative Agent may
incur (or that may be claimed against such Lender or the Administrative Agent by
any Person whatsoever) by reason of or in connection with the execution and
delivery or transfer of or payment or refusal to pay by any Issuing Bank under
any Letter of Credit; provided that the Borrower shall not be required to
indemnify any Lender or the Administrative Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
caused by (x) the willful misconduct or gross negligence of such Issuing Bank in
determining whether a request presented under any Letter of Credit complied with
the terms of such Letter of Credit or (y) in the case of such Issuing Bank, such
Issuing Bank's failure to pay under any Letter of Credit after the presentation
to it of a request strictly complying with the terms and conditions of such
Letter of Credit unless such payment was enjoined by court order. Nothing in
this Section 2.01B is intended to limit the other obligations of the Borrower,
any Lender or the Administrative Agent under this Agreement.
SECTION 2.02. Making the Advances.
(a) Each Borrowing shall be made on notice, given not later than
11:00 A.M. (New York City time) on the third (or, in the case of a Base Rate
Advance, the first) Business Day prior to the date of the proposed Borrowing, by
the Borrower to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telecopier, telex or cable. Each such notice
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of an Borrowing (a "Notice of Borrowing") shall be by telecopier, telex or
cable, confirmed immediately by mail or delivery in writing, in substantially
the form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing, and (iv) in the case of a Borrowing comprised of
Eurodollar Rate Advances, initial Interest Period for each such Advance. Each
Lender shall, before 11:00 A.M. (New York City time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at its address referred to in Section 8.02, in same day
funds, such Lender's ratable portion of such Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's aforesaid address.
(b) Anything contained herein to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for any Borrowing if
the aggregate amount of such Borrowing is less than $5,000,000 or if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.07 and (ii) no more than ten Borrowings may be
outstanding at anytime.
(c) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower. In the case of any Borrowing which the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02
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and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and the Borrower severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Advance to be made by
it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees.
(a) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee on the
average daily unused portion of such Lender's Commitment from the date hereof in
the case of each Bank and from the effective date specified in the Assignment
and Acceptance pursuant to which it became a Lender in the case of each other
Lender until the Termination Date at the rate of (i) 0.500% per annum during
each period in which the applicable Leverage Ratio is greater than 8.0:1, (ii)
0.375% per annum during each period in which the applicable Leverage Ratio is
less than or equal to 8.0:1 and greater than 6.0:1, and (iii) 0.250% per annum
during each period in which the applicable Leverage Ratio is less than or equal
to 6.0:1, payable on the last day of each November, February, May and August
during the term of such Lender's Commitment, commencing on the date hereof and
on the Termination Date. Each retroactive change in the Leverage Ratio pursuant
to Section 2.06(d) shall be given retroactive effect in determining the
applicable commitment fee rate pursuant to this Section 2.03(a) for a period of
time identical to that given such retroactive change in the Leverage Ratio. If
any such
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retroactive change occurs in the commitment fee rate payable for a period for
which the Borrower has already paid commitment fees, then any overpayment of
commitment fees by the Borrower resulting therefrom shall be credited to future
commitment fee or other payment obligations of the Borrower and any underpayment
of commitment fees by the Borrower resulting therefrom shall be paid by the
Borrower to the Administrative Agent for the account of the Lenders upon demand
by the Administrative Agent.
(b) Agency Fee. The Borrower shall pay to the Administrative
Agent, for its own account, such fees in respect of its services hereunder as
shall from time to time be separately agreed upon between the Borrower and the
Administrative Agent.
SECTION 2.04. Reduction of the Commitments.
(a) Mandatory. The Commitments of the Lenders shall
be automatically and permanently reduced as provided by
Section 2.09(c).
(b) Optional. The Borrower shall have the right, upon at least 5
Business Days' notice to the Administrative Agent, to terminate in whole or
permanently reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided that each partial reduction shall be in the
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
SECTION 2.05. Repayment of Advances. The Borrower shall repay the
principal amount of each Advance outstanding at the close of business on the
Termination Date made to it owing to each Lender on each of the principal
installment dates listed below commencing May 31, 2001 and ending February 28,
2005 and the amount to be paid on each such principal repayment installment date
shall equal the product obtained by multiplying (x) the unpaid principal amount
of such Advance outstanding at the close of business on the Termination Date by
(y) the percentage set forth below for that principal repayment installment
date:
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Last Business Last Business Last Business Last Business
Day of Day of Day of Day of
Year February May August November
---- -------- --- ------ -----------
2001 XXX 3.00% 4.00% 5.00%
2002 6.00% 6.50% 6.50% 7.00%
2003 7.00% 7.00% 7.00% 7.00%
2004 7.00% 7.00% 7.00% 7.00%
2005 6.00% XXX XXX XXX
provided, however, that the last such installment shall be in the amount
necessary to repay in full the unpaid principal amount of such Advance.
SECTION 2.06. Interest on the Advances.
(a) Ordinary Interest. The Borrower shall pay interest on the
unpaid principal amount of each Advance owing to each Lender in accordance with
the Note to the order of such Lender at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times equal to the sum
of the Base Rate in effect from time to time plus 1.50%, provided that
if the applicable Leverage Ratio shall be greater than zero and fall
within any of the ranges set forth below then the Borrower shall pay a
rate per annum equal at all times to the sum of the Base Rate in effect
from time to time plus the applicable margin set forth below:
(A) 1.25% per annum during each period in which the
applicable Leverage Ratio is greater than 10.0:1,
(B) 1.00% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 10.0:1 and
greater than 9.0:1,
(C) 0.875% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 9.0:1 and
greater than 8.0:1,
(D) 0.750% per annum during each period in which the
applicable Leverage Ratio is less than or equal to
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8.0:1 and greater than 7.0:1,
(D) 0.625% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 7.0:1 and
greater than 6.0:1,
(E) 0.375% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 6.0:1 and
greater than 5.0:1,
(F) 0.125% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 5.0:1 and
greater than 4.0:1, and
(G) 0% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 4.0:1,
payable in arrears on the last day of each May, August, November and
February during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advance. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance equal to the sum of the Eurodollar
Rate for such Interest Period for such Advance plus 2.50%, provided that
if the applicable Leverage Ratio shall be greater than zero and fall
within any of the ranges set forth below then the Borrower shall pay a
rate per annum equal at all times to the sum of the Eurodollar Rate for
such Interest Period for such Advance plus the applicable margin set
forth below (the "Applicable Eurodollar Margin"):
(A) 2.25% per annum during each period in which the
applicable Leverage Ratio is greater than 10.0:1,
(B) 2.00% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 10.0:1 and
greater than 9.0:1,
(C) 1.875% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 9.0:1 and
greater than 8.0:1,
(D) 1.750% per annum during each period in which the
applicable Leverage Ratio is less than or equal to
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8.0:1 and greater than 7.0:1,
(D) 1.625% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 7.0:1 and
greater than 6.0:1,
(E) 1.375% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 6.0:1 and
greater than 5.0:1,
(F) 1.125% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 5.0:1 and
greater than 4.0:1, and
(G) 0.875% per annum during each period in which the
applicable Leverage Ratio is less than or equal to 4.0:1,
payable in arrears on the last day of such Interest Period and, if such
Interest Period is greater than three months, on the last day of each
three-month period during such Interest Period.
(b) Default Interest. The Borrower shall pay interest on the
unpaid principal amount of each Advance that is not paid when due and on the
unpaid amount of all interest, fees and other amounts payable hereunder that is
not paid when due, payable on demand, at a rate per annum equal at all times to
(i) in the case of any amount of principal, the greater of (x) 2% per annum
above the rate per annum required to be paid on such Advance immediately prior
to the date on which such amount became due and (y) 2% per annum above the rate
per annum on a hypothetical Borrowing consisting of a Eurodollar Rate Advance in
a principal amount equal to the principal amount of such defaulted Advance and
having consecutive Interest Periods of three months' duration, the first day of
the initial Interest Period for such hypothetical Eurodollar Rate Advance being
deemed to occur on the first day on which such defaulted Advance shall not have
been paid when due and (ii) in the case of all other amounts, 2% per annum above
the Base Rate in effect from time to time.
(c) Leverage Ratio Certificates. The Borrower shall deliver a
certificate, in substantially the form of Exhibit F, to the Administrative Agent
on each date on which financial statements are delivered pursuant to Sections
5.03(c) and 5.03(d) (each such certificate being a "Periodic Certificate"). Each
Periodic Certificate shall certify the Leverage Ratio in effect
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on the last day of the most recent Fiscal Period which ends on or before the
date on which such certificate is delivered.
(d) Effective Dates for Leverage Ratios. Each Leverage Ratio
certified in any Periodic Certificate shall (absent manifest error) become
effective on the date such certificate is delivered in compliance with this
Agreement. The Leverage Ratio certified for the date on which such certificate
is delivered shall apply to each date thereafter until the delivery in
compliance with this Agreement of the next Periodic Certificate called for by
Section 2.06(c). If the Borrower fails to deliver financial statements and the
related Periodic Certificate when required by Section 5.03(c), then the
applicable Leverage Ratio shall be the Leverage Ratio in effect on the last day
of the Fiscal Period in respect of which such Periodic Certificate should have
been delivered and shall continue in effect until a Periodic Certificate in
compliance with this Section 2.06 is delivered.
SECTION 2.07. Interest Rate Determination and Protection.
(a) Citibank agrees to furnish to the Administrative Agent timely
information for the purpose of determining each Eurodollar Rate.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.06(a)(i) or (ii), and the
applicable rate, if any, furnished by Citibank for the purpose of determining
the applicable interest rate under Section 2.06(a)(ii).
(c) If Citibank does not furnish timely information to the
Administrative Agent for determining the Eurodollar Rate for any Eurodollar Rate
Advances,
(i) the Administrative Agent shall forthwith notify the Borrower
and the Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligation of the Lenders to make, or to
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Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Majority Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base
Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such
suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
the Borrower will be deemed to have selected, for the Interest Period
immediately succeeding the then existing Interest Period therefor, an Interest
Period for such Advance of three months' duration.
(f) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such Eurodollar Rate
Advances shall automatically Convert into Base Rate Advances, and on and after
such date the right of the Borrower to Convert such Base Rate Advances into
Eurodollar Rate Advances shall terminate; provided, however, that, if and so
long as each such Eurodollar Rate Advance shall have the same Interest Period as
Eurodollar Rate Advances comprising another Borrowing or other Borrowings, and
the aggregate unpaid principal amount of all such Eurodollar Rate Advances shall
equal or exceed $5,000,000, the Borrower shall have the right to continue all
such Advances as, or to Convert all such Advances into, Eurodollar Rate Advances
having
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such Interest Period.
SECTION 2.08. Voluntary Conversion of Advances. The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.07, 2.10
and 2.11, Convert all Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any Conversion of any
Eurodollar Rate Advances into Base Rate Advances shall be made on, and only on,
the last day of an Interest Period for such Eurodollar Rate Advances. Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Advances to be Converted, and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of the Interest
Period for each such Advance.
SECTION 2.09. Prepayments of Advances.
(a) Optional. The Borrower may, upon at least five Business Days'
notice to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Advances comprising part
of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount not less than $5,000,000 or a larger multiple of $1,000,000
and, if made after the Termination Date, shall be applied ratably to the
respective principal repayment installments of the Advances and (y) in the event
of any such prepayment of a Eurodollar Rate Advance, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(b).
(b) Mandatory.
(i) Borrowing Base. Until the Borrowing Base Release Date, the
Borrower shall from time to time prepay the Advances (and/or provide
cover for Letter of Credit Liabilities as specified in paragraph (d)
below) in such amounts as shall be necessary so that at all times the
Aggregate Financing Amount shall not exceed the Borrowing Base, such
amount to be applied, first, to Advances outstanding and, second, as
cover for Letter of Credit
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Liabilities outstanding.
(ii) Sales of Assets. Without limiting the obligation of the
Borrower to obtain the consent of the Majority Lenders pursuant to
Section 5.02(e) to any sale, lease, transfer or other disposition (each,
a "Disposition") of any asset of the Borrower or any Subsidiary (other
than sales of assets in the ordinary course of business) not otherwise
permitted hereunder, in the event that the Borrower or any Subsidiary
shall receive Net Cash Proceeds of any Disposition, the Borrower will
prepay the Advances (and/or provide cover for Letter of Credit
Liabilities as specified in Section 2.09(d)), and the Commitments shall
be subject to automatic reduction, in an aggregate amount equal to 100%
of such Net Cash Proceeds, such prepayment and reduction to be effected
in each case in the manner and to the extent specified in Section
2.09(c).
(iii) Excess Cash Flow. Not later than the date 60 days after the end
of each Fiscal Quarter of the Borrower ending on or after May 31, 2001,
the Borrower shall prepay the Advances (and/or provide cover for Letter
of Credit Liabilities as specified in Section 2.09(d)), and the
Commitments shall be subject to automatic reduction, in an aggregate
amount equal to the excess of 50% of Excess Cash Flow for such Fiscal
Quarter, such prepayment and reduction to be effected in each case in
the manner and to the extent specified in Section 2.09(c).
(iv) Debt Issuance. Upon any Debt Issuance, the Borrower shall
prepay the Advances (and/or provide cover for Letter of Credit
Liabilities as specified in Section 2.09(d)), and the Commitments shall
be subject to automatic reduction, in an aggregate amount equal to 100%
of the Net Cash Proceeds thereof, such prepayment and reduction to be
effected in each case in the manner and to the extent specified in
Section 2.09(c).
(v) Notice. The Borrower shall give the Administrative Agent at
least five Business Days' prior written notice of each prepayment of
Advances (and/or provision of cover for Letter of Credit Liabilities)
and reduction of Commitments required by this Section 2.09(b) stating
the aggregate amount (or in the case of Section 2.09(b)(i), stating the
approximate aggregate amount) thereof and the date on which the same
shall be made; provided that failure by the Borrower to give such
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notice shall not relieve the Borrower of its obligation to make such
prepayment of Advances (and/or provision of cover for Letter of Credit
Liabilities) and reduction of Commitments.
(c) Application of Prepayment Proceeds. Prepayments of Advances
(and/or provision of cover for Letter of Credit Liabilities) and reductions of
Commitments (each, a "Required Reduction") described in the above paragraphs of
this Section 2.09 (other than in paragraph (b)(i) above) shall be effected as
follows:
(i) if the date of such Required Reduction falls on or before the
Termination Date, the Commitments shall be automatically reduced in an
amount equal to the amount of the Required Reduction (and to the extent
that, after giving effect thereto, the Aggregate Financing Amount would
exceed the Commitments, the Borrower shall, first, prepay Advances and,
second, provide cover for Letter of Credit Liabilities as specified in
Section 2.09(d), in an aggregate amount equal to such excess); and
(ii) if the date of the Required Reduction falls after the
Termination Date, the amount of the Required Reduction shall be applied
to the installments of the Advances then outstanding pro rata in
accordance with the amounts of such installments.
(d) Cover for Letter of Credit Liabilities. In the event that the
Borrower shall be required pursuant to this Section 2.09, or pursuant to Section
6.01, to provide cover for Letter of Credit Liabilities, the Borrower shall
effect the same by paying to the Administrative Agent immediately available
funds in an amount equal to the required amount, which funds shall be retained
by the Administrative Agent in the Collateral Account (as provided therein as
collateral security in the first instance for the Letter of Credit Liabilities)
until such time as the Letters of Credit shall have been terminated and all of
the Letter of Credit Liabilities paid in full.
SECTION 2.10. Increased Costs, Etc.
(a) If, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost
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to any Lender of agreeing to make or making, funding or maintaining Eurodollar
Rate Advances, then, if such costs are or will be charged to customers of such
Lender generally, the Borrower shall from time to time, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate as
to the amount of such increased costs setting forth in reasonable detail the
calculations used in determining such increased costs, submitted to the Borrower
and the Administrative Agent by such Lender, shall be conclusive and binding for
all purposes, absent manifest error. Notwithstanding anything to the contrary
contained in this subsection (a), a Lender shall only be entitled to receive
reimbursement for such increased costs to the extent incurred within 90 days
prior to, and at any time after, the date on which such Lender gives to the
Borrower a notice that an event has occurred as a result of which such increased
costs will arise or a notice that the Borrower is obligated to pay increased
costs, whichever first occurs.
(b) If, due to either (i) the introduction of any change in or in
the interpretation of any law or regulation occurring on or after the date
hereof or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
issued on or after the 90th day prior to the date hereof, any Lender determines
that there shall be any increase in the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender as a
result of or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), the Borrower shall
immediately pay to the Administrative Agent for the account of such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such circumstances,
to the extent that such Lender reasonably determines such increase in capital to
be allocable to the existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts setting forth in reasonable detail the
calculations used in determining such amounts, submitted to the Borrower and the
Administrative Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error. Notwithstanding anything to the contrary
contained in this subsection (b), a Lender shall only be entitled to receive
reimbursement for such additional amounts pursuant to this subsection (b) to the
extent incurred within 90 days prior to,
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and at any time after, the date on which such Lender gives to the Borrower a
notice that an event has occurred as a result of which such additional amounts
will arise or a notice that the Borrower is obligated to pay such additional
amounts, whichever first occurs.
(c) Upon the occurrence and during the continuance of any Event
of Default, (i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance
and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(d) Any Lender claiming any additional amounts payable pursuant
to Section 2.10(a) and 2.10(b) shall, upon request from the Borrower delivered
to such Lender and the Administrative Agent specifying an Eligible Assignee
willing and able to assume and accept all such Lender's right and obligations
under this Agreement and the other Loan Documents, assign, in accordance with
the provisions of Section 8.07, all of its rights and obligations under this
Agreement and the other Loan Documents to another Lender or an Eligible Assignee
in consideration for (i) the payment by such assignee to the Lender of the
principal of, and interest on, the Note or Notes of such Lender accrued to the
date of such assignment, together with any and all other amounts owing to such
Lender under any provision of this Agreement or the other Loan Documents accrued
to the date of such assignment and (ii) the release of such Lender from any
further liability hereunder. The processing and recordation fee required under
Section 8.07(a) shall be paid by the Borrower under this Section 2.10(d).
SECTION 2.11. Illegality. Notwithstanding any other provisions of
this Agreement, if the introduction of or any change in or in the interpretation
of any law or regulation shall make it unlawful, or any central bank or other
governmental authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrower through the Administrative Agent, accompanied by an opinion of
counsel to such Lender (which counsel may be in-house counsel) with respect to
such illegality, (i) each Eurodollar Rate Advance will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the Lenders
to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until
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the Administrative Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the
Notes not later than 11:00 A.M. (New York City time) on the day when due in U.S.
dollars to the Administrative Agent at its address referred to in Section 8.02
in same day funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest,
commitment fees or letter of credit fees ratably (other than amounts payable
pursuant to Sections 2.10, 2.13 or 2.15) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement; provided, however, so long as an Event of Default shall
have occurred and be continuing under Section 6.01(a) or the Advances shall have
been declared or shall become due and payable in accordance with the last
paragraph of Section 6.01, then the Administrative Agent will cause to be
distributed all funds relating to the payment of principal or interest in
respect of Advances received by the Administrative Agent from the Borrower
ratably to the Lenders based on the Advances then outstanding. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(c), from and after
the effective date specified in such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder, and
the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under any
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate or the
Federal Funds Rate shall be made by the Administrative Agent on the basis of a
year of 365 or 366 days, as the case may be, and all computations of interest
based on the
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Eurodollar Rate, of the commitment fees of the letter of credit fees and of the
letter of credit Fronting fees shall be made by the Administrative Agent, and
all computations of interest pursuant to Section 2.15 shall be made by a Lender
on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but (except to the extent provided in Section 2.01B(g))
excluding the last day) occurring in the period for which such interest or fees
are payable. Each determination by the Administrative Agent (or, in the case of
Section 2.15 by a Lender) of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fee, as the case
may be; provided, however, if such extension would cause payment of interest on
or principal of Eurodollar Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes.
(a) Any and all payments by the Borrower hereunder or under the
Notes shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto imposed by, or by any taxing authority
of or in, Puerto Rico, the United States of America, any subdivision of either
thereof, excluding, in the case of each Lender and the
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Administrative Agent, taxes imposed on its net income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its net
income, and franchise taxes imposed on it, by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or the Administrative Agent, (i) the
sum payable shall be increased so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.13) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement, the Notes and/or the Support Documents (hereinafter referred to
as "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.13) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof. If no Taxes are payable in respect of any payment hereunder or under
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the Notes, the Borrower will furnish to the Administrative Agent, at such
address, a certificate from each appropriate taxing authority, or an opinion of
counsel acceptable to the Administrative Agent, in either case stating that such
payment is exempt from or not subject to Taxes.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter if requested in writing by
the Borrower or the Administrative Agent (but only so long as such Lender
remains lawfully able to do so), shall provide the Borrower and the
Administrative Agent with Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces the rate of withholding tax
on payments of interest or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a trade or business
in the United States. If the form provided by a Lender at the time such Lender
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from "Taxes" as defined in Section 2.13(a).
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.13(a) or
2.13(c) with respect to Taxes imposed by the United States; provided, however,
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
(g) Notwithstanding any contrary provisions of this Agreement, in
the event that a Lender that originally provided such form as may be required
under Section 2.13(e) thereafter ceases to qualify for complete exemption from
United States withholding tax, such Lender may assign its interest under this
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Agreement to any assignee and such assignee shall be entitled to the same
benefits under this Section 2.13 as the assignor provided that the rate of
United States withholding tax applicable to such assignee shall not exceed the
rate then applicable to the assignor.
(h) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 2.13 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances made by it (other
than pursuant to Section 2.10, 2.13 or 2.15) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances made by them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, if all or
any portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.14 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
SECTION 2.15. Additional Interest on Eurodollar Rate Advances.
The Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Lender, from the date of such
Advance until such principal amount is paid in full, at an interest rate per
annum equal at all times to the
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remainder obtained by subtracting (i) the Eurodollar Rate for such Interest
Period for such Advance from (ii) the rate obtained by dividing such Eurodollar
Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
of such Lender for such Interest Period, payable on each date on which interest
is payable on such Advance. Such additional interest shall be determined by such
Lender and notified to the Borrower through the Administrative Agent.
SECTION 2.16. Use of Proceeds. The proceeds of each Advance shall
be used by the Borrower (i) to finance payment of the Initial Distributions;
(ii) to finance working capital requirements of the Borrower and its
Subsidiaries; (iii) to finance the construction and operation of personal
communications, competitive access and telecommunications networks in Puerto
Rico and the United States Virgin Islands by the Borrower and its Subsidiaries
and (iv) for general corporate purposes.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Advances. The
obligation of each Lender to make its initial Advance, and the obligation of
each Issuing Bank to issue its initial Letter of Credit, on the occasion of the
initial Credit Extension hereunder is subject to the following conditions
precedent:
(a) The Administrative Agent shall have received the Notes
payable to the order of each of the Lenders, respectively, duly executed
by the Borrower.
(b) The Lenders shall be reasonably satisfied with the
organizational and legal structure and capitalization of the Borrower
and each Subsidiary, including the terms and conditions of (i) the
charter, bylaws, partnership agreement and other organizational
documents, and each class of capital stock or other equity interest, of
the Borrower and each Subsidiary, (ii) of each agreement or instrument
relating to such structure (including, without limitation, intercompany
tax sharing, cost sharing and management agreements) or capitalization
and (iii) existing Debt (including, without limitation, equipment vendor
financing) of the Borrower and each Subsidiary.
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(c) The Borrower shall have paid all accrued fees and expenses of
the Administrative Agent and CSI (including the accrued fees and
disbursements of special New York counsel and special Puerto Rico
counsel to the Administrative Agent and CSI).
(d) The Administrative Agent shall have received the following,
each dated the date of the initial Borrowing hereunder (unless otherwise
specified) in form and substance satisfactory to the Administrative
Agent and in sufficient copies for each Lender:
(i) With respect to each Credit Party that is a
corporation, (A) a copy of the certificate or articles of
incorporation, as amended, of such Credit Party, certified by the
Secretary of State or other appropriate official of the
jurisdiction of its organization as of a date reasonably near the
initial Borrowing; (B) a certificate of the Secretary of the
Borrower certifying (I) that attached thereto is a true and
complete copy of the bylaws of each Credit Party as in effect on
the date of such certificate and as in effect at all times since
a date prior to the date of the resolutions described in item
(II) below, (II) that attached thereto is a true and complete
copy of the resolutions adopted by the Board of Directors of each
Credit Party authorizing the execution, delivery and performance
of such of the Loan Documents to which such Credit Party is a
party, and each other document or instrument which is to be
delivered by it in connection with this Agreement after the date
hereof and (in the case of the Borrower) authorizing the
Borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect,
(III) that the certificate or articles of incorporation of the
Credit Parties have not been amended since the date of the last
amendment thereto shown on the certificate furnished pursuant to
clause (A) above and (IV) as to the incumbency and specimen
signature of each of the officers of each Credit Party executing
the Loan Documents to which such Credit Party is to be a party,
or any other document or instrument delivered in connection
therewith; (C) a copy of a certificate of the Secretary of State
of the jurisdiction of incorporation and the jurisdiction doing
business of each Credit Party as of a date reasonably near the
initial Borrowing certifying that
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(I) such Credit Party has paid all franchise taxes to the date of
such certificate and (II) such Credit Party is duly incorporated,
in good standing and authorized to engage in business, as the
case may be, under the laws of the applicable jurisdiction; and
(D) all documents evidencing other necessary corporate action and
governmental and third party consents and approvals, if any,
reasonably requested by any Lender through the Administrative
Agent.
(ii) With respect to each Credit Party that is a partnership
or other entity (other than a corporation), copies of the
partnership agreement and other organizational document, together
with such proof of authority, as shall be equivalent to those
delivered pursuant to the foregoing clause (i) and as shall have
been reasonably requested by the Administrative Agent or any
Lender through the Administrative Agent.
(iii) The Subsidiary Guaranty duly executed and delivered by
each Subsidiary of the Borrower.
(iv) The Holdings Pledge Agreement duly executed
and delivered by Holdings.
(v) The Obligor Pledge Agreement duly executed and
delivered by the Borrower and Lambda Communications, Incorporado.
(vi) The Puerto Rico Security Documents required by Section
5.01(n) to be executed and delivered on the date of the initial
Credit Extension duly executed and delivered by each Obligor
stated to be a party thereto in proper form for filing, when such
filing is required by applicable law, and the payment of all
required documentary stamps, recording fees, taxes and all other
costs and expenses relating to the filing and recordation of such
Puerto Rico Security Documents.
(vii) A certificate of a Financial Officer of the Borrower, in
substantially the form of Exhibit G, attesting that each of the
Borrower and each of its Subsidiaries is Solvent after giving
effect to the transactions contemplated hereby.
(viii) A Borrowing Base Certificate as at the date
of the initial Borrowing hereunder.
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(ix) A certificate of a Financial Officer of the Borrower as
to the matters set forth in clauses (i) and (ii) of Section
3.02(a) substantially in the form of Exhibit H hereto.
(x) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
special New York counsel for the Credit Parties, in form and
substance satisfactory to the Administrative Agent (and each
Obligor hereby instructs such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
(xi) A favorable opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special
Puerto Rico counsel for the Credit Parties, in form and substance
satisfactory to the Administrative Agent (and each Obligor hereby
instructs such counsel to deliver such opinion to the Lenders and
the Administrative Agent).
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, special
communications counsel for the Credit Parties, in form and
substance satisfactory to the Administrative Agent (and each
Obligor hereby instructs such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
(xiii) A favorable opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent (and the Administrative
Agent hereby instructs such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
(xiv) A favorable opinion of Fiddler, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
special Puerto Rico counsel for the Administrative Agent, in form
and substance satisfactory to the Administrative Agent (and the
Administrative Agent hereby instructs such counsel to deliver
such opinion to the Lenders and the Administrative Agent).
(xv) An acceptance of its appointment as agent for the
service of process, in substantially the form of Exhibit K, duly
executed and delivered by Centennial Cellular.
(e) The Lenders shall have received evidence
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satisfactory to them that all approvals of governmental authorities and
regulatory bodies and third party consents (including, without
limitation, all Telecommunications Approvals and any consents or
approvals from the PRTC) that are necessary or desirable for the
execution, delivery and performance by each Credit Party of each Loan
Document to which it is a party, the consummation of the transactions
contemplated thereby and the completion of the build-out, activation and
operational capacity of the PCS System contemplated by Section 3.01(f)
have been obtained by the Borrower and its Subsidiaries, are in full
force and effect and have become final.
(f) The Lenders shall have received evidence satisfactory to them
that the build-out and activation of the PCS System has been completed
and that the operational capacity of the PCS System is sufficient to
provide service to at least 80% of the population of Puerto Rico.
(g) The Lenders shall have received and be satisfied with the
terms and conditions of the Interconnection Agreements, the Facilities
Agreement and of each Marketing Agreement.
(h) The Borrower will have Contributed Equity on the date of the
initial Borrowing (after giving effect to any Initial Distribution to be
made on such date) of not less than $55,000,000.
(i) The Administrative Agent shall have received evidence that,
by virtue of the Security Documents, and the filing or registration of
all required documents and the taking of all other required action, it
shall have for the benefit of the Lenders a perfected security interest
in all of the Collateral to the extent then required by Section 5.01(n)
subject to no equal or prior Lien.
(j) The Administrative Agent shall have received the Century-ML
Consent and Agreement entered into by the parties thereto.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make an Advance on the occasion of each Borrowing
(including the initial Borrowing), and the obligation of each Issuing Bank to
issue any Letter of Credit (including the initial Letter of Credit) shall be
subject to the further conditions precedent that on the date of such Credit
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Extension (a) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing, the required for such Letter of Credit, the
acceptance by the Borrower of the proceeds of such Borrowing and the issuance of
such Letter of Credit pursuant to such request, as the case may be, shall
constitute a representation and warranty by the Borrower that on the date of
such Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01
and in each other Loan Document are correct on and as of the date of
such Credit Extension, before and after giving effect to such Credit
Extension, and to the application of the proceeds therefrom, as though
made on and as of such date,
(ii) No Default has occurred and is continuing, or would result from
such Credit Extension or from the application of the proceeds therefrom,
(iii) If such Credit Extension falls before the Borrowing Base
Release Date, the Aggregate Financing Amount does not exceed the
Borrowing Base (and the Borrower shall deliver to the Administrative
Agent together with the relevant Notice of Borrowing or request for a
Letter of Credit a Borrowing Base Certificate demonstrating that fact),
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender prior to the initial
Credit Extension specifying its objection thereto and, if such initial Credit
Extension is a Borrowing, such Lender shall not have made available to the
Administrative Agent such Lender's ratable portion of such Borrowing.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, (ii) is duly
qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed except where
the failure to so qualify or be licensed would not have a Material
Adverse Effect and (iii) has all requisite corporate power and authority
to own or lease and operate its properties and to carry on its business
as now conducted and as proposed to be conducted. All of the outstanding
capital stock of the Borrower has been validly issued and is fully paid
and non-assessable.
(b) The execution, delivery and performance by each Obligor of
each of the Loan Documents to which it is or is to be a party, and the
consummation of the transactions contemplated thereby, are within the
corporate or other powers of such Obligor, have been duly authorized by
all necessary corporate or other action, and do not (i) contravene the
charter, bylaws, partnership agreement or other organizational document
of the Borrower or any of its Subsidiaries, (ii) violate any law, rule,
regulation (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or
result in the breach of, or constitute a default under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting the Borrower or any of its
Subsidiaries or any of its properties, or (iv) except as otherwise
required by the Security Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of
the Borrower or any of its Subsidiaries. None of the Borrower nor any of
its Subsidiaries is in violation of any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award or in
breach of any such contract, loan agreement, indenture, mortgage, deed
of trust, lease or other instrument, the violation or breach of which is
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reasonably likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
(including, without limitation, the FCC and the PRTRB) is required for
the due execution, delivery and performance by the Obligors of any of
the Loan Documents, or any Borrowing or request for a Letter of Credit
hereunder or for the ownership or control by the Borrower of all
Subsidiaries or for the ownership or control by any Subsidiary of any
other Subsidiary, except for filings and recordings in respect of the
Liens created pursuant to the Security Documents, each of which has been
duly issued or obtained and is in full force and effect.
(d) This Agreement is and the Notes and each other Loan Document
to which any Obligor is a party when delivered hereunder will be, legal,
valid and binding obligations of such Obligor enforceable against such
Obligor in accordance with their respective terms, subject, in the case
of enforceability, (i) to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (ii) to the effect of general principles
of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(e) The Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at May 31, 1996 and as at the date of
the latest interim financial statements issued by the Borrower prior to
the date hereof and the related Consolidated and consolidating
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year and interim period, respectively, then ended, copies
of each of which have been furnished to each Lender, fairly present the
Consolidated and consolidating financial condition of the Borrower and
its Subsidiaries as at such respective dates and the Consolidated and
consolidating results of operations of the Borrower and its Subsidiaries
for the fiscal year and interim period ended on such respective dates,
all in accordance with generally accepted accounting principles
consistently applied, and since the later of the date of such interim
financial statements or the date of the most recent financial statements
of the Borrower delivered under Section 5.03(d), there has been no
Material Adverse Change.
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(f) The Consolidated and consolidating forecasted statements of
income and cash flows of the Borrower and its Subsidiaries for each
Fiscal Years ending May 31, 1997 through May 31, 2005, copies of which
have been furnished to each Lender, were prepared in good faith on the
basis of the assumptions stated therein, which assumptions were
reasonable in light of conditions existing at the time of delivery of
such forecasts, and represented, at the time of delivery, the Borrower's
best estimate of its future financial performance.
(g) No information, exhibit, report, document, certificate or
written statement, including this Agreement, furnished in writing to any
Lender by or on behalf of the Borrower or any Subsidiary to the
Administrative Agent or any Lender in connection with the negotiation of
the Loan Documents or pursuant to the terms of the Loan Documents
contained as of the date so furnished any untrue statement of a material
fact or omitted as of the date so furnished to state a material fact
necessary to make the statements contained therein, in light of the
circumstances under which such information, exhibit, report or other
written information is or is to be used, not misleading, nor did such
information, exhibits, reports, documents, certificates and statements,
taken as a whole, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained therein not misleading. There is no fact known to the Borrower
or officers of the Borrower which the Borrower has not disclosed to the
Lenders in writing which in the reasonable judgment of the Borrower and
such officers would have a Material Adverse Effect.
(h) There is no pending or threatened action or proceeding
against the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, that, if adversely determined, is
reasonably likely to have a Material Adverse Effect or that purports to
affect any Loan Document or any of the transactions contemplated
thereby.
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
Credit Extension will be used to purchase or carry any Margin Stock or
to extend credit to others for the purpose of purchasing or carrying any
Margin Stock.
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(j) Following application of the proceeds of each Advance, not
more than 25 percent of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(f), 5.02(g) or 5.02(h) or
subject to any restriction contained in any agreement or instrument
between the Borrower and any Lender or any affiliate of any Lender
relating to Debt will be Margin Stock.
(k) Set forth on Schedule 4.01(k) hereto is a complete and
accurate list of all Subsidiaries of the Borrower, showing as of the
date hereof or thereof (as to each such Subsidiary) the jurisdiction of
its organization, whether such Subsidiary is a corporation, partnership
or other entity, the number, and class or type, of ownership interest
issued by such Subsidiary (and, in the case of a corporation, the shares
of each class of capital stock authorized and the number of such shares
outstanding), on the date hereof, and the percentage of the outstanding
ownership interest of each such class or type owned (directly or
indirectly) by the Borrower and the number of shares or other ownership
interest covered by all outstanding options, warrants, rights of
conversion or purchase and similar rights at the date hereof.
Each such Subsidiary (i) is a corporation, partnership or other
entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, (ii) is duly qualified and
in good standing in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to so qualify or be
licensed would not have a Material Adverse Effect and (iii) has all
requisite power and authority to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted. The outstanding capital stock of each Wholly Owned Subsidiary
that is a corporation has been validly issued, is fully paid and
non-assessable, and the ownership interests in all Subsidiaries held by
the Borrower and its Subsidiaries is free and clear of all Liens, except
those permitted by Sections 5.02(e) and (f).
(l) The operations and properties of the Borrower and each of its
Subsidiaries comply in all material respects with all Environmental
Laws, all necessary Environmental Permits have been obtained and are in
effect for the
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operations and properties of the Borrower and its Subsidiaries, the
Borrower and its Subsidiaries are in compliance in all material respects
with all such Environmental Permits, and, to the knowledge of the
Borrower, no circumstances exist that could (i) form the basis of an
Environmental Action against the Borrower, any of its Subsidiaries or
any of their properties that could have a Material Adverse Effect or
(ii) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental
Law.
(m) None of the properties of the Borrower or any of its
Subsidiaries is listed or proposed for listing on the National
Priorities List under CERCLA or on the Comprehensive Environmental
Response, Compensation and Liability Information System maintained by
the Environmental Protection Agency or any analogous state list of sites
requiring investigation or cleanup or is adjacent to any such property,
and no underground storage tanks, as such term is defined in 42 U.S.C.
ss. 6991, are located on any property of the Borrower or any of its
Subsidiaries or, to the best of its knowledge, on any adjoining
property.
(n) Neither the Borrower nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the application of the proceeds or repayment
thereof by the Borrower, nor the consummation of the other transactions
contemplated hereby, will violate any provision of such Act or any rule,
regulation or order of the Securities and Exchange Commission
thereunder.
(o) The Borrower and its Subsidiaries are, and each of
them is, Solvent.
(p) As of the date hereof and as of the date of the initial
Credit Extension, there exist no credit agreements, indentures, purchase
agreements, obligations in respect of letters of credit, guarantees or
other instruments presently in effect (including, but not limited to,
Capitalized Lease Obligations and Debt owed by the Borrower to
Affiliates) providing for, evidencing, securing or otherwise relating to
any Debt of the Borrower or any of its Subsidiaries other than Debt
under the Loan Documents.
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(q) There are no Liens of any nature whatsoever on any properties
of the Borrower nor any Subsidiary other than (i) those permitted by
Section 5.02(e) or 5.02(f) and (ii) nonconsensual Liens which could not,
individually or in the aggregate, have a Material Adverse Effect.
(r) None of the Borrower or any Subsidiary is a party to any
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter, corporate restriction, or
restriction set forth in its respective partnership agreement or other
organizational document, which is reasonably likely to have a Material
Adverse Effect.
(s) (i) The Borrower and each Subsidiary have filed all tax
returns (Federal, State and local) required to be filed, and paid all
taxes shown thereon to be due, including interest and penalties, or
provided adequate reserves for payment thereof, and (ii) the Borrower
and each Subsidiary have timely filed all reports and applications
required by the FCC or the PRTRB, in each case except such filings the
failure of which to file is not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect.
(t) The Borrower and each Subsidiary is in compliance with the
requirements of all applicable laws, rules, regulations, orders and
licensing requirements of all governmental authorities (including,
without limitation, all Telecommunications Approvals) except to the
extent that any such non-compliance could not have a Material Adverse
Effect; and none of the Borrower or any Subsidiary is the subject of any
outstanding citation, order or investigation by the FCC, the PRTRB or
the PRPSC which could have a Material Adverse Effect, and no such
citation, order or investigation, to the knowledge of the Borrower or
any Subsidiary, is contemplated by the FCC or the PRTRB.
(u) Neither the Borrower nor any ERISA Affiliate has either a
Multiemployer Plan or a Plan, other than a Multiemployer Plan or a Plan
to which the Majority Lenders have given their consent after the date
hereof.
(v) All of the material properties, equipment and systems owned,
leased or managed by the Borrower and its Subsidiaries are, and (to the
best knowledge of the Borrower) all such property, equipment and systems
to be
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acquired or added in connection with any contemplated system expansion
or construction will be, in all material respects, in good repair,
working order and condition and are and will be in compliance with all
terms and conditions of all Telecommunications Approvals and all
standards or rules imposed by the FCC or the PRTRB, or as imposed under
any agreements with telephone companies and customers, except for any
such non-compliance that could not result in a Material Adverse Effect.
(w) Each of the Borrower and its Subsidiaries has obtained all
material Telecommunications Approvals necessary or desirable for the
conduct of its business and operations as currently or as proposed to be
conducted.
Schedule 4.01(w) attached hereto accurately and completely lists
all Telecommunications Approvals granted or assigned to the Borrower or
any Subsidiary, or under which the Borrower and its Subsidiaries have
the right to operate Telecommunications Networks on the date hereof. The
Telecommunications Approvals listed on said Schedule 4.01(w) include all
material authorizations, licenses and permits issued by the FCC that are
required or necessary for the operation of the Telecommunications
Networks of the Borrower and its Subsidiaries, and the conduct of the
business of the Borrower and its Subsidiaries with respect to such
Telecommunications Networks, as now conducted or proposed to be
conducted. The Telecommunications Approvals listed in said Schedule
4.01(w) are issued in the name of a License Subsidiary are on the date
hereof validly issued and in full force and effect without conditions
except for such conditions as are generally applicable to holders of
such Telecommunications Approvals, and the Borrower and its Subsidiaries
will have fulfilled and performed in all material respects all of their
obligations with respect thereto and have full power and authority to
operate thereunder.
No event has occurred and is continuing which could (i) result in
the imposition of a material forfeiture or the revocation, termination
or adverse modification of any Telecommunications Approvals or (ii)
materially and adversely affect any rights of the Borrower or any of its
Subsidiaries thereunder; the Borrower has no reason to believe and has
no knowledge that the Telecommunications Approvals presently held by the
Borrower or any of its Subsidiaries will not be renewed in the ordinary
course; and
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each of the Borrower and its Subsidiaries has sufficient time,
materials, equipment, contract rights and other required resources to
complete, in a timely fashion and in full, the construction and
activation of their Telecommunications Networks in Puerto Rico in
compliance with all applicable technical standards and construction
requirements and deadlines. The current ownership and operation by each
of the Borrower and its Subsidiaries of such Telecommunications Networks
complies with the Communications Act of 1934, as amended, and all rules,
regulations and policies of the FCC, the PRTRB or any other governmental
authority, except for such non-compliance that could not result in a
Material Adverse Effect.
(x) The Borrower and each Subsidiary is in compliance in all
material respects with the requirements of the Interconnection
Agreements, the Facilities Agreement and the Marketing Agreements. The
Borrower and each Subsidiary is in compliance in all material respects
with the requirements of (and no default has occurred under) all other
contracts, agreements, indentures, mortgages, leases and other
instruments binding on it or its property, assets or operations the
violation of which could have a Material Adverse Effect.
(y) The Borrower and its Subsidiaries own and have on the date
hereof good and marketable title (subject only to Liens permitted by
Section 5.02(a)) to the properties and assets shown to be owned in the
financial statements referred to in Section 4.01(e) (other than
properties and assets disposed of in the ordinary course of business or
otherwise permitted to be disposed of pursuant to Section 5.02(e)). The
Borrower and its Subsidiaries own and have on the date hereof good and
marketable title to, and enjoy on the date hereof peaceful and
undisturbed possession of, all properties and assets (subject only to
Liens permitted by Section 5.02(a)) that are necessary for the operation
and conduct of its business and presently and as proposed to be
conducted.
(z) Set forth on Schedule 4.01(z) attached hereto is a list, as
of the date hereof, of all Collateral (excluding (i) all items of
equipment each of which has a value of less than $100,000 and (ii) all
accounts receivable), indicating in each case whether the respective
property is owned or leased, the identity of the owner or lessee and the
location of the respective property.
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(aa) Each Obligor is the sole beneficial owner of the Collateral in
which it will purport to grant a security interest under the Security
Documents to which it is or will be a party. The pledge and security
interests to be created by the Security Documents will, at the time of
the initial Borrowing and at all times thereafter, constitute a first
priority perfected pledge and security interest in and to all of such
Collateral, all to the extent required by Section 5.01(n).
(bb) The Capital Stock of each Obligor represented by the
certificates listed on Schedule 4.01(bb) attached hereto is duly
authorized, validly existing, fully paid and non-assessable and none of
such Capital Stock is or will be subject to any contractual restriction,
or any restriction under the charter or by-laws of the respective issuer
of such Capital Stock, upon the transfer of such Capital Stock (except
for any such restriction contained in a Loan Document). Such Capital
Stock constitutes all of the issued and outstanding shares of capital
stock of any class of the issuer thereof. Said Schedule 4.01(bb)
correctly identifies, as at the date hereof, the respective issuers of
such Capital Stock, the respective class and par value of the shares
comprising such Capital Stock and the respective number of shares (and
registered owners thereof) represented by each such certificate.
(cc) Schedules 4.01(cc) -1, -2 and -3 hereto, respectively, set
forth under the name of each Obligor a complete and correct list of all
Copyrights, Patents and Trademarks owned by such Obligor on the date
hereof; except pursuant to licenses and other user agreements entered
into by such Obligor in the ordinary course of business, that are listed
in Schedule 4.01(cc)-4 hereto, such Obligor owns and possesses the right
to use, and has done nothing to authorize or enable any other Person to
use, any Copyright, Patent or Trademark listed in said Schedules
4.01(cc) -1, -2 and -3, and all registrations listed in said Schedules
4.01(cc) -1, -2 and -3 are valid and in full force and effect; except as
may be set forth in said Schedule 4.01(cc)-4, such Obligor owns and
possesses the right to use all Copyrights, Patents and Trademarks. Said
Schedule 4.01(cc)-4 sets forth a complete and correct list of all
licenses and other user agreements included in the Intellectual Property
on the date hereof. To such Obligor's knowledge, (i) except as set forth
in said Schedules 4.01(cc)-4, there is no violation by others of any
right of
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such Obligor with respect to any Copyright, Patent or Trademark listed
in said Schedules 4.01(cc) -1, -2 and -3, respectively, under the name
of such Obligor and (ii) such Obligor is not infringing in any respect
upon any Copyright, Patent or Trademark of any other Person; and no
proceedings have been instituted or are pending against such Obligor or,
to such Obligor's knowledge, threatened, and no claim against such
Obligor has been received by such Obligor, alleging any such violation,
except as may be set forth in said Schedule 4.01(cc)-4. Such Obligor
does not own any Trademarks to which the last sentence of the definition
of Trademark Collateral applies.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or
any other amount hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder or any Letter of Credit shall be outstanding, the Borrower
will, unless the Majority Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations, orders and licensing requirements, such
compliance to include, without limitation, paying before the same become
delinquent all taxes, assessments and governmental charges imposed upon
it or upon its property except to the extent contested in good faith and
by appropriate proceedings and with respect to which adequate reserves
for payment have been established.
(b) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(c) Corporate Existence and Approvals. Obtain, preserve and
maintain, and cause each Subsidiary to obtain, preserve and maintain (i)
its corporate existence, rights, franchises (including
Telecommunications Approvals) and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified, and cause each
Subsidiary to
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qualify and remain qualified, as a foreign corporation in each
jurisdiction in which such qualification is necessary or desirable in
view of its business and operations or the ownership of its properties;
provided, however, nothing herein contained shall prevent any merger or
consolidation permitted by Section 5.02(d) and (ii) all approvals,
authorizations, licenses, franchises (including Telecommunications
Approvals) and other permissions of all governmental, judicial,
regulatory and other agencies and authorities necessary to enable the
Borrower and each Subsidiary to operate and maintain its property,
business and operations as the same is currently being carried on or as
it may hereafter be carried on in accordance with the Loan Documents.
(d) Visitation Rights. At any reasonable time and from time to
time upon reasonable notice, permit the Administrative Agent or any of
the Lenders or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of account of,
and visit the properties of, the Borrower and any of its Subsidiaries,
and to discuss the affairs, finances and accounts of the Borrower and
any of its Subsidiaries with any of their officers or directors and with
their independent certified public accountants.
(e) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to in Section
4.01(e), reflecting all financial transactions of the Borrower and each
such Subsidiary.
(f) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, to the extent
that the management of the Borrower in its reasonable business judgment
deems such maintenance and preservation necessary or reasonably useful
in the proper conduct of the business of the Borrower and such
Subsidiary, all of its properties that are used or useful in the conduct
of its business in good working order and condition, ordinary wear and
tear excepted; and at all times do or cause to be done, and cause each
Subsidiary to do or cause to be done, all things necessary to obtain,
preserve,
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renew and keep in full force and effect all franchises (including
Telecommunications Approvals), licenses, patents, copyrights,
trademarks, service marks or trade names material to the conduct of its
businesses.
(g) Maintenance of Corporate Separateness. Conduct its business
and operations and the business and operations of each Subsidiary
separately from that of all other Persons (including, without
limitation, Affiliates of the Borrower), including, without limitation,
(i) not commingling funds or other assets of the Borrower or any
Subsidiary with the funds or other assets of any such other Person; (ii)
maintaining separate corporate and financial records and observing all
corporate formalities for the Borrower and each Subsidiary; (iii)
causing each Subsidiary to pay its liabilities from its assets or from
the assets of the Borrower or another Subsidiary; and (iv) causing each
Subsidiary to conduct its dealings with third parties in its own name
and as a separate and independent entity.
(h) Certain Obligations Respecting Subsidiaries.
(i) Subsidiary Guarantors. In the event that the
Borrower or any of its Subsidiaries shall form or acquire
any new Subsidiary after the date hereof, the Borrower will
cause such new Subsidiary:
(x) to execute and deliver to the Administrative Agent an
instrument in the form of Annex 1 to the Subsidiary Guaranty
(and, thereby, to become a party to the Subsidiary Guaranty as a
"Guarantor" thereunder);
(y) to take such action (including, without limitation,
delivering such shares of stock and executing and delivering such
Uniform Commercial Code financing statements) as shall be
necessary to create and perfect valid and enforceable first
priority Liens, consistent with Section 5.01(n) and the
provisions of the Security Documents, on substantially all of the
Property of such new Subsidiary as collateral security for the
obligations of such new Subsidiary under the Subsidiary Guaranty,
and to execute and deliver such supplemental Security Documents
as the Administrative Agent shall request; and
(z) to deliver such proof of corporate action,
incumbency of officers, opinions of counsel and other
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documents as is consistent with those delivered by the Borrower
pursuant to Section 3.01 hereof or as the Administrative Agent
shall have reasonably requested.
(ii) Ownership of Subsidiaries. The Borrower will, and will
cause each of its Subsidiaries to, take such action from time to time as
shall be necessary to ensure that each of its Subsidiaries is a Wholly
Owned Subsidiary. In the event that any additional shares of stock shall
be issued by any Subsidiary, or the Borrower or any of its Subsidiaries
shall otherwise acquire the shares of any Subsidiary, the Borrower
agrees forthwith to deliver (or cause to be delivered) to the
Administrative Agent pursuant to the Obligor Pledge Agreement the
certificates evidencing such shares of stock, accompanied by undated
stock powers executed in blank and to take such other action as the
Administrative Agent shall request to perfect the security interest
created therein pursuant to the Obligor Pledge Agreement.
(iii) Certain Restrictions. The Borrower will not permit any
of its Subsidiaries to enter into, after the date hereof, any indenture,
agreement, instrument or other arrangement that, directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or restraining,
or imposes materially adverse conditions upon, the incurrence or payment
of Indebtedness, the granting of Liens, the declaration or payment of
dividends, the making of loans, advances or Investments or the sale,
assignment, transfer or other disposition of Property, other than any
such prohibition or restraint (x) arising pursuant to an indenture,
agreement, instrument or other arrangement providing for Liens permitted
by Section 5.02(a), so long as such prohibition or restraint shall only
cover the Property that is subject to such Lien and no other Property,
(y) set forth in any agreement providing for the disposition of Property
(so long as such prohibition or restraint relates only to such Property
to be disposed of) or (z) set forth in any of the Loan Documents.
(i) Pro-Forma Debt Service Coverage Ratio. Maintain a
Pro-Forma Debt Service Coverage Ratio of not less than
1.05:1 at all times on and after May 31, 2000.
(j) Leverage Ratio. Maintain, as of the last day of
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each Fiscal Quarter whose last day occurs during any period set out
below, a Leverage Ratio less than the ratio set out below next to such
period:
Period Ratio
------- -----
from June 1, 1998 through November 30, 1998 13.00:1
from December 1, 1998 through May 31, 1999 10.00:1
from June 1, 1999 through November 30, 1999 8.00:1
from December 1, 1999 through February 28, 2000 7.00:1
from March 1, 2000 through May 31, 2000 6.00:1
from June 1, 2000 through November 30, 2000 5.00:1
from December 1, 2000 and thereafter 4.00:1
(k) Interest Coverage Ratio. Maintain, as of the last day of each
Fiscal Quarter whose last day occurs during any period set out below, an
Interest Coverage Ratio not less than the ratio set out below next to
such period:
Period Ratio
------ ------
from December 1, 1998 through May 31, 1999 1.05:1
from June 1, 1999 through November 30, 1999 1.50:1
from December 1, 1999 through February 28, 2000 1.75:1
from March 1, 2000 through May 31, 2000 2.00:1
from June 1, 2000 through November 30, 2000 2.25:1
from December 1, 2000 and thereafter 2.50:1
(l) Subscriber Levels. Maintain, as of each date
specified below, a number of Subscribers not less than the
number set out below next to such date:
Period Level
August 31, 1997 10,000
November 30, 1997
25,000
February 28, 1998
35,000
May 31, 1998
45,000
August 31, 1998
and at all times thereafter 55,000
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(m) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and all lessees and other Persons occupying its
property to comply, in all material respects, with all Environmental
Laws and Environmental Permits applicable to its operations and
properties; obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any investigation, study, sampling and testing,
and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental
Laws; provided, however, that neither the of Borrower nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
(n) Collateral; Consents. As and to the extent set forth below in
this paragraph (n), each Obligor will grant to the Administrative Agent,
for the benefit of the Lenders, a Lien on the items of Property referred
to below. Such Liens shall constitute valid and enforceable perfected
liens superior to and prior to the rights of all other persons and
subject to no other Liens other than Liens permitted by Section 5.02(a).
The Puerto Rico Security Documents or other instruments related thereto
shall be duly recorded or filed at the times set forth below in such
manner and in such places as are required by law to establish, perfect,
preserve and protect the Liens in favor of the Administrative Agent, for
the benefit of the Lenders, and all taxes, fees and other charges
payable in connection therewith shall be paid in full at such times:
(i) At the time of the initial Credit Extension:
(A) all switches and related equipment of
the Obligors connecting the Telecommunications
Networks to the facilities of PRTC;
(B) the Facilities Agreement, the Interconnection
Agreements, all office leases to which any Obligor is a
party, and all other material agreements to which any
Obligor is a party;
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(C) all outstanding capital stock issued by
any Obligor;
(D) all items listed on Schedules 4.01(cc)
-1, -2 and -3; and
(E) all leases for cell sites to which any
Obligor is a party; and
(ii) At the earlier of the date that the Uniform Commercial
Code of Puerto Rico (the "PRUCC") becomes effective or July 31,
1997: all Collateral comprised of equipment, inventory and
accounts receivable, and all other Collateral in which a security
interest may be created and perfected under the PRUCC without
undue cost or burden.
Further, the Borrower agrees to use commercially reasonable efforts to
obtain the PRTC Consent and Agreement and such other consents, estoppels
and other agreements from landlords and other counterparties under
leases and other agreements as are contemplated by the Puerto Rico
Security Documents as promptly as practicable after the initial Credit
Extension hereunder.
(o) Additional Puerto Rico Security Documents. As and to the
extent requested from time to time by the Administrative Agent or the
Majority Lenders, the Borrower shall cause each Obligor operating in
Puerto Rico to grant to the Administrative Agent, for the benefit of the
Lenders, a Lien in respect of any Collateral held by such Obligor not
otherwise covered by the Puerto Rico Security Documents (collectively,
the "Additional Puerto Rico Security Documents"). Such Lien shall be
granted pursuant to documentation reasonably satisfactory in form and
substance to the Administrative Agent and shall constitute valid and
enforceable perfected liens superior to and prior to the rights of all
other persons and subject to no other Liens except for Liens permitted
by Section 5.02(a). The Additional Puerto Rico Security Documents or
other instruments related thereto shall be duly recorded or filed in
such manner and in such places as are required by law to establish,
perfect, preserve and protect the Liens in favor of the Administrative
Agent, for the benefit of the Lenders, required to be granted pursuant
to the Additional Puerto Rico Security Documents and all taxes, fees and
other charges payable in connection therewith shall be paid in
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full.
(p) Facilities Agreement. The Borrower agrees (i) to request
under Section 1 of the Facilities Agreement to lease such additional
capacity, cable and fibers on the Fiber Network (as defined therein) as
may be necessary, in the reasonable commercial judgment of the Borrower,
for the operation of the Telecommunications Networks, (ii) to notify the
Administrative Agent of any failure of either other party thereto to
comply with its obligations thereunder in any material respect and (iii)
to take such action, if any, as may be reasonably requested by the
Majority Lenders in their reasonable commercial judgment to enforce its
rights and remedies against such other party in respect of any such
failure to comply with such obligations in any material respect provided
that any such action shall not be prohibited by law or by the Facilities
Agreement.
SECTION 5.02. Negative Covenants. So long as any Advance or any
other amount hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will not, without the written consent of the
Majority Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any Subsidiary to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties, whether personal or
real, and whether tangible or intangible, now owned or hereafter
acquired, or sign or file, or permit any Subsidiary to sign or file,
under the Uniform Commercial Code of any jurisdiction, a financing
statement that names the Borrower or any Subsidiary as debtor, or sign,
or permit any Subsidiary to sign, any security agreement authorizing any
secured party thereunder to file such financing statement, or assign, or
permit any Subsidiary to assign, any right to receive income, excluding,
however, from the operation of the foregoing restrictions, Liens:
(i) for taxes, assessments or governmental charges or
levies on property of the Borrower or any Subsidiary if the same
shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves have been
established;
(ii) imposed by law, such as carrier's,
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warehouseman's and mechanic's liens and other similar
liens arising in the ordinary course of business;
(iii) arising out of pledges or deposits under worker's
compensation laws or similar legislation, arising in the ordinary
course of business;
(iv) constituting easements, rights of way and other
encumbrances on title to real property that do not render title
to the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present
purposes;
(v) arising in connection with Permitted Vendor
Financing and encumbering only the assets, thereby
acquired by the Borrower or any Subsidiary;
(vi) securing Capitalized Lease Obligations
permitted by Section 5.02(c) and encumbering only the
assets leased; or
(vii) constituting purchase money Liens on or in property
acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or to secure Debt incurred solely for the purpose of
financing the acquisition of such property, or Liens existing on
such property at the time of its acquisition; provided that the
Debt secured thereby does not exceed the purchase price thereof;
provided, however, the aggregate principal amount of the Debt secured by
the Liens referred to in clauses (vi) and (vii) shall not exceed
$5,000,000 at any one time outstanding.
(b) Debt. Create, incur, assume or suffer to exist,
or permit any Subsidiary to create, incur, assume or suffer
to exist, any Debt, except
(i) Debt under the Loan Documents;
(ii) Debt owing by a Subsidiary to the Borrower or
to another Subsidiary;
(iii) Debt secured by any Lien permitted by
Section 5.02(a)(vi) or (vii);
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(iv) Permitted Vendor Financing;
(v) Debt consisting of (A) guarantees by endorsement of
negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business and (B)
guarantees by the Borrower of the obligations of any Subsidiary;
(vi) Subordinated Debt in an aggregate principal amount not
exceeding $50,000,000 at any time outstanding; provided that at
the time of incurrence thereof (and after giving effect thereto)
(x) no Default shall have occurred and be continuing and (y) on a
pro forma basis, the Borrower would be in compliance with Section
5.01(j) if such Subordinated Debt was outstanding on the last day
of the Fiscal Period ending on or most recently ended prior to
the date of such incurrence and Sections 5.01(i), 5.01(j) and
5.01(k) if such Subordinated Debt was outstanding throughout the
period of four Fiscal Quarters ending on such date;
(vii) Tax-Advantaged Debt; or
(viii) other Debt in an aggregate principal amount not
exceeding $5,000,000 at any time outstanding.
(c) Lease Obligations. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any obligations as lessee for the rental or hire of other real or
personal property of any kind under operating leases having a term of
one year or more which would cause the aggregate direct and contingent
liabilities of the Borrower and its Subsidiaries, on a Consolidated
basis, in respect of all such obligations payable in any period of 12
consecutive calendar months to exceed $5,000,000.
(d) Mergers, Etc. Merge or consolidate with or into, or sell,
assign, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to, any Person, or permit or
cause any of its Subsidiaries to do so, except that (i) any of its
Wholly-Owned Subsidiaries (other than a License Subsidiary) may merge or
consolidate with or into, or dispose of assets to, or acquire assets of,
any of its other Wholly-Owned
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Subsidiaries and (ii) any of its Subsidiaries (other than a License
Subsidiary) may merge into, or dispose of assets to, the Borrower,
provided in each case that, immediately prior to and after giving effect
to such transaction, no event shall have occurred or be continuing which
constitutes an Event of Default or which, with the giving of notice or
lapse of time or both, would constitute an Event of Default and in the
case of any such merger to which such Borrower is a party, such Borrower
is the surviving corporation.
(e) Sales, Etc. of Assets. Sell, assign, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries to sell, assign,
lease, transfer or otherwise dispose of, any of its assets, including
(without limitation) substantially all assets constituting the business
of a division, branch or other unit operation, except:
(i) for sales of assets for cash in the ordinary
course of its business,
(ii) for disposition of obsolete equipment no
longer needed in the conduct of the Borrower's or such
Subsidiary's business,
(iii) in a transaction permitted by subsection (d)
of this Section 5.02.
(f) Investments in Other Persons. On or after the date hereof
make, or permit any Subsidiary to make, any Investment in any Person
(including, but not limited to, its officers and employees) other than
Permitted Investments.
(g) Dividends, Etc. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its
capital stock or any warrants, rights or options to acquire such capital
stock, now or hereafter outstanding, return any capital to its
stockholders as such, make any distribution of assets, capital stock,
warrants, rights, options, obligations or securities to its stockholders
as such, or permit any of its Subsidiaries to do any of the foregoing,
except that, in compliance with all applicable requirements of law, (i)
any Subsidiary may declare and make payment of cash and stock dividends,
return capital and make distributions of assets to the Borrower or to
other Subsidiaries, (ii) the Borrower may declare and deliver
distributions payable only in common stock of the
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Borrower and (iii) the Borrower may declare and pay cash dividends to
Holdings as follows:
(x) the Borrower may pay the Initial
Distributions,
(y) if (both immediately before and immediately after
giving effect thereto) no Default shall have occurred and be
continuing, the Leverage Ratio is less than 5.0:1 and the
Borrower would be in compliance with the requirements of Sections
5.01(i), 5.01(j) and 5.01(k) hereof (determined on a pro forma
basis under the assumption that Debt in an amount equal to the
amount of such dividend had been incurred at the beginning of,
and had remained outstanding during, the relevant Fiscal Period
for which such requirements are calculated), the Borrower may pay
dividends in any Fiscal Quarter in an aggregate amount not
exceeding 50% of Excess Cash Flow for the immediately preceding
Fiscal Quarter, and
(z) if (both immediately before and immediately after
giving effect thereto) no Default shall have occurred and be
continuing, the Borrower may pay dividends in an aggregate amount
not exceeding the Net Cash Proceeds of an Equity Issuance
received by the Borrower on or before the date falling 30 days
prior to the payment of such dividends.
(h) Change in Fiscal Year or Charter Amendment. Change, or permit
any Subsidiary to change, its fiscal year from the Fiscal Year or amend,
or permit any Subsidiary to amend, its certificate of incorporation or
bylaws.
(i) Nature of Business. Engage, or permit any Subsidiary to
engage, in any business other than owning and operating
Telecommunications Networks; or permit any License Subsidiary to engage
in any line or lines of business activity other than holding
Telecommunications Approvals; or permit the Telecommunications Approvals
to be held in the name of any Person other than a License Subsidiary.
(j) Transactions with Affiliates. Engage, or permit any
Subsidiary to engage, in any transaction with an Affiliate (other than a
Subsidiary) of the Borrower on terms less favorable to the Borrower or
such Subsidiary than would be obtainable at the time in comparable
transactions of the
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Borrower or such Subsidiary with Persons not Affiliates; or, without
limiting the generality of the foregoing, engage, or permit any
Subsidiary to engage, in any transaction with Century-ML or any
Affiliate of Century-ML (other than the Borrower or any Subsidiary of
the Borrower) on terms less favorable to the Borrower or such Subsidiary
than would be obtainable at the time in comparable transactions of the
Borrower or such Subsidiary with Persons not Affiliates.
(k) Restriction on Negative Pledges. Enter into or suffer to
exist, or permit any of its Subsidiaries to enter into or suffer to
exist, any agreement prohibiting or conditioning the creation or
assumption of any Lien of any nature upon any of its property or assets
in favor of the Administrative Agent and the Lenders other than in
connection with any Debt permitted by Section 5.02(b)(iii) or
5.02(b)(iv) to the extent such agreement is applicable only to the
property on which a Lien is permitted under Section 5.02(a)(v), (vi) or
(vii).
(l) Accounting Changes. Make or permit, or permit any
of its Subsidiaries to make or permit, any change in
accounting policies or reporting practices, except as
required by generally accepted accounting principles.
(m) Prepayments, Etc. of Debt. Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of,
any Debt, other than (i) the prepayment of the Advances in accordance
with the terms of this Agreement and (ii) regularly scheduled or
required repayments or redemptions of Debt, provided that any such
required prepayment or redemption does not require the Borrower to pay
any "make-whole" or other premium in connection with such prepayment or
redemption.
(n) Amendments to Certain Documents. Amend, modify or change, or
agree to any amendment, modification or change, of any term or condition
of, or give any consent, waiver or approval under, (i) any agreement,
instrument or other document governing or evidencing any Permitted
Vendor Financing or Subordinated Debt, (ii) the Interconnection
Agreements, (iii) any Marketing Agreement, (iv) the Consent and
Agreements or (v) the Facilities Agreement.
(o) Issuance of Stock. The Borrower will not suffer
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or permit any Subsidiary, directly or indirectly, to issue any stock of
such Subsidiary, except (a) to the Borrower, (b) to a Wholly Owned
Subsidiary of the Borrower or (c) to qualified directors if and to the
minimum extent required by applicable law.
(p) Management Fees. The Borrower will not, and will not permit
any of its Subsidiaries to, pay management or consulting fees to
Holdings, Century-ML or their respective Affiliates other than (i)
reimbursement to Holdings of actual out-of-pocket expenses to the extent
incurred for the direct and exclusive benefit of the Borrower and its
Subsidiaries that in any case do not exceed (x) $500,000 per Fiscal Year
from the period from the date hereof through May 31, 2000 and (y)
$1,000,000 per Fiscal Year thereafter and (ii) under the Facilities
Agreement and any Marketing Agreement.
SECTION 5.03. Reporting Requirements. So long as any amount
hereunder shall remain unpaid or any Lender shall have any Commitment hereunder,
the Borrower will, unless the Majority Lenders shall otherwise consent in
writing, furnish to the Administrative Agent for distribution to the Lenders:
(a) as soon as possible and in any event within five Business
Days after the occurrence of each Default continuing on the date of such
statement, a statement of a Financial Officer of the Borrower setting
forth details of such Default and the action which the Borrower has
taken or proposes to take with respect thereto;
(b) as soon as available and in any event within 20 days after
the end of each calendar month, a Consolidated and consolidating
statement of revenues for the Borrower and its Subsidiaries for such
month, and of the Subscribers of the Borrower and its Subsidiaries as at
the last day of such month;
(c) as soon as available and in any event within 60 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
of the Borrower, Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such quarter and the
related Consolidated and consolidating statements of operations,
statements of retained earnings and statements of cash flows of such
Persons for such quarter and for the period commencing at the end of the
previous Fiscal Year and ending
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with the end of such quarter, all in reasonable detail and duly
certified (subject to normal year-end audit adjustments) by a Financial
Officer of the Borrower as having been prepared in accordance with
generally accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to in Section
4.01(e);
(d) as soon as available and in any event within 90 days after
the end of each Fiscal Year of the Borrower, a copy of the annual audit
report for such year for the Borrower and its Subsidiaries, including
therein Consolidated and consolidating balance sheets of such Persons in
each case as at the end of such Fiscal Year and the related Consolidated
and consolidating statements of operations, statements of retained
earnings and statements of cash flows of such Persons for such Fiscal
Year, which Consolidated financial statements of the Borrower and its
Subsidiaries shall have been duly certified by Deloitte & Touche or
other independent certified public accountants of recognized standing
reasonably acceptable to the Majority Lenders which certificate shall be
accompanied by a statement of such accounting firm to the Administrative
Agent stating that in the course of the regular audit of the business of
the Borrower and its Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, nothing came to their attention that caused them to believe
the Borrower was not in compliance with Section 5.01, insofar as such
Section relates to accounting matters, and which other financial
statements shall have been duly certified by a Financial Officer of the
Borrower as having been prepared in accordance with generally accepted
accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e);
(e) concurrently with any delivery of financial statements under
clause (c) or (d) above, a Compliance Certificate as at the end of (and
for) the respective Fiscal Periods covered by such financial statements;
(f) promptly after the commencement thereof, notice of all
actions, suits and proceedings of the type described in Section 4.01(h)
before any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, and notice of an adverse
development in any such action, suit or proceeding (including any such
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action, suit or proceeding in existence on the date hereof);
(g) promptly after the sending thereof, copies of all proxy
statements, financial statements and reports which the Borrower or any
Subsidiary sends to its stockholders;
(h) promptly after the filing thereof, copies of all regular,
periodic and special reports, and all registration statements, which the
Borrower or any Subsidiary files with the Securities and Exchange
Commission or any governmental authority which may be substituted
therefor, with any national securities exchange or with the FCC or the
PRTRB;
(i) promptly after the filing or receiving thereof, copies of all
reports and notices which the Borrower or any Subsidiary files under
ERISA with the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or which the Borrower or any Subsidiary receives
from such Corporation or Department;
(j) as soon as available and in any event within 45 days after
the end of each Fiscal Quarter, a report identifying any
Telecommunications Approval that has been lost, surrendered or canceled
during such period, and within 10 Business Days of the receipt of the
Borrower or any of its Subsidiaries of notice that any
Telecommunications Approval has been lost or canceled, copies of any
such notice accompanied by a report describing the measures undertaken
by the Borrower or any of its Subsidiaries to prevent such loss or
cancellation (and the anticipated impact, if any, that such loss or
cancellation will have upon the business of the Borrower and its
Subsidiaries);
(k) within 15 days after any change occurs with respect to any
information regarding any Subsidiary contained in the most recent
schedule furnished under this Section 5.03(j) or, if no such schedule
has been furnished, in Schedule 4.01(k), a schedule, in substantially
the form of Schedule 4.01(k), setting forth as of the date such schedule
is furnished the information described in the first sentence of Section
4.01(k);
(l) as soon as available and in any event within 60 days after
the end of each Fiscal Quarter of each Fiscal Year of the Borrower, a
Borrowing Base Certificate as at the last day of such Fiscal Quarter.
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(m) the receipt of any notice from the FCC or the PRTRB of the
imposition of any forfeiture against the Borrower or any of its
Subsidiaries or the designation of a hearing or the initiation of any
proceeding which could result in the expiration without renewal,
termination, revocation, suspension, modification or impairment of any
Telecommunications Approval now or hereafter held by the Borrower or any
of its Subsidiaries;
(n) to the extent the Borrower has knowledge thereof, notice of
the enactment or promulgation, or the impending enactment or
promulgation, after the date hereof of any Federal, state or local
statute, regulation or ordinance, or judicial or administrative decision
or order, relating to the cellular telephone, mobile radio telephone,
personal communication, local exchange or competitive access service
industries generally or affecting the Borrower or any of its
Subsidiaries specifically that could reasonably be expected to have a
Material Adverse Effect; and
(o) such other information respecting the business or properties
or the condition or operations, financial or otherwise, of the Borrower
or any Subsidiary, as the Administrative Agent or any Lender may from
time to time reasonably request.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall (i) fail to pay or prepay any principal of
any Advance or Reimbursement Obligation when the same becomes due and
payable or (ii) fail to pay any other amount hereunder when the same
becomes due and payable and, in the case of this clause (ii), such
failure shall continue unremedied for three or more Business Days; or
(b) Any representation or warranty made or deemed made by any
Credit Party in or in connection with any Loan Document shall prove to
have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe
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any term, covenant or agreement contained in Section 5.02
(other than Section 5.02(h) or (l)) or 5.03(a); or
(ii) The Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed, other than those listed in subsections (a) or
(c)(i) above, if such failure shall remain unremedied for 30 days after
the earlier of (A) written notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender and (B) the
Borrower's knowledge of such failure; provided that a breach by the
Borrower of any or all of its financial covenants set forth in Sections
5.01(i), (j) or (k) may be cured (and thus shall be deemed not to have
occurred) if, within five Business Days after the occurrence of such
breach, the Borrower shall have received from an Eligible Equity
Contributor capital contributions in the form of cash or Approved
Telecommunications Properties (whether or not in connection with the
issuance by the Borrower to such Eligible Equity Contributor of
additional shares of its capital stock) which, if such capital
contributions had been received by the Borrower prior to the last day of
the Fiscal Period with respect to which the Borrower has breached any
such financial covenants, would have resulted in the Borrower's
compliance with all such covenants whether or not so breached (deeming,
for the purpose of this determination, any such cash capital
contributions received from such Eligible Equity Contributor to be an
addition to the net income component of EBITDA of the Borrower and its
Subsidiaries for such Fiscal Period); provided further, however, that
the cure mechanism described in this subclause (c) shall not be
available to the Borrower (x) more than four times during the term of
this Agreement or (y) to cure the breach of any financial covenant
occurring as of the last day of any Fiscal Period if such provision was
availed of to cure any such breach of financial covenant occurring as of
the last day of the immediately preceding Fiscal Period; or
(d) Any Credit Party fails to observe, perform or comply with any
of its other agreements or covenants in, or provision of, any Loan
Document to which it is a party, and such default or breach continues
for a period of 30 days after there has been given to the Borrower by
the Administrative Agent, or to the Borrower and the Administrative
Agent by any Lender, a written notice specifying such default or breach
and requiring it to be
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remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt (but excluding Debt
evidenced by the Notes) of the Borrower or such Subsidiary (as the case
may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt, and the
aggregate amount of all such Debt with respect to which any such failure
shall have occurred and be continuing shall equal or exceed $5,000,000
(such Debt in such aggregate amount being referred to herein as
"Material Debt"); or any other event shall occur or condition shall
exist under any agreement or instrument relating to any Material Debt
and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the
maturity of such Material Debt; or any such Material Debt shall be
declared to be due and payable, or required to be prepaid (other than by
a regularly scheduled required prepayment), redeemed, purchased or
defeased, or an offer to prepay, redeem, purchase or defease such
Material Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
(f) Any judgment or order for the payment of money in excess of
$5,000,000 shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) (i) Century-ML shall suffer the cancellation, non-renewal or
adverse modification of any one or more approvals, authorizations,
licenses, franchises or other permissions of any governmental, judicial,
regulatory or other agencies if such cancellation, non-renewal or
adverse modification renders the continued performance by it of its
obligations under the Facilities Agreement unlawful, or the Facilities
Agreement shall be terminated, shall expire or shall be materially
adversely modified, unless the Borrower
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shall have secured alternative arrangements satisfactory to the Majority
Lenders to substitute for benefits provided by the Facilities Agreement
for the operation by the Borrower of the Telecommunications Networks or
(ii) either Interconnection Agreement shall be revoked or terminated,
shall expire or shall be materially adversely modified, unless the
Borrower shall have secured alternative arrangements satisfactory to the
Majority Lenders to substitute for the benefits of such Interconnection
Agreement for the operation by the Borrower of the Telecommunications
Networks; or
(h) Any Obligor shall generally not pay its debts as they become
due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Credit Party seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any Bankruptcy Law, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted
against it (but not instituted or consented to by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 days,
or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or
for any substantial part of its property) shall occur; or any Credit
Party shall take any corporate action to authorize any of the actions
set forth above in this paragraph (h); or
(i) Any material provision of any Loan Document shall for any
reason cease to be binding on or enforceable against the respective
Credit Party party thereto; or
(j) There shall occur any Material Adverse Change; or
(k) Any ERISA Event shall have occurred with respect to a Plan
and the sum of the Insufficiency of such Plan and the Insufficiency of
any and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or, in the case of a Plan with respect to which
an ERISA Event described in clause (iii) through (vi) of the definition
of
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ERISA Event shall have occurred and then exist, the liability related
thereto) is equal to or greater than $5,000,000; or
(l) The Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount which, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Borrower and its ERISA Affiliates as Withdrawal Liability, exceeds
$5,000,000 or requires payments exceeding $5,000,000 per annum; or
(m) The Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result of such reorganization or termination the
aggregate annual contributions of the Borrower and its ERISA Affiliates
to all Multiemployer Plans which are then in reorganization or being
terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the respective plan year of each such
Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $5,000,000;
or
(n) The Borrower or any Subsidiary shall suffer the cancellation,
non-renewal or adverse modification of any one or more
Telecommunications Approvals, provided, however, that such a
cancellation, non-renewal or adverse modification shall not constitute
an Event of Default if (i) the cancellation, non-renewal or adverse
modification is not reasonably likely to have a Material Adverse Effect,
or (ii) in the instance of a cancellation, non-renewal or expiration, an
application for reinstatement, renewal or extension has been duly made
by the Borrower or the Subsidiary concerned and is being diligently
pursued by the Borrower or such Subsidiary and the Borrower or such
Subsidiary is not prohibited by a final order of a court of competent
jurisdiction from continuing to provide service under such
Telecommunications Approval during the pendency of such application and
such Telecommunications Approval has not been granted to another Person,
or (iii) in the instance of a cancellation, the Borrower or the
Subsidiary concerned is not prohibited by final order of a court of
competent jurisdiction from continuing to provide service under such
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Telecommunications Approval, and such Telecommunications
Approval has not been granted to another Person; or
(o) The Lien created by any Security Document shall at any time
not constitute a valid and perfected Lien on the collateral intended to
be covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Administrative Agent, free and clear of all other Liens (other than
Liens permitted under Section 5.02(a) hereof or under the respective
Security Documents), or, except for expiration in accordance with its
terms, any of the Support Documents shall for whatever reason be
terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Credit Party; or
(p) Any Change of Control (under and as defined in the Senior
Notes Indenture as in effect on the date hereof) shall occur and be
continuing, or Century Communications Corp. and Citizens Utilities
Company (or Subsidiaries of either of the foregoing) shall cease to hold
in the aggregate Voting Stock of Centennial Cellular carrying at least
51% of the Voting Power of all Voting Stock of Centennial Cellular, or
Centennial Cellular (or its Subsidiaries) shall cease to hold in the
aggregate at least Voting Stock of Holdings carrying at least 51% of the
Voting Power of all Voting Stock of Holdings, or Holdings (or its
Subsidiaries) shall cease to hold in the aggregate Voting Stock of the
Borrower carrying at least 51% of the Voting Power of all Voting Stock
of the Borrower; or
(q) The Borrower and its Subsidiaries fail to maintain
operational capacity of the PCS System sufficient to provide service to
at least 80% of the population of Puerto Rico for a period of 45 or more
consecutive days;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the Commitment of each Lender to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Majority Lenders, by notice to the Borrower, declare the Advances, all
interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Advances,
all such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any
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kind, all of which are hereby expressly waived by the Borrower; provided,
however, in the event of an Event of Default referred to in paragraph (h) of
this Section 6.01, (A) the Commitment of each Lender to make Advances shall
automatically be terminated and (B) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
In addition, upon the occurrence and during the continuance of
any Event of Default (if the Administrative Agent has declared the principal
amount then outstanding of, and accrued interest on, the Advances and all other
amounts payable by the Borrower hereunder and under the Notes to be due and
payable), the Borrower agrees that it shall, if requested by the Administrative
Agent or the Majority Lenders through the Administrative Agent (and, in the case
of any Event of Default referred to in paragraph (g) or (h) of this Section 6.01
with respect to the Borrower, forthwith, without any demand or the taking of any
other action by the Administrative Agent or such Lenders) provide cover for the
Letter of Credit Liabilities by paying to the Administrative Agent immediately
available funds in an amount equal to the then aggregate Face Amount of all
Letters of Credit, which funds shall be held by the Administrative Agent in the
Collateral Account as collateral security in the first instance for the Letter
of Credit Liabilities and be subject to withdrawal only as provided in Section
6.02 hereof.
SECTION 6.02. Collateral Account.
(a) The Borrower hereby establishes with the Administrative Agent
a separate cash collateral account (the "Collateral Account") in the name and
under the control of the Administrative Agent into which there shall be
deposited from time to time such amounts as required to be paid to the
Administrative Agent under Section 2.09(d) hereof and the last paragraph of
Section 6.01 hereof.
(b) As collateral security for the prompt payment in full when
due (whether at stated maturity, upon mandatory or optional prepayment, pursuant
to requirements for cash collateral or otherwise) of the Reimbursement
Obligations, interest thereon, and all obligations of the Borrower under the
Letter of Credit Documents relating to Letters of Credit and under Section
6.02(f) hereof (whether or not then outstanding or due and payable) (such
obligations being herein collectively called the "Secured Obligations"), the
Borrower hereby pledges and grants to the
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Administrative Agent, for the benefit of the Issuing Banks, the Lenders and the
Administrative Agent as provided herein, a security interest in all of its
right, title and interest in and to the Collateral Account and the balances from
time to time in the Collateral Account (including the investments and
reinvestments therein provided for below). The balances from time to time in the
Collateral Account shall not constitute payment of any Secured Obligations until
applied by the Administrative Agent as provided herein. Anything in this
Agreement to the contrary notwithstanding, funds held in the Collateral Account
shall be subject to withdrawal only as provided in this Section 6.02.
(c) Amounts on deposit in the Collateral Account shall be
invested and reinvested by the Administrative Agent in such Cash Equivalents as
the Borrower shall determine in its sole discretion, provided that (i) failing
receipt by the Administrative Agent of instructions from the Borrower, the
Administrative Agent may invest and reinvest such amounts as the Administrative
Agent shall determine in its sole discretion and (ii) the approval of the
Administrative Agent shall be required for the investments and reinvestments to
be made during any period while a Default has occurred and is continuing. All
such investments and reinvestments shall be held in the name and be under the
control of the Administrative Agent.
(d) If an Event of Default shall have occurred and be continuing,
the Administrative Agent may (and, if instructed by the Majority Lenders, shall)
in its (or their) discretion at any time and from time to time elect to
liquidate any such investments and reinvestments and credit the proceeds thereof
to the Collateral Account and apply or cause to be applied such proceeds and any
other balances in the Collateral Account to the payment of any of the Secured
Obligations due and payable.
(e) If (i) no Default has occurred and is continuing and (ii) all
of the Secured Obligations have been paid in full but Letters of Credit remain
outstanding, the Administrative Agent shall, from time to time, at the request
of the Borrower, deliver to the Borrower, against receipt but without any
recourse, warranty or representation whatsoever, such of the balances in the
Collateral Account as exceed the Face Amount of all outstanding Letters of
Credit. When all of the Secured Obligations shall have been paid in full and all
Letters of Credit have expired or been terminated, the Administrative Agent
shall promptly deliver to the Borrower, against receipt but without any
recourse, warranty or representation whatsoever, the
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balances remaining in the Collateral Account.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement or any other Loan Document
(including, without limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, and such instructions shall be binding upon all Lenders;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to personal liability or which
is contrary to any Loan Document or applicable law. The Administrative Agent
agrees to give each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agents' Reliance, Etc. None of the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender which is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with any Loan Document or for any financial
projection
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or other information furnished by the Borrower before or after the execution of
this Agreement; (iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of the Borrower or any other Person or to inspect
the property (including the books and records) of the Borrower; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with any Loan Document or any other instrument or
document furnished pursuant hereto; and (vi) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 7.03. The Administrative Agent and its Affiliates. With
respect to its Commitment and the Advances made by it and the Notes issued to
it, the Administrative Agent, in its capacity as a Lender hereunder, shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include the
Administrative Agent in its individual capacity. The Administrative Agents and
its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower,
any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if the Administrative
Agent was not the Administrative Agent and without any duty to account therefor
to the Lenders.
SECTION 7.04. Lender Credit Decision.
(a) Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
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decisions in taking or not taking action under this Agreement.
(b) Without limiting the foregoing, each Lender acknowledges that
the Administrative Agent is not responsible for the forecasts and projections
received from time to time by such Lender whether or not such forecasts or
projections were prepared by the Borrower, any other Obligor, the Administrative
Agent or any other party or based on information provided by any such party. The
Administrative Agent makes no representation or warranty whatsoever as to the
truth, accuracy or content of the information contained therein.
SECTION 7.05. Indemnification by Lenders. The Lenders agree to
indemnify the Administrative Agent (to the extent not reimbursed by the
Borrower), ratably according to the respective principal amounts of the Notes
then owing to each of them (or if no Notes are at the time outstanding or if any
Notes are held by persons which are not Lenders ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement; provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from gross negligence or willful misconduct on the part of the Administrative
Agent. Without limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any other Loan Document, or in
connection with any refinancing or restructuring of the credit arrangements
provided pursuant to the Loan Documents, including, without limitation, in the
nature of a workout or of any insolvency or bankruptcy proceedings to the extent
that the Administrative Agent is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed
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at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Administrative Agent so long as all of the long-term public senior
debt securities of such successor Administrative Agent are rated at least "BBB-"
by Standard & Poor's Corporation or "Baa3" by ▇▇▇▇▇'▇ Investors Service, Inc. at
the time of its acceptance of appointment as successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof, having a combined
capital and surplus of at least $50,000,000 and all of whose long-term public
senior debt securities are rated at least "BBB-" by Standard & Poor's
Corporation or at least "Baa3" by ▇▇▇▇▇'▇ Investors Service, Inc. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
SECTION 7.07. Amendments to Loan Documents. Except as otherwise
provided in Section 8.01 with respect to this Agreement, the Administrative
Agent may, with the prior consent of the Majority Lenders (but not otherwise),
consent to any modification, supplement or waiver under any of the Loan
Documents, provided that, without the prior consent of each Lender, the
Administrative Agent shall not (except as provided herein or in the Support
Documents) (i) release any collateral or otherwise terminate any Lien under any
Security Document providing for collateral security, (ii) agree to additional
obligations being secured by such collateral security (unless the Lien for such
additional obligations shall be junior to the Lien in favor of the other
obligations secured by such Security Document, in which event the Administrative
Agent may consent to such junior Lien provided that it obtains the consent of
the
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Majority Banks thereto), (iii) alter the relative priorities of the obligations
entitled to the benefits of the Liens created under the Security Documents or
(iv) release any Guarantor under the Subsidiary Guaranty from its guarantee
obligations thereunder, except that no such consent shall be required to, and
the Administrative Agent shall, release any collateral or otherwise terminate
any Lien covering Property (and to release any such Guarantor) that is the
subject of either a disposition of Property permitted hereunder or a disposition
to which the Majority Lenders have consented.
SECTION 7.08. Co-Agents. Without limiting any of their
obligations hereunder as Lenders, none of the Persons identified as a "Co-Agent"
on the cover page hereof shall have any rights or obligations in their capacity
as a "Co-Agent".
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Article III, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action hereunder or (f)
amend this Section 8.01; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or any Note and no
amendment, waiver or consent shall, unless in writing and signed by an Issuing
Bank in addition to the Lenders required above to take such action, affect the
rights or duties of such Issuing Bank under this
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Agreement.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at c/o Century
Communications Corp., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy
no. ▇▇▇-▇▇▇-▇▇▇▇, Attention: Chief Financial Officer, with a copy to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, telecopy no. ▇▇▇-▇▇▇-▇▇▇▇; if to any Bank, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Administrative Agent, at its
address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Media
and Communications; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall be effective when received by the addressee
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses.
(a) The Borrower agrees to pay on demand all reasonable costs and
expenses in connection with the preparation, execution, delivery, administration
(other than routine administrative expenses), modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and out-of-pocket
expenses of counsel for the Administrative Agent with respect thereto and with
respect to advising the Administrative Agent as to its rights and
responsibilities under this Agreement and/or the other Loan Documents, or the
perfection, protection or preservation of rights or interests under the Loan
Documents, with respect to
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negotiations with any Credit Party or with other creditors of any Credit Party
or any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto. The Borrower further agrees to pay on demand all
costs and expenses, if any (including, without limitation, reasonable counsel
fees and expenses) of the Administrative Agent and each of the Lenders, in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise and whether or not resulting in a settlement of any claim,
proceeding or case) of, or legal advice in respect of rights and
responsibilities under, this Agreement, the Notes and the other documents to be
delivered hereunder or in connection with the refinancing or restructuring of
the credit arrangements provided pursuant to the Loan Documents, including,
without limitation, in the nature of a workout or insolvency or bankruptcy
proceedings, including, without limitation, reasonable counsel fees and expenses
in connection with the enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.07(f) or 2.11,
prepayment pursuant to Section 2.08, acceleration of the maturity of the Notes
pursuant to Section 6.01 or for any other reason, the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or expenses
which it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance. A certificate as to such amounts,
submitted to the Borrower and the Administrative Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at any time and
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from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
any Note held by such Lender, whether or not such Lender shall have made any
demand under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender under this Section 8.05 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which such
Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each Lender that such Lender has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Administrative Agent and each
Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations.
(a) Each Lender may and, if demanded by the Borrower (following a
demand by the Lender pursuant to Section 2.10(a) and 2.10(b)) upon at least 5
Business Days' notice to such Lender and the Administrative Agent, shall assign
to one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Note or Notes held by it and its Letter of Credit
Liabilities); provided, however, (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement, (ii) except in the case of assignments to affiliates or other
Lenders, the amount of the Commitment or (if the Commitments have terminated)
the outstanding Advances and Letter of Credit Liabilities of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 and shall be an integral multiple of
$1,000,000,
Credit Agreement
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unless and to the extent that the Administrative Agent agrees otherwise, (iii)
each such assignment shall be to an Eligible Assignee acceptable to the Issuing
Banks, (iv) each such assignment made as a result of a demand by the Borrower
shall be arranged by the Borrower after consultation with the Administrative
Agent and shall be either an assignment of all of the rights and obligations of
the assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower unless and until
such Lender shall have received one or more payments from either the Borrower or
one or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances and participations in
outstanding Reimbursement Obligations owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, (vi) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,000 and (vii) the assigning Lender shall give the Borrower
not less than five Business Days' prior notice of such assignment. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least 5 days after the execution and delivery thereof to the Administrative
Agent, (x) the assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and (y) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
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Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant to any Loan Document; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any other instrument
or document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under any Loan Document; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under any Loan Document as are delegated to them by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of any Loan Document are required to
be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that
Credit Agreement
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it is an Eligible Assignee, together with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note to
the order of such Eligible Assignee in an amount equal to the Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Commitment hereunder, a new Note to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Note or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment and the Advances owing to it); provided, however, (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrower hereunder and the Advances owing to it and the Note or Notes
held by it) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (iv) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any departure by
any Obligor therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or
Credit Agreement
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proposed assignee or participant, any information relating to any Credit Party
furnished to such Lender by or on behalf of the Borrower; provided that, prior
to any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any confidential
information relating to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Indemnification by the Borrower. The Borrower
agrees to indemnify and hold harmless the Administrative Agent, each Lender and
CSI and each of their respective affiliates, and each of their respective
officers, directors, employees, agents, advisors, representatives, and
controlling persons (each, an "Indemnified Party") from and against any and all
claims, damages, liabilities, obligations, losses, penalties, actions,
judgments, suits, costs, expenses and disbursements (including, without
limitation, fees and disbursements of counsel and reasonable allocated costs of
in-house counsel) of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against any Indemnified Party in connection with or
arising out of, or in connection with the preparation of a defense of, (a) any
investigation, litigation, or proceeding related to any acquisition or proposed
acquisition by the Borrower, or by any Subsidiary or Affiliate of the Borrower,
of all or any portion of the stock or substantially all the assets of any
Person, (b) any other investigation, litigation or proceeding involving the
Holdings, Century-ML or any of their respective Affiliates or (c) any failure by
Century-ML or Century ML Cable Venture to perform any of its obligations under
the Facilities Agreement or any representation by either of them under the
Facilities Agreement proving to have been untrue when made, in each case whether
or not such investigation, litigation or proceeding is brought by the Borrower
or any of its Affiliates or any of their directors, shareholders or creditors or
an Indemnified Party is otherwise a party thereto, except to the extent that
such claim, damage, liability, obligation, loss, penalty, action, judgment,
suit, cost, expense or disbursement is found in a final judgment by a court of
competent jurisdiction to have resulted from (i) the gross negligence or willful
misconduct
Credit Agreement
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of such Indemnified Party or such Indemnified Party's affiliates, or (ii) if
such Indemnified Party is the Administrative Agent, a Lender, CSI or any of
their respective affiliates, the gross negligence or willful misconduct of such
Indemnified Party's officers, directors, employees, agents, advisors,
representatives and controlling persons or (iii) if such Indemnified Party is an
officer, director, employee, agent, advisor, representative or controlling
person of another Indemnified Party, the gross negligence or willful misconduct
of such other Indemnified Party.
SECTION 8.09. Confidentiality. In connection with the negotiation
and administration of this Agreement and the other Loan Documents, the Borrower
has furnished and will from time to time furnish to the Administrative Agent and
the Lenders (each, a "Recipient") written information which is identified to the
Recipient in writing when delivered as confidential (such information, other
than any such information which (i) was publicly available, or otherwise known
to the Recipient, at the time of disclosure, (ii) subsequently becomes publicly
available other than through any act or omission by the Recipient or (iii)
otherwise subsequently becomes known to the Recipient other than through a
Person whom the Recipient knows to be acting in violation of his or its
obligations to the Borrower, being hereinafter referred to as "Confidential
Information"). The Recipient will treat confidentially any Confidential
Information in accordance with such procedures as the Recipient applies
generally to information of that nature. It is understood, however, that the
foregoing will not restrict the Recipient's ability to freely exchange such
Confidential Information with (i) directors, employees, auditors, accountants or
counsel of such Recipient or its affiliates and (ii) current or prospective
assignees of and participants in the Recipient's position herein, but in the
case of prospective assignees of and participants in the Recipient's position
herein, the Recipient's ability to so exchange Confidential Information shall be
conditioned upon any such prospective assignee's or participant's entering into
an understanding as to confidentiality similar to this provision. It is further
understood that the foregoing will not prohibit the disclosure of any or all
Confidential Information if and to the extent that such disclosure may be
required (i) by a regulatory agency or otherwise in connection with an
examination of the Recipient's records by appropriate authorities, (ii) pursuant
to court order, subpoena or other legal process or in connection with any
pending or threatened litigation, (iii) pursuant to any order, regulation or
ruling applicable to such Recipient or at the express direction of any other
authorized governmental agency, (iv) as may be required or appropriate in any
report,
Credit Agreement
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statement or testimony submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over such Recipient or to the
Federal Reserve Board or the FDIC or similar organizations (whether in the
United States or elsewhere) or their successors, (v) otherwise as required by
law, or (vi) in order to protect its interests or its rights or remedies
hereunder or under the other Loan Documents; in the event of any required
disclosure under clause (ii), (iii), (iv) or (v) above, the Recipient agrees to
use reasonable efforts to inform the Borrower as promptly as practicable.
SECTION 8.10. Governing Law. This Agreement and the
Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 8.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 8.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 8.13. Submission to Jurisdiction; Waivers. The
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) The Borrower hereby agrees that service of all writs, process
and summonses in any such suit, action or proceeding brought in the
State of New York may be made upon Centennial Cellular Corp., presently
located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (the "Process
Agent"), and the Borrower hereby confirms and agrees that the Process
Agent has been duly and irrevocably appointed as its agent
and true and lawful attorney-in-fact in its name, place and
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stead to accept such service of any and all such writs, process and
summonses, and agrees that the failure of the Process Agent to give
any notice of any such service of process to the Borrower shall not
impair or affect the validity of such service or of any judgment based
thereon.
(c) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(d) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail return receipt requested (or any substantially similar
form of mail), postage prepaid, to the Borrower at its address set forth
in Section 8.02 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto with a copy to ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.; and
(e) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction.
SECTION 8.14. Acknowledgments. The Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Notes and
the other Loan Documents;
(b) none of the Administrative Agents or Lenders has any
fiduciary relationship to the Borrower, and the relationship between the
Administrative Agent and Lenders, on one hand, and Borrower, on the
other hand, is solely that of debtor and creditor; and
(c) no joint venture exists among the Borrower and the
Lenders.
Credit Agreement
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWER
CENTENNIAL PUERTO RICO WIRELESS
CORPORATION
By:
-----------------------------------
Title:
Credit Agreement
- 108 -
ADMINISTRATIVE AGENT
CITIBANK, N.A.,
as Administrative Agent
By:
-------------------------------
Title: Attorney-In-Fact
BANKS
Commitment
----------
$60,000,000 CITIBANK, N.A.
By:
-------------------------------
Title: Attorney-In-Fact
$20,000,000 CIBC INC.
By:
-------------------------------
Title:
$20,000,000 CREDIT LYONNAIS, NEW YORK BRANCH
By:
-------------------------------
Title:
$20,000,000 SOCIETE GENERALE, NEW YORK BRANCH
By:
-------------------------------
Title:
$10,000,000 LTCB TRUST COMPANY
By:
-------------------------------
Title:
Credit Agreement
Schedule I
Lender Domestic Lending Office
------ -----------------------
Citibank, N.A. Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
CIBC Inc. CIBC Inc.
Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Lyonnais, Credit Lyonnais, New York Branch
New York Branch 1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Societe Generale, Societe Generale, New York Branch
New York Branch ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LTCB Trust Company LTCB Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Schedule I
